Seanad Éireann díospóireacht -
Wednesday, 25 Jul 1973

Vol. 75 No. 7

Criminal Procedure (Amendment) (No. 2) Bill, 1973: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Justice (Mr. Cooney)

This is the Bill to which I referred in this House on Wednesday, July 11th, when, in connection with a similarly entitled Bill introduced by Senator Robinson, I said I hoped to introduce legislation before the end of the present session to cure defects in the Criminal Procedure Act, 1967.

I should like to take this opportunity to thank Senator Mrs. Robinson for bringing this subject before the House and also to thank Senators Horgan and West for giving her their support. I should also like to congratulate all three in anticipation that their initiative will bear fruit so quickly if, as I hope, this Bill is passed by the end of the session. If it is, this will be further proof of the value of having a second Chamber in which useful measures of reform, particularly measures not politically contentious, can be initiated.

The main purpose of the Bill, to be achieved by section 1, is the same as the purpose of Senator Mrs. Robinson's Bill—namely, to enable a person who pleads guilty in the District Court to an indictable offence, and is sent forward to the Circuit Court for sentence, to appeal against the sentence to the Court of Criminal Appeal. As the law stands, an offender may not at present appeal against the sentence. This was decided by the Court of Criminal Appeal in The Attorney General v. Tyrrell in 1970. The reason is that an appeal lies only against a sentence passed after a verdict or plea of guilty on indictment and when the accused is sent forward only for sentence there is, of course, no indictment.

Section 1 of the Bill provides that an appeal shall lie against the sentence as if the offender had been sentenced after conviction on indictment. The section differs somewhat from Senator Mrs. Robinson's Bill and is framed in the way it is in order to make it clear that the rules that apply to ordinary appeals against sentence, including, in particular, the requirement to obtain leave to appeal, shall apply to appeals under the section. The section also provides that an appeal shall lie whether the offender has been sent forward for sentence before or after the passing of the Act. This, in my view, is right in principle. In appropriate cases the time for appealing may be enlarged by the Circuit Court or the Court of Criminal Appeal.

Section 2 of the Bill is technical. It makes two provisions to allow for corrections of defects in charges.

The first provision is that, where a person charged with an indictable offence has, under section 12 of the Criminal Procedure Act, 1967, waived the preliminary examination and been sent forward for trial with a plea of not guilty, any defect in the charge may be corrected in stating the charge in the indictment. The new provision is included because I am advised that at present there is no power to correct a defect in the charge in the case I have mentioned. Where there has been a preliminary examination in the District Court, any defect in the charge which was before that court may be corrected, in stating the charge in the indictment, under section 18 of the 1967 Act, but any counts included in the indictment under that section must be "founded on any of the documents (including any depositions ...) and exhibits considered by the justice at the preliminary examination". But in the case in question the preliminary examination has been waived, so section 18 does not apply.

Section 2 of the Bill is intended to fill the gap by allowing any defect in the charge before the District Court to be corrected in stating the charge in the indictment. It will be noted that the power is being limited to making a "correction". Therefore, if it is desired to make an alteration going beyond a "correction"—for example, to charge a wholly different offence —there would have to be fresh proceedings. It will be noted also that the power to make a correction will be subject to the condition that "such correction would not, in the opinion of the court"—that is, the court of trial—"result in injustice".

The second provision made by section 2 is similar to the first but applies to the case where the accused has, under section 13 (2) of the Criminal Procedure Act, 1967, signed a plea of guilty in the District Court and been sent forward for sentence with that plea. This is, of course, the procedure to which section 1 of the Bill relates. There is no power at present to correct any defects in the charge once the accused has been sent forward. This was established by the decision of the Supreme Court in The Attorney General v. Casey and Williams in 1969. Section 2 therefore provides that “any defect in the charge may be corrected ... by the court to which he”—that is, the accused—“has been sent forward”. The section also provides, as a consequence, that the accused's plea of guilty to the original charge shall be treated as a plea of guilty to the charge as corrected.

