Dáil Éireann díospóireacht -
Friday, 11 Jan 1924

Vol. 6 No. 2

DAIL IN COMMITTEE. - FISHERIES BILL, 1923.

Amendment from the Seanad: To insert immediately after Section 8 a new Section, as follows.—

"No penalty inflicted under this Act shall be reduced or remitted save on the recommendation of the Judge or Justice who imposes such penalty, and any recommendation for such reduction or remission shall be made at the same time as the penalty is imposed."

FIONAN O LOINGSIGH

Molaim-se ná aonntúigheann an Dáil leis an leasú so ó'n Seanad.

I move that the Dáil does not agree with the Seanad in its amendment to the Fisheries Bill. This is the first time in the history of the Oireachtas that a situation of this kind has occurred, and I think the proper procedure might be that if I get the agreement of the Dáil in rejecting this amendment a Committee might be formed from the different parties in the Dáil to draw up a reason and send it to the Seanad. The reason for opposing this amendment is not so much strictly a Fishery Departmental reason. It is on general grounds. If this amendment were accepted it would do away with all possibility of redress in a case where there was an obvious miscarriage of justice, and miscarriages of justice, of course, are not unknown. The second portion of the amendment also deprives even the judge who tries the case from reviewing his decision. It says "Recommendation for remission shall be made at the same time as the penalty is imposed." Supposing new facts come to light, he cannot then come forward in the light of these new facts and make a recommendation for the reduction of the fine imposed, or for the remission. That is the chief reason for opposition to the amendment. The other, a pretty important reason, is that the amendment would operate to limit the existing constitutional powers for varying or remitting the penalties imposed for offences under the Act. Actually, from the fishery point of view, the amendment, in the light of what has been agreed to, is particularly useless. If you just note the figures in this case you will appreciate this. Penalties were imposed for fishery offences in the year 1923 in 87 cases. These were all the penalties imposed that year. The District Justices who imposed these penalties recommended that they should be reduced in 73 out of the 87 cases. In 14 cases no reduction was recommended. In accordance with the usual procedure, these recommendations were sent to my Department, and we agreed with the District Justices in their recommendations in 42 cases. The District Justices recommended that there should be reductions in 73 cases, and the Fishery Department agreed to reductions in 42 cases and opposed reductions or remissions, recommended by the District Justices, in 31 cases. Reductions were actually made by the Government in 64 cases. From the fishery point of view, therefore, in spite of any suggestions to the contrary there is no reason for the amendment. It is not going to improve the Bill. I am not going to say it would injure it. The real reason for the objection to the amendment on the general principle is that it prevents the redressing of injury which has occurred or taken place through a miscarriage of justice. Therefore, if my suggestion is adopted, I should like to see appointed a small Committee of the Dáil; representing the different parties, with the Attorney-General and myself, and that Committee would draft a statement setting forth our objections to this amendment, and our reasons for not accepting it.

Mr. DARRELL FIGGIS

I, for one, would strongly disapprove of any suggestion such as that made by the Minister, and for the reason that the amendment made by the Seanad is a very right and proper amendment. The point was raised in the Dáil when the Bill was originally before it, and the Minister is quite correct in saying that it does raise a question of the very first importance to the State.

That question is that the Judiciary and the Executive should be kept apart from one another, and that the Executive should have no right whatever, except in exceptional methods and in the very highest of cases, but not in the ordinary course of administration, to review, change, alter, or in any way amend the decisions come to by the Judiciary. That is the principle. The Minister has said that if the Seanad's amendment were to be carried there would be no redress in obvious cases of a miscarriage of justice. If I understand the Constitution correctly, and if I understand the procedure which should be adopted not only in this country, but in practically every country, it is that if there is a miscarriage of justice, and if there is an obvious case for remedying any such miscarriage of justice, the remedy should be sought from a higher court rather than from the court responsible for such miscarriage of justice. It should not be within the power of the Executive to interpose over a minor court's decisions and vary them at its own will. The Minister has stated that new facts might come to life. He referred to the words of the Seanad's amendment in which it is stated: "Any recommendation for such reduction or remission shall be made at the same time as the penalty is imposed."

