Prosecution of Offences Bill, 1974: Second Stage

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

Minister for Lands (Mr. T.J. Fitzpatrick,

Cavan): Two considerations prompted the introduction of this Bill. The first was to remove any possibility which might exist for any member of the public to think that political or other irrelevant considerations could influence the administration of the criminal law. The Government do not accept that any such considerations have, in practice, influenced the administration of the criminal law. Nevertheless, the Government regard it as a matter of importance that even the danger of any such suspicion being harboured by members of the public be eliminated, and that the administration of the criminal law be not alone impartial and free from outside influence but be manifestly so.

The second consideration arises from the vast increase in the burden placed on the Attorney General in discharging his primary function under Article 30 of the Constitution of advising the Government on matters of law and legal opinion. The area of governmental activity, both in domestic and international affairs, has widened very considerably in recent years and requires the speedy furnishing of legal advice on matters which are frequently of great complexity. One example alone, our accession to the EEC, has added a completely new dimension to the work of the Attorney General, as many of the governmental activities which resulted from that accession have a very substantial and important legal content. Other developments in recent years have added greatly to the burden of work placed upon the Attorney General in his advisory capacity, and it is no longer possible for an Attorney General to discharge as effectively as he would wish both his functions of legal adviser to the Government and public prosecutor. Accordingly, the second aim of the Bill is to relieve the Attorney General of his responsibilities in the latter area and to enable him to devote his attention to his primary function of legal adviser to the Government which, as Senators will appreciate, frequently requires the furnishing of advice as a matter of very considerable urgency.

The Bill accordingly proposes the creation of the Office of Director of Public Prosecutions and the conferring on the director of the powers, duties and functions at present exercised by the Attorney General in relation to criminal and certain other matters.

In achieving in the Bill the first aim set out above, the independence of the director in the exercise of his functions is obviously of the greatest importance. This is expressly provided for in subsection (5) of section 2. The same section provides for the establishment of a committee to select candidates for appointment to the office of director. The Government can only appoint a person selected or amongst those selected by this committee which will consist of the Chief Justice, the chairman of the General Council of the Bar of Ireland, the president of the Incorporated Law Society, the secretary to the Government and the senior legal assistant in the office of the Attorney General. Senators will, I think, agree that this is an eminently qualified committee to undertake the task of selecting candidates for the important office being created by this Bill.

The Government wish to give the committee as wide a range of choice as possible. Accordingly both practising barristers and practising solicitors of at least ten years' standing will be eligible for appointment as Director of Public Prosecutions. In addition, barristers and solicitors working in positions in the Civil Service for which practice as a barrister or solicitor was a necessary qualification will also be eligible.

Under subsection (4) of section 2, the director will be a civil servant in the Civil Service of the State. He can only be removed from office by the Government after they have considered a report from a committee consisting of the Chief Justice, a judge of the High Court nominated by the Chief Justice and the Attorney General. This provision which is contained in subsection (9) of section 2 will further strengthen the independence of the Director of Public Prosecutions. Furthermore, the director will not be accountable to, or in any way subject to, the direction of the Attorney General in relation to the performance of his functions. In neighbouring jurisdictions, the situation is different—the director is under the superintendence of or responsible to the Attorney General for the performance of his functions.

Subsection (6) of section 2 merely provides for periodic consultation between the Attorney General and the director. While it is anticipated that such consultation will occur on a regular basis it is clear that it will not in any way affect the complete independence of the director.

Section 3 provides that the director will perform all the functions at present capable of being performed by the Attorney General in relation to criminal matters and election and referendum petitions. The section also contains certain transitional arrangements to facilitate the director continuing proceedings which may have been initiated by the Attorney General in criminal matters, election petitions or referendum petitions. Under subsection 3, the Attorney General will retain his function in relation to any question as to the validity of any law having regard to the provisions of the Constitution. The Attorney General will therefore continue to be a necessary party in proceedings in which the constitutional validity of any Act of the Oireachtas may be in question.

The provisions of section 29 of the Courts of Justice Act, 1924, will apply in such a way that both the Attorney General and the director will have power to certify that a decision of the Court of Criminal Appeal involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

The provisions of section 34 of the Criminal Procedure Act, 1967, are being similarly treated by the Bill. Thus, in relation to courts, other than the Court of Criminal Appeal, both the Attorney General and the director will have power when, on a question of law a verdict in favour of an accused person is found by direction of the trial judge, to refer the question of law to the Supreme Court for determination, without prejudice to the verdict in avour of the accused.

