Dáil Éireann díospóireacht -
Thursday, 19 Jul 1928

Vol. 25 No. 7

PRIVATE BUSINESS. - COURTS OF JUSTICE BILL, 1928—FROM THE SEANAD.

Mr. FITZGERALD - KENNEY

I move: That the Dáil agree with the Seanad in the following amendment:—

In Section 5 (1) the words "may by such order give such directions as to costs as they may consider proper" deleted in lines 16-17 and the following words substituted therefor: "shall order that the costs of the appeal and of the new trial of the accused person shall be paid by the State, unless the court shall be of opinion that the necessity for the appeal and the new trial has been caused or contributed to by the defence."

This is the only amendment to this Bill made by the Seanad. As the Bill left this House, if there was a new trial of a prisoner, the question of costs was entirely within the discretion of the court. The Seanad has rather limited the discretion of the court by the insertion of the words:

shall order that the cost of the appeal and of the new trial of the accused person shall be paid by the State, unless the court shall be of opinion that the necessity for the appeal and the new trial has been caused or contributed to by the defence.

This amendment is very much in the interest, so to speak, of the person charged, and I suggest to the House that they should agree to it.

Mr. DE VALERA

The only matter that appears to me to call for any consideration is in connection with the words "or contributed to by the defence." That is a very wide phrase. It gives a very wide discretion to the judge to say if a prisoner has contributed some way or other. I wonder would the Minister be able to alter that so as to make it definitely "contributed to or primarily occasioned," or something of that kind, which would mean that the defence were really to a large extent responsible. "Contributed to" might mean a very small thing or a big thing.

Mr. FITZGERALD-KENNEY

The judge still has discretion. In every case the court will still have a discretion, and if it sees that it has been, only to a small extent, contributed to by the defence, of course the court will use its discretion. I would ask the Deputy to accept the amendment, because the Bill is rather an urgent one. Until it becomes law, there is nobody who can act for the Chief Justice, and, at the moment, the Chief Justice is not in the country, so that a good deal of business may be held up. I would ask the Deputy to agree to this amendment. I think the Deputy will find that in the working of the Bill the court will administer it fairly and justly to the accused.

Mr. DE VALERA

Could the Minister tell us what delay would be caused if "primarily occasioned," or some phrase of that kind—I do not bother about the words—indicating that the responsibility was primarily with the defence, were inserted?

Mr. FITZGERALD-KENNEY

Then the Bill would have to go back to the Seanad again.

Mr. LITTLE

I would suggest the words "substantially contributed."

Mr. DE VALERA

The Seanad is going to meet for other Bills, and we will probably have to come back to deal with other Bills within a fortnight.

Mr. FITZGERALD-KENNEY

I believe that within a fortnight this Bill might be very pressing, as no lunacy, or matter in infancy in court, can be adjudicated upon. Until this Bill becomes law the Chief Justice has no power to appoint a delegate. That is why this Bill is of pressing urgency at the moment. I am sorry that I must ask the House to accept the Bill as amended, and I would ask Deputy de Valera to consider if the point is not a very small one.

Mr. DE VALERA

Of course, if it were administered as the Minister indicated, it would be certainly a small point, but I am not at all satisfied that it would be administered in that way. After all, the judge, when he will be deciding will see that the law is in black and white, that the cost shall be paid by the State, "unless the court shall be of opinion that the necessity for the appeal and the new trial has been caused or contributed to by the defence.""Contributed to" is much too wide. The extent to which the defence may have contributed is an important matter, and I think we ought to indicate here, for the guidance of the judge, that the State ought to pay for the re-trial, except in the case where definitely the responsibility for the appeal lay with the defence.

Mr. BLYTHE

My experience, officially, in dealing with civil trials, is that the court always gives costs against the State. Win, lose or draw, the costs are given against the State.

Mr. DE VALERA

I do not think we ought to leave a matter of that kind to chance. It is a very important point. The accused may not have any means. or may have only very little, or even if he has some means he might be mulcted for costs, when the necessity for the appeal was not caused by any neglect on the part of the defendant or his counsel.

The PRESIDENT

This recommendation came from the Seanad, that body from which no good can come, if we are to take the statements of the other side, and this is rather a recommendation in favour of the Seanad. It has at least this much in its favour, that this is something that was thought of there which was not thought of here. It took some accommodation to get a recommendation which would pass there and be acceptable here. That we should proceed to judge this case ourselves—that is what the Deputy suggests, that the court should not be allowed a discretion in this matter—the court which has all the elements of the case before it. The terms that are put down there "has been caused or contributed to by the defence" were really inserted on the advice of a lawyer, and a lawyer who has had some experience of these matters. Apart altogether from what the Minister for Finance said—which has been my own experience—there is a disposition on the part of the courts to give costs against the State in these matters. I think that the judiciary, as such, can well merit our confidence in dealing with a matter of this kind in accordance with the best traditions of jurisprudence.

