As I was saying on 14th December, 1949——
Death of King Gustav V. - Criminal Justice Bill, 1949 (Seanad) Committee. (Resumed).
Debate resumed on amendment No. 32.
In sub-section (1) to delete all words after the word "court" in line 54 down to and including "them" in line 61 and substitute therefor "shall, if so requested by the accused, and may, if satisfied that it is in the interests of the accused and the accused makes no objection thereto, order the exclusion of the public from the court during the preliminary investigation and the prohibition of the publication in writing or otherwise of any information in relation to the proceeding."—(Deputy Cowan.)
I think the Deputy moved to report progress.
I did. I would not say there was a lot of progress about the report. However, I have taken the opportunity of reading what I said almost a year ago and I do not think I can improve on it.
It holds?
It holds. In fact, it reads exceptionally well. It is logical and well-reasoned. I am sure the Minister has spent the last 12 months examining the very strong arguments I put forward in favour of this amendment. I am not going to repeat those arguments this evening. If I have not succeeded in convincing the Minister in the 12 months intervening, I am not going to do it this evening. The section itself provides that on the preliminary investigation of an indictable offence the court may, if satisfied that it is expedient in the interests of the accused, exclude the public or prohibit publication. The whole debate and arguments hinged round the words "if satisfied that it is expedient." This is not the trial, as I said; it is simply the preliminary investigation of an indictable offence by a district justice, and the district justice has to be satisfied that it is expedient in the interests of the accused before he may exclude the public or prohibit publication or disclosure of information in regard to the proceedings.
The point I have endeavoured to make is a very simple one—that the best person to understand what is expedient in the interests of the accused is the accused person himself and not the district justice. If the accused person is of opinion that his trial would be prejudiced or that it is not in his interest that there should be publication or that the court should be open to the public at the preliminary investigation, and if he indicates that himself or through his counsel, I think the district justice should be compelled to accept that as being in the interests of the accused person. Otherwise there might be an argument lasting perhaps a whole morning or a whole day as to whether or not it was expedient in the interests of the accused that there should be publication or that the public should be present when the case is being heard. The amendment suggests that if the accused person desires that the public should be present and that the newspapers should publish the proceedings then the district justice cannot close the court. There is an historical reason for that. I think it is necessary in the interests of citizens generally that there should be that particular protection because it is undoubtedly a protection.
There have been cases in this country in the past where persons were brought before a court and the public and the Press excluded and the public generally did not know what the accused was charged with, what was against him, what evidence there was, although the accused person in his own interest might have been very anxious that the public should know.
I think that the amendment is a reasonable way of resolving the difficulties. It gives the very best protection to the accused person. The proceedings on investigation are not a trial. They are an investigation where the evidence is reduced to writing and in which the accused, if he is a sensible person, will not cross-examine, give any evidence, or say anything about his defence. When he comes to be tried, the court is open to the public and to the Press. Everything that is said for and against the particular accused is open to the public and to the Press. In these cases of preliminary investigation there should be no publicity unless the accused wants it.
Strange as it may seem, there are cases where evil-minded persons avail of an opportunity for the purpose of doing injury to an accused person. A person who is absolutely innocent may be charged with an offence and there is a preliminary investigation in regard to it. An evil-minded person may, anonymously or otherwise, communicate with the newspapers and ask them to make sure to have a representative present for the purpose of publishing the proceedings. As I said already, I am absolutely in favour of the open court to try offences, but this is not a trial; it is just a preliminary investigation where one side of the story is put, the case for the prosecution, and if, in these circumstances, where one side of the case is being put, the accused desires that the court shall not be open to the public or that there should be no publication in the Press, then I think it is a reasonable request that should be granted. If the amendment were adopted, then protection would be given to him.
On the last occasion we were treated here to a discussion on high constitutional law. I have endeavoured to see in what way, from a constitutional point of view, the amendment differs from the section as it stands. The section provides that the things can be done if the justice so decides that it is in the interests of the accused. The amendment provides that the interests of the accused will be paramount. I cannot see how the Constitution comes into this at all. If the constitutional argument is right, then it is doubtful whether the section is constitutional.
I put forward all the arguments on the last occasion. I only hope that the Minister and his advisers, in the long period that has elapsed, have been able to see the desirability and the necessity for this particular amendment.
I have listened with great attention to all that Deputy Cowan has had to say in support of his amendment but I have not altered my view that the amendment is unacceptable. It is true that we had a long time to consider the matter since December last. I thought that the Deputy, on examination, might have changed his mind.
I do not at all deny that an accused person may be and usually is the best judge of his own interests. But where the administration of justice is concerned there is question, not merely of the accused's interests, but of the public interest. I cannot accept the view that the provision of Article 34 of the Constitution to the effect that justice shall be administered in public save in such special and limited cases as may be prescribed by law does not extend or apply to the preliminary investigation of indictable offences. But, however this may be, it is manifestly in the public interest that the public should know, amongst other things, how the preliminary investigation of indictable offences is being conducted in our courts and that there should be full publicity for the methods of the prosecution.
It may save time if I say at this stage that I myself have had second thoughts on this section and that I have come to the conclusion that the only interest of the accused that can legitimately be safeguarded is that there should not be any publicity which, in the opinion of the court, would be likely to prejudice his trial. But subject to this, as will be apparent when we come to discuss the amendment to the sub-section that I myself have tabled, I think that we should move almost in the opposite direction to that in which the Deputy would have us go and aim at publicity of some sort in every case where such publicity would not be likely in the opinion of the court to prejudice the trial of the accused. On the other hand, I am prepared to accept in principle the next amendment standing in the name of Deputy Boland, that is to say, the principle that subject to the exception specified there should be no publicity, if, but only if, there is a likelihood of the accused being prejudiced in his trial. I am not, of course, referring to the indecent or obscene case, which stands on a different footing, and for which separate provision is being made.
Therefore, I cannot accept the amendment as it stands, but I am prepared to go as far as I have suggested.
Does the Deputy challenge a vote?
I take it that the amendment is defeated.
Amendment by leave withdrawn.
In view of what the Minister has just stated, I think there is no necessity to move amendment No. 33.
I am accepting the principle. I move amendment No. 34:
In sub-section (1) to delete lines 55 and 56 and substitute "interests of the accused, do any one or more of the following—".
This amendment has a twofold object. First, by inserting the words "do any one or more of the following"—that is, any of the things set out here in (a), (b) and (c)—it is hoped to make it clearer on the face of the section that the powers which the section proposes to confer on the court to exclude the public or any particular portion of the public or to prohibit publication of information in relation to the proceedings are powers that may be exercised jointly or in the alternative.
Some importance is attached to this point because one of the criticisms directed against the present position, in which the District Court has only power to take the depositions in camera, is that if the accused is a person of some standing in the locality and after in camera proceedings on the depositions, the justice refuses informations, there is a possibility of harmful comment amongst local people who may be inclined to think that justice has not been done. Under the new powers which the District Court will have under sub-section (1) of Section 18, the justice, if he thinks it possible or likely that there may be adverse comment if the deposition proceedings, conducted in camera, have a certain result, can guard against such an eventuality by refusing to take the depositions in camera and, instead, making an order prohibiting publication which should be sufficient to protect the accused against the risk of an unfair trial if he is returned for trial. For these reasons, it is considered desirable to make it quite clear that the court's powers under sub-section (1) are powers which it may exercise in the alternative as well as jointly and the amendment will do this.
Secondly, on further consideration, it is thought that it would be better that sub-section (1) should be restricted entirely to dealing with that aspect of the proceedings on the preliminary investigation of indictable offences which is concerned with the protection of the accused's interests and that, in so far as it is necessary to provide for the case in which the offence the subject of the deposition proceedings is of an indecent or obscene nature, this should be done as part of the provision dealing generally with that class of offence. Accordingly, the amendment deletes the reference in sub-section (1) to the "indecent or obscene nature of the offence" and, in amendment No. 38, it is proposed to recast sub-section (2) of the section so as to make it clear that that sub-section (2) will apply to the preliminary investigation of indictable offences as well as to the trial of such offences.
Major de Valera
I can see the point about leaving the indecent or obscene nature of offence out, but there is one point which I should like cleared up. The Minister is accepting in principle amendment No. 33. Amendment No. 33 affects lines 54 and 55: it also affects line 56. On the other hand, this amendment No. 34 is to delete the two lines and to substitute "interests of the accused, do any one or more of the following—". The essential thing in the amendment which the Minister says he is going to accept in principle is the substitution of the idea that it is the likelihood of the accused being prejudiced that should be the ruling point rather than his interest. It is a fine point, I grant you, but nevertheless it is a point. He is amending the section in these particular lines and he retains "in the interests of the accused". Does this mean that amendment No. 33, now, is going to be abortive on Report? Does it mean that it, itself, is going to be the subject of an amendment on Report?
That could happen.
It may have to happen.
Major de Valera
Here is the point——
The answer is yes.
Major de Valera
So once you have accepted the principle in amendment No. 33, there is no use in discussing No. 34?
I think so.
Amendment agreed to.
Mr. Boland
I move amendment No. 35:
In sub-section (1), paragraph (b), line 60, to delete the words "or disclosure".
The word "disclosure" might mean two people talking outside. I quite agree with "publication", but "disclosure" is a wide term to use. A person might find himself in difficulties who merely made a comment to someone else outside.
I am accepting that.
Amendment agreed to.
Mr. Boland
I move amendment No. 36. It is a cognate amendment:
In sub-section (1), paragraph (c), lines 1 and 2, to delete the words "or disclosure".
Amendment agreed to.
I move amendment No. 37:—
Before sub-section (2) to insert a new sub-section as follows:—
(2) Any restrictions or limitations on publication which have been imposed under sub-section (1) in the interest of the fair trial of the accused shall not remain in force after a jury has been sworn to try the offence with which the accused is being charged.
The Minister's acceptance of the priciple of Deputy Boland's amendment is all the more reason for accepting this amendment. The restriction on publication, as we are now all agreed, is in the interests of the fair trial of the accused or lest there be any likelihood that he may not get a fair trial. The reason for that, as Deputy Cowan pointed out, is that in the preliminary hearing the newspapers get a onesided story. There are not many newspapers that report day-to-day proceedings in court in this country, with the result that it is only reasonable to assume that almost every member of the jury who will come later to try the accused will have read one or other of such newspapers. That is beside the point in so far as this amendment is concerned.