The accused will be amply safeguarded, in at least three ways, against any possibility of injustice as a result of an alteration of the charge to which he has pleaded guilty. First, the power to make the correction, like the power to which I have just referred to make a correction when the accused has been sent forward for trial, is subject to the condition that "such correction would not, in the opinion of the court, result in injustice". Secondly, the alteration to the charge must not go beyond a "correction". Thirdly— and this will probably be regarded as the most important safeguard—the accused will in all cases have the right, under section 13 (4) (a) of the 1967 Act, to "withdraw his written plea and plead not guilty to the charge". This right will apply to a corrected or uncorrected charge alike. Therefore, if the accused has any objection whatever to the correction, he can simply withdraw his plea of guilty.

Section 3 of the Bill extends the existing powers to grant free legal aid in two respects. First, subsection (1) provides that the power of the District Court to grant legal aid for the purpose of proceedings in that court shall extend to all preliminary examinations in that court. At present this power is restricted, by section 19 (3) of the Criminal Procedure Act, 1967, to cases where the preliminary examination is concerned with a charge of murder. It seems to the Government wrong in principle that charges of murder should be singled out in this respect. The Bill accordingly abolishes the restriction, and, in consequence, repeals section 19 (3) of the 1967 Act.

Secondly, subsection (2) of section 3 provides that, where a person has been sent forward by the District Court for sentence with a plea of guilty under section 13 (2) of the 1967 Act, legal aid may be granted for the purpose of the proceedings in the court to which he has been sent forward and for the purpose of any appeal against the sentence. At present, legal aid is not available for the proceedings in the sentencing court because, under section 3 of the Criminal Justice (Legal Aid) Act, 1962, legal aid may be granted only where a person has been "sent forward for trial on indictment"; and, as already mentioned, there is at present no appeal against the sentence. It seems to the Government clearly right that legal aid should be available in appropriate cases both for the purpose of the proceedings in the sentencing court and for those in the Court of Criminal Appeal.

I trust that I have explained this short, though important, Bill in sufficient detail so that Senators will see the desirability of its early enactment.

Mr. Yeats

We on this side of the House welcome this Bill which arises, as the Minister has said, out of a petition of the Court of Criminal Appeal in 1970. There has been a considerable delay in dealing with this matter which, as the Minister knows. was due to the fact that the Supreme Court was considering an appeal as to whether section 13 of the Criminal Procedure Act itself was constitutional. It is only comparitively recently that the Supreme Court found that the section was constitutional and therefore the way was open for bringing in this Bill. We can congratulate the Minister on the speed with which he has moved to fill up this hole in our legislation.

I welcome that aspect of the Bill and also the provisions that he has added for providing in certain cases for the rectification of errors in the technical aspect of charges. We all agree that it is vital that in criminal proceedings the rights of the accused should at all stages be safeguarded, that the law should step over backwards if necessary to acquit a guilty man rather than to condemn a man who might be innocent. The Minister has put every possible precaution into this Bill with regard to these corrections. It is quite clear that, while we do not want to see any innocent man wrongly convicted, at the same time there is no reason why if reasonable proposals such as this can be brought forward a guilty man should escape on the grounds of technical faults in the charges against him. The safeguards the Minister has listed, particularly the one that the court must be satisfied that such correction would not result in an injustice, are adequate.

We can also welcome in this Bill the extension of the existing powers to grant free legal aid. We can be in little doubt that we have been somewhat slow, in this country—and I appreciate that in this I am criticising previous Fianna Fáil Governments as well as other Governments—in extending the very necessary principle of free legal aid. We can welcome, therefore, the extensions that have been brought about in this Bill.

Mrs. Robinson

I, too, should like to welcome this Bill and to congratulate the Minister on the speed with which he brought it before the House. I should also like to thank him for his kind words to myself and the two other Independent Senators who had proposed the earlier Criminal Procedure Bill and I take the hint immediately that it is after all useful to table Private Members' Bills if the result is a change in legislation in such a short time.

