Seanad Éireann debate -
Wednesday, 1 Dec 1976

Vol. 85 No. 8

Criminal Justice (Verdicts) Bill, 1976: Second and Subsequent Stages.

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

Minister for Justice (Mr. Cooney)

The purpose of this Bill is simply to secure that, where a criminal court is sitting without a jury, the court shall have the same power to make any determination as if the court were sitting with a jury. The Bill is therefore a technical one.

The kind of determination chiefly involved is a verdict that the accused is guilty of an offence different from the offence specifically charged. Verdicts have also sometimes to be given as to the sanity or insanity of the accused or—very occasionally—as to whether he has already been tried for the offence charged. The Bill will apply to all these kinds of determinations; but as the first kind I have mentioned—that is to say, a verdict that the accused is guilty of a different offence—is the most important, I shall deal with it first.

The powers under which a person charged with offence A may be convicted instead of offence B are commonly referred to as the powers to give "alternative verdicts", and they are a familiar feature of jury trials. Some of the powers are common law ones, others are statutory.

By common law a person charged on indictment with a felony may be convicted instead of a lesser felony whose ingredients are included in the felony charged and a person charged with a misdemeanour may be convicted of a lesser misdemeanour included in the misdemeanour charged. For example, a person charged with murder may be convicted instead of manslaughter and a person charged with robbery may be convicted instead of larceny. This is because the allegation in the indictment that the accused committed murder necessarily implies an allegation of manslaughter and the allegation that he committed robbery necessarily implies an allegation of larceny. The lesser offence is included in the greater; and if the accused is convicted of the lesser, this means that the jury were not satisfied beyond reasonable doubt that his conduct amounted to the offence specifically charged but were satisfied that it amounted to the lesser offence.

In addition to the common law rule there are several statutory provisions by which a person charged with offence A may be convicted instead of offence B. In some cases the reason for the statutory power is that, although the ingredients of the lesser offence are included in the offence charged, the offence charged is a felony and the lesser offence is a misdemeanour and, as I have said, the common law power applies only where both the offences in question are felonies or both are misdemeanours.

Examples of statutory powers given for this reason are the power under section 5 of the Prevention of Offences Act, 1851, by which a person charged with the felony of wounding with intent to cause grievous bodily harm may be convicted of the misdemeanour of unlawful wounding, and the general power under section 9 of the Criminal Procedure Act, 1851, by which a person charged with committing an offence may be convicted of attempting to commit that offence. The need for the latter provision is that, with few exceptions, an attempt to commit an offence is a misdemeanour even if the offence attempted is a felony.

Besides this class of enactments there are several enactments by which a person charged with offence A may be convicted instead of offence B when, although the ingredients of offence B are not necessarily included in offence A, the two offences are by their definitions so closely related that it may be difficult for the prosecution to foresee, in advance of the evidence, which is the appropriate offence to charge. Examples are the provision in subsection (1) of section 44 of the Larceny Act, 1916, by which a person charged with robbery may be convicted instead of assault with intent to rob and the provisions in subsection (2) of the same section by which a person charged with embezzling property may be convicted instead of stealing it and a person charged with stealing property may be convicted of embezzling or fraudulently converting it.

So much for the general rules as to alternative verdicts. I come now to the particular reason for introducing this Bill. It is that most of the statutory provisions allowing alternative verdicts are in terms of what "the jury" may do. This applies to all the statutory provisions that I have just instanced. Leaving on one side for the present summary trials, this method of drafting was appropriate for trials on indictment, because at the time when the enactments were passed these trials always took place with a jury. But now unfortunately some cases have to be tried before the Special Criminal Court, which sits without a jury. In the case of The People (Director of Public Prosecutions) v. Rice a man was tried last year before the Special Criminal Court for robbery and was convicted of assault with intent to rob. This was in reliance on the provision in section 44(1) of the Larceny Act, 1916, to which I have referred; but the Court of Criminal Appeal quashed the conviction on the ground that under that provision the power to convict of assault with intent to rob was exercisable by "the jury" and so was not available to the Special Criminal Court.

This situation is unsatisfactory, because the Special Criminal Court should clearly be able to give whatever alternative verdict a jury can give. Indeed before the Rice case this was thought to be the law. The Bill seeks to remedy the situation by providing—to state the matter shortly—that a criminal court sitting without a jury may make any determination that could be made if it were a court sitting with a jury. In particular, this will enable the court to convict of an alternative offence in any case where a jury may do so.

The main provision is in section 1 (1), which assimilates the powers of a criminal court sitting without a jury to those of a court sitting with a jury in the respect I have mentioned. The subsection will apply not only to the Special Criminal Court but also to the District Court. In general the powers of juries to bring in alternative verdicts are not exercisable by the District Court. Therefore, if the District Court considers that the evidence shows that the accused should be convicted of a lesser offence than the offence specifically charged, a fresh information must be issued charging the lesser offence. There is an exception in the case of dangerous and careless driving. By section 53 (4) of the Road Traffic Act, 1961, a person charged with dangerous driving may be convicted instead of careless driving, and this applies both to jury trials and trials in the District Court. Now that the Bill proposes to ensure that the Special Criminal Court should have the same powers as juries to give alternative verdicts, it seems desirable that the powers should extend to the District Court. This will simplify the law, even if the occasions for exercising the powers will be less frequent in the District Court. Therefore subsection (1) gives the powers to any court sitting without a jury. Paragraph (b) of the subsection is included in order to secure that the District Court shall have the necessary powers not only in the case of a summary trial of an indictable offence but also in the case of a trial for a purely summary offence.

Subsection (2) is purely procedural. It ensures that, in any case where a person is charged with offence A and can be convicted instead of offence B, he can plead guilty to offence B. The result, if the prosecution are willing to accept the plea of guilty and the court approves, is that the accused is convicted only of offence B and dealt with accordingly. This is the procedure at present under section 39 (1) of the Criminal Justice Administration Act, 1914, in respect of trials on indictment, and subsection (2) will ensure that the procedure applies to all courts. The subsection will cover all criminal trials and will therefore supersede the provision in the 1914 Act, which subsection (4) repeals.

So far I have referred mainly to the powers of convicting of alternative offences. But I mentioned briefly at the beginning of my speech two other classes of issues which juries may have to determine in trials on indictment in the ordinary courts. These are, first, issues in relation to the sanity or insanity of the accused and, second, the issue whether a person is exempt from trial on the ground that he has already been convicted or acquitted by a competent court of the offence charged. The second class of issues rarely arises and need not detain us. The Bill will enable the court to decide the issue as a jury can.

