Dáil Éireann díospóireacht -
Thursday, 22 Nov 1923

Vol. 5 No. 15

INTERPRETATION BILL, 1923. - FISHERIES BILL, 1923—SECOND STAGE.

AIRE UM IASGACH (Fionán O Loingsigh)

Sé brí an Bhille ná léasú do dheanamh ar shean-reachtanna tré mhéadú do dheanamh ar na pionóisí a ghabhann le ciontaí áirithe a bhaineann le h-iascach bradán agus breac abha agus iasc eile, go mór-mór, ciontaí a dintear sa tsaosúr coiscthe.

Ní chruthnuíonn an Bille aon chiontaí nua; gach aon rud atá curtha síos sa Bhille mar chionta tá sé ina chionta cheana féin fé sna sean-reachtanna. Fé mar atá ráidhte agam, níl uainn ach na píonóis a ghabhann leis na ciontaí sin do mhéadú, agus tá muinín agam go mbeidh an Dáil ar aon aigne liom gur gádh an meid sin do dhéanamh. Cionta i gcoinnibh an Iascaigh Náisiúnta iseadh bradáin agus bric abha agus a sceith agus a maghar do mharbhú, agus ní in a choinnibh sin amhain, ach fós i gcoinnibh gach éinne atá ag brath ortha in aon tslí.

Deir lucht eoluíochta go scéithean an bradán míle ubh in aghaidh gach phuint dá mhéachaint féin. Sé sin le rádh gur féidir do bhradáin deich bpúnt deich míle bradán do thabhairt. Tá súil agam go n-aontófar le forálacha an Bhille seo, agus tá súil agam fós go dtiocfaidh de bharr na forálacha do chur i bhfeidhm go mbainfear go mór ó fhuadar na bhfoghluithe éisc le linn an tsaosúir scéithe seo, agus go mbeidh feabhas mór ar iascach na tíre agus go dtiocfidh saibhreas mór don Stát dá bharr san le linn na h-ath-bhliana.

When moving the first reading of this Bill I said that I felt it was more or less non-contentious; in the fact that it is the result of a demand from every part of the country, because of the depredations caused by the illegal poaching of fish in season and out of season. The purport of the Bill is to amend the existing statutes by increasing the penalties for certain offences in connection with salmon, trout and other fish, and, especially, in connection with offences committed during the annual close season. Every offence that is mentioned in the Bill is, under existing statutes, already an offence. In this way we merely propose to increase penalties for these offences and I feel that the Dáil will agree with me that this course is necessary——

Captain REDMOND

On a point of order may I call your attention, a Chinn Comhairle, to the fact that there is a Deputy reading a newspaper in the Dáil.

AN CEANN COMHAIRLE

It certainly should not be done.

Mr. LYNCH

I said I felt that the Dáil would agree with me that this Bill is necessary because I think that anybody who knows anything about the matter will agree that the destruction of salmon and trout, and their eggs and fry, during the annual close season is something that is very harmful to the national fisheries, and not only to them but to everybody who is dependent, directly or indirectly for their livelihood, on the national fisheries.

What might be considered the only departure in the Bill, except as regards increases in the way of penalties, is that we have instituted a minimum penalty for all these offences that are mentioned in the Bill. This is an innovation, but we feel that it is a very necessary innovation, and many Deputies in their speeches here on fishery matters have convinced us more and more that it is necessary, because of the fact that it has been the course in the past with persons when charged and found guilty of breaches of the existing fishery laws to be let off with a nominal fine, if fined at all, and if a fine was imposed it was remitted. We propose in this Bill that there should be a minimum fine varying for classes of particular offences, and I think that will meet with the approval of the Dáil. The fines that were imposed in the past were absolutely no deterrent; they were in fact a joke. In that respect, especially as regards the more grave type of offence, we suggest that there should be imprisonment with or without the option of a fine, particularly for offences committed during the close season. This is not entirely new, because as regards some of the offences mentioned in the Bill there was an alternative of imprisonment already, especially with regard to the use of dynamite.

