Criminal Procedure Bill, 1965: Report and Final Stages.
I move amendment No. 1:
In page 3, line 18, to delete "This Act" and substitute "Section 3 and Parts II and III".
As it stands, this section provides that the Bill shall come into operation on a date to be fixed by ministerial order. This is to enable revised rules of court dealing with the new procedure to be drawn up and brought into operation at the same time as the Bill. However, there is no need to hold up the operation of Part IV, which provides for some miscellaneous amendments of existing law not related to the procedural matters dealt with in the other Parts. The effect of this amendment is to bring Part IV into operation as soon as the Bill becomes law.
Amendment agreed to.
Amendment No. 2 and amendment No. 9 can be taken together.
I move amendment No. 2:
In page 4, line 18, to delete "whose statement of evidence" and substitute "a statement of whose evidence".
These are drafting amendments to clear up a point raised by Deputy O'Higgins on Committee Stage. The amendments make it clear that a statement of evidence will not be drawn up by the witness himself. It will, in fact, be drawn up by the State Solicitor from the Garda records of statements made to them.
Amendment No. 3 must be recommitted.
Bill recommitted in respect of amendment No. 3.
Amendment No. 3 and amendment No. 20 will go together.
I move amendment No. 3:
In page 4, to delete lines 20 and 21.
This is consequential on amendment No. 20 which proposes to add a new section to Part III dealing with the power to remand. The purpose of the proposed new section is to spell out the general power of the District Court to remand an accused person from time to time where the circumstances so warrant. It will give a statutory basis to the practice of putting an accused back for sentence. The district courts have maintained this practice where circumstances have justified it from time to time. This puts it on a statutory basis.
Amendment agreed to.
Amendment reported and agreed to.
I move amendment No. 4:
In page 4, line 22, after "exhibits" to insert ", any deposition or statement taken in accordance with this section."
This amendment arises out of our Committee Stage discussion. The point was raised by Deputy O'Higgins. The purpose of the amendment is to ensure that, before coming to his decision on the preliminary examination, the justice will consider any deposition which may be taken under subsection (2), and any statement which the accused person may make under subsection (3) (a), in addition to the documents and exhibits which will have been furnished to him before the commencement of the examination.
This clears up that point.
Amendment agreed to.
Amendment No. 15 is consequential on amendment No. 5.
I move amendment No. 5:
In page 4, to delete lines 25 to 29, and substitute the following:
"(2) The prosecutor and the accused shall each be entitled to give evidence on sworn deposition and also to require the attendance before the justice of any person, whether included in the supplied list of witnesses or not, and to examine him on sworn deposition.
(3) A witness under subsection (2) may be cross-examined and reexamined on his evidence. His deposition shall be taken down in writing, read over to him and signed by him and by the justice."
It has been represented to me since Committee Stage by people outside the House that it should be made clear that the accused person should be entitled to give evidence himself on sworn deposition at the preliminary examination, if he so wishes. That is the reason for the amendment to subsection (2). The amendment also gives a similar right to the prosecutor—a private prosecutor, for instance, might wish to avail himself of it. The new subsection (3) is designed to meet another point which has been made to me, that is, that to facilitate proofs at the trial, it should be provided that the deposition should be in writing, read over to the witness, and signed by him and by the justice.
This is reverting to some extent to what we have at the moment in relation to this matter.
It is, yes. It is safer from the point of view of the defendant to have it spelled out.
Amendment agreed to.
I move amendment No. 6:
In page 4, line 34, to insert ", if he is sent forward for trial," after "and".
This is a drafting amendment the purpose of which is to ensure that the justice does not come to a decision as to whether or not to send the accused for trial until after he has heard any statement which the accused may wish to make in answer to the charge. It makes it quite clear that the justice cannot come to any decision at the preliminary examination on whether or not to send the accused forward for trial until he has heard any statement which the accused may wish to make in his defence or otherwise.
Amendment agreed to.
I move amendment No. 7:
In page 4, to delete lines 41 and 42.
The words are being deleted as unnecessary.
May I ask the Minister a question? This is Report Stage, and it is difficult to keep track of the amendments. I apologise if I seem to go back. The question is this. The Minister has presented to the House, and the House has accepted, an amendment which requires a District Justice not to send a defendant forward until he has heard any statement the defendant wants to make. Is there a corresponding obligation on the District Justice to inform the defendant of his right to make a statement?