Provision is made in subsection (5) of section 3 of the Bill whereby the consent of the Attorney General will be required for the continuation of a prosecution after a person is charged in respect of offences under the enactments referred to in the subsection. This is a very restricted provision referring to just three enactments. Because of their nature—involving as they do matters of national policy, security and the public interest—Senators will understand the reason why the Attorney General should continue to exercise some responsibility for them.

Provision is made in section 5 for the performance by the Attorney General in certain circumstances and in relation to specified kinds of criminal matters, of functions conferred by the Bill on the director. The Government are empowered under this provision to make an order specifying such matters when they are of the opinion that the interests of national security so require. Any such order that is made will be subject to review by the Oireachtas under section 12 of the Bill. Again I think it will be clear to Senators that national security must be the concern of the Government and that they must have the ultimate responsibility for it.

As the Government may have access to information not available to the director, and as they might arrive at an appreciation of security matters different from that of the director, it is clearly necessary that the Attorney General be empowered to act in the way envisaged. Once an order is made under the section, the director will no longer be empowered to act in relation to the functions specified in the order. The Government would hope that the exceptional circumstances in which they would be required to make such an order would not arise but, nevertheless, this enabling provision is necessary for the reasons I have stated. It is also to be noted that the operation of this section would not interfere in any way with the independence of the director, or the Attorney General, in the exercise by him of his function in criminal matters.

Section 6 contains another important plovision which will contribute to the impartial administration of the criminal raw. Here it is proposed to make it unlawful for anybody, other than those persons specifically mentioned in subsection 2, to communicate with those involved in the administration of the criminal law, including members of the Garda Síochána, so as to influence decisions to withdraw or not to initiate criminal proceedings.

The concern of the Government in incorporating such a provision was to bring home to the public at large, the reality of the situation regarding the practice of making representations in such cases. At this stage, it is not proposed to create a punishable offence for breaches of the provision. The Government are confident that the unlawfulness of such practice will become quickly known and accepted. Should this not happen, the Government would, of course, consider the introduction of amending legislation creating a punishable offence for breaches of the section.

However, I think it very unlikely that such a step will prove necessary. Senators will note that the section provides for certain exceptions. Thus, an accused person or persons who believe themselves likely to be defendants in criminal proceedings, as well as a person involved in a criminal case as a witness or as legal or medical adviser, or as a social worker or a member of the family of a person involved in the matter, will not be prohibited from making communications to the prosecuting authorities. It will be appreciated that information made available by such persons can be of considerable assistance in the administration of justice.

Section 7 of the Bill deals with the question of the distribution by the Attorney General and the director of State briefs to barristers. I do not propose to go into the allegations that have been made from time to time about the lack of impartiality exercised in this matter. Suffice it to say that such allegations will have no basis whatever when this Bill becomes law. It will remove any lack of confidence which may have existed in the administration of our legal system as a result of such suggestions.

The section provides that both the Attorney General and the director will distribute State briefs in a fair and equitable manner. There is provision for consultation with the Bar Council in relation to the administration and implementation of the section. In addition, there is provision in subsection (4) for the establishment of a complaints procedure to investigate allegations by barristers that the section is not being operated properly.

The Bill also provides, in section 4, that functions which the director or the Attorney General may perform by statute or otherwise can, by his direction, be performed on his behalf by a professional officer in his office in accordance with particular or general instructions. Section 8 makes provision for the proof in court of documents issued by the Attorney General or the director or by a professional officer of the Attorney General or of the director. These sections will assist in the more efficient administration of justice without in any way derogating from the rights of accused persons.

The remaining sections contain provisions ancillary to the main purposes of the Bill including the appointment of a temporary director or an acting director in the event of the office of director becoming vacant or in the event of the director becoming incapacitated due to illness.

I commend the Bill to the House.

Mr. E. Ryan

This Bill is, in general terms, acceptable to this side of the House. It has a number of worthwhile features. Although there are certain points which I will be criticising and possibly putting down amendments to, I would like to make it clear that the Bill, in principle, is acceptable and one which we welcome. The method of appointing the Director of Public Prosecutions is in general terms a good one.

First, I will deal with sections 2 and 3 which deal with the necessary qualifications of an applicant. Subsection 3 (a) reads:

A person shall not be appointed to be the Director unless at the date of his appointment he is a practising barrister or a practising solicitor and has practised as a barrister or as a solicitor for at least ten years.

