With regard to the motion in my name to limit the discussion on this stage of the Bill, I would like to say that it has been tabled as a precaution against possible contingencies, but I shall not move it if from the different sections or parties in the House some indication is given that there will be agreement to limit the discussion within reasonable bounds. Before I say whether or not I will proceed with the motion, I would like to hear from those who can speak for the different sections or parties what attitude they will take up in regard to this Bill.
Juries (Protection) Bill, 1929—Committee Stage.
Might I suggest that perhaps it would be better for the Senator to adjourn his motion until to-morrow afternoon? We will then see what progress we have made. I think everybody will try to take a reasonable view of the Committee Stage of this Bill, and that none of us wants anything like a closure if the Senate can possibly help it. Therefore, I suggest to the Senator that this motion should be adjourned, with the consent of the House, until to-morrow.
Cathaoirleach
I think that is a very good suggestion, and I was going to make it myself.
I think it was unnecessary to have this motion on the Order Paper at all. I think this is the first time since this House was established that a guillotine motion has been introduced. I protest that this motion has been put down without any justification whatever. It has been put down in anticipation of something that might or might not take place, and I think that is most unfair and unjust.
On a point of order. Are we debating the motion now or not?
Cathaoirleach
It has not been moved.
I understand that Senator Milroy made a speech in favour of the motion and that he wanted a guarantee of good behaviour given before deciding whether he would move it or not. I am not prepared to give my guarantee.
There is one point that requires correction. Standing Order 29 specifically provides for such a motion, and there is nothing unfair about it.
Cathaoirleach
The motion will be adjourned until to-morrow.
SECTION 1.
(1) In this Act the expression "the Principal Act" means the Juries Act, 1927 (No. 23 of 1927).
(2) This Act shall be read and construed as one with Part V of the Principal Act and accordingly all words and expressions occurring in this Act to which a particular meaning or interpretation is given in the Principal Act, either generally or for the purposes of Part V of that Act, shall in this Act respectively have the meaning or interpretation so given to them in the Principal Act.
I move:—
To add at the end of the section a new sub-section as follows:—
"(3) The provisions of sections 3, 4, 5, 6, 7, 8, 9 and 12 of this Act shall not extend to or affect the trial of any accused person in cases other than those arising out of offences committed in pursuance of political objects and the question whether the case comes within the category of cases affected by the provisions of this Act shall be determined by the District Justice returning the accused for trial and the decision of such District Justice shall be subject to appeal to the Judge at the trial or the High Court."
Though I disagree entirely with this Bill, it has passed its Second Reading, and I am moving this amendment in order to limit it to a degree that seems to me to be proper and to limit it also to what Ministers themselves have stated to be its object. The object of this Bill is to prevent certain associations, to which it is alleged certain crimes have been due, from taking steps to intimidate jurors. As that is the object, and as it is not the object of the Bill to change the whole regulation of the jury system, I move this amendment to limit it so that it will apply only to those classes which have been referred to by the Minister. I think it would be well that it should be clearly understood from the beginning that this Bill is to be used only in cases where certain political parties are alleged to have committed certain crimes. I do not think that anybody in this House would approve of the proposed system being extended, for instance, to the case of a quarrel between a man and his wife; I do not think anybody would wish to have it extended to such cases as trespass, which are very common in country districts and about which there are quarrels, and turbary rights and such things. Therefore, I move this amendment, in order to exempt certain sections of the Bill from being used in those cases.
It is not very easy to word an amendment of this sort, nor is it very easy to find a proper place for it in the Bill, but I have put it down in this form so that it shall include only the classes of crimes which Ministers have alluded to, leaving the ordinary crimes to be tried as usual. It is not that I approve of the proposed changes in the law: I wish to limit them to the alleged object of the Bill. I do not see that any Senator can object to this amendment although it is rather a sweeping one, but it would limit the Bill to the particular cases it is meant to deal with.
The object of this Bill is to protect juries. The object of the Bill is to ensure that persons with criminal intent shall not know the names of jurymen. Now, all classes of crimes which are sent up for trial are tried by the same panel. A panel which is public for one purpose will be public for another purpose, and if this amendment were carried there would be no secrecy at all for the jury panel, no secrecy at all to safeguard jurors. There is exactly the same panel for cases where a husband is indicted for a serious assault upon his wife as there is for any other class of crime. If the panel is public for one it must be public for every other class of crime that is tried, and since that would do away with any secrecy at all and would make the entire panel for all cases public, I ask the Seanad to reject the amendment.
There is another reason. The amendment refers to crimes committed in pursuance of political objects, and that is to be decided by the District Justice. Personally I do not see any difference between a crime which is committed from one motive and a crime which is committed from another motive, but here the District Justice is to decide what was the motive in the mind of every person who is charged with having committed a crime. In other words, he must find a person guilty before he can decide what was in his mind. A certain person—A. B. —may be charged with a certain offence. What A. B.'s motive was would have to be decided. But A. B. has not been tried; A. B. has not been found guilty. The District Justice would, in the first instance, have to decide the guilt of the person to be tried before he could decide what was in the mind of the person who did in fact commit the crime. It would be utterly unworkable. I repeat—because this runs right through a number of amendments which will come before the Seanad—that the main object of this Bill is to ensure that persons of criminal intent shall not know the names of the jurors on the panel, and this amendment would make the panel public property.
In the course of the speech we have just heard I was wondering whether the Minister had forgotten all that he ever learned. He came to the Seanad and asked us to pass the most drastic piece of legislation that has ever been brought before a Parliamentary assembly, a piece of legislation which deprives the ordinary citizen of his ancient right, a right that has come down to us in the city of Dublin from the year 1200. For more than 700 years the citizens of Dublin have enjoyed that right and safeguard of personal liberty which is provided by a trial by the citizens of this old city, a trial by their peers, an open trial. That is a guarantee of personal liberty, and that is what we are here endeavouring to defend. Talk of political liberty: it is absolutely useless to the plain man so long as his personal liberty is assailed. There have been troubles in every decade; in every generation trial by jury has passed through a stormy sea. It is always being assailed by Ministers. There is a continual struggle between the Ministerial mind and the sense of personal freedom which has to be guarded by the legislature of the country. In past centuries difficulties have occurred in reference to the trials of persons accused of various offences. No one knows better than the Minister how these difficulties have been met. I may say that no attempt was ever made to reverse, to upturn the jury system as established.
On a point of order I think this is a Second Reading speech.
It is a speech answering the two points that were made by the Minister. I will come to them. I am perfectly entitled to say that the Minister has come here asking for powers. He has given reasons why he asked for those powers. Our amendment proposes that the powers should be limited to the reasons given, and I think the interruption is quite irregular, if I may say so.
Cathaoirleach
But he is quite entitled to make the point if he desires.
I submit that the interruption is not bona fide.
The guillotine is on.
The Minister says he wants to protect jurors. He wants to protect jurors from the ramifications of a certain conspiracy, as he calls it. He wants to protect jurors from a certain class of men whom he alleges are guilty of a certain class of offence. The Seanad has given a Second Reading to and has accepted the principle of the Bill. I am entitled to say: "Accept the principle but limit its application to those classes of persons and offences in respect of which the Minister has endeavoured to make a case," and I think I am perfectly right in going back over past legislation. I do not mean to occupy the time of this House unnecessarily. I am not going in for pothouse politics or corner-boy legislation. I am going to argue this case clearly and plainly, and I am entitled to lay before the Seanad the principles upon which legislatures have acted before now.
The Minister said the panel is the same for all classes of offences; if it is disclosed for one class of offence it will be disclosed for all. That is the reason why I stated, in presence of the Minister, that he must have forgotten all that he ever learned, because in times past, when dealing with special classes of offences, and people of a certain class, special panels have been constituted, special commissions have been issued, and the Minister should not think that members of this House are unlettered men who know nothing about the history of their country.
The Minister knows well that in the last century, and up to the beginning of the present century, special commissions were issued for the trial of a certain class of offence in Clare, in Tipperary and in other counties. A special commission, which was held in Tipperary in the last century is historic; a special commission which was held in Clare is read and re-read by lawyers, including the Minister, who now says he has no other remedy but to take from the ordinary man his ancient hereditary right to personal freedom and the security for personal freedom. That is the first reason the Minister gives. The Minister said that he recognises no difference between crimes. Does he recognise any difference between punishments? We recognise no difference between crimes. We say that crimes ought to be tried by the ancient tribunal. We say that there is nothing in modern crimes to differentiate them from crimes that have been committed in the past. Crime, unfortunately, is of the same character always, and we say that the method of dealing with crime, if crime there is, should be the old and tried method. That is our position. The Minister, in the case which he makes for this Bill, is forced to admit that the ordinary citizen gives him no special trouble. Why is the ordinary citizen to be penalised by having the security for his freedom taken away? Why is his right to an unanimous verdict, before he can be punished by the State, taken away from him? No reason was given by the Minister why that should be so. It is unnecessary for me to argue this matter in this Assembly, to go through the process of endeavouring to argue a matter which you know in your hearts to be true, namely, that there is no case made out in circumstances of this kind why the ordinary citizen should be deprived of his rights. The answer of the Minister is: "Oh, the machinery is the same; the panel is the same."
I submit for the consideration of the Seanad that the machinery can be so framed as to leave the citizen his ordinary rights. Let the Minister, if there is conspiracy, deal with it and with the persons alleged to be guilty of offences in pursuance of that conspiracy, by whatever measure the Dáil and the Senate will put into his hands. The panel for Dublin is, of course, the panel for the trial of all prisoners returned for trial within the city. There is nothing in the world to prevent the Minister from having a special panel, but let the ordinary panel do its ordinary work, and let jurors go to the courts freely and openly to try cases freely and openly. Let the ordinary prisoner have the right to the unanimous verdict.
The Minister makes what I call the very curious excuse that according to the terms of this amendment the duties cast upon the District Justice are too onerous. The Minister asks how can the District Justice determine whether an offence is committed in pursuance of a political object or not. He can say whether it is committed in pursuance of an alleged political object. He can decide, and if he decides to send forward a prisoner to a special commission of any description, he can say so, and his decision under the terms of this amendment is subject to appeal by either party. If the District Justice returns a man for trial to a special commission to be held in Cork, Dublin or elsewhere, either the accused or the Attorney-General can say "‘I object." Either party can appeal to the High Court, affidavits would be read and the case would be decided by the High Court. Either party at the special commission before the judge appointed to hear the case can say, "This is not a case coming within the provisions of this section."
Here is a case of an ordinary man who is accused of having committed an assault, or an attempted murder in the course of a bog dispute as Senator Moore suggested. He is not concerned with any special or any particular class of offence. I claim to have that man sent forward for trial by an ordinary panel. I claim for that man the right of the unanimous verdict of the jury before he is convicted. I claim that such a man should have his ancient right and should not be convicted and imprisoned on the verdict of nine. I submit that the object of the amendment is to give the Minister such powers as he has shown reason for, and to withhold from the Minister arbitrary powers for which he has shown no grounds whatever. In his short speech the Minister seemed to have recognised the force of that argument because he did not attempt to answer it. The only thing he said was "Oh, I cannot arrange the machinery." I ask the Seanad to take it from me that the machinery has been arranged before now. He has precedent after precedent for that.
That is not the amendment.
If the amendment is passed it is quite simple, as Senator Brown as well as the Minister knows, to come to the Dáil and the Seanad for the proper machinery to meet the case.
And get a new Act?
We have passed Acts here in the space of five minutes. My friends, Senator Milroy and Senator Brown, have again and again applied for the suspension of Standing Orders, and they have sent Acts galloping through this place in the space of less than five minutes.
Cathaoirleach
We cannot gallop much if we spend much longer on this. Ten minutes is the time allocated for each speech.
If I have spoken longer——
Cathaoirleach
Seventeen minutes, nearly twice the amount allowed, but I did not wish to interrupt you.
If the Senate considers that the amendment proposed by Senator Moore is reasonable in itself, I am prepared to assure the Seanad that the machinery is not beyond the genius of lawyers like Senator Brown and the Minister, and the argument that machinery cannot be devised is perfectly absurd.
It seems, if the Minister is pressing this matter, that he is going down the hill as rapidly as he can, if he was ever on top of it. Certainly he is attempting to take away the right of the ordinary citizen. He said that a small band of people were causing this trouble, and, on account of that small band, he proceeds to take away the right of the whole Irish people to be tried by juries. To me that seems a very degrading state, and if that is so we understand the object of the Bill is to place the people in the hands of policemen and himself, to judge, one way or another.
