Léim ar aghaidh chuig an bpríomhábhar

Dáil Éireann díospóireacht -
Wednesday, 26 Jul 1961

Vol. 191 No. 11

Courts (Supplemental Provisions) Bill, 1959—Committee Stage (Resumed).

Question again proposed: "That Section 30 stand part of the Bill."

When we adjourned the debate on this section I was speaking about the age of retirement of district justices. I take it that in repealing the relevant section of the Act of 1949 it was decided to hold the conditions that then operated —that the retirement age would be 65 save in the case of district justices in the Dublin Metropolitan area and in Cork. Apart from those cases, the retiring age for justices was 65, subject to the proviso that there was a committee set up consisting of the Chief Justice, the President of the High Court and the Attorney-General. As each district justice, outside the two areas specified came to the age of 65, he had to appear before that committee and if that committee thought a justice was sufficiently vigorous and in good mental health to carry on office they reported accordingly.

District justices were required afterwards to go before the committee each year, up to the age of 70 and they were allowed to carry on on a yearly basis on provision of a medical certificate. The end of it was that subject to good health and that they were not suffering from infirmities of mind, district justices really had a tenure of office until 70. I objected to that because I thought district justices should be allowed to stay in office up to the age of 70. In fact, they have got it.

When we discussed this last the rather ancient old argument was brought out that district justices have to do a tremendous amount of travelling. That is in comparison with circuit court judges and definitely in comparison with High Court and Supreme Court judges. It was brought forward here as an argument that the amount of travelling district justices would do would wear them out more quickly. That is an argument so hoary that it should be made to hide its head. The answer to that is that in my experience I doubt if there is a single case of a district justice who failed to get brought forward from 65 to 70 with all the hard work and tramping around it is said they have to do.

It may be that a lot of this dates away back to 1924 and later amendments of the legislation. In those days, when people were being tried out and there were experimental conditions, certain things were included in the legislation which certainly might be left out on a more mature point of view. This is a point at which a more mature point of view should emerge. I should like to get some statistics on the matter. Has there been a single district justice who has been made to come up for his examination by these three laymen and who failed to get through that examination? I doubt if there has been a single case.

If one takes the turnover in district justices over the years and goes back to 1924 and the period when this provision applied, it seems to me the facts completely beat the argument about travelling. In addition, there are quite a number of other people who have to travel. Deputies do a good deal of travelling. People in different walks of life do a good deal of travelling. I do not know of any business or other avocation, where in the ordinary run of things a man is retired at 65 or 70, where that period of active life is cut down because the person has to do a fair amount of travelling. That is a completely artificial argument.

I should like to urge on this section that the age of retirement of district justices should no longer be subject to this peculiar business about being examined at the age of 65 years by this lay committee, but they should be all allowed to go on to 70. Remember we have in the legislation considerable power to investigate the mental and physical health of a district justice and to have him caused to retire if his physique is not up to the strain. But for the odd possibility of some district justice here and there failing in his powers, mental or physical, because of his age, it is absurd to keep this regulation applying to the whole lot of them—that as each reaches the age of 65 he must come up on this pilgrimage on the anniversary of his birth date to find out what three lay people think of him. I am reinforcing my argument by the fact that in my own experience I have never known one justice to fail to pass that test.

It is true, as Deputy McGilligan says, that there has never been any case of a justice who has failed to pass. But apart from the question of travelling, there is this other factor. The district court is a court expected to get through a considerable volume of work. It is completely different from the High Court and even from the circuit court, where judicial considerations and deliberations are far more important. In the district court the number of cases coming forward for trial is very considerable and the ability to despatch them quickly is important. A mental alertness and a certain degree of activity is important in the despatch of business, apart altogether from the question of travelling.

Although Deputy McGilligan is right in saying that no district justice has failed in this test, nevertheless it is important to keep this provision because it might be required at some time. The fact that it has not yet ever been necessary to avail of it and retire a district justice who fails to satisfy the committee does not argue we need not have it. It is important to keep it there.

I should like to say one thing on this section. It falls in with my general view of this kind of legislation. I understand the way Deputy McGilligan has put it and I agree with him. My objection to this form of procedure, whereby a district justice may be carried on more or less as a sort of yearly tenant of his office for five years after reaching the age of 65, is that it is wrong in principle. It is wrong that a person appointed to a judicial office should be dependent on the pleasure of the Executive for the continuance of his appointment. There is no good in the Parliamentary Secretary waving his finger at me. In effect, that is what happens.

The Minister for Justice comes into this.

He must come into it.

The three people report to the Minister for Justice.

The Minister has no option once the committee reports.

That is only a way of doing it. The plain fact is that any such district justice who reaches the age of 65, if he is concerned in retaining his position for the five years after that, has a strong temptation—I put it no further than that—to accord with the policy and the view for the time being, as he understands it, to be operated and believed in by the executive authority in the State.

It does not follow.

He certainly has.

It is the committee decides. The Minister is consulted, but the committee decides.

The result in the end is that the Minister for Justice certifies.

The Minister for Justice, in effect, becomes the authority.

No, the essential authority is the committee.

Has the Parliamentary Secretary the Act there? He is completely wrong.

The Deputy has been contradicting me all night and has then been proved wrong.

It was all right when Fine Gael had the Minister for Justice.

I am glad to see the Minister for Industry and Commerce coming into this. I am quite sure he will agree with what I am saying.

Was Deputy McGilligan not a member of the Government which brought in that Act? It is all wrong now, apparently?

The MacEoin Act says the committee may, if they so think proper, after consultation with the Minister for Justice, by warrant——

"After consultation with the Minister for Justice."

If they think proper. Their only duty is to consult the Minister.

The fact is that, after consultation with the Minister for Justice, the justices concerned may be continued. That is the reality of the situation. In my view, it is objectionable. I do not know what the number of justices now is, but certainly over the last 12 years there must have been a fair number of justices affected by this provision. If in fact no justice has been found unfit to go on to the age of 70, I think it is much wiser and better to lay down the age as being 70 rather than to have them carried on under a provision of this kind. The idea of keeping district justices on as yearly tenants after 65 is objectionable in principle and I have never heard any argument to justify it.