Subsection (b) reads:

For the purposes of this subsection, service for any period in a position in the Civil Service for appointment to which practice as a barrister or a solicitor was a necessary qualification shall be deemed to be practice as a barrister or a solicitor, as the case may be, for that period and a person, while holding such a position shall be deemed to be a practising barrister or a practising solicitor, as the case may be.

Up to a point I do not disagree with this provision. I certainly do not think that merely because a person is not a practising barrister or solicitor or is in a Civil Service position, he should be excluded from consideration for this appointment. It is important that the person selected should, in fact, have had a considerable number of years in practice as a barrister or a solicitor. Consequently it would have been preferable, while allowing a civil servant to be appointed, that this section should have been drafted in such a way that a minimum period of practice approaching ten years should be necessary before a person could qualify for appointment to this position.

It would be possible under this section as it stands for a man after a very short time in practice to be in a Civil Service position for quite a long time—and his practice would have been almost forgotten—which was not very relevant to the duties of Director of Public Prosecutions. For that reason this section, although acceptable, might be amended to some extent in the way in which I suggest.

Section 2 (6) states:

The Attorney General and the Director shall consult together from time to time in relation to matters pertaining to the functions of the Director.

I am not quite clear what the purpose of this subsection is. Perhaps the Minister in replying would comment on it. It seems to be both unnecessary and futile. Is there a technical reason for it? It is almost inconceivable that the Attorney General and the director would fail to consult together from time to time.

If some kind of personality clash is envisaged or feared, fact that there is a subsection here which tells them that they must consult together will not achieve anything. Perhaps the Minister would comment on the reason for this subsection.

In my view the appointment committee is a very good way of making recommendations for this appointment. The one omission from the list is the President of the High Court. He would be an even more relevant person for inclusion in this committee than the Chief Justice, because the President is the person who administers the higher courts dealing with crime. He must have a very wide knowledge of the prosecution of crime and administration of the criminal courts. I would be inclined to include him in this committee if for any particular reason the committee should be expanded.

The committee to be set up under this section will make recommendations to the Government. The Government will select somebody from the names forwarded by the committee. It is disturbing to find that the Government can, in fact, refuse to accept the recommendations of this committee. As I have said, this is a very distinguished committee which could be and should be depended upon to select the people, who would be eminently suitable for the job. Nevertheless in this Bill the Government reserves the right to refuse to accept the recommendations put before it by the committee. Subsection 7 (c) (2) provides that the Government would ask the committee to think again and put forward some further names. I think this is a very likely development. One could not blame the committee, having put forward a number of names and gone to a great deal of trouble to pick what they considered to be suitable people, if they were told the Government did not like any of the candidates and were asked to select some more. It would be understandable if they were less than enthusiastic the next time. This is likely to lead to considerable difficulty and annoyance on the part of the committee. Consequently this might be treated in a slightly different way.

If the committee sent forward one or possibly two people, the Government for quite good reasons, particularly if they had only one name before them, might decide that they did not have much confidence in that person for one reason or another. This section should provide that at least three names should be put forward by the committee. This would allow the Government a choice because they would not be faced with just one name. It would be reasonable that the Government should have to take their pick from amongst the names which were put before it.

The definition of a "law officer" is put at the end of section 4 and not with the definitions at the beginning of the Bill. I appreciate that it says in this section that law officer means the Attorney General or the Director or the Acting Director. There may be some reason why the definition should be restricted to the particular section but even allowing for the fact that there is some difficulty in expanding that definition to the entire Bill, there is no reason why the definition should not be in section 1 while at the same time specifically referring to section 4. When one is in some doubt as to what exactly a "law officer" means, the natural thing to do is to look at the definition section at the beginning of the Bill. It is very annoying and misleading when, after a lot of trouble, one finds that that section does not include a particular definition of a law officer. Life is difficult enough without introducing these kind of idiosyncrasies. I suggest to the Minister, and I will put down an amendment to that effect, that that particular definition be put in the definitions section.

Section 6 deals with the prohibition of certain communications in relation to criminal proceedings. This in my view is a ridiculous section. The best that can be said about it is that it is window-dressing. Indeed it is a bit of pious humbug. It will not achieve anything. It will not stop anything. It is simply not necessary. It is undermining the public service by suggesting that representations will undermine the integrity of the Attorney-General's office or the Director of Public Prosecutions' office. It was suggested that this has happened in the past and is likely to happen in the future.