I also think, subject to a fuller understanding of the section, that the way in which section 1 of this Bill is drafted is an improvement on the draft in our Bill. I shall, of course, be seeking the permission of the House to withdraw the Private Members' Bill, if and when this Bill is passed by the Seanad.

The question I should like to ask on section 1 is: does it actually extend to persons who were sentenced even a year or so ago, some years ago?

Mr. Cooney

Yes.

Mrs. Robinson

Well, in that case I think this is a very real improvement on the situation and goes a long way to remove this injustice to the individuals concerned.

This Bill does three very good things. It will make a considerable difference to the criminal practice, certainly at the Bar. It will mean that the whole procedure of the written plea will now at last be able to be fully used, and I think this is very important. There is a saving of time, of expense and procedure before the court and very often there is a kindness to the particular individual involved, who is quite prepared to plead guilty, wishes to plead guilty, but wishes to have some possibility of appealing against whatever sentence may be imposed. It will now be possible for the legal adviser in the case to advise an accused in those circumstances to plead guilty instead of warning him of the risk of pleading guilty and being sent forward for sentence with no further appeal.

That is a necessary and a very real improvement in the criminal procedure and one which, I am sure, will be welcomed by the Circuit Court judges concerned, for whom it was a very serious burden to be the last word in sentencing and to know that from their sentence in a case there was no possibility of an appeal.

Secondly, I welcome the way in which, under section 3 of the Bill, the legal aid provisions have been extended again. The Minister may have noted that this confinement of the possibility of applying for legal aid to charges of murder has been greatly criticised recently in cases, which I think are still at hearing, as being very likely in breach of the Convention on Human Rights and it is proper that this should be amended. It should never have been confined in that way in the 1967 Act. I hope this is only a very first step in a reform of the whole legal aid procedure, to reform it both as it relates to criminal law and also by extending it to civil proceedings.

Thirdly, the amendment in section 2, which the Minister said is of a very technical nature, is an important improvement. I hope that there is a sufficient safeguard for the accused where he has pleaded guilty and then the charge is corrected. Would it not have been possible to insert a section saying that the Circuit Court judge would draw this to the attention of the accused and ask him if he still wished to plead guilty? I say this merely because it is all very well for people with legal training in a court of law to be supposed to understand what is going on, but what very often happens in a court of law is a mumble which the particular accused, who is very often in a daze, does not understand at all, although the Minister is quite correct in saying that at any stage the accused could change his plea to one of not guilty.

Where there is a correction made —and I think it is proper that the Circuit Court judge should have the power to do so—would it not be better to draw this to the attention of the accused, giving him perhaps a more real option to change the plea, if he were to see fit to do so, and even to explain to him what is going on, because there could be a human unfairness—it might not quite amount to legal injustice—in not explaining to the accused what is happening in the fact that the charge has been corrected.

So much for the actual text of the Bill. As I have said, for a Bill so short it contains three very important and very welcome amendments to the criminal procedure. I should like to make a very brief suggestion: that there are certainly a good many other areas where we need reform, particularly in the criminal law. These are not politically contentious areas: they are areas which are technical which would require a good deal of expert examination. I should like to ask the Minister if he has considered, or if he would consider, the possibility of setting up a law commission here to review the working of our criminal law and of our statute law in general with a view to a number of relatively short legal technical reforms of this nature. Anybody who practices law in this country, anybody who is involved in the process, will support the idea that there is a very real need for reform. That is one point on a rather more technical level.

On another level the Minister has spoken—this is at a much more serious level—of the possibility of substantial reform in the family law in this country. I would urge, particularly since we are about to rise for the Summer Recess, that if the Minister and his Department are considering substantial reforms in this area it would be most appropriate if there was a White Paper setting out the nature of these reforms in order to give an opportunity for suggestions of further areas of reform.