Issues as to the sanity or insanity of the accused are, however, important. At present an issue of this kind may arise at three stages. First, before the trial begins there may be a question whether the accused is so insane that he cannot be tried at all—that is to say, whether he is what is called "unfit to plead". Second, a similar question may arise during the trial. Third, the accused's defence may be that, although he may have committed the act in question, he was at the time insane so as not to be responsible in law for his action—that is to say, that the verdict should be "guilty but insane". In all these cases the issue of sanity or insanity is determined by a jury—in the first two cases under section 17 of the Lunacy (Ireland) Act, 1821, and in the third under section 2 of the Trial of Lunatics Act, 1883.

In a case where the issue of fitness to plead arises before the trial a jury is specially formed to determine the issue. Under the Acts of 1821 and 1883, if the jury finds the accused insane, the court orders him to be detained until he is found fit to plead, or to be detained in a place suitable for a person who has been found guilty but insane, as the case may be. The place in which he is detained is determined by order of the Minister for Justice. Under subsection (1) of section 1 of the Bill the functions of a jury in deciding the issue of sanity will be exercisable by the Special Criminal Court in a case tried before that court. But subsection (3) ensures that the powers under the Acts mentioned shall not be exercisable by the District Court. This is because the issue of the sanity of the accused does not arise in practice in that court—even in the higher courts it rarely arises except in cases of murder—and it would not, in the Government's opinion, be appropriate to include in the Bill a provision that would, in theory, empower the District Court to make an order involving the possibility that the accused would be detained indefinitely in the State mental hospital. For this reason the Bill extends the powers of courts sitting with juries in these respects to the Special Criminal Court only.

The proposal in the Bill to give the Special Criminal Court the same powers as jury courts in cases of insanity has been criticised on the ground that issues as to insanity should be decided only by a jury. I think this criticism must be owing to a misunderstanding. For in the nature of things the Special Criminal Court must decide whether the accused is insane if the question of his sanity in fact arises. If the question is whether he is fit to plead, the court must consider the question before it can try him; and if it decides that he is unfit to plead, this means that it cannot try him. If the question is whether the accused was insane at the time when he committed the act in question so as not to be criminally responsible for his act, then again the court must consider this question; and if it decides that he was insane, it cannot convict him.

The result, if the Special Criminal Court is not given the powers proposed, will be this: if the court considers that the accused is unfit to plead, it will have to release him; and if it considers that he did the act in question but was insane so as not to be responsible for it, it will have to find him simply "not guilty" and, of course, to release him. Once this is understood I cannot see how it can be disputed that the Special Criminal Court must have power to order the detention of the accused in either case in the same way as if he had been found insane by a jury. I might add that the Court of Criminal Appeal, which of course is also a non-jury court, has power, on an appeal against conviction, to substitute a verdict of "guilty but insane".

I recommend the Bill to Seanad Éireann.

Mr. Lenihan

This Bill is technical in many respects but, at the same time, there are certain points of principle involved. In regard to the first aspect referred to by the Minister, the question of alternative verdicts, that is of course a commonsense proposal; it should apply to the Special Criminal Court and, in particular, to the District Court. The jury situation confined to finding alternative verdicts, which has been there for some time in legislation, is of course outdated. I welcome it in particular in regard to the District Court and the efficient functioning of it. It is quite obvious that they should have this alternative verdict power. It is there already under the Road Traffic Act and may be there under other legislation. It is in ease of the accused in many cases that this should be so and that this alternative verdict avenue should be open to a judge without a jury in the District Court or Special Criminal Court at the lower or minimum offence level.

I agree with the Minister also on the autrefois aequit aspect. That is not likely to be that important. The only matter really on which I would like to take issue with the Minister and like to hear his views—and indeed he referred to it in the last page of his brief—is on the question of the insanity provisions proposed in the Bill, the unfitness to plead—during trial it does not arise often—mainly before the trial, and secondly, the plea during the course of defence that at the time of commission of the offence the accused was insane. The transference of that area to the Special Criminal Court raises some doubts. The very fact that the Minister and the Government do not transfer that particular aspect to the District Court, as they do in the case of the alternative verdict area, is, I think in ease of the accused, and rightly so. The Minister and the Government and his officials are obviously aware of the dangers in transferring this whole insanity area to a district justice. The Minister states quite plainly in his brief that it is not proposed—and it is not in the Bill—to transfer it to a district justice. I would apply the same reasoning to transferring these particular powers to the Special Criminal Court. That is the only point on which I would like to take issue with the Minister.

There are very sound reasons why the question of unfitness to plead or the question of insanity at the time of commission of an offence should be tried by a man's peers. I take it that is the reasoning behind the Minister not transferring that matter to the District Court. He is also aware of the problem involved in transferring it to the Special Criminal Court. It is on this that I would take issue with him. In broad principle I agree with many aspects of the Bill, but perhaps the Minister would look at the possibilities at a future date of having a medical assessor provision written into this by way of regulation or legislation. It would be very desirable that the Special Criminal Court should have some independent medical assessor along with the actual court itself, and not just evidence alone. I appreciate that the evidence can be given by prosecution and defence, but some sort of medical assessor giving independent evidence should be available to the Special Criminal Court in the absence of a jury in that type of situation. I put that forward as a suggestion, not making a major issue of it. I would like to hear the Minister's views on whether something of that kind could be incorporated either by way of regulation or legislation at a future date.

In general principle, I go along with the Bill. I just make these few reservations and in particular the reservation about the insanity issues being decided by the Special Criminal Court as such without a jury or without any medical assessor being available to the court.

Mr. M.J. O'Higgins

I appreciate fully the reasons for the introduction of the Bill as regards both aspects of it, the alternative verdicts and the question of sanity. I regard Senator Lenihan's approach to the question of the sanity issue as a constructive one and as one which I think the Minister might consider generally in relation to this kind of legislation. Certainly, I can see the reasons why the Bill is required so far as the Special Criminal Court is concerned, and I can see the kind of difficulties that would arise in a situation where, if the law was left unchanged, the Special Criminal Court would have no alternative in certain circumstances but to order the release of a person, perhaps whom they regard as dangerous, possibly dangerous on the grounds of mental health, for example. If the law is allowed to stand unchanged that situation could arise. The Minister has in the last page of his speech pointed out the dangers more clearly than I have made the case. At the same time, most of us would feel that there is something abhorrent about allowing a situation where a person can—and the Minister has used the phrase himself in relation to the District Court—without a jury be detained indefinitely in a State mental hospital by reason of a decision given by judges sitting without a jury. That is the dilemma in which the Minister, in the first place, and the Legislature after him, find themselves in trying to deal with this situation. Some of the suggestions put up by Senator Lenihan show a constructive approach to this.

