Amendment 26 in my name is the same as amendment No. 5, which I moved to Section 22 in respect of the High Court, to take away from the rule-making authority the power to legislate in the matter of liability to costs. The question was very fully discussed with reference to the High Court, and I feel there would be no real use in repeating arguments which I put forward then. With the leave of the Seanad I will withdraw the amendment.
DAIL EIREANN LOANS AND FUNDS BILL, 1923. - THE COURTS OF JUSTICE BILL, 1923 (COMMITTEE STAGE RESUMED).
SECTION 64.
Amendment by leave withdrawn.
AN CATHAOIRLEACH
I wish to say as a matter of information for the Seanad that when I say "amendment by leave withdrawn," I do that on the assumption that no Senator wishes to object to it being withdrawn. If any Senator in the case of any particular amendment objects to its withdrawal, it is for him to rise and say so. I think it is a convenient form of procedure to assume that permission is given to withdraw an amendment unless some Senator rises to say something to the contrary.
Section put and agreed to.
Section 65 put and agreed to.
SECTION 66.
When and so soon as the Minister for Home Affairs has divided Saorstát Eireann into suitable Districts there shall be appointed so many Justices (Breitheamhain) of the District Court as may be necessary: Provided that the number of such justices at any time shall not exceed thirty-three.
I beg to move:—
Section 66, line 18. To delete the word "Justices" and substitute therefor the word "Judges."
To delete the words "District Justice" and "District Justices" wherever they occur and substitute therefor the words "District Judge" and "District Judges" respectively.
The effect of the amendment would be to change the name of District Justice to that of District Judge. I do not attach paramount importance to the amendment, but I think it is one that deserves some consideration. It was admitted by the Attorney-General in the Dáil that District Justices are Judges just the same as the Circuit and High Court Judges are. Speaking on this particular Section on the 4th December the Attorney-General said:—
"In answer to the question directed to me referring to Articles 68 and 69 of the Constitution, it is perfectly clear that the District Justices are Judges, and that view of their office has been acted on by the Government, which has in every instance had them appointed by the process presented for the appointment of Judges in the Constitution."
If that is the case, and it is obvious that it is, because of the very wide jurisdiction they have now as compared with the old "removable" magistrates, I think it would be desirable that they should have their proper definition.
AN CATHAOIRLEACH
The position is a little stronger than that, because the Constitution speaks of all judges and courts established under the Constitution. This Court is established under the Constitution, and therefore it is difficult to avoid the conclusion that they are included in the expression "judges."
I was coming to that. I think it is desirable that there should be removed from the mind of the ordinary man in the street any impression that these judges are at all comparable with the old "removable" magistrates as we knew them. As you, sir, have pointed out, the Constitution lays it down very definitely that all judges shall be independent within the limits of the Constitution and the law. It is therefore desirable, lest there should be any misunderstanding in regard to that aspect of the case, that they should have the term which, according to the conditions of their appointment and the functions that they fulfil, they are entitled to under the Constitution.
I would like to remove any misapprehension which might exist in the mind of the Senator with regard to the particular term "District Justice." It is not in any sense derogatory to their rank or position, but simply to mark a distinction. If they are called "District Judges" it is more than possible that they will be confused with Circuit Judges. One who has been any time in public life in this country can appreciate how easily mistakes of that sort creep in. That these District Justices are judges has been admitted on behalf of the Government by the Attorney-General, and An Cathaoirleach himself has also admitted it. Nobody has denied it. It is not in any sense to be taken that they are being written down by the manner in which they are described. As a matter of fact, the Lord Chief Justice is not called the "Lord Chief Judge" and does not suffer anything in status by the distinction. This description has been adopted for no other reason than to mark a particular distinction which is necessary. "District Judge" and "Circuit Judge" would be very easily confounded. For that purpose they have been so termed, as well as on account of the fact that they were originally called District Justices. They performed their office during a rather critical time under that designation. They did their duty well towards the State and, to a certain extent, their office and their personality have been associated with an honourable term which has become more or less fixed in the public mind. We considered that it would have been no assistance to them and no elevation in status to have altered the description. Twelve or eighteen months of honourable duties under this particular designation in a very critical time seems to our minds rather a good reason why they should continue to bear that particular designation.
I wish to support this amendment. With reference to what the President has stated, I think it is much more likely that there would be confusion in the public mind as to the tenure, and the nature of this office of District Judge. I think it is most important that everyone should know that the District Judge, by his name as well as everything else, has exactly the same tenure under the Constitution, and exactly the same dignity, as a judge of the Circuit Court or of the High Court.
AN CATHAOIRLEACH
Pardon me for interrupting you. You are not accurate in that statement. The only tenure fixed by the Constitution is the tenure of the High Court and the Supreme Court. The tenure of the Circuit Judges and all other Courts is left to be determined by Parliament.
I was not aware that was so.
AN CATHAOIRLEACH
You will find that is so by the Constitution. What I mean is, it is only in reference to the judges of the Supreme Court and of the High Court the Constitution says they are to hold office during good behaviour. As to the others it says the tenure of all Judges and all other Courts is to be prescribed by law.
I am very much obliged for the correction. So far as the independence of the judges goes that is as much protected in the case of the ordinary District Judge as in the case of the Judge of the Supreme Court. I think it is very important that that should be known to the public to whom they administer justice. I am entirely in favour of the amendment to change the name Justice into Judge.
Before the amendment is put, I would just point out, in reference to what the President has said, as to the name under which these Justices have acted up to the present, that of course their jurisdiction will be considerably widened under this Bill. While there might be some argument for retaining the old definition, under this Bill they will be performing very much more important and widespread duties than was previously the case. In that case the argument would be in favour of a change in name to signify the additional importance attached to their duties, and to signify the importance of the change which is about to take place under this Bill when it becomes an Act. As to confusing them with the Circuit Court Judges, perhaps the same argument might be put up about Circuit Judges being confused with High Court Judges. I do not know if that particular point will weigh very much, or that it is of much importance, but I think it is desirable that there should be some indication of this kind, to mark the passing of this Bill, and to emphasise the change that has taken place.
Judges of the High Court are designated, in the Bill, as Judges of the High Court. Might I suggest that all Judges be designated according to their rank when the Act comes to be printed, by calling the present District Justice a Judge of the District Court, a Circuit Judge a Judge of the Circuit Court, and a High Court Judge a Judge of the High Court. I think that would do away with any confusion. The public could not possibly be mistaken then.
Amendment put and declared carried.
Question: "That Section 66, as amended, stand part of the Bill,"—put and agreed to.
SECTION 67.
No person shall be appointed a Justice of the District Court who is not at the date of his appointment a practising barrister or solicitor of six years' standing at least or has not been a Divisional Justice of the Police District of Dublin Metropolis or a District Justice under the District Justices (Temporary Provisions) Act, 1923 (No. 6 of 1923); but service as a judge of the Dáil Supreme Court as defined in the Dáil Eireann Courts (Winding-Up) Act, 1923 (No. 36 of 1923), or as a Judicial Commissioner appointed under that Act, shall be deemed practice at the Bar for the purpose of this provision.
The following amendment stands in my name:—
Section 67. To add a Sub-section as follows:—
"Provided that, where practicable, no person shall be appointed to the position of a Justice of the District Court in districts where the Irish language is in general use save a person who, in addition to the qualifications set out elsewhere in this Act, possesses such a speaking knowledge of the Irish language as will enable him to hear and take evidence in Irish where any witness desires to give his evidence in Irish."
The amendment is practically the same as former amendments which were left to the President to bring forward again in altered form on the Report Stage. The only pertinent remark that I would care to make in connection with the present amendment is that my attention has been called to a case which recently occurred at Spiddal. I may say that the Government has shown a disposition to cater for the requirements of litigants in that Irish-speaking area by having appointed a District Justice who is an Irish speaker, and who is quite conversant with the dialect. I am informed that what happened is this: all the parties to a particular dispute were purely Irish speakers. The District Justice was also an Irish speaker, and the solicitor for the plaintiff spoke Irish. He opened his case in Irish and when he proceeded to examine the witness, the solicitor on the other side stood up and objected. The District Justice was rather inclined to overrule his objection, the ground of which was that he did not know the language and could not understand the questions put to the witness, or the answers. He claimed that he was quite competent to conduct the case in what was equally the official language, that is the English language.
To that extent he felt he had a claim and a right to have all the Irish evidence interpreted. There was some argument, and as my informant remarked, the Justice very weakly gave way. In the course of further correspondence with my informant, I asked him what could the District Justice have done in the circumstances. He replied that the intention of the Government when they appointed a District Justice who was an Irish speaker, in order to have the proceedings conducted in Irish, was frustrated by the action of one man, and in that sense the proceedings were delayed and to that extent the Court was not an efficient Court. He said under the circumstances he thought the Justice should have postponed the case for a week or more, so as to give the parties on the other side an opportunity of engaging an Irish-speaking solicitor. The solicitor for the plaintiff was the only Irish-speaking solicitor in the district.
My informant said he knew of other Irish-speaking solicitors in other districts who would willingly come and take up the case, and then the whole proceedings could be conducted in Irish. The President might, perhaps, enquire into that particular matter. I know the disposition is to so arrange things that the Irish-speaking litigants shall have their cases heard in their own language, and I know that the Government is trying to facilitate them in that respect; yet the whole machinery has to be set aside and the whole intention of the Government nullified and frustrated by the action of one man. Now the contention is that any man, be he solicitor, barrister or otherwise, who proposes to practice in an Irish-speaking district, is not fully equipped for his profession unless he understands the Irish language. That, of course, in time will come. It is suggested that the Incorporated Law Sociey should make Irish a compulsory or optional subject in their Bar entrance examinations and their Solicitors Apprentices examinations. If we do that we will have travelled a long distance, and we will have coming along barristers or solicitors who, when they specialise in Irish, will be capable of taking the large volume of business that will be always offering in Irish-speaking areas.
AN CATHAOIRLEACH
Might I say that I am not quite sure it is wise to be pushing this thing to extremes? It is a matter, I think, that must be left to growth, because, speaking from the experience I have had on two occasions, when presiding as a Judge on appeal in Irish-speaking districts, the conclusion I came to was that the number of inhabitants who could only speak Irish was very few, and that the great majority of Irish-speaking people were also quite competent and capable of speaking in English. I had a very curious experience in that connection, and as the President has told you his experience, perhaps I might be allowed to give you this as an illustration. There was a case being tried before me in Galway involving a troublesome question about right of way, and the defendant in the action was a very handsome old lady, a typical Irish country woman, who came into the box beaming on everybody, and who had a special smile for me.
