As the Seanad is aware, the Minister for Justice is attending a meeting of the Anglo-Irish Conference today and unfortunately is not available to be here this afternoon.
The main purpose of this Bill is to enable the position of Mr. Seamus Noel Mahon of the District Court bench to be regularised, and to validate his court decisions.
The normal retirement age of a district justice is 65 years under section 30 (1) of the Courts (Supplemental Provisions) Act, 1961, but the Courts of Justice (District Court) Act, 1949, provides a procedure under which a district justice may be continued in office year by year up to age 70. The power to grant an extension is exercised by a committee, comprising the Chief Justice, the President of the High Court and the Attorney General. Where a justice satisfies the committee that he is not suffering from any disability which would render him unfit to continue to discharge efficiently the duties of his office, the committee may, if they so think proper after consultation with the Minister for Justice, make a continuation warrant. A warrant is required for each extension year and must be made before the year commences.
The responsibility for seeking an extension of service in good time rests with each district justice although the standard practice is for the Department of Justice to advise a District Justice about nine months in advance of his 65th birthday of the need to apply to the committee for a formal extension of service under the 1949 Act if he wishes to be continued in office beyond that date. The request for an extension of service is made to the committee by the justice. The committee normally consults the Minister for Justice by formal correspondence.
Under the Bill the committee which I mentioned would be empowered to make a warrant retrospective in a case where through error or oversight a warrant was not made in due course. The following are the circumstances in which the oversight occurred in Mr. Mahon's case. He was appointed as a temporary justice of the District Court in October 1976 and as a permanent justice in May 1977 and reached the normal retirement age of 65 years in January 1984. He should before that date, have applied for a continuation warrant but did not do so and a warrant was not made. As I have already indicated, normal practice is for the Department to remind a district justice well in advance of the need to apply for a warrant. A reminder was not given in this case, however, because of a mistake in departmental records.
Mr. Mahon first applied for appointment in April 1973 and in his application form he gave his year of birth as 1920. This was recorded in departmental records. In January 1977 Mr. Mahon submitted a birth certificate which showed his year of birth as 1919 but the discrepancy was not noticed and the incorrect year of birth remained in departmental records. Warrants were, in fact, made for subsequent years but I am advised that these have no effect because of the critical absence of a warrant to cover the first year after Mr. Mahon reached his 65th birthday. The mistake was not discovered until about the middle of 1988.
I am advised that in the absence of a valid continuation warrant for each year after his 65th birthday Mr. Mahon has not been duly appointed district justice since he reached his 65th birthday. Consequently, his decisions in court since then are invalid and his service since then cannot count for pay, superannuation or other service benefits. I am also advised that, under the law as it stands, the committee I mentioned have no power to issue a certificate retrospectively and hence the provisions proposed in this Bill.
In the period since January 1984 Mr. Mahon has dealt with some 8,000 criminal cases, 74,000 Road Traffic Act cases, 1,100 family law cases, 11,000 liquor licensing cases and 17,500 other civil cases. Penalties he imposed included approximately 40,000 fines, imprisonment-detention in relation to some 1,250 offences, and disqualifications or endorsements for some 3,700 Road Traffic Act offences. Clearly the public interest would be served best by enacting legislation to allow for validation of such a wide range of cases. There may be questions about the wisdom of doing this for criminal cases. I am satisfied, however, that it would not be in the public interest to make an exception. The convictions in criminal cases must be presumed to have been decided in good faith on the evidence presented and, since the normal appeal mechanism was available to any person dissatified with the decision, there can be no valid argument as to the merits of any convictions which were not appealed or, if appealed, upheld on appeal.
Apart from criminal cases, there is a range of decisions made in civil cases, including family law cases. It is clearly in the public interest that decisions made in such cases should stand on the basis that they were made in good faith on the evidence presented. Otherwise serious hardship could result. There is, however, in the Bill a specific saver for the possible infringement of a constitutional right. This is similar to a provision in the Garda Síochána Act, 1979, which was also in the nature of validating legislation. The effect of the provision is to emphasise that it is not the intention of the Bill to deprive anyone of a constitutional right.
The Bill, if enacted, would enable the committee to make retrospective warrants in relation to Mr. Mahon. The procedure in the Bill would preserve the concept that all extensions of service of district justices should be considered and granted, if appropriate, by the committee set up under the 1949 Act. The principle that a committee should be empowered to grant extensions of service even though the original appointment was made by the President is already established in the 1949 Act.
The Bill as drafted would enable errors made in the future to be corrected without the need for new legislation. It is impossible to guarantee that no error or oversight of any kind will be made in the future at any stage of the proceedings, whether by a district justice, the Department, the committee or any other body and it is to provide against that eventuality that I consider this Bill should be adopted. So far as the Department are concerned I have directed that certain steps be taken to ensure that the kind of mistake which occurred in this case will not recur.
The Bill has a provision under which Mr. Mahon's service since January 1984 can be validated for pay, superannuation and other service benefits. He has sat as a district justice for more than four years and performed all the duties required of him and, in the circumstances, it seems only fair that he should be given credit for this service for pay, superannuation and other purposes.
In case there should be any doubt in the matter I should like to emphasise that the approach being adopted in this Bill has the endorsement of the Attorney General. A general question arises here about the extent to which the Oireachtas should have regard to the possibility of a successful constitutional challenge. Of course, the Oireachtas should not knowingly enact legislation which is clearly unconstitutional but, by the same token, I believe it should not hold back from taking reasonable action just because it may be argued that there is a remote possibility of a successful constitutional challenge.
I am advised that the provisions in this Bill ought to stand up to challenge and, as Senators will appreciate, the Bill itself, by the inclusion of section 1(3), gives a clear signal that it is not the intention to deprive anyone of a constitutional right. There are numerous examples of validating legislation of this kind so that, while we may regret the circumstances which have given rise to the need for this measure, we can at least acknowledge that it is not altogether unique.
I am satisfied that there are convicing reasons, both public interest and humanitarian, for adopting this measure and I, therefore, commend the Bill to the Seanad.