I am not prepared to stand out against the Bill at this stage, but I would like the Minister to assure us that he will continue to examine this question. Obviously the court must be empowered in some way to deal with the kind of situation I spoke of at the outset and that the Minister has referred to. As things stand, they might have no option but to release a person whom they regard as insane and regard as being dangerous. Nevertheless, it does seem to me that possibly machinery could be devised without making the thing too cumbersome, that, instead of having to make an order of release, on the one hand, or a finding of insanity, on the other, the Special Criminal Court would be empowered to make a temporary detention order pending the empanelling of a special jury to consider the matter after hearing medical evidence, something on those lines which would provide a safeguard. I certainly do not want to go on record as believing for a moment that the judges sitting in the Special Criminal Court would act in any arbitrary fashion or act without due regard to their own honest findings in these matters.

However, as a legislator, I do see that a case can be put up when the law is being changed in this way when heretofore there was a requirement for a jury to adjudicate or to come to a decision on these matters. I do think it reasonable to argue that some intermediate course might be devised whereby a safeguard such as the one Senator Lenihan or I have suggested might be written into the legislation. I would like to think, putting it very briefly, that this is not the Minister's last word or last thought on this matter.

Mrs. Robinson

Like other Senators, I accept that there is an anomalous position which the Minister proposes to try to remedy, but I would have reservations about the actual method chosen. I will come to the position regarding unfitness to plead, but first of all I would like to talk about the Bill itself. It is entitled the Criminal Justice (Verdicts) Bill, 1976. Its main purpose, however, is to extend the jurisdiction of the Special Criminal Court.

I think it is undesirable that we extend the jurisdiction of the Special Criminal Court by way of ordinary legislation which is intended to be permanently on our Statute Book so that in 80 years time it will still appear as Criminal Justice (Verdicts) Act, 1976. We cannot lose sight of the basic distinction: that the Special Criminal Court is an extraordinary and unusual court, a court which we have most reluctantly and with due precautions introduced at a time when there are the strains on our system, when there are the reasons necessitating its introduction. It is not an ordinary court. It is an extraordinary, unusual and very regrettable court to have as part of our system. We have to remind ourselves of the wording of Article 38.3 which states:

18 Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.

2º The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law.

I would have preferred if the Minister had chosen to adopt a literal aproach to that constitutional provision, and literally—if he wished to extend the jurisdiction of the Special Criminal Court to cover an anomalous position and to provide for alternative verdicts— that he had done it by a Bill to amend the basic provision which establishes the Special Criminal Court, namely, the Offences Against the State Act of 1939. It would have been better to amend section 43 of that Act relating to the jurisdiction of the Special Criminal Court, in order that there could be no possible construction that we are somehow bringing the Special Criminal Court into the mainstream of our administration of justice, that we envisage it as a permanent or long-term institution in our State. I think that line cannot be drawn carefully enough, cannot be borne in mind explicitly enough, and is a very important fundamental principle. Therefore, I would have preferred if the Special Criminal Court had been given the power to bring in an alternative verdict in a Bill entitled the Offences Against the State (Amendment) Bill. The Minister could have come before us and made the same submissions about the anomalous position, referring to the case of the DPP v. Rice and to the need to extend in this specific way the particular jurisdiction of the Special Criminal Court. Consequently, when that part of the Offences Against the State Act comes to an end so would this extension of jurisdiction of the Special Criminal Court.

In reply to the point I am making the Minister may say that this particular Bill, the Criminal Justice (Verdicts) Bill, proposes not only to cover the Special Criminal Court but also refers to the District Court. This is not really a satisfactory answer. First of all, I doubt whether it is necessary in fact to introduce a statutory provision giving the District Court power to bring in alternative verdicts. Persons charged before the District Court with a summary offence should know precisely the summary offence they are charged with. I do not think there is a genuine problem here. I have not heard of any case of difficulty arising in this instance. Even if there is a difficulty the particular extension of the jurisdiction of the District Court should itself be done by a statutory amendment which makes it clear that this is an amendment of the jurisdiction of the District Court. It should be done by a separate provision to the provision which extends the jurisdiction of the Special Court, which must in my submission be clearly and totally divorced from the normal administration of justice in our land, be regulated by a special statute called the Offences Against the State Act. Any extension of that by a further amendment of the Offences Against the State Act should be regarded as separate and apart and for a limited period only, an exceptional jurisdiction, regretted by everybody in this country who regrets the reasons why we have to bring in non-jury courts to try criminal offences in this country. As soon as the situation comes about that we do not have to have special courts of this nature we should be able, by allowing a whole separate block of legislation to lapse, to end the operation of the Special Court in this country.

On the question of giving the Special Criminal Court jurisdiction to find a person unfit to plead, I was very heartened by the contributions of Senator Lenihan and Senator O'Higgins. I, too, would feel grave apprehension about extending this type of jurisdiction to the Special Criminal Court. It is a very dangerous extension and I would query whether it is warranted, and whether this is the appropriate way to meet the particular problem outlined by the Minister in introducing this Bill.

I was interested in the proposal of Senator O'Higgins because I had intended to suggest another possibility. That is, if a person proposed to raise a plea of unfitness to plead, of insanity on arraignment, that that person would not come before the Special Court but would be directed to go before one of the ordinary courts so that a special jury could be empanelled and the necessary medical evidence could be obtained and so on. This would not arise in very many circumstances, but it is a very important principle that the assessment of whether a person is fit to stand trial be an assessment by a jury.

Also it is important to bear in mind— and it has not been mentioned in the debate so far—that the jury which tries the issue of insanity on arraignment, whether a person is unfit to plead, is then discharged and does not go on to be the jury of the trial of that person if he goes forward for trial. It is important that a person should not have the same jury trying the issue on the merits once that jury has decided that a person is fit to plead. However it will be the same special court that will try the issue on the merits if that court decides that somebody is fit to plead. There is that aspect as well.

In the light of the comments made here today I would ask the Minister to consider the implications of conferring this type of jurisdiction on the Special Criminal Court and whether he could meet the particular problem another way.

This is a grey area in our law where a person can be found unfit to plead and detained indefinitely, detained until subsequently he may become fit to plead. There seems to be an implication in that, an implication of permanency in the Special Court itself, because it would be that court which would decide that the particular accused was unfit to plead and that the accused should be detained until he had become fit to plead. As I understand it, the normal system would be that the person would come back before that court again. Is it envisaged that the person found unfit to plead by the Special Court has the possibility of coming back again before the Special Court? Is that not in itself an indirect admission of permanency in the Special Court, an indirect admission that it is part of the permanent court structure in our country rather than an exceptional measure which must be terminated at the first possible opportunity? Again, I think that it is undesirable for the accused person to risk being detained indefinitely by a Special Court. It certainly is a different adjudication on the issue of fitness to plead than adjudication by a jury and it is an undesirable extension of jurisdiction by the Special Court for these reasons.