When this provision was first introduced it was opposed by the Fianna Fáil Party. We were against extending the age to 70.

You were right.

The situation was there and we are faced with it. The logical thing would be to go back to 65 and have no extension at all. As I said, the situation was there. We were not going to upset it just because we disagreed with it, and we have continued it. We are certainly not going to make it mandatory now to have district justices go to 70. If we were to change at all we would go back to 65 with no option.

You would not do that.

We do not want to do that. That would be a bit harsh on everybody concerned.

Whilst there has been this provision for a number of years whereunder a distinction is made as between district justices and circuit court judges, the experience over the years has been that district justices have in fact got the yearly extension and have been kept on to 70. I do not think it can be said that a district justice's life is any harder than that of a circuit court judge. I know there may be individual justices who may think they have a harder life than individual circuit court judges. If they were told they could be kept on until 70 on a permanent basis they might not, perhaps, hold that view quite so strongly. It is not a very desirable system to put a district justice who has reached the age of 65 in the rather invidious position of having to petition each year to have himself kept on a bit longer. The experience has been that none of the district justices certainly wish to retire at that age. We have decided that the retiring age for circuit court judges should be 70. In the light of experience over the years I think we would be fully justified in deciding that district justices should be kept on until they reach 70 years of age.

There is a great deal of argument about all the work a district justice has to do. It is not merely a question of travelling. He has to be alert and active. Justice in this country means the District Court. To many people in Dublin and Cork it also means the Circuit Court. It does not mean the High Court and the Supreme Court.

I was beginning to think justice meant myself. I am the personification of justice.

Insurance companies and big business can afford to go to the High Court and the Supreme Court. So can the pauperised person because he has nothing to lose. Anybody else would be sunk financially if he were unsuccessful in the High Court or the Supreme Court. Justice means the district court. In Dublin and Cork it has a relationship possibly, too, to the Circuit Court. To the ordinary person justice means the district court. Over the years not one single justice has failed to fulfil the requirements of alertness and capacity to do his work. The 1955 Act made provision whereby a justice approaching 65 could, if he satisfied the committee—the committee is constituted of the Chief Justice, the President of the High Court and the Attorney-General—that he was not suffering from any disability which would render him unfit to discharge the duties of his office efficiently, he could be kept on a yearly basis until 70. The real test is the efficient discharge of his duties. The point at issue is his age. Everything else is rolled into that—travelling up and down the country, attending to the multitudinous variety of his work and satisfactorily discharging the duties of his office. He has to appear year by year before this committee. The committee may, if they so think proper, after consultation with the Minister for Justice continue him for another year. That surely brings in the Executive. I always thought that meant that, if the Minister did not agree, the district justice would walk the plank. That Act was passed in 1949. It was an improvement on what had been there before. In the 1946 Act the rule was 65, and no more. This 65 plus year by year under the supervision of this committee until the justice reaches 70 was an advance then, but I do not regard it any longer as an advance. It was an advance then on a district justice having to leave at 65. I think we should make a further advance now.

Experience has shown that district justices can stand up to the work until they reach 70. I think we should accept 70 and make 70 the retiring age now. It is rather humiliating to have these people coming along. I had experience of interviewing a few of them. One felt the committee was rather apologetic and said more or less this was a statutory duty that had to be performed. As far as I was concerned it was perfunctorily performed. What one really was attentive to was any criticism as to how a district justice was carrying out his duties. That was the beginning and end of it. There are various ways under various statutes of bringing a justice to book if his mental or physical condition is such that he is not able to carry out the duties of his office. He can be dismissed on the ground that he is infirm, and he can have a pension attaching to him. The State is protected against district justices who become infirm remaining on in office when they are past their best. This provision adds nothing to the situation. It is a humiliation to the district justice. It operates in respect of no other court. It is a bad thing to have it operating in respect of the court that means justice to the majority of our people.

Question put and agreed to.
Question proposed: "That Section 31 stand part of the Bill."

Again there is a discrimination—it is carried forward here—with regard to pensions. There are certain limitations. A judge must serve a certain number of years before he can be allowed to retire. There are certain pension rates. I think it is still the position that the pensions of judges are calculated, according to choice, at so many fortieths or sixtieths. There is a lesser fraction as far as district justices are concerned, not merely in salary but also in pension. Supposing a person got the same fraction on a lower salary, that would still be a disadvantage. I think a district justice gets a lesser calculation as compared with judges. I think that is wrong.

Apart from anything else, I want to make it clear that even if there were a case for altering the conditions of judges or district justices this Bill is not the place to do it. That whole matter was dealt with by the Courts of Justice Act, 1953 and certain decisions were made. This measure is a Supplemental Provisions Bill designed to cover any matters which will necessarily arise out of the establishment and constitution of the courts and only these matters are dealt with in this Bill in that context. If there is some case, and I do not agree there is, for altering the conditions referred to, it is not for this Bill to do it.

That means there is no argument as to whether it is an injustice or not. It is not going to be met now?

This is the place to amend it. We are putting in a whole lot of provisions in regard to pensions of other judges and we should make the amendments here. I have not got the answer to my question. What is the differential in the yearly rate as between the district justice and the circuit judge or High Court Judge? There is a fraction of his salary that is given. There is a distinction, I understand. I do not know what it is.

There is no distinction. It is the same fraction.

Of a lesser salary?

That operates right through?

I may have another look at this on another stage. Subsection (2) of Section 31 reads:

Where a justice of the district court is removed from office on account of incapacity, he shall be deemed for the purpose of pension to have vacated his office owing to permanent infirmity.