It often happens that something of public importance is disclosed at a hearing in the district court and the Press might be precluded from reporting it. When the accused comes forward for trial he may plead guilty. If the section is allowed to stand as at present, what happened in the district court, probably, will never come to light. It may be in the interests of the public generally that what happened in the District Court should be made common knowledge. Once the accused has been arraigned or has pleaded guilty, the interests of a fair trial are not prejudiced. I would suggest to the Minister, therefore, that there are cases when this restriction should be relaxed.
I can indicate another instance which happens quite frequently at the trial of accused persons. The evidence of a particular witness in the District Court may not be required by the State at the hearing. The State may then say to the representatives of the accused: "We are not calling this witness but we will offer him to you if you want him." It may happen that what this witness has to say would not help the accused, and therefore he would not be called by the defence. What he had said in the District Court might disclose some course of conduct or set of facts that it would be in the interests of the public to know. An astute reporter might realise that fact and might have taken a note of what happened in the District Court but, by order of the justice, might have been precluded from publishing it. If he or his editor thinks at a later stage that it would be in the interests of the public generally to have this matter published, the Press generally should get power to do so, and this limitation or restriction should last only up to the time of the commencement of the trial of the accused. From that on there would be no danger that the publication of that matter would affect his fair trial because the jury would have been sworn and the case might be over.
I would point out to the Minister that a famous English judge, I think it was Lord Justice Goddard, in a reported case in the early part of this century, said that the court must have regard not only for the interests of the accused but for the interests of justice and I submit that the interests of justice are the interests of the people generally. Therefore, if a set of facts is disclosed in the District Court which it would be in the interests of the public to know and if publication of that set of facts is precluded, I suggest that it would be only reasonable to the public and the Press that the Press should have a chance of presenting those facts to the public either after the commencement of the trial or after the conclusion of the trial or, at least, when the interests of the fair trial of the accused can on longer be prejudiced.
Major de Valera
In support of this amendment the following points should be weighed. I should imagine that the genesis of the section and the reason why it has come to the fore are simply this, that it has been the experience of lawyers like Deputy Cowan, defending prisoners, that they started at a disadvantage because of the fact that depositions had been published. The difficulty can arise very definitely in this way, that on the deposition stage the evidence against the accused was taken and normally up to this—there will be perhaps a slight change when this Bill becomes law—an accused person said very little and there was very little cross-examination. Therefore, the State's allegations went unchallenged. Two things could happen. If this was published in detail, as frequently happened if the case was an interesting case, the evidence for the State was put over to the public, so to speak, without any rebutting evidence. That tended to prejudice jurymen because it was almost certain that you could not swear a panel without including a majority in that jury who had read the report. Secondly, another difficulty arose. Some of these depositions and, in particular, statements, might be ruled out under the laws of evidence at the trial and could not go to the jury in court, but that would be of very little avail to the accused if, in fact, they had already got to the jurymen through the newspapers. In most big cases, particularly capital charges, which get publicity, it has been an unfortunate fact in the past that the mind of the public has been largely conditioned by the impression given by the newspapers in reporting the deposition stage. That is the case for the section.
To take Deputy Lynch's amendment, however, there is another side to that story, another side to the argument. It is obviously very much in the interests of national justice that the matter should be published and, although these proceedings are not the trial, they are nevertheless proceedings in the case and, as Deputy Lynch has pointed out, matters which should be known to the public and which are important to the public, and would be important from the point of view of safeguarding the administration of justice, can be disclosed at that stage and should ultimately be published, and the suppression of them may open the way for abuses.
Deputy Lynch has enumerated two points. I would add to them. There are, I think, four conceivable cases where the evidence is taken in the district court, and, when the case comes to the criminal court, whether the circuit criminal court or the central criminal court, that evidence may never again reach the light if the law stands as the Bill proposes. One is where there is a plea of guilty, which Deputy Lynch mentioned. There would be no evidence after that. There might be disclosures in the court which would be of public importance. It is very easy to conceive how that would work out. The legal advisers advising an accused person to plead guilty at that stage do it for the very purpose of suppressing damaging evidence. That would be one of the considerations in advising an accused to plead guilty. Damaging evidence may come out, and the accused may wish to suppress that evidence and take his rap on a plea of guilty. It can happen. That would not be in the interests of the State in certain conceivable cases.
The next case is the opposite to that, where the State could enter a nolle prosequi at that stage of coming to trial. I put this merely as a hypothetical case. Fortunately or unfortunately, when you are dealing with principles you have to consider the hypothetical case and the safeguards. Supposing something came up in the course of a case that was damaging to the Executive, whether in any particular detail or generally. That could be suppressed at the District Court stage. Then, if the people responsible, whether Government or lower down the line, decided it would be better not to have this thing getting out, they would enter a nolle prosequi against the accused, and then it would not get out. I am not suggesting the Minister would countenance that, but it is a possibility.
There you have two cases. The plea of guilty achieves that where the accused is anxious to do it, and entering a nolle will achieve it where the State might want to do it. Such a condition of things might arise. A direction on a pleading straight away might have the same possibilities. It is because of the possibility of abuse that I think it would be well to accept Deputy Lynch's amendment in principle.
There is another aspect to this. From the normal news point of view, it cannot damage an accused at that stage. We have to consider this aspect, the avidity of news editors and subordinating that appetite in the interests of the accused man. It is that which has caused the mischief which this section is designed to remedy. That mischief will not be there at that stage. When it gets to the trial stage the news at the deposition stage will be stale and will not be reported. It may be reported only for the reason that I have outlined, in which case it is highly essential in the public interest that it should be reported.
Therefore, I will add my voice to Deputy Lynch's and I will ask the Minister to accept this amendment in principle. It would be well to have a provision of that nature. As the section stands, there might be a temptation either on the part of the State or individuals.
I do not think the amendment proposed by Deputy Lynch and supported by Deputy de Valera would achieve what they have in mind. I cannot see anything in the Bill that precluded the right they are looking for in this amendment.
The position is this, that we have jealously guarded the stage of the proceedings that might prove prejudicial to the accused. When the case comes before the trial court, whether it be the Circuit Court or the Central Criminal Court, a different stage of the proceedings is reached. If then, either of the extraordinary hypothetical cases cited by Deputy de Valera is to occur, if, for instance, the State is to enter a nolle prosequi, what harm can be done? There has been no disclosure up to that point, no publicity. If the State then decides to enter a nolle prosequi no harm has been done to the accused, nothing prejudicial has occurred. Therefore, the entering of the nolle cannot do much harm.
If, in the other case, a man decides to plead guilty, we are then at a different stage. We are at the trial of the accused and the condition of a fair trial has been met. I do not think there is anything in the Bill to prevent the Press from publishing, from the point of view of news value or national importance, anything that has occurred at the trial. There is nothing in this measure which precludes the Press or the people in court from assessing what has happened on the deposition stage before the plea of guilty. There is nothing to stop publication.
I can quite understand Deputy Lynch's anxiety, but the Bill does not preclude from happening exactly what Deputy Lynch wants to happen. I do not think the inclusion of the amendment would make it happen in any way more effectively. I suggest we are getting a little mixed up by the raising of imaginary difficulties. I think the Bill as it stands affords as big a safeguard as what Deputy Lynch has in mind in his amendment.
I see some virtue in what Deputy Collins has said. Clearly, the restriction on publication relates only to the taking of depositions in the District Court. Once that stage is passed, the trial, if there is to be a trial, can get all the publicity necessary. Fortunately, here in Dublin we are not burdened too much with the publication of trials because the newspapers have enough material to keep them going; but in the country you will get a very full report of all kinds of trials, including public inquiries. Deputy Lynch's amendment sets out that the case can be published after the jury has been sworn. But if a person pleads guilty, no jury is sworn at all, so that the point Deputy Lynch wants to establish does not work out. The section which Deputy Lynch proposes authorises publication only after a jury has been sworn. If the accused pleads guilty the position is altered. If there is a nolle entered the same thing applies, so that if the section suggested by Deputy Lynch were inserted it might create the position that after a plea of guilty or after the entering of a nolle there could be no publication. I do not think that is what Deputy Lynch wants; in fact, what he wants is publication. If the Minister could meet the principle that Deputy Lynch has put forward, by including a very short addition to paragraph (b) of Section 18 (1)—in other words, that he could prohibit the publication “prior to the arraignment”, I think an amendment on that basis would be accepted and if that is accepted I think we could leave it to the Minister to draft the final amendment.
Major de Valera
I think Deputy Cowan's suggestion is an excellent one. I had some doubts about the wording of the amendment, but the proper word did not suggest itself to me. Deputy Cowan has just given it, the word "arraignment." In answer to Deputy Collins, let us follow a case—I confess that it is completely hypothetical—and suppose you have the accused duly brought before the district justice for the taking of informations and that, in the course of those informations, some disclosure is made which is a temptation to the Executive or which would be good reason for the Executive not wanting to go on, as it would be an embarrassment. If at the trial there is an order made under sub-section (1) (b) prohibiting the publication —I am leaving out the word "disclosure," as that is going to be dropped —of information relating to the proceedings or any part of them, that is an absolute prohibition as the Bill would stand and it would endure in perpetuity.
Only within the criminal code, surely.
Major de Valera
There is nothing about the criminal code there. "Prohibit the publication" is the plain straightforward wording of an unlimited act and it simply means "prohibit the publication." After all, the common way of construing a statute is to take the commonsense language of it.
This is only prohibition with regard to criminal proceedings. If such a disclosure as the Deputy has suggested in his hypothetical case should occur, could it not be revealed in a different way?
Major de Valera
It might not. The Deputy knows as well as I do how easy it is to get rumour and how hard it is to get truth on which you may move. A disclosure in a court before a district justice must be taken notice of. Let me follow my hypothetical case. As this section stands, it would be an absolute prohibition of publication, to endure for ever.
Let us see what happens next. The people who are tempted—I do not want to be more explicit than that— decide they are going to avoid this embarrassment by entering a nolle prosequi. It simply means that, when it comes to arraignment, they inform the court that there is a nolle prosequi entered and the accused goes out without any further reference. The thing thereafter is completely hushed up. A number of reporters actually in court may have heard it—and other people, too—but no use can be made of it. It is then merely a rumour and nothing can be done about it—except possibly in this House. The point that Deputy Lynch is making is that it would be a safeguard to limit that ban until such time as the accused cannot be prejudiced in his trial—in his trial, mind you. Do not press this so far——
Deputy Lynch wants it raised just the minute the jury is sworn.