She proceeded to announce in Irish that she had no English, and I had to go through the performance of producing an interpreter and getting him sworn. The solicitor proceeded to ask questions in English, which were put to the old lady in Irish by the interpreter, and the interpreter interpreted to me what the old lady was supposed to have said. After this had gone on for a few minutes her solicitor said to the interpreter: "Tell her the plaintiff says he has the right of way over her land." Without waiting for the interpreter the old lady burst out in the best Anglo-Saxon and she said: "Is it Paddy Murphy have a right of way over my land? Never, as long as water runs and grass grows." I decided in her favour; but I am bound to say the old lady herself was quite alive to the humour of the situation, for she burst out into laughter, in which the entire Court joined.
These stories are amusing and we hear them every day that we are discussing this question. The difficulties about this matter I need not repeat now. There are several languages in which I could make a remark or two, but in which I would not dare to give my evidence or enter into any other discussion. I could make remarks in Hindustani at one time as good as that lady made in English, but if I were put into the witness box and asked to give evidence in that language I would be quite at sea. I hope the Senators will not be led away in this manner, and I sincerely hope the President will do what he can for Irish. I do not wish to press him too much, for I know he is anxious to have it settled. It is absolutely necessary to put some pressure upon solicitors and barristers and judges and other people —upon those people who are determined not to learn the national language and not to use it, and who are determined to put every obstruction they can in the way. I say it is absolutely necessary that pressure should be put on them to do what is required in this country, and make them learn the language, just in the same way as pressure was put on the Irish people long ago to make them speak English. In those days a person who did not speak English would not be listened to at all. Without having pressure put on to make them learn the language we cannot get on. I hope the President will do his best.
Might I mention that pressure has been put on in the sphere of education in the National University. Since its first sitting the question was whether Irish should become an essential subject for the entrance examination. We received a deputation from the County Councils of Ireland. They stated they were willing to contribute to found scholarships on condition that Irish was made an essential subject. Then we were warned that the students would not come, but that they would go elsewhere. That did not intimidate those, of whom I was one, who advocated that Irish should be made an essential subject for education in an Irish educational institute. That was carried and none of us were intimidated. The number of students was large and the enthusiasm of many was notable. Those who had made objections on the grounds of the Irish language intimidating students have since found their prophecies unfulfilled.
Then again it should be observed that the primary schools have taken it up, and that the school teachers have had to sacrifice a good deal of their vacation in order to go to the various centres to get instructed in the Irish language. That has been done, and besides that, of course, we are all aware of the great voluntary movement throughout the country, which is a noble example of spiritual regeneration. I well remember, at the time when Greece began to awaken after securing her independence, and to revive the ancient language, there were prophets who said that was impossible. But it is now a commonplace that the Greeks speak Greek, and in Ireland at least we should have bilingualism, than which there is no better means of quickening the intellect. But, of course, consideration must be had for past and present difficulties. The only thing that we can look forward to immediately is that the Irish language should be encouraged, and encouraged with earnestness, and then very soon it will spread. I say at all events that most emphatically there should be supervision of the interpreters in the Courts of Law, in order that justice may be obtained, because, as was mentioned upon the last day, an interpreter is liable to vary his interpretation in accordance with his fee. That should be impossible and will be, I am sure, impossible under the new Courts.
I have communicated with the Minister for Home Affairs with regard to this amendment, and he says the amendment is acceptable in principle. I should say it may be necessary to examine the form of it. At the moment I do not see anything wrong in it. If the amendment were passed and it should subsequently be required that the form of it should be altered, we could do that on the Report Stage.
Ordered: That the matter stand over, to be reconsidered on the Report Stage.
Question: "That Section 68 stand part of the Bill,"—put and agreed to.
SECTION 69.
"The age of retirement of Justices of the District Court shall be 65 years, but the Executive Council may, after consultation with the Chief Justice and the Attorney-General, extend the age of retirement in the case of any Justice to 70 years."
I wish to propose as an amendment "to delete all from the words ‘but the Executive Council' to the end of the section."
This amendment is of the same nature as the amendment which I moved yesterday with regard to the age of retirement of the High Court and Supreme Court Judges and Circuit Judges. The Section, as it stands, requires the Judge to retire at the age of 65, but the Executive Council may, after consultation with the Chief Justice and the Attorney-General, extend the age of retirement in the case of any Justice to 70 years. Now, my whole anxiety was to have a fixed age in the case of the Judges of all these Courts. My amendment, if carried in the form it is on the paper, would compulsorily retire the District Judge at 65, and that, of course, I did not intend. I intended that the Judge should be kept on until 70, but that it should be a fixed age. However, as the question of the age for retirement of the Circuit Judges has been left over for consideration, it might be better if the amendment to this Section were also left over. I can quite see that a different age might be appropriate in the case of the District Justice. There may be reasons why he should be retired younger, but if the Seanad would allow the matter to stand over for consideration, as the other matter about the section dealing with the Judges of the Circuit Court and the High Court is left over for consideration to the Report Stage, I would be satisfied.
This differs somewhat from the other cases, because the District Justice will have, perhaps, more ground to cover than any of the other Judges of the other Courts. On that account we thought that the Civil Service age, which is put down at 65, should prevail. There are cases in which useful work could be got out of people after that age, even in strenuous occupations, but it is not the rule, and, while there may be an objection to giving the Executive Council discretion in the matter, we have no other method of finding a way in which some person has got discretion. I think it will be generally admitted that the county general medical practitioner, is unable at sixty-five to do work for which he was engaged at an earlier age. In the same way these District Judges are not on a par with the Circuit or High Court Judges. A man sitting in Dublin Castle or in the Four Courts might have only occasionally to visit the country and he is in a different position to men who are away from home very frequently, as the District Justices are. Whether because of the discomforts that will have to be occasioned by long journeys, and by sleeping in hotels, it is generally the impression that it is unfair to ask them to serve beyond 65. There is another reason why it would be desirable to extend the age. During the last twelve or fifteen months we appointed a number of District Justices and they did their work rather well. They came forward at a time of crisis and took certain risks and I understand that it was, to put it mildly, not easy to get men. Now, at least, one, and possibly more, of those who took up that onerous duty was a man who, if the 65 rule were in force, would scarcely be entitled to a pension and in justice to him or anybody else in his place we thought that an extension might be reserved to the Executive Council in cases of that sort, so that a man who gave such an exhibition of courage and sense of public duty should be entitled to a pension. If there were a rule determining the end of their service at the age of 65. exceptions could be made. Personally I would prefer if this matter were dealt with now by the Seanad.
AN CATHAOIRLEACH
I wonder would the President be prepared to accept a suggestion of mine, and that is, to have a definite age and make it 68?
I cannot say at the moment whether that would cover the case in question.
AN CATHAOIRLEACH
I think the Seanad has affirmed the principle that it is desirable to have a definite age, whatever it is, and there should be no period of suspense. Of course it is a matter about which the President cannot say anything straight away.
Would it be possible to make it exist in the present form for a certain number of years, because apparently it has been created to meet an exceptional emergency? Our anxiety is to know what use may be made of this clause years hence. The clause could, perhaps, be such as to enable the Executive Council to continue in office, after the age of 65, men who came forward to serve the State in exceptional circumstances.
AN CATHAOIRLEACH
That is to confine this clause to people who were acting at the time of the passing of the Act?
There is the question whether 65 is not the age to fix. There are cases in which men at that age are just as efficient in their duties, perhaps more so, than younger men; but it is impossible to fix a definite line, because, I am sure, a case is not made that a man who is in failing health at the age of 65 should be kept on. It often happens that even at the age of 90 men give excellent judgments.
AN CATHAOIRLEACH
Even at the age of 96.
That is the difficulty with which I am confronted, and I can only say, with regard to this discretion of the Executive Council, that it is only by practice it will be possible to see whether this is exercised wisely. In my view, you are not going to have any political party in this country sufficiently independent as not to require support from other parties, and there will be considerable criticism of any action that could be questioned being taken by the Executive Council. There is a much greater safeguard in proportional representation than in any guarantee you could get from an Act of Parliament. I am strongly of opinion that the decision given in the other case in regard to the Executive Council would, after reconsideration, be accepted by the Seanad.
AN CATHAOIRLEACH
I do not know whether the President would like to consider the suggestion of Senator Yeats—that is to say, that the age limit should remain at 65, with power to the Executive Council to extend it in the case of any District Justice who is in office at the time of the passing of the Act.
That is complicated also by the fact that these District Justices are divided, if one might say so, into two classes. There are the Dublin and Cork Justices, and there are the Justices in the other parts of the country. The Dublin and Cork Justices may be said to be Circuit Court or High Court Judges from the point of view of the strain put upon their physique. They usually go to Court like the Judges who sit in the Castle or Four Courts, and I think a distinction ought to be made in their case. If it be desired, I shall consider the matter before the next stage is reached, but I do not know if it is likely that our view would change. I have been in consultation with the Ministry of Finance on the point, and they are strong on reserving the right to extend, but in view of their experience in connection with the Civil Service they are strong on having the age fixed at 65.
I am glad that the President has mentioned the case of the Dublin and Cork Justices, because I feel that they are in a different position from the others, and they are not going to get worn out by travelling. I think if the President would take into consideration the case of these City Justices in Cork and Dublin it would be very wise, and I, personally, support it.
AN CATHAOIRLEACH
Shall we say that this matter remains over to be dealt with on the Report Stage?
Yes.
AN CATHAOIRLEACH
Very well. The amendment, then, is by leave withdrawn.
Question: "That Section 69 stand part of the Bill"—put and agreed to.
Section 70 was agreed to and added to the Bill.
SECTION 71.
"The senior of the Justices of the District Court for the time being assigned to the Police District of Dublin Metropolis shall receive a salary of £1,200 per annum, and every other of the Justices aforesaid and also the Justice for the time being assigned to a District comprising or including the City of Cork shall receive a salary of £1,100 per annum. Every other Justice of the District Court shall receive a salary of £1,000 per annum. The several salaries aforesaid shall be paid out of moneys provided by the Oireachtas."
I beg to move in
Section 71. To delete the last paragraph and substitute therefor:—
"The remuneration payable to every Judge of the District Court under this Act shall be charged upon and paid out of the Central Fund of Saorstát Eireann or the growing produce thereof."
The Section, as it stands, provides that the remuneration of the District Jus tice shall be paid out of money provided by the Oireachtas. The effect of that would be that each year on the discussion of the estimates it will be practical to discuss the functions and possibly the judgment of those judges.
No.
The President says no, but there is an amount of disagreement with regard to possibilities. The only argument put forward in favour of the Section, as it now stands, is that it would give an opportunity for Deputies to question as to whether there were sufficient District Judges appointed. The arguments are very largely summed up in a few words by the Minister for Finance who said on the 4th December: "If at any time we find that the full number allowed by the law is not required, a suitable and reasonable opportunity will be given to Deputies to suggest that the number should not be so large." That was really the only argument I can gather that was advanced in favour of it. Major Bryan Cooper, who took a keen interest in the debate, pointed out the danger of that. He said: "If the Oireachtas is asked to vote money it is bound to see that the money is properly expended, and you cannot shut out of debate the question of the competence of any one of these people for whom the money is voted. It could not be done. If, say a District Justice took some individual view of law, and his judgments were normally reversed on appeal, you would be almost bound to have that case coming up and being discussed." The Attorney-General met that argument by saying: "And if any Deputy should be urged to raise the question here with reference to the exercise of any Judge's functions I should think, though I should not venture to anticipate the decision or ruling that might be given, it would rest with the Ceann Comhairle to apply this provision of the Constitution in his decision as to whether such a discussion should be permitted."