As I said, we could get rid of a justice either for stated misbehaviour or incapacity. This means, where a person is removed because of incapacity, that to get pension rights for him we deem him to have vacated office owing to permanent infirmity. I do not see why we should consider a justice who could resign if he came to a point where he was incapable of carrying out his duties and who will not resign. We are told this is to meet a case of a person who would be so infirm that he could not resign.

Because of that we are making this provision to cover justices whether they are capable of resigning or not. If this provision is to meet special circumstances it should be limited to those circumstances and not be put in the wide terms in which it is.

This is the same as the case dealt with in connection with the other judges. We want to provide that in the case of a district justice who by the nature of his incapacity cannot resign, his position will be protected. I find it strange that on one section Deputy McGilligan is arguing for more rights and privileges for district justices and when we give them what is a reasonably generous provision by protecting their interests statutorily in the event of certain things happening, Deputy McGilligan opposes it. He should at least have some consistency in his approach.

This is where the consistency comes in. I want to have the ordinary district justice carrying out the duties of his office capably and efficiently, properly treated.

That is what we want to do.

I do not want to give any special terms to a person who should resign because of infirmity and who, whether he is able to resign or not, is deemed to have vacated his office due to permanent infirmity so that he can get his pension. I do not want that man treated well. I want to see the district justice who is doing his work well given a better salary and proper pension rights.

It is not infirmity at all. It is incapacity.

It is deemed to be infirmity.

The only reason for that is to secure him his pension rights. I do not want pension rights secured for the man who becomes infirm, knows he is infirm and will not resign. We have never had an example of the special case which is being provided for here. I do not know why this broad section should be brought in to meet a case that has never occurred. I want district justices as a whole to be better treated but not the individual.

We are writing into this statute a specific protection for district justices. Let us not forget you can have the sort of district justice about whom Deputy McGilligan has been talking who is competent and reliable in every way, but there is no knowing that he may not tomorrow or next year become the sort of district justice we have in mind here. We want to protect him if this tragedy should befall him and we want him to know that he will be protected in that event. As to altering the provision or narrowing it down in some way, I am not prepared to do that because the more you look at it the more difficult and complex it becomes. The simple thing to do is to make a broad provision so that every district justice knows where he stands. He will know that if such a tragedy befalls him the Oireachtas has protected his rights in an Act of Parliament.

And it will console all district justices to say: "Remember, the whole 40 of you, if any one of you becomes so infirm that you cannot write a letter of resignation we will protect your rights?" Such a case has never happened and is not likely to happen. No district justice will look forward to the period that when he becomes so infirm that he cannot write a letter of resignation his rights will be protected.

The Deputy is always pontificating.

It should be remembered we are not dealing with infirmity but incapacity. Incapacity is a matter of opinion. The committee may find in their opinion that a district justice is incapable of acting as such but the district justice himself may be of the opinion he is perfectly able to carry on.

I do not see why Deputy McGilligan should feel that a district justice who does not resign is doing so out of malice. It is more likely he is doing it out of a sense of duty. Very often a person who is becoming incapable is the last person to become aware of it himself. I do not feel it is fair of Mr. McGilligan to suggest that there is some protection being given to some person who out of malice is refusing to hand in his resignation.

We were told it applied only to the case of a man removed from office on account of incapacity. I pointed out that a district justice who is not capable could be called on to resign and the single point made was: "Suppose you get a district justice so bad that he cannot write a letter of resignation." That is what we were told this Section was to protect.

I was present. It was given as an illustration——

Removal from office. That is not what the committee says. "We will not let you go on beyond 65". That is not removal from office. It does not apply to that type of person. It applies only to the person removed from office.

By resolution of the House.

By resolution of the House. Misbehaviour or incapacity —they deal with a man who is fit if he is in a position to write a letter of resignation. We remove him from office because he is incapable and the only case that this was supposed to meet was the gentleman who is so infirm that he cannot write a letter of resignation. I think it is absurd to legislate for a case of that type.

Take the case of a man who is suffering from incapacity. That incapacity probably carries with it as a corollary an incapacity to decide whether he has the capacity or not.

That is what we are legislating for.

Yes, because once a man is incapable at all it is a fair presumption that he is incapable of deciding whether he can resign or not.

It goes to everyone who, the State thinks, is incapable.

We are going to give that man a pension?

I do not believe in that.

A man who is in the district courts comes to a certain age. He has done his 5 years or his 15 years. He is entitled to a pension on retirement. He can get that. Instead of taking it and going he says: "No; bring me before Dáil Éireann and Seanad Éireann and get me fired."

That is unreal.

If a man is fit to resign and a group of people appointed by the Chief Justice or a judge is appointed by the Chief Justice and that judge says that the man is incapable——

That is a different situation. They do not reappoint him. You are all wrong.

I am talking about removing.

The committee does not have anything to do with removal.

There is a committee. It is a different committee. The judges inquire and they report. That is when they get to removing him.

The Deputy is very good at mending his hand when he is found out.

The only time the committee comes into operation is between the ages 65 to 70. That is not removing from office. The age is there, 65. They are carried forward. You do not carry him forward. That is not this case.

No, but the Deputy is trying to bring it into this case.

I am not. I say that man is quite clear. He is simply not carried forward and he gets his pension rights.

Why do you mention him?

I only mention the 65 to 70 years in connection with the last section. I am talking about the judge who makes the inquiry and he reports "infirm." The district justice is told that and he knows he has certain pension rights. If he does not take those rights and puts us to the shocking embarrassment in the two Houses of the Oireachtas of possibly having to vote that he is not capable, on our having done that he is told: "You get your pension, you are deemed to have retired on account of permanent infirmity." Apart from everything else we were told that this was intended to apply to the man who is so infirm he could not write a letter of resignation.

No, we were not.

May I explain?

No, I will look it up in the records. That is what we were told. One single case.

No, it was not. I challenge the Deputy on that.

One single case. Deputy Dillon and myself said to the Parliamentary Secretary: "If you want to meet that, bring that in as a special matter."