Since the Bill before us proposes among other things to extend the jurisdiction of the Special Criminal Court, I would like to seek some information from the Minister about the degree to which the operation of the Special Criminal Court is monitored by the Department of Justice. I would like to know whether it is possible to obtain fuller information on the working of the court; on the parties that come before the court; on charges; on the length of time between when the person is charged before the Special Court and when that person will come for trial; and much fuller information generally than is available from the Department of Justice when somebody seeks statistics and information about the Special Criminal Court. On the last occasion on which I expressly sought this information from the Department of Justice I got immediate assistance from the particular officials I approached. But all the actual information I could get was a sort of statistical sheet updated to 31st July, 1976, giving a list of the types of offence, the number of persons convicted and the pattern of sentences before the Special Criminal Court. The total up to the 31st July, 1976, was 772 persons convicted and 270 acquitted— in all 1,042 people dealt with by the Special Criminal Court in this way.

I maintain that if we must allow the existence of an extraordinary court, a "non-ordinary" court which can convict and sentence people for very serious offences, without a jury, that we must as a democratic country very carefully monitor it at the official level, and provide very full information on the operation of the Special Criminal Court. It would be appropriate for the Minister to ensure that this type of study and overall control of the court is going on. I do not mean control over how the judges are operating but control over the way in which the court functions; ensuring that the cases are brought on in proper time; that the book of evidence is served in adequate time; that there is adequate opportunity for legal advisers to consult with their clients. Whatever the stresses, and I do understand the stresses and strains of the security problem—I think the reality of the security problem was evident from the blowing up of part of the court itself in recent months—I think the major burden on a democratic state is to provide the adequate information and careful monitoring of the operation of that court.

When we have a situation that in the last few years more than 1,000 people have been tried before it, then we should review carefully the operation of the Special Court. We should do this publicly and courageously, and not be afraid to have full public assessment of the operation of the court. In particular, we should always maintain an approach towards it that it is not part of the normal administration of justice; that it is not a court that we want to set up except with the greatest reluctance and under the sort of pressure that we are under in this State at the moment; that it will be our intention as a country to terminate it at the first available opportunity, so that, while the Government are of the opinion that it is necessary under Article 38 of the Constitution and have invoked that part of the Offences Against the State Act to establish it, it is not tolerated casually by our society but is deeply regretted, and that very careful monitoring is maintained over it.

For that reason, I repeat my regret that this Bill, which the Minister has described as a technical measure, which in many ways does correct a technical anomaly in the earlier position, could have this undesirable implication of regarding the Special Court as only one of the criminal courts administering justice in this State, so that it is normal to provide for extending the jurisdication of that court and the District Court and any other court in the same Bill, in the same permanent part of legislation. This could have the effect of cementing into our system a different sort of recognition of the Special Criminal Court that the Constitution itself allows, because the Constitution makes it clear that the Special Court is only to be established where the ordinary courts are inadequate to secure effective administration of justice and that the jurisdiction and procedure of such Special Courts should be "prescribed by law". I would submit that the spirit of that section means it should be done by different law, by special law, by exceptional law.

Dr. Browne

It seems that most people are agreed that there is a need in a limited sense, for the provisions of the Bill, that is, the extension of jurisdiction arising out of the Rice case. However, the Minister will have to forgive many of us for being chary about accepting without very critical examination anything that he brings before us now. It seems to have been his unfortunate job in the Government to continue to restrict the right of individuals and citizens, always under the same plea that this is necessary in the interests of the preservation of the security of the State. The fears everybody expresses arise from the fact that the power refers to the Special Criminal Court, established under the Offences Against the State Act, 1939, the fact that this court is a court which is not surrounded by the safeguards which we have come to expect from our judicial system since the State was formed. Any attenuation of the protection that the citizen had have always been justified on grounds of the security of the State.

Sitting without a jury and hearing these very difficult and tragic cases, as most of them are for the youngsters involved, is obviously not an ideal judicial system, because if it were we would not have the jury system. Where we have a court of this kind which does not really meet what would be the requirements for an ideal or perfect judicial system, then, when we grant any power to the Minister to extend that particular court's powers, it must be scrutinised with very special care. Whatever one may say about the quality of mercy or the quality of understanding or the level of understanding of the judges involved in the Special Court, at least they have a special training and a special knowledge and a lot of experience, and one mus assume that they do their best under the very difficult circumstances of their distasteful job. Nevertheless I think it has been noted that it is possible under this same Act to substitute for the judges a court of three Army officers, three laymen, with as much experience or knowledge of the law as I have, which is little or none in the technical sense. This has happened before the establishment of that court in which three military men became the judges. Without impugning their personal integrity, quite obviously they were put in an invidious position in their attempts to arbitrate on difficult issues, some of them amounting to the death penalty or long terms of imprisonment.

It seems that this is the part of it which must be most closely watched, because unfortunately the general impression, in spite of the effects of the peace movement, is that we are still in a perilous state in relation to the Northern problem. Therefore, one must envisage that whatever powers are given we are anticipating that they could be used by a lay court of military officers. That being so, it seems that one cannot accept the Minister's plea—is a valid one to a limited extent—that the person who, for instance, pleaded guilty but insane must be released under the present law. Obviously there is a prima facie case for giving the court the right to go on from there. That is the argument being put forward by the Minister.

I see a number of dangers. One that appeals to me especially as a psychiatrist is this question of the ability to plead and the guilty but insane verdict. This brings in the whole question of the MacNaughton Rules, their interpretation and so on. I am sure the Minister knows as well as I do, and probably better, how absurd this whole medico-legal paraphernalia is and how badly it needs to be dealt with in order to try to rationalise the behaviours of the courts and the medical profession in these terribly difficult questions. I am not doubting that for a moment. At the same time, where it is before a judge and a jury, at least we are protected from ourselves. The jury protects us from both the weaknesses of the judge and the members of the psychiatric profession. Speaking as a psychiatrist, there should be supervision over our arrogance in deciding that somebody is unfit to plead or is guilty but insane. I have never really felt that these things could be put down in such simplistic terms. We must all know that there is an enormous amount of doubt in the courts surrounding this whole question.

