I notice that Section 6 of this Bill alludes to cases where there is a sentence of death, and though it could not possibly be incorporated now, I hope the President and the Executive Council will at some early date bring it about that capital punishment will be abolished in this country. I think the time has arrived when such a happy decision could be made the law of the land, in view of the stabilisation of the country and of the prosperity that is so happily approaching. It has been found an advantage to abolish capital punishment in many countries on the Continent and also in the United States of America, and I should be proud if this fair land of ours should give a lead to our sister country, Great Britain, in this respect. There is a strong agitation growing and increasing throughout Great Britain in this direction. There was an appalling illustration of the need for such a law recently in Germany, where the father of a lad, a gipsy, was executed two years ago for the murder of his child. Now I believe some men have been proved to be the real culprits.
PUBLIC BUSINESS. - COURTS OF JUSTICE BILL, 1928—SECOND STAGE.
CATHAOIRLEACH
Would you hang the culprits?
No, sir, I should not. I should send them to penal servitude. There is another case which is sub judice which has been before the public mind, that of a German named Oscar Slater, who spent 18 or 19 years in penal servitude in Peterhead, Scotland. He is now appealing against that sentence, and if he proves his innocence it will certainly be an appalling thing that an innocent man should have been wrongfully consigned to almost life-long imprisonment. We know that from time to time that has happened in other cases. I submit that it would be infinitely better if capital punishment were abolished, and that a score of people should practically escape punishment, rather than have one innocent man deprived of his liberty or sent to the scaffold. I hope that the President and the Executive Council, before they retire from office—which I hope will be long delayed—will see that capital punishment is abolished. I bring the matter before the House, in the hope that capital punishment for murder will be abolished, and that penal servitude for life be substituted in its place.
I did not anticipate that the question raised by Senator Haughton would be raised on this Bill. I am not prepared to speak on it generally, but I join in hoping that the Executive Council will consider the matter before they retire from office. I cannot hope that they will be so long in office as the Senator hopes. I wish to make a few remarks on the Bill generally. It is clear from the Bill that the Act of 1924 was defective in a number of points, and with the measures taken to deal with these defects I am in full favour. There are some points in the Bill that I think the Seanad should give careful attention to, particularly Section 5, which deals with the additional powers given to the Court of Criminal Appeal. Sub-section (a) of Section 1 reads:
The court may, notwithstanding that they are of opinion that a point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.
I think the closer we keep to the rules governing criminal jurisdiction the more we are on safe ground. This section really means that where the court decides in favour of the prisoner, who has appealed on some point of law, or perhaps on some point of fact, notwithstanding that it decides in his favour, the court constitutes itself a jury to decide whether he is guilty or not. I think that is a very dangerous principle to allow to creep into the administration of criminal justice in this country. Sub-section (b) says:
Where the court reverse a conviction in whole, the court shall have jurisdiction to make an order (in this section referred to as an order for a re-trial)...
On the face of it that may perhaps not seem as objectionable as sub-section (a), but I feel that if a conviction of a prisoner is quashed by the Court of Criminal Appeal, and if it is sent back to a jury again to try it, the accused is hopelessly prejudiced by reason of the fact that it is known that he has been found guilty by a jury in the first instance. I submit under such circumstances a prisoner cannot have a fair trial the second time. The fact is well known, and the jurors will probably know that the man has been already found guilty. They will not be so conversant with the grounds on which the court quashed the conviction. I submit that both these sub-sections should be deleted. After all, the old principle that a man has been in peril once is a very sound one. It may and probably will arise that a man who is really guilty will escape, but I hold that it is better that that would occur rather than justice should get the name of imperilling a man a second time, and with the scales any way loaded against him. We know of some cases that have occurred in this country and in England where a jury has disagreed twice in criminal cases. That fact is certainly in the mind of the jury in the third case, even though no definite decision was come to on the case. In cases where two juries have already disagreed, that is bound to weigh with the jury—two juries had sufficient differences of opinion that they could not come to a definite decision on the facts before them.
