Léim ar aghaidh chuig an bpríomhábhar

Dáil Éireann díospóireacht -
Wednesday, 11 Jun 1924

Vol. 7 No. 22



As I indicated on the First Reading, the object of the Bill which is under consideration is to simplify the forms of charges against accused persons in criminal cases tried before a jury. Forms of indictment in the past might in many instances be described as a confused mass of technical words for which there were, no doubt, excellent reasons in the criminal jurisprudence of other times, but which are now rightly considered feudal and archaic. It is thought that the charge in every every criminal case should be nothing more than a clear and explicit statement of the offence or offences which the accused person, is called upon to answer, together with such particulars as may be necessary for giving reasonable information as to its nature. There are rules set out in the First Schedule to the Bill, designed, amongst other things, to secure simplicity in criminal pleadings, and the appendix which is given shows a large number of illustrations of the proposed working of rules in particular cases. The outstanding thing in the illustrations is the absence of the use of any technical words.

The Bill is arranged in twelve sections. Section I proposes that the rules contained in the First Schedule shall have effect as if indicated in the Act, and provides for additions and variations. Section 2 provides that Rules made under the Act shall be made by the same authority as the authority which will make the Rules of Court mentioned in Section 36 of the Courts of Justice Act, and that Section 101 of that Act, which relates to the approval of Rules of Court by a Resolution of each House of the Oireachtas, shall apply to the new indictment rules. Section 3 indicates the Rules which may be made under the Act, namely, Rules varying or annulling all or any of the Rules contained in the First Schedule, or additional Rules. It provides that the Rules in the Schedule shall have effect subject to the modification or additions so made.

Section 4 contains the central proposal in the measure. "Every indictment shall contain... the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge." It shall no longer be possible to delay the jurisdiction of the court on a merely technical objection to the form of the indictment, if it is framed in accordance with the simple formulæ of the proposed rules. This simpler method has the additional advantage of bringing home directly to the mind of the accused person the offence with which he stands charged, without legal assistance. Section 5 provides that the charges for more than one indictable offence may be made in the same indictment, and the right of the person accused to challenge jurors in cases of felony is preserved in the Bill.

Under Section 6 the court is enabled to amend defects in the indictment, where such a course can be followed without injustice. Provision is made to ensure that no injustice or embarrassments will be done to the accused person by the fact that he is charged with more than one offence in the same indictment. It is left to the discretion of the court to order separate trials for each offence if it is thought fit to do so, and in cases of amendment of the indictment, or orders for separate trials, the court is given power to order such postponement of the trial as may appear necessary. The necessary supplemental provisions for such separate trials or postponement of trials is also included. Indictments which are unduly prolix are discouraged by giving power to the court to order payment of costs of the prosecution incurred by reason of the indictment being of unnecessary length. The provisions of the Vexatious Indictments Act of 1859 are preserved under the Bill.

Section 9 provides that in cases of indictable offences the charges shall be prosecuted in court at the suit of the Attorney-General, and it also provides that prosecutions in courts of summary jurisdiction shall be prosecuted at the suit of the Attorney-General, save where such may be done by a Minister or Department of State or by any person authorised in that behalf by the law for the time being in force. This saving clause will enable Departments to prosecute in ordinary minor cases and it also preserves the right of the private citizen to prosecute where he is empowered by law to do so. Section 10 prescribes the oath to be administered to jurors empanelled for the trial of any criminal charge or issue. The oath is couched in simple language, and any juror taking the oath would have no difficulty in understanding its nature. Section 11 is merely a saving clause to ensure that no implied changes in the law not intended will take place. For example, it is provided that the place of trial shall not be altered by anything in the Bill, nor is the law of evidence to be altered in any way. The first schedule contains rules which are partly concerned with the demands of administrative convenience; for example, the form of the paper on which the charge is written, and partly the model to be followed in describing offences.

The indictment starts with "The Attorney-General of Saorstát Eireann v. A.B." The court of trial is named and the charge to be preferred to the jury is specified. For example, A.B. is charged with the following offence— and then there will be a simple statement of the offence. The statement of offence will be the generic title for the particulars of the offence. The particulars of the offence will contain specific details of the actual facts and the circumstances constituting the offence. The rules lay down models as to the description of any indictment. The appendix gives illustrations of a short statement of offence; particulars of offence, in 25 different types of cases.

Cases which are not covered in the appendix will be described in a similar manner, and if this is done, the provision of section 4, which states that an indictment will be sufficient if it contains a statement of the specific offence and reasonable particulars as to the nature of the charge, make it clear that such forms of indictment will be given.