I would like that the House be perfectly clear as to the object of the Bill and as to what led up to it. I think all Senators must agree that citizens have been menaced because of their attendance on juries. Senator Comyn has spoken of depriving ordinary citizens of their rights. What are their rights under this Bill and under previous Acts? The accused has the right to be presented with a panel of jurors. When that right is made use of, a right which Senator Comyn claims to be the right of every citizen accused, for the purpose of menacing other citizens in the performance of their statutory duties, would Senator Comyn or any other Senator say that the Government should remain supine and do nothing?
I say have a special panel. I am being misrepresented.
We come now to the special panel. That is only a matter of degree as to what security you can give—either a full panel of jurors or a special panel. I say that you are narrowing down and increasing the risk if the Minister selects a special panel—picking out men who would be specially marked.
A special panel can be twice as large as an ordinary panel.
Or twice as small. In any case a special panel is taken out of a different class, because you certainly focus attention on the men who are named in the special panel.
They are not named.
You take from the ordinary man, Senator Comyn says, his hereditary right to personal freedom, and to security for personal freedom. But who is taking from the ordinary citizen his hereditary right to personal freedom and security for personal freedom? A certain number of men and women, however you may term them, of criminal intent, who are trying to break down the system of justice that prevails in this country. The ordinary citizen has his hereditary right to personal freedom and security. It was to re-establish and accentuate that hereditary right of personal freedom and security for personal freedom that this Bill was brought in. Who are those who are directly responsible for bringing in this Bill? People of criminal intent who have banded themselves together for the breaking down of the hereditary rights of the citizens.
For half a dozen bad people, why take away the rights of all citizens?
Cathaoirleach
You have already replied, Senator, and you cannot speak again.
The rights of the ordinary people are not being taken away by the Bill. It is those who are banded together with criminal intent who are taking away the rights of the people and their personal security to freedom. Senator Comyn said that the tried method should prevail. I agree, and if all men were well affected, as they have been in the past, and as I hope they will be in the future, the old and tried methods would be sufficient for the dispensation of justice and should prevail. But when a band of conspirators come together and say, "We will break down that old tried method, we will menace and intimidate those who are in authority, we will menace the ordinary citizen who is one part of the make-up of that old tried method"——
Cathaoirleach
I would like to point out to the Senator that his speech is very nearly a Second Reading speech.
I am just trying to answer some of the points made in support of the amendment.
Cathaoirleach
Senator Col. Moore already closed the debate on the amendment. He replied to all the arguments that had been made against it. The Senator should have stood up to speak before Senator Col. Moore made his final statement.
I want to get at the root of this whole matter. If we are all well-affected Senators in this Assembly, that each man conscientiously believes that no matter what the result may be no person should be wronged in what he possesses of right, that no person should be wronged in his property or in his person for doing his duty, if we all seize on that fundamental idea, then this debate should be very short. That is at the root of this whole thing. Senators who have stood up here and tried to cut across the intentions of this Bill have, in effect, admitted that they have not, I would suggest, an entire sense of what their responsibility is as legislators of this State. I simply want to strike deep down to see where we are in this matter. I say that every well-affected Senator should approach the matter entirely above party considerations and entirely in the interests of the State, in the carrying on of the State and in the discharge of its functions.
It seems to me that the arguments put up by the proposer and seconder of the amendment, and even by the Minister, have entirely escaped the last speaker's outlook. What Senator Col. Moore's amendment proposes to do is to eliminate from the scope of the panel of jurors those who are not affected at all or who do not come under the heading of the offences which the Minister for Justice alleged are taking place, and which Senator Kenny, I think, stressed rather unduly. The object of the amendment is to leave free the ordinary citizen who may be charged with other offences. That point does not seem to have permeated Senator Kenny's mind at all. The Senator's speech was, I think, altogether away from the point dealt with in the amendment. His speech, if I may so describe it, was a complete diatribe and was entirely futile. What the amendment seeks is, in the event of the Bill going through, to protect those people who are not concerned with those alleged political and other offences that the Minister for Justice complained of.
There was one aspect of the case presented by Senator Comyn that I would like to deal with. The Senator seriously put it forward that the District Justice was to determine whether the offence was one that was committed in pursuance of a political object or not. The only evidence to be taken into account, according to Senator Comyn's summary of the position, are the affidavits to be presented by both sides. If that line of procedure is to be followed, then what is the purpose, good, bad or indifferent, of our courts of law? If that one fundamental issue as to whether a matter arises out of a political object or not is to be determined by a District Justice, then for what purpose have we all the machinery of the law courts? The affidavits presented by both sides may be absolutely contradictory. Are no witnesses to be brought forward to say whether or not the matter to be determined arises out of the pursuance of a political object or not? If witnesses are to come forward to give evidence, what is going to be their fate afterwards, and what is going to protect them? That a legal man should stand up here and say that that fundamental issue is to be determined by the District Justice alone, and determined on two affidavits which may be absolutely contradictory, is to my mind to suggest the carrying out of a most foolish procedure.
It has been done before. In order to meet the Senator's objection, we are prepared to alter the amendment by inserting the word "alleged."
Again, might I ask who is going to allege? If somebody alleges that the matter arises out of the pursuance of a political object, then I take it it is alleged to be so, and would accordingly come within that category. Is the procedure which the Senator is suggesting to be this: that the administration of justice is going to be based upon this, that someone can come before the District Justice and allege that the offence, whatever it was, was committed in pursuance of some political object? If that is the basis on which the administration of justice is going to be carried out, then I do not know what we are coming to. It is rather extraordinary that no witnesses are to be summoned. If Senator Comyn is putting forward his case seriously——
On a point of explanation. A person cannot be returned for trial unless evidence has been sworn against him.
If Senator Comyn were putting forward his case seriously in that respect, then I take it witnesses would have to come forward on both sides and for all practical purposes the whole case would have to be prejudged. Witnesses would have to come forward and say that it was an ordinary offence without any political significance. Else how on earth could the District Justice be expected to come to a decision on the matter? To my mind the amendment is impracticable, and could not possibly be worked.
This amendment seems so utterly impossible of working out, that I propose to vote against it.
In reply——
Cathaoirleach
You are rising now, Senator, for the purpose of closing the debate.
I do not know what other people are going to do.
Cathaoirleach
Apparently all the other Senators who desired to speak on this have exhausted what they wished to say. I am now allowing you to speak for the purpose of closing the debate.
If I am only to be allowed to speak in that sort of way, then I will not speak at all.
Cathaoirleach
You have the right to speak in closing the debate.
As to the question of this alleged business, that is happening every day in the courts. As far as I know, prisoners are brought up and are charged with certain alleged crimes. Until they are found guilty, of course they are not guilty. The proceedings begin with certain crimes being alleged against them, and the jury decide to convict them or not on these charges. Proceedings usually begin by persons being brought before a magistrate, when certain offences are alleged against them. Then these people are tried because it is alleged they did these things.
Amendment put.
The Committee divided: Tá, 8; Níl, 35.
Tá
- Caitlín Bean Uí Chléirigh.
- Michael Comyn, K.C.
- Joseph Connolly.
- Thomas Linehan.
- Seán E. MacEllin.
- Colonel Moore.
- Joseph O'Doherty.
- Séamus Robinson.
Níl
- William Barrington.
- Sir Edward Coey Bigger.
- Samuel L. Brown, K.C.
- Miss Kathleen Browne.
- Alfred Byrne.
- Mrs. Costello.
- John C. Counihan.
- The Countess of Desart.
- James G. Douglas.
- Michael Duffy.
- Sir Thomas Grattan Esmonde.
- Michael Fanning.
- Thomas Farren.
- Thomas Foran.
- Henry S. Guinness.
- Major-General Sir William Hickie.
- Right Hon. Andrew Jameson.
- Thomas Johnson.
- Sir John Keane.
- Cornelius Kennedy.
- Patrick W. Kenny.
- The McGillycuddy of the Reeks.
- Francis MacGuinness.
- James MacKean.
- John MacLoughlin.
- Seán Milroy.
- James Moran.
- Sir Walter Nugent.
- Joseph O'Connor.
- M. F. O'Hanlon.
- L. O'Neill.
- James J. Parkinson.
- Siobhán Bean an Phaoraigh.
- Thomas Toal.
- Richard Wilson.
Amendment declared lost.
Section 1 put, and declared carried.
SECTION 2.
(1) In every county and county borough to which this section is applied by an order made under this section the powers and duties conferred or imposed on the under-sheriff of such county or county borough by Part V of the Principal Act, whether as empanelling officer, summoning officer, or otherwise, shall as from the date of such order become and be transferred to and conferred or imposed on the several and respective officers on whom such powers and duties would respectively be conferred or imposed by the said Part V of the Principal Act if the office of such under-sheriff were vacant, and accordingly the said Part V of the Principal Act and in particular the expressions "the empanelling officer" and "the summoning officer" where they respectively occur therein shall as on and from the date of any such order be construed and have effect in respect of the county or county borough to which such order relates as if the office of under-sheriff in such county or county borough had first become vacant within the meaning of the said Part V of the Principal Act on the date of such order.
(2) The Minister for Justice may, whenever he thinks fit, by order made under this section, apply this section to any county or county borough in which the office of under-sheriff exists and is not vacant at the date of such order.
Cathaoirleach
As regards amendment 2 in the name of Senator Connolly, I must rule it out of order because, in effect, it would, if carried, nullify the whole section. The Senator can achieve his purpose, when the question "That Section 2 stand part of the Bill" is put, by voting against it.
I move amendment 3:—
Section 2, sub-section (1). Before the word "In" in line 24 to insert the words:—
"In every county and county borough to which this section is applied by an order made under this section the powers and duties conferred or imposed on the under-sheriff or the county registrar or any other officer of such county or county borough by Part V of the Principal Act as empanelling officer shall hereafter be discharged by the secretary of the county council in the case of counties and by the town clerk or other principal clerk of the county borough in the case of county boroughs and save as aforesaid"
In view of the general attitude that has been adopted by Senators, it seems to be a rather futile thing, on our part, to be moving the amendments which appear in our names on the Order Paper. Notwithstanding that, I think it is desirable that we should do so. It is desirable that our attitude to the Bill, which has already been explained in detail, should be amplified by our attempts, if such attempts are possible, to improve the Bill. We believe that the Bill is bad inherently, and that no alterations or amendments can correct the evil things that are in it. We are moving amendments to the Bill which we wish to put before reasonable people in this House. We ask them to support these amendments so that the more vicious elements in the Bill may be eliminated altogether. Section 2 of the Bill clearly indicates that it is intended that the entire machinery for the administration of the courts shall be subject only, in effect, to the direction and control of the Minister for Justice. This section in the Bill eliminates the under-sheriff in a county or county borough from operating as the empanelling officer or as the summoning officer or from discharging the duties which he used to discharge in the normal course of his activities, and it proposes that these duties shall be entirely vested in a court official. I feel that that is a most dangerous position for the courts to reach. I do not think that it will make the Juries (alleged) (Protection) Bill a good Bill. The elimination of this section from the Bill might improve the Bill.
The acceptance of the amendment that I have moved would, to some extent, take away from the county registrar the duty of forming the entire panel. It would introduce a public official from the district concerned and would give him a share of the responsibility in the calling of the panel and in the empanelling of the jurors. The acceptance of the amendment would at least keep a public official in touch with the courts and establish, to some extent, a link of connection between the ordinary plain people of the country and the administration of justice as worked out by the legal machinery set up by the Department of the Minister for Justice. I have not much heart in the amendment myself, simply because I feel that the Bill is a vicious one. On the Second Reading we expressed our ideas very fully on this Juries (Protection) Bill. I do not propose to reiterate all the arguments that I and other members of the House used against the Bill. By this and other amendments which we are moving, we are endeavouring to eliminate from the Bill some of the most vicious features in it. It does not seem as if we are going to get, shall I say, reasonable consideration for our proposals. We are particularly concerned with the administration of justice in this country, and we are not looking upon this in any sense as a party measure. We are trying by our amendments to bring a cool and calm judgment upon it, and we are trying to find, if we can, a means by which the worst features of the Bill may be eliminated. The Bill is something that in a very short time I fancy we shall all be thoroughly ashamed of. The longer time goes on the more we will become ashamed of it. This amendment is proposed in that spirit. I am recommending it for the consideration of the House on the grounds that as regards the administration of justice we ought to take some line to safeguard the ordinary plain people. That, I think it will be admitted, is a very essential thing in a Bill of this nature.