Section 9 deals with the appointment of additional judges of the Circuit Court. I am wholeheartedly in favour of that. I feel that the appointment of temporary judges was not fair to the men appointed, and I scarcely think that it works in favour of the proper administration of the law. Practically ever since the Act of 1924 was passed, temporary justices had to be appointed from time to time. It seems to me that the circuits were too large and, almost of necessity, Circuit Judges had to rush their cases. Indeed, I know of one circuit—while I do not wish to say anything by way of criticism of the judge who, I think, did his work extremely well under the circumstances —where the Circuit Judge was so rushed that a great many persons who otherwise would have gone into court refrained from doing so, as they thought that the judge did not have sufficient time to hear their cases exhaustively. These appointments of additional judges will go far to remedy that state of affairs, and I am altogether in favour of the proposal.
Section 11 deals with Circuit Court appeals. Those who were in this House when the Act of 1924 was going through subjected to a considerable amount of criticism the principle of appeal on stenographers' notes. I hope that the result of the experience of the Act will be that that form of appeal will be, at least in some degree, superseded. It is not satisfactory. I think it adds to the congestion in the courts inasmuch as counsel or solicitors appearing in a case, knowing that if there is an appeal, that the judges hearing that appeal must rely on the evidence, lest any point in the case might be lost, examine and cross-examine the witnesses in a far more exhaustive manner than need be. All these things tend to prolong and delay the proceedings in a Circuit Court, and the Judges of Appeal in Dublin have to listen to a tremendous amount of lengthy evidence being read out, on which they base their conclusions on the appeal. Indeed, I can quite imagine the evidence of a glib, well-spoken witness reading extremely well and carrying conviction, whereas if the Judges of Appeal had seen or known something about the witness, as the Circuit Court Judge would probably know, they would not attach so much importance to the oral evidence as to the written note. In addition to that I have always felt that it is physically impossible for a stenographer to sit in court during the whole proceedings and to take down accurately a note of all the cases. In the Dáil and Seanad we see constant relays of notetakers. I know that is because the notes have to be transcribed so that the report may be printed immediately. Those of us who have experience of these things know that it is not physically possible for a stenographer to take notes for hour after hour accurately, and that the side remarks and the cross remarks that take place in court cannot be accurately reflected in the notes which go before the judges who are to decide the appeal.
I have nothing to say to Section 19. I do not know what the Principal Act says, but I have noticed that since the Act of 1924 was passed—it may have been because of special Acts since passed, temporary Acts as a rule— that a number of prisoners, not very many, but sufficient to bring the administration of justice into disrepute and impose great hardships on individuals, have been detained for long periods. Men have been arrested and charged, have been kept in custody for months, lying under the stigma of the charge and put to the expense of making a defence, and when finally indicted a nolle prosequi was entered. I think that form of procedure should not be continued. I would ask the Minister in charge of the Bill to consider that fact and to give the option to a prisoner charged with a criminal offence to be brought to trial before a judge without a jury. If the necessity arises the judge might be empowered to bring in someone—as in Admiralty and shipping cases—qualified to give expert assistance and advice in certain classes of cases.
CATHAOIRLEACH
Are you dealing with criminal cases?
Yes.
CATHAOIRLEACH
The Constitution provides that every criminal case should be tried by a jury, so that your suggestion would be quite out of order on this Bill.
The President and the Executive Council propose legislation, and I would ask them to consider in the case of a prisoner charged with a criminal offence that if the prisoner elected to be tried by a judge without a jury that he should have that right. I know of one case in which figures and commercial questions were involved, which was dealt with by a judge and jury; and, frankly, I think in that case the jury did not take the right course. On the whole, I think this a useful Bill, and I hope that it will not be the final Bill that we will have, and that it will do what the Executive and we desire it to do.
This is a necessary Bill. Four years ago we established an entirely new system of judicature in this country. It has been working ever since, and on the whole it has worked exceedingly well. Naturally, it has developed certain defects, and the object of this Bill is to remedy some of these defects. One defect which was developed by the present system was the necessity to which Senator Dowdall called attention, of appointing temporary judges. Temporary judges are a mistake and that was why the Seanad, when the original Courts of Justice Bill was going through, limited the time during which the Government could appoint temporary justices to a period of three years. I think we increased that period by one year subsequently, but this Bill gets rid of the appointment of temporary judges by adding two to the number of Circuit Judges and by appointing four Assistant District Justices, instead of having temporary justices appointed, when the District Justices are away on holidays or are ill.