It is interesting to have the Ceann Comhairle's views in regard to the possibilities involved. I will read his views. He said: "I think that if the salaries of the District Justices were on the Estimates it would be made clear either by Standing Order or a ruling from the Chair, that the decision of a District Justice could not be discussed or reviewed in the Dáil, but I fear that the problem that would be presented to the Chair would not be solved by such a ruling, because, undoubtedly when an estimate would be presented to pay the salaries of thirty-three, or any number of District Justices, it would be open to discuss the fitness of such persons for the position. I think that could not be prevented. While their decision could not be discussed, I have great faith in the ingenuity of Deputies.
"I have had some experience of it, and I can see that there are a great many things which could be discussed on that Vote, and which, while preserving the Constitution, would give very considerable scope to Deputies. I fear the Chair would be in frequent difficulties in endeavouring to interpret the Constitution. Would it be out of order, for instance, to complain that a District Justice in an area where there was a farm strike dined every evening with the Chairman of the Farmers' Union?
"Mr. Gorey: It would not be true; he could not afford it.
"An Ceann Comhairle: Would it be in order to complain that a particular District Justice, being democratically inclined, played cards every evening at the rooms of the Transport Union?
"Mr. Johnson: He could not afford it." That shows the danger of having the remuneration of those District Judges paid out of money voted by the Oireachtas, thereby giving an opportunity to Deputies to discuss the fitness of those men for their positions, and inevitably leaving the door open for bringing into question certain decisions given. The Seanad has confirmed the belief that these are Judges in the ordinary meaning of the word within the Constitution, and as such that they are independent of everything except the Constitution and the law. You cannot preserve that independence if their salaries are to be the subject of discussion in either House. There is no logical reason that would justify it. The argument advanced in support of it is, in the main, frivolous. If there is need for a reduction in the number of District Justices, or of an increase in their number, the obvious course is to introduce a Bill, to increase or reduce their number. No discussion on the Estimates will bring about that without legislation. With reference to the question as to whether there are sufficient Justices or not, that can be discussed in the debate on the Estimates for the Ministry of Justice. That is the proper place to discuss it, and the position can be met in that way. I fear it is leaving the door open for impairing the independence of this part of the Judiciary and I would ask the Seanad to vote for this amendment.
I should like to ask a question.
AN CATHAOIRLEACH
I am getting suspicious of your questions.
For your information, and that of the Seanad, I consider that this Seanad cannot decide the remuneration payable to a Judge of the District Court, nor can they decide how it can be charged. I should have thought that would be dealt with by the Dáil.
AN CATHAOIRLEACH
This amendment is clearly in order.
This is a general question about which a layman can speak. I happened to be present in the Dáil when this was discussed and there was a great deal of ingenuity exercised there. I could not understand what particular objection the Ministry had to it, but they were very firm against it and I tried to follow the reasons. After a great deal of thinking I could only come to the conclusion that they wanted to have some hold on the District Justices. How it would be done, I did not quite know, but the people who put it through are clever enough to know that. So far as I can see, when the President says that you cannot discuss the matter it seems to be generally agreed that you may be able to discuss the Judge's character and say whether he was a thief or other bad things about him, but you cannot discuss any of his decisions. Everything was uncertain. I do not see if we are so careful about securing the independence of the High Court and other Judges by putting their salaries on the Central Fund, so that they cannot under any circumstances be discussed except on special occasions— I do not see why the District Justices should be left out. The fact of want ing to increase or diminish their jurisdiction does not appear to me to be sound, but it seems to be an invented excuse on the part of the Ministry to do something that they wanted to be done. I certainly will support this amendment.
I desire, if possible, to allay the suspicions of Colonel Moore and those of Senator O'Farrell. There is no particular ingenuity in this arrangement. We have already had a very severe fight here and in the Dáil regarding the number of Circuit Judges. We said that we would have no more than eight. We were asked to have not less than eight or not more than ten, and we point-blank refused on the question of economy since we were cutting our cloth according to our measure, to the best of our judgment. In this case I am not so concerned with any Acts of Parliament you may pass or anything that there is in the Constitution regarding guarantees, as with the general acceptance of the people towards conditions or guarantees that are in their mind.
In other words, there is no use in saying that we are going to guarantee the independence of the Judges unless there is general appreciation and approbation of that. On that question I am satisfied that there is not one per cent of the Dáil or the Seanad who would ever attempt to raise any question in either House regarding the independence of the Judges. If we are not agreed on that, I do not know whether you are going to pass a law that will close the mouths of members of the Dáil or of the Seanad if they should desire to raise these points. What we are concerned here with is that if less than the number that we have put down will suffice for this particular service, we want to be able to reduce the number without an Act of Parliament. The Senator's suggestion that we could introduce an Act does not appear to me to be good business. We are asked to introduce an Act to restrain ourselves from appointing District Justices. That, to me, appears a rather roundabout way—to restrain the Executive Council from doing a thing that they do not want to do.
I never suggested any such course.
AN CATHAOIRLEACH
I think what the Senator intended, and the impression that he left on my mind, was that, hereafter, if the Government thought there were either too many District Justices or too few they could then come to Parliament with a Bill, in the one case asking to have the number increased, and in the other asking to have the number diminished.
That is the position.
Very well. I take it then, that if we are asked to have the number reduced we cannot reduce the number while they are living. It is only in the case of a vacancy occurring that the number could be reduced. Then the position would be that we would have to bring in a Bill and ask Parliament to help us in restraining ourselves from appointing District Judges: in other words, that we were not able to restrain ourselves, and that we had to invoke the assistance of Parliament in order to prevent us doing a thing that we do not want to do. That, as I have said, does not appear to me to be good business. On the other hand, if we want more Justices we are told it is easy for us to come to Parliament and ask for a Vote to get more. The other point, which I am sure the Senator did not overlook, appears on page 1310 of the Official Reports, from which he quoted. The Ceann Comhairle stated: "While I think it is clear, having now established that District Justices are Judges, their decisions could not be-discussed on the Estimates, other matters regarding their fitness for the position could certainly be discussed." One of the matters that might reasonably be discussed on a matter of that sort is the one raised by Senator Kenny to-day.
We will suppose that a District Justice was appointed for an Irish-speaking district and that he had not a single word of the Irish language. Obviously, it would be within the competence of people to raise such a matter as that—a matter of first-class importance. A member would be entitled to raise it on the Vote of the Minister for Justice or of the Minister for Home Affairs, but that certainly would not be as direct a fashion of doing it as in the other case. I am not at all satisfied that we ought to put things on the Central Fund which admit of the elasticity that this proposal admits of. We are satisfied that we cannot do with less than eight Circuit Court Judges. I hope that we will be able to do with less, but if we appoint eight we cannot dismiss one, having found that we could do with seven. We could not dismiss a man after taking him out of his profession and separating him from his practice. It would not be just to him to do that. At all events it would not inspire very much confidence when we would require a Judge for the High Court or the Circuit Court that the same thing would not happen. Once having the thirty-three, unless there is a resignation or death or something of that sort, we are in a sense, committed to the thirty-three, if these sums are to be paid out of the Central Fund instead of being a charge on some particular Vote.
I think we are here up against a difficulty that has appeared again and again in the course of the debates on this Bill. We are passing at present a permanent Act which the President has told us is an experimental Act. It is quite evident from the remarks made here that a great deal of this Bill is purely experimental, and yet we are passing it for all time. Here is an instance of its experimental character. One set of judges is to be put into a separate category as regards their pay, but as regards the number of them the Government does not know how many of them will be wanted. I hold that when you balance the two things together, that the standing of the District Justices or Judges should be balanced against the difficulty of settling what number of them ought to be employed. I submit that their standing is the vital thing, and not the number that is to be employed. We have seen plenty of instances here in our time, when a necessary Bill was required to do any small thing, such as appointing an extra judge or anything of that sort, that it was run through here in half an hour. From my short experience here of seeing Bills passed through in connection with matters of that sort, I cannot see why the Government should hesitate so much, because if they adopt Senator O'Farrell's suggestion they will only have to come to this House to get a Bill through to alter the number of District Judges. That is quite a small thing compared to what undoubtedly the Senator's argument was addressed to, that this Section does make a difference between the District Judges and the Circuit Judges and the Judges of the High Court. In the eyes of the country, and in the eyes of everybody else, it will undoubtedly appear very different. It is the very same argument that he used in saying that they ought to be called Judges and not Justices. Here again we have a distinction made which will depreciate them and only for one purpose, and that is to give the Government the method of settling how many of them there ought to be. I take it that that is really the gist of the President's remarks. As regards what is the wise thing to be done, it seems to me that undoubtedly the Government should make the necessary regulations with regard to numbers and have these settled by the two Houses. The District Justices should be kept as independent and as free from any chances of attack in either House as the other Judges whether of the High Court or of the Circuit Court.
The President has told us that it may be thought expedient in the future to reduce the number of Judges. I take it, the way that would be done would be when the estimates in connection with the salaries paid to the Judges came before the Oireachtas. For that reason, apparently, the Government has inserted this particular Section in the Act. The President also went on to say, though I cannot quite recall his exact words, that the Executive could come to the Dáil and ask for a reduction in the number of Judges in the form of a Bill. I would like to point out that under Section 66 of the Bill should, at any time, the Executive consider that the number of District Justices should be increased but not diminished, they would be precluded from doing so without an Act. In the last sentence of Section 66 of the present Bill it is provided that the number of Justices at any time shall not exceed 33.
The paragraph immediately before it is to the effect that there shall be appointed so many Justices in the District Courts as may be necessary, provided that the number will not exceed thirty-three. That is a very different thing from confining us in anything like a cast-iron mould to thirty-three. I have no apology whatever to make for what I said about the experimental character of the estimate we have put up. I am not a prophet, and I never met anyone who was. All we claim is that the estimate is merely an estimate. If it is found we can do with two Judges in the Supreme Court, five in the High Court, and four in the Circuit Court, and a larger number of District Justices, then we will not have made any false prophesy. A good deal will depend on the class of business that comes to any one of these Courts. If there is a considerable amount of business coming to one Court, it may be necessary to increase that Court, and it is experimental only so far as that is concerned. On the other hand, if the business of the Circuit Court is considerable, if there are not many appeals from it, and if it draws from above and below as it were, it will mean that we may be able to dispense, or not have to re-appoint in the event of a vacancy occurring, more District Justices or Judges of the High Court or of the Supreme Court. Only to that extent, I think, is it experimental as an estimate of the amount of business that will come before each Court, and in that respect we have not gone very far from the estimate made by the Judicial Committee itself.