I recommend this amendment to the House. It is a very reasonable amendment, and will, I think, provide the necessary safeguard against the possible corruption of justice as well as a safeguard against evils which have been experienced before. Our object is that the secretary to a county council, an officer quite independent of the Minister for Justice and quite outside the courts, should be the man to frame the panel. I make no apology for going rather briefly into the meaning of what we propose to do. The secretary to a county council is the person responsible for the preparation of the voters lists. It is from the voters lists that the jury book is made up. The jury book is made up of men and women of a certain valuation. The valuation of their premises is known to the rate collectors and other officials who are responsible to the secretary of the county council. He is the man that has cognisance of all the facts, data and materials that go to make up the jury book. Out of that jury book the panel of jurors for a trial at a certain Circuit Court or at a certain Commission is selected. The panel is taken out of the jury book according to very stringent rules. These rules are contained in an Act passed by the Oireachtas in the year 1927, and, shortly, they come to this: A name is taken from each letter of the alphabet, and then two or three names are taken from letters in the alphabet representing the greater number of names. It is done on an alphabetical basis. Some of the letters are chosen to take two or three names from them so that there may be an absolutely fair and equal distribution according to the names in the jury book and so that the panel for the trial shall be, as nearly as possible, a miniature of the jury book, and, therefore, representing the people as fairly as possible. Before the Act of 1927 was passed an accused person had the right to challenge the whole panel, and it was successfully challenged some years ago on the grounds that the sheriff was partial. You are giving now, in this Juries Bill, to the registrar of the court tremendous power. You are giving him power to take the names of people who allege they are jurymen half an hour before the court sits, and to give them numbers. You are giving him power to draw up a jury panel, and you are giving him power to keep that panel secret. You are taking from the public the right which they have to challenge that panel. Sheriffs have been found partial in the past. Registrars may be partial in the future. The registrar may be influenced by political considerations. He may be anxious to win favour from the Minister, and he may wrongly suppose that the Minister would be particularly anxious to get a conviction. The whole thing under this Bill rests on the integrity of one man, and that is an official of the County Court. We want you to pass this amendment so as to secure that it shall depend on the integrity of two men.
I think it is not too much to ask the House, and we do not ask you to have a selection of the panel given to a person that is not a responsible officer. The secretary of the County Council is a responsible officer. He is an officer whose discretion can be relied on to keep secrecy, and he can be depended on just as much as a registrar of the County Court. We say: do not leave it to one person; have two. Let the secretary of the county council have the right, as a different authority, a person not directly dependent on the Minister. Let him have the selection of the panel, under a vow of secrecy if you like, but let him select a fair panel. Let him make a fair selection of the citizens, and let him send on the selection to the registrar of the court, and then let the registrar discharge the other important duties which are placed in his hands. I submit this amendment to the House as a perfectly fair, reasonable and statesmanlike amendment, as an amendment which will improve this Bill, if it is humanly possible to improve it, and as some sort of guarantee to the public, some sort of assurance, that the method of trial is going to be fair and above board.
The Senator has not convinced me at all that the decision of the county secretary is going to be better, from the point of view of the administration of justice, than that of the registrar of the court. I think that such an officer would be more likely to be affected by political considerations than the registrar of the court. My objection to this amendment is that it is a departure from what I always understood to be a desirable trend. That is to say, it is a departure from the idea that the administration of justice should be taken out of the hands of political parties, or the administration of the Government of the country. This is in effect going to bring under the administration of an officer of the county council—the county secretary— a portion of the judicial system which is at present separated from the ordinary local government administration. I think that is a distinct mistake, even to suggest. I would require more argument than has been put forward in favour of this amendment before I will support it.
Formerly the selection of the jury was in the hands of the sheriff. Senator Johnson has made a most extraordinary statement, and one which I never expected from a party who affects to be in favour of justice and appeals to the people. He wants to take the power of administering justice from the hands of the people, that is the juries. The whole idea of the Bill is to put into the hands of certain officials, who are more or less under the control of the Minister, the administration of justice. Formerly a man was tried by jury of his peers, and that principle ought to have been deeply rooted in Senator Johnson's ideas. I think he has mistaken his side. I think if he came over to this side he would be in a better position. To advocate the taking away of the control of justice from juries and to hand it over to certain officials appointed by Ministers seems to me very extraordinary. The Minister's idea is to make himself, directly or indirectly, responsible for deciding all questions of life and death, and everything else. He appoints the person who selects the jury. He tells how this is to be done. The whole court is to be kept secret, and everything is to depend on his particular motion. It was said in France that the Minister of Education could tell at any particular moment of the day the particular lesson which a child was learning. Now the Minister for Justice is going to be the head of justice. He will decide all questions of justice, and the packing of juries and the keeping of them secret. Everything must be kept closed, in such a way that the poor unfortunate man who is to be tried has no fair chance. The dice are loaded against him the whole time. from the time he is brought up for trial until he is hanged. The Minister knows it has often happened that people have been wrongfully convicted and hanged, and he must realise that he will be responsible for all the convictions that are going to happen in the Free State for the next few years.
Ne sutor ultra crepidam. Let every man stick to his job. The question of the administration of justice is one for the Department of Justice, the head of which is the Minister for Justice. To bring in any other Department of State is not going to improve matters in the least. The position is that the under-sheriff is charged with a certain function, and is responsible to the Minister for Justice, and the Minister is responsible to the Oireachtas. I think the Department of Justice is the proper Department for dealing with matters that come within its own sphere without bringing in officials of the Local Government Department. According to the arguments we have heard the under-sheriff is likely to go wrong——
On a point of explanation, this Bill provides that the under-sheriff shall have nothing to do with juries.
I mean that the registrar is going to go wrong, and be a ready and willing tool, but that the secretary of the county council is going to be an impeccable person who will take no attitude on political matters, and will not be approachable by or amenable to the call of his own Minister, good, bad or indifferent. We will have justice for the plain people because the secretary of the county council is going to do a certain thing instead of the registrar. The whole argument is put up on one hypothesis, that it is expected that under this system the Minister is likely to use this system for his political objects in the future. That is a terrific indictment, that a Minister responsible to the Oireachtas is going to use the machinery under this Bill for his political purposes and to overwhelm his political opponents in the future. Could anyone put forward a sound line of reasoning for any such hypothesis as that? There is no likelihood of it. No person of sense can argue that the Minister is going to use this for his political objects. There is not the least likelihood of it, good, bad or indifferent. I am afraid that when Senator Connolly said his object was to improve the Bill his interpretation of the word "improvement" is different from ours. Our attempt to improve the Bill is to make it more effective. The Senator's object is to whittle it down and to make it less effective. I submit his hypothesis is wrong. We must not assume that the object of the existing Minister is, instead of using the machinery for the administration of justice in the courts, to spend his life in a vendetta against his political opponents to humiliate them and overwhelm them.
The object of this Bill, as I have already said, is that there shall not be publicity of the names of juries. The fewer the persons through whose hands pass the lists of jurymen the less danger of publicity there is. That is a, b, c. It is suggested here that the county registrar and the secretary of the county council should be the officers who will know the names of the jury. If you have only one officer, that is to say, the county registrar, there is far and away less danger of leakage and less possibility of the names of jurymen being known to those who wish to injure jurymen. When it is proposed that the jury list should pass through the hands of a larger number of persons, I am afraid that I have to come to the conclusion that it is desired to defeat that, and that the Bill should not be effective in its purpose of preventing the names of jurymen becoming known to persons evilly disposed. Senator Moore referred to the under-sheriffs who drew up a panel. In former times the sheriff was nominated by the going judge of Assize to hold office for one year. The sheriff appointed his own sub-sheriff. The sub-sheriffs changed every year with the sheriffs, though, in fact, the new sheriffs often re-appointed the existing sub-sheriffs, but the power remained with the sheriff nominated by the going judge of Assize to nominate his sub-sheriff. That was altered, and a permanent official was substituted for the variable sub-sheriff. The Oireachtas, by legislation, decided there should be permanent sub-sheriffs. The work carried on by sub-sheriffs is carried on by the county registrars at present in six counties of the Saorstát, and in the other counties a similar condition of affairs will obtain. There is no radical alteration here. At best, it would only be a speeding up of the arrangement which must in time take place, because according as the present sub-sheriffs drop out the county registrar automatically becomes the sub-sheriff and does the work by statute. If there is a leakage in the sub-sheriff's office it would be possible to make an order that the sub-sheriff was not to further deal with jury panels. A good deal was said about the officers being under the control of the Minister for Justice, and about the Minister having everything to do with the laws relating to criminal proceedings. To begin with, the county registrar and sub-sheriff can only be dismissed for ill-behaviour. They cannot be wantonly dismissed. The suggestion has been made here that these officials might act corruptly. No one has said that they are acting corruptly now, but it is said that for the future they will be corrupt. Why? They are men chosen from the head of their profession. They are all solicitors of the highest class of standing and personal honour. It is said that they would be influenced by the Minister for Justice, and that the Minister for Justice would write down to them and say: "Please strike an unfair panel for the trial of certain prisoners." That is the suggestion which is frankly put forward here. Does anybody think that is likely, or that if there were a corrupt Minister for Justice that he would find in these county registrars—men of the highest personal honour—willing tools who would act corruptly? Senator Connolly talked about the whole direction and control of justice going into the hands of the Minister for Justice. The Senator ought to know that administration of the jury system does not come under the control of the Minister. The Minister has nothing to do with jury trials. The Minister does not appoint the State Solicitor or the prosecutor. He does not decide what cases are to be prosecuted, or anything else. The Minister for Justice has nothing whatever to do with the administration of criminal law in the courts. That is entirely the work of the Attorney-General.
The Minister's statement and other speeches that have been made bear out my first argument, namely, that it is quite unfair to make such trials as the Ministry are at present aiming at a matter of jury trial. It is quite obvious from the Minister's statement that what they are most afraid of is any leakage; in other words, that they must have absolute and complete secrecy. I made the suggestion last week or the week before that it would be honester and decenter where cases of this kind occur to conduct the trials in the form of courts-martial. I still adhere to that, but if that suggestion is repugnant to the powers that be I go further and make the suggestion that the Minister should at least leave the administration of justice in those cases he is specifically aiming at to a court of three responsible judges. I suggest the legal side would be protected and the ordinary citizen would feel a certain measure of protection in having three leading judges sitting on these cases. I suggest this method of secrecy, this hole and corner business, with the tremendous precautions that are being taken less by any chance the names of the jury or anything else might leak out through the administration of court officials, gives the impression that they have something to hide, something to be afraid of. We are not suggesting the present Minister is going to corrupt his officials, but we say that under this Act it is possible to corrupt the officials, and that it is a dangerous thing to give into the hands of any Minister power to do this, particularly when we remember the Minister is inevitably going to be attached to one or other of the big political Parties. We say the Minister in any Party should be prevented from having such a power. We say that the decentest and honestest thing, if you are not going to go the whole hog and have courts-martial, is to appoint three responsible judges, and let them administer justice in cases where it is not safe for juries to do so at present.
Amendment put.
The Committee divided: Tá, 7; Níl, 38.
Tá
- Caitlín Bean Uí Chléirigh.
- Michael Comyn, K.C.
- Joseph Connolly.
- Seán E. MacEllin.
- Colonel Moore.
- Joseph O'Doherty.
- Séumas Robinson.
Níl
- William Barrington.
- Sir Edward Coey Bigger.
- Samuel L. Brown, K.C.
- Miss Kathleen Browne.
- Alfred Byrne.
- Mrs. Costello.
- John C. Counihan.
- William Cummins.
- The Countess of Desart.
- James G. Douglas.
- Michael Duffy.
- Sir Thomas Grattan Esmonde.
- Michael Fanning.
- Thomas Farren.
- Henry S. Guinness.
- Major-General Sir William Hickie.
- P. J. Hooper.
- Right Hon. Andrew Jameson.
- Thomas Johnson.
- Sir John Keane.
- Cornelius Kennedy.
- Patrick W. Kenny.
- Thomas Linehan.
- The McGillycuddy of the Reeks.
- Francis MacGuinness.
- James MacKean.
- John MacLoughlin.
- Seán Milroy.
- James Moran.
- Sir Walter Nugent.
- Joseph O'Connor.
- John T. O'Farrell.
- M. F. O'Hanlon.
- L. O'Neill.
- James J. Parkinson.
- Siobhán Bean an Phaoraigh.
- Thomas Toal.
- Richard Wilson.
Amendment declared lost.
I move:—
Section 2. To add at the end of the section a new sub-section as follows:—
"(3) All orders made under this section shall be laid on the Table of each House of the Oireachtas, and shall not be valid unless approved of by resolution of each House of the Oireachtas."