Mrs. Robinson

The Senator might even use the word "impracticable".

Mr. E. Ryan

There are a lot of words I could use. To make the matter even more ludicrous, the section says that it shall not be lawful to communicate with the Attorney General and so on. But it is not an offence and there is no sanction against doing it. It is a prime fundamental of the law that we should not have an offence unless there is a penalty. It is meaningless. If one wants to philosophise about it, this merely encourages people to do something which is not lawful even though no offence which can be punished is committed. If there is no penalty attached a great opportunity is provided to do something which is not lawful and still avoid any penalty. It merely reinforces what I said about this section. It is a section which is ridiculous. It is window-dressing and pious humbug. It means nothing. It will not achieve anything.

I do not want to impose on the House to look at this section for very long because it is not worthy of such attention, but it defines what a member of the family is. It gives a long list of people who are members of the family and who can, because they are members of their family, make representations. This long, long list goes on. Inevitably with a long list of people who are members of a family, one will leave out some people. I have no reason at all to believe that if I was ever in serious trouble with the law that, for instance, my mother-in-law might not be the person who would be most anxious to make representations on my behalf. According to this section, it will be unlawful for her to do so. She will not be in very much trouble but if she is a conscientious person she will be appalled at having done something which is unlawful.

The whole idea behind this section and ridiculous aspects of it immediately present themselves when one thinks about it. It says nobody except the people who are so carefully defined here may make representations. It is quite conceivable that a member of the public who is not within any of the definitions here, but who may bona fide have some information or very good reason to believe that a particular prosecution should not be taken is precluded from making representations and getting in touch with the Attorney General's office and saying he has reason to believe, for one reason or another, that this prosecution should not go on. Unless he is within the list of people he is doing something which is unlawful.

It is difficult to take this section seriously or to understand why it was included in the Bill. It is a foolish section for the simple reason that it will not stop representations being made. People who are not aware of section 6 and who do not understand, know or believe that there is anything wrong with putting forward their point of view will make representations. Of course it would be the duty of the Attorney General or the director of Public Prosecutions not to entertain these representations but they should not have to be told so in this section. Representations have been made in the past and will be made in the future. I do not think they were entertained or acted upon in the past, and I am sure they will not be acted on in the future. This section is not going to do anything about it.

It is the duty—as everybody knows— not only of the Attorney General and the Director of Public Prosecutions, but of every person in public life and in high office to repudiate and reject undue influence on them as to how they should do their jobs. This is not a new or complicated concept but merely a matter of integrity. Everybody in public office should have integrity. If it is not present already it will not be created by a section of a Bill as is attempted in this case. The Minister should drop this section quietly and proceed with the other sections, most of which are worthwhile, make sense and will improve the administration of the criminal law.

Section 7 deals with the system of briefing barristers in criminal prosecutions. The position up to now has been that by and large, those members of the Bar who were supporters of the Government of the day got most of the briefs. That, of course, was something which was disapproved of by many people. It was patronage and was undesirable. It should be made clear that there were always more than sufficient competent members of the Bar to do the work available, within the limitations of the system. Although it can be criticised in some ways, it did not interfere in any way or prevent the work that had to be done being done competently and adequately. It did mean that certain sections of the Bar got nearly all the work while others did not. The system which is now proposed is a better one. Consequently, the change which is proposed is a good one and one which I welcome. I think it certainly will lead to less criticism and a more even distribution of work in the Bar in future.

This is a change which should have been made some time ago. The Minister who introduced this Bill deserves credit for the fact that he finally got around to doing so even though it is something which had been proposed for some time past. These are the only points I wish to make on this Bill. It is a Bill which has a number of good features and one which we, on this side of the House, have no hesitation in accepting in principle. We will be putting down a number of amendments on the points which I have mentioned.

Mr. M.J. O'Higgins

There are just a few points which I would like to make in relation to this Bill. I can understand the point of view expressed by Senator Ryan, with regard to section 6 of the Bill but he did not give sufficient account to the words of the Minister in his opening speech with regard to this section. The Minister made it quite clear that what was involved here was an effort on the part of the Government to bring home to the general public the undesirability of representations and approaches being made to— under this Bill—the Director of Public Prosecutions, in an effort to stop proceedings being initiated. That effort on the part of the Government should be commended. It may be that this section, which is a novel section, is open to the type of criticism which is being directed against it by Senator Ryan but the effort is worth making. Most of us who have been in public life for a period, will appreciate the type of representations that are made to public representatives and the frequent embarrassment of a public representative who is asked to make representations regarding prosecutions which are either pending or in process. Personally, even if it were to do nothing else, I would regard this section as worthwhile from the point of view of the public representative who is able to show the person who approaches him or her the contents of this section which preclude him from making representations. That is important.