I cannot follow the reasoning of the President. He indicates that the whole Bill is experimental to the extent that neither he nor his colleagues can say definitely now how many Judges, in any department, there may be, whether in the High Court or the District Court or the Circuit Court, or how many may be necessary. But he indicates it is possible that the number of Judges in any of these divisions may be reduced or increased. Therefore there is no distinction from that point of view between the cases of the District Justices and other Judges. The salaries of the other Judges are payable out of the Central Fund. Still that does not exclude the possibility of altering the number hereafter. Why, then, should it be necessary to have the salaries of the District Justices payable out of money provided by the Oireachtas? Simply because the same condition may obtain, and it may be necessary to alter their number hereafter. I am not able to follow that argument, and I do not know whether the Senate follows it, but I certainly cannot.
It is more of a fact than an argument. We were asked in the first place that there should be eight High Court Judges. We refused, and said we could only give six. Then we were asked for a greater number of Circuit Court Judges. Now the case is: we have thirty-three District Justices. They are doing business in an abnormal period. It may be possible to reduce them, and we give to Parliament the maximum amount of control with regard to the number by focussing attention upon the fact that should it appear that there is not sufficient business to come before them, Parliament will have the last word, and we can cut them down. You are getting so far as the general construction of the various Courts is concerned what has been our minimum; not what some people think is necessary; but what we in our judgment consider to be the best in all the interests concerned.
May I ask whether the Committee over which An Cathaoirleach presided recommended this particular form of remuneration?
AN CATHAOIRLEACH
I do not think we considered it. My recollection is that it did not come before us at all.
Amendment put and declared carried.
Question:—"That Clause 71, as amended, stand part of the Bill"—put and agreed to.
Section 72 (Pensions) and Section 73 (Temporary Assistant Justices) were agreed to and added to the Bill.
SECTION 74.
The District Court shall have and exercise all powers, jurisdictions, and authorities which immediately before the 6th day of December, 1922, were vested by statute or otherwise in Justices or a Justice of the Peace sitting at Petty Sessions, and also (by way of addition and not of exception) the following jurisdictions:—
A.—In Civil Cases—
(i) In contract and breach of contract where the claim does not exceed £25;
(ii) In tort (except slander, libel, criminal conversation, seduction, slander of title, malicious prosecution and false imprisonment) and claims for damages unconnected with contract where the claim does not exceed £10: Provided that no Justice shall have jurisdiction when abona-fide question of title to any land the Poor Law Valuation whereof exceeds ten pounds is in issue and the act giving rise to the proceedings before him was done bona-fide in assertion of such title:
Provided also that the jurisdiction of a Justice shall not be ousted by reason of a question of title to land the Poor Law Valuation whereof does not exceed £10 being brought into issue, but in such case the decision of the Justice shall not operate as an estoppel in or bar to a suit in any court for a declaration of title or in ejectment in relation to such land:
(iii) in ejectment for non-payment of rent or overholding in any class of tenancy where the rent does not exceed such sum as amounts or might amount to £26 per annum;
(iv) In proceedings at the suit of the State or any Minister or Government Department or any officer thereof to recover any sum not exceeding £25 due to or recoverable by or on behalf of the State, whether by way of penalty, debt, or otherwise, and notwithstanding any enactment now in force requiring such sum to be sued for in the High Court or other superior court.
B.—In Criminal Cases:—In any of the following cases, if the Justice shall be of opinion that the facts proved against the accused constitute a minor offence fit to be tried summarily:—
(i) In larceny, receiving, embezzlement or false pretences—jurisdiction where the money or property involved does not exceed £20 in value;
(ii) In assault—jurisdiction in assault occasioning actual bodily harm;
(iii) In indecent assault—any such case may be heardin camera, and when so heard, if the assaulted person is a female, one other female person nominated by the assaulted person shall be entitled to be present in court during the whole hearing of the case;
(iv) In burglary or housebreaking or attempts at either;
(v) In riot or unlawful assembly jurisdiction in cases in which the Justice shall be of opinion that the crime was not in furtherance of an organised conspiracy, or if it was in furtherance of an organised conspiracy that such conspiracy is at an end;
(vi) In malicious damage to property—jurisdiction in cases of damage not exceeding £20:
Provided that a sentence of six months' imprisonment with or without hard labour shall be the maximum sentence to be imposed in any of the said cases disposed of summarily: Provided also that any criminal cases not disposed of summarily shall be sent forward for trial (subject as is in this Act otherwise provided) if within the jurisdiction of the Circuit Court to the Judge of the Circuit within which the District lies, and if not within such jurisdiction to the next ensuing Court of the High Court Circuit for the District or to the Central Criminal Court in cases within its ambit.
C.—In granting certificates for spirit and other licences:—all licensing jurisdiction heretofore exercised by Justices of the Peace at Petty Sessions or at Quarter Sessions or by Courts of Quarter Sessions or by Recorders or by Justices of the Peace out of Petty Sessions except the power of granting new licences conferred on the Circuit Court by Section 48 of this Act.
I beg to move Amendment 30—In Section 74, line 38, to delete the figures "£25" and substitute therefor "£5."
I have been asked to move this amendment by people who have studied the Bill from a legal point of view, and I am advised that the increase of the amount to £25 is very much greater than what has occurred in similar Courts up to now. It is believed that that large sum should not be the amount specified in the Bill, and that a much more suitable amount would be £5.
£5 to-day appears to have a very strong relationship to £2, eight or ten years ago. To say that the new Courts which we are establishing now, and in which by common consent we apply the title of "Justices" to those presiding over them, should be restricted to a sum equivalent to £2 some years ago, is to urge something very small. The sum of £25 was recommended by the Judiciary Committee. I hope it will not be said in regard to this Committee's report that we adopt from it what we like, and do not adopt what we do not like. If that were said, it would only be fair to say also that very sound judgment was exercised in regard to what we liked. We think, therefore, that £25 is the sum to which the jurisdiction of the courts should be extended. Now these courts are very different altogether from the class of courts in the old days, to which in a sense they are being paralleled. There is really no parallel between them. One would have to take fifty-fifty of the old magistrates' courts and the county courts to get at what would be the relation of these courts to either of the other two. It must also be borne in mind that the persons appointed to administer justice in these courts will be people experienced in the knowledge of the law, people who practised in either of these courts or a still higher court, and that they will be competent to deal with these sums. All sums between £5 and £300 would bring very considerable business to the Circuit Courts, and would take away a considerable amount of business from the other courts. I need not refer again to the fact that there was a businessman on this Judiciary Committee—a man who was a member of the Dáil and also a member of the Chamber of Commerce. I think unless business has changed its mind in the meantime that we should stick to this figure. I do not think business has changed its mind, but it is a sort of nervousness rather than conviction that suggests this change from £25 back to £5.
A few minutes ago the Senate passed an amendment to confer upon the Justices that will preside over these courts the dignity of Judges, and having done that we cannot now take away from them their dignity by turning their courts into what could only be likened to what was known as the "Lord Mayor's Court." That was a very excellent court in its own way, but it is abolished under the provisions of this Bill. The reason it failed was that it had not jurisdiction to try cases where the sum involved was more than £2.
It was a very excellent Court for poor people, but it failed because of the fact that, owing to the decreasing value of money, it was not worth anybody's while to go to it. To my mind, this amendment will put the District Courts in a similar position to the Lord Mayor's Court. Having conferred the dignity of the title, "Judge," on those who are to preside over these Courts, we must give them business fitting to a person who would be in the capacity of a Judge. Therefore, if we take away from them jurisdiction to deal with cases for any sum over £5, we cannot be right and wrong at the same time. I think that the Seanad could not accept this amendment, taking into consideration all the circumstances.
There is something more in it than what Senator Farren thinks, from what I can make out. I want to ask the President is it a fact that in the District Court a person suing for money must appear and prove his debt, but that in the Circuit Court a decree can go by default? If that is so in the Circuit Court, he need not bring his witnesses and go to that expense. But one of the distinctions of the District Court is that a man, even in a case of default, must appear with his witnesses and prove his case. Then, by extending the jurisdiction to £25, you are putting into a Court, where the expense of the litigation will be greatly increased, a very much greater number of cases. I do not think that that was contemplated by Senator Farren. I do not suppose that any of us are in the least averse to giving a District Justice plenty of business in that way. But when the effect upon the litigants is to drive them into a Court where the expense will be much greater, then we begin to see the thing from another point of view. Putting the amount at £25 will bring in a much larger number of cases, which will be expensive on at least one of the litigants and, apparently, quite an unnecessary expense. I agree with the President that £5 nowadays is too low, but I think £25 is too high, in the ordinary way of collecting debts in a Court, and I think that the Circuit Court would be the right place for dealing with a number of debts round about £15 or £20. Where there are cases of default there is no reason for bringing witnesses and incurring a great deal of expense.
AN CATHAOIRLEACH
I do not think there is anything whatever in this Bill to deprive a District Judge of the power of having undefended cases proved before him by affidavit. There is certainly nothing in the Bill to deprive him of the power to do that; that is a matter that is always done by rules; it is a matter of procedure. My view is that there is nothing in this Bill which would deprive the Judges of power to frame regulations within the powers of the Constitution—one of which might prescribe that undefended cases might be proved by affidavit. I can find nothing in the Bill to prevent that.
And there is nothing either, as far as I can see, which gives the Circuit Court the advantage of not requiring the same sort of proof. It would be possible to sue in the Circuit Courts for debts under £25, subject, possibly, to questions of costs. But the rules made in the Courts, or by any of the Rule-making Authorities, will have to come before the Dáil and Seanad. They can be torn up if they are unsatisfactory, so that I think there is a perfect safeguard with regard to that.
AN CATHAOIRLEACH
There is, in fact, a rule on the subject with regard to Circuit Courts, and perhaps it would satisfy Senator Jameson's view in that if a similar Section were inserted with regard to the District Courts.
That is the point I was trying to make.
AN CATHAOIRLEACH
Section 56 says: "In default cases"—that is, cases where there is no defence—"in the Circuit Court, judgment for any debt or liquidated demand may be entered either in or out of sessions by such officials of the Circuit Court as the rules to be made under this Part of this Act shall appoint." If you repeated that Section in regard to the District Court, it would entirely meet the point raised by Senator Jameson.
I was afraid that Section 56 excluded this kind of practice in the District Courts.
AN CATHAOIRLEACH
It may be argued that inasmuch as express legislation confers it on the Circuit Courts, absence of any similar provision negatives that power in the District Courts. But the whole position would be met by simply repeating Section 56 in the case of the District Courts. That, I think, is worth considering, Mr. President.
Very good, sir.
AN CATHAOIRLEACH
I think it would meet the suggestion and would certainly do no harm to the Bill. It would also meet your objection very largely, Senator Guinness?