I am moving this amendment with the same object that Senator Connolly had in moving his amendment, that is, to try to improve the Bill. I wish it to be known that I am totally opposed to the Bill from beginning to end. I think the Minister could have found other means for dealing with this situation or with attacks on jurors than by bringing in this Bill. I regret that it has been brought in for many reasons. The main reason is that I had felt a good deal of the hostile and bitter feeling that had grown up in later years between different parties in this country was dying a natural death. I was glad to see that. I feel that this Bill is one of the things that for another period will revive these bitter feelings. Because of that I feel it is a bad thing for Ireland to have this Bill brought in. I feel so strongly that until Irishmen and women stand together in the interests of their country against their enemies their enemies will have it all their own way. I do not intend to make a long speech on the amendment, because from what I have seen I think it would be futile. When the Party whip cracks one feels that one is talking to deaf and blind men and women. The amendment is a reasonable one which perhaps the Minister will see his way to accept.
This is a section which, as I have already pointed out, makes the very minimum possible change. It merely expedites what would take place under the ordinary law. There is nothing else in it. That every trivial order should be laid on the Table of each House would, I think, be utterly wrong.
Question put.
The Committee divided: Tá, 8; Níl, 36.
Tá
- Caitlín Bean Uí Chléirigh.
- Michael Comyn, K.C.
- Joseph Connolly.
- Seán E. MacEllin.
- Colonel Moore.
- Joseph O'Doherty.
- Siobhán Bean an Phaoraigh.
- Séumas Robinson.
Níl
- William Barrington.
- Sir Edward Coey Bigger.
- Samuel L. Brown, K.C.
- Miss Kathleen Browne.
- Alfred Byrne.
- Mrs. Costello.
- John C. Counihan.
- William Cummins.
- The Countess of Desart.
- James G. Douglas.
- Michael Duffy.
- Sir Thomas Grattan Esmonde.
- Thomas Farren.
- Thomas Foran.
- Henry S. Guinness.
- Major-General Sir William Hickie.
- P. J. Hooper.
- Right Hon. Andrew Jameson.
- Thomas Johnson.
- Sir John Keane.
- Patrick W. Kenny.
- Thomas Linehan.
- The McGillycuddy of the Reeks.
- Francis MacGuinness.
- James MacKean.
- John MacLaughlin.
- Seán Milroy.
- James Moran.
- Sir Walter Nugent.
- Joseph O'Connor.
- John T. O'Farrell.
- M. F. O'Hanlon.
- L. O'Neill.
- James J. Parkinson.
- Thomas Toal.
- Richard Wilson.
Amendment declared lost.
Question: "That Section 2 stand part of the Bill," put and declared carried.
SECTION 3.
(1) Section 50 of the Principal Act shall not apply to a panel of jurors prepared for a sittings of the Central Criminal Court nor to a panel of jurors prepared for a sittings of a Judge of the Circuit Court for the trial of criminal issues, and in lieu thereof it is hereby enacted that the empanelling officer and the summoning officer shall treat every such panel as a confidential official document.
(2) Notwithstanding anything to the contrary contained in any other enactment, no accused person shall be entitled as of right to a copy of the panel of jurors from which it is intended that the jury for his trial is to be drawn.
Cathaoirleach
An amendment to Section 3, sub-section (1), "To delete the sub-section," standing in the name of Senator Comyn is, I am afraid, out of order, as the effect of it would be to nullify the section.
I move:—
Section 3, sub-section (1). Before the word and figure "Section 50" in line 46 to insert the words and figures "Sub-section (1) and sub-section (3) of."
It is, perhaps, necessary to explain that Section 50 of the Principal Act referred to provides in sub-section (1) that the panel of jurors shall be exhibited in a convenient place, to which the public have access in the building in which the sittings are held. Sub-section (3) provides that any person may get a copy of the panel on applying for the same and paying a fee. Sub-section (2) provides that the empanelling officer "by whom a panel of jurors where the trial of criminal issues is prepared shall supply on demand one copy of such panel free of charge to any accused person who is intended to be tried with the jury selected from such panel." The amendment, if carried, would retain that right for the accused person. It would seem to me a matter of simple justice that the accused person should have the right to know the people that are going to try him. At this stage I will not deal with the question as to whether the prosecutor has a right to know, but one's conception of justice would make one believe that the accused person in a jury trial should have the power to say, "such and such a person on that jury is my personal enemy; he has a prejudice against me; I know his antecedents; I know all about him. He is an enemy who is bound by his previous history to find me guilty, whether I am guilty under the law or not." Under the Bill as at present framed, there is no assurance whatever that the accused person would have any effective right to challenge any such juror. He will only know a number; he will not know a person, and it would seem to me to be the simplest proposition, if we are going to have a jury system at all, that the accused person should be in a position to challenge one who is known to be a declared enemy, one who is known to have a prejudice against him. I think that is one of the simplest propositions in connection with the administration of justice, and I seek the approval of the Seanad to ensure that that proposition should remain enshrined in the practice of the law. But the Bill seeks to deprive the accused person of that simple elementary right. At this stage I do not think I need enlarge on the amendment. The facts are as I have stated, and I think it is only necessary to submit them to the House to secure approval of the proposition.
As far as I can see this amendment coincides practically with amendment No. 7, which stands in my name. I would go so far as to say that the right of the accused to the panel of jurors is an elementary right. I would say that it is necessary for him to have such a panel before him if he is going to be satisfied in his own mind that his trial is to be a fair one, if such a trial could be fair under such an Act as this. There seems to me to have been a deliberate attack on the position of the accused, not merely in this Bill but since 1924. The Courts of Justice Act of 1924 took away from a prisoner the right to be tried in his own county in many cases, reserving those cases for the Central Criminal Court. In 1927, the right of challenging jurors enjoyed by prisoners from about 1871 was reduced from 20 persons to 5, and now in 1929 the accused is to be absolutely deprived of the right of challenge. As Senator Johnson said, he cannot challenge persons; he is merely challenging numbers.
There are many phases of this Bill —practically all the sections—which are objectionable to me, but one of the most objectionable is this section which provides for this right of the accused. Let us not associate ourselves with the establishment of this star-chamber atmosphere around the accused person. A good deal has been said here regarding the inability of the District Justice to say whether certain offences were political or otherwise, but it seems to me that this Bill provides for stigmatising all accused persons as guilty before they have been adjudged so. Otherwise why deprive them of the right to challenge possibly potential or actual enemies, whether they be political enemies or otherwise? I have great pleasure in supporting Senator Johnson's amendment as it coincides with an amendment that I have down.
Senator O'Doherty stated that it is an elementary right that the accused should know the names of the persons who are trying him. He seems to think that it was necessary to know the persons who are on the jury who either find him guilty or innocent. Personally, I think that the best jury of all is the jury that has never seen the prisoner, not a single one of which has ever heard of the prisoner. It is said that a personal enemy might get on to the jury, but the jurymen will be sworn in the presence of the prisoner, and the prisoner has the right to challenge. Everybody must know the appearance of a personal enemy.
Oh, no.
If a person has a personal enemy whose appearance he does not know, that appears to me to be a very strange state of affairs. If it were impossible to have a fair trial without the prisoner being given the panel of the jurymen who are to try him, then there cannot have been fair trials in this country until very recently, because I have gone into the matter as carefully as I could, and I could find nowhere before 1871 was there any right of the prisoner to have the panel. The law was altered in 1871, but it cannot be said that there was never a fair trial up to that time. This is not an entire innovation. It is only going back to what was at one time the existing law in this country. It must be borne in mind that if one person gets a jury panel that jury panel goes around, the names of the jurymen upon it will be perfectly well known, because everyone can see it. The whole object of this Bill is to prevent persons knowing who are on the jury panel. I have said that so often that I do not want to repeat it again, or the other reasons for it. But if any one individual gets a jury panel it will cease to be a private document, because everybody can get possession of it. On the Second Reading I said that in an ordinary case, if a prisoner thinks there is any danger of his personal enemies, or persons who may be prejudiced against him, being on a jury, and if he is defended by a solicitor of standing and position, there would be no objection to him or his solicitor obtaining inspection of the panel— that is to say, he could see the names of the persons on the panel, but could not take a copy. There will be numbers on the panel. He may say that No. 181 is a person who, for some reason or another is opposed to him, and that he would like to challenge him. Inspection of that nature could be got, and would always be got in a case in which the person applying was a person that we were satisfied would not take a list of the jurymen and circulate it. Personally, I am satisfied that every person who is tried under the provisions of this Bill, if it becomes law, will receive justice and as impartial a trial as he would receive at present. But two great faults which existed in the past are eliminated. One is the danger in which jurymen are in, and the other is if the jury panel gets out that the jury will be canvassed and intimidated. You cannot have it both ways. You cannot have a prisoner getting the panel and the jurymen being canvassed and intimidated, because it is the prisoners' friends who do the canvassing and intimidation, and in certain cases, they have gone much further.
The Minister has made what appears to me to be a most important statement with regard to the jury panel. He stated that there would be no objection to the solicitor for the prisoner or the prisoner himself seeing the jury panel. As far as I read the Bill, there is no provision to ensure that. Will the Minister undertake to introduce on this stage or on the next stage a provision to make that matter right?
It is implied in the Bill. It says that it shall be a confidential document. Now if it is a confidential document, the Minister is entitled to allow any person he wishes to see it by order.
That means that he may exclude certain persons, even solicitors.
Precisely. I have said persons would not have it of right.
Would the Minister accept an amendment authorising the accused person or his solicitor during the empanelling and swearing of the jury to see the panel? Would he accept an amendment to that effect? I think he has already stated that it is implicit in the Bill. I searched through the Bill to see whether it is implicit and I find that it is not. In order to carry out what he says is in his mind, will the Minister accept an amendment to the effect that counsel or solicitor for a prisoner should have the right to look at the panel, even after the prisoner is arraigned?
Not in every case.
Then what is the meaning of the Minister's saying that it is implicit in the Bill?
I said that it was implicit in the Bill, that the Minister would have power to make an order that the prisoner or his solicitor should have access to the panel.
Would the Minister show me where it is implicit in the Bill?
Sub-section (1) of Section 3 says: "It is hereby enacted that the empanelling officer and the summoning officer shall treat every such panel as a confidential official document."
That is a section repealing Section 50 of the Juries Act of 1927. That Section 50 was a section that gave the accused person the right to see the panel. This section says the panel shall be treated as a secret confidential official document. In my view, and I submit it to the House as a reasonable view, the meaning of that is that the registrar of the court shall show the panel to no person. If the Minister thinks it is implicit in the Bill that he can show it to the counsel or solicitor for some prisoner——
Not to the counsel. Counsel has never anything to do with the challenging of jurors.
I beg your pardon. The counsel is in charge of the case. If the Minister is of that opinion, and is willing to make that concession, will he accept an amendment to make explicit what he says is implicit?
I have already stated that certain solicitors in certain cases will be permitted to inspect the jury panel. As I say, it is an official document and the disclosing of official documents is a breach of the Official Secrets Act, and it comes under that. The Minister has precisely the same power under this as under the existing law.
Sub-section (2).
I want to get from the Minister a concession on this point. He says the panel is to be treated as a confidential document under the registrar of the court.
An official document.
I want to have it in the Bill that it shall be competent for a registrar of the court to show the panel to the solicitor for the accused.
I have already said that that must be done by the Minister for Justice.
At his discretion?
The point the Minister is now making shows the illogical position he has got into. He pointed out, on another amendment, that he, as Minister, left these matters of administration to the Attorney-General. The section says that the summoning officer and the empanelling officer shall treat every such panel as a confidential official document; that is to say, it is to be a document covered by the Official Secrets Act. The summoning officer is directed here to treat it as an official document, and presumably he is under the same sort of supervision as the court authority. But the Minister now says that he is going to interfere with that officer's discretion. He is going to order, if he thinks well, the empanelling officer to allow solicitor (A) to see the document and to refuse to allow solicitor (B) to see it. He is going to use his discretion to instruct the summoning officer or the empanelling officer whether the document shall be treated as an official secret document or not. The Minister is therefore taking upon himself the right and privilege of interfering with the relation of the prisoner to the court. The empanelling officer will read the Bill when it becomes an Act and will say that nobody must see this document. The Minister comes along and says: "Yes, you must show that document to Solicitor (A)." He does that under the authority of the Official Secrets Act. I want the Senators to clear their minds of the thought that we are now dealing with political cases; we are dealing with ordinary cases of theft, ordinary cases of long-firm frauds, ordinary cases of fraudulent administration of funds. The Minister speaks of a prisoner knowing his enemy. The jury may be drawn from a class of people who will be shareholders in a company which is alleged to have been defrauded. The accused person has to stand his trial before a jury, some of whom he is supposed to have defrauded, and he has no real right of knowing or challenging any person on it. Sir A. B. of such and such a place is known to be a shareholder in that company. The secretary of the company never knew that shareholder's appearance, and does not know who he is. He sees him in the jury box, but he does not know No. 101 on the panel from anybody else. But it turns out in the long run that this juryman is one of the persons who is suffering from the alleged fraud.