Yes, it is in the section.
If it is in it, that is all right. The District Justice must say: "Have you anything to say? You have a right to make a statement."
Section 7 (3) provides that the justice shall ask the accused if he has anything to say, and that the justice shall caution the accused.
There is one small point on amendment No. 7 which deletes lines 41 and 42. I suppose there is no danger that by deleting this we are running the risk that a statement which was not signed by the justice would be allowed in. At first sight I am inclined to agree with the Minister and he is probably right. I take it that the position is that if it is shown at the trial that the justice did not sign the statement it will not be allowed in. I imagine that is the position and consequently the words are unnecessary but having put them in there seems to be some suggestion of departing from that situation by taking them out. The Minister is aware, for example, that in the issue of some types of summonses in the District Court it is the established and recognised practice and procedure, not that the court clerk will sign all the individual summonses but that a rubber stamp will be used. I do not want to see a situation arising whereby statements of this kind can be simply rubber-stamped with the District Justice's stamp.
Take rate summonses as another example. They are issued through the District Court. I should imagine it has been clarified in regulations that it is sufficient that they be stamped with the stamp of the court clerk, with a name stamp. In fact, that is the way in which they are issued. It could be that there is something in the regulations which would, even in a case like this, authorise the use of the name stamp. I do not think there is any real danger in this but——
This was originally in the 1851 Act at a time when there was not the same organised system of justice that we have today. What is in the provision is really a repetition of the existing situation and it might be as well to leave it be in case the provision is wrongly interpreted.
It is probably unnecessary, but it does not do any harm to leave it.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 5, line 10, to delete "does not object" and substitute "consents".
Amendments Nos. 8, 13 and 19 may be taken together.
In their present forms sections 8 (4) and 13 (2) (a) allow of an offence being dealt with summarily, where the Attorney General does not object to the adoption of this course. It has been suggested to me that this could give rise to difficulties in the case of a private prosecution, as the Attorney General would not be represented and might not even be aware of the prosecution. The absence of objection by him to summary disposal in such circumstances would have no meaning. I propose, therefore, amendments Nos. 8 and 13 to provide that the actual consent of the Attorney General will be required to summary disposal under sections 8 (4) and 13 (2) (a). The new section proposed in amendment No. 19 provides that such consent may be given in writing over the signature of the Attorney General or orally by his representative in court.
I agree with amendment No. 8, but what about the other two?
Nos. 13 and 19 are really on the same point, that his consent is required.
I just want to be clear on the manner of the consent.
It is "consent" rather than "does not object", positive rather than negative.
Amendment agreed to.
I move amendment No. 9:
In page 5, line 19, to delete "whose statement of evidence" and substitute "a statement of whose evidence".
Amendment agreed to.
I move amendment No. 10:
In page 5, line 27, after "Attorney General" to insert "or an accused person".
Amendments 10 and 11 may be taken together.
The purpose of these two amendments is to put the Attorney General and the accused on an equal footing in regard to the right to have an unwilling witness bound over to attend the trial, under section 10(3), or to have a witness summons issued out of the trial court under section 10 (1).
I think this was raised on the Committee Stage. I agree with it.
Yes, it was raised there.
Amendment agreed to.
I move amendment No. 11:
In page 5, line 37, before "an accused person" to insert "the Attorney General or".
Amendment agreed to.
Bill recommitted in respect of amendment No. 12.
I move amendment No. 12:
In page 6, between lines 15 and 16, to add to section 12 a new subsection as follows:
"( ) A child or young person (within the meaning of the Children Acts, 1908 to 1957) shall not be permitted to exercise a waiver under this section except with the consent of the parent or guardian having the actual possession and control of him."
The purpose of this amendment is to provide a safeguard for a young person accused of an indictable offence against waiving his right to a preliminary examination in circumstances where it might not be in his own best interests to do so. It requires that he must first obtain the consent of his parent or guardian before he can exercise the right of waiver.
Could the Minister say at what age "young person" ends?
It is 17 at the moment. Within the meaning of the Children's Act, 17 is the upper age limit.
It is hardly likely to give rise to difficulties where the parent or guardian is in possession and control. What about the situation where the parent or guardian may be abroad? I suppose it is a difficulty that will iron itself out.
The drafting is consistent with what is contained in the Children Acts.
Amendment agreed to.
