I think there has been in the matter of this amendment of the Fisheries Bill a considerable amount of strong reference to the constitutional question which has somewhat clouded the issue. As I understand the position the majority of the Seanad is of the opinion that a remission of fines should not take place under the Fisheries Act unless there has been a miscarriage of justice. I take it that quite apart from this amendment if the person concerned is not able to pay the fine and finds himself in prison the Governor-General, on the advice of the Executive, would have power to exercise the prerogative of mercy.
FISHERIES BILL, 1923. - DEBATE RESUMED.
AN CATHAOIRLEACH
It is not accurate to say that this amendment is passed for the purpose of providing that only in cases of miscarriage of justice should there be a remission of the penalty. The amendment as passed dealt with the remission by way of mitigation. The additional matter, which the Seanad offered to introduce, gives a further power to the Executive, and that is power to intervene, apart from any recommendation from the justice, wherever they believe there is a miscarriage of justice. The amendment recognises the right of the Executive to interfere to mitigate a penalty provided the justice at the hearing recommends it. The further amendment suggests that apart from any recommendation of the justice, the Executive should have power to intervene and remit any case in which they believe there has been a miscarriage of justice.
What I wished to suggest was that the Seanad in having expressed its views was prepared to go further in the additional amendment proposed yesterday. I also wish to suggest that nothing in this amendment, whether in its first form or in the other form, could interfere with the prerogative of mercy exercised by the Governor-General on the advice of the Executive Council. I am still of the opinion that the proper action for the Seanad to take is to make its suggestion towards leaving the difficulty and send it to the Dáil in the hope that if they cannot see their way to accept the amendment in the form in which it is passed here they will, at least, think the matter over and send it back perhaps in some changed form. I think that we have now got to the stage at which talk is not going to bring us very much further.
Quite apart from the various constitutional matters that have got mixed up, there is not very much difference between the position taken by the Minister and that taken by the Seanad. The Minister introduced a Bill for the purpose of getting at the poacher and the Seanad introduced an amendment to help the Minister. It should not be beyond the power of the two Houses to find an amendment which would meet the case. For that reason I am of opinion that the best thing to do is to send it back to the Dáil, and we will find that they in turn will make a suggestion which will meet the two points of view, which I suggest are not very far apart.
I feel in the same role as Senator Douglas, and that is, that in order to shorten discussion and get to the point, I would like to ask the Minister if the objection still to our amendment rests on the constitutional point. The constitutional point is set out by the Attorney-General, and I take his words as reported in the Official Record, in which he said: "It is not an amendment to anything in the Bill, it is an attempt by the Seanad to affect the constitutional position outside the Bill as regards the remission and sentence." If we take our stand on that point in the absence of any other consideration, I think this discussion had better end. If they care to forego that point—I suppose the Executive would be entirely led by the Attorney-General in the matter—I think we will come to an arrangement on a form of words to meet their objections. We can extend the terms of the amendment to cover possible cases of hardship that might arise, but which might be excluded by the amendment in its present form. I can visualise cases of hardship which would not come under the category of miscarriage of justice. For instance, a man accused of poaching, living far away from the Court, might meet with an accident on the morning of the trial which prevented him coming to it. His case is called, and evidence of the summons having been served is given, the State Solicitor stands up and makes his case. The very fact of a man not having appeared in Court may be accepted that he has no defence. The Bench imposes a minimum penalty and the man is thereby debarred.
AN CATHAOIRLEACH
He has the right of appeal.
He has his right of appeal. At the time of the passing of the sentence there has been no recommendation given from the Bench, and that is the wording of our original amendment—that at the time of imposing the penalty there should be a recommendation, and in the absence of that recommendation a petition should be barred.
AN CATHAOIRLEACH
That is not altogether correct, either. If you look at the words and "the recommendation of a Judge or Justice," they enable the Judge on appeal to make a recommendation. If there is an appeal the sentence has no effect until the appeal is decided, and the introduction of the word "Judge" points to the hearing of an appeal as well as the hearing of the case by the Justice. Therefore it would be open to the Judge on appeal to recommend a remission.