That, of course, is a defect which ought to be remedied and I think is sufficiently remedied by the present Bill. Another defect which has been developed by the present system is in connection with Circuit Court appeals which was also referred to by Senator Dowdall. Nothing could be more unsatisfactory than the present system. The cases on appeal are heard on shorthand writers' notes and the judges very properly, I think, have come to the conclusion that they cannot practically interfere with the decision of the Circuit Judge on facts. They cannot tell which witness was telling the truth from the shorthand note and consequently practically the appeal on fact given under the Courts of Justice Act, 1924, is really not an appeal at all. The present Bill provides for certain improvements in the present system of Circuit Court appeals. It gives the Court of Appeal the right to call for additional evidence; it gives the right to have a witness who appeared in the court below or did not appear brought forward, and of having evidence taken in the Court of Appeal. It gives the right also to the Judge of Appeal to consult the judge below, to ask him certain questions if puzzled about matters and get his report on the case. But in my opinion it is impossible to improve the present system of Circuit Court appeals in any way that will be satisfactory, and I am afraid the Government will, in the end, have to make up its mind to do away with the present system and chose between the system which prevails in England, and I think in Scotland too of having only an appeal on law or having cases re-heard by a judge from beginning to end. I am entirely in favour of the latter of these two alternatives and I do not think any other form of appeal would be satisfactory.
Probably I would be well advised if I associate myself with the remarks that have fallen from Senator Brown who speaks with such a wealth of experience of the matters dealt with in this Bill. But as representing for the moment another branch of the profession I would like also to say how necessary this Bill is regarded by solicitors. As Senator Brown has told the House and not for the first time, it became absolutely necessary after a brief experience to appoint temporary Circuit Judges and I think on the occasion when the Act was being put through this House Senator Brown took occasion to point out what an objectionable thing it was to appoint temporary judges. I entirely share that view and, of course, it is to remedy such a state of things that this Bill is introduced as well as for other purposes. I associate myself with the remarks of Senators Brown and Dowdall as to the desirability of amending Section 9. I notice that when Senator Brown was dealing with the Bill that he assumed that these appointments would be made from the Bar and of course properly so, as far as Circuit Court Judges were concerned. For many years I have held the view—although it may not be possible to give effect to it in this Bill—that solicitors would make as good circuit judges as barristers. I say that without the least offence to the senior branch of the profession. I ventured to urge that on the Judicial Committee that was set up, but I was not able to carry my view into effect, to enable solicitors to become Circuit Court Judges. Accordingly, I hope that the Minister will give us an assurance that in the appointments indicated in Section 13 a reasonable share will be given to the members of the solicitors' profession.
I am quite aware that there is no statutory obligation of that kind in the Principal Act, but I think that the Minister for Justice and the Executive Council generally will share the view that I venture to submit to the House, that the solicitors who have been appointed District Justices, have, on the whole, discharged their duties admirably, and I do hope that when these appointments are being made due regard will be given to the reasonable claims of the solicitors' profession. There are other matters in the Bill which, on the whole, I regard as very necessary and very useful, which may be more properly discussed in Committee. I will not refer to them in detail now. I hope the Bill will pass as soon as possible.
I feel that I have to apologise to the Seanad for not being present when the Second Reading of the Bill came on. I was answering some questions in the Dáil, and I hope that the Seanad will hold me excused. On the point mentioned by Senator Brady, the appointment of a reasonable number of solicitors to these vacant posts, I will make to Senator Brady precisely the same answer as I made to Deputy Wolfe in the Dáil, that I cannot give any definite undertaking as to the proportion of solicitors and barristers that will be appointed to these posts, but that the claim of each applicant will be properly considered and that an applicant will not receive preference because he happens to be a barrister.
I do not like interrupting the Minister, but, rightly or wrongly, I understood—and I have already said that there is no statutory obligation—that there was an honourable understanding, to which the Minister's predecessor was a party, that fifty per cent. of the appointments of District Justices would be given to my profession.