The most important aspect of this is what the Minister referred to in his introductory speech when he stated that the concern of the Government in incorporating such a provision was to bring home to the public at large the reality of the situation regarding the practice of making representations in such cases. It may be that the inclusion of this section in the Bill will not achieve the stated and desired hope of the Government in the matter. If that is so the Minister has spelt out quite clearly that the Government are prepared to go further and that they have deliberately omitted from the section, at present, any question of penalties, in the hope that the inclusion of the section, in the Bill as I understand it, will have the desired result. The Minister has spelt out that if it does not have the desired result the Government are quite prepared to consider amending legislation which will provide for penalties where representations of this sort are made by people who have no interest or are not entitled under the Bill to make representations.

That is roughly my viewpoint with regard to this section but there is one matter, possibly of a technical nature, that I would like to raise with the Minister. It may be that it is not necessary to do anything about this, that the wording of the Bill as it stands is sufficient. It is quite clear that what the Government have in mind is the making of representations designed improperly to influence the decision of the Attorney General or the Director of Public Prosecutions, as the case may be. It is not stated in the section that what are in mind are representations designed improperly to influence, and I would just have a fear that the kind of case that was referred to by Senator Eoin Ryan might arise; that a person who does not come within the category of accepted persons under this section——

Mr. Lenihan

A social worker, for instance.

Mr. M.J. O'Higgins

A social worker would be included under the exceptions but it could be that someone who does not come within the category of exceptions might for one reason or another have acquired knowledge which would be relevant for consideration as to whether a prosecution should be taken or if proceedings have been commenced, whether they should be withdrawn.

The section as it stands would mean that one would have to adopt a very cumbersome method for communicating that knowledge to the Director of Public Prosecutions. It could be done but the procedure would be cumbersome. If the person who has the knowledge, even though it be relevant, even though it be perfectly bona fide and in the interests of justice should be communicated to the Public Prosecutor, does not come within the category of accepted persons, he or she cannot communicate that knowledge.

If they communicated the knowledge, the Director of Public Prosecutions is obliged by statute to disregard it. Any lawyer will point the way to get around that. For instance, a person with the knowledge will go to one of the accepted persons, a member of the family or someone else, and get the knowledge conveyed in that way. It seems to me that that is unnecessarily cumbersome and it might be worth having a look at it again to see if there is any real danger of this situation arising whereby knowledge which would be relevant and which would serve the interests of justice is precluded from reaching the ears of the Director of Public Prosecutions by reason of section 6.

The other point on section 6 which I would ask the Minister to consider is the point I referred to earlier as to whether the word "improperly" should not be included in subsection (1) (a) —for the purpose of improperly influencing the making of a decision. There are points which should at least be considered. Possibly they have been considered and if so I am sure the Minister will be able to satisfy the House when he is replying.

Let me come back to the basic point here which I think is of the utmost importance. What is in question here, and this has been made clear by the Minister, is really an effort to educate, if you like, members of the public as regards their responsibilities in connection with the making of representations.

Mr. Lenihan

This is aspirational politics.

Mr. M.J. O'Higgins

There is only one other section on which I should like to comment—section 7. This section has received a welcome from Senator Ryan and I, too, welcome it. The aims which the Government have enshrined in this section are very commendable and very laudable but here again there possibly are dangers that the section, if it is not properly received by the Bar generally—I imagine it will—is the kind of section that contains within itself the danger of making it unworkable. The whole idea is that State briefs should be distributed in a fair and equitable manner both by the Attorney General and the Director of Public Prosecutions. There are certain guidelines laid down by the section as to what should be taken into account by these two law officers in coming to decisions on that question. There is the suitability of the barrister in question, the public interest——

Mr. Lenihan

Like the Ten Commandments, they are all against sin.

Mr. M.J. O'Higgins

——and putting it bluntly, the amount of briefs he may already have got, either in that year or in other years. It seems to me that if you have a fractious Bar at any particular time, trouble could be created under this section. There are a number of qualified barristers. It is only possible to brief a certain number of them in any period of a year or two years. Those who do not get briefs would, it appears under this section, be entitled to create a fuss about the matter. I am in two minds about this.

