I move amendment No. 19:
In page 4, before section 8, to insert a new section as follows:—
"(1) Where in summary proceedings in relation to an offence under this Act a question of title to land is brought into issue such summary proceedings shall be stayed and it shall be the duty of the party raising such question of title to proceed as soon as possible to have such question of title brought before a superior court of competent jurisdiction to have the same determined.
(2) Such superior court shall certify to the District Court having seisin of the said summary proceedings as to whether or not a bona fide question of title existed and in the event that such a bona fied question of title existed the District Court shall thereupon dismiss the said summary proceedings but should no bona fide question of title be certified as aforesaid then the District Court shall proceed to hear and determine the said summary proceedings and it shall not be necessary for the prosecution to prove ownership of the land or vehicle as the case may be.
(3) If the party raising such question of title does not commence proceedings in such superior court within 21 days of raising such question of title then the summary proceedings shall continue to a determination and the failure to commence proceedings as aforesaid shall estop any further raising of a question of title and it shall not be necessary for the prosecution to prove ownership of the land or vehicle."
Section 8, as drafted, provides that the jurisdiction of the district court shall not, in summary proceedings in relation to an offence under this Act, be ousted by reason solely of a question of title to land being brought into issue. Subsection (2) provides:
Where in summary proceedings in relation to an offence under this Act the question of title to land is brought into issue...
and has to be considered by the district court in proceeding to a penalty under the Act, that such consideration will not operate as an estoppel in subsequent proceedings in relation to the land. You then have the extraordinary position of the district court, in effect, in order to proceed to a conviction, having to make a decision on a question of title and subsequently there could be a title action in a higher court on the same issue.
It has long been a part of our legal code that courts of inferior jurisdiction do not hear questions of title because of their very nature they are extremely technical and complex and, while the persons adjudicating and practising in the lower courts are, no doubt, competent lawyers, very often they have not got the time or the documentary resources available to argue and tease out involved and intricate questions of title. This section is allowing the district court to do exactly what up to now has always been prohibited in it, that is, to decide a question of title. It recognises implicitly that there could be a title dispute in the district court and that the proceedings in the district court, in effect, could be a title dispute. This is recognised by the section because in subsection (2) it is provided that anything that happens in the district court will not estop title proceedings subsequently in another court.
Once that recognition is there and once there could be, if you like, two title actions concerning the same matter in two different courts and two separate proceedings, there could be the extraordinary and ridiculous situation of a person being convicted on a title adjudication in an inferior court while a different conclusion might be drawn in a superior court. My amendment is designed to overcome the difficulties inherent in section 8. The amendment is, in effect, to substitute a new section for section 8. It recognises that there may be a bona fide question of title arising on the proceedings in the district court. Should that situation arise, the simplest and fairest thing to the parties and to the courts is to see if, in fact, there is a bona fide question of title, have that tested in a superior court and, if the superior court certifies that there is a bona fide question of title, the matter is removed from the inferior court and the technical question of title is decided by itself without any reference to the criminal proceedings under this legislation.
Subsection (1) of the amendment accordingly says:
Where in summary proceedings in relation to an offence under this Act a question of title to land is brought into issue....
I would submit to the Minister that that is reasonable because the amendments which he accepted earlier, providing for the raising of a bona fide claim of right, more or less ensure that a question of title will be brought into issue. The amendment then provides that the summary proceedings will be stayed and an obligation is imposed on the party raising such question of title to proceed to a superior court of competent jurisdiction to have the question of title determined.
There should not be any preliminary investigation by the district court as to whether a question of title has been raised because, to my mind, this would involve the district court, in effect, in making a decision on a question of title. Once a party raises a question of title there should be no more ado about it. His obligation should be to proceed forthwith to the higher court. It may be suggested that giving this right could give an opportunity to a certain-minded type of defendant to abuse this right and that he could always raise some ridiculous question of title and go immediately to a higher court. I doubt if there will be any severe incidence of such abuse but, even if there were to be occasional cases of it, the inconvenience they might impose on the courts would be more than counter-balanced by the genuine cases which would be assisted. In any event, a person who took advantage of what is proposed and went to a higher court would get only temporary breathing space.