Mr. DE VALERA

But is it not a fact that the judge will interpret the law as he finds it?

Mr. BLYTHE

Yes.

Mr. DE VALERA

According to this, it would be within the discretion of the judge to ask himself whether it was due to neglect by the State prosecutor, or whether it has been caused or contributed to by the defence. In other words, if there is some contribution of any kind by the defence, no matter how small, they will say: "Very well, you contributed to this," without any regard to the extent of the contribution. We have to make the law here, and we can set down very clearly what is in our minds as to when the defence should be made to bear the costs. The time when the defence should be made to bear the costs is, it seems to me, when they have primarily occasioned the appeal by neglect, so that the judge would use his discretion in deciding whether the appeal was primarily due to the defence, that is, that the defence primarily caused the necessity for the appeal. If I got in the word "primarily" to indicate that the responsibility is mainly on the defence, I would be satisfied. After all, the law as we pass it is what will be interpreted.

Mr. LITTLE

The President said that we were leaving it to the discretion of the judge. These words do not leave it to the discretion of the judge. What we want to do is to give to the judge a discretion, and if you were to put in some words like "primarily," or "substantially," it would cover the point.

The PRESIDENT

Nonsense.

Mr. LITTLE

But if you state "contributed to," the judge will say: "I have no power."

The PRESIDENT

Will the Deputy read the first two lines?

Mr. BLYTHE

I think that Deputy de Valera and Deputy Little are entirely misconstruing it. This particular section will only fetter the discretion of the judge to this extent, that it will oblige him to give costs against the State, except he is satisfied on certain things. It does not prevent his giving costs against the State in every instance.

Mr. DE VALERA

I do not accept that interpretation.

Mr. FLINN

I suggest that the Minister for Finance is not in a position to interpret these words ex cathedra. They lay down here a certain system, and then they use the word "unless," which has a perfectly definite dictionary meaning, and in so far as they say "caused or contributed to," they do definitely put a pressure upon the judge. In a case that is a line-ball case these words, "caused or contributed to by the defence," do put pressure upon the judge—that is my reading of the plain meaning of the words—to say that the costs shall be borne by the defence. The suggestion made by Deputy de Valera seems, on the face of it, to be perfectly right and proper, and the mere fact that it would be some inconvenience, either to the Seanad or this House, to put right what is manifestly wrong in the law is no argument to be offered to this House by any Minister for Justice who has the slightest respect for the House. I do not suggest that the Minister has, and I do not suggest that the sort of thing which his Party has done within the last few weeks would indicate that he had any respect, either for this House or for the law.

AN CEANN COMHAIRLE

That is another question altogether. Let us keep to this amendment.

Mr. FLINN

The point is this: I suggest that there is here definite pressure put upon the judge in the question of a line-ball case to decide against the defendant, and I suggest that we should leave out the words "or contributed to." If the defence, through its own fault, has caused it, well and good; but if it is through some indiscretion, or oversight, or anything of that kind, every one of these things is included in the word "contributed to." It does not need criminal negligence, or anything but a bare contribution, and I suggest that to offer to the House as an argument that we should not put right what is manifestly wrong because it is an inconvenience, is a very discreditable and discourteous argument to offer to the House.

Mr. FITZGERALD-KENNEY

In spite of the very eloquent tirade which we have just listened to, I ask the House to accept this amendment as it comes from the Seanad. We are told that this is manifestly wrong and manifestly unjust. It is nothing of the kind. The Deputy talked about the prisoner bearing the costs of the appeal. He is never asked to bear the costs of the appeal; he is asked to bear only his own costs of the appeal. The State always bears its own costs, except in cases where an order is made by the judge, and the prisoner should bear the costs himself in the first instance.

Mr. DE VALERA

Does the Minister suggest that this is not necessary at all, that the thing would be done in any case?

Mr. BLYTHE

It would.

Mr. DE VALERA

Does the Minister suggest that this amendment is of no value, that it is not necessary at all, that the State will pay the cost?

Mr. FITZGERALD-KENNEY

I suggest that if this amendment were not in the Bill at all this is precisely the spirit in which the court would interpret the section, that where there has been a mistake made, to which the prisoner has not contributed, if there was a wrong charge by the judge, if some mistake was made by the prosecutor, then obviously the court would give the prisoner his costs. Now it is made obligatory on it so to do. But if, on the other hand, the prisoner, through his defence, has caused the necessity for the new trial, that is to say, if he has not called witnesses, or something of that kind, and now wishes to have them, or if his counsel did not object to some evidence, or put something in evidence, which should not have been put in evidence, it is quite right and proper that he should not get his costs at the expense of the State. But the State does not ask for costs against him, even where he has made this particular blunder—where he has contributed. Where it is partly the fault of the State and partly the fault of the prisoner in a great number of cases the court would conclude and, I think, rightly conclude, that since the prisoner is in fault he should bear his own share, but not the State's share.