Mr. Lenihan

You would have more trouble than you had last night.

Mr. M.J. O'Higgins

I like the idea of enshrining this in legislation and at the same time I do not think that it would be in the interest of the general public that the law officers in question should be too rigidly tied down or that they should have to look over their shoulders too much to find out what the Bar in general are thinking. Those are simply some thoughts I have on the section; I do not know whether I am right or wrong, but I think they are worth uttering.

Mrs. Robinson

I should like to welcome this Bill as introducing a considerable improvement to the legal system and institutions of the State and incorporating balance of fairness and of objectivity in the way in which our law is processed. I regret that, because we are into the July "gallop" and because of the late hour of the evening after a long day, my thoughts on the Bill may be more random and more disjointed than would be desirable.

I welcome this Bill in particular because it will create two distinct roles. It will create a much more significant role for the Attorney General in his capacity as adviser to the Government and hopefully allow him to be an instrument for constitutional development and an instigator of legal reform: a function for which I can see a very real need at the moment. At the same time it will create a quite separate role of prosecutor in criminal matters who will decide how the State briefs in this area will be distributed in the legal profession. In achieving that dual purpose the Bill has several merits which I hope will be seen in other similar legislation which may come before us.

The method of appointment is commendable. It is not just the usual appointment by the Government without consultation with any other interests or without any objective criteria to be met in making such appointment. We have too many mexaples of appointments to office in this country being in the sole jurisdiction of the Government of the day. This is not a good way of creating confidence in the objectivity of the particular person appointed. I welcome the fact that section 2 provides for a committee and that this committee will recommend several names from which the ultimate appointments will be made.

I agree with Senator Ryan's comments on the qualifications of persons who could be among the names recommended. In relation to a person in the Civil Service there ought to be a requirement of a minimum period of practice as a barrister or a solicitor. I would support his view on this. The particular function of Director is one which requires not just a nominal experience in practice as a barrister or solicitor but a substantial working knowledge of one or other of the branches of the profession. Also, I welcome the fact that the position of Director of Public Prosecutions will be open to solicitors as well as to barristers.

In relation to section 4 of the Bill I am not too happy with the provisions of subsection (1) (a) which states that:

A law official may direct any of his professional officers to perform on his behalf and in accordance with his instructions any particular function of the law officer in relation to particular case or cases or in all cases in which that function falls to be performed.

As Senator Ryan pointed out, "law officer" in this context means the Attorney General or the new Director. Does this delegation extend to cover the role which the Attorney General formerly played and presumably which the Director of Public Prosecutions will now play in relation to certifying what persons are to be sent for trial to the Special Criminal Court? This is not a function I would like to see delegated to somebody lower down the scale because certification by the Attorney General effectively deprives a person of trial by jury and directs that person to go instead to be tried by the judges of the special Criminal Court, it is therefore a function which should be exercised either by the Attorney General as at present or by the Director of Public Prosecutions in person. It should not be delegated and we, as Members of this House, should be very concerned not to allow derivation from the personal responsibility of the law officer concerned for any certification which deprives the individual of trial by jury.

This is particularly necessary because of the very broad terms of reference under which the certification can be done.

The Offences Against the State Act 1939 provides that certification in some instances can be done in relation to scheduled offences but there is also authority under that Act for sending a person accused of any criminal offence for trial to the Special Criminal Court rather than for trial by jury either in the Circuit Criminal Court or the Central Criminal Court. It is essential that this power be retained in the sole responsibility of either the Attorney General or the Director and that it is not one which can be delegated and, therefore could become lost in the particular Department and certified by any particular officer to whom the matter comes, without the particular safeguards which are absolutely necessary.

I would welcome clarification on that section and would hope to introduce an amendment if it extends to the powers exercised at present by the Attorney General, in relation to certifying people to be tried before the Special Criminal Court.

I would like to comment briefly on section 7 of the Bill apropos the retaining of barristers on behalf of the State. I welcome the fact that the criteria will be more objective and an attempt will be made as provided for in subsection (1):

... in such manner so as to effect a distribution of such retainers amongst them that, in the opinion of the Attorney General, is fair and equitable, taking one year with another, having regard to their suitability in relation to any particular retainer, to the public interest and to the distribution of retainers under subsection (2) of this section.