Amendment reported and agreed to.
I move amendment No. 13:
In page 6, line 26, to delete "if the Attorney General does not object" and substitute "with the consent of the Attorney General".
Amendment agreed to.
Bill recommitted in respect of Amendment No. 14.
I move amendment No. 14:
In page 6, between lines 52 and 53, to add to section 13 a new subsection as follows:
"(5) This section shall not affect the jurisdiction of the Court under section 2 of the Criminal Justice Act, 1951."
This subsection is being added to section 13 to make it clear that the section does not in any way affect the power of the District Court, under section 2 of the Criminal Justice Act, 1951, to deal summarily with a minor indictable offence where the accused, on being informed of his right to trial by jury, does not object to summary trial.
Amendment agreed to.
Amendment reported and agreed to.
I move amendment No. 15:
In page 7, line 5, to add to subsection (2) "It shall be taken down in writing, read over to the deponent and signed by him and by the justice."
Amendment agreed to.
I move amendment No. 16:
In page 7, line 25, before "the accused" to insert "in the case of a deponent not called by the accused."
The purpose of this amendment is to ensure that where a deposition has been taken from a witness for the defence it may be admitted in evidence without requiring that the accused person, or his legal representative, had an opportunity of cross-examining him. Cross-examination implies that the witness is hostile to the party doing the cross-examination and there can be no question of an accused person being required to treat his own witness as hostile. This could arise in the case of medical evidence. It provides for the situation where medical evidence has been taken, say, from a foreign doctor who may have been residing here. It happens quite a lot in accident cases. The witness may have departed to a foreign country and the purpose of the amendment is to ensure that such evidence can be taken at the summary stage and admitted in evidence at a later stage in the actual trial. We do not want to have it that the accused or his legal representative did not have an opportunity of cross-examining the witness. As the section stands, he has that opportunity.
That is what I want to make clear: the right of the accused or of his solicitor, or counsel, with regard to State witnesses remains.
He is entitled to have an opportunity of cross-examining before the statement will be admitted, or he will have had that opportunity.
That is the whole principle involved in the section but we are ensuring merely that this obligation is not there in respect of the accused person's own witnesses. Of course, he would not be cross-examining his own witnesses obviously.
It is not quite as simple as that. I agree that ordinarily there is no question of cross-examining, but there could be a question of re-examining a witness. The Minister, from his years in practice, is aware that very often a short reexamination can be vital in relation to the evidence of a witness.
Yes. I shall have a look at it again between now and the Committee Stage in the Seanad.
Amendment agreed to.
Amendments Nos. 17 and 18 can be discussed together.
I move amendment No. 17:
In page 8, line 26, to delete "or for an attempt to commit such an offence" and substitute:
"or for an offence specified therein at reference number 8 or 15 which involves property the value of which, in the opinion of the Court, exceeds two hundred pounds or for an attempt to commit any of the aforesaid offences".
On Committee Stage I accepted an amendment to subsection (2) of section 19, the effect of which was to empower a justice to treat any offence under the Larceny Acts of 1861 and 1916 as a minor offence fit to be tried summarily under section 2 of the Criminal Justice Act, 1951. However, on further consideration of the matter, I feel there should be some limit to this power. There might be serious cases involving large sums of money which the Attorney General might consider ought to be tried before a jury.
Under this amendment, therefore, a District Justice will be obliged to obtain the consent of the Attorney General before he can deal summarily with an offence under the Larceny Acts involving property of a value of more than £200. At present the District Court has jurisdiction up to £50 and we are here extending that jurisdiction under the Larceny Acts of 1861 and 1916 up to £200. In any cases above that figure the District Justice must have the consent of the Attorney General before he deals summarily with the offence.
This was the amendment proposed by Deputy Seán Dunne.
Yes. Deputy Dunne asked: Why not eliminate it altogether? I accepted that but, at the same time, there might be serious cases in which it might not be proper and we are, therefore, extending the jurisdiction from £50 to £200. In cases over that figure the consent of the Attorney General must be obtained before the District Justice tries a case summarily.
Amendment agreed to.
I move amendment No. 18:
In page 8, to delete lines 32 to 35 and substitute:
"(a) by the deletion of the matter set out at reference numbers 8, 14 and 15 and the insertion of—
`8. An offence under the Larceny Act, 1861.