We are including under this Bill the possibility that a military court will be faced with attempting to assess the evidence put forward to them, presumably by the psychiatric profession, without the protection of a jury and without the experience of a presiding judge in the ordinary sense. That seems to be a very dangerous concession to make to the Minister. I have to say it in the context of the reality that, if the decision rests with psychiatrists, and it must do—the three laymen know little or less than psychiatrists do about the MacNaughton Rules or their interpretation, and I would not care to attempt to interpret them except in the very broadest way—clearly one is thrown back on the psychiatrist as the final arbiter on these very serious issues. We must all know of the conflict in the world in terms of the new development of imprisoning one's political opponents with the help of the members of the medical profession, psychiatrists in particular. One would not dream of saying that kind of thing or making that charge were it not for the fact that a very great part of the time of this House has been taken up by those of us who do not share the Minister's present attitude to these things attempting to defend any verbal encroachment on the civil liberties of individuals from the demands of the Executive. The Minister told us of a threatened Judiciary, a series of assassinations and so on. As the Minister said, events would demand a military court. Then this enormous power is put at the disposal of three laymen advised by members of the psychiatric profession. In the broadest sense, you all know that this power is abused on both sides of the Atlantic. In the United States somebody like Ezra Pound is put into a lunatic asylum. In the Soviet Union, various people, dissidents of one kind or another, are put into asylums—this is the word for them; "subversive" is the present Minister's word for them. Whatever word is used, both sides find that after a certain point, where they simply cannot just lock people up under their laws, it could be useful for them to have yet one more power, a respected power, rightly or wrongly, within the community. That is the power of the medical people, psychiatrists in particular.

From my knowledge of the profession, we are the last people to trust with power of this kind, not because of any lack of integrity or honesty, or attempt to be utterly fair and just, but simply because there are so many divisions between us as to what is right, what is wrong, what is fair, what is unfair. For instance, if I were called before these people I would plead the case I have often made here of the influence of education on youngsters and their effective innocence in certain respects. I would plead, that all crimes are crimes of society. I would plead that all the people in our jails are political prisoners. This happens to be my particular philosophy. One would then get the complete antithesis of all the genuinely held views and the sincerely held beliefs. Are these the right people to whom we should entrust the powers under the Lunatics (Ireland) Act, 1821? The Long Title of the Act reads:

An Act to make more effectual provision for the establishment of asylums for the lunatic poor and for the custody of insame persons charged with offences in Ireland.

They may be kept in custody, taken care of at the pleasure of the Lord Lieutenant and so on. Who is that now? The President or the Government? I do not know. It is the effective right to imprison for life, if we decide so. If I was hostile to the point of view expressed before the courts I could advise the people concerned that the person was unfit to plead and should be held indefinitely.

I am not theorising. This is possible where one sees the development of a kind of hysteria. We have emotive words used about people like this. In the Soviet Union they are "hooligans"; here they become "terrorists" and feeling is built up against them. Psychologists and psychiatrists have been involved in devising the terrible torture of sensory deprivation which breaks people completely.

Under the Bill, we are giving considerable powers other than those stated on the face of it—the power to extend jurisdiction, which I concede is needed but which should be protected in respect of the Special Criminal Court. The main case I am making is that there must be alternative devices as suggested by the Leader of the House and Senators Robinson and Lenihan. This would be all right if the Minister were asking for powers, for instance, in the District Court, which we all know and respect and for which there are so many protections. But in this case there is the great danger that wittingly or not—I suspect it is offensive to tell an intelligent person that he is unwitting in doing something wrong; the Minister must know what he is doing—the Minister is asking for powers which should not be given to him in the context of the Offences Against the State Act, 1939, under which the Special Court was established and on which it is possible to do the switch-job of changing the reputable members of the Judiciary who may be supervising the court with three well-meaning but inevitable defenders of the Establishment. That is their brief, their function, and what they are paid for. On top of that there is the total innocence of the real implications of what they are doing when they would accept a case of unfitness to plead in court. While most people are prepared to give the Minister the simple power he is asking for in relation to the extension of jurisdiction, there must be some other way in which it is possible to restrict that power in respect of these situations particularly where there is unlimited extended custody under the "unfit to plead" appeal.

Mr. Alexis FitzGerald

The Minister could not be expected in the present circumstances, following the decision of the Special Criminal Court, to do anything other than to introduce this Bill to deal with the question of alternative offence. While it might be, as Senator Robinson said, desirable that there be some set of Acts where all the provisions relative to the Special Criminal Court could be found, what is most desirable may not be practicable to achieve, particularly when the Minister has taken the step of simplifying the whole question by extending the power to the District Court.

I am not a criminal lawyer but I should have thought that the anomaly referred to is the distinction between the treatment of felonies and misdemeanours. On the latter point, I share the unhappiness which has been expressed by Senators who have spoken, although we must place it in the perspective of the situation in which the Special Criminal Court operates and why it operates. It operates because juries, at this time, for reasons well known to everyone, cannot cope with the type of offences which are dealt with by the Special Criminal Court. If they cannot deal with that type of offence I do not see how they can deal with any of the problems attendant on them. I am extremely unhappy with the idea of an indefinite detention, whether it arises by virtue of the Special Criminal Court's decision or by virtue of anybody else's decision, notwithstanding all Senator Browne has said in the light of greatly increased knowledge of psychological conditions.

I am not sure how juries operate in relation to lunacy matters, whether they operate satisfactorily. I do not know how many people have been found insane by juries established under the Lunacy Act. I would be surprised if there has been one in a number of years. I am not opposing this Bill, because it is a situation which has to be dealt with. However, I think the Minister ought to explore the suggestion of Senator Lenihan, supported by other Senators, of devising some machinery to prevent abuse.

It is not quite sufficient—I think Senator Browne is right in this—to say, as we probably all would, that the personnel of the Special Criminal Court have our entire confidence as human beings. The solid fact of the matter, not being distracted by Ezra Pound or by comparing the dissidents in Russia with the people who are being brought before the Special Criminal Court, remains that psychiatrists have been used in Russia and in the eastern world generally as a method of political punishment. We do not want to have on our Statute Book anything that appears to tolerate or to permit such methods in any circumstances which may arise in the future, when other people may be there, not merely different Ministers but, as Senator Browne said, perhaps people without even judical training not alone psychological knowledge.

This whole area irrespective of the Special Criminal Court, is worthy of an examination to see how it could be improved. This might be the sort of matter the Law Reform Commission will deal with: this whole question of the relationship of psychological condition to guilt, the whole question of what happens when a crime is being committed. What is the treatment for a person who is not really guilty if he was insane when he committed the offence? What ought to be the method—adoptting Senator Robinson's words—of monitoring this position to prevent a situation of neglect arising or of any kind of abuse? I would support the Bill, with this expressed unhappiness on this aspect of it.