The Director of Public Prosecutions also has to bear in mind these objective criteria. It has been a very serious criticism of the legal profession, particularly of that branch of it to which I belong—the Bar—that the retainers have been handed out on the system of political patronage. Any young barrister coming into the Library could see very clearly, within some weeks of entering, that if he wanted to make an income there was a sure road to it by joining the party of the Government of the day and that if he did not do that he would not get any State briefs. That he would be entirely dependent on other briefs and that he would be substantially worse off than his contemporary who joined the political party.

This system had a corrosive effect. It was a very unfair and as somebody who witnessed the pervasive and invidious effect of it I welcome any legislative attempt to remove this factor from our legal system.

There was a suggestion at one stage that this type of political patronage only existed in relation to one former Government, and that when there was a change of government recently, it no longer operated. I was interested during my researches for a paper I prepared as Professor of Criminal Law in Trinity on the Special Criminal Court to find that, going through the records of the two years during which the court was in operation and listing the names of prosecuting and defending counsel that in the list of prosecuting counsel for a period up to shortly after March, 1973 one could put certain initials after the names of prosecuting counsel, whereas after that period one began to put different initials after the names of prosecuting counsel in the Special Criminal Court. The fact that this exercise could be carried out over that two-year period was an illustration of the degree to which briefs were handed out on the basis of political patronage.

I welcome this Bill because it will have the effect of freeing the Attorney General from what must be a considerable work load in relation to criminal matters at the moment, so that he may advise the Government in relation to constitutional matters and in relation to matters pertaining to the European Community. This will be a decided advantage to our legal system in general and, hopefully, it will make the role of the Attorney General a more creative one which will promote more consciously the type of reforms which are so necessary to our system.

A further step which we should take in creating the types of institutions we need would be the step of creating the equivalent of an ombudsman or parliamentary commissioner who could hear complaints against maladministration. This would be a further step in creating through our institutions, a confidence in the system, in ruling out malpractices which have grown up during the years and ensuring that the rule of law in its best sense prevails in relation to the operation of the whole procedure of law and the legal system in the country. I approve the fact of this Bill subject to getting clarification on the point I raised in connection with section 4 on which I propose, if necessary, to introduce an amendment.

Mr. Lenihan

I want to make it quite clear that the principle behind this Bill is totally acceptable. The whole idea of dividing responsibility in this area was under examination by the last Government and this is a matter that flows on from what has become, what you might call, as the Minister said in his introductory remarks, an administrative necessity by reason of the burden of work now placed on the Attorney General in his capacity as adviser to the Government and in his rapidly growing capacity of adviser in regard to European affairs. There is no question about it; the Attorney General as adviser to the Government, as the man sitting in at Government meetings and giving legal advice to them in regard to Government day-to-day administrative affairs and in regard to our involvement with other countries, has a very important wholetime job.

The other consideration referred to in the Bill is that, from the point of view of appearing—I use that word deliberately—to the public, which is often important, to be impartial and distinct from the Attorney General, the prosecution of criminal matters should fall within the ambit of the Director of Public Prosecutions as set out in this Bill. This is excellent and acceptable and, indeed, welcome.

I would like to take issue with Senator Robinson and, indeed, with some of the tenor of the implications in the Minister's opening remarks in regard to something going wrong in the Attorney General's office or that, to any degree, since the formation of the State, Attorneys General and their staffs were in any way wrong. I want to repudiate this totally.

Mrs. Robinson

All things being equal.

Mr. Lenihan

I feel very strongly about this. In my view, we have had a distinguished list of Attorneys General ranging from a former Taoiseach, ex-Deputy John Costelloe to ex-Deputy P. McGilligan and ex-Deputy Lavery; we have had the present respected Justice of the European Court, Cearbhaill Ó Dálaigh, the last Attorney General and the present Attorney General. I am just skating over generations quoting names of people who, since 1922 have, in my view, done a tremendous honour to the Office of Attorney General. Any notion, implicit or explicit, that in any way any of these Attorneys General or their staffs were in any way involved in anything that could be regarded as against the public interest in the prosecution of criminal matters should be repudiated and I repudiate it here and now on behalf of all of them and their staffs. I am sure the Minister will join with me in that repudiation. It is for this reason that I dislike—I want to put it in as sanely as possible—the whole tenor of section 6 of the Bill. This is a section of what one might call aspiration. Aspirations have their place. We are all full of aspirations. We are all full of moral intentions, as we saw last night, but these are matters not suitable for inclusion in a statute passed by a responsible Parliament.