Major de Valera
Leave it so that the accused would not be prejudiced in his trial. He cannot be prejudiced when it comes to the point of arraignment. That is why, with respect to my colleague, Deputy Lynch—I do not know whether he will accept this or not—I think Deputy Cowan's suggested alteration to the period "of arraignment" is a very happy one. It would meet precisely the case we are trying to make and I suggest that the Minister accept it.
I agree with what Deputy Cowan has said. As a matter of fact, in proposing this amendment, I saw the limitations I imposed in it. What I really intended, and I think I made it clear in the gist of my remarks, was that I wanted this limitation lifted as soon as the fair trial of the accused was no longer prejudiced or capable of being prejudiced. I am asking the Minister to accept the principle of that, in so far as he can. Secondly, in reply to Deputy Collins, I think he has gone completely awry in regard to his reading of this section. As I read it, I agree with Deputy de Valera that this prohibition is in perpetuity. It is a positive Act of Parliament. It provides nowhere in the Act for the lifting of the prohibition once it has been imposed. Therefore, I suggest that the Minister should accept, at least in principle, the amendment I proposed, with the alteration suggested by Deputy Cowan.
The amendment as it stood operated the very moment the jury was empanelled or sworn. Then they were free to publish. It is principally the interest of the accused that has been in consideration. Suppose the trial has lasted a week——
I have agreed on that point. The Minister need not go into that.
All I can say is that I will examine the matter. I think it is absolutely unnecessary and there is any amount of power to publish all they want, once it goes into the trial court. If there is any doubt about that, I will consider bringing in an amendment on the Report Stage.
Subject to what the Minister has said, I wish to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 38:—
To delete sub-section (2) and substitute:—
(2) In any criminal proceedings for an offence which is, in the opinion of the court, of an indecent or obscene nature, the court may, subject to sub-section (3), exclude from the court during the hearing all persons except officers of the court, persons directly concerned in the proceedings, bona fide representatives of the Press, and such other persons as the court may, in its discretion, permit to remain.
This amendment relates to offences of an indecent or obscene nature. As I have explained in connection with amendment No. 34, one of the purposes of recasting sub-section (2) of Section 18, as proposed in this amendment, is to extend its provisions so as to cover the preliminary investigation of indictable offences as well as the trial of such offences. This is done by adopting the wider formula "In any criminal proceedings" used in the amendment instead of the words "where a person is being tried," which are in sub-section (2) as it stands.
The amendment proposes to change sub-section (2) in another way also, namely by adding at the end of the sub-section the words "and such other persons as the court may, in its discretion, permit to remain". That is, they would be allowed as well as the one female relative. This was intended to meet the point raised by Deputy Boland, amongst other Deputies, that some provision should be made to ensure that the relatives or close friends of an accused person might be allowed to remain in court. Deputy Boland has, I think, the same object in view in his amendment No. 39 and I want to say at this stage that I have an open mind as to whether his proposal to amend sub-section (3) is not perhaps a better proposal. It has, at all events, I think, the merit of being more explicit but, on the other hand, it is more restricted in scope. However, when I have heard the views of Deputy Boland and other Deputies, I shall be prepared, if necessary, to reconsider the whole question before the Report Stage. In the meantime, I would ask the House to agree to my amendment.
Amendment agreed to.
Mr. Boland
I move amendment No. 39:—
In sub-section (3) to insert after the word "female" where it first occurs in line 10 the words "and in any criminal proceedings where the accused is a young person under the age of 21 years" and to delete all words beginning with the word "one" in line 10 and ending with the word "guardian" in line 11 and to substitute the words "such relatives or representatives of such female and of such accused person as the court may decide".
If the Minister is prepared to do something that meets what I have suggested here, I will not press this. I think it would be wrong to permit only one female relative to be present. A young boy might be accused of the wrong and would need some protection. If the Minister would add "such other persons" and leave it to the discretion of the court, I would be satisfied. To leave it to one female relative would not be proper at all.
I dislike the word "female" which has got into this. Would the Minister try to get a nicer word?
Amendment, by leave, withdrawn.
Question proposed: "That Section 18 stand part of the Bill."
I intervene with some little degree of temerity because there are so many lawyers in the House, but I at least have Deputy Boland to support me. The purpose of this section is mainly to give power to the justice to exclude from the court at the preliminary hearing of an indictable offence such persons as he may decide ought to be excluded. I take it that is the simple meaning of the section. May I put a hypothetical case? Supposing a justice refuses informations during such a preliminary hearing, what will be the result? The accused may be represented; witnesses may be cross-examined and the justice in his discretion may decide finally to refuse informations. It may happen that as a result the public will be dissatisfied. There will be no publicity and no reason will be given. The public will have no means of weighing the evidence that was given. They will have no opportunity of studying the crossexamination. It might even be suggested, perhaps, that some witnesses were not put forward at this preliminary hearing. Is there a danger in that? I ask the Minister and the House to consider the position from that particular aspect. It is an important aspect. It is not unlikely to happen. It has happened in the past. It has happened that very grave doubt existed in the public mind as to the course of a preliminary investigation. I think some safeguard is called for in this connection before this measure passes into law. As the section stands at present, the position I outlined might arise. I know that it has happened in the past that the public were disturbed as a result of a preliminary investigation at which they had no means of knowing the evidence that was put forward or the cross-examination that took place which brought about the particular result.
He must not have been a popular accused.
I ask the Minister to advert to that particular aspect of the matter.
That has been adverted to and amendment No. 34 was drafted precisely to cover that point. Publicity can and will take place if anyone wishes to have publicity.
The Press may be excluded during the preliminary hearing.
The Press cannot be excluded from the court. All that is provided for is that they may be prohibited from publishing. Amendment No. 34 ensures that they can publish what they please. The point the Deputy has made may be advanced in defence of my amendment since it could happen that by the suppression of evidence justice would appear not to be done. Justice must be done. Not only must it be done, but it must also appear to be done and people should, therefore, have an opportunity of knowing the grounds upon which information was refused. Once the trial is over, full publicity may be given to the matter and the people generally will thereby have an opportunity of examining the matter for themselves. Of course, if it is in any way obscene it cannot be published. I think the ground is fully covered.
What will happen if there is a prohibition against publication?
Major de Valera
I think there is a danger in this section, as Deputy Allen has pointed out, in addition to those-already enumerated. It is the "go lightly" on the part of the prosecution. In other words, a case may be so faintly presented that it is bound to fail. In effect, that is what Deputy Allen is saying to the Minister and he is saying that it has occurred in the past.
Of course it has occurred.
Major de Valera
The only way to safeguard against that is by means of public opinion. Cases are not pressed to the utmost justifiable limits only where the prosecution or the Guards have explicit instructions to that effect. This is an additional argument for a safeguard on the lines suggested by Deputy Lynch and Deputy Cowan.
What redress have the public if they believe certain important withnesses are not examined at these trials?
What happens now?
If cases are held in camera, what redress have the public? This is a very important matter. I can tell the Minister that a very responsible section of the community was disturbed not so very long ago because they felt that justice was being interfered with. There is a danger of that under the section as it stands, and I am sure the Minister realises that.
Major de Valera
The Minister has asked what is the position at the moment. The position is that up to the present such proceedings were published and the public was accurately informed as to what happened. The public was able to fill the gaps in relation to what did not happen. If everything is suppressed, all that will go round is indefinite rumour.
But full publication can take place after the trial is over if that is desired. There is nothing to prevent publicity of all the depositions once the preliminary hearing is finished. However, I will amend the section to that extent. This is an indictment of the Attorney-General, prosecuting counsel and the Guards. We have had enough of that in the past, and I hope that we are finished with it now.
I am afraid you are not.
Do not draw me on that. I think it is better for us to proceed normally without dragging in anything else.
Deputy Allen has drawn attention to something which will, I am sure, lead to some slight amendment of the section. I agree with the Minister it is an indictment of the Attorney-General, of prosecuting counsel, of State solicitors, superintendents and members of the Garda Síochána. I have had a long experience of defending accused persons. I have never been on the prosecuting side. I must say that I never got any change out of the prosecution. Prosecuting counsel, irrespective of who appointed them, went into court and did their duty in the way in which they conceived it ought to be done. I have often had to complain that they were pushing their case a bit too far. That is my own personal view. I am glad Deputy Allen has given me this opportunity of expressing my complete confidence in counsel over a long number of years, in State solicitors, superintendents and members of the Garda Síochána who have prosecuted in the courts. They have done it well and in the interest of the public.
Human nature enters into all these things, and it is quite possible that there may have been an isolated instance here or there, about which there was a certain amount of talk. They have an old saying in the country that "there is no smoke without fire." There is an extraordinary desire, often on the part of people, to see an unpopular fellow sent to jail, just as there is a strong desire to see a very popular fellow get off, no matter how guilty he may be. If certain people who do not know anything about the facts make up their minds and say, "Well, there has been a bit of a job done in this case," they may be entirely wrong in regard to that.
I do not think it is right to give the impression, because people want to see a man convicted, that the prosecution has been lax or has been corrupt in putting the case against him, or that the district justice or Circuit Court judge acts corruptly in entering into the spirit of the thing. Now, I do not think this has very much to do with the Bill at all. I think that all of us, representing as we do the general public, rightly have a very strong confidence in the whole administration of justice from the point of view of the fairness and efficiency of the prosecutors.
I think the Deputy might let it rest at that.
There is one thing that occurs to me in connection with this discussion. It may, possibly, be what Deputy Allen has in mind, and that is that, notwithstanding the fact that the district justice may have refused informations, the Attorney-General may step in to prosecute and send the accused forward for trial. That did occur in at least one case.
In several.
And not very long ago. I think that possibly is what is agitating Deputy Allen.
That is unfair. It has happened several times over a period of 25 years.
I do not remember any case in the last 20 years except one.
It would be better if the Deputy were to debate the principle than to raise a specific case.
I am not raising a specific case. It is the principle of the matter that I am dealing with. It may be that it is that type of procedure which Deputy Allen has in mind. There is one protection for the public and it is that if the proceedings were known the attention of the Attorney-General, possibly, would be directed to a miscarriage of justice if, in fact, a miscarriage of justice had taken place. The Minister states that, once informations have been refused, there will be full publication of the proceedings — that the Press will be free to publish them. If you had a case, say, where the Attorney-General decided, notwithstanding the refusal of informations in the court below, that the matter was going to be revived, it would mean that the accused would possibly be prejudiced by that publication. I do not know whether the Minister has adverted to that but, if not, he might do so in the event of such a complication arising in the future.