There are many cases which would occur to Senators who have had experience of certain parts of the country. Take the case of summer time, when the season is extended during the period from Saturday to Monday. In some parts the newspapers do not circulate, and men have not notice of the commencement of summer time, as they may be illiterate. A man may be caught unwittingly breaking the law. He comes before the Justice, and in his entire innocence, he pleads that it was not present to his mind that this alteration had taken place in the law. He may have been an illiterate man. The Justice, actuated by the frequency of poaching in his district, is determined to put it down, and this man, when he advances his plea, is told: "If I give ear to that it would be every man's defence. I am not going to take your ignorance of the law as a good defence." He imposes a fine. There would arise a clear case of injustice.
That man has no redress; the sentence will be confirmed. He could not petition at the time because the Justice would refuse it. He would say: "I will not recommend." There may be many more cases in which hardships may arise, and we know that instances have been known where the greatest consideration has been given to criminal cases. Every aspect of the ease has been inquired into. Ultimately, the Courts of Appeal have confirmed the sentence, and yet we know that though an unfortunate defendant has served years of penal servitude on the dying confession of some man who was guilty, he had to be released. Hence, this right of the subject in every case to appeal to the head of the State over and above the decision of all Courts, is inherent in our Constitution. I take it that is so. At any rate it is handed down to us by statute. Any transgression of that right may be properly resented, but where a right is given by statute or in the Constitution, and has given rise to great abuses, as we know this method under discussion now has, is it not competent for the Seanad to restrict or annul by statute that which has been made by statute?
That is the case as we find it to-day, and these abuses under the old regime we might have understood, though my experience of petitions is that the consideration of them by the Executive or the Lord Lieutenant of the time was not on the merits of the case, but on the signatories to the petition. We know these things, and unfortunately, we have it from the figures that were submitted in the Dáil that this abuse is being perpetuated, and I regret that it is so. It is a reflection on our administration, and if we, as a Seanad, are here for anything at all, it is to put our foot down upon abuses of that sort, whether perpetrated in the Courts, or by the Executive or by the Governor-General.
We are here as a deliberative assembly, and we are here, if we have any function at all, to check hasty or ill-considered legislation. I am sure if you refer to the Orders of the Day for to-day, which contains seven and a half pages of amendments to a Bill, you will realise that this is a very necessary Chamber, that Bills do come in a very immature and ill-considered way from the other House, possibly owing to urgency. As Senator Douglas has said, our desire has been entirely to help in putting down poaching. That is all we have in view, and surely, when the Constitutional question is not the crux, the two Houses being of the same mind, and having the same objective, surely we will be able to arrange and agree to a form of words that will meet any consideration or objection that may be raised. I ask the Minister if the constitutional question is the crux, and if so. I move that the discussion ceases.
On a point of order, are we in order in altering an amendment that we sent to the Dáil in the first instance? Can we amend it in the manner suggested yesterday, and send it back to the Dáil?
AN CATHAOIRLEACH
I considered that very carefully, Senator. It is a very important question, and I came to the conclusion, and so stated yesterday, that as we have no Standing Order that restricts the rights of this House to take that course, and as there is nothing in the Constitution that makes that course either illegal or unconstitutional, my ruling upon it—and I am clear and precise about it—is that it is in the power of this House to send back this amendment with a message to say we have altered it in the following form.