The only criticism that I saw of the Bill in the Press, after its first Reading, was the fact that we had omitted, so it was alleged, to insert poisoning as an offence. We felt that the penalties that are already there, under the existing Statutes, are sufficient as far as poisoning is concerned, and we are deliberately omitting the bringing in of poisoning now because of the fact that we might cut across things that we do not want to cut across, such as the tarring of roads by County Councils. The deleterious matter from the roads might go in and poison the fish in rivers. We do not want to come up against that now, and anyhow we felt that the poisoning is dealt with more effectively than ever it was before under Section 8 of the present Bill. It was not at any time the actual poisoner, so much as the person that instigated the poisoning, that reaped the benefit of it. It is extremely difficult to get the person who puts the poison in the stream but it is not so difficult to catch the person who reaps the result and takes the dead fish from the stream. We cater for that under Section 8 of the Bill, and I think it will be more effective than any former provision. I said before that I hoped for general agreement on the provisions of the Bill, as it has been brought forward as the result of complaints from all over the country as to the wholesale destruction of salmon during the spawning season, especially last year. The consensus of opinion in the communications received by us, and from deputations received by us, was that the existing penalties were too small. I hope the result of enforcing the provisions of this Bill will be to deter considerably the poacher during the present spawning season, and that our inland fisheries will, as a result, show considerable improvement in the next year, and that there will be a consequent improvement in the amount of wealth that is to be gained from the development of the industry.

Mr. BURKE

I beg to second.

Mr. JOHNSON

When I read this Bill a short time ago I took a note of certain phrases in the various clauses proposing penalties, and I asked myself the question whether the statement on minimum penalties was a new principle. I think I recollected something of the kind in the Public Safety Act, and I think I opposed it then. When the Minister, in introducing the Bill, told us that it was an innovation, my doubts as to the wisdom of it were confirmed. I think it is a bad principle, whether it is an innovation or not, to compel a magistrate or a judge to impose a minimum penalty, no matter what the circumstances may be. The prisoner is found guilty of an offence, and no matter what the circumstances may be mitigating the heinousness of the offence, there is a minimum penalty provided, and whether that is in connection with fisheries or any other set or class of crimes, I think it is a bad principle. You give certain authority to a justice, and you have the right to assume that that justice or judge, as the case may be, is able to weigh up the character of the offence better than we here, legislating in advance, are capable of doing. If we cannot trust the justice to administer the law with due regard to the protection of the public, then we should not appoint justices giving them any discretion. We are practically asked in this Bill to condemn offenders to certain penalties quite irrespective of the circumstances surrounding the offences. I do not know anything about the history of the penal laws, but when the Minister said it is an innovation I am more than satisfied that it is a bad innovation and ought not to be accepted.

District Justices will probably be the people who will try offenders under this Act, and surely we can trust to their discretion as to the penalty. We are not henceforward dealing with the casual magistrate, and you have a right to trust the discretion of the Judges in these matters. You have an increased maximum penalty, and you have thereby indicated what the view of the Oireachtas is with regard to the evils against which we are legislating. I think it is a bad principle to introduce into legislation dealing with any offences — that you wish to impose a minimum penalty. I think it was pointed out in the discussion on the Public Safety Bill that where a person was guilty of murder there is no discretion. I think it was also pointed out that that was the only exception, and I would urge upon the Ministers the undesirability of persisting in this proposal of imposing a minimum penalty. The making of the maximum as high as you like, would be worth considering, but I do not think that it is a good plan to impose upon a Justice or a Judge a minimum, allowing him no discretion whatever, no matter what the circumstances surrounding the offence may be. On that ground I will oppose the Bill in all its stages.