It would.
AN CATHAOIRLEACH
Shall we say that this stands over for consideration?
As far as I am concerned, yes.
AN CATHAOIRLEACH
That is to say, on the understanding that the Government see no objection to importing into the District Justices' jurisdiction a similar section to Section 56, you do not press your amendment?
No, sir.
Agreed that the amendment, by leave, stand over.
I move:—
In Section 74, lines 53-54, to delete the words "for a declaration of title or in ejectment in relation to such land" and substitute therefor the words "except in any proceedings brought for the same cause of action."
This is really only a drafting amendment. The second sub-section of Section 74 gives to the District Judge jurisdiction that the Petty Sessions, as they used to be called, never had. If you brought an action before the ordinary magistrates at Petty Sessions for trespass or assault and it turned out, in the course of the case, that the trespass was in pursuance of a claim of right to the land on which the trespass was committed, or that your assault was in defence of your right to the land, that ousted the jurisdiction of the Court of summary jurisdiction altogether and they could not try the case. This sub-section, very wisely, if I may say so, gives the District Judge the power to deal with a case where a claim is made for damages for a tort, an assault or trespass, or any things of that kind that is independent of contract, and it confers jurisdiction on him to deal with them, notwithstanding that the question of the title of the land is raised, provided that the valuation of the land is not more than £10. Then it goes on to say that his decision in that case is not to operate as an estoppel or a bar to a suit in any court for a declaration of title or an ejectment in relation to such land. That is, the way in which he decides the case is not to be used for the purpose of preventing this question being raised if you bring an action for a declaration of title to the same land, or an ejectment to recover possession of the same land. What I am afraid of is that that exclusion of estoppel is not quite wide enough, and I suggest, as a drafting amendment, that the words in lines 53 and 54 should be struck out, that is "for a declaration of title or an ejectment in relation to such land," and that putting in instead of them the words "except in any proceedings brought for the same cause of action." would make it quite certain that the estoppel will not operate in any case except for the very same cause of action. I think that it is an amendment which would be very useful.
I would like that left over for consideration.
AN CATHAOIRLEACH
It is purely a technical matter, and I think probably the Attorney-General would agree that it is desirable to change it. That is a matter for him.
Yes.
Agreed that the amendment stand over for consideration.
I move in Section 74: After the word "summarily" to add the words "and the accused shall so consent." This is in criminal cases. The wording is: "In any of the following cases, if the Justice shall be of opinion that the facts proved against the accused constitute a minor offence fit to be tried summarily." Then it gives the cases and the sentences that can be imposed. That is merely in the opinion of the Judge; these sentences go up to six months imprisonment with or without hard labour. That is a sentence for a very serious crime. I suppose we have all known of cases where the magistrate, or whoever it was was trying the case, asked the prisoner whether he would be dealt with by him or whether he would prefer to be sent on for trial elsewhere, and the prisoner would say "Yes" or "No" according as he thought what the sentence would be. You leave it entirely to the Judge to say that he may try him without the accused having anything to say on the matter; the Judge may say: "I am going to try this summarily, and if you are convicted before me I can give you six months' imprisonment with or without hard labour." It seems to me that the prisoner ought to have some voice in the matter, and I propose to add the words, "and the accused shall so consent." Then the last part of Clause (B) comes in: "Provided also that any criminal cases not disposed of summarily shall be sent forward for trial within the jurisdiction of the Circuit Court," and so on. But I think the prisoners in such case ought not to be bound by the decision of the Judge to decide the case summarily. The Judge ought not to have that power without any option to the accused person to claim a higher Court before which to be tried. It would be all very well if the crimes were small, but where a man is to be sentenced to six months' hard labour the crime is a serious one, and the accused ought to have the right to go to a higher Court if he choose to apply for it.
I think there has been some misconception on this particular clause. It is not intended, and it was not intended, to take from any person a right that he has. The reason, I think, which suggested itself to us to take out that particular election on the part of a prisoner was not against him so much as with a view to saving some expense. I do not know that any District Justice we have, or are likely to have, would object to sending a man forward for trial if the man so elected himself. Here it is argued that we ought to get the man's choice. I take it that an ordinary man, one who is not an habitual criminal, coming before the Court and making a case that he should be sent before a higher tribunal and a jury, would not be at all likely to have that request refused.
But there is another order in the State, persons who would say to themselves, perhaps, "If I demand that I be sent before a higher tribunal I will probably spend a few weeks before the trial comes on, there are a number of other prisoners, and it may be some weeks before the trial takes place, and the Judge will probably be in a better humour, and may let me off lightly, because I have been three or four months in jail." In that case very considerable expense would be added. It is not with a view to withholding from the prisoner the right of election, but it is putting it the other way. It is one thing to say to a man: "Do you agree to this?" and the man saying "yes," and to put it in another way and say: "Have you any objection to offer to this?" and it is possible there may be no objection. It is a matter that might be argued. I have not a very strong feeling on it. We are very far from desiring, even in the remotest degree, to take from a prisoner his prescriptive right of being tried by a jury, but there is the other side of the case, that minor offences, as such, are better dealt with summarily. I think it would be to the advantage of a prisoner that he should be so dealt with rather than otherwise, but it is a matter for discussion, and I should like to hear more about it.
The vice of this Section is this, that it deprives a citizen who is charged with one of these crimes—and several of them are serious crimes—and who might be liable to a maximum penalty of six months, of the right to trial by jury if the Justice who is trying him comes to the conclusion that it is a minor offence. It ought not to be left to the Justice to say in cases of the gravity of some of these mentioned in the Section whether or not it is a minor offence, because there is practically no appeal from his decision that it is a minor offence. Of course, if he gives a man a sentence above a month there is an appeal, but there is no appeal from his decision that in this particular case the offence is a minor one, and he may deal with it. That is the trouble, and I would urge on the President that it would be a wise thing to accept the amendment. It can do no harm. In all cases where the accused likes he can be tried by the magistrate. In the case of a hardened criminal he will always want to be tried by the magistrate, but in the case of a first offender, he is much more likely to ask that the case be sent on to a jury. He has naturally a right to a jury, and he ought not to be deprived of it in cases so serious as half-a-dozen of these cases are.
AN CATHAOIRLEACH
I do not know whether the President would like this to stand over to take the view of the Attorney-General on it.
Yes. I thought that it would appeal to members of the Seanad generally to express a view on it. I think, if my recollection is correct, mention of it is made in the Judiciary Report, which favoured, I think, giving the prisoner an election in that case. There is the other side of the case, extra expense. We cannot take from the prisoner any right he has under the Constitution. If he has a right under the Constitution to be tried by his peers I do not see how a District Justice can take it from him, even though that is not in the Section. The only question in dispute, then, is that of a minor offence, and in my recollection from the reading of the newspapers, which I read pretty regularly, I never came across a case in which a man asked to be sent forward for trial, that any magistrate in any part of the country refused him that right.
I take it, it was regarded as a prescriptive right, on the part of a prisoner, never disputed. I may be wrong. There may have been cases which have escaped me, but I do not know of any. If that were the case, then in the circumstances of the times it would be almost an impossibility that a man would find himself in the position of being tried and sentenced to three or four months' imprisonment and have no way out.
AN CATHAOIRLEACH
There is an important distinction that under the old law, which gave him a prescriptive right, the Justice had no jurisdiction in these cases at all. Therefore, the Justice had no option but to send the man for trial. The difficulty undoubtedly is that here, whether the prisoner consents or not, and even though he protests against it vehemently, the District Justice can try him for these serious offences, provided he thinks it is a case which would be met by a penalty not exceeding six months. That is just the change that is being made. It is a question whether the change is desirable without giving the prisoner the option of saying that he preferred to be tried in the ordinary way.
I understood that the magistrates in Dublin had jurisdiction up to six months.
AN CATHAOIRLEACH
Yes, in Dublin. I think it would be well worth while that this should be looked into.
Very good.
AN CATHAOIRLEACH
Probably, if we looked into it, there would be no controversy about it.
It appears to me that Senator Brown is making it a very serious crime that the magistrate should consider the offence a minor one rather than a serious one.
I am in favour of the amendment. I do not think it would make a lot of difference in actual practice, but, at all events, it removes what might be a genuine grievance that a prisoner should be tried against his will in a Court of Summary Jurisdiction in a case which he thought should go to a jury. If he is convicted and appeals and is discharged the grievance would be all the more obvious. The stigma that is inflicted on him by being convicted, even though he is afterwards discharged, is not altogether removed. At all events, he suffers a good deal of mental anguish that he would not otherwise suffer. Apart from that, I think it is not very desirable that the Bill should lay it down that the District Judge shall have the right to say that it is a case coming within his jurisdiction, thereby taking it outside the province of a jury. As the President indicated that no judge would think of doing that in a suitable case, is there any use in refusing to accept this amendment? The amendment lays it down clearly that before a man charged with any of these offences can be tried before a District Court he must consent.
As to Sub-section B., III., it strikes me that the offence mentioned should not be considered a minor offence. I would like to put that view to the President and to the Attorney-General.
On that I had an opportunity of consulting some of my officials, and there are cases in which that might be a minor offence, in which the description would be what we would call an elaborate description rather than a true description. In other words, cases which would not bear out the exact meaning. I do not know that the Attorney-General meant that a major case of that sort would come within the scope of it.
I would like to know if there is any provision in the Bill giving an accused power to insist on his case being sent forward to the higher Court?
AN CATHAOIRLEACH
Not in these particular cases. The effect of this Section is quite plain, at least to a lawyer. The effect of the Section will be that in any of these charges enumerated there, from one to four, if the man is brought before a District Justice, whether the man likes it or not, the District Justice can, if he thinks the particular offence was committed under mitigating circumstances, or that there was no gravity about the facts, try him summarily and dispose of the case.
If that is so the accused could not demand the right to be sent forward for trial. It would lie with the judge trying the case to decide the matter. Without agreeing with the amendment, we could insert words that would give the accused the right to demand to be sent forward to be tried by a jury. It would not be a question of consent, but would give him the right, if he so desired, to have the case sent forward for trial by a jury.
AN CATHAOIRLEACH
That would be going to the other extreme. If you put in the words, "subject to the consent of the accused," you will be giving quite ample protection.
I am satisfied if the accused has the right to demand trial by a jury.
The real point in taking this out, I find, was, that the accused would really determine the jurisdiction of the District Justice. It was thought that that was an unfortunate way of putting it.
The EARL OF MAYO
I quite agree with the President that that was an unfortunate way of putting it. I sat on the Bench for many years, and I felt that when a person asks to be tried by a jury he should have that right. In cases that came before me as a magistrate, that was usually granted. Of course the President is quite right when he says that a hardened criminal generally prefers to be tried summarily and dealt with at once. I am in favour of the amendment.