Mr. DE VALERA

I take it that the Minister is not prepared to insert the words I have suggested, or to delete the words "or contributed to," as suggested by Deputy Flinn?

Mr. FITZGERALD-KENNEY

No, I am not.

Mr. DE VALERA

As far as I am concerned, I am prepared to accept the deletion of the words. I am not very keen on the insertion of the other words at all. If you propose to keep the words "or contributed to" in I intend opposing this amendment.

Mr. LITTLE

Is there any machinery by which one could move that these words be deleted, because it places us in a very unfair position to vote against an amendment which is valuable in a way, because it does not meet the situation properly?

AN CEANN COMHAIRLE

This appears on the Order Paper for the first time to-day and, as we are not meeting to-morrow, I shall take an amendment to this amendment, either to delete the words "or contributed to" or to insert before the word "contributed" the word "substantially." I will then put the question on that and a decision on it would seem to be a better decision than voting against the Seanad amendment.

Mr. LITTLE

I move that the words "or contributed to" in the last line of the Seanad amendment be deleted.

Question put: "That the words proposed to be deleted stand part of the amendment."

The Dáil divided: Tá, 62; Níl, 58.

Tá

• Aird, William P.
• Alton, Ernest Henry.
• Beckett, James Walter.
• Bennett, George Cecil.
• Blythe, Ernest.
• Bourke, Séamus A.
• Brodrick, Seán.
• Byrne, Alfred.
• Byrne, John Joseph.
• Carey, Edmund.
• Cole, John James.
• Collins-O'Driscoll, Mrs. Margt.
• Conlon, Martin.
• Connolly, Michael P.
• Cooper, Bryan Ricco.
• Cosgrave, William T.
• Crowley, James.
• Daly, John.
• Davis, Michael.
• Doherty, Eugene.
• Dolan, James N.
• Doyle, Peadar Seán.
• Duggan, Edmund John.
• Egan, Barry M.
• Esmonde, Osmond Thos. Grattan.
• Fitzgerald, Desmond.
• Fitzgerald-Kenney, James.
• Good, John.
• Gorey, Denis J.
• Hassett, John J.
• Heffernan, Michael R.
• Hennessy, Michael Joseph.
• Hennigan, John.
• Henry, Mark.
• Hogan, Patrick (Galway).
• Holohan, Richard.
• Jordan, Michael.
• Law, Hugh Alexander.
• Leonard, Patrick.
• Lynch, Finian.
• Mathews, Arthur Patrick.
• McDonogh, Martin.
• McFadden, Michael Og.
• McGilligan, Patrick.
• Mongan, Joseph W.
• Mulcahy, Richard.
• Murphy, James E.
• Murphy, Joseph Xavier.
• Myles, James Sproule.
• Nally, Martin Michael.
• O'Connor, Bartholomew.
• O'Mahony, Dermot Gun.
• O'Sullivan, John Marcus.
• Reynolds, Patrick.
• Rice, Vincent.
• Roddy, Martin.
• Shaw, Patrick W.
• Sheehy, Timothy (West Cork).
• Thrift, William Edward.
• Tierney, Michael.
• White, Vincent Joseph.
• Wolfe, George.

Níl

• Allen, Denis.
• Blaney, Neal.
• Boland, Gerald.
• Boland, Patrick.
• Bourke, Daniel.
• Brady, Seán.
• Briscoe, Robert.
• Buckley, Daniel.
• Carney, Frank.
• Carty, Frank.
• Cassidy, Archie J.
• Clancy, Patrick.
• Clery, Michael.
• Coburn, James.
• Colbert, James.
• Colohan, Hugh.
• Cooney, Eamon.
• Corkery, Dan.
• Corish, Richard.
• Crowley, Fred. Hugh.
• Crowley, Tadhg.
• Davin, William.
• Derrig, Thomas.
• De Valera, Eamon.
• Everett, James.
• Fahy, Frank.
• Flinn, Hugo.
• Fogarty, Andrew.
• French, Seán.
• Gorry, Patrick J.
• Goulding, John.
• Hayes, Seán.
• Holt, Samuel.
• Houlihan, Patrick.
• Jordan, Stephen.
• Kent, William R.
• Kerlin, Frank.
• Killane, James Joseph.
• Killilea, Mark.
• Kilroy, Michael.
• Lemass, Seán F.
• Little, Patrick John.
• Maguire, Ben.
• McEllistrim, Thomas.
• MacEntee, Seán.
• Moore, Seamus.
• Morrissey, Daniel.
• O'Connell, Thomas J.
• O'Dowd, Patrick Joseph.
• O'Reilly, Matthew.
• O'Reilly, Thomas.
• Ryan, James.
• Sexton, Martin.
• Sheehy, Timothy (Tipp.).
• Smith, Patrick.
• Tubridy, John.
• Walsh, Richard.
• Ward, Francis C.