Mr. E. Ryan

I accept much of what is in this Bill. There is a good deal of common sense in it. There is a good deal in it which will merely make for administrative convenience and I have often opposed parts of Bills which were there for administrative convenience when that seemed to be the only purpose of the section or the amendment and when the fact that it would interfere with the right or liberty of the citizen seemed to be ignored. But where you can introduce into a Bill something that is for administrative convenience and which at the same time does not in any way impinge on the citizen, then I am all in favour of it.

You have the situation which the Minister mentioned in his speech where a person is charged in the District Court with a major offence and where the evidence shows that in fact he is not guilty of that but he is almost certainly guilty of some lesser offence. It seems to me quite undesirable that the State should have to issue fresh proceedings —undesirable from the point of view of the State and indeed undesirable from the point of view of the accused, because certainly the accused, I am sure, would prefer to have whatever charge or whatever charges were being brought against him disposed of on one day rather than to have to come before the court on two different occasions.

In so far as this Bill makes for administrative convenience and in so far as that can be done without impinging in any way on the rights or liberties of the citizen, then I think the portion of the Bill that does that is a good thing. Generally speaking, I think, not only in the District Court but elsewhere, where the court can find somebody not guilty of a major offence but guilty of a minor one, this is nearly always in ease of the accused, because by and large juries are inclined to compromise if they have any doubt and are inclined to compromise by finding the person guilty of the lesser offence rather than the major one.

I suppose the most frequent example of this is in case of driving offences where people are charged with the offence of dangerous driving and where in many cases the end result is that they are found not guilty of dangerous driving but guilty of careless driving. Generally speaking, the provisions of this Bill will in fact be in ease of the accused person, and Senator Robinson, in talking about the extension of the jurisdiction of the District Court, was, I think, using the terms in a way which is not quite justified. It does not seem to me to extend the jurisdiction of the District Court where you merely allow the court to take two possible offences into consideration, a major one and a minor one, and to find the person guilty of the minor one if the major one is not justified. It is not a question of giving the District Court any new jurisdiction over an offence with which they were not already capable of dealing. To refer to that as extension of jurisdiction is, I think, hardly justified. Certainly, it is not an undesirable extension of jurisdiction, if it can be called that at all.

Many Senators have expressed unease with regard to the question of insanity. I certainly share that unease. To give this power to the Special Criminal Court must make us think seriously about whether it can be avoided. We are slow to give this power because the Special Criminal Court is a court about which we have reservations. It is not a jury court and we are concerned with the composition of it. We are concerned that the Special Criminal Court is there at all. It is an undesirable court, but most people feel that in the present context it is necessary. In these circumstances we are talking about whether we can or should give the court the power of deciding the fitness of an accused person to plead in certain circumstances.

Again, if we could find a means of having this question decided in a case which is before the Special Criminal Court without leaving the decision to the Special Criminal Court, then that way should be adopted. But it seems that it would be almost impossible to devise a means of doing this because if one removes this decision from the Special Criminal Court the possibility, indeed the probability, is that the Special Criminal Court will be undermined because this issue would constantly arise. It would arise in cases where it would not be justified at all. The case would have to be removed from the jurisdiction of the Special Criminal Court to have this issue decided and, in fact, we would be back in the position of having something coming before a jury. The probability of the jury being intimidated would arise and the whole purpose of the Special Criminal Court could be avoided in this way.

While I certainly share the unease about the situation, if one is convinced that in present circumstances the Special Criminal Court is necessary, then I cannot see any way of dealing with the situation which would get around the problem about which so many speakers have expressed misgivings. Apart from the Special Criminal Court the question of pleas of insanity and so on is something which needs very comprehensive review. It needs review in all the situations in courts which arise at present and I hope the Minister will in the near future give attention to a comprehensive review of the question of insanity in the light of modern day psychiatric approaches and techniques. Obviously, this is not the Bill to introduce amendments to deal with this because it is a very comprehensive matter and one which needs a good deal of study, debate and discussion when it comes before the Houses of the Oireachtas. One could talk at great length about this problem but this would not be the Bill to do it. However, I hope the Minister has plans for a Bill in which it will be comprehensively dealt with.

Minister for Justice (Mr. Cooney)

The views expressed in the debate fell under two broad heads, in relation to the question of alternative verdicts and then in relation to the question of findings on insanity. Both of these two themes are linked more or less by reference to the Special Criminal Court. Many Senators also touched on the question of the law of insanity and, as Senator Ryan so pertinently pointed out, this is an immense question with many legal, medical and social complexities about it. It seems to have been overlooked that my predecessor took action in this regard when on 24th January, 1972, he set up an informal inter-departmental committee on mentally ill and maladjusted persons. I should like to read to the House the terms of reference of that committee:

To examine and report on the provisions, legislative, administrative and otherwise, which the committee considers to be necessary or desirable in relation to persons, including drug abusers, psychopaths and emotionally disturbed and maladjusted children and adolescents, who have come or appear likely to come in conflict with law and who may be in need of psychiatric treatment.

I am sure the House will agree that they are very wide terms of reference and would permit a study of the various matters that have been touched on in the course of this debate. That committee has a distinguished judge of the Supreme Court, Mr. Justice Henchy, as its chairman, and has many distinguished people in its personnel, people representing the various disciplines interested in examining and reporting on those terms of reference. It has published two interim reports and they are to be obtained in the Stationery Office and were published in July last year. I regret that the committee's existence does not appear to be more widely known.

The problem with which that committee is faced is one of immense complexity. It has been meeting regularly since it was set up and I am hopeful that, eventually, it will report in a manner that will enable some of the matters referred to here to be satisfactorily dealt with. I am sure Senators will agree with me that the terms of reference of that committee embrace the whole field of insanity in relation to the law. I have no doubt, too, that one of the matters with which it will have to concern itself will be the MacNaughton Rules and their modern application. I am hopeful that this committee will bring in a very valuable report in due course. I am not in a position to say when it is likely to report because, as I have already indicated, the complexities of that subject are enormous; but I have every confidence in the committee because of the distinguished nature of its personnel and its terms of reference that it will bring solutions before us for many of these problems.