Major de Valera
I would like to say that I have been dealing with these possibilities on a purely hypothetical basis, the reason being, as the Minister will appreciate, that it is the hypothetical cases which will show one the possibilities of danger. Fundamentally, we come back to what the Minister himself has said, and that is, the appearance of justice being done. It is a great safeguard indeed to have this publication because no matter what rumours or criticism are there, this much has to be said, namely, that the accused has a specific set of circumstances to meet, whereas if there is no publicity the State itself may be the victim of rumour. I agree with Deputy Cowan that, in my experience, there has been very fair prosecution, and very efficient prosecution, by the Gardaí in most cases. I have also seen cases where things have been said about the presentation of a trial because people have not appreciated the difficulties in regard to evidence or something of that nature, or the diffculties of the police in a particular case. It is important in such a case that there should be full and accurate publication rather than that rumours should go riding around. I make these suggestions on a purely hypothetical basis. These hypothetical cases are enough reason to show the soundness of the approach heretofore. After all, the only reason for the section is the fact that premature publication has too frequently in the past prejudiced an accused. That one reason for having the section can be met in the way suggested by Deputy Lynch and Deputy Cowan. If that is done there is nothing more to be said.
I had to listen for about ten minutes to a lot about publicity. It is now being argued that I am defending suppression. I argued for publicity against Deputy Cowan. Now the debate has turned around as if I were against publicity. I think the undertakings I have given should meet all the arguments that have been made.
As I said before, I have raised this matter because it was brought to my notice that very responsible people amongst the public were disturbed about it. If we assume that counsel or a solicitor proceeds to cross-examine withnesses during a preliminary investigation, does not that preliminary investigation then become a trial?
No.
It is in the form of a trial at that stage. It may be that, as a result of that cross-examination, a justice may decide to refuse informations. If he has excluded from the court the persons set out here, there will be no record for the Press of that cross-examination or of the evidence that has been given. I want to point that out to the Minister. It is a very important matter, and were the facts not so well known to me in a particular instance, I would not be so clear on it. It is something to which the Minister should give careful and long consideration. If informations are refused, definitely a full report of the proceedings of that preliminary investigation should be given. That will safeguard and satisfy the public, and it is the only safeguard that you can give them.
Major de Valera
It does mean, adding to Deputy Cowan's point about the time that you would have to include "or if informations are refused."
Section 18, as amended, agreed to.
Sections 19 and 20 agreed to.
SECTION 21.
Mr. Boland
I move amendment 40:
In sub-section (3), line 54, to delete the words "a Minister of State," and substitute the words "the Minister for Justice."
On Second Reading we had a rather long debate on this particular point. As I pointed out then, I suppose there is a necessity for this power but some doubt was expressed as to whether the power to remit should extend to all cases. I agree that it is necessary; I am sorry that it is necessary that the Government should have this power, but I am not satisfied that any Minister should have the right to remit or that the Government should have the right to delegate that power to any Minister. I made the case then that the Minister for Justice was the only person to whom that power should be delegated, and I think that case was accepted because I was invited to put down an amendment to that effect. As I pointed out, I do not think the Minister for Justice is ever the accuser in these cases. It is generally the Minister for Agriculture or the Minister for Industry and Commerce. In fact, I think there is scarcely a Minister of State, except the Minister for Justice, at whose instance a prosecution is not taken from time to time. I may be wrong, but I cannot recall any occasion on which a prosecution was brought on behalf of the Minister for Justice. When this matter was debated on the 3rd November, 1949, I said that I did not think it desirable to set out in the sub-section that "a Minister of State" should have this power. The report of the debate, as given in column 528 of the Official Reports of that date, goes on:—
"General MacEoin: Instead of the words ‘Minister of State', will the Deputy put down an amendment to substitute the words ‘Minister for Justice'?"
I said that I was prepared to do that and the Minister replied: "And I am prepared to accept it". I take it that the Minister is now prepared to accept the amendment. I think it would be altogether wrong to leave this to the discretion of a Minister who may be actually bringing the case himself.
I agree with Deputy Boland on this matter. After all, from the point of view of the administration of justice the Minister is concerned vitally with it. Not only is he himself concerned with it, but his whole staff are concerned with it. They are concerned with the matters that should properly be taken into consideration in a decision to exercise this power which is really the prerogative of mercy. I would rather see that exercised by the Government as a whole, but if it is delegated, it should be delegated to the Minister whose prime function it is. For that reason I support the amendment.
The Minister must have been in a very gracious mood when he said he would accept this amendment. I see that I did say that.
Mr. Boland
And it is in the very form in which you suggested it should be.
I think, however, on examination that I could not possibly accept the amendment because it would tie the Government's hands. It is a matter for the Government really. You must give them power to delegate the power because the power of remission is vested in the Government and not in the Minister for Justice.
Major de Valera
Why not then leave it to the Government instead of to a Minister?
The Government may delegate the power to a Minister but it is vested in the Government.
Mr. Boland
I suggest that they should delegate it to the Minister for Justice.
I do not think you should tie the Government's hands.
Mr. Boland
The Minister was quite right in inviting me to put down this amendment. I accepted his invitation, and he cannot go back on it now.
I cannot accept the amendment in its present form.
Mr. Boland
Why? You have made a fool of me, led me up the garden path.
I led myself up the garden path. I do not think I could accept it in the exact terms in which it now appears.
Mr. Boland
I do not think that it has ever happened in our history before that when a Deputy, at the request of a Minister, put down an amendment in the precise terms suggested by the Minister, the Minister afterwards refused to accept that amendment. It is an unprecedented thing. After all the Minister is supposed to have a word and the House accepted his word. There was general agreement on that during the Second Reading debate. I am simply amazed at the attitude which the Minister has now adopted. I have read out what took place on the Second Reading. I did not think that the Minister was going to go back on his promise. I have put down the amendment in the precise terms which he suggested, and he is not going to go back on that now, surely. It would be a very bad precedent to establish.
There is this difficulty about it. The Minister says that he enjoys the confidence of the Government and that the powers will be given to him. What I am afraid of is that these powers will be given to every Minister—perhaps to the Minister for Agriculture in prosecutions relating to agriculture, and to the Minister for Industry and Commerce in prosecutions relating to other matters. It is for that reason that I should like to see the power limited to the Minister for Justice.
Mr. Boland
Perhaps the Minister can tell me authoritatively, but I was eight years in that Department and I do not think that a prosecution is taken at the instance of the Minister for Justice in any of these cases. Prosecutions are generally taken by some other Minister. Therefore, the Minister for Justice stands out as the person to whom these powers of remission should be delegated and the Minister was quite right in inviting me to put down this amendment. He should not go back on that now.
I think there is an unanswerable case to be made for the amendment. In all cases, it is the Minister for Justice who should exercise this prerogative and there are many reasons why no other Minister should have this power. There are, first, the reasons set out by Deputy Boland, that other Ministers are invariably the prosecutors or the nominal prosecutors. The Attorney-General prosecutes on their behalf for different offences. If any of these Ministers had to exercise the prerogative under this section in connection with an offence that was concerned with his own Department, in the first place the particular Minister might be prejudiced very much in doing anything at all in the case. On the other hand, the Minister may feel that if these powers are delegated to any Minister other than the Minister for Justice he may go on some basis other than the basis the Minister for Justice would go on.
When petitions come in to have fines reduced or sentences remitted the Minister gets the remarks of the judge or district justice who tried the offence and nobody would be more alive to the dangers than the Minister for Justice or would exercise these powers with greater care. Every Minister for Justice would realise that if a fine or a sentence were interfered with and were not interfered with correctly or if the prerogative of mercy were exercised in cases where perhaps the public might think that it should not be exercised it might undermine the whole structure of justice in the country. It would have bad reactions not alone on the judge or justice who had tried the case but on the administration of the law in general, particularly the criminal law. The Minister for Justice, by reason of his office, is bound to have more knowledge from every angle on these matters, and I cannot conceive why this power should be delegated by the Government to any other Minister. Would the Minister tell the House what are the objections of the Government to delegating these powers to the Minister for Justice and to making them the powers solely of the Minister for Justice? Are there any angles which may not have occurred to the Deputies of this House as to why the Minister for Justice should not be the man to exercise these powers or why any other member of the Cabinet should be singled out by the Government for the exercise of these powers? I cannot conceive any good or valid reason why that should be so. I cannot conceive any Minister in charge of any Department who, from his knowledge or from his sources of knowledge, would be a better or a more suitable man for the exercise of these powers than the Minister for Justice.
The case for the amendment is unanswerable, and I would again press the Minister to live up to the undertaking which he gave Deputy Boland when the Bill was last before the House.
I want to stress the section:—
"21.—(1) Except in capital cases, the Government may commute or remit, in whole or in part, any punishment imposed by a court exercising criminal jurisdiction, subject to such conditions as they may think proper.
(2) The Government may remit, in whole or part, any forfeiture or disqualification imposed by a court exercising criminal jurisdiction and restore or revive, in whole or in part, the subject of the forfeiture.
(3) The Government may delegate to a Minister of State any power conferred by this section and may revoke any such delegation."
"The Government may." If you tie them down to the Minister for Justice they may retain the power themselves, and you would take away any power the Minister for Justice or other Minister of State would have. They would not delegate it at all perhaps.
If they are delegating it why not delegate it to the Minister for Justice?
We want them to delegate it. I think that the Minister for Justice is the fit and proper person.
Mr. Boland
Why not say so?
I did not think that Deputy Boland was going to act so quickly on the recommendation to put down an amendment.
Mr. Boland
It was not a recommendation, but an invitation.
I did not think you would accept it.
Mr. Boland
I did not try to catch the Minister out in any way.
I may have been facetious, and if I misled the Deputy I regret it.
Mr. Boland
There is nothing to regret. You were perfectly right.
On examination I am personally satisfied that I was not. I am satisfied that it is much better to leave that power to the Government to delegate to a Minister.
Mr. Boland
Why?
If you tie it down you restrict them in their rights. The Government have greater rights than any one individual Minister.
All the amendment asks the Government to do is if they are delegating powers to delegate them to the Minister for Justice. The amendment does not propose to take any power from the Government.
I think we feel that we should ask Deputy Boland not to press it.