The next subsection sets out that the superior court shall certify to the district court as to whether or not a bona fide question of title exists and, if it does, then the matter is to be removed from the jurisdiction of the district court. No one can object to that because the Minister has said all along that, where a genuine question of title is involved, most definitely this Act is not to apply. Consequently, if a superior court certifies that a bona fide question of title exists, the matter leaves the district court. That is in accordance with the spirit which the Minister wishes to see in this Act.
If no bona fide question of title can be certified by the district court, in other words, if the person going to the superior court merely goes for delaying purposes or on flimsy or quite ridiculous grounds, the superior court shall so certify and the matter goes back to the district court where it will be dealt with as a criminal offence under this Act. The proceedings in the district court will then have the added advantage that they cannot be clouded by any arguments of bona fide claims of rights. There will be a clean-cut decision on the question of criminal law only. There will be no question of title or anything like that to cloud the issue.
Subsection (3) puts an onus on the party raising the question of title to move, and to move speedily. If a criminal offence is alleged, it is important that there should be a speedy trial and the matter be determined speedily both from the point of view of the criminal law being enforced speedily and effectively and from the point of view of the defendant who should be entitled to a speedy trial. Nevertheless, if the party raising the question of title does not commence his title proceedings, or does not have the matter transferred to a superior court within 21 days of raising the question of title, the summary proceedings can continue to a determination. In fact, 21 days is possibly a short time within which to have proceedings commenced because if it is a matter that has merit and weight there may be some technical difficulty in getting the pleadings ready within 21 days in order to ensure that the right to go to the superior court would not be abused. If the party commences proceedings, the proceedings do not have to reach determination but if he commences proceedings and issues an initiating document within 21 days, the proceedings in the district court are deferred until the higher court determines the question of title raised. However, if he does not initiate the proceedings within 21 days in the higher court, then the summary proceedings shall continue to a determination. The subsection is severe in its consequences of failing to move within 21 days because the failure shall estop the defendant from raising the question of title and also it will remove the obligation from the prosecution to prove any ownership of land. In effect, the defendant would be in the same position as if the superior court were to certify that no bona fide question of title existed.
Possibly, the drafting of the section could be tightened up here and there but the principle of the section is to overcome the difficulty of having the district court or an inferior jurisdiction adjudicated on a question of title. This is a novel departure. It would be adjudication, not on a question of title and not in a title action but on a prosecution for an offence where the prosecution would be conducted by a superintendent of the Garda. In practice it is not possible to have the State Solicitor present and, consequently, if a question of title is raised and not ousted as it normally should be ousted, the result could be a very difficult situation with a superintendent of the Garda, who is not trained in any branch of criminal law, having to argue a question of title with defence counsel. The rule that already exists and which is of very old origin, that is that questions of title should never be taken in inferior courts, is a good rule and it is a pity to see it breached here.
The other inconsistency in the section is that there could be subsequent proceedings on the question of title which could bring about a different result but if a person had been convicted and punished in the inferior court, there would certainly be a ridiculous situation where the superior court could hold that the facts were such that he should not have been punished, and that there was a bona fide claim of right on his part. The amendment is for the purpose of imposing an obligation on a person alleging bona fide title to move quickly to a higher court. The higher court looks at the case and decides whether there is a question of bona fide title, certifies accordingly to the district court and the matter is then either withdrawn from the district court if there is a question of title or, in the case of there being no question of title, it is proceeded with in the district court. The issues are then clear and not clouded by any technical argument. Perhaps the drafting would have to be tightened up to provide for the preliminary hearing in the superior court and so that they could have a look at the initiating documents in order to certify that, prima facie there would be a bona fide case. I commend the amendment to the Minister.