Senator Lenihan and Senator O'Higgins, on the question of insanity, suggested that the idea of a medical assessor might be a useful safeguard in cases where not merely the Special Criminal Court but also—I think—the ordinary courts would be dealing with these issues: either the preliminary issue of fitness to plead or the substantive defence of insanity at the time of the commission of the offence. I can see some merits in that suggestion but, when one looks on it, it also has defects. The court at the moment has medical evidence adduced to it by the prosecution and/or the defence and the court is free to seek, apart from that medical evidence, all the assistance it needs. I wonder is it desirable to introduce a second or a third medical presence sitting with the court, possibly cross-examining professional colleagues and then going into secret conclave with the court to assess that professional evidence. I do not know that this would be a desirable state of affairs. I would be inclined to think that it would be more desirable that the court consisting of— one has to assume—people of intelligence and common sense would hear the professional assessment and then make its own assessment on foot of that. Again, this is to open a debate on matters which come directly within the terms of reference of the Henchy Committee and I do not think this would be a desirable thing to do. Several Senators raised the theme of the danger of indefinite detention following a finding of unfitness to plead or a finding of guilty but insane. Senator Browne raised it in the sinister context in which psychiatrists are abused in Russia and this a ploy to deprive people of their liberty for political reasons. Other Senators were wondering would a person just be forgotten about. Senator Robinson raised the point, what would happen if the Special Criminal Court was disestablished and a person was still in detention following a finding of unfitness to plead? All Senators who made those points overlooked the active and strong presence within our code of law of the principle of habeas corpus, and relief under habeas corpus would be available to any person who felt he was being detained unnecessarily and felt his case should come before the courts for review. That is the short answer to those objections and worries. As the courts have so frequently demonstrated, this is a remedy available to any citizen in the most informal way. The courts will fully investigate any matter touching the liberty of an individual. This is the answer to anyone who might suggest that this could be some sort of a back door internment, or some sort of an Executive imprisonment.

Dr. Browne

You still have the last word, Minister.

Mr. Cooney

I am raising this in the context of the argument that, where a person has been found unfit to plead and has been detained, he could be forgotten about and be left there indefinitely or could be kept there and not allowed to see the light of day, so to speak. The answer to that charge is that habeas corpus is available. When the court comes to consider whether continued detention is lawful or not, the court will have to consider the facts of the case and will have to be guided by professional evidence from psychiatrists. I will not give my opinion of that particular medical discipline. Senator Browne has given a very jaundiced view of it. I am not going to say whether I agree or disagree with him. I am sure that, like everything else in this world, it resembles curate's eggs.

In the absence of anything else I do not know what other evidence the court could look for in deciding whether such a person should be continued in detention, whether the insanity has come to an end, or what the general medical prognosis, or medical position relating to the person is at that time. Whether Senator Browne likes it or not, the courts, and the rest of us, must depend on psychiatrists to guide us in these areas. Perhaps it is unfortunate that we have no other choice, but that is the way the world is made and there is not a thing we can do about that at this stage. I dread to think what kind of discipline would be substituted for that of psychiatry in examining in this particular area. Perhaps the cure in that regard might be a lot worse than the present desease which Senator Browne speaks of in that scene.

Again, I want to take issue with Senator Browne, when he made this point, that this is something which— I should say, unwittingly—smears are made of. He said that in my vocabulary subversive equals dissident. In making his point, he said that in Russia dissidents are imprisoned on phoney psychiatric evidence and he was worried that my version of dissidents—as subversives—might find the same thing happening to themselves. I want to reject the implication in that. I support the right of any citizen to dissent but I do not support the right of any citizen to subvert the democracy of this State. To equate subversion with dissident is altogether false. I never do so. When I speak of subversives I do not mean dissenting people; I mean people who are determined to subvert and destroy the democratic institutions of this state. I make no apology for taking a strong line against them in the knowledge that in taking such a line I have the support of the Irish people. I want to put clearly on the record that I do not equate subversion with dissent, as Senator Browne tended to suggest I do.

Senator Robinson was worried that the giving of these powers to the Special Criminal Court would somehow institutionalise or make permanent that court. Underlying her references to the court was the implication that somehow it is a less worthy court than other courts, that there is something of the Star Chamber about it, that it is something at which we have to look with great caution and, perhaps, a little fear. She says it has within it implications——

Mrs. Robinson

I said it was undesirable in a democracy to have a court like this. We must be very careful about it.

Mr. Cooney

I am glad Senator Robinson has made that clarification because in tone and degree that is different from what I understood her to be saying in the course of the debate.

Mrs. Robinson

It is a constitutional point; it is an exceptional and unusual court.

Mr. Cooney

And we give them powers most reluctantly and in a very limited way. Senator Robinson was overlooking the central fact to which Senators Alexis FitzGerald and Eoin Ryan referred, that the Special Criminal Court has had to come into operation because of the danger to jurymen. The Senator also overlooked the fact that the Special Criminal Court is one of the courts of our land, one of our constitutional institutions, one of the institutions of our democracy, to serve a special need at a special time. To suggest that it must be looked at very carefully and in a somewhat different light from the other courts is to do a disservice to the Special Criminal Court and to the people who sit on it. I want to defend the Special Criminal Court from the implications that may be made about it in suggesting that it is somehow less judicial than other courts, that the law and justice administered there are different or less.

Mrs. Robinson

They are apart from the ordinary rules of evidence for a start.

Mr. Cooney

I am satisfied that the Special Criminal Court is a full court in the meaning of that word, as we know it in our democracy, and that it has been staffed by judicial people of the highest integrity, very conscious of their role as judges in our legal system. I am satisfied that no citizen's rights have been abused in that court; that it is in all senses of the word a judicial court, on all fours and exactly the same as the other criminal courts of our land, with the exception that it does not have a jury for the very good reason that we have, within our society, subversives— and I use the word in the proper meaning of that term—who would be prepared to intimidate and terrorise jurymen from doing their duty. So long as we have that situation the Special Criminal Court is completely justified.

The powers proposed in the Bill for the Special Criminal Court with regard to findings in relation to insanity were criticised in that these are matters which should be left to a jury and that when such a question is raised in a case coming before the Special Criminal Court it should be transferred and a special jury empanelled. Senators FitzGerald and Eoin Ryan put the finger on the fallacy underlying that particular argument because the same constraints that had to lead to the suspending of the juries would apply in exactly those situations too. Senator Ryan said that to take this power away from the Special Criminal Court would undermine it and that the use of pleas of insanity would become a ploy to get cases away from the Special Criminal Court and before a jury where all the difficulties and dangers would again ensue. We still have the rule of unanimity in criminal trials, so all that would be necessary for a determined person with subversive associates who would not be above intimidating or terrorising juries would be to intimidate one juryman and the whole effectiveness of the jury system would be set at zero; it would be completely undermined.