Mr. Boland
That is going too far.
Major de Valera
What is the Minister doing? The Minister has read the section and I will not read it again. There is a reason for this section; what is it? The reason is that certain exceptional cases will arise where it is desirable for the Executive to exercise their prerogative of mercy. It is highly desirable that the exercise of that prerogative will be strictly confined and as solemnly confined as possible to exceptional cases and very exceptional cases. There is a reason for that. I know of one case—I had nothing to do with the case myself— where I regret very much that the Minister did not see fit to exercise the prerogative. In this case there were two prisoners with the same offence and everything appeared to be the same but there was a grave and, in my opinion, unjustifiable discrepancy in the sentences. That is a case where the Government should have exercised its discretion and the proper person to do it is the Minister for Justice.
On the other hand if the machinery of justice is to operate properly it is absolutely essential that the sentences of the court which are pronounced in public should run as they are pronounced except for very exceptional reasons. Anything like a promiscuous exercise of that power, a mitigation of fines or a modification of sentence sub rosa and without reference to justice as it is pronounced in the courts would be a very dangerous thing.
What is the effect of this? The Minister for Justice is obviously the person to exercise this prerogative. He must first of all keep before him the principle I have mentioned. He alone of all the Ministers will be in a position to weigh up an individual case against general policy which must rule in that matter and in relation to other matters. If the power is delegated to one Minister in case A, to another in case B and in case C to another Minister, all of them without relation to the Minister for Justice, you can very easily conceive a situation of inequality or inequity arising which would be very bad for the administration of justice.
Another possibility arises. As things are I can, by means of a question in this House, ask the Minister for Justice and the Government to account for the exercise of that prerogative, and it is a relatively simple thing to do because I know the Minister to whom the question in general terms is to be addressed and I know that there is that machine, but if this were passed in order that I should have the information I require I should have to address a question to virtually every Minister in the Government, knowing that I was going to draw 12 blanks and one positive but not knowing which would be blank and which would be positive. That is a bad thing in principle, too.
Like Deputy Moran, I can see no reason why it should not be the Minister for Justice. After all, the principle is important. This interference— because it is interference, sometimes necessary interference, as in the case I have mentioned, but nevertheless interference—with the procedure of the courts, the sentences of the courts and the administration of justice is such a serious matter that I have no hesitation in saying that it should be a matter for governmental decision. I can appreciate, however, the point of expediency in administration. I can appreciate the argument that that would entail the Minister for Justice marshalling all the facts of the case before the Government and that that would be cumbersone machinery, and therefore I say that the Minister for Justice would be the proper person to exercise the power on behalf of the Government, and I think that the Minister should stand over his word in that matter.
Lastly, we are dealing with a Coalition Government. This type of legislation is another indication of the weaknesses of coalitions. That is all it is: another indication of the weaknesses and the tendency to diffuseness in coalitions. I think it is not desirable in principle and I would ask the Minister to hold the bit in his teeth, as Deputy Boland says.
I think that the Minister has completely and utterly failed to make any case against the amendment. If he looks at the whole problem he will see that where there are mitigations of fines or sentences the Minister for Justice generally has the power to mitigate—through the Government, of course. Assume that the Government decides to give it to the Minister for Agriculture we could come to a stage where the Minister for Agriculture is himself a prosecutor. Is he to be the one to decide whether a fine or a sentence of imprisonment is too heavy to lie, and is he, being a party to the case, to be the one to whom a petition should be addressed? The alternative is for the Government at that stage to take the power from the Minister for Agriculture and delegate it to some other Minister with the result, as Deputy de Valera pointed out, that nobody will know to what Minister we will eventually have to come.
I take it that it is the intention of the Government, when proposing to delegate, to have some permanency in that delegation. The Minister knows that he has in the Department a trained petition staff who are experts in this kind of work. Is the result of this delegation to whom the Government likes going to be that his petition staff will be a mobile unit, or if the delegation is taken from the Minister is his petition staff in the Department to stay static until such time as the Government decide to hand back this power to the Minister himself?
It has been pointed out by other speakers that the Minister for Justice is the proper Minister in every circumstance of this aspect of administration. He is the Minister in touch with the judiciary and in touch with the members of the Garda Síochána, and these are the people who are primarily and normally consulted in matters of petitions for the mitigation of fines or sentences of imprisonment. I believe that, even if the Minister refuses, and succeeds in carrying his refusal in the House, to have the Minister for Justice specifically inserted in this section, the Government, in the long run, will appoint the Minister for Justice or will delegate the power to the Minister; but nevertheless, there is no case whatever against specifically appointing the Minister in the section, and, particularly in view of the Minister's undertaking and his complete failure to make a case for his point of view tonight, he should now accept it.
If we look at the section as a whole, we find that the first thing we do is to authorise the Government to commute. We give them authority to commute, and apparently there must have been some doubt about that or the section would not have been introduced in its present state. Section 12 starts off by saying that the Government may commute or remit, in whole or in part, any punishment imposed by a court exercising criminal jurisdiction, so that we, by legislation, are empowering the Government to commute. That is a very important power. Whether the Government had that power or not apparently was a matter which was not altogether free from doubt. If it was free from doubt, clearly the section would not have been introduced by the Minister. We authorise the Government to do that and we then go further and say that we permit the Government to delegate the power to a Minister. This Dáil is perfectly entitled to insist, and I think ought to insist, that that delegation can only be to a particular Minister and that Minister the Minister for Justice. Otherwise, the Minister for Finance might perhaps feel that he would be the authority to remit or reduce in certain revenue matters. Although statutory powers are given to the Revenue Commissioners, nevertheless, in the case of a revenue penalty which had already been mitigated by the Commissioners, the Minister for Finance could further remit or reduce, if the section were passed and similarly in regard to the Minister for Lands in respect of the different matters that come within his jurisdiction.
Or could refuse to remit, where there would be a case for doing so.
He could. As I have already said, we give that power to the Government by this section and we give them a further power of delegation, but we should limit that delegation to the Minister whose prime function is justice, the Minister who knows how these matters ought to be approached from the general point of view, the Minister who has a staff which is experienced in this matter of considering the issues which ought to be taken into account and the procedure that ought to be gone through in regard to mitigations.
Under the Ministers and Secretaries Acts, the Minister for Justice has very specific functions, which functions include this whole question of justice. For that reason, if there is to be any delegation, it should be to the Minister for Justice, and to the Minister for Justice only. If, at any future date, the Government are of opinion that that power of delegation limits them too much, then they can come to the Dáil and make a case as to why the power should be given to the Tánaiste, the Minister for Agriculture, the Minister for Industry and Commerce, the Minister for Finance or any other Minister. But I think, until there is a case made for giving powers to a Minister other than the Minister for Justice, we should not consider permitting any delegation to anybody else.
We have not asked, because we are approaching this in a reasonable way, that any case should be made for delegation to the Minister for Justice, as we realise that that is a reasonable and sensible thing to do. But, if there is to be a case put forward for consideration in regard to permitting that delegation to another Minister, then it will have to be put forward by the Minister in the Dáil. We cannot just simply accept what he says and let the Government delegate it to any Minister they wish.
May I intervene for the purpose of getting the matter on a proper basis? The Constitution lays it down in Article 13, sub-section (6):
"The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities."
Major de Valera
"Other authorities."
It is already vested in the Government. That is the question that is in doubt. This is clarifying it. I want to show where the power of remission lies now.
It was very interesting to hear the Minister say that this section proposes to amend the Constitution.
No.
That is exactly what you have said.
No. It says "conferred by law."
You are going to amend the Constitution by this section. For almost 30 years this power has been exercised by the Minister for Justice but now, for some unknown and unexplained reason, this Coalition Government want every one of the 13 Ministers to be able to remit the sentences of a court. That is what it amounts to. It is an extraordinary section in a Bill with which it has no connection whatever. If that power were sought properly, it should be in an amendment of the Ministers and Secretaries Act, and not in a Criminal Justice Bill. You are giving every Minister of the Government a power that only the Minister for Justice should have and, if right were right, only the Government of the country should have. Speaking personally, I believe that the power of remitting should not rest in the hands of any Minister, but only in the Government. The suggestion in this section is that every one of the 13 Ministers should be a law unto himself. Imagine the Minister for Agriculture having power to remit. We know the way he would exercise it in respect, say, of the millers.
Major de Valera
It is a good job the section does not give him power to recommit.
Imagine the Minister for Social Welfare——
We cannot discuss any particular Minister on this amendment.
Can we discuss the whole 13?
We cannot discuss the different qualities and qualifications of any particular Minister on this amendment.
I am not suggesting that I am going to discuss the abilities or anything else of any Minister. It may be any Minister at any time in the future. I will describe him as a Minister for Agriculture having power to remit a sentence of the court in respect of offences under the Cereal Act where millers were milling too much wheat or where manure manufacturers did not please that particular Minister. Thousands of instances could occur where the Department of Social Welfare may have ordered prosecutions in respect of offences under some of the Insurance Acts. Imagine a Minister for Social Welfare being called upon to adjudicate as to whether the court was fair in regard to a sentence on an individual who may have been charged. A Minister for Industry and Commerce may be asked to remit a sentence. I am sure each one of the Ministers will adjudicate on offences in which the prosecution was on the instruction of his particular Department. We must assume that from this section. To my mind, it is an outlandish and dangerous proposal which the House should not stand over. These are powers which should not be given into the hands of any Minister of any Government irrespective of who or what they may be.
If three years ago such a proposal were brought forward by the former Minister for Justice, Deputy Boland, I can imagine the present Taoiseach, the Minister for Finance and all the other big-wigs of the law courts making the welkin ring and condemning it bell, book and candle. I am sure Deputy Cowan, no matter what side of the House he was on, would wax eloquent——
He is waxing eloquent.
——about the dangers to the fabric of this State by putting into the hands of every Minister the power to remit punishment or otherwise as he thought fit. Does the Minister not realise the great danger there will be to any Government and the feeling there will be amongst the public that there was a danger of corruption? If the public get it into their minds that we have a corrupt Administration, great harm will be done to the whole fabric of the State and to the people of the State. The Minister knows that quite well and it should not be necessary to point it out.
I understand that this power to remit punishment rested solely in the Minister for Justice. What is wrong with that? Has it been found that the Minister is incapable of or unable to deal with all the sentences that must be remitted as a result of the operation of the courts? Does he need assistance? Have the other Ministers legal advisers to advise them on this matter? The Minister for Justice and his Department are solely concerned with the administration of justice. No other Department in this State has advisers to advise on the administration of justice. Therefore, the Minister, in fairness to the Government, to the House and to the country, should accept this amendment.