Now, I cannot conceive the position of the Minister in saying that this ensures a fair and reasonable trial. The Minister says that the whole object of this is to ensure secrecy. Undoubtedly it is clear that that is the object. He has admitted that absolute secrecy is impossible, because twelve men are going into the box and somebody in the court will know one, two or more of these twelve men, so that absolute secrecy is impossible. But if it were possible we ought not to seek it if it will mean a grave risk of injustice to the accused person, but a comparative amount of secrecy can be obtained if the right of inspection of the jury list that is being suggested is given, even if it is not made available for broadcasting or copying or reproducing. If the right of inspection on behalf of the accused is maintained, then I would be fairly satisfied, on this account at any rate. The Minister denies that as a right. He says: "I will be privileged to allow one solicitor to inspect and in another case to refuse." I hope the House will insist, for the protection of the accused person against possible prejudiced and highly prejudiced jurymen, that that protection will be sustained.
The Minister quoted the precedent of 1871. I can say nothing about the position prior to 1871, but I assume that there was good reason for changing the law in 1871. I presume that the reason for changing the law was that injustice had been done. Surely the Minister in this State in 1929 is not in favour of a reaction to mid-Victorian times, when rights of this kind had to be secured to the people because of the injustices that had been created. I press the Minister and I press the House to agree at least to the right of inspection, before the court if you like, with any safeguards you like against broadcasting, against wide publication, but to see that the rights of the accused should be maintained at least to inspect the jury panel.
Might I ask the Minister a very simple question? If a prisoner standing in the dock sees an avowed enemy in the jury box has he no power to challenge?
Certainly. He has got his challenges. This Bill does not take away a single challenge from him.
I was very much troubled as to the taking away of these challenges.
No challenge is being taken away at all. The right of challenge is left untouched.
If he knows the man.
No challenge whatever is taken away from the prisoner, and if the prisoner sees an avowed enemy in the jury box he has the right of challenge?
Fully, just as he has now, and not only has he got a certain number of challenges, but if he sees an avowed enemy in the box he can challenge him for cause, over and above the challenges which are allowed to him.
I think the statement made by the Minister is a new point. Previous to his statement I understood that the jury panel was to be a perfectly confidential document, not shown to anybody, but now I understand that the Minister is taking power by order to permit some solicitors acting for prisoners to see the panel, and possibly to allow the solicitor for the State also to see it. I would be partly satisfied with the Bill if I found that secrecy applied not alone to the prisoner but also to the representatives of the State, and that the solicitor for the prosecution also would not be entitled to see the panel. I think that that would be only fair play for both parties. There would then be no handicap on the prisoner, because by this Bill the prisoner's right of challenge is gone—he cannot challenge a number—and if the State Solicitor does not know the jurors his power of ordering stand-byes is gone also, because surely the State Solicitor would not challenge a number. There would be a suspicion that he had got, by some means or other, a knowledge of the panel if he were to direct any juror to stand by. I would prefer that the Minister should not take this power. If there is to be secrecy at all let it be secrecy all round, and if power is taken to give permission to any solicitor to see the panel let it be a general permission for solicitors representing the prisoners as well as for the State Solicitor. I support Senator Comyn's suggestion that if this right is implied in the Bill it should be made clearer, so that the Bill would leave this House without being ambiguous.
It seems to be assumed that the trial of every prisoner is a battle between the prisoner endeavouring to get his liberty at all costs and the State endeavouring to get a conviction at all costs. That is absolutely wrong. No doubt the prisoner endeavours to get an acquittal by every means in his power. But it is not the duty of the State, it is not the practice of the State, and it would be a wrong thing for the State to endeavour to get verdicts by wrong means, to endeavour to pack juries, or anything of that kind. That would be completely wrong for the State to do, and it would be a thing which most undoubtedly the State would not do. The duty of the State, and of everybody who carries on a prosecution on behalf of the State, is to see that innocent men are acquitted. It is clearly their duty to see that men who, on the evidence are guilty, are convicted. But to say that it is the duty of the State Counsel or Solicitor to get innocent persons convicted, or to say that there is any desire on their part to get innocent persons convicted, is completely to misunderstand the situation, and completely to misunderstand the sense of public duty and the sense of personal honour which animates the persons who conduct prosecutions in this country.
I said the other day that the Minister was somewhat inexperienced in politics, that he came out of the West with very little knowledge. He seems to have forgotten that for the last hundred years it has been assumed—I do not say that they had a right to do so— that they should get convictions.
No, not at all. That is an insult to the Irish Bar.
It is notorious. It goes back to all political trials, back to the Penal times, and it has happened in more recent times. Of course, lawyers will not say that. We all remember that a few years ago a certain leading State prosecutor, when certain documents came into his possession showing that the prisoner he was prosecuting was not guilty, being an exceptionally honourable man in that position, he handed over these documents to the defence, and the prisoner was acquitted. The whole Bar held up their hands and said he was the one just man who had ever appeared in a law court. That was so notable that although he belonged to a different political party, his character ensured for him an appointment as a judge in the Free State. He is now a judge, and a very honourable one, and he gained his reputation by doing one thing which no other prosecutor had ever been known to do before. The Minister said that the right of challenge came in in 1871.
I never said that the right of challenge came in in 1871. The right of challenge goes back as long as the jury system. I said that the right to get a copy of the panel was given in 1871.
I see. Well, that does not matter, because in those days the people had the jurors before them; the whole question was thrashed out, and in all those political trials jurors were challenged wholesale. Does the Minister mean that the prosecutor will be able to see this panel and that the prisoner will not?
Now it comes out clearly that the prosecutor is to be allowed to pack a jury as he likes, but that the defence is not to have the same knowledge as is to be given to the prosecutor. The prosecutor may have a knowledge that the unfortunate prisoner will not have, and therefore the scales will be weighted against him. He is treated badly enough when he is put up to be tried for his life, but when the prosecutor has knowledge that he has not got the scales are weighted against him, and that ought not to be so.
The Minister's statement that it is not the duty, nor indeed the desire, of the State to convict by false or wrong means an innocent man may, I think, be accepted as a general statement, and in ordinary crime it is not the desire of the State, I am sure, to go out of its way to try to convict a man. They try to give him a fair trial according to law, and to let him stand or fall on the evidence. But with the best intentions in the world, under the Bill as it now stands an injustice may be done, because the prisoner, not having power to inspect the panel, may allow to go on the jury without challenge one or two avowed enemies, people who he knows well are enemies but whom he is not able to identify. Probably our greatest enemies are people we have never seen. The State does not know that these people are on the panel, and if they did the State Solicitor might challenge them to stand by, in the desire to give the prisoner a fair trial. It is with a view to obviating a position of that kind that one would like to have some guarantee of safety for the prisoner. The right to inspect the panel in the court, with the assistance of a solicitor, without the right to take it away or to make a note of it, would, in my opinion, meet the case, or it would meet it at least to the extent of providing a fair margin of safety.
I am not concerned so much with political prisoners, because I do hope that the day is near when we can have political activities without breaking the law. We have only to look around us, and we can see the keenest political activity without any breach of law, human or divine, and there is no reason why we cannot become sufficiently civilised to carry out political activities without disorder and violence. Consequently my main consideration is for the ordinary accused whom nobody wants to deprive of a fair trial. He cannot have a fair trial by jury if there is a chance that possible or potential enemies of his get on the jury and convict him. Of course, everybody knows from all human experience that in political trials there is a tendency to weight the scales against the prisoner. Senator Moore has acquitted the Minister of any political propensities of that kind. Well, if the Minister is not a politician Senator Moore avowedly is, and according to his idea of what the State would do we know what we may expect, if his Party is in power, with regard to their opponents.
I think the Senator——
Cathaoirleach
Is not that a reasonable comment on your remark?
Certainly it is not a reasonable comment—nothing of the sort. I said that hitherto people were doing it—that is, in the reign of the present people and the people before them, and that there were a number before that—that it has always been the practice to weight the scales against the accused. But the Party to which I belong will change all that.
I acquit Senator Moore of any personal intention in that respect, but he seems to take it for granted that it has been and always will be the policy of the State to try to convict political prisoners at all costs. If that is his assumption I suppose he will say that what is good for the goose is good for the gander, and that if his Party is in power they will do the same.
I do not think it is fair to assume anything of the sort.
We are doing our utmost to do the opposite here to-day.
We need not take this too seriously.
Cathaoirleach
The Senator is entitled to make what comments he thinks reasonable on remarks that have been made.
We are dealing with another Party in power now, and it is time enough to talk about other people when there is a change of Government. I am dealing with the ordinary criminal, and I suggest to the Minister that he ought to consider sympathetically the suggestion to give the prisoner the right to inspect the jury panel. If he would do that it would take a good deal of the sting out of this Bill. I believe that many injustices will be inflicted unless that minimum measure of protection is conceded to the accused.
I would like to call attention to the fact that the title of the Bill——
On a point of order, did not Senator Johnson close the discussion some time ago?
Cathaoirleach
No. Senator Milroy is quite in order.
I would like to call the attention of the House to the fact that the title of this Bill is not the Prisoners (Protection) Bill, but the Juries (Protection) Bill. The object of the Bill is to protect jurors. Judging from the debate that has gone on, all that has been said will be repeated seventeen times if all the amendments dealing with the subject now before the House are discussed, because the same principle is raised in about seventeen amendments. The great consideration with some Senators seems to be, what is going to happen the prisoner? There seems to be no consideration as to what is going to happen the jurors, if the purpose of this Bill is not effected, namely, the protection of jurors. An essential part of that protection which this Bill proposes to afford to jurors is to keep from the knowledge of those who are out to assassinate or to intimidate the names of jurors. If Senator Johnson's amendment is carried, the object of keeping the jury panel a secret from these would be assassins is entirely destroyed. Let us face that fact, that the passing of this amendment would at once place at the disposal of everyone who wishes to pursue the activities that brought about the wounding of one citizen and the death of another the very knowledge that we are trying to keep from them. We ought to realise that; we ought also to realise that the Minister has made it very clear that in every case in which it can be done there will be facilities for inspecting the jury panel given to the Counsel for the prisoner. This is merely re-enacting that the courts must be the authority in all circumstances. Again, I say that the passing of this amendment would be giving to these would-be assassins who wish to destroy the jury system just the knowledge which it is the purpose of this Bill to withhold from them.
In order that the discussion on this may not become too protracted, I suggest that we might decide this question on this amendment. Otherwise, we will have the same matter debated on seventeen other amendments at least. Now, the withholding of the names of the jury may be a wise or an unwise thing, but surely we can arrive at an effective decision without having the matter discussed on seventeen amendments.
Arising out of a remark made by the Minister in reference to an occasion when he might allow the documents to be disclosed, I would like to know whether the Minister has the power to release, or to disclose, any document which in this Bill is described as "a confidential official document." If he has the power well and good, but it is not so stated in the Bill. It may be that under the Official Secrets Act the Minister has that power. It would relieve a certain amount of anxiety in the House if it could be definitely stated that, without special powers in the Bill to that effect, the Minister has that power under the Official Secrets Act—that is, to disclose and to release a document which is described in this Bill as "a confidential official document."
I am not quite clear that under the Official Secrets Act such power exists. If the Senator would like I will reconsider the matter and see if there is any possibility of flaw to be found in the belief that I have stated. If there is even a shadow of doubt about it, and if the Senator wishes it, then I could have an amendment moved.
In sub-section (2) of Section 3 it is indicated that the accused person is not to have this as of right. That implies that the Minister may grant the privilege if he thinks it is a proper case.
I would like to make a point in reply to what Senator Milroy said. He emphasised the case made by the Minister, that this Bill is intended to be for the protection of jurors. Granted. But does he say that we should have no consideration for any other object or for any other purpose or for the rights of the prisoner because the object of the Bill is the protection of jurors? Surely the Senator is not going to contend that—to say that the passing of this amendment would invalidate the purpose of the Bill, and leave the jury that is going to try a prisoner open to assassination or intimidation. But the jury is not going to be hidden behind a screen. The jury is to be open to the solicitor for the accused. A solicitor may, by judicious inquiries, know who No. 1, No. 6 or No. 10 on the jury is, and if this fear that Senator Milroy expresses is so great the danger is there just as much as though that solicitor had a right to look down the panel. If the danger of assassination exists, it exists by virtue of the fact that the jury is in open court. If the danger is so great that Senator Milroy would do anything in the way of injustice rather than——
Might I suggest to the Senator that it would be helpful to the House if he read the portion of the Principal Act that he proposes to retain.
