In connection with this Bill, the situation has materially changed since it was first mooted, but I think the Minister in his concluding speech will want to tell us how it came that he thought it right to submit the Bill in its original form in view of the radical changes in respect of sections 31 and 32 which he now informs us it is his intention to move on the Committee Stage. I want to make it clear that until we have had an opportunity of seeing these amendments it is not possible to give a fully considered judgment of the merits of that part of the Bill, and I want any observations I have to make in this regard to be heard in the light of that reservation.
I think the Minister has been persuaded to fall into an error that other Ministers have fallen into, that is, he has sought to consolidate and legislate at the same time. The result of that is that he has carried into this Bill a whole series of apparent anomalies that would not have been there if he had consolidated first, eliminated all the old Statutes and came before the House and said: "I am coming here with a consolidated Bill simply to clear out of the way a whole series of Statutes that have no longer any relevance to the conditions in which we live."
There is the elimination of the distinction between "misdemeanour" and "felony" which has involved a number of consequential amendments in the body of this Bill. These consequential amendments to the Bill have affected powers of arrest, have affected various intrusions on the private person by the police force of the country, which at first reading, unless the Schedule of the Bill was very carefully considered, appear to be wide extensions of the existing law; but probably when one has one's mind directed to the fact that in the process of eliminating the old Statutes certain consequential provisions had to be made, some of the new departures set out in the body of the Bill may not be as alarming as at first glance they seem to be.
If the Minister had introduced the First, Second and other Schedules to this Bill with the appropriate accompanying consolidating legislation, we would have asked him why he proposed to repeal Magna Carta. Doubtless the Minister will be in a position to give us some technical reason for doing so, but in every sovereign democracy derived from the British system in the world today, they fall back in defence of their individual liberty on the fundamental Statute, Magna Carta, and when the simplest creature in the land invokes his right under Magna Carta, most of us know what he is talking about. He is claiming in effect that there should be interposed between him and the executive government an incorruptible and independent judiciary.
Therefore, I see a proviso in an obscure Schedule of the Criminal Justice Bill repealing Magna Carta in the Irish Republic as something that the Minister, being himself a trained lawyer, might with propriety have dwelt upon when he was introducing this Bill. I do not think he will quarrel with any of his colleagues in this House, professional or unprofessional, if they wonder why it is thought expedient to avail of this occasion to strike Magna Carta off the Statute Book of Ireland. It cannot be done for the promotion of the Irish language because Magna Carta is described in the unobjectionable universal language of Holy Mother Church.
I am not sure that when the Minister comes to consider the position after this Second Stage debate, he might not think it well to withdraw this Criminal Justice Bill and adopt the legislative procedure which I have suggested: first, a Bill containing a repeal with the necessary amendments in order to fill up the loopholes that amendments created, accompanied by a certificate that his first Criminal Justice Bill does no more than meet the consequential amendments made necessary by the elimination of the archaic Statutes from Ireland's existing legal code; then a second Criminal Justice Bill in which the Minister would say to the House "I have now come before the House with certain new proposals which must be regarded by the House as amendments of the law". If that course had been adopted in the first instance we would never have seen sections 31 and 32, or I hope we would not have seen those sections.
The first thing I want to say in regard to the substance of the other parts of the Bill relates to the proposal to abolish majority jury decisions in criminal cases. I recognise, and no doubt the Minister recognises, this can be a hard rule from both sides. It is very important that the House should now know the history of this since nobody seems to know its history although it is very recent history in our own country. We had verdicts of jury trials in this country for centuries. Then in 1928 or 1929 the Free State was passing through a period of great civil disturbance. The civic guards were being murdered and people were being attacked. It became manifest that juries were being intimidated. About 1928 or 1929 the Cumann na nGaedheal Government of that day, largely under the influence of the late Mr. Kevin O'Higgins who had a passion for the re-establishment of civil law—no, it was after Mr. O'Higgins's time—he had been murdered in 1929—it was Mr. James Fitzgerald Kenny—there was the passion then to restore that rule of civil law, so there was a profound reluctance to depart from the jury system —thought up the very concept the Minister for Justice uses to justify the inclusion of the majority rule in the country. They thought in the kind of situation then obtaining that they could procure for jurors the kind of anonymity which would protect them from attack. This substitution of the majority decision for the unanimous system there just enabled the jury system to function even in the exceptional conditions that obtained. But they found it did not work.
There was then a proposal made that there should be substituted for juries a panel of judges. When that proposal was mentioned the then Attorney General, Mr. J.A. Costello, was advised by members of the judiciary that they would not act. With profound reluctance the Administration of that day re-activated the military courts which it was necessary to use for the purpose of bringing certain types of criminals to justice.
Now, we know in London recently at Westminster the principle of majority verdicts of juries has been accepted in criminal cases. There they are dealing with entirely different and exceptional circumstances. These are very fluid times. People are only too ready to forget fundamental things. Britain has been troubled with a high degree of gang warfare. It was discovered in two or three criminal cases conducted in the Old Bailey in London involving immense sums of money, which one used to describe as grand larcenies, that part of the spoils had been used to corrupt individual jurors.
The British House of Commons took the view that no matter how carefully you shelter a jury if the corruption of one juror could secure a disagreement then the danger of allowing that to happen, in view of the gigantic size of the sums involved in the larcenies that have been recently perpetrated, is also too great permanently to endure. There was also the element of intimidation of individual jurors, which was not unknown in London. Men have had their faces slashed or their families attacked or threatened. To meet that situation it was decided that majority verdicts would confer on all jurors that degree of anonymity which would protect all the jurors from either of the dangers to which I have referred.
We have no such problem here. To our certain knowledge the jury system is working admirably in criminal cases. It may be that some persons who are guilty are going free, but it is virtually certain in the mind of every citizen of this State that anyone convicted, or indicted as it used to be, before a jury, before 12 of their fellow citizens, has been proved beyond all reasonable doubt to be guilty of the crimes that were adjudged against him and to have deserved the punishment that the law has prescribed.
Let us ask ourselves, if hereafter we are to accept the principle of a majority decision, are we not going to say in the case of a friend who finds himself in the dock, whose character we are intimately associated with, with whose ultimate fate one's own family is deeply involved, "the rule of criminal law is that the burden is on the State to prove beyond all reasonable doubt to 12 ordinary men or women that the defendant at the Bar is guilty? It is perfectly manifest that the State has failed in this particular case. But for a Statute compulsorily considered in Dáil Éireann my father, my son or my friend would be faced perhaps with a second trial but certainly would have another opportunity of vindicating his reputation and perhaps being declared guiltless of the crimes charged against him"? What kind of purpose is being served by denying to all of us that degree of certainty which we ought to have if the life of one dear to us is to be permanently stained with the taint of crime never mind the dilemma of any one of us who himself stands charged at the Bar of justice? Do we want to abandon the principle that the obligation on the State is to prove beyond reasonable doubt that the man or woman charged is guilty of the offence alleged against him? I do not. I want that responsibility to rest squarely on the State and I want to burden the defendant with no greater obligation than that he should assert his innocence and challenge his accuser, the State, to prove to the contrary but, remember, if you are going to adopt the principle of the majority verdict you abandon absolutely the principle that there is that obligation on the State. I think the majority verdict is ten-two. The Minister will correct me if I am wrong.