In 1915, in England, an Act was passed which simplified the forms of indictment. That Act was not extended to Ireland. I think it is a matter that will be generally agreed that the reform in this country should not be any longer delayed, particularly having regard to the fact that a new system of courts is being established in the country under the Courts of Justice Act. Many of the forms of indictment were cumbrous, archaic and feudal. A habitual drunkard, for instance, was described under the former indictment as "disturbing the King's peace and dignity," and there are many other forms of indictment calculated rather to confuse the prisoner than to convey any clear idea to his mind of the offence with which he is charged. I move the Second Reading of the Bill.


I do not profess to give any considered criticism of this Bill because I think it is a matter more for lawyers than laymen. But I would like to say I welcome the Bill as an effort to simplify the administration of justice in the country. Anything the does that is, in my opinion, an improvement. I quite agree with the Minister that the forms which appear in the charges served to the accused persons were much more calculated to frighten them than the sentence which followed. It is certainly an improvement to have these forms simplified so that the ordinary person who stands accused can understand clearly and definitely what the charge is that is against him. I think now that we are starting out on a new system of courts, it is advisable that the form should be simplified so that, as I say, the ordinary man in the street who may be accused of an offence will understand what exactly is the nature of the offence with which he is accused. For that reason I support the Second Reading of this Bill.

There was one question I rather expected Deputy O'Connell to ask and which I certainly want to ask and which the Minister perhaps might answer: what is the urgency of this Bill? We might admit its importance—I will deal with that later—but even admitting its importance is it absolutely necessary that we should consider it in existing circumstances when the whole programme of the Dáil is overloaded with business? Is it so important and urgent that it must be rushed through before the 4th July? I do insist that this is a Bill of the type that might have been introduced in the Seanad. If that was desirable a fortnight ago it is more desirable now. The new Attorney-General has a right to speak in the Seanad; he has not a right to speak here, and there are doubtless various points that could have been cleared up by him in the Seanad. Another reason why I think this Bill is not so very urgent as to necessitate proceeding with it now is this. The Government has appointed a new judiciary; that judiciary has to-day begun to function. Would it not be wiser, before making changes of this character, to have the opinion of the judges after a certain experience? They come to this question fresh, for the most part; they are not biassed by any tradition or outlook and I feel a reform of this kind would have greater weight and force behind it if it came as the experience of the Bench rather than to spring fully armed from the head of the late Attorney-General. I cannot help having a certain suspicion that this is change for the sake of change; that the Government desire to alter things as much as possible; in that respect I am prepared to be called conservative. If there are to be alterations, if you make improvements—and I am not much impressed with these new indictments as given in the appendix to the rules—if there are to be alterations let them be made after due deliberation. Take the first of these alterations—"A.B."—if Deputy Alfred Byrne was in his place he might wish to ask why always "A.B."—on the blank day of blank in the county of blank, murdered "J.S." There is one very serious omission from that, and that is, that the place is only indicated by the county. If I were accused of murder, or of any other of those miscellaneous crimes, I should like to know more specifically the place I was alleged to have committed the crime in order that I might follow the advice of the elder Mr. Weller and secure an alibi. Fancy if one were accused of murder in the Co. Cork or the Co. Dublin. A man might have been in Cork or in Dublin when the murder was committed, but he might have been a very great distance from the spot where it was committed. If the Minister is recasting these indictments he might well make them somewhat more specific in the matter of place.

I am not yet impressed with the real necessity for this change. If there is to be a change, and I think Deputy O'Connell would probably agree, a change should come higher up in the shape of codification or repeal of obsolete statutes and the bringing together of statutes that bear upon one subject in a combined law. There is a great field for that in this country. Very little of it has been done up to the present. Rather than tinkering with indictments and changes of forms, the better way, I would urge, would be for the Minister, not in this session, but later, to proceed with the condification of the law under the present constitution. There is in these obsolete things a certain value. The traditions surrounding the law, though they may be bad traditions, though they may have had an element of evil in them, had, at the same time, some good. They were a protection against some kind of arbitrary force, and it is a mistake to shatter all these traditions at once. You have altered the whole judicial system. The judges appear in top hats and frock coats, rather than in wigs and gowns, though incidentally I think top hats and frock coats are as archaic institutions as wigs and gowns. You have substituted one fetish for another, and I ask is it necessary to do that? Should we not, having done that, pause for a little and see what the result will be before we embarrass it with these regulations? Tradition is worth something, if it is not wholly good. It is one of the sanctions of the law. I believe the Minister agrees with me that the greatest need probably in this country at the present time is to re-establish the authority of the law. He has worked most whole-heartedly for that purpose. I have no criticism to make of him on that ground at all, and that being so, and that need existing, is it wise to remove any of the old sanctions by which the law was supported unless it can be absolutely shown to be evil? And in this case I do not think the Minister has made out any stronger case than that they were unnecessary, than that they were cumbersome. He has not proved that they were positively harmful, and unless they were harmful, I suggest we should proceed slowly and let the new machinery work for a little, and then if the form of the indictment and the form of the oath handicap and check it, then the Minister would be justified in coming here and asking us to sweep them away.