It is a long time since we had a White Paper from the Department of Justice—the early 1960s. It is an area, where there is such a real need for reform, that this would seem to be an appropriate mechanism. I would ask the Minister, firstly, if he is considering the possibility of a permanent body such as the Law Commission which operates extremely successfully both in Scotland and England and, secondly, if very important legal social reforms are under contemplation, whether he proposes to let us have, hopefully, within a short time a White Paper on them.

Minister for Justice (Mr. Cooney)

I should like to thank Senators for the way in which they have received this Bill. I welcome Senator Yeats's contribution and I am very pleased that there was such co-operation here in this House. Senator Robinson welcomes the new provision which makes a plea of "guilty" now possible without the consequences of an un-appealable sentence. The position is eased for the person who might want to plead guilty in that he can have legal aid so that all the mitigating factors can be put forward by skilled advocates.

I know that the lack of legal aid at that stage and the unappealability of the sentence has inhibited pleas of guilty, has led to unnecessary trials and has put an undue burden on the Circuit Court. It is a change that will lead to a lot of desirable features in regard to the criminal work in the courts. It will speed it up and a lot of Circuit Court hearings will now be more realistic where there is a plea of guilty.

Senator Robinson expressed the hope that the extension of legal aid provided for in section 3 would be perhaps the start of a more comprehensive legal aid reform. Very active steps have already been taken, but they have not been taken far enough to give any public details as yet. It is a subject with which I am very concerned and I am happy to tell her that we hope to make substantial progress in the field of civil legal aid in the very near future.

With regard to section 2, the Senator was worried as to whether the accused would at all times be informed of the effect of a correction and of his rights to change his plea and his rights to argue his position if he felt he was being prejudiced by any correction that might be made. I think she does less than justice to our courts in suggesting this because the function of the judge in the court is to ensure that justice is done between both parties, and I think we can rely implicitly on the judicial propriety possessed by our judges to ensure that all defendants will be informed of exactly what is happening. I would also anticipate that because of the extension of the legal aid very few of them would be unrepresented There is no reason why any defendant at this stage would be unrepresented. I would anticipate that they would be represented and that their advocates would be fully aware. If there should be the odd case that they might not be represented then I have no doubt whatever but that the court will explain fully to a defendant what is involved in the correction.

In this connection I would point out that the correction will not involve substantive changes in the charges. They will be merely by way of correction. The right to change the plea, as Senator Robinson points out, is not being interfered with or altered in any way whatever.

The subjects that she touched upon when she mentioned the Law Commission and the White Paper on Family Law Reform are attractive subject for lawyers to talk about but are not really apt to this particular stage of this Bill, which is a narrow Bill dealing with a number of particular defects in our criminal procedure. She can take it that the objectives which the Law Commission would normally hope to achieve, that is, to put forward changes for the reform of the law, principally in the criminal sphere, are matters that I have under consideration. How to achieve what the Law Commission in another jurisdiction has achieved in regard to our different resources and different demands is something that will have to be considered. The exact copy of what is functioning in other countries might not suit us here. The need for something of this nature has been having my consideration and, while I would not describe the parties who are meeting to give attention to this with the grandiose title of a Law Commission, nevertheless they may produce results which would be just as good as far as the public are concerned.

As to whether or not there should be a White Paper on the Reform of Family Law is not something that I would like to give an answer to without carefully considering it. It would be my hope that the reforms which are being planned will find themselves in the legislation very quickly. It would also be my hope that the parties who would have an interest in this subject would be consulted informally and without a lot of red tape so that the views which would normally be got by publishing the White Paper would be got in any event. I think that if they were got then that would obviate the need for a White Paper, and if we had the extra bonus of speed it would be another reason for not having the White Paper.

I want to thank the Senators for their contribution to this Stage.

Question put and agreed to.

Agreed to take the remaining Stages today.