Deputy McGilligan's fears are unrealistic in this matter. May I appeal to Deputy Dillon who took a reasonable view of the matter when we discussed it before? We are all agreed that a man who suffers from incapacity that is of such a nature that he is incapable of resigning should be dealt with. Deputy McGilligan is concerned only with the man who is fit and capable of taking a decision. He suggests that such a man, having the option of going quietly, would put himself into the embarrassing position of being removed by an Act of this Oireachtas with the whole panoply of having him removed from office for misbehaviour. He suggests that that man would deliberately subject himself to that embarrassment. No sane man will do that.

My recollection is that the Parliamentary Secretary told us that this provision was necessary for the case of a district justice who was not capable of making an act of resignation. It was designed only to meet the case of a man who was physically unable to resign. As I understand it, that is the case put by Deputy McGilligan. Deputy Booth is disposed to talk now of getting the record. If he gets the record I think he will find that Deputy McGilligan's recollection of the case is accurate. I think the Parliamentary Secretary must remember informing the House that he had that in mind.

When I was speaking before I made it clear that there could be a variety of that sort of case. There could be a whole range of incapacity, different types of incapacity. Insanity is one. There could be many others which would have that effect. That is the explanation of it.

There may have been a misunderstanding. It widens it very greatly if you extend it to a variety of incapacity.

I agree that it is wider. In order to do what we want to do, we make it wider than would seem to be absolutely necessary. It is impossible to do it by having a narrower provision. We get into trouble if we have a narrower provision. We get into complications. I have fully considered it and have tried to envisage various sorts of provisions and all of them led me into difficulties. I am quite satisfied with it because, even though it is wide, and wide enough to cover what we want, there are the other cases which it does bring in inadvertently, as it were, but that will not create any trouble. It would be unreal to envisage that it would.

This was discussed earlier on Section 19. The Parliamentary Secretary there limited his comments to the person who was so infirm that he could not send in a letter of resignation. We accepted that as a case that might have to be met and we asked the Parliamentary Secretary to think of an amendment which would limit it to that type of case.

I tried to do that.

Deputy Booth thinks the Parliamentary Secretary has other intentions and does not agree that that is the way he explained himself. I remember discussing that section and putting in an example. The same trouble has arisen in America with regard to the difference between the President and the Vice-President and they are agitated— unfortunately they had some examples of Presidents being in bad health—that a case might arise of a President being in such a state of health that he could not possibly send in his resignation. But it was completely and entirely related to that point. Now we are getting into a wider area where it is now being put forward as just a matter that any justice of the district court whom we have to remove for incapacity is deemed to be worthy of his pension. I do not agree with that.

Question put and agreed to.
Question proposed: "That Section 32 stand part of the Bill".

Will the Parliamentary Secretary tell us, are the areas referred to in the section the areas which now obtain?

They are the areas that came into operation last April?

Question put and agreed to.

I move amendment No. 58:

To add the following new subsection:—

"(4) (a) The District Court shall have jurisdiction to hear and determine any action commenced after the commencement of this Act which is founded on a creditsale agreement (within the meaning of the Hire-Purchase Acts, 1946 and 1960) where the amount of the claim does not exceed one hundred pounds.

(b) Paragraph (a) of section 53 of the Act of 1936 shall not apply to an action—

(i) in which the defendant or one of the defendants ordinarily resides or carries on any profession, business or occupation in the State, and

(ii) to which paragraph (a) of this subsection relates."

Perhaps, by agreement, amendments Nos. 81, 87 and 88, which are related, might be discussed with this amendment.

When these amendments are taken together they do for actions founded on credit sales what the Hire Purchase Act did for actions founded on hire purchase agreements, that is, they give the circuit court and the district court increased jurisdiction and provide that proceedings must be taken in the district in which the defendant ordinarily resides, and allow the High Court, on its own motion, to transfer an action pending in the High Court to the circuit court or district court when it considers it could be dealt with in either of these courts. The increased jurisdiction given in the circuit court by amendment No. 88 is £1,000 and that given in the district court by this amendment is £100.

The reason for providing that all credit sale proceedings must be taken in the local courts is that it is more convenient for defendants to have actions heard locally and, moreover, the dispersal of these actions throughout the various courts in the country will prevent the present concentration of these actions in the Dublin courts. Amendment 81 enables the High Court to transfer an action pending in the High Court which is founded on a credit sale agreement without an application being made by the defendant, that is, of its own motion. There is some doubt as to whether the High Court can do this at the moment. A similar provision was enacted for hire purchase agreements actions by Section 26 of the Hire Purchase (Amendment) Act, 1960 and the form of amendment 81 is to apply Section 26 of that Act to actions founded on credit sale agreements. It is just doing for credit sale agreements what the Hire Purchase Act has done for hire purchase agreements.

Would the Parliamentary Secretary explain what is the difference between a credit sale agreement and a hire purchase agreement?

In a credit sale agreement, I understand, the article belongs to you ab initio. The article belongs to you, becomes your property, at the start and you pay for it over a period. In the hire purchase agreement it does not become your property until the last instalment is paid. There is a distinction.

There is some difference between a credit sale agreement and an ordinary sale on credit?

If the Parliamentary Secretary or I go in to buy an overcoat and have it charged to account, that is a credit sale. That is a contract debt. A credit sale agreement is a different system whereby we buy an overcoat, which becomes our coat, but we undertake to pay one-twelfth of the price each month. There is a distinction.

There is no real distinction between hire purchase and credit sale, except a legal one. It is the same process.

It is the same process but the ownership passes in one case and does not in the other.

The property remains in the hirer until the last instalment is paid.

Will this result in a differentiation now between the procedure available to a creditor who sells his goods in the ordinary course of his business on credit and the creditor who sells his goods on a credit sale agreement? The ordinary creditor must sue me where the contract is made.

Where you reside or where the contract is made.

Where I reside or where the contract is made. If the suit is on foot of a credit sale agreement he can sue me at the creditor's address or at my address.