I do not want to interrupt Senator Johnson, but I would like to refer to Standing Order 62 which states that a Senator shall not speak for longer than ten minutes or more than twice on any matter, provided that the Order shall not apply in Committee to a Senator or a Minister in charge of a Bill. Now the Senator is not in charge of this Bill. He is moving an amendment.
Cathaoirleach
Any Senator may speak twice in Committee. If the Senator makes a further examination of the Standing Order he will find that it is allowable for the mover of a motion to reply.
The Minister in charge of the Bill?
Cathaoirleach
Any mover of a motion may reply.
I want to repeat, noting the Senator's comment that the discussion has been somewhat diverted by the proposition that the right of inspection by the solicitor for the accused would be acceptable as against the proposition that the right for a copy should be maintained. If the right of inspection were conceded by the House, then I for one would be quite agreeable to allow the section as it stands to pass —with the proviso that the right of inspection be substituted. The discussion has gone on on that assumption, but I maintain that the risks to the juryman are no greater by giving the right of inspection to the solicitor for the accused, who will always act in these cases through a solicitor, than it will be under the Bill itself when the jury is obvious to the solicitor in open court.
Amendment put.
The Committee divided: Tá, 15; Níl, 28.
Tá
- Caitlín Bean Uí Chléirigh.
- Michael Comyn, K.C.
- Joseph Connolly.
- William Cummins.
- Michael Duffy.
- Thomas Farren.
- Thomas Foran.
- Thomas Johnson.
- Thomas Linehan.
- Seán E. MacEllin.
- Colonel Moore.
- Joseph O'Doherty.
- John T. O'Farrell.
- Siobhán Bean an Phaoraigh.
- Séumas Robinson.
Níl
- William Barrington.
- Sir Edward Coey Bigger.
- Samuel L. Brown, K.C.
- Miss Kathleen Browne.
- Alfred Byrne.
- Mrs. Costello.
- John C. Counihan.
- The Countess of Desart.
- James G. Douglas.
- Michael Fanning.
- Henry S. Guinness.
- Major-General Sir William Hickie.
- Right Hon. Andrew Jameson.
- Sir John Keane.
- Cornelius Kennedy.
- Patrick W. Kenny.
- The McGillycuddy of the Reeks.
- Francis MacGuinness.
- James MacKean.
- John MacLoughlin.
- Seán Milroy.
- James Moran.
- Sir Walter Nugent.
- Joseph O'Connor.
- M. F. O'Hanlon.
- L. O'Neill.
- Thomas Toal.
- Richard Wilson.
Amendment declared lost.
Cathaoirleach
Amendment 7, in the name of Senator O'Doherty, is, as the Senator himself has already pointed out, consequential, and it therefore would not be in order to move it. Amendment 8, in the name of Senator MacEllin, is out of order because it cuts across another section that has already been disposed of.
I move Amendment 9:—
Section 3, sub-section (2). To delete the sub-section and to substitute therefor a new sub-section as follows:—
"(2) Notwithstanding anything to the contrary contained in any other enactment no person prosecuting on behalf of the State nor any accused person shall be entitled as of right to a copy of the panel of jurors."
My object in moving this amendment is to ensure that secrecy be observed in its entirety, and that it be not possible either for the State or the prisoner to receive a copy of the jury panel. I was in doubt as to whether it would be necessary to move this amendment, because sub-section (1) of Section 3 in the latter part states, "it is hereby enacted that the empanelling officer and the summoning officer shall treat every such panel as a confidential official document." The way in which I read that is this, that it prevents those officers from communicating the contents of the panel to anybody. If it had been the intention that they should so communicate the contents of the panel, or that they should show the panel to the solicitor for the State, it would have been mentioned in the section, but there is nothing of the kind stated there. I find that there is a severe penalty provided under Section 9 for divulging the contents of the panel. That section provides that "if any person who prints, publishes, distributes, sells, or offers or exposes for sale or posts up or otherwise exposes in any public place or makes by word of mouth any statement of any other person in contravention of this section," he shall be guilty of an offence under the section and on summary conviction shall be liable to a fine not exceeding £50 or at the discretion of the Court to imprisonment for any term not exceeding six months or to both such fine and such imprisonment. I think it can be fairly seen from the Bill that the duty of the empanelling officer and of the summoning officer is not to divulge the contents of this panel to any person. In order to make the matter clear, I want to make explicit what possibly is implied in the Bill. That is my reason for moving the amendment.
I agree with the Minister when he states that it is the duty of the prosecutor, especially the State prosecutor, to see that justice is done, and not always to get a conviction of the prisoner. It would be their duty, in case any evidence favourable to the prisoner came into their hands, that they should put it before the court, even though it injured their own case against the prisoner. I have been acting as a juror for perhaps more than fifty years, and I must admit that during all that time I have very seldom seen the people prosecuting put anything forward in favour of the prisoner—either the Guards or the Constabulary or the Crown Solicitor or the State Solicitor. In fact I thought it was always a matter for promotion in the case of the Guards when they had a large number of successful prosecutions.
Oh no.
And that the Guard who failed in his prosecutions would incur a good deal of censure.
No, that is quite wrong.
If the intention of this section in the Bill is to protect jurors, then by all means keep this a secret from everybody. Do not let the State have it. Let it be an all-round secret. Some other Senators have amendments down which, perhaps, are better drafted than this one dealing with the same subject. It is the principle that is involved in my amendment to keep the panel secret from everyone that I think ought to be carried out.
I wish to endorse what Senator Linehan has said in moving his amendment. I think his amendment reflects the opinion of a good many people. I also have been acting as a juryman for a great number of years. I think it would be much more sensible, and much safer in every sense, if the jury panel was kept secret from everyone. It is my opinion that no matter how much it is safeguarded by the Minister a knowledge of those who are acting on a jury will be found out. It will leak out in some way. Whether it be by what is sometimes called "wireless telegraphy" or not, the name of everyone serving on a jury will become known. It would be almost impossible to hide that. At the beginning I had very strong opinions against this Bill. I thought it was going to destroy what we all looked upon with a certain amount of pride— namely, that a prisoner would be tried by a jury of his own countrymen. In present circumstances I suppose it would not be correct to say tried by his peers—but at all events tried by a jury of his fellow-countrymen. That would be carrying out an old principle that was long advocated. But, in the new conditions that seem to be endorsed in this Bill, trial by jury seems to be unrecognisable. The view that I hold in regard to the cases that have given rise to this Bill is that it would be more generally acceptable, and would be regarded as the proper way of dealing with them, to have them tried by three judges. That would be better for the administration of justice in these political cases. The amendment proposed by Senator Linehan is, I think, a reasonable one, and I support it.
I rise to support the amendment. I am rather glad that even at a quarter past six in the evening a certain amount of sense seems to be gradually permeating the Seanad. At the same time I am rather surprised that some Senators did not waken up earlier. Why such a speech as that to which we have just listened should be delivered in face of the votes that have been recorded here to-day rather gets me guessing. We have heard the Minister wax eloquent and indignant, and have seen him get very wrathful-looking, when it was suggested that anything corrupt could happen in connection with the judiciary. Well, we leave him at that. From the experience we have had of various juries in Ireland we are not as satisfied on that as the Minister for Justice. We are not perfectly satisfied—far from it. If the prisoner is not going to have the right to a copy of the jury panel then I agree with Senator Linehan that an injustice would be done if the same panel of jurors is supplied to those conducting the prosecution.
Senator Milroy alleges that this Bill has got nothing to do with the protection of prisoners. In spite of the fact that it is called the Juries (Protection) Bill some of us here feel that, after all, the prisoner is the main issue in the whole business at a trial, and that he should be entitled at least to some measure of protection if not of justice. But apparently he is only a cypher so long as the jurors are protected. We seem to overlook the fact, if we go on that basis, that there is no necessity whatever for protecting the jurors. If there is no prisoner, and if the prisoner is of no account, then why protect either the prisoner or the jury? All this brings me back to our fundamental argument that this Bill is not going to protect jurors. You cannot protect jurors if they are going to be visible to the public in the jury box.
Senator O'Doherty last week, when speaking on the Second Reading of the Bill, was quite serious when he asked the Minister if it was proposed to have the jurors masked. The Minister treated that as a facetious remark. That may be due to the Minister's peculiar sense of humour. I do not know the Minister well enough to say if he has any sense of humour, but I ask why not mask the jurors? What is the sense of trying to protect jurors who are going to appear openly in the jury box? The thing is perfectly absurd. As I said before, the only solution that appears to me is, if you are not going to have courts-martial then have your courts with three properly appointed judges.
The two speeches which we have just heard are speeches which suggest that the jury system could be set aside at the moment, and that there should be substituted for it a court composed of three judges. If this Bill is not a success it may come to this, that we may have to admit that the jury system in this country has entirely broken down. We have stated already—I stated it in the Dáil if not in the Seanad—that we are anxious that trial by jury should be kept on in this country as long as it can be, but if we find that this Bill is not a success, then we will take other definite steps, because it is our duty to see that the lives and property of jurymen are protected. At the same time, it is our duty to see that the laws are enforced against evil-doers. If this Bill is not a success, well then this Bill is not our last word. We will have to take other steps. As far as this amendment is concerned, that the jury panel should not go to the prosecutor, what is the suggestion that lies behind that? It can only be this: that those who are responsible for prosecuting in this State are persons who would be likely to broadcast the names of jurymen in these cases; that the prosecutors in this State are persons who are in close and intimate touch with those who are anxious to commit murder. That is the only suggestion that I can see behind this and another similar amendment which is tabled. This Bill is to protect jurymen. Is it any danger to jurymen if the State Solicitor knows the names of the jurymen? Does anyone think that that is in any way endangering jurymen, and if it is not endangering jurymen, what is the need of this amendment?
I have an amendment down which has the same purpose in view as the amendment before the House. The Minister still forgets that there is such a thing as a sense of justice to be maintained. I think that if he were thinking of other matters than this Juries (Protection) Bill he would admit that it was right and proper, and a very desirable thing, to instil into the minds of all connected with the courts, and the public generally, the feeling and the confidence that impartial justice is going to be preserved as between the prosecution and the accused. Unless the accused is placed on a level with the prosecution that sense of impartial justice is destroyed.
The House has refused to give the accused the right to see the panel. But it is simply debarring the accused person from the right that is contained in the enactment, while implicitly conceding the right to the prosecution. It may be true to say that a jury is under no danger of attack from any person whom the prosecuting solicitor might learn about because his name was on the panel. By the way, if the prosecuting solicitor and his clerk have the right of access to the panel and the right to obtain the panel, do not be quite so sure that it will not get abroad. Apart from that, if the accused person feels that he is debarred from the right of knowledge of who is to constitute the jury which is to try him, and he knows the prosecutor has the knowledge, surely there is a sense of injustice immediately engendered not only as regards the prisoner himself but with all connected with the trial? It would seem to me to be an obvious thing if you are going to make a provision depriving an accused person of some right, that ought to entail a consequent deprivation of the prosecutor's right.
I am quite prepared to listen to the Minister's statement that the prosecution are not out to obtain a conviction; that all it is out to do is to see that justice is done. Let us accept that. It is also important, and surely the Minister will agree, that the general sense of the court and of all connected with the court should be that justice is being done impartially as between the prosecutor and the accused; but you are leaving the accused with the sense that he is deprived of a right while that right is allowed to the prosecutor. All we ask in this amendment is that whatever is contained in the Bill in respect of deprivation of rights shall apply equally, whether it is in reference to the accused or the prosecution. This is not conceding any right. It is simply placing the two sides on a level, and I think that is a reasonable proposition.
Senator Johnson considerably astonishes me, because I heard him claiming on one amendment that it was very hard to take away from a person a knowledge of the panel of the jury and deprive him of the right of challenge. He made the strange case that that was inflicting an injury on the accused person. As I understood what the Minister said in regard to this section, any accused person shall be entitled as of right to inspect it through his legal representative, but I think we were told that the Minister had the right in cases where he thought the ends of justice would be served to communicate to the counsel or solicitor for the defendant or accused person the panel. I believe the Minister will look up a certain Act to make sure as to whether he has the right to communicate this confidential document where he thought it would be in the interests of justice that an accused person should see the panel. I should have thought that Senator Johnson, holding the view that everything should be done correctly, would be delighted a prisoner should get every benefit that could be given by law. We all trust the Minister for Justice in the doing of justice. Take the case of a person prosecuted for fraud. Perhaps on the panel would be the name of a shareholder of the company that he was accused of defrauding, and who might vote against him on trial in a case of that description, but if such a case were properly put before the Minister then, as the Bill stands, he would allow counsel or solicitor to inspect the panel so that he could pick out the juror he wished to put off. For the sake of uniformity is Senator Johnson willing to throw the whole of that to the wind?