What puzzles me is that the Minister should have allowed it to occur, because a Minister is usually very jealous of his own powers. This is essentially a part of the administration of justice and I would have imagined that the Minister would have made very sure that he would keep under his own control the complete administration of justice. It is a matter about which public opinion is very sensitive because, time after time, there have been cases where there have been remissions of sentences or part of sentences and where the comment made by the public has been very unfavourable. Therefore. I think it is a matter upon which the House should insist upon keeping the responsibility where it belongs, namely, the Department of Justice.
If there is any question to be raised as to the rightness or wrongness of a remission in a particular case, or a refusal to remit, it should be placed in its own place, namely, where the administration of justice is carried out.
There is something incoherent, almost Gilbertian, in the position. If the functions of the Department of Justice can be carried out by any other Minister of State why should the functions of any other Department— say, of the Department of Industry and Commerce or of the Department of Finance—not be carried out by the Department of Justice? Surely the Department of Justice is the responsible body, having the full information before it. If a case has to be placed before the Government it is they who have the responsibility of bringing it before the Government. That should be so, unless it is that there is a complete lack of confidence in the Minister for Justice either because he does not remit when he should, or because he remits too often, and that the Government considers that these powers should be put into the hands of someone else.
I did not quite understand the Minister's reference to the Constitution. We have no quarrels at all with sub-section (2) of this section which provides that the Government may remit in whole or part. Our quarrel is with regard to sub-section (3)—as to whom the Government is going to delegate these powers. Can the Minister not foresee what could happen in practice, in case this amendment is not accepted? The only protection for the citizens of this country and of the Deputies of this House, as far as remission of penalties is concerned, is the debate on the Minister's Estimate each year. If, when the Estimate for the Department of Justice comes before the House, some members disagree with the decision to let some individual out of jail or, perhaps, with the remission of a fine, and the Minister gets up and says that it is not his function, that in this particular case the Minister for Industry and Commerce or the Minister for Agriculture or some other Minister exercised these powers, then, where are we in this House and what is the position of the public?
If this amendment is not accepted, it means that public criticism of any particular remission, under Section 21, by the Government, through a particular Minister, will be stifled and that Deputies will be completely stifled as far as criticism is concerned. The public would not know and the Deputies would not know if, for instance—as can happen under this section as it stands at present—for one or two months the Minister for Agriculture, say, is the particular Minister delegated under sub-section (3); for another two months, maybe the Minister for Industry and Commerce and for another couple. of months, maybe the Minister for Lands. Nobody will know, unless we put down a specific question in respect of each item about which we are complaining, who is the particular Minister on whom we can fix responsibility.
The ordinary procedure, since this House was established, has been that the Minister for Justice was the Minister who was answerable to the House and to the country for matters of this kind. It is vital in the public interest and in the interest of the Deputies of this House that the Minister for Justice will, for the future, shoulder the responsibility for the remission of any of the fines or for the remission of disqualification orders or for the letting out of prisoners under the prerogative of mercy. He, and only he, should be answerable to this House and to the country for that procedure.
While it is true that the Government, theoretically, under this section —and I think it will work out in practice that it will be theoretical, too —reserve these powers, naturally, the members of the Cabinet will not have time from day to day to deal with the 101 or, possibly, the 1,001 petitions that I am sure reach the Minister for Justice about everything from the remission of fines in, say, a poteen case down the country to a petition to get a consequential disqualification order removed. The Department of Justice normally gets all these petitions. The Minister for Justice is the man in touch with this matter. Furthermore, who, out of the whole Cabinet, would be the man most suitable to be answerable to the House if, for instance, the administration of justice suffered as a result of interference with sentences or fines imposed by the courts? Is it not the administration of justice that would suffer and, if it suffers, surely the Minister for Justice must face that responsibility and shoulder it fairly and squarely?
The Minister has not attempted to make a case for the non-acceptance of this amendment. From the point of view of either good sense or good law, I do not think the Minister can make a case for the delegation of these powers to anybody else. They should be retained by him. I again ask him seriously to reconsider this matter. It is a very important matter of principle and I think the Minister will very much regret it if he attempts to put through the section in its present form.
I guarantee I will regret it if I do not.
With regard to the amendment and to what has been urged by Deputy Cowan and other speakers, I think that there is a great deal to be said in favour of the proposal to name the Minister for Justice in connection with the mitigation of sentences and fines. I think he is the proper Minister of the Government to deal with matters of this kind. I appreciate that difficulties may arise with regard to certain offences, such as revenue offences and others of that kind that may, hitherto, have been dealt with through other chanels, but I find myself supporting those who have urged on the Minister the acceptance of this amendment or the acceptance of a proposal along the lines that would ensure, in respect of ordinary criminal matters and ordinary fines, that this power would be exercised solely by the Minister for Justice. It would be undesirable to have the section as vague as it is at present. I urge the Minister to endeavour to arrive at some compromise, if at all possible, which will ensure that in these matters generally, he, as Minister for Justice, will be the Minister who will deal with all these offences and consider them as the Minister of State designated in the section.
Major de Valera
Deputy O'Higgins has only emphasised what other Deputies have been saying. I should like to put it this way. Why should it be necessary to delegate power to certain Ministers? Deputy Moran has talked about consecutive delegation, but just read the sub-section:
"(3) The Government may delegate to a Minister of State any power conferred by this section and may revoke any such delegation."
Sub-section (1) states:
"Except in capital cases, the Government may commute or remit, in whole or in part, any punishment imposed by a court exercising criminal jurisdiction, subject to such conditions as they may think proper."
It seems to me that under that section it is competent for the Government to delegate classes of cases or to delegate cases simultaneously to all Ministers in the Cabinet, which is, obviously, a highly undesirable state of affairs and, again talking hypothetically, is the type of thing that would leave the road wide open for abuse.
What do you expect in regard to such a matter in a well ordered Government? If you have a well-ordered Government with collective responsibility, with the Ministers mutually trusting one another, which is the type of Government any State should have, surely, what would happen would be this, that a petition would be furnished by the persons concerned for the remission of a particular sentence or punishment, that that petition would come to the appropriate Minister, namely, the Minister for Justice, that if it concerned the Department of another Minister, such as the Minister for Agriculture or the Minister for Industry and Commerce, in any well-ordered Government what would be the first thing the Minister for Justice would do? To communicate with the other Minister in the matter and, if they were pulling together, they would be able there and then to make their decision one of harmony between them?
I will not be bound to accept the other Minister's views.
Major de Valera
I am coming to that. The Minister for Justice, however, in that position would still be able to make his view override, but the other Minister has his remedy. The other Minister can bring it to the Government. The Government is the principal in the matter. After all, the Minister to whom these powers are delegated is the agent of the Government. It is a delegation from the Government and, in any well-ordered Government—and I am sure it happens almost as a daily affair in the business of Governments—if there is a clash between the opinions of two Ministers it is resolved in the Government conference. There are day to day conflicts of interest. I am sure that the Department of Finance and probably every other Department of State finds itself in that situation on nearly any issue that arises, and very often these things are brought by the particular Minister to the Government. That has worked well heretofore in a number of Governments in this State. I see no reason why that should be changed unless it be that the weaknesses which we know have been inherent in Coalitions in other countries are beginning to creep into the present Coalition Government here and, if that is so, it is a very sad thing for this country.
Do you want me to accept the power now or not?
Major de Valera
I want the Minister for Justice to take his responsibility and to be answerable for it.
Very good. I will take it.
Major de Valera
Will you take it?
I will.
Major de Valera
You will take the amendment?
Wait a second now. I was trying to make it easier for everybody in the administration of justice by leaving the power solely in the Government and not having it tied to any one Minister if they do delegate but, in view of the absolute confidence that you have in me and in my successors as Ministers for Justice, I am prepared to accept the amendment and I do so now. I trust that, having done that, the section goes through without further amendment, even the amendment relative to the Road Traffic Act, that you will give me all the power at once and have done with it.
Major de Valera
I am glad the Minister is accepting the amendment. It is the right thing to do. I am sorry I cannot concur in the flattery which the Minister attributes to me that it is my confidence in him. Let me add that it is also with a view to having somebody who can be held responsible for the exercise of that power. The Minister appreciates the importance of that. One of the big things we were afraid of in the section as drafted was the dispersal of that responsibility, the lack of co-ordination. If the Minister accepts this amendment, I congratulate the Minister or his moral courage in so doing, in changing his mind. It is a pity that he thought fit to change it and had to rechange it again. We take it it is accepted.
This is a deliberative assembly. It is quite right for me to hear the arguments in favour of amendments.
Amendment agreed to.
Major de Valera
I move amendment No. 41:—
To add a new sub-section as follows:—
(5) This section shall not apply to a disqualification order made pursuant to Section 30 of the Road Traffic Act, 1933.
If the Minister is accepting this amendment in principle or at all it might be well to consider a number of other disqualifications which I need not enumerate. These will serve to bring out the principle of what we are dealing with. There are, for instance, the disqualifications under Section 51 of the Road Traffic Act; there are the penalties which would follow, for instance, two or three endorsements of a publican's licence. All these things would be serious and, although they are not covered in this section, the principle of them is. I wonder does the Minister understand what I mean?
I do.
Major de Valera
So many endorsements of a publican's licence mean extinction. If the Minister can remit these, he would be able to keep the licence alive. This type of thing would be involved, as well as Section 51. The point is that under Section 30 of the Road Traffic Act, 1933. the disqualification is statutory and mandatory. I do not know whether there have been actual cases of remission of that by the Minister heretofore. It seems to me on the reading of the statute that he has no power to remit, as it is a statutory penalty which is imposed. However, I am not going to commit myself to that. There is the general overriding prerogative of mercy in that matter and whether it is in the residue of that to be exercised by the President heretofore, I do not know. It is very questionable indeed as to whether such disqualifications in such cases should be the subject of remedying by the Minister and that the provisions of this section should be applied. It may be that under the general prerogative there is a power to pardon, as in the case of capital sentences, that there is a general power to remit in particular cases, but I think that at the moment the power is not in the Government or a Minister, and I do not think it should be. for this reason, that the number of cases where disqualifications of this nature arise is rather great, that they are a necessary incident to safeguarding the public in a very peculiar set of circumstances, that interference with one of them can bring about a great discrepancy in the administration of justice in individual cases. Disqualification is very often the most serious part of the punishment involved in these cases because it affects in many cases a man's ability to earn his livelihood. For these reasons I think this amendment should be considered.