The ATTORNEY-GENERAL

May I say a word on the question which is just being discussed? The position as regards minimum penalties is this. It is not quite accurate to say that this is an innovation, because up to a certain period in English penal legislation it was the practice to insert minimum penalties. That was departed from, except in a certain class of cases, after a particular period in the eighties, and there are certain classes of penal legislation in which the principle of the minimum penalty has been consistently followed. One, for instance, is in revenue cases and another is in this very branch of fishery law. It is no innovation to have a minimum penalty in this Bill, because all existing Acts dealing with offences of this class prescribe minimum penalties. Looking at the groups of Acts in which minimum penalties have been prescribed, they are probably the type of Act in which the people are rather indulgent. The use, for instance, of a used postage stamp is one of the offences for which there is a minimum penalty. In the same way, some people have an extraordinary grádh for poachers and poached salmon, and the principle of minimum penalties has been preserved in fishing legislation.

Mr. HEFFERNAN

I would like to support Deputy Johnson in the statement he has made with regard to the enforcement of a minimum penalty. I fear there are grave dangers in connection with such an Act being passed. I can foresee that there are possibilities of what might amount to grave miscarriages of justice taking place. We all recognise in the past the crime of poaching has been regarded rather as an honourable than a dishonourable thing, and we also recognise the necessity which has arisen to protect our fisheries. At the same time I do not think that those conditions would warrant us passing an Act which might result in grave unfairness to some people who might be prosecuted under the Act. I can foresee that it is possible that some very young person, not acquainted with the law, might be caught in the act of poaching and might be brought before a District Justice who had no option but to fine him, say, £10 as a minimum penalty, or else let him go free. In all probability such a young man would not be, in possession of the amount of the fine on him, and in the alternative might have to go to prison. I think it would be undesirable if young people, who unfortunately have come to regard poaching as a sport, should get into this unfortunate position. I am also of opinion that where the law attempts to enforce too high a penalty it indicates, to some extent, the weakness of the executive arm of the law in catching criminals. I think these penalties would scarcely be necessary if we could be quite sure that the police force, or those responsible for detecting crime, as regards the poaching of rivers, would be keen and watchful in their duties and that it would be almost impossible for anyone to carry on poaching with impunity. If we could rely on these men to do their duty, and if we knew that any person who attempted poaching would run a great risk of being caught, and that the law would be enforced to the fullest extent, I do not think it would be necessary to have minimum penalties or penalties in this Bill as high as they are.

Mr. LYNCH

As the Attorney-General pointed out, I was not quite correct when I spoke of the minimum penalty provided for in this Bill as being an innovation. There is a minimum penalty already, a nominal one for Section II. of the Bill, under the existing Statutes as 10/-. The original penalty fixed for the offence by the Act of '42 was not exceeding £10 with the forfeiture of the fish and boat. The Irish Fishery Act of '48 had a minimum fine of 10/-. There is a minimum penalty in connection with poisoning of £5 under the existing Statute. There is a minimum penalty of £2 for the use of illegal nets in weirs under the existing Statute. Perhaps we have made it apply more than it has been made to apply heretofore, but I still feel, in spite of what Deputy Johnson has said, that there is a good case for it.

Mr. JOHNSON

Is there not a minimum term of imprisonment in connection with these Acts?

Mr. LYNCH

There is — in connection with poisoning two months. I do not know whether it is not exceeding or less than two months.

Mr. DARRELL FIGGIS

A very important distinction.

Mr. LYNCH

Deputy Johnson says we are tying the hands of the Magistrates, and I do not agree with him. I think the Magistrates have always the option of making recommendations for the remission of any fine that may be imposed. It is not either, strictly speaking, condemning him to inflict penalties irrespective of circumstances. After all, there is a difference between minimum and maximum penalties. He can inflict in accordance with circumstances, and if the circumstances are such that they should be lower than the minimum penalty he can make his recommendations for something even lower than that. With regard to Deputy Heffernan's point, at the moment I must say I am not at all inclined to give way on this question of a minimum penalty. I am prepared to consider before the next stage the reduction of the present minimum and maximum penalties in the Bill. That is all I can promise at the moment.