AN CATHAOIRLEACH
I think it ought not to be lost sight of that under the law as it stands, up to a certain limit of money or imprisonment these Courts already have a summary jurisdiction which does not depend on the consent of the accused at all. This is undoubtedly an extension of that to more serious crimes.
The language of the Section here is: "In any of the following cases, if the Justice shall be of opinion that the facts proved against the accused constitute a minor offence fit to be tried summarily." Under the old regime, at the outset of the case when the charge was read against the accused, his opinion was asked as to whether he was willing to be tried under that jurisdiction summarily, and he either consented or did not consent. Here clearly the case must be gone on with and the facts proved against the accused before the Justice can decide whether it is a minor offence or not.
The case is after being tried. The case must be gone on with before the facts can be proved. Then the Justice has to decide whether it is a case fit to be tried summarily or not. I take it that the second last word "tried" should be "fit to be dealt with summarily." There is nothing left but to pass sentence.
AN CATHAOIRLEACH
In every case before the magistrate determines what he is going to do he has to take depositions. What this contemplates is, if from the depositions taken before him he is satisfied that although the offence was committed, nevertheless it was committed under mitigating or non-aggravating circumstances, then he would have the right to say, "I will now finish this case myself, and will not send it forward." I think that is what the words mean.
Is the language used really accurate? It is simply on the depositions he decides, not on the proven facts.
AN CATHAOIRLEACH
Until they are contradicted. You cannot prove a fact otherwise than by swearing to it.
What opportunity has the accused got?
AN CATHAOIRLEACH
Depositions are taken, of course, in his presence, and he can cross-examine. I am not responsible for the drafting.
I take it, what is really happening is that we are extending the scope of what were formerly regarded as minor offences. That is to say, there is a mitigation in the prisoner's favour with regard to that particular category of offences. If you consider there is a case for extending minor offences you cannot give on the one hand all the advantages consequent on the extension, and on the other hand all the rights which a prisoner would possess in the case of graver offences. It is a question of how far you can go. You are not entitled to go a certain distance and say, "Along with this extension that I give you on this side you must have all your rights on the other side." If I were a lawyer I would be much better able to put the position so that it would be seen we do not want to take from a prisoner anything that he has got at the present moment. At the same time, while extending the limit of minor offences, we are safeguarding ourselves so that the mercy extended will not be played upon. Take one particular instance. There is a dispute some place, and feeling runs very high; a man is arrested and brought before the District Justice. If the Justice sends him for trial the offence is regarded as a grave one, and must be treated as such. But there may be a possibility of accommodation. The District Justice, in his anxiety to restore normal conditions, treats the case as an ordinary one. The man gets some imprisonment, but not as much as if he had been sent forward for trial, and feeling subsides. Is it not better that it should be considered a minor offence rather than have it sent forward with all the paraphernalia as if it were a case of a man starting a revolt? I think that is what the Attorney-General had in mind, and no one would be in a better position to explain it more lucidly than yourself.
AN CATHAOIRLEACH
That brings back to my recollection what influenced the Committee when they made a recommendation in their report on this matter. I do not say that is the recommendation which actually appears here. They made a recommendation which would give jurisdiction—I think with consent—in these aggravated cases where the District Justice thought the offence, though per se a serious one, had owing to the circumstances in the locality or otherwise, ceased to have the importance it had. If there was an epidemic of burning in a certain district, that epidemic might have died out, and the feeling that was there passed away; the cause that had produced the agitation might have ceased. What induced us to make this recommendation was that two or three years ago a very important Bill was passed in the British Parliament in which these precise powers were given to Justices under such conditions. Power was given to take into account in dealing with cases of this kind such considerations as whether they were the result of an agitation that had passed away, and if the locality was peaceful they could take it into consideration. It was on the analogy of that Act that we were induced to make this recommendation to the Government. I have not got the Act before me, but it would be quite easy for Senators who are interested to see it before the Report Stage is reached, so that perhaps we might leave the matter over until then. There is a very important precedent for this—I am not now on the question of consent—but on the extension of jurisdiction to try, summarily, serious cases. That is in the recent Act that was passed, with unanimous approval, in England.
Might I ask if the Act you refer to would extend the power of the District Justices to such a wide category of crimes as are mentioned in this Section? You spoke of what I should think would come in under Section 5, riot and unlawful assembly. There are a very large number of crimes of a much more serious nature enumerated here.
AN CATHAOIRLEACH
You can imagine cases where they would be very serious. On the other hand, anyone with experience of Courts of Justice knows that even in so-called serious cases it occasionally happened that, although there is technical guilt, it does not really amount to what the man in the street would call an actual serious offence. Speaking solely from recollection, I know that riots and unlawful assembly were included in the recent English Act.
Could you describe a case in which burglary is not a serious offence?
AN CATHAOIRLEACH
Indeed I could. If a hungry man was passing your house at night, and saw a loaf of bread inside your window, and took it, that is burglary.
Would it be described as burglary?
AN CATHAOIRLEACH
Yes. It would be burglary if it happened after 11 o'clock at night. If it happened during the day-time it would not be burglary.
I think this discussion has been very illuminating because it shows us that there is a certain number of cases which could be dealt with summarily according to the law as it exists now. If they had been put into a separate class by themselves and that the existing law as applied to this class of case had been repeated here, and if more serious crime had been dealt with in a separate class, I think we laymen would be much more competent to form a judgment about it. Undoubtedly, as the President says, this clause covers a lot of cases we do not want to dispute at all. We are only discussing cases where the crime is so serious as to merit six months' hard labour.
AN CATHAOIRLEACH
I think that applies to them all.
Yes, but it includes a whole lot that we do not want to discuss at all. The President may be perfectly right that in a whole lot of these summary cases it would be far better that the accused be tried summarily whether he said "yes" or "no." But the case we are trying to make is that that right to a jury ought to be adhered to, where the prisoner ran any risks, such as a long sentence. That is the whole point. Perhaps the President, on the Report Stage, could put something better before us in the way of a clause which we could debate. If the majority agrees with the President all right. Let summary jurisdiction apply in those particular cases. At present we are very confused on the issue that is really before us. That is the only suggestion I can make, because if we decide not to put in the words of the amendment a lot of us believe that many an accused person would be damaged by that fact.
AN CATHAOIRLEACH
I think you may safely leave it to be considered on the Report Stage, because I almost assume that the Attorney-General will really see no difficulty in putting in these words.
Very well.
I take it that the meaning of the words "and the accused shall so consent" is that he shall consent to the trial, not to the sentence.
AN CATHAOIRLEACH
Yes; he consents only to the trial and not to the sentence.
Question:—"That Section 74 stand part of the Bill"—put and agreed to.
Question:—"That Sections 75, 76, 77, 78 and 79 stand part of the Bill"—put and agreed to.
SECTION 80.
"A Justice of the District Court shall (if requested by any party to any proceedings before him unless he consider the request frivolous) and may (without request) refer any question of law arising in any case before him to the High Court for determination, and the determination of the High Court thereon shall be final and conclusive and not appealable."
I beg to propose as an amendment "to delete the words ‘and may (without request).'" The meaning of that is to take away from the District Justice the power which this Section will give him of stating a case for the Superior Court against the wishes of the litigants who have appeared before him.
AN CATHAOIRLEACH
May I just explain what this is intended to deal with? A District Justice is trying a criminal case. The facts may be of such a novel kind as to raise a very difficult question of law—that is, as to whether they, in fact, could at all constitute the particular crime which the man is charged with. The District Justice thinks this is a matter of far-reaching importance, and that it is a matter that should be determined by a higher Court. The particular individual is not interested in it. He is not going to be hurt by it, because he may get off. The Court to which this is referred may say: "Those facts do not constitute a crime." I cannot see how the individual is going to be hurt, and I think it is only in the interests of the administration of the criminal law that the District Justice should have that power. Under the old law, as it stood, the Justice always had power, whether applied to by parties or not, to state a case for the decision of the Superior Court. That is, I think, a very useful power in the interest of the public as well as in the interest of justice.
Your remark referred to the criminal case. I see by this Section that it refers to all cases.
AN CATHAOIRLEACH
And so it did under the old law.
From the point of view of the ordinary citizen or litigant, I think it would be a great hardship or either or both of them, in a case where the Justice sends forward a case for decision to the higher Court that they should incur the expense of appearing before the High Courts.
AN CATHAOIRLEACH
That is another matter.
If it is contended that it is a matter of great importance, and that a lot of knotty legal points should be decided, then I think it should be done at the expense of the State and not of the litigants who may come to the District Court and who are quite prepared to accept the decision of the District Justice. In addition to the expenses these people will be put to, they will be compelled to continue litigation that they were quite willing to drop on the decision of the District Justice. I think it is very bad policy for the Government or the Seanad to encourage the continuance of litigation of this sort between parties who are quite willing to drop it and to become friends again. The District Justices dealing with those cases, as have been pointed out, will now be quite different from the old magistrates, and quite competent lawyers, and I do not think they should shirk the responsibility of giving a decision. It may be a wrong decision in a very isolated case. But I am quite satisfied it will be a correct decision in the vast majority of cases. Even if they give a wrong decision occasionally they will err in good company, because it has happened, in a few cases, that the Judges of some of the High Courts have had their decisions reversed on appeal. Your District Justices, in my opinion, should not shirk their responsibility, but give a decision in accordance with the best of their judgment, and with that decision both litigants before them will be better pleased than they would be by having to go before another Court.
I am not disposed to agree to that proposal. The District Justice having a keen appreciation of the importance of his position, if he decides to send forward a case like that, it must be because he is satisfied that it is of sufficient importance to merit treatment by a higher tribunal than his. It is no satisfaction to us, if the two parties want the dispute settled between them, and then that the decision of the District Justice should be quoted in other courts as law, when it was really a settlement and not a decision. We do not want the District Justice to have his hands tied. The District Justice should have full power to send forward a case where it is necessary to do so in order that sooner or later we will have decisions that can be relied upon and looked up to. We do not want these to be mere arbitration courts. We are fixing up courts upon which the people can lean with confidence, and in which they will have the satisfaction of knowing they will get justice.
Amendment put and negatived.
Question: "That Section 80 stand part of the Bill"—put and agreed to.
SECTION 81.
"An appeal shall lie in all cases other than criminal cases from any decision of a Justice of the District Court to the Judge of the Circuit Court within whose Circuit the District of the Justice lies, and the decision of the Judge of the Circuit Court on any such appeal shall be final and conclusive and not appealable."
I had an amendment in connection with this Section, and it was to delete the words "other than criminal cases." I will withdraw that amendment, as it is dealt with in a subsequent amendment.
Amendment, by leave, withdrawn.
Question: "That Section 81 stand part of the Bill"—put and agreed to.
SECTION 82.