Tellers:—Tá: Deputies Duggan and P. S. Doyle; Níl: Deputies G. Boland and Allen.

Question declared carried.

Mr. FLINN

I desire to move to insert before the word "contributed" in the last line of the Seanad amendment the word "substantially." I do not think it is necessary to make a speech, and I shall leave it to the House.

Question put: "That the word be there inserted."

The Dáil divided: Tá, 56; Níl, 63.

Tá

• Aiken, Frank.
• Allen, Denis.
• Blaney, Neal.
• Boland, Gerald.
• Boland, Patrick.
• Bourke, Daniel.
• Brady, Seán.
• Briscoe, Robert.
• Buckley, Daniel.
• Carney, Frank.
• Carty, Frank.
• Cassidy, Archie J.
• Clery, Michael.
• Coburn, James.
• Colbert, James.
• Corkery, Dan.
• Corish, Richard.
• Crowley, Fred. Hugh.
• Crowley, Tadhg.
• Davin, William.
• Derrig, Thomas.
• De Valera, Eamon.
• Everett, James.
• Fahy, Frank.
• Flinn, Hugo.
• Fogarty, Andrew.
• French, Seán.
• Gorry, Patrick J.
• Goulding, John.
• Hayes, Seán.
• Holt, Samuel.
• Houlihan, Patrick.
• Jordan, Stephen.
• Kent, William R.
• Kerlin, Frank.
• Killane, James Joseph.
• Killilea, Mark.
• Kilroy, Michael.
• Lemass, Seán F.
• Little, Patrick John.
• Maguire, Ben.
• McEllistrim, Thomas.
• MacEntee, Seán.
• Moore, Séamus.
• Morrissey, Daniel.
• O'Connell, Thomas J.
• O'Dowd, Patrick Joseph.
• O'Reilly, Matthew.
• O'Reilly, Thomas.
• Ryan, James.
• Sexton, Martin.
• Sheehy, Timothy (Tipp.).
• Smith, Patrick.
• Tubridy, John.
• Walsh, Richard.
• Ward, Francis C.

Níl

• Aird, William P.
• Alton, Ernest Henry.
• Beckett, James Walter.
• Bennett, George Cecil.
• Blythe, Ernest.
• Bourke, Séamus A.
• Brodrick, Seán.
• Byrne, Alfred.
• Byrne, John Joseph.
• Carey, Edmund.
• Cole, John James.
• Collins-O'Driscoll, Mrs. Margt.
• Conlon, Martin.
• Connolly, Michael P.
• Cooper, Bryan Ricco.
• Cosgrave, William T.
• Crowley, James.
• Daly, John.
• Davis, Michael.
• Doherty, Eugene.
• Dolan, James N.
• Doyle, Peadar Seán.
• Duggan, Edmund John.
• Dwyer, James.
• Egan, Barry M.
• Esmonde, Osmond Thos. Grattan.
• Fitzgerald, Desmond.
• Fitzgerald-Kenney, James.
• Good, John.
• Sheehy, Timothy (West Cork).
• Thrift, William Edward.
• Tierney, Michael.
• Gorey, Denis J.
• Hassett, John J.
• Heffernan, Michael R.
• Hennessy, Michael Joseph.
• Hennigan, John.
• Henry, Mark.
• Hogan, Patrick (Galway).
• Holohan, Richard.
• Jordan, Michael.
• Law, Hugh Alexander.
• Leonard, Patrick.
• Lynch, Finian.
• Mathews, Arthur Patrick.
• McDonogh, Martin.
• McFadden, Michael Og.
• McGilligan, Patrick.
• Mongan, Joseph W.
• Mulcahy, Richard.
• Murphy, James E.
• Murphy, Joseph Xavier.
• Myles, James Sproule.
• Nally, Martin Michael.
• O'Connor, Bartholomew.
• O'Mahony, Dermot Gun.
• O'Sullivan, John Marcus.
• Reynolds, Patrick.
• Rice, Vincent.
• Roddy, Martin.
• Shaw, Patrick W.
• White, Vincent Joseph.
• Wolfe, George.

Tellers:—Tá: Deputies G. Boland and Allen; Níl: Deputies Duggan and P.S. Doyle.

Amendment declared lost.

Question—"That the Dáil agree with the Seanad in the amendment"— put and declared carried.