Mr. DARRELL FIGGIS

The Minister spoke of a Magistrate being of opinion that some penalty should be imposed less than the minimum penalty enforceable in the Bill if and when it becomes a Bill. He seems to infer that the Magistrate would communicate this to somebody who would have a choice as to whether a lower penalty might be imposed. It would appear that the Magistrate would appeal to the Minister to know from the Minister whether the Act recommended by the Ministery and adopted by the Ministry should or should not be enforced as adopted.

Mr. LYNCH

I am sure Deputy Figgis is not half as much in doubt as he pretends to be. If a murderer is found guilty by a jury a judge has practically no option but to condemn that man to death. He may make certain recommendations that a sentence may be commuted. Presumably the same procedure would be followed here.

Question put:

The Dáil divided: Tá, 50; Níl, 8.

Tá

• Pádraig F. Baxter.
• Earnán de Blaghd.
• Séamus Breathnach.
• Seoirse de Bhulbh.
• Próinsias Bulfin.
• Séamus de Burca.
• John J. Cole.
• Henry Coyle.
• Louis J. D'Alton.
• Máighréad ní Choileáin Bean Uí
• Dhrisceoil.
• Osmond Grattan Esmonde.
• Patrick J. Egan.
• Henry J. Finlay.
• Desmond Fitzgetrald.
• John Hennigan.
• Tomás Mac Artúir.
• Seosamh Mac 'a Bhrighde.
• Alasdair Mac Cába.
• Domhnall Mac Cárthaigh.
• Pádraig Mac Fadáin.
• Pádraig Mac Giollagáin.
• Seán P. Mac Giobúin.
• Seán Mac Giolla 'n Ríogh.
• Seoirse Mac Niocaill.
• Patrick McKenna.
• Liam Mag Aonghusa.
• Pádraig S. Mag Ualghairg.
• Martin M. Nally.
• John T. Nolan.
• Peadar O hAodha.
• Mícheál O hAonghusa.
• Criostóir O Broin.
• Seán O Bruadair.
• Próinsias O Cathail.
• Aodh O Cinnéide.
• Eoghan O Dochartaigh.
• Séamus N. O Dóláin.
• Tadhg S. O Donnabháin.
• Peadar S. O Dubhghaill.
• Donchadh S. O Guaire.
• Aindriú O Láimhín.
• Fionán O Loingsigh.
• Pádraic O Máille.
• Domhnall O Mocháin.
• Seán M. O Suilleabháin.
• Caoimhghín O hUigín.
• Seán Priomhdhail.
• Patrick W. Shaw.
• Liam Thrift.
• Nicholas Wall.

Níl

• David Hall.
• Tomás Mac Eoin.
• Risteárd Mac Fheorais.
• Tomás de Nógla.
• Aodh O Culacháin.
• Eamon O Dubhghaill.
• Domhnall O Muirgheasa.
• Tadhg O Murchadha.

Motion declared carried.

AN CEANN COMHAIRLE

When is the next stage?

Mr. LYNCH

Next Thursday.

Mr. GOREY

I think this is a Bill that interests a good many Deputies, and the time for handing in amendments is too short. I suggest to the Minister, if he has all this cut and dry, and if he is not adamant on the subject, to extend the time sufficiently to give us a chance to get the Bill amended.

Mr. LYNCH

I would be prepared to do so, but the Deputy will see that the close season is now near, and the very object of the Bill will be lost if we delay it much longer. It has already been held over for a long time.

Mr. GOREY

The Minister has already the machinery to run the old Acts, and there is no necessity for this except as regards the question of fines. It does not impose new penalties for breaches of the law.

AN CEANN COMHAIRLE

Suppose we take the Committee Stage next Tuesday week?

Agreed.

The Dáil adjourned, at 8.40 p.m. until 3 o'clock on Friday, Nov. 23rd.