"An appeal shall lie in criminal cases from a Justice of the District Court to the Judge of the Circuit Court within whose Circuit the District of the Justice lies, against any order for payment of a penal or other sum exceeding twenty shillings or for the doing of anything at greater expense than twenty shillings or for the estreating of any recognizance to a greater amount than twenty shillings or for any term of imprisonment exceeding one month, by the person against whom the order shall have been made but not otherwise, and the decision of the Judge of the Circuit Court on any such appeal shall be final and conclusive and not appealable."
I beg to move:—
Section 82. To delete the whole Section and substitute therefor a new Section 82, as follows:—
"An appeal shall lie in criminal cases from any decision of a Justice of the District Court to the Judge of the Circuit Court within whose Circuit the District of the Justice lies against any order for payment of a penal or other sum or for the estreating of any recognizance or for any term of imprisonment by the person against whom the order shall have been made, and the decision of the Judge of the Circuit Court on any such appeal shall be final and conclusive and not appealable."
This suggested new Section is merely the original Section beyond the deletion of certain words which limited the right of appeal from a person convicted of any offence.
AN CATHAOIRLEACH
Your amendment proposes to give an unlimited right of appeal?
Yes, in all cases; it practically means that. I am supported in this by the Committee, of which you were the Chairman. On page 12 of the Report it is stated: "There should be an appeal to the Circuit Court in all cases of the imposition of a penalty or a conviction, but none from a dismissal." That was the recommendation of the Judiciary Committee. I think it is very desirable that there should be no limit or no restriction on the right of appeal. According to the Section as it stands 20s. is the amount of the penalty and the imprisonment period is one month. Take a case in which a Justice would impose a fine of fifteen shillings or an imprisonment of three weeks. In that case there would be no appeal from that decision and I consider it would be a great hardship on the prisoner or on the defendant. In most cases it is not the amount of the fine or the imprisonment which so much matters to the prisoner or the defendant, as the stigma that would be on his character in regard to having been convicted of a criminal offence.
I think he should get every opportunity for bringing forward fresh evidence or having the matter dealt with by another Court to save his character from aspersion. For that reason I move that there should be an appeal in all cases.
This savours somewhat of the previous amendment that we were speaking about, where it was wanted to constitute minor offences as a class in themselves. I have been observing cases in the Courts for some years and I notice that where a person intends to appeal, even though the fine is so small that he cannot appeal, there is usually an application that the fine should be increased so as to permit of an appeal. I do not remember any case in which the Magistrate in such circumstances ever refused to respond to a request of the sort. It occurs in other cases where a month's imprisonment would probably disqualify a member of a local authority from remaining a member. When that fact would be brought before the Magistrates, and when it would be observed that the sentence, if it were such. would penalise a member in that fashion, it is usually taken into account. I do think that while every safeguard ought to be given to people in connection with appeals from those District Courts, you ought at any rate mark to some extent that Court as final in cases of minor offences.
You do not want to be placed in the position in which an habitual criminal would come along before a District Justice, and knowing he can appeal, would pass an uncomplimentary remark, saying to the District Justice, "You old humbug, I will appeal to a higher Court." That would not impress people very much with the authority and dignity of the District Courts, and it would be a mistake to allow the idea to become prevalent that every case in which there was a nominal penalty was open to reconsideration by another Court. It was not intended in the Judiciary Report that cases in which the amounts would be ten or fifteen shillings were to be included in appeals, and such a procedure would not give any satisfaction. If a person is desirous to appeal he can ask for a higher penalty to permit the appeal being made, and I believe such a request would be granted.
I am not quite satisfied with the argument of the President, unless he agrees to have such words put into the Section as will compel the District Justice to increase the penalty to such an amount as will enable the criminal to appeal. At present that is optional. An application might be made to increase the penalty to twenty shillings, or the term of imprisonment, and that application might be refused. In that case the aggrieved person would go through the remainder of his life having everybody throw at him the fact that he was a criminal. I think that is a very serious position to allow the ordinary citizen to occupy, especially when it could be avoided by inserting words in the Section which would safeguard his rights.
I am at a loss to know whether the Senator is making a case for the man who has committed a minor offence, and for whose benefit we must consider every possible safeguard, so that having committed the offence, we must absolve him and let him go free. Let me emphasise that these Courts will cost a lot of money, and we are establishing them to restore and keep order in the country. If we have these people indifferent to the public need, and indifferent to commiting minor offences, they must bear with their sins when they commit them, and we will absolve them at a mild cost, and they ought to be satisfied that we do absolve them at a mild cost.
I am speaking on behalf of the person who is innocent.
If the person is innocent we will not fine him.
I am speaking of the man who would be wrongly convicted by a District Justice, and who would like an opportunity of having his case reheard. The object of the amendment is to allow everybody to have an opportunity of appealing and going to another Court, if that person did not get justice in the lower Court.
Amendment put and declared lost.
I rise to ask the President to give us some information on the same Section. I am informed that some District Court areas cut across other areas, and the case was put to me of two litigants, one of whom resides on one side of the dividing line, and the other on the other. There is some doubt as to which Court they should appeal, and the suggestion has been made that the appeal should lie to the Circuit Court in the area in which the first decision was given.
AN CATHAOIRLEACH
That would be one way of meeting it, but do you not think that this would be better— that in cases in which the area was divided into more than one district, the District Justice should determine to what Court the eppeal should go?
The litigants might have some views on the matter.
AN CATHAOIRLEACH
I think it would be better to take the matter out of the hands of the litigants, as they would probably not agree.
I think that Clause 66 might have some bearing on the matter, as the present distribution is apparently not the final one. "When and so soon as the Minister for Home Affairs has divided Saorstát Eireann into suitable districts there shall be appointed so many Justices of the District Court as may be necessary."
AN CATHAOIRLEACH
Perhaps it would be a simpler plan to leave it there—that in distributing the areas for the District Justices their district should be within the confines of one circuit area.
Question: "That Sections 82, 83, and 84 stand part of the Bill," put and agreed to.
SECTION 85.
(1) The Minister for Home Affairs may from time to time by warrant under his hand appoint and remove such and so many fit and proper persons as he shall think expedient in each county to be called "Feadhmannaigh Schíochána" or (in English) "Peace Commissioners," and to perform and exercise within such county the duties and powers of Peace Commissioners under this Act.
(2) A Peace Commissioner shall have all the powers and authorities which immediately before the 6th day of December, 1922, were vested in a Justice of the Peace in respect of the several matters following, that is to say:—
(a) signing summonses;
(b) signing warrants;
(c) administering oaths and taking declarations, affirmations, informations and recognizances;
(d) committing dangerous lunatics and idiots to lunatic asylums under Section 10 of the Lunacy (Ireland) Act, 1867;
(e) signing certificates for the admission of lunatics and idiots to lunatic asylums;
(f) signing the certificate required by Section 2 of the Registration of Clubs (Ireland) Act, 1904:
Provided always that any summons against any member of the Gárda Síochána shall be signed by a Justice of the District Court.
(3) Whenever any person charged with having committed an indictable offence shall be arrested by a member of the Gárda Síochána such person shall unless a Justice of a District Court is immediately available forthwith be brought before a Peace Commissioner, who after hearing such evidence as may be offered shall remand such person either in custody or in such bail as the Peace Commissioner shall think fit, and remit the case for hearing before a Justice of the District Court on a date not later than the next sitting of the District Court to be held in the District where such person was arrested.
I beg to move the following amendment:—
Section 85, line 55. To insert a new Sub-section as follows:—
"Provided that no person shall be appointed Peace Commissioner in any district where the Irish language is in general use save a person who, in addition to the other necessary qualifications, possesses such a speaking knowledge of the Irish language as will enable him if so required to transact in Irish the duties assigned to his appointment."
Having regard to his duties, it goes without saying that a Peace Commissioner who is not able to speak the Irish language in an Irish-speaking district is not able to perform his duties. I think, so far as the Ministry is concerned, it has appointed Irish-speaking Commissioners in these districts, but when you come to the fringe of such districts it is essential that these Commissioners should be bi-lingual, as they will have to take depositions in both languages.
I thought that this amendment would have been accepted more readily even than the previous one which was accepted. The Minister for Home Affairs tells me it is his opinion that if this amendment were accepted as it stands, the complaints which occasionally reach him as to the scarcity of Peace Commissioners in remote districts would increase to an embarrassing extent. He has informed me that when he took up the work of appointing Peace Commissioners ten months ago, one of the things which he asked about every man recommended to him was whether he had a knowledge of the Irish language. He was rather depressed by the information he received, and the recommendations of the persons were made by members of the Oireachtas or men prominent in the national movement for the last few years. I think it could be taken that as much interest was shown by these people as was possible to find in any assembly, and that they were impressed with the necessity of appointing persons with a knowledge of Irish. All the officials who gave this information have a knowledge of the Irish language, and a number of them wear the Fáinne. They say that their experience is that the men who live in the districts now under discussion and who know Irish well, are usually fishermen or small farmers, who do not often use the pen or read very much, and the filling up of official forms, either in Irish or English, would be entirely outside their ordinary work, and they are not very suitable to such duties. The Minister says that another difficulty is the fact that there are not enough of such Irish speakers to go round. You would have to eliminate from that class those who are visitors, and those who could not, or would not, accept the Peace Commissionership, and those who are debarred, by reason of their trade or profession, from being appointed, such as clergymen and persons interested in the licensing trade. The Minister fears that when you make these deductions it would not be possible to find a sufficient number of Peace Commissioners. There is another point that the Minister made. Take the case of Tirconaill. If they were to be permitted to appoint only Irish-speaking Commissioners, it would mean that persons who have claims for old age pensions might have to travel ten, fifteen or twenty miles to one of these Commissioners. The Minister would be prepared to accept the spirit of the amendment if the words "so far as practicable" would be included. I am fairly satisfied that he has given this matter careful consideration, and I am perfectly satisfied that the Ministry are in thorough agreement with the spirit of the amendment, but that it is not possible, at present, to carry it out, and if they are bound to appoint Irish-speaking Peace Commissioners in those districts, they will not have enough to go round. I hope the Senator is satisfied with that explanation.
I am quite satisfied. It is strange you cannot get traders and shopkeepers with sufficient intelligence and sufficient national spirit who by the very nature of their environment must have a knowledge of the language. I am sorry to hear that the effect of this amendment would be to give a considerable amount of inconvenience to people there. I am prepared to withdraw the amendment seeing that the Government have accepted it in the spirit which it is intended.
AN CATHAOIRLEACH
The amendment stands over until the Report Stage.
I beg to propose in Section 85, line 62, to insert after the word "taking" the word "affidavits." With regard to that I do not know whether it was purposely omitted from this. It is a matter entirely for the President.
AN CATHAOIRLEACH
I think administering oaths would include the taking of affidavits.
Yes; and there are certain affidavits that it would not be wise to include, such as those which arise as to identity of the person. An officer of the Court there does that work, and I am informed it would not be wise to have it all-embracing.
Amendment, by leave, withdrawn.
Question: "That Sections 85 and 86 stand part of the Bill"—put and agreed to.