No; where the defendant resides.

Yes. It is to get cases out of the Dublin courts.

Amendment put and agreed to.
Section 33, as amended, put and agreed to.

I move amendment No. 59:

Before section 34, to insert the following new section:—

Where a person (in this section referred to as the accused) is charged, whether alone or jointly, before a justice of the District Court with an offence (being an offence which is within the jurisdiction of the Circuit Court) the maximum penalty for which exceeds five years penal servitude and the justice has decided to send the accused forward for trial the Attorney General or the accused shall be entitled, on application, to have the case sent forward for trial to the Central Criminal Court.

Amendment No. 59 is related to amendment No. 49.

We have already had some discussion on this matter in connection with an earlier amendment. The purpose of amendment No. 59 is to allow either of the parties in the district court in a case in respect of which the maximum penalty provided is more than five years to apply to have the case transferred to the Central Criminal Court. The House will recall that earlier we were discussing transferring cases from the circuit criminal court to the Central Criminal Court. At that stage I mentioned that we were going to provide that, at the district court level and when the case was being returned for trial, either of the parties would have an absolute right to demand that the case would be transferred to the Central Criminal Court provided the maximum penalty involved was more than five years. This is where we are giving effect to that.

I cannot recall all the discussions we had earlier. The proposed new section applies only to the case where the maximum penalty of penal servitude is in excess of five years. In those circumstances now, the accused or the Attorney General shall be entitled to have the case sent forward for trial to the Central Criminal Court. I think that is not a sound test. The test here is the length of sentence. That seems to ignore the fact that the very charge itself, irrespective of the sentence involved, may be a matter of the utmost gravity to the individual. At the moment any person sent forward for trial on an indictable offence to the circuit criminal court has the right to transfer to the Central Criminal Court.

That is a valued right, and to remove it and substitute in its place a provision whereby the particular length of penal servitude is the only test ignores the fact that to many people the mere bringing of a charge is such a serious matter that the question of the sentence likely to be imposed does not concern them unduly at the time the charge is preferred. I can only repeat what I said before. I can understand that procedure may have been irksome and have operated in an irritating way in the past, but it would be preferable to leave the provision as it is at the moment.

I think I understood the Parliamentary Secretary to say in the original provision in the Bill the right would not survive in the Attorney General but was restricted to the defendant. We argued strongly that a criminal matter, even though it was well known that certain——

That was at the circuit court level. It is at the district court level now. The case is being returned for trial. They have the right to apply for transfer to the Central Criminal Court at the discretion of the judge. We made them both equal. The Deputy may recall the argument between himself and Deputy de Valera on that point. When a case is in the circuit court, either party, the Attorney General or the accused, may apply for a transfer to the Central Criminal Court at the discretion of the judge. We cut the Attorney General down, so to speak, to the same level as the accused. This is different. We are at district court level where the case is about to be returned for trial. At that point, either party is absolutely equal and can apply for the case to be transferred to the circuit criminal court.

That is half a loaf but it is better than no bread.

Deputies will recall that on the previous section I gave a rather reluctant undertaking, without holding out much hope, that I would reconsider the other section. I am prepared to extend that qualified undertaking to this provision as well. I am interested in Deputy O'Higgins's suggestion that the length of the sentence should not be the determining factor, and if he can suggest any other, I shall consider it.

An indictable offence.

That would be very wide.

A person can be sent forward for trial by judge and jury and, leaving aside the question of the sentence as the determining matter, we could remove the qualification of the maximum penalty and make it at the return for trial stage the person accused would have the unqualified right.

Surely that is a reasonable suggestion. I think the Parliamentary Secretary will agree—it does not apply so much in the city; where a person is brought to the circuit court or the Central Criminal Court, the venue is virtually identical—that if a charge is brought against a person in rural Ireland, he is returned to the local court and there is the ordeal of the allegation being made against him and all the paraphernalia of criminal proceedings in the presence of his immediate neighbours. He may be profoundly convinced that in a fair trial he can successfully rebut the charge brought against him.

We can imagine the case in which a person will say: "I want to be tried here in the presence of my neighbours. I want them to hear the evidence, hear my defence and witness my vindication." On the other hand, the charge may be of a character the nature of which is so distressing and disgraceful that no matter how conscious he is of his innocence and the inevitability of his vindication, he recoils from the thought of having that disgraceful charge laid against him investigated in the presence of his neighbours. It is a human thing to provide that in that case the defendant has the absolute right to choose his venue.

I made the case here before, and the Parliamentary Secretary heard it with sympathy, that when a just or an unjust man falls, he is already under such appalling stress, as a result of having to be brought face to face with criminal jurisdiction, that anything we can do to mitigate his ordeal, short of frustrating the operation of the law, is a good thing. This, I think, is an existing right which we should not take away. The only argument in favour of taking it away is to tidy things up and avoid improper delay in the administration of the law. We have got to face that and recognise what I believe is well known to practitioners —that you may get an experienced old criminal who, for some reason, in the hope of protracting his remand, will unreasonably seek a change of venue. Everybody well knows that he has nothing else in mind but to delay the due course of the law. But that is a hardship we must undertake in order to provide that an inordinate burden of woe is not added to what a man has already to bear.

Assuming the new section is passed as it stands, to whom has the application to be made? The section does not mention it, but the application presumably must be made to the District Justice.

The proposed new section says:

"The Attorney-General or the accused shall be entitled, on application, to have the case sent forward for trial to the Central Criminal Court."

I take it it is intended the application should be before the district justice.

It might, perhaps, have been spelled out more clearly.

We had a discussion on an earlier section on the right of the accused to choose his venue, having been returned for trial to the circuit criminal court. It is proposed to take away that right now and substitute for it a qualified right on the date of the trial or at the venue of the trial, and an unqualified right at the time of his return for trial. I feel the test applied to a maximum penalty is unsound and that it should apply to any offence in respect of which a person is returned for trial at the time the person is returned for trial.