14. An offence under section 25, 26, 27 or 28 of the Larceny Act, 1916.
15. An offence under any provision (other than sections 25, 26, 27 and 28) of the Larceny Act, 1916' ".
This is purely a drafting amendment. Instead of amending the First Schedule to the Criminal Justice Act, 1951, merely by reference, the relevant parts of that Schedule are now being written out in full in their revised form.
The substance is not altered.
The substance is not altered, no.
Amendment agreed to.
Bill recommitted in respect of amendments Nos. 19 and 20.
I move amendment No. 19:
In pages 8, between lines 45 and 46, to insert a new section as follows:
"The consent of the Attorney General under any provision of this Part may be conveyed in writing signed by the Attorney General or orally by a person prosecuting at the suit of the Attorney General or appearing on his behalf."
This amendment is consequential on amendments Nos. 8 and 13.
Amendment agreed to.
I move amendment No. 20:
In page 8, between lines 47 and 48, to insert a new section as follows:
"Where an accused person is before the District Court in connection with an offence the Court may, subject to the provisions of this Part, remand the accused from time to time as occasion requires."
This amendment was taken with amendment No. 3. It deals with the power to remand. Amendment No. 3 was consequential on amendment No. 20 and we discussed the latter with the former.
Amendment agreed to.
Amendments reported and agreed to.
I move amendment No. 21:
In page 8, lines 48 and 49, to delete "charged with an offence".
Amendments Nos. 21 and 22 are purely drafting amendments consequential on amendment No. 20.
Amendment agreed to.
I move amendment No. 22:
In page 9, lines 7 and 8, to delete "the accused" and substitute "a person".
Amendment agreed to.
I move amendment No. 23:
In page 10, between lines 23 and 24, to insert a new subsection as follows:
"( ) Where an applicant for bail is already on bail in connection with another offence, information regarding such existing bail may be given by the prosecutor."
Section 26, at subsection (5), already provides for the giving of evidence of previous convictions on an application for bail, where these previous convictions were for offences committed while on bail.
The amendment I now propose extends this principle to cover the case of a person who commits an offence while he is on bail in respect of another offence. It proposes that evidence of the existing bail may be given by the prosecutor in connection with any bail application the offender may make in relation to the second offence. It is only right that the court should be aware of the existing bail situation in these circumstances.
I am wondering does this amendment go sufficiently far? It says "information regarding such existing bail may be given...". That might well be interpreted as information with regard to the amount of the bail, the names of the bailsmen and so on.
It is implicit that the information will be information in relation to the offence on which the existing bail was allowed.
There are two things involved here. As I understand the Minister, the purpose of the new subsection is to enable the court to be given information in respect of a person who is out on bail and who commits an offence while he is on bail. I have my doubts as to whether this section would permit of that interpretation by the court. The court might decide that it does not permit that information to be given and I think the court might probably be reluctant to hear that kind of information because it would be information obviously prejudicial to the accused. It would be a different situation if the person, while on bail, committed the offences of which he had been convicted, in which event it would be quite proper that the court should have the information. If, however, a person is simply charged with another offence while he is on bail, when the case comes on for hearing it may ultimately be established that he is not guilty but, in the meanwhile, he will have been prejudiced on the bail application to the court.
I see the Deputy's point. If the Deputy wishes, I will have another look at this between now and Committee Stage in the Seanad.
The Deputy wants to have it wider.
No. I think it is proper that, where a person has committed an offence and has been convicted of that offence, the court should know about it. It is a matter which would touch on the bail. But I do not think it is right that the court should be told that a person has been charged with another offence, of which he has not been convicted. In that event it is going to prejudice the mind of the court in relation to bail and ultimately the man might be found not guilty. Meanwhile, damage has been done as regards his bail.
The decision to grant bail has been made by the court. If in the course of being out on bail the accused commits another offence it is relevant in the public interest——
If the offence is proved, certainly. A person may be charged with an offence without being guilty. The other point was the one Deputy Dillon reminded me of. I am not certain, in any event, that the wording in that would be accepted by a court as enabling them to receive any information other than information regarding the actual bail, that is the amount of the bail, and the names of the bailsmen. But I am quite happy if the Minister will look into it.
I will look into it between now and Committee Stage in the Seanad.
Amendment agreed to.