The reasons which led to the setting up of the Special Criminal Court in the first instance—the fear of juries being intimidated and terrorised—apply equally to this question of the issues of insanity—findings of unfitness to plead or findings of insanity at the time of the offence. Unless we had the powers in the Bill for the Special Criminal Court, the court would have to let the people concerned go free. If we did not have the powers here, but reserved them for jury courts, the danger and prospect of intimidation would loom as large as ever with the same result.

I feel no sense of inhibition in giving to the Special Criminal Court the clarification of their powers as contained in this Bill. I have complete trust in the integrity of that court and in the persons composing it. I am completely satisfied that it acts entirely in a judicial way and this is well known and recognised among persons who have had occasion to practise in that court. There have been no complaints about its methods or standards of procedure.

Senator Robinson asked to what degree the Special Criminal Court has been monitored by the Department of Justice. It is not being monitored to any degree because it is not the business of the Department of Justice to monitor any court in our land. It would be improper and unconstitutional for it to attempt to do so. On the question of keeping statistics: there are certain statistics kept and they are available to any person who is interested in acquiring them. I reject completely any suggestion of attempting to control the court. I have a quotation here from Senator Robinson—maybe I have it written down wrongly—in the context of monitoring the court by the Department of Justice. The quotation is: "Overt control of how the court functions."

Mrs. Robinson

I qualified that.

Mr. Cooney

I accept that the Senator does not mean that I or my Department should have any control over how the court functions. Certainly, we would keep statistics and the extent and numbers of these statistics would be a matter of what would be determined to be administratively necessary for purpose of record and for purposes of administration of the courts generally. These statistics would be available to interested persons. As to whether to keep statistics of the depth and complexity the Senator seems to suggest, I do not think the administrative time necessary would justify them. I see the danger that, in the absence of these, people who are interested in this court might be tempted to make assessments of it on, for example, the basis of newspaper reports which are necessarily abbreviated and when not every case is reported. Assessments made on the basis of newspaper reports must necessarily be invalid. I am afraid we would have to await a full set of statistics before we could have such a study of the Special Court as suggested. Quite frankly I do not know that it would ever be justified in terms of the time in my Department to keep the voluminous statistics and information that would be necessary in that regard.

The giving of these powers does not tend to make the Special Criminal Court permanent or to institutionalise it. The Special Criminal Court will end when it is disestablished and that will happen when the security situation permits. Irrespective of what powers the court might have when that happy day comes, whether they are given under this Act or under an amendment to the Offences Against the State Act, will be quite irrelevant. The length of life of that court does not depend on the powers or the jurisdiction given to it from time to time, it depends on the security situation pertaining at any particular time. It is fallacious to suggest that giving extra powers like this tends to make the Special Criminal Court more permanent or tends to institutionalise it. It is part of the courts of our land and I make no apology for saying that because that is a fact. It is regrettable that it has to be without a jury but that is not a reflection on the court. That regret is connected with the security situation which makes it necessary. It is no reflection on the court or on the eminent persons who compose it.

Senator Browne made the point—it was also raised in the other House— that these powers could be drastic powers should the Special Criminal Court ever come to be composed of Army officers. I agree that there would be some unease in the event of the Special Court having to be composed of Army officers, but the unease, I suggest to the House, would not be directed against the Army officers but to the situation that would be existing in the country that gave rise to it. Senator Browne indicated the sort of circumstances in which that would arise and, of course, such circumstances would be quite horrifying and would be in a very serious situation. I share his hopes that this will not happen, but should that situation happen and should that court have to be composed of Army officers, then the jurisdiction which the court would have would be precisely the same jurisdiction as it now has. It would still be a criminal court of the land. It would be served by Army officers.

I disagree with Senator Browne as to how they would see their role. He would see them as paid figures of the Establishment to do the Establishment's bidding. I would not agree with him in that regard. I take the view that such people would be cognisant of their role in a judicial capacity and that in exercising that role they would give proper and due consideration to their duty as people acting in a judicial capacity. It would be an unwarranted reflection to assume that they would act purely, and see themselves having to act, as representatives of the Establishment to determine a matter in a particular way. Again, too, he raised the question of how they would be qualified to deal with any legal matters arising out of the question of pleas of insanity. Of course, the same problem would arise if there were a jury, because the juries would also be laymen in the legal sense. They would have to make an assessment on the evidence coming before them of psychiatrists. I do not think the presence of Army officers would compound what would be a difficult situation anyway in that area.

Senator Browne made a statement about all crimes being crimes of society. This, of course, is a point of view. It is an unnecessarily one-sided point of view and totally overlooks what is now the old-fashioned concept of individual responsibility. If the viewpoint that all crimes are crimes of society and that nobody is responsible were to become widely held, it could very shortly lead to chaos and anarchy. We must realise that individual responsibility is always present, irrespective of how it may have been blurred by a person's environment or a person's history. These would be contributory factors in weighing up how much responsibility a particular individual should have exercised. The kernel of criminal liability must be individual responsibility. All other matters are extraneous and would be merely of relevance to the court in deciding how he exercises that responsibility. That question is to be judged in the context of that crime and in respect of the punishment to be awarded for it.

These powers—the alternative verdict powers—are needed for the Special Criminal Court in order to give it full jurisdiction as a criminal court, which is what it is. In order to be like the other criminal courts in the land it needs these powers. It needs them in order to uphold that principle. It also needs them for the very practical reason I set out in my speech in opening this debate. These powers are also needed in the District Court because the District Court should have power to make alternative findings in appropriate cases. It is not a power that will fall to be exercised very frequently in the District Court, but nevertheless it is a power that must be there so that when it does come to be exercised the court may do so.

The question of deciding pleas in relation to sanity must also be given to the Special Court so that it can be on all fours with the other criminal courts in our land. Again it is necessary to maintain the principle that it is an ordinary criminal court of the land. It is also necessary as a matter of expediency, because of the dangers of jury intimidation which gave rise to the Special Court in the first instance, that juries should be relieved from trying any question of unfitness to plead and from dealing with the defence of insanity.

As I indicated, Senators will know that the Henchy Committee is examining this whole question of insanity in the law under very wide terms of reference and I am hopeful that many of the problems that are touched on here—but, as Senator Ryan said, this was not a suitable debate for going into them in detail—will be the subject of recommendations which in turn can lead to amending the law to deal with them.

There are no other points that were raised by Senators. The Bill, as I said at the outset, is a technical Bill designed to close a loophole exposed by the Rice case. To read anything more into it is unreal and not justified by the facts.

Question put and agreed to.

Agreed to take remaining stages today.

Bill put through Committee, received for final consideration, and passed.