Not invariably, but very frequently, a person may not be professionally represented at the taking of depositions and it may well be that an accused person might understand he had a right to select a venue because he is charged with an offence, but he might very well not be aware that the particular offence with which he was charged was an offence which came within the section as it stands at the moment. If his right is to depend upon the maximum period of penal servitude to which he might be sentenced, it is an unsound test, and if we are to qualify the existing right certainly we should substitute something for it which is reasonably similar to what is there at the moment.

I have already undertaken to have another look into this whole matter. Deputy Dillon, of course, has a very persuasive way of putting a case and the trouble one finds oneself in is that one might be inclined to allow oneself to become overwhelmed by his oratory. We must realise it is important we do not lean over backwards in these matters. We must not go too far in favour of the accused. The general run is that most of these cases should be tried in the circuit court which can be relied upon to dispense justice. It is only on a rare occasion that the circumstances would be such that a transfer should rightly be made to the Central Criminal Court.

I should point out that in most of these cases somebody has been injured and the right of society must be asserted. We must be fair and just but we do not want to be just sentimental. We must decide what is to be the yardstick. We have settled on this particular one of five years' penal servitude but there is nothing final or conclusive about it and I would be prepared to consider some alternative. This idea of deciding it in relation to the length of the sentence that may be applied to an offence is not a new departure by any means. It is in an earlier Act. These are my views in relation to the points that have been raised. We are considering two aspects—the transfer of a case which is actually in the circuit court to the Central Criminal Court and the case which is in the district court.

Of course, I do not agree with the Parliamentary Secretary on this matter of sentiment. I think we must lean backwards in the case of accused persons because under our system of law the accused person is deemed to be innocent until the State has proved him guilty and the greatest mistake we could fall into is to accept the Continental practice, the Code Napoleon, where from the moment the man is accused the duty devolves on him to prove himself innocent. That would be a complete abandonment of our judicial tradition.

I am afraid I understood the Parliamentary Secretary to say he favoured the Code Napoleon. I repeat I do agree with him that we must not lean backwards. We must lean as far backwards as equilibrium will allow us for the benefit of an accused person because, remember, an accused person under our system of law is deemed to be innocent until the State has proved him guilty, and if the State should fail to prove him guilty beyond all the reasonable doubt of twelve men and women, he is entitled to go free.

I was talking about learning backwards in the mechanical administration of the law.

I do not want to catch up the Parliamentary Secretary on a phrase.

This is only on the administration of the code.

I reiterate that when we are dealing with an accused person we should proceed on the assumption that he is an innocent man and it is for that reason that I would ask for very special consideration for a person bearing a great burden of woe who, we are entitled to think, is misfortunate until he is proved guilty. But up to that time we should treat him with the consideration due to an innocent man and nothing would be more disastrous than to allow the impression to grow on our minds that the moment the police point a finger at a man he is guilty.

Surely we must resist, at at the same time, any attempt to allow the accused to choose the venue for his trial?

Why should we resist it?

Because it is too wide a scope altogether.

It is there at the moment.

That is the law at the moment.

Only to a limited extent.

It is unqualified.

It was suggested that if the accused felt a certain judge was not going to give him a fair trial, he should be allowed to go before any judge.

He is entitled at the moment, without giving any reason, to select his court, and has been for 40 years.

To what extent?

He is entitled to say: "I do not want to be tried here. I want to be tried in the Central Criminal Court."

Only where there is more than a year's penalty.

At the same time, must we not also regard the position of the other accused who are also awaiting trial in the Central Criminal Court? We must have some restriction in the number of cases going there unless we are to run the risk of having cases come before the Central Criminal Court by delay owing to pressure of business. There is always the danger of irresponsible applications for a transfer to the Central Criminal Court. I see Deputy O'Higgins's point. We do not want to restrict it unduly, but I can see some restriction on the right so that we do not find that the criminal jurisdiction of the circuit court is not being availed of and that too many cases are being referred to the Central Criminal Court to the detriment of the discharge of business in that court.

That is not so.

It is not so at the moment; but, at the same time, there is a danger it might.

It would not be in order for us, and I do not think it really was in order for Deputy Booth, to deal with the question of the present position and the right of an accused person at the moment. In the section we have already passed we have debated that and passed from it. The House has decided that no longer, when a person has been returned for trial to the circuit criminal court, has that person the unqualified right, as he has at the moment, to go to the Central Criminal Court.

We are discussing now what is proposed to take the place of the present right. Of course, I say it is at least half a loaf and is better than no bread. But certainly we should, as Deputy Dillon said, in dealing with this section, have regard to the fact that not only are we dealing with a person presumably innocent but we are also dealing with a person who at the moment has quite a valuable right in relation to the venue for his trial and we should not restrict it unduly.

I appreciate that the Parliamentary Secretary has agreed to reconsider, reflect and ponder upon not only this provision but the earlier and associated provisions we have already discussed. I should like to ask him in framing these new provisions, is it assumed, on the basis of the decision already given, that the Attorney-General no longer has the right to return for trial? Is the Bill framed on the basis that that right, in fact, does not exist? I appreciate that the matter may be sub judice, but quite obviously if we were to provide, at the return for trial stage, for an unqualified right to select a venue and the Attorney-General himself had after the taking of depositions the right to return for trial, which up to recently he certainly purported to exercise, the sanction against his return for trial to the Circuit Criminal Court was the unqualified right of the accused person to say: “I will not be tried here. I will be tried in the Central Criminal Court.” Under this Bill we have taken away that unqualified right.

I appreciate it is a difficult matter for anyone in this House to express an opinion upon. But if the Attorney-General in the future is held to have the right to return a person to a designated court and that person, having been returned on the direction of the Attorney-General, has not the unqualified right to select a venue, then there may undoubtedly be a considerable injustice done. I would suggest, if the Parliamentary Secretary is considering these provisions between this and Report, he might also consider that facet and point of view.