Deputy Cooper has raised the question: What is the urgency of this measure? A new system of courts has been established. He might have asked in connection with them, what is the urgency? Some of the judges are very old. But it was thought wise by the Oireachtas under the Constitution to set up here a new system of courts. There were good and solid and substantial reasons for that. The Deputy, in considering a matter of this kind, cannot simply ignore the antecedents of the present situation. The courts that existed here under the British administration were from the point of view of the vast majority of the people, prejudiced. I say that without meaning in any way a reflection upon individual judges, whether of the High Courts or of the County Courts, or the magistrates functioning throughout the whole country. But they were the courts of the stranger. They were courts that were part and parcel of an administration here that was not here with the will of the people. If it lay in the power of the people to remove them by their votes, they would have gone many a long year ago. And so we fashioned here a new system giving a good deal of consideration to what we considered to be the needs of the people; what we believed to be the real reform for the country. We set up a Judiciary Committee which sat for a long time, and which fortunately was able to bring in a unanimous report. A Bill strictly based on that report was passed through the Dáil and the Seanad, and became the law of the country, and this morning that new system of courts, set up by a Parliament responsible to the people, was inaugurated, and it is fitting that when they were set up there should disappear the old archaic forms of indictment belonging to the old system, and which contained and would continue to contain for the people the fragrance of the old system.

There is no use in ignoring the facts that the Juror's Oath, for instance, as it existed hitherto, was not palatable to a great many people in the country to whose lot it might fall from day to day or month to month to serve on juries. There is nothing very terrible about it. But the oath embodied in the present Bill is considered, for practical purposes, a better formula and will be calculated to ensure that each juror will, in fact, do his duty in an impartial, fair way with regard to the prisoner. The oath in the Bill is: "I do swear by Almighty God that I will well and truly try the issue as to whether the accused is guilty or not guilty of the offence charged in the indictment preferred against him (or her) and that I will give a true verdict according to the evidence." The existing oath is: "I swear by Almighty God that I shall well and truly try and true deliverance make between our sovereign Lord the King and the prisoner at the bar, and such other prisoners or traversers as may be given me in charge and a true verdict find according to the evidence." I do not believe it is an overstatement to say that 75 per cent. of the jurors who take that oath do not understand it or know what it means. It is not strange that in setting up new courts here that we should do what the British did in their wisdom in 1915, but which in their wisdom or unwisdom they did not extend to this country. They simplified the forms of procedure in connection with their courts. On the point of appropriate time for this action it is appropriate, when we are making a change from one court system to a new court system, that there should be a change also then in the old feudal forms of indictment that, as I say, confused the prisoner as often as not, and did not tend to clear the mind of the juror as to what his real duty was.

Does the Minister mean that no case can be tried in the new courts until this Bill is passed?

Oh, certainly not. The existing forms will continue until altered by law. I can understand the Deputy's conservatism, but the Deputy is broadminded enough to realise that that conservatism is not shared by the majority of the citizens of this State. After all, we are here legislating for the people in accordance with the wishes of the people, and I do not think that in public or in private the Deputy would suggest that the people share his conservatism with regard to this or many other matters. They want to see the old forms changed. They want every possible evidence that this new system of courts is their system, constituted by a free Parliament in accordance with their wishes to meet their requirements, and they do not want in and around their court system the remnants of the old regime. That is the situation as we see it.

Now, I remember on one occasion being informed by a policeman that he read from a paper that, at a certain cross-roads on a certain date, I had said certain things to the great terror and alarm of all his Majesty's loyal subjects. I asked him would he name for me five or six loyal subjects of his Majesty within a radius of ten or twelve miles of that particular cross-roads, and he said: "Begob, you have me there."

Would he say the same to-day?

The case for a change was as well put by the Deputy, —was in fact better put by the Deputy, than it was by me. He objects to the change because it is a moving away from the past. His charge to us is, that it is a change for the sake of change. It is not a change merely for the sake of change; it is a change because we believe that in the Bill and in the general spirit of the Bill we are acting in accordance with the wishes of the people to whom we are responsible. In that spirit the Bill is brought forward, and in that spirit I ask Deputies to approve of it in general principle. They can examine it in detail on the Committee Stage.

Question—"That the Bill be now read a second time"—put and agreed to.
Committee Stage fixed for Wednesday, 18th June.