In principle, we should agree on this, that it is very desirable that sentences of the court are not in any way interfered with except for very exceptional reasons indeed. That should apply particularly at the commencement of the punishment. For instance, if it is a case of imprisonment, the granting of a pardon straight away so that the accused who is sentenced does not have to undergo any imprisonment should be a matter of great exception indeed. Remission of a sentence in the course of its running, remission towards the end or the granting of some time off a sentence towards the end is not quite so serious and there is very little objection to the practices which have grown up in regard to that but, in regard to complete remission at the beginning or remission of any punishment immediately after sentence, there are very grave objections indeed. Even though there may be very hard cases, and even though judges may sometimes exercise their powers in a way which, in the light of the facts, might be regarded as harsh, still, taking general public policy into account, it is highly undesirable that these things which would come into effect at the early stage of the punishment should be interfered with.
These disqualifications are such that I would suggest that this matter should get very careful consideration from the Minister. I would like to point out that we have never been furnished with statistics or any type of information as to the number of cases involved. I would have thought that the Minister's best approach to this matter, for the purpose of getting a controlled discussion, would have been to furnish us with statistics relating to the class of cases we are dealing with. Unfortunately, the Minister has given no information as to the exercise of this prerogative during the past few years. He rather leads me to think that he has not exercised this prerogative. Therefore, it would appear that there is a case for this amendment.
I should like to say that the Minister has not remitted a disqualification under Section 30. No remission has been made at any time in regard to the minimum requirement of 12 months. at the same time, now and again a case has come to my notice and the suggestion has been made that something should be done, but there is no power to do it and there will be no such power unless it is taken in this particular section. I do not think any Minister for Justice would attempt to exercise the power that is proposed here, but still I think it should be there. The Deputy had great confidence in me a few minutes ago.
Major de Valera
I deny that accusation.
You said that the Minister should have this power and should live up to his responsibilities. Now you are going into reverse, and that is what you should not do in this House. A drunk in charge provision is one in respect of which I think no Minister could reasonably be expected to exercise a remission. If something happened in a case, where would he be? Would he not be ruined? At the same time, the general remission should be there.
On that point, I would like to mention that in other countries there is a reviewing power vested in the courts. After a period of three or six months, the applicant can go to the court and put forward evidence why his driving licence should be renewed.
Major de Valera
Is there not a lot to be said for that?
It would require an amendment of the Road Traffic Act to allow that to be done, and I do not think that should be adverted to in connection with this measure. I have asked the Minister for Local Government to consider that matter, so that I would not have to exercise that power. This matter has been examined and I suggest that Deputies should leave it to the good judgment of the Minister for Justice not to exercise that power. But when you have given him the power, do not cut the buttons. Let him go ahead.
I agree with the Minister that while this power might be very seldom exercised, it should, nevertheless, be held in reserve. A couple of years ago I came across a case which I referred to the Minister and which the Minister said he had no power to deal with. It was the case of a young man who, about 20 years ago, had his driving licence suspended for life. Now, 20 years ago he was a young fellow. In the intervening period he has grown up to be a man of responsibility. He has a family, he has done well and he is one of the most model men in the community. Clearly that was a case in which, if justice was to be done at all, the sentence depriving that man of the right to drive a mechanically propelled vehicle ought to be reviewed. It was clearly a case where a Minister for Justice, on being satisfied as to the facts, should have the right to remit the disqualification.
There is very little in the section as it stands. In sub-section (1) there is the constitutional provision—in fact, what is laid down in the Constitution. The next sub-section clarifies the matter in regard to the disqualification and the third, as amended now, gives power to the Minister when that power is delegated to him. No matter what individual may occupy the position of Minister for Justice in this State, there will be a responsibility on him to act in a judicial manner in matters of this kind, and I think to put in a proviso here that a disqualification cannot be considered by him, no matter what the facts may be, would be a very unwise thing. For that reason I am entirely opposed to Deputy Boland's amendment. I would be quite happy to leave this matter entirely to the Minister for Justice, whoever that Minister may be.
I am very concerned about the attitude that the Minister takes in regard to this amendment. If he will recall the debate on the Second Reading, he will realise that every Deputy who spoke took the same line as I did. I started the debate after the Minister's introductory speech. My point was that in the case of a person found drunk in charge of a car the Minister should not have the right to remit a disqualification. As I said in the Second Reading debate, when I was Minister for Justice I was happy to be in the position that I could not do it. For one thing, there would be pressure brought to bear on people. That was not quite the reason I had in mind, but I realised that my life would have been made intolerable and there would have been certain discriminations.
We must remember that when the Act was brought into force things were not quite as bad as they are now. There was a certain minimum penalty imposed. There was, for instance, disqualification for a year for a first offence and for three years for a second offence. When I was in the Department I was advised that I had no right to remit any disqualification. Since then it was suggested that perhaps after the minimum period laid down in the Act had expired there might be some remission. Then there was the question of whether or not there should be discretion. I am not quite sure what the position is to-day, but I suggest that the minimum period laid down in Section 30 of the 1933 Act should be maintained.
People cannot speak too strongly of this menace. As we all know, traffic is becoming worse. The cars are much faster and the roads are being made better for speeding. My opinion is that the courts are too lenient altogether. It is all very well to have pity for the person who is in trouble, who may have killed someone or maimed some person for life. But what about the dependents and relatives of the person who has been killed? I think every Deputy who spoke on the Second Reading agreed with my point that that power should not be given to the Minister, that the disqualification should be obligatory, that it should be automatic. The point was that if there was a conviction for driving while drunk or being drunk in charge of a car, whatever about the sentence or the fine the disqualification period ought to be automatic and there ought to be no letting up on it at all. I intend to press this home on the Minister, as far as my voice and my vote are concerned.
I would like to bring up a particular case, without mentioning names, and as I do not want to make two speeches it might be better to do it now instead of on the section. The Minister was not here at the time. I understand he said that no remissions of disqualifications were ever made that he knew of, disqualifications from driving, of a person convicted under Section 30 of the Road Traffic Act. That is probably right, as the Minister probably got the same advice as I got and did not think he had the power. I know myself, and the Minister knows, one particular case—there may be others— where there was a disqualification for two years, which was affirmed on appeal. The Minister knows as well as I do—it is the talk of my constituency and of all the County Longford and all the West of Ireland— where a person only some time about last April lost his licence and was disqualified for two years and he is driving round in defiance of everybody.
He is what?
Mr. Boland
He is driving round the country in defiance of the fact that he has been disqualified. Apart altogether from a breach of the law involved in that, there is a very serious aspect of it inasmuch as a person's insurance would, I think, in that case be declared void. The Minister must know the case, since if he has his ears open at all people must go and tell him. I have seen the person driving myself. It is the talk of my constituency.
I am certainly not aware of it.
Mr. Boland
Perhaps, being Minister for Justice, it has not reached his ears, but he will not have to inquire very far to find out what the particular case is. I am not going to mention names here, but it is a public scandal and what has been said, what I have been told, is that the Guards have been warned off. I am not saying he did it, but it is bad for the Minister and bad for the Government.
More mud is being thrown.
Mr. Boland
If mud is thrown, they will get plenty back. I am saying something that is the common talk in my constituency and in the West of Ireland. It is a well-known thing and I am warning the Minister that he has been held responsible for it by people commenting on the whole matter. Therefore I advise him to look into the matter and he will soon find out who it is and the person to whom I am referring. I am stating facts.
It is quite true that when the Minister introduced this Bill on the Second Reading I was prepared to subscribe to what Deputy Boland said, that drivers convicted of being drunk in charge of a car were in a completely different category. I think Deputy Boland is deliberately trying to misinterpret me. I am absolutely and thoroughly in agreement with Deputy Boland that there should be no interference with the decision of a district justice with regard to a person being drunk in charge of a car; but at the same time we are showing a complete lack of faith, initially in ourselves and in whatever Minister may occupy the seat of justice and whatever Government may succeed us, if we shear the prerogative or the power. I feel it should be there. It is not necessary that that power ever should be exercised. It may not be desirable that the power should be exercised, but it is conceivable—in one of those many hypothetical cases which Deputy de Valera can weave—that a situation could arise where it would not only be necessary but would be virtually imperative in the interest of justice that the Minister should interfere. I say quite seriously to Deputy Boland that any Minister—not alone the present Minister—would be practically bordering on primary insanity if he were in any way to make generous use of the prerogative given to him. His life would be a plague. He would have Deputy Boland, Deputy Little, Deputy Collins and everyone else coming in with grand sympathetic tales to tell him about individual cases.
Mr. Boland
He would not have me, certainly not.
That is only a little. Party rule the Deputy will get over as time goes on. All those little things wear off as we grow up. What I want to impress upon the House is that we are fundamentally doubting ourselves if we try to shear the prerogative that Deputy de Valera comes in here and insists on the Minister for Justice taking. Deputy Boland and the restopposite have insisted that there cannot be any other Minister—it must be the Minister for Justice—and the minute that is conceded in a deliberative Assembly, they want promptly to put some limitation on it. They are like the old dog who wants to bite his own tail.
I think the Minister should not accept the amendment proposed by Deputy Boland—not because Deputy Boland does not advance reasonable arguments as to why interference should not take place with a certain type of forfeiture, but on the basis that there is an implied lack of confidence in this deliberative Assembly, in whatever Governments may succeed in this country, by asking us to accept the principle of this prerogative and at the same time trying to limit it.
Deputy de Valera tried to wander on this amendment into a field that is not covered at all, but it would do ourselves maybe a little bit of good if we realised that there is a lot of craw-thumping and a lot of cheap publicity to be gained by utilising, in the way Deputy Boland did, the case about the drunk in charge of a car or the sympathetic tales of someone maimed for life, and so on. It is possible to conceive that there can be a case in which the prerogative of mercy would be a very useful weapon for a Government to have, to offset, maybe, an unintentional use, or maybe a misuse, or a possible misinterpretation by a justice. It could happen, it is conceivable. As Deputy de Valera well knows as a lawyer, many innocent men have been convicted, and we had a very remarkable case in our own courts not so very long ago where a man was sent to jail and subsequently had to be released by the Minister for Justice and a gratuity paid to him by way of an ex gratia payment, as he was put there wrongly by an unfair and unreasonable process of law.