No.
And to take away the right from the accused and from the prosecution to know anything about the panel whatever?
The right?
But you are also taking away the right of the Minister to disclose to the prisoner's counsel.
The amendment does not affect that at all.
I beg the Senator's pardon. It does.
The proposition is to allow the Minister.
The Senator says take out the word "accused." Now the sub-section (2) is: "Notwithstanding anything to the contrary contained in any other enactment, no accused person shall be entitled as of right to a copy of the panel of jurors from which it is intended that the jury for his trial is to be drawn." Does the Senator hold with that in the Bill, that the Minister would have no right whatever to disclose to anybody this confidential document?
The effect is to place the prosecution and the accused in exactly the same position. If the Minister says he has the right under the sub-section to disclose to the solicitor for the accused the jury panel, he will have the right to disclose it equally to the prosecution. I agree, frankly, that it is a rather formal enactment, for I can imagine the Minister disclosing in every case to the prosecution, exercising the right in that direction, and refusing it to the accused, but so far as the law goes, so far as we are concerned, let us at least legislate in an impartial manner as between the accused and the accuser.
As I understand the Senator's amendment, it really makes no difference whatever to the section. Whether the word "accused" is in or not, the Minister can do what he pleases. He can disclose the panel to the accused or the prosecuting counsel.
It ought to be applicable to both.
I imagine those amendments make no difference in the Bill.
I entirely agree.
I wish to make an observation with reference to arguments that have been used in support of one or two amendments of this kind. It is in reference to a case of a prosecution for fraud in a company and the possibility of a shareholder getting on the jury. I have been in a large number of cases where the rights of limited companies were involved. The first thing the judge does when a case of that kind comes to be tried is to make a statement to the effect that any shareholder whose name was on the panel could not be on the jury, and shareholders usually leave the court delighted to get away.
I agree with Senator Johnson that we must maintain a sense of justice. It is not sufficient to say that the panel will not be used for an improper purpose. The maintenance of the sense of justice should be our attitude towards this Bill. I realise strongly the responsibilities of the Government to maintain law and order, and I would not weaken that responsibility placed on them. I do not regard the jury system as sacrosanct. I think it is a system that works well if public opinion is strongly on the side of justice, but in this country I am afraid public opinion is not always on the side of justice and, therefore, the jury system has to be modified. In the case of this amendment, unless the Minister can put forward more convincing arguments, I shall feel it my duty to vote for the amendment.
There is a question I would like to ask the Minister. I take it that a solicitor or counsel appearing for the accused in no case has the right to claim a copy of the panel of jurors. I can see a justification for that. It is perfectly evident that if we are to effect what the Bill sets out to effect the legal representative of the accused cannot have the right to secure a copy of the panel of jurors. I would like to know from the Minister what is the reason that a person appearing for the State in a prosecution should of right be able to secure a copy of the panel of jurors? I am not satisfied there is a justification why of right he should be entitled to get a copy of the panel.
As the law, as I understand it, exists, it would be necessary for the Minister to make an Order that this document should be disclosed to the prosecution. I agree with Senator Jameson that this amendment makes absolutely no difference. There is another amendment coming on which does make a difference. I addressed myself to the three amendments—the amendments by Senator Johnson, Senator Comyn and Senator Linehan. Senator Comyn's amendment does make a difference, but the amendments by Senator Johnson and Senator Linehan make no difference to the existing state of affairs.
I think what the supporters of this amendment seek to achieve is, whether it is clear or not in the wording of the amendment, that in a case where the panel is refused to the solicitor for the accused it should also be refused to the prosecuting counsel. That is the justice we want to get. In the case where the Minister decides that he will not disclose the jury panel either to the accused or counsel for the accused, then in that case he should not disclose it to the prosecuting counsel. We consider there is a sense of justice in that.
I am asking why, in that particular case, it should be withheld.
There is the same panel for every case. If a solicitor gets a panel for case A. he has automatically the panel for B. You get yourself into an absolutely hopeless position to say: "You shall not get it for B., as the prisoner is refused it." He has it already for A. The suggestion would not be workable.
If a solicitor is appearing in an ordinary case of theft and he gets a panel, and if he is a solicitor appearing for the prisoner in another case, has he not got the panel already?
He will only get the panel for inspection.
That is against the accused. If the persons prosecuting have the panel before them they can use it for the purpose of objecting to and challenging certain people. There may be people on the jury notoriously opposed to the accused, and if he gets no chance of challenging these people I say that that is not justice.
It does not take away the right of challenge.
How is he to know?
What we want to know is: In any case will either the counsel for the accused or for the State be entitled to get a copy of the panel without the permission of the Minister?
That alters my opinion of the whole question. If it is a matter of inspection, well and good. A man cannot carry 300 or 400 names in his mind, but that a solicitor for the accused should not have the panel before him is not just.
The whole object of supplying the list of the panel is for the purpose of challenge. In this case, the only person definitely excluded from the right to get the panel is the accused person. He is the only person definitely debarred from getting a copy, but the prosecution has a right to get it. We have, therefore, the position that there can be no effective challenge on the part of the accused but there can on the part of the prosecution. The prosecution may see on it, or the Minister may, the names of people whom they believe to be friends of the prisoner, and they can challenge them to stand by because they have the names before them. The prisoner, because he has not the names, is not in a position to challenge his enemies, or the people whom he suspects to be opposed to him. Is not that at the start giving an unfair advantage to the prosecution, or at the start are you not putting the prisoner at a disadvantage as against the prosecution? The Minister tells us that all sorts of things may happen, but that is the Minister's statement and it may not always operate in actual practice. I suggest, as has been already urged by others, that we at all events should start out on a basis of equity as between the prosecution and the accused. If anything else is done by Order let it be done, but do not let us accept responsibility for it. Senator Brown said that in a case where a man may be accused of theft, or having misappropriated money, the judge who was trying the case asked members of the jury who were shareholders not to act as jurymen, and that they walked out of court gladly at being relieved from service on the jury. I would like to know who is to determine whether they are shareholders? Is it sufficient to say "I am a shareholder," and then walk off without giving any evidence in support of that? That would give people on the panel an opportunity of neglecting their duties as jurors. In such cases who is to decide whether they are shareholders or not?
You have to believe what they say.
In order that my attitude may be perfectly clear, I say there is no danger to any jury by a State Solicitor having a panel and, therefore, there is no reason for withholding it from a State Solicitor. I say if a panel got into the hands of an ordinary solicitor it would probably pass around, and to prevent it going around in an ordinary case it would be sufficient to allow an inspection of the panel. To my mind, there is no substantial difference between the two so far as challenging the jury is concerned. It has been said that there should be absolute and complete equality in every way between the State and the prisoner. That does not exist, because it is recognised, and always has been recognised, that it is very much easier to get a jury to acquit in a case in which there ought to be a conviction than to get a jury to convict in a case in which there ought to be a conviction. From time immemorial there has been the right of unlimited stand-by on behalf of the Crown, and here since we became a State. It has not been suggested that there should be a limited number of challenges by the State. If there has been any injustice going on in the administration of the criminal law there has been injustice going on as long as criminal law has existed.
Are we to assume that the only honest solicitors are the State solicitors? If that is what we are to take cognisance of that is asking too much.
That is not what I have said. I have said that the panel can be given to State solicitors.
And not to others.
It may be to an odd one, but not in every case. An inspection is sufficient.
What is the honest inference to draw from that?
The Senator may draw any inference he likes.
Would the Minister explain how can a juryman be challenged by name if his name is not to be known, and how can he be challenged by number without his name being known?
Let me say that if I were in the unfortunate position of being tried by a jury, and that Senator Moore was called to serve as juryman No. 72, I would promptly say, "Challenge."
Quite right.
Amendment put.
The Committee divided: Tá, 19; Níl, 20.
Tá
- Caitlín Bean Uí Chléirigh.
- Michael Comyn, K.C.
- Joseph Connolly.
- William Cummins.
- Thomas Farren.
- Major-General Sir William Hickie.
- Thomas Johnson.
- Sir John Keane.
- Patrick W. Kenny.
- Thomas Linehan.
- Seán E. MacEllin.
- The McGillycuddy of the Reeks.
- Colonel Moore.
- Joseph O'Connor,
- Joseph O'Doherty.
- John T. O'Farrell.
- M.F. O'Hanlon.
- Siobhán Bean an Phaoraigh.
- Séumas Robinson.
Níl
- William Barrington.
- Sir Edward Coey Bigger.
- Samuel L. Brown, K.C.
- Miss Kathleen Browne.
- Alfred Byrne.
- Mrs. Costello.
- John C. Counihan.
- The Countess of Desart.
- James G. Douglas.
- Michael Fanning.
- Henry S. Guinness.
- Right Hon. Andrew Jameson.
- Cornelius Kennedy.
- Francis MacGuinness.
- James MacKean.
- John MacLoughlin.
- Seán Milroy.
- James Moran.
- Thomas Toal.
- Richard Wilson.
Amendment declared lost.
I move:—
Section 3, sub-section (2). To add at the end of the sub-section the words "except in cases where a copy of the said panel shall have been supplied to the Attorney-General or other person concerned in the prosecution."
The Minister has already admitted that this amendment is on a different principle from the amendment which has just been voted on. He has also been kind enough to explain that the amendment which has been voted on could not be effective inasmuch as the solicitor for the prosecution would in one case get a copy of the panel, and that, getting it in one case, he could use it in all cases. Senator Farren also said that some solicitors appearing for prisoners and getting a copy of the panel in one case, could use it in other cases. These arguments do not apply to this amendment. It has, moreover, the additional advantage that it is in favour of a full trial. It is right that both the prosecution and the accused should know the tribunal, that the jury panel should be in the hands of those who represent the State and of those who represent the prisoner.
I think there is very little substance in the Minister's statement that some solicitors could not be trusted to keep secret any information which they had got when acting in the defence of prisoners. After all, one solicitor just as much as another is an officer of the court. You must trust solicitors to regard as confidential any information which they obtain in the defence of prisoners. You must trust all officers of the court or none. The section reads: "Notwithstanding anything to the contrary contained in any other enactment, no accused person shall be entitled as of right to a copy of the panel of jurors from which it is intended that the jury for his trial is to be drawn." Then the section would continue, with my amendment —"except in cases where a copy of the said panel shall have been supplied to the Attorney-General or other person concerned in the prosecution." If you give it to the Attorney-General or to the solicitor representing the prosecution legitimately and properly for the purpose of challenging jurors who are known to be against public order, let us say, or who are known to have been canvassed on behalf of the prisoner or for any other cause, it is right and proper so that they would have a full and effective challenge in order to secure a fair and impartial jury. But if the Attorney-General has that right, in common justice the solicitor representing the accused person ought to have that right also, because, as has been well said here several times, it is in the interests of justice that an innocent man should not be convicted. That is a thing which the State is as much concerned with as it is with the conviction of an accused person. I go so far as to say that the State should be more interested in securing the acquittal of an innocent man than in securing the conviction of a guilty man, because it is a terrible thing to bring disgrace and punishment at the hands of the State for a heinous crime when the prisoner may be innocent——
Hear, hear.
—— and in all States the greatest care is taken to ensure that not only shall the accused man have fair play but that he shall have the appearance of fair play; that there shall be nothing in the conduct of the proceedings that shall be unfair, and that there shall be nothing in the conduct of the proceedings that shall appear to be unfair. It would appear to be unfair if one side knows who the tribunal are and if the other side does not. If the Attorney-General, as he is perfectly entitled, is to have the right to stand-by persons undesirable from his point of view or from the point of view of the conviction of a guilty person, so should the prisoner have the right to challenge undesirable persons from his point of view. It is said that the right of challenge is not taken away. As Senator O'Farrell said, the right of effective challenge is taken away, because you are entitled, if you are an accused person, to challenge not merely those whom you know to be your personal enemies but you are entitled to challenge those who by repute, whether you know them by appearance or not, have a feeling against the cause you represent or against the class of offence for which you are accused.