I shall indeed. The Deputy will realise that, in the event of the Attorney-General returning an accused person for trial to the Central Criminal Court, it would be a very real factor for the accused person to be in a position to say to the Circuit Court Judge: "If I had been returned for trial by the district justice I would have had the right, as of right, to go to the Central Criminal Court." I do not think a circuit court judge could resist that argument if it were put up to him.

It is an application, not an argument.

At the moment it is an application. I am assuming, probably wrongly, that the Attorney General in the future has the right to return an accused person for trial, the district justice having decided otherwise, and the person is returned for trial to the circuit criminal court. Under the section we have already passed the accused person, or those appearing on his behalf, has to argue to the circuit judge.

They have to apply.

Not only apply, but he has got to enforce his application by reasons.

He has got to move the judge's discretion.

He has got to persuade the judge he is not going to get a fair trial in that particular court.

Not necessarily.

That is the only basis.

I have just given the Deputy the other basis. He could argue in the circuit court.

It is the same thing. Presumably he would say: "If the district justice had decided to return me, I had the right to tell the district justice I would go to the Central Criminal Court, the reason being that I would only get a fair trial in the Central Criminal Court." That is the purpose of the whole idea of the venue. Either the Attorney General or the accused person seeks justice. In these circumstances— probably they will not arise; probably they are purely imaginary—an accused person is put in the invidious position of arguing to a judge, possibly, about to empanel a jury to try him, that in that court and before that jury he is not going to get a fair trial. I certainly would feel, if that application were made to me, and being an ordinary, average human being, my reaction would be to say: "This is amounting almost to an insult to the judge on the bench." I have little hesitation in prophesying that the vast majority of these applications will be unsuccessful and, in fact, an applicant will be held by the circuit judge to be bound to have his trial in that court and, therefore, in making the application, he will undoubtedly offend.

I think it would be a valid argument for any accused in the circuit court to say that because the offence carries a maximum penalty of over five years, he has an absolute right and he is demanding that right. I think that would be a valid argument and one that could not be refused by the circuit court judge.

I am in the unhappy position that I deplore the arrangement to which we have come and to which Deputy O'Higgins has referred, namely, leaving the matter to the discretion of the judge. Deputy O'Higgins is more experienced in the criminal courts than either the Parliamentary Secretary or myself, but I should be astonished if a defendant returned for trial to the circuit criminal court by the Attorney General, after the district justice had refused to transfer his trial, would not have the right to get up and say: "If I had been returned by the district justice, I would have had an absolute right to go to the Central Criminal Court and, without further argument, I am simply asking the court to accord to me the same privilege as I would have had if the district justice had returned me". I should be astonished if, in those circumstances, the circuit court judge would reply: "That is not a good reason". Deputy O'Higgins has a much larger experience of criminal court practice than either the Parliamentary Secretary or I.

Let us make it clear that it is as a practitioner.

I think Deputy O'Higgins's view that that would not be accepted as a valid argument to move the court's discretion——

The Deputy spoke of Deputy O'Higgins's experience in criminal matters. I just wanted to point out that it is as a practitioner.

Cela va sans dire. The Parliamentary Secretary is a little sensitive. If he endeavours to strike sparks, then he ought not to be so sensitive. However, let us pass that by. This issue goes back to the previous section; the real root of the evil is leaving it to the discretion of the court. That is the root of the trouble where a defendant gets up and says: “I wish to be transferred to the Central Criminal Court”, and the circuit court judge says: “This is contempt of court because you are now asuming I will not give you a fair trial”. I still feel the Parliamentary Secretary is creating a most astonishing situation in bringing about that position.

I cannot help feeling—I do not see why I should not say so; I have very little doubt in the matter—that the Supreme Court will sustain the President of the High Court against the outrageous proposition that the Attorney General should exercise judicial functions. I am entitled to say that, so long as that is the judgment of the court, I do not think the contingency Deputy O'Higgins raises is likely to arise.

It raises another point, too.

But, if it does arise, I think it certainly would be very wrong to create a situation in which a right which we are obviously anxious to vest in an accused person could be frustrated by an oversight, and it would be an oversight if we did not provide against the contingency to which Deputy O'Higgins refers.

I urge that that contingency should be better adverted to. Since this amendment was put in our hands, we have had the judgment of the High Court in connection with the sending forward by the Attorney General of a person for trial where the district justice had refused informations. That has been held to be a breach of the Constitution; it is an administration of criminal justice by a person who is not a judge or a body that is not a court established under the Constitution. A person is brought before a court and the machinery of the law is put in motion. Under the Constitution, nobody except a judge can deal with him after that.

The President of the High Court has ruled that an Attorney General, sitting in his office, not being a judge or a court, has no power to decide to overrule what a district justice has done and send a man forward for trial when informations have been refused. Such an action is ultra vires. They lost on that test in the Supreme Court. Surely that is a matter for consideration. Here we have a person brought before a district justice and he decides to send him forward for trial. Being a case within the jurisdiction of the circuit court, that person will be sent forward for trial in the ordinary circuit court.

Into that again comes an interfering Attorney General. He says: "I do not want you sent to the circuit court. I think you ought to go to the Central Criminal Court." That is tantamount to saying to a district justice: "I am not going to mind your refusing informations. I am going to send this man forward for trial on my own." That is a very definite step to be taken by a person who is not a judge. In the ordinary course, a person is brought before the ordinary court and preliminary investigations take place. If the matter is inside the jurisdiction of the circuit court, clearly the person must be returned to the circuit court. It is an interference for the Attorney General to come in and say that that person will not go to the circuit court but will go, rather, to the Central Criminal Court. There is a difference in the degree of gravity.

I am sure these amendments were drafted before the President of the High Court gave judgment and I think this matter ought now to be reconsidered and some attention paid to that judgment and to the basis upon which the judgment was laid.

Question put and agreed to.
Section 34 agreed to.
Question proposed: "That Section 35 stand part of the Bill."