I could not give an undertaking that fifty per cent. would, of necessity, go to solicitors but, as I say, solicitors and barristers will be equally considered in the making of these appointments. The necessity for Section 5 arises from this circumstance, that in the Courts of Justice Act there was for the first time a principle new to this country put into operation, that was the establishment of a Court of Criminal Appeal. Until the passing of the Courts of Justice Act if a man was convicted, he had, for all practical purposes, no appeal, and the verdict stood. On a point of law there might possibly be a point reserved by the judge to the Court of Crown Cases Reserved, but on the facts there was no appeal at all. An appeal has now been created on law and on fact. But it was found in working that sometimes defects would take place in the trial, defects which might not go to the real root of the matter, but which might be objectionable in point of law. For instance, a little bit of evidence might be admitted which would not be vital to the issue, but the admission of which was in itself wrong. In such a case a man obviously guilty, and found guilty by a jury, would get out on a newly-created technicality. This section has been devised in order that a guilty man shall not escape on a pure technicality. The first sub-section deals with a case in which a small point is raised and the court is of opinion that, though the judge may have been wrong in admitting that small point, yet it is clear from the evidence that the jury must have believed that the man was guilty, and as a consequence, if the matter is small and the judges are satisfied that there is no miscarriage of justice, the verdict will stand. I submit to the Seanad that that is sound. Our duty in administering the law is to see, principally, that no innocent man shall suffer, but at the same time we should not have a code of law by which a man who had been found guilty by a jury of his fellow-countrymen should escape on a purely technical point.
The second sub-section deals with another matter: that is, if the trial has been unsatisfactory and the court is in doubt it can order a new trial. The new trial will be when there is substantial doubt in the mind of the court as to whether the trial was or was not satisfactory. That has also been found from practice to be an advisable provision. The Chief Justice, delivering the unanimous opinion of the Court of Criminal Appeal, recently suggested that some such provision was desirable, and the Seanad will notice that the court has full powers to make orders as to costs in a case of that nature, so that if a new trial is ordered the court, if it thinks it right, can order that the person charged will not have to bear the costs of the second trial.
Section 11 is very largely an old section of the Courts of Justice Act reenacted. The only substantial alteration that it makes is this—and this happened in fact—that if the shorthand notes get lost, or destroyed, or were not available, as the law stands the case cannot be re-heard, because as the law stands it must be re-heard on the shorthand notes. It did happen in a case that the shorthand notes got lost, with the result that the would-be appellant was deprived of his right of appeal. That is the only alteration in the existing law which this section makes. Sub-section (2) of that section is really a re-statement of the law as it exists in the Courts of Justice Act at present. On the whole question as to whether this is or is not a satisfactory method of appeal, I would suggest that that does not arise on this Bill, but it is a matter, I may say, to which the Executive Council purpose in the immediate future to give very careful attention.
Am I not right in thinking that the provisions of Section 11 apply to other cases, whether the shorthand notes are available or not? Even if they are available the court can get this additional evidence?
That is a very great improvement.
Yes, but the main thing is the shorthand notes.
I am disappointed that the Minister did not deal with the real reason for bringing forward this Bill. The real reason is because of the fact that it has been found from experience, I think, that the judges are not competent to get through their work. It appears to me that that is the real reason. The Bill gives power to the Executive Council to appoint extra judges. A most important point has been lost sight of altogether in this discussion, and it is this: I have been informed by people who know that, owing to the large number of appeals that have cropped up in the courts, the judges were not able to overtake the work, and that in consequence temporary judges had to be appointed. Now, the question of the appointment of temporary judges is being got over by giving power to the Executive Council to appoint at least six additional judges and justices.
That is not right.
Two under one head and four under another.
The Commissioners were appointed to hear appeals from the Circuit Courts. They were doing the work of High Court Judges. This Bill is giving power for the appointment of two additional Circuit Court Judges and four additional District Court Justices. The reason for the appointment of four additional District Court Justices is this, that at present there are temporary District Justices who do the work of an ordinary District Justice while he is on his holidays, away on account of sickness, or away for some reason of that nature. Now, instead of appointing from time to time certain members of the Bar, or certain solicitors, temporarily to do this work, it was thought that it would be better to have four men who would be, as it were, reliefs, permanent men who would take up the work of the District Justices when they went on their holidays or became sick.
The Minister must take me as being opposed to the appointment of temporary people, because I have been opposed to that all my life, and I spoke against that in this case when the Bill was introduced. To my mind, the important point that arises is this, that the whole legal system is very costly, and we are adding to the cost now. It appears to me that we are catering for the people who are too fond of litigation. We are providing an easy means for those people to be continually going to law, people who ought to be able to settle their differences outside, without putting the taxpayer to this extraordinary expense, and without keeping the courts going for their private differences and facilitating bad-tempered people. It appears to me that too many facilities are given for these bad-tempered people, and that some consideration ought to be given to the taxpayer, so that if these people want to be continually going to law they ought to be made pay the expense.
I think they do.