SECTION 87.
I ask leave to withdraw amendment No. 38 on the paper and the three following ones, which are really one amalgamated amendment. They deal with the question of the rule-making authority in the District Court. As drafted, the amendment is open to objection, and as I intend on the Report Stage to introduce an amendment which will deal comprehensively with the rule-making authority, in all Courts, and in a manner which will meet the views of the Seanad, I ask leave to withdraw the amendment.
Amendments 38, 39, 40 and 41 withdrawn.
AN CATHAOIRLEACH
Amendments 42, 43 and 44 are to stand over for the purpose of the Government considering them.
Question: "That Sections 87 to 91 stand part of the Bill"—put and agreed to.
SECTION 92.
"In every trial, whether in the High Court or the Circuit Court of a civil case before a judge and jury, the jury shall consist of twelve members, and a majority vote of nine of those twelve members shall be necessary and sufficient to determine the verdict. The judge shall so inform the jury, and the verdict of such nine members or upwards shall be taken and recorded as the verdict of the jury, without disclosure of the dissentients, if any such there be."
I beg to move in Section 92, line 2, after the word "case" to insert the words "or of a criminal case except cases of murder and treason felony." This also is the same case as the other. It struck me that a majority verdict should apply to criminal as well as civil cases.
We have to balance the number of persons who get through the sieve, and the number of persons who are held. I think it will be generally admitted that juries for some time past have been doing their duty in connection with the trials of prisoners. With the safeguard of having to get the whole jury as against a majority we would not be satisfied if there were a number getting through the sieve who ought not to get through. I am not altogether satisfied that that is the case to such an extent as would justify us in depriving persons accused of the right they have at present or the safeguard they have got that twelve jurors must find them guilty before they are sentenced. A prisoner in the Court suffers from many disadvantages. In the first case he is probably a week, and sometimes a fortnight in jail before he comes before the Court, and in the vast majority of cases, the prisoner presents an unenviable appearance when he is in the dock. He is unshaven, and his clothes are generally in a disordered state. Anyone passing through and looking at him would say: "That is a very hard-looking case."Prima facie he brings a lot against himself owing to the immediate environment in which he finds himself. This is the safeguard they have had for a great many years. If there were a number of prisoners who, we were fairly satisfied, were escaping, there would be a case for introducing this new provision, that nine should vote out of a jury of twelve in order to secure a conviction.
But even though an occasional criminal does get through, it is better, I think, and it has been held by some jurists, to let one through or even twelve through rather than that an innocent man should be found guilty when he is not guilty.
AN CATHAOIRLEACH
Another eminent jurist said that that was the most stupid observation that was ever made.
He must have been one of those who got through some time or another, or he ought to have got through. There are people in the country at present who think that we are taking too many precautions to find people guilty, and that it is almost impossible now to escape. As we are working towards normal conditions, I prefer to give the present conditions a trial for a little while longer to see if this fever which is gradually subsiding will soon approach a normal state, before we actually decide to take away the advantages which accused persons have enjoyed up to this. It is something to be proud of that twelve men must be satisfied before a man can be found guilty. That is a great safeguard, and I do not think we ought to take it away unless a very strong case is made against such a departure, and I am not exactly satisfied that a strong case can be made. There are districts in the country where you want even less than nine to find a verdict of guilty out of a jury of twelve. We have taken precautions to deal with cases of that sort by bringing the accused persons to other places, but the more easily, I think, we get back to normal conditions the better. Although I have not had an opportunity of consulting the Attorney-General on this, my own impression is that it would be better not to adopt it for the present.
AN CATHAOIRLEACH
I might say that the Judiciary Committee considered this matter very carefully, and there was not a single voice raised in favour of making any change as regards criminal cases.
Amendment, by leave, withdrawn.
I beg to move the following amendment which stands in my name. In Section 92, line 24 and line 27, to delete in each line the word "nine" and to substitute therefor the word "seven."
The procedure as regards juries has been greatly improved in this Bill, and my amendment is intended to effect a further improvement. In my opinion, the amendment I propose will effect a big improvement in the Bill as it stands. It is very desirable, I think, especially in civil cases which come before juries, that a decision should be given, and I think it is more likely that a decision will follow where you have a majority of seven to five as against a majority of nine to three. We all know that when disagreements take place with juries that great hardship and expense are inflicted on litigants. I think if my amendment were agreed to that much of this hardship and expense would be removed.
AN CATHAOIRLEACH
So far as hardship on litigants is concerned, I have known hosts of cases in which the jury intimated that they could not agree. The litigants were asked would they accept a verdict of the majority, and they invariably refused. I never knew a case in which they agreed to take it, because neither of them knew which way the verdict was going to turn, and they preferred to have another go.
If it is put into the Bill they will have to agree.
In the majority of cases in which juries disagree there is usually only one man who holds out.
Amendment declared lost.
Question:—"That Section 92 stand part of the Bill"—put and agreed to.
Amendment 47 (Section 93) agreed to be taken on the Report Stage.
Amendment 48 (Section 93) not moved.
Sections 93, 94, 95, 96 and 97 put and agreed to.
SECTION 98.
"Unless and until otherwise determined by the Oireachtas, all registrars, clerks, and other officers attached to the existing Supreme Court of Judicature or to the Lord Chief Justice in the exercise of the jurisdiction in Lunacy vested in him and to the Courts of existing Recorders, County Court Judges and District Justices or the Divisional Magistrates of the Police District of Dublin Metropolis shall continue to hold office by the same tenure as heretofore, and to discharge the duties heretofore discharged by them or duties analogous thereto. Every question which shall arise as to whether any duties are analogous to any other duties shall be determined by the Chief Justice, whose decision shall be final. Nothing in this Section shall prejudice the rights of any officer under Section 10 of the Articles of Agreement for a Treaty between Great Britain and Ireland signed at London on the 6th day of December, 1921."
I beg to move Amendment 50, in Section 98, line 32—
After the word "tenure" to insert the words:—"and upon the same terms and conditions, and receive the same salaries, and if entitled to pensions, be entitled to the same pensions."
This is a very modest amendment, and I am sure the President will agree to it at once. There are certain gentlemen entitled to pensions and they are under the apprehension that if this Bill is passed they will not receive the pensions to which they are entitled. I do not think myself that there is any fear of their not getting their pensions, but on the other hand it would be well to set their minds at rest. When the Bill was first introduced an amendment was agreed upon between the representatives of these gentlemen and the Government to the effect that the existing officers were to be taken over with the same tenure, terms and conditions and salaries, and rights to the same pensions that they would enjoy if the Bill had not passed. Subsequently that agreed amendment was further amended and the provision as to conditions, salaries and pensions was struck out. It appears upon that point, as to whether their case is covered by the amended amendment, legal opinion differs, and therefore I venture respectfully to suggest that the President might allow the amendment to be carried in its original form, which is as I have now put it on the paper. It does not cost the country anything; it will not make any difference to the Government in any respect, but it will satisfy the minds of these gentlemen that they will receive the pensions to which they are entitled and that their claims will receive due consideration.
I spoke to the Attorney-General in reference to this before the amendment was put on the paper at all, and the view he took, as I understand, was that the word "tenure" would cover everything. He had no intention at all of depriving these officers of any right in the clause as originally drafted, and I think if this is left over we will have no difficulty in getting the Attorney-General to put in these words again and the matter will be put at rest.
I agree to that.
If you take it that I will consider it, I do not know that I am a free agent in the matter. I am not entitled to go beyond Article 10 of the Treaty. That particular Article has cost us a lot, and we get very little out of it except abuse and losing a lot of money. I do not think we could agree to consider the matter favourably in the absence of the Minister for Finance.
I understand the difficulty the President is in, but I will not raise the point of Article 77 of the Constitution. We have heard a great deal about the Constitution, and I think I will leave out Article 77 now as we are likely to hear more about it on the Report Stage.
AN CATHAOIRLEACH
Then the matter stands over for discussion until the Report Stage.
I beg to move Amendment 51, Section 98, to add a new sub-section as follows:—
"Provided that in filling vacancies or in making future appointments of Court Officers in districts where the Irish language is in general use it be an essential qualification of a candidate for any such vacancy or appointment that he possesses such a knowledge, verbal and written, of the Irish language as will enable him to transact if so required all the duties of his office in that language."
I ask for special consideration for this amendment because the difficulties that presented themselves in connection with other amendments do not apply here. Peace Commissioners who are not residing in the area cannot supply the needs of the people in this respect. It does not necessarily follow that the official need be a resident of the district at all. You may have an Irish-speaking area for which officials have to be appointed, and you can have an examination in Dublin or elsewhere if a vacancy occurs among the Court officials, and then one of the successful candidates can come down to the area and reside there and carry out his duties there. There is no difficulty, so far as I can see, in providing that all the minor officials in State Departments in these Irish-speaking areas should be Irish speakers and should be bilingual. Furthermore, I might say you have two languages mentioned in the Constitution, both described as official languages. But even in the Constitution Irish is given the pride of place because it is mentioned as the official language, and English is mentioned only in a secondary sense as also the official language. I do not think it is too much to ask that the officials of the Government in these Irish-speaking areas should for the future know the official language. I think it is a very fair and modest request that State officials should know the official language so that they can speak to those people in their own tongue, and give them information and enable them to take the right course so far as their requirements are concerned. These Irish-speaking people are not very well versed in the procedure required in these various departments for the most ordinary transactions. They are a primitive sort of people, shrewd enough in their way, but when they come into contact with State departments and officials they are rather timorous, and if they are hustled in any way by officials they become more timorous still. If we want to cater for those people the rank and file of officials in those purely Irish-speaking districts should be bilinguists.
Court officers are not dealt with in this Bill at all. Another Bill will be necessary in order to deal with that particular matter, and it will be introduced, and will deal with all additional offices. When that particular Bill comes on it will be open to the Senator to move the insertion of a clause such as this, but this Bill does not deal with any such officers, and deals only with the existing officers in the Government employment.
I take it that in any future appointments the President will see that officers appointed to those Irish-speaking districts will be Irish speakers.
I will take a note of it.
Amendment by leave withdrawn.
Section put and agreed to.
Section 99 ("Appeals pending to Judge of Assize shall be heard by Judges of the High Court") and Section 100 ("Trial of persons awaiting trial at commencement of Act") were agreed to and added to the Bill.
TITLE.
The title was agreed to and added to the Bill.
SCHEDULE.
Motion made and question proposed, "That the Schedule be the Schedule to the Bill."
I had an amendment with reference to grouping areas where the Irish language is in general use so as to form one or more circuits. I understood that the President would possibly fall in with that idea. He promised to look into the matter. If we pass the Schedule now as it stands, no alteration can be made.
AN CATHAOIRLEACH
It can be amended on Report. Anything that is done on Report that involves alteration of the Schedule of course will require an amendment.
Question put and agreed to.
Ordered that the Bill be reported with amendments to the Seanad.