The Minister has said that no member of the Irish Bar prosecuting an accused person would say or do anything in the ardour and the conflict of the battle, and undoubtedly it is a battle, except what is fair, just and reasonable and in the interest of the prisoner. That may be a counsel of perfection, but the Minister knows, and I know, that in the course of these prosecutions there is a human desire to succeed. I well remember an occasion when one Crown prosecutor came into the Bar room and said: "We fought three cases and we won the three." That was where three unfortunate prisoners came forward to be tried. Now, those sentiments do not die in a day or in a generation. There is a natural feeling with the man who is prosecuting an accused person to put the best possible face on the case against that person, just as there is an ardent desire on the part of the counsel who is defending a prisoner to put the best face on the case for his defence. Now, splendid phrases as regards the integrity of the Bar— in which I concur, of course—do not carry you the whole way when you are dealing with a terrible, a desperate measure of this description.
Let there be the appearance of fair play. The Minister has to-day refused to allow the panel to be framed by the secretary of the county council, and he refused it because he said that it was not desirable that two persons should know it. He subsequently admitted that several people will get a copy of the jury panel and will see it, and that it cannot be kept entirely secret. He says that he is going to trust some members of the legal profession. I ask him to trust all members of the legal profession. If he is trusting one let him trust all. If he trusts ten or fifteen, as he must, let him trust thirty, and rely upon their honour not to disclose any information they have received professionally.
I would be willing at this stage to accept a modification of this amendment whereby a copy of the panel need not of necessity be given to the solicitor for the accused man, provided it is stated clearly and definitely that, even after the man is arraigned, even after he is put into the dock, after he has pleaded not guilty and when the jury is going from the body of the court into the box, the solicitor or counsel representing that accused person can be shown the panel so that he may know what are the names of the men who come forward by numbers. Is this an obstructive amendment? Am I obstructing in this debate when I make that offer now? I submit that it is the barest degree of common justice which any accused man could get. You must trust a panel of seventy jurymen. Will you trust twenty or thirty of the officers of the court, solicitors who are practising in Dublin? When you trust ten of them, will you trust twenty? It is perfectly absurd; it is like an ostrich hiding its head in the sand and thinking that he will not be seen. I make that proposal. I would withdraw this amendment in favour of such a proposal. I observe that the Minister sits silent. Therefore I press this amendment, as the Seanad has shown in the last vote that it is anxious only for fair play, combined with security. I do not mind what Senator Milroy said—that this is a Juries Protection Bill, not a Prisoners Protection Bill. It is a Prisoners''Protection Bill, because the prisoner must be protected until he is found guilty.
I ask the Seanad on this amendment, which really does not injure the main purpose of the Bill at all, to make it apparent, not only that justice shall be done, but that everybody will be convinced that justice is done, and that fair play is given to an accused, while at the same time jurymen are protected. It means only this, that one or two or five persons, appearing in a number of cases for the accused—five or six solicitors would probably be the number representing accused persons at any Commission or at any Circuit sitting—during the actual summoning of the jury shall have the panel before them. If you give that right to the Attorney-General, who is an officer of the Government, if you give it to the solicitor for the prosecution, who is an officer of the Court, then give it to the other officers of the court, or deprive them of their position as officers of the court. So long as you have solicitors officers of the courts of justice, trusted men, honourable men, you cannot treat them as undesirable persons or as scoundrels, and if you find that they are undesirable persons you can deprive them of their office as solicitors. I confidently submit this amendment to the House. I think it ought to be accepted because it is fair, and because it also has the appearance of fairness, which is as much as fairness, as the Minister knows well. The reason why a judge gives a long judgment justifying his decision is this: His judgment is fair, but he gives a full explanation in order to show the world that it is fair. It is just as important to show that you are fair in the administration of the criminal law.
It appeared to me as if Senator Comyn was speaking rather upon an amendment which has already been voted on than on this amendment. He said that all solicitors can be trusted. I was rather astonished to hear such a statement from him, having regard to the speeches which he and members of his Party made earlier in the afternoon that county registrars could not be trusted.
One man—not all.
Not all of them.
Not all.
His case was that a county registrar could not be trusted, and he now says that every single solicitor can be trusted. These statements appear to be inconsistent because, after all, county registrars are all solicitors and they receive one of the most important posts that a solicitor can occupy, a post which is always given to solicitors. Now, there are two things you can regard about solicitors, the one thing, and the main thing, is as to whether they are or are not discreet persons. A solicitor might not wish that any injury would be done to a juryman, and yet if he got the panel and talked about it he might be a very indiscreet person. You must consider such indiscretion is just as dangerous as malevolence, and it does not follow that because a solicitor had allowed information to leak out he was necessarily a malevolent and wicked-minded person; it might simply mean that he was an indiscreet person. For that reason I do not think it would be safe to allow the jury panel to be handed out. I have already spoken about the discretion, and I do not intend to go back upon it again.
Senator Comyn proposes that wherever a copy of the panel is given to the Attorney-General it should be given to the accused, and vice versa. I think that amendment would be susceptible to debate if it were not the fact that all the prisoners at a particular session are tried by exactly the same panel, and if the Attorney-General has once got the panel it would mean that every single prisoner after the time he had got the panel would be entitled to the panel.
His solicitor.
I do not think it mentions his solicitor. It would be any person. "No accused person shall be entitled as of right to a copy of the panel of jurors from which it is intended that the jury for his trial is to be drawn except in cases where a copy of the said panel shall have been supplied to the Attorney-General or other person concerned in the prosecution." That is to say, if a copy of the panel was supplied to the Attorney-General a fortnight before it would be the same panel and therefore the prisoner would be entitled to it. It would work out that in every single case a prisoner would be entitled to the panel, or else the Attorney-General could never receive a panel in any case. That would be utterly unworkable, and it is the very question on which the House voted this afternoon.
As far as I understand, the Minister does not trust anybody except people of his own way of thinking. He trusts all the people who are working under him, or whom he has any control over, but he distrusts everybody else.
I did not say that.
You distrust him.
I think so, considering when there is trouble with the Civic Guard——
Cathaoirleach
Would you please confine yourself to the amendment, Senator?
He is talking about distrust.
Cathaoirleach
It does not matter. Please confine yourself to the amendment.
I am confining myself to the amendment when I say that certain people should be trusted, but the Minister says that they should not be trusted. I say that I could not trust everybody. I do not trust the Minister, because when he deals with the Civic Guard he trusts only the Civic Guard.
Cathaoirleach
We are considering an amendment that a copy of a panel supplied by the Attorney-General must be supplied to the accused person. The question is not whether you can trust the Minister or not.
The Minister has made a statement and I am not allowed to answer it.
Cathaoirleach
You are perfectly entitled to answer it within the limits of the amendment.
I am trying to answer a particular argument that he brought forward. If I cannot answer that I must sit down.
I understand, from something that the Minister said—I may have been mistaken— that the panel is furnished in sections. Is that so?
No; it is the one panel.
I understood the Minister to say that the accused would only get a section for inspection. Apparently I misunderstood him.
Oh, no— inspection.
If a copy of this panel is furnished to the Attorney-General, is there any time limit within which it will be furnished? The Minister mentioned a fortnight before the trial, and on the new suggestion, immediately after the Attorney-General is furnished with a copy, then if the amendment were carried counsel on behalf of the accused could demand a copy of it. Of course that would undo the whole underlying principle of the Bill, because you would then have in the possession of the accused the very information that the Bill is designed to keep secret. That is, they could send out their notices in advance of the trial intimidating all the jurors on the panel. Senator Comyn's suggestion now is that even if the copy were supplied on the morning of the sitting of the court or at the opening of the court, so that the numbers could be compared with the corresponding names, then, of course, I cannot see that advantage could be taken of that in order to intimidate jurors, because they would already have assembled.
They could shoot them afterwards.
The shooting would only take place where certain of the jurors had been summoned on a particular jury, and would be confined to twelve out of a possible seventy or eighty. I think it is almost verging on a possibility that someone in court will know some of those who are summoned on the jury panel. It is highly improbable that there will not be a leakage. I would like to know from the Minister if there will be a limit of time within which, even if the Attorney-General applied, he will be supplied with a copy.
The same panel will be struck for all cases, so that if it is on the first month a case is tried, if the Attorney-General gets it then every person afterwards would have to get it. The panel would be going around for a month.
Is there to be no discernment at all with regard to the cases tried under the Bill? Surely, as a matter of administration, it is not intended to try cases of larceny, cases of a kind that have no political significance, by what we all must admit is special and not wholly desirable machinery.
Surely it is going to be reserved for cases where protection is clearly required? The Minister said that all the jury cases at a sessions would be tried by this machinery, and that if you give the panel in one case you must give it in all. Can the Minister give any indication as to whether there is any separation or is the old jury system to be abandoned altogether?
It is the old jury system. There can be only one panel for each sessions.
Are no cases to be tried on the old system?
Not for two years.
I thought the Government would at least take power to discriminate.
How could they?
Why not?
If you can make a suggestion as to why not I am sure we would consider it.
I suggested special commissions and that was turned down.
What about the first amendment we discussed to-day?
Cathaoirleach
We are not now discussing whether there is a case of larceny to be tried or not, but whether a copy of the panel supplied to the Attorney-General shall be supplied to the accused person.
I am convinced that the sense of the House is in favour of giving a right to the accused person to know the names of the people who are going to try him, so that he would be sure he is not going to be prejudiced by men on the jury who are known to be his opponents or to be antagonistic to him for some reason or another. I believe that the intention of the Senator moving the amendment as well as the desire for the protection of juries could be secured if some means could be devised, quite apart from the distribution of the whole panel, when the prosecution has the right to review the panel during the course of the session or assizes, or whatever it may be called, that when a particular prisoner goes forward and a particular jury is empanelled, before the trial begins, there should be some opportunity for the accused or his solicitor to know the names of those persons—not the names on the whole panel—but of the twelve who are going to try him.
Cathaoirleach
That is not the amendment we are discussing.
I am trying to shorten the discussion.
Cathaoirleach
It would be better to keep to the amendment.
If you want the discussion to go on interminably, I am willing.
Cathaoirleach
We cannot get on by discussing it this way.
I could alter this amendment to satisfy the sense of the House. If I might say so, I think the suggestion made by Senator Johnson is a very admirable one, and can be carried out. What happens is this: When a prisoner is put into the dock he is asked to plead guilty or not guilty. If he says "Guilty," seventeen or eighteen jurors are called, and only that number.
There does not——
Wait a moment. I have had more recent experience than some of you. If he pleads "Not guilty" he goes back for trial. If he pleads "Guilty" he comes forward for sentence. The next, then, that happens, is that out of the jurors in court—there may be 200, 240 or 300—the names of seventeen or eighteen are called by lot, the cards being taken out of a box. That number is sufficient to allow for the five challenges of the prisoner. There is also the question of stand-byes for the prosecution, and in regard to that I regret to say that the Minister has forgotten a few points. A stand-by is not a challenge, and when the prisoner's challenges are exhausted, the prosecution is bound to go over the list of those they stood-by. They are not entitled to stand-by any man unless it is done while the prisoner has a challenge. A man who is stood-by is not challenged, and when the prisoner's five challenges are exhausted they must come back to the men whom they stood-by and allow them on the jury.
Not until the whole panel is exhausted.
What Senator Johnson says is fair. It will secure protection.
Cathaoirleach
That is not your amendment. I will ask you to confine yourself to that.
I submit to the House that mine is a perfectly reasonable amendment, that it does not impose any risk upon the jurors, that it has a definite advantage over Senator Linehan's amendment and gives full information, instead of denying it, to either side. I ask the House to accept the amendment.
Amendment put. The Committee divided: Tá, 13; Níl, 25.
Tá
|
Michael Comyn, K.C.Joseph Connolly.William Cummins.Thomas Farren.Thomas Foran.Thomas Johnson.Thomas Linehan. |
Seán E. MacEllin.Colonel Moore.Joseph O'Doherty.John T. O'Farrell.Siobhán Bean an Phaoraigh.Séumas Robinson. |
Níl
|
William Barrington.Sir Edward Coey Bigger.Samuel L. Brown, K.C.Miss Kathleen Browne.Alfred Byrne.Mrs. Costello.John C. Counihan.The Countess of Desart.James G. Douglas.Michael Fanning.Henry S. Guinness.P.J. Hooper.Right Hon. Andrew Jameson. |
Sir John Keane.Cornelius Kennedy.Patrick W. Kenny.The McGillycuddy of the Reeks.Francis MacGuinness.James MacKean.John MacLoughlin.Seán Milroy.James Moran.Joseph O'Connor.Thomas Toal.Richard Wilson. |
Amendment declared lost.
The Seanad adjourned at 7.47 p.m. until July 4.