I wonder could we discuss Sections 35 and 36 together? One is the appointment of an individual and the second is the powers of that individual.

There are amendments to Section 36

Yes. I have a number myself. Could we discuss generally Sections 35 and 36 before we go on to the amendments to Section 36?

The Deputy will do that, anyway. He will range over the whole Bill, if it suits him.

I want to get the position of the district justices clarified. I do not know where we are going. We have already accepted an amendment, amendment No. 30, and that is now embodied in this piece of legislation. It is a fact that where the Chief Justice is of opinion that the conduct of a justice of the district court has been such as to bring the administration of justice into disrepute, the Chief Justice may interview the justice privately and inform him of such opinion. The Chief Justice can call a district justice in and tell him off, so to speak.

We come then to this new official— the President of the District Court. Under Section 36, it is proposed that "Where it appears to the President of the District Court that the conduct of a justice of the District Court is prejudicial to the prompt and efficient discharge of the business of that court, he shall inquire into the matter..." That has been changed by a few amendments; the word "investigate" is used instead of "inquire." At any rate, the President of the District Court is given the right to investigate the conduct of a justice where he thinks it is prejudicial to the prompt and efficient discharge of the business of the Court. He is to consult the justice concerned.

In addition, the President of the District Court is empowered to convene meetings for the purpose of discussing matters relating to the discharge of the business of the District Court "including, in particular, such matters as uniformity in the exercise by the justices of the jurisdiction of that court and the general level of fines and other penalties." Every justice will be bound to attend such meetings unless he has a suitable excuse, such as illness, or something else. The President of the High Court can investigate and call attention to whatever the district justice is doing.

Section 21 of the Courts of Justice (District Court) Act, 1946 reads:

Whenever the Minister requests the Chief Justice to appoint a judge to—

(a) investigate the condition of health, either physical or mental, of a Justice, or

(b) to inquire into the conduct (whether in the execution of his office or otherwise) of a Justice, either generally or on a particular occasion ....

It goes on to say that certain provisions shall have effect, that the Judge appointed to conduct an investigation may do so in such manner as he thinks proper and that upon the conclusion of the investigation he shall report the result to the Minister, the reason for that being that justices were given the same tenure as the judges in the Supreme Court and the High Court which meant they were consolidated in their position save for stated misbehaviour or incapacity. It was always understood that the reason why the Chief Justice appointed a judge to inquire into such matters and to report to the Minister was to enable the Minister to have evidence so that he could come before the Dáil and the Seanad with a resolution about misbehaviour and incapacity.

In addition to all that there is the Courts of Justice Act of 1936 under which there was a very good procedure set up by the establishment of various committees of the courts. These committees were given certain powers; in fact they had certain duties imposed upon them to do certain things and to send in certain reports. Under Section 71 there is established the District Courts Rules Committee. The personnel of that committee was to consist of two ex-officio members and seven nominated members. Subsection (3) reads:

The ex-officio members of the said committee shall be—

(a) that one of the justices of the District Court for the time being assigned to the district which comprises or includes the county borough of Dublin ....

(b) the District Courts clerk for the district ....

Subsection (4) provides that four of the nominated members of the said committee shall be justices of the district court nominated by the Minister for Justice, one other of the said nominated members is to be a practising barrister and two others are to be solicitors nominated by the Council of the Incorporated Law Society of Ireland. That committee was established as the rule making authority for the district court. Section 75 provides:

(1) The secretary of each of the several committees established by this Part of this Act shall summon a meeting of such committee once at least in every year on such day as may be fixed by the chairman of such committee, for the purpose of the general consideration by such committee of the practice, procedure and administration of the court in relation to which such committee is constituted and the law affecting or administered by such court...

(2) as soon as conveniently may be after every meeting of any such committee in pursuance of this section, such committee shall report to the Minister whether any and if so what amendments or alterations should, in the opinion of such committee, be made in the practice, procedure, or administration of the court in relation to which such committee is constituted or in the law affecting or administered by such court with a view to the improvement of the administration of justice...

Is it intended to continue to have four groups of people looking in on the district court?

The Chief Justice to admonish it, the President of the District Court to do a variety of things, establish an inquiry to find out whether a person may be arraigned for stated misbehaviour, and deal with all these other matters mentioned in section 36, in regard to the prompt and efficient discharge of the business of the court, uniformity in the exercise by the justices of their jurisdiction and the general level of fines and other penalties.

I would imagine these are all the things that could come in the ordinary course before the District Court Rules Committee. There is provision made by the Act of 1936 for this and although these duties were laid by statute on the different committees these committees did not bother their heads about the Act. I asked the Minister for Justice for the first time in 1958, I think it was, again in 1959 and again last year how many reports had been received from any of these committees and the answer was that there were practically none. There has been no attempt by the committees to obey the statute. They could easily have sent in a report that they did not think any amendments were required but they did not even bother to say that.

The Chief Justice, of course, is the member of the Superior Courts Committee—I think he is the chairman of it. It is the duty of the chairman to call at least one meeting every year. I do not know whether they ever met but certainly the meetings they had did not fructify in any reports because the replies I received to questions I put down indicate there were no suggestions made to the Minister for Justice in regard to an improvement in the law. That is a pity because the procedure that was laid down in the Act of 1936 was pretty good but it has been brought to naught. Either these committees have not met or, if they have met, they have not reported. At least the questions I have put down have brought me that information.

I had objected at the start to what amendment 30 became a substitute for. The President of the High Court was to interview a justice privately. I was not here when amendment 30 was dealt with. I do not know what argument was used but I would like to have asked this question: How is the Chief Justice to get his opinion formed about the conduct of a justice of the district court, that it is such as to bring the court into disrepute? I presume that was brought before the House. I am still unaware of the machinery. Is it solicitors who will report about the conduct of district justices or is it clients? At any rate in some way or other the Chief Justice is to be put in the position of forming an opinion that the conduct of a justice is such as to bring the court into disrepute.

Progress reported; Committee to sit again.