If I correctly understand the meaning of this sentence, in its relation to the Bill, it is because the Bill is of the kind that it permits the interposition of the Minister. If there is to be any remission or any change it shall only be by the District Justice at the time. I would have much preferred that if new facts were to come to light, they should be reviewed by a higher court than the District Justice's court, a higher court in the judicial sense. I would not prefer that the Executive should be made a higher court. There are limitations inherent in the Bill to the principle that underlies the amendment. But this amendment does aim at achieving a very right and proper principle, and I believe it is an amendment that should be passed by the Dáil. In arguing against it, the Minister gave certain statistics. I have not had the advantage of reflecting on those statistics, but as he read them out one very remarkable fact was rivetted upon my attention. He says that in a certain year, I believe it was 1923, there were 87 penalties imposed. In respect of 73 of these 87, recommendations were made for remission or reductions. Of these 73, the Minister only agreed to 42. Then he went on to add that in that year 64 reductions were made.

Mr. LYNCH

On a point of explanation, I wish to say I am not the remitting authority. The recommendations of the District Justices are, in the ordinary course of events, sent forward to me for the comment of my Department, and the remitting authority makes these remissions with all the facts before it from District Justices and my Department.

Mr. DARRELL FIGGIS

That is hardly the point I put to the Minister. He stated that 73 recommendations for reduction or remission were made and that only 42 of these were agreed to by his Department. He went on to add that in the same year 64 reductions were actually made. These are the facts that he stated. If there were 64 reductions made of 73 recommended, there are only 42 made on the recommendations of the District Justices in question——

Mr. LYNCH

Wrong.

Mr. DARRELL FIGGIS

Very well. I will put my point in this way. I would like to know how many reductions were made in that particular year, apart from the recommendations of the District Justices?

Mr. LYNCH

None.

Mr. DARRELL FIGGIS

Very well, that will all the better. If no reductions were made, apart from the recommendations of the District Justices, then that is what the Seanad seeks to achieve. If the Seanad seeks to achieve, and put in the form of an Act, what was hitherto the practice, it is excellent and it should be placed in the Act itself. But the main point made, as I understand the amendment, is that no review should be made by he Executive of the decisions or of any penalty imposed by the District Justice without the recommendations of that particular District Justice. If there is to be a review, if these matters are to be carried to Appeal, then they should be carried to a higher court in the Judiciary, and not taken directly to the Minister as an Executive Minister.

Mr. O'HIGGINS

Deputy Figgis in his remarks seems scarcely to appreciate the procedure that is adopted when petitions are entered in regard to sentences passed by judges or magistrates. There is a routine. The petition or the representation that is made is invariably sent for comment to the judge or magistrate who tried the case, and this comment is invariably acted upon. There is a factor that the Deputy quite definitely ignored, and it is this: it is by no means an uncommon thing for a judge or magistrate, hearing a case, to pass sentence, adverting rather to its effect upon the public mind than that the sentence would be fully served by the person upon whom it was passed. A particular offence is committed and it may be rife in a particular area, and the judge trying the case. adverting to that fact, would impose a particularly severe and stringent penalty, being quite prepared to consider any petition or representation that would be made to him at a later date and to advise the Executive to remit, or partially remit, the fine or sentence of imprisonment as the case might be.

That is quite a common thing, and judges and magistrates, in reply to petitions that have been forwarded them. have frequently stated to my Department that they were glad the petitions had been sent, as they recognised at the time of the trial that there were mitigating circumstances, but having regard to the effect on the public mind, they considered it necessary to impose an exemplary sentence. The Seanad amendment, which the Deputy eloquently supports, rules out the possibility of that: no sentence passed by a District Justice can be altered save on representations made by the District Justice at the time. It is always possible that new facts, facts that were not put in in evidence at the trial, will be brought forward and substantiated by special representation to the Executive. When that happens these representations are sent to the judge or magistrate who tried the case. He then takes cognisance of these fresh facts which were not before him at the trial, and he sends his advice to the Executive. Invariably the Executive acts on this advice. The amendment suggested by the Seanad excludes the possibility of that, and I submit it is not a good, wise or humane thing to exclude that possibility.