Bill recommitted in respect of amendment No. 24:
In page 12, between lines 40 and 41, to insert a new section as follows:
"Section 52 of the Extradition Act, 1965, is hereby amended by the insertion of the following subsection:
'(2A) A recognisance may be taken from a person under this section by the member of the Garda Síochána into whose custody he has been committed.' "
This amendment, along with amendment No. 25, accounts for the Motion I moved before Report Stage. These amendments are designed to meet minor matters which have arisen in the practical operation of Part III of the Extradition Act, 1965, which deals with the backing in this country of warrants of arrest issued by the judicial authorities in Britain and Northern Ireland.
Under amendment No. 24, where a person is committed to the custody of a member of the Garda Síochána and the justice or peace commissioner remanding him has consented to his being bailed and has fixed the amount of the recognisance, it will be possible for the Garda concerned to take a recognisance from him in the amount fixed and release him on bail on condition that he surrenders himself at the specified time.
This is a fairly routine procedure which, as the Extradition Act now stands, would not be possible. Its absence has caused some administrative difficulty. The amendment will allow this procedure to continue to operate as it has operated over the years in other respects.
Amendment No. 25 declares that the term "imprisonment," as used in Part III of the Extradition Act, includes any form of lawful custody of the person concerned. It will ensure, for instance, that mentally ill offenders who escape from mental hospitals in Britain while undergoing special treatment will be recoverable from this country. The position is that such people undergoing special treatment for their benefit in institutions in Britain may not be extradictable under the Act as it now stands by reason of the fact that the term "imprisonment" might be interpreted in a narrow sense. But if it is defined as "any form of lawful custody of the person concerned," as proposed in amendment No. 25—the example I have given is the one that comes up most, that of a person undergoing treatment in an institution in Britain—such a person on foot of a criminal offence——
That is what I wanted to make clear.
Such a person confined in a mental institution on foot of a criminal offence, will clearly be extradictable. As the Act stands, on the narrow interpretation of the term "imprisonment", it might be held that that did not constitute imprisonment, although it is arguable that it does constitute imprisonment.
Is it possible to use the word "enjailment"?
That would probably be more appropriate in this day and age.
I am rather anxious about this. The operative words are "include references to any form of lawful custody of the person affected." The words "lawful custody", are they interpreted under our law or the law of the country whence he has come?
I think the words "lawful custody" would have a common interpretation as between Britain and ourselves.
As between Britain and ourselves, but certainly not between Ghana and ourselves. There you are. There is an old gentleman prancing about London at present, who has been habeas corpused out on bail, and the Ghana Government are trying to get at him. If he was not in Ghana, in lawful custody until such time as they slaughtered him, and if he managed to get here, was he in lawful custody? Does “lawful custody” mean in accordance with our law?
In regard to the second question, I think the Minister has given us the assurance necessary by saying "as a consequence of criminal acts." There are unfortunates who commit themselves to some of these mental institutions, both here and in Great Britain, who commit themselves into lawful custody as dypsomaniacs to get dried out. I have great sympathy with the fellow who commits himself voluntarily for three months to get dried out but who at the end of six weeks hops on the mail boat and comes here, saying "I have had enough. I am not going back to be dried out any more." Is that "lawful custody"? He can be in lawful custody if he voluntarily commits himself. Can you extradite him if you insert this subsection?
I will answer the last question first. "Lawful custody" would be interpreted by the courts here and in Britain as meaning custody on foot of a court order or conviction.
A conviction, that is all right.
On the second point, I can assure the Deputy in regard to any gentleman from a country other than Britain or Northern Ireland that that difficulty will not arise. We are confining this to Part III of the Act, which deals with extradition arrangements between this country and Britain and Northern Ireland only.
Would the Minister consider in the Seanad just spelling this out a bit more clearly by saying "any form of lawful custody following conviction for an offence"?
Yes, I will consider that.
I think it would meet the point——
The point raised by Deputy Dillon as to the interpretation of "lawful custody".
Will the Minister consider that?
Amendment agreed to.
Amendment reported and agreed to.
Bill recommitted in respect of amendment No.25.
In page 12, between lines 40 and 41, to insert a new section as follows:
"In order to remove doubts it is hereby declared that references to imprisonment in Part III of the Extradition Act, 1965, whether in relation to the State or to any other place, include references to any form of lawful custody of the person affected."
Amendment agreed to.
Amendment reported and agreed to.
Bill, as amended, received for final consideration and passed.