Senators have expressed the desire that there should be no quarrels if they could possibly be avoided. I think, in the circumstances as we are now, that Senator Douglas is right in suggesting that we should go through the form of passing this amendment as it stands, and referring it back to the Dáil. The Dáil has asked us to form a Joint Committee with them for the consideration of a particular matter, and no doubt, other matters will be submitted to it, too. I suggest that we pass this amendment, as we believe it ought to be passed, that it go back to the Dáil, and the whole matter can be laid before the Joint Committee, and some form of words, or agreement, can be come to for the purpose of preventing a conflict, or disagreement, between the two Houses. I do not suppose anybody here wishes ——
AN CATHAOIRLEACH
As regards the question raised by Senator Kenny, namely, that this amendment, apparently, makes no provision for the Judge, on appeal, to have power to make a recommendation for mitigation, I think as it stands at present it does do that, because it uses the words: "Recommendation of the Judge or the Justice who imposes such penalty." But in order to put the thing beyond doubt— and I think it ought to be put beyond doubt—I would suggest that the amendment be altered in this way:—
"No penalty inflicted under this Act shall be reduced or remitted, save on the recommendation of the Justice who imposes such penalty, or of the Circuit Judge, in the event of an appeal, and any recommendation for such reduction or remission shall be made at the same time as the penalty is imposed or the conviction affirmed."
That would put the point raised by Senator Kenny beyond doubt. I do not know whether you, Senator Jameson, are prepared to accept that.
Yes, certainly.
As I understood the Cathaoirleach's definition yesterday, the consideration of the petition should only rest on the facts as produced on the appeal.
AN CATHAOIRLEACH
Certainly. That is the whole substance of the amendment.
Well, in cases that will occur to Senators——
AN CATHAOIRLEACH
You have argued that very fully, Senator. You have given instances.
Outside of the ambiguity of the term "miscarriage of justice" to a layman—and there are laymen on the Executive—a layman's definition may be different from that of a man of legal mind, but in order to overcome any ambiguity of that sort and to meet the point I am now amplifying, I would suggest making the thing so that we will almost compel the Executive to agree with us, to show exactly that we are disposed in the same way, that if there is a miscarriage of justice, or a case where the Governor-General and the Executive are satisfied that, owing to circumstances over which the defendant had no control, he was precluded from bringing forward material facts or evidence at the time of his trial, which would alter——
AN CATHAOIRLEACH
You do not require that. It does not require even a layman to appreciate that that would come under the category of a miscarriage of justice.
This is the point. The position may enumerate these facts which were not adduced at the time of the trial, and therefore the Executive, in considering the petition, might take them into account.
AN CATHAOIRLEACH
You, Senator, with all respect, do not appreciate the amendment. In order to enable the Government to relieve a case of miscarriage of justice no petition is required at all. The Seanad amendment does not make that necessary at all. It only speaks of petitions where they are sent forward with a view to relieve cases ad misericordiam, but it leaves untouched and out of the question of a petition all cases of miscarriage of justice, and the case you have put would be clearly a case of a miscarriage of justice. The proposal now before the House is this:—
"That the House having received the message from the Dáil, amend the amendment in the following particulars, so that it shall read as follows: ‘Save and except in any case in which the Executive is satisfied that there has been a miscarriage of justice, no penalty under this Act shall be reduced or remitted, save on the recommendation of the Justice who imposes such penalty, or of the Circuit Judge in the event of an appeal, and any recommendation for such reduction or remission shall be made at the same time as the penalty is imposed or the conviction affirmed.'"
Mr. O'HIGGINS
Might I suggest that as there is the possibility of this Bill becoming law before the Courts of Justice Bill, the reference to Circuit Judge is questionable.
AN CATHAOIRLEACH
Yes, perhaps I had better say, "or the Judge of Appeal," on the recommendation of the Justice who imposes such penalty, or the recommendation of the Appeal Judge in the event of an appeal. That is a mere matter of correcting the phraseology.
Amendment put and declared carried unanimously.
Is there anything to be said about placing the matter eventually before the Joint Committee, or shall we leave that entirely to the Dáil?
AN CATHAOIRLEACH
I think you had better.
Might I ask how can the consideration of the question of miscarriage of justice arise except on petition?
AN CATHAOIRLEACH
There is nothing in this that rules out the petition, nothing whatever. The only thing that this does is, that where a petition is framed or suggested on the grounds of what I have said, appeals ad misericordiam, that they should be made at the time either by the Judge who imposed the sentences for the Judge of Appeal.
AN CATHAOIRLEACH
The next business of the Agenda is the Courts of Justice Bill Committee Stage.