One has to realise that a situation may arise—it has not arisen yet and may not, but we must concede in theory or in a hypothetical way that the possibility could arise—when the exercise of that prerogative might be both desirable and imperative; and because that possibility might arise at some future date, or because the possibility of that possibility is there, we should not accept this amendment. We should let the prerogative stand in the spirit in which the prerogative section was passed. The Minister himself then made it quite clear that there was no likelihood of this section being used for that purpose, particularly when he indicated that there was a distinct likelihood of the Minister for Local Government agreeing to some type of review of licence suspensions by the courts themselves, the authority that imposes the suspension. I would not shear the prerogative of its full benefit because of any particular class. The prerogative will have to be there unimpinged. The exercise of it is the responsibility of the Government of this country, no matter to what Minister it may delegate its task. They are answerable to the elected representatives of the people, and the sooner we get that much confidence in them the better for us all.
I wonder if the Minister realises the extraordinary increase that has taken place in motor traffic within the last year or two and the appalling lack of careful driving. I have heard people accustomed to driving in London traffic say they would be afraid to drive in Dublin traffic. Generally speaking, the public at the present time is very perturbed because of the increasing dangers involved in motoring. All that we are saying on this side is in the interest of the Ministry and it works out to the Minister's advantage also. We could have adopted the attitude: "Let him take these powers; he will walk himself into danger of all kinds and into all sorts of difficulties if he does not accept this amendment." Public opinion will be against him on it. Public opinion is very strong at the moment against any form of what I call "wild" driving. Above all, it is against driving by people who have taken too much intoxicating liquor, and have lost the sense and the capacity to drive with the exactitude required to avoid accidents.
Again, the Minister will place himself in the position of having a number of petitions made to him, hard cases and so on. It is for his own protection that we brought in this amendment. Deputy Seán Collins referred to the fact that we possibly on this side of the House would be making application on behalf of "hard cases" because we would be soft-hearted. But we want to protect ourselves also against such petitions being made to us. We want to be in the position of saying: "The law is there and no remission can be made." From the point of view of keeping ourselves right with public opinion we must do all we can to ensure that this amendment is carried. I would urge the Minister very strongly to accept the amendment for his own protection and for the protection of the public in general.
I am sure we all subscribe to the views of Deputy Boland, Deputy Little and the others who have sponsored this amendment as to the enormity of the crime of a man driving a dangerous weapon like a motor car when he is under the influence of drink. In such circumstances, he is certainly handling a very lethal weapon and experience has shown that great damage to person and property can be caused. But it seems to me that the Opposition Deputies are, so to speak, missing the wood for the trees because if one pushes the argument to its logical conclusion, one is driven to this? there are crimes more serious than the crime committed by a man who drives a motor car when he is drunk and it would be logical then to take away the power or discretion which is already provided for in relation to these crimes that we are all agreed are more serious than the crime committed by a man driving a motor car when he is drunk.
More serious but not more dangerous.
Surely that is a distinction without a difference.
No.
I do not quite see the point. We know that, as the law stands at the present time, murder is a crime which comes before the Government.
Murder does not happen by accident.
Major de Valera
It is outside the section.
Murder comes before the Government and the sentence of death can be removed. Murder is certainly one of the most serious crimes on the Statute Book.
Rape.
We are accepting the position that the sentence of the court can be altered in the case of murder. Deputy Boland wants us to say now, while conceding that the Government may change the sentence of the court in certain cases, under no circumstances must it interfere with the sentence of the court imposed for an offence under Section 30 of the Road Traffic Act. We all know, as Deputy S. Collins has said, that judgments of courts are fallible. Until such time as they become infallible, I think it is unreasonable for us to ask the Minister to deprive himself of this power which he gets under the section as it stands, and I do not think he should accept this amendment. I cannot understand why it is being pressed so hard by the Opposition. I think Deputy Little, Deputy Major de Valera, and the other lawyers on the Opposition benches really believe in their hearts this is an amendment that ought not to be accepted. As the Minister set such a good example to the House by changing his mind on the amendment that has just been disposed of, I think it would be a gracious gesture if those sponsoring this amendment would now bow to reason and commonsense and say: "We think we were wrong in pressing the amendment and we are now withdrawing it." I could not for a moment consider supporting the amendment.
Does the Minister claim that this section amends the law relating to offences under the Road Traffic Act? He does not give the right of remission. Is he certain this section is amending the law in that respect? Is that what he wants or does he believe he is amending the Road Traffic Act, which does not give any right of remission?
I have not amended anything. The power of remission is vested in the President and the Government is taking over that power. The power of remission covers everything. A few moments ago you went so far as to push the whole thing over on me. Now you say "Yes, but you are not to do that." If you are giving the prerogative to the Minister for Justice, then give it. I tell you the Minister does not want this power. I do not think any Minister would exercise it.
Then the Minister should not take it.
Major de Valera
This is like the Land Bill.
This Oireachtas in its wisdom and judgment decided under the Road Traffic Act, 1933, that the Government of the day or the Minister should not have the power to remit.
There is no such provision in the Road Traffic Act of 1933.
Major de Valera
Section 30 says it is mandatory.
You know perfectly well you could argue the question of prerogative very effectively.
Major de Valera
I am keeping away from prerogative; that is a different story.
The Minister objected to-night to taking upon himself the power of remitting and he wanted 12 good and just men to help him to carry that burden.
He accepted the responsibility.
But he felt he was not equal to the burden that would be imposed upon him and he wanted 12 good and just men to help him to carry the burden. As well as reluctantly taking on his broad shoulders the ordinary burdens that were there all the time, the Minister is now looking to impose on himself further burdens. He should remember that the last straw may break the camel's back, and should not now be looking for something which he had not before. This is a serious matter. There are more offences committed, I suppose, under the Road Traffic Act than probably under any other Act.
There are certainly more than were committed in the last century.
The courts are being called upon more frequently to deal with road traffic offences than with any other type of offence. Motor vehicles are becoming more numerous and accidents are becoming more numerous. We can have very serious things happening under the Road Traffic Act. For example, a person may be involved inside a year in two fatal accidents, and his licence to drive may not be taken from him even for a day. That is a dangerous position.
It could happen to you to-night.
It could happen to anyone at any time. As I have said, that could happen twice in the one year, that a person driving a motor vehicle could be involved in two fatal accidents and still could continue to drive. I want to suggest to the Minister that, as regards the administration of the Road Traffic Act in the future, he should not have any power to remit what the courts consider to be a just sentence. No Minister for Justice should have that power.
There is a minimum statutory sentence laid down under the Act.
But the Minister has the power to remit.
No.
He is now proposing to take the power to remit.
No.
I suggest to the Minister that he should give this matter more consideration than he actually has done.
He has been considering it now for a year.
I am sure that, despite the Deputy's eloquence at that time, the Minister has never thought of it since. I hope he will accept this very reasonable and well-thought-out amendment submitted by Deputy Boland.
After listening to the views of Deputy Allen on this important matter, I would like to say a word or two on it. First of all, I think that the righteousness expressed by Deputy Boland and others on this particular matter is something to be deprecated. I think that this attitude of endeavouring in this Assembly to prejudge for all time every single case that comes before the courts is something that should not be tolerated for a moment. Those of us who from time to time have to appear in court, or listen to cases being tried in court, must appreciate that each case depends completely on the facts and evidence adduced in connection with the case at hearing. Therefore, it is very wrong for Deputy Boland, or for any other Deputy, to try in this House, merely for the sake of getting political kudos——
Nonsense.
——to lay down a rule of righteousness that would bind the courts and judges in this country for all time. The nonsense that we heard from Deputy Boland would disgust any reasonable-minded Deputy, because, in the course of his remarks, he deliberately endeavoured to throw dirt in a matter which is a very serious one and an offence.
He gave the facts.
Deputy Allen has said enough. I want to say to the Minister that, if there is to be a division on this particular matter it should be a free vote. I say that in all seriousness. Whether Deputy Allen or other Deputies agree with me or not, I want to say that a Bill of this kind should be discussed in this House from no political angle. It should be discussed by those interested in the administration of the law, the criminal law, without any prefixed political notions. A discussion on this particular section is an important discussion, with important consequences.
I can see a lot in what has been said with regard to the particular offences charged under Section 30 of the Road Traffic Act. May I suggest for the benefit of Deputy Allen who, although he has, apparently, been considering this measure for the past 12 months, still finds that he has to ask the Minister for some information, that the position at present under Section 30 of the Road Traffic Act of 1933 is that on conviction on the charge set out in Section 30, apart from sentence, the district justice must impose a minimum disqualification of 12 months. He may impose a greater disqualification, but the minimum disqualification is one for 12 months. The amendment put down by the righteous Deputy from Roscommon seeks to deprive the Minister of any power to review any disqualifition, irrespective of the length of it. It is there that I part company with Deputy Boland and others who have spoken on this measure because I can see straightway that, apart from the purely criminal offence, the offence that we are discussing under Section 30 is a most serious social offence. It is an offence which has serious social consequences, which results from time to time in tragic consequences for a lot of people. It is also an offence that can be far too easily committed by a person who is not conscious of the seriousness involved.
It is very easy for a person driving a motor car in good company, to go to some hotel or public house and, without thinking, of bringing himself into a position in which he is unfit to drive a motor car. It is right for that reason that this Oireachtas should point in all solemnity to the seriousness of that offence. We can do that by giving the district justice who tries the person charged with that offence power to impose a very long sentence. We have not done that. In my opinion, sufficient powers to sentence are not given at present. We could do that either by providing greater power to sentence or, as has been done under the Road Traffic Act, by providing for a minimum automatic disqualification of a person's right to drive. I would suggest that while we might be justified to a certain extent, merely because of the social consequences which I have mentioned, in prejudging by our legislation all cases where there is conviction, that power should be exercised very carefully. I would suggest to the Minister that he should accept an amendment or a proposal which would empower him to review every disqualification of a driving licence within a minimum set out in Section 30 but that that particular power of review should not interfere with, or give him power to reduce, the minimum qualification for 12 months. I think by doing that we shall ensure that no injustice such as has been mentioned by Deputy Cowan will result in particular cases and, at the same time, we reserve our own rights as a Legislature to regard these offences as serious ones.
I move to report progress.
Progress reported, Committee to sit again to-morrow.