In my view, the clearer a Bill of this kind the better. The Bill is too important for the inclusion of aspirational nonsense such as we have in section 6, the whole tenor of which implies that in some way harmless representations have been made over the years to Garda officers. State solicitors, Attorneys General, politicians and so on and that these harmless representations, 99 per cent of them well-intentioned, are in some way damaging to public morale and to the community at large. It is a lot of twaddle, a lot of nonsense, and the Minister knows that. Why it should be included here in a section in a very serious legislative measure, and included without any sanction or any penalty, just included, as I say, as a pious aspiration, is something that defeats me. That is not what this legislation is about. It is about a very serious matter. It is quite right for us to establish an office of Director of Public Prosecutions, separate from the Attorney General, because the job of Attorney General is in itself a wholetime job. As I said earlier, from the point of view of appearance, it is better that the job should be separate. Why then bring in this nonsense in section 6?

I would ask the Minister very seriously to consider what I am saying. Perhaps I am using extreme language in describing it, but Senator Ryan described it in even greater detail. Senator O'Higgins suggested certain amendments which, I think, would only make confusion worse confounded by incorporating who is to decide what is proper and improper in matters of this kind. Let us forget about that. We are a mature society. Provided a proper person is appointed—this is where I welcome section 2 where a scheme of appointment is established which will ensure that the proper person is appointed—we need go no further. It is set out in section 2 that the committee will consist of the Chief Justice, the chairman of the General Council to the Bar of Ireland, the president of the Incorporated Law Society, the secretary to the Government and the senior legal assistant in the office of the Attorney General. Senator Ryan suggested that, in, addition, there should be the President of the High Court. That is a matter worth considering. Here you have a scheme of appointment established which is very welcome. Appointment—again, I do not go the whole way with Senator Ryan here—is subject to an ultimate decision by the Government. Senator Ryan objects to that. He suggests that the scheme of appointment, of itself, and the committee of itself, should be sufficient to ensure that the right person is appointed. I would always, as an ex-Government member myself—defend the ultimate right of the Government to have a say in the matter. At any rate, the screening process and the qualification process are sufficiently adumbrated in section 2 to ensure that, in so far as is humanly possible, the right type of person will be appointed to this job.

Give or take whatever amendments the Minister may consider after the debate here, I think the whole scheme of appointment and the general principle underlying section 2 are welcome. Why, in the name of heaven, add section 6 on top of that? If we are going to have the right type of person as envisaged in section 2, why put in this nonsense in section 6 about representation, as if to suggest, by implication, that in some way the person who will be appointed, who hopefully will be a person of the highest integrity and regard, appointed under a screening process that is fairly good though, in my view, it might be improved, is in some way, or some of the staff whom he will appoint and be responsible for, is going to be influenced by ordinary representations? Really it is a bad principle to introduce this sort of nonsense into legislation. It is meaningless. It is unenforceable. There are no penalties that can be devised. It is entirely aspirational in form. It is bad generally because, by implication, it means that previous Attorneys General or their staffs were in some way wrong in this matter of succumbing to representations. I do not believe that for an instant and that belief applies right across the board, irrespective of party or irrespective of Government.

There is the same sort of nonsense running through section 7 about barristers. I do not see how the Attorney General is going to ensure that the barristers selected by him to advise him, or the director is going to ensure that barristers retained by him are going to be, like Caesar's wife, above suspicion. Let us have regard to the integrity of the people appointed.

Senator Robinson has left the House. She paraded many things we hear these days about appointments. I am speaking now as someone who was responsible for recommending to the Government the appointment of a judge of the Supreme Court, who is now the Chief Justice and who was election agent for ex-Deputy, now Judge, Tom O'Higgins in his first effort to become President of Ireland. I made that recommendation to the Government, and I was supported in it by the then Taoiseach, the late Deputy Seán Lemass, and the man whom I recommended for appointment to the Supreme Court at that time was the outstanding legal practitioner in the State at that time. I personally have been responsible for a number of such appointments and the Coalition Governments and Cumann na nGaedhael Governments were equally responsible. I do not go along with this nonsense that politicians are incapable of looking other than through party blinkers. It is time for politicians of all parties to look for themselves. They made it quite plain that they do not particularly want advice in regard to making responsible appointments and if there are people who have supported respective political parties, and if they have the capacity and ability to serve in a capacity on the bench, be it district, circuit, High or Supreme Court, I see no reason why they should not be appointed by a Government of responsible men. I can think of no better selection process than a Government of responsible politicians meeting in a responsible way in committee to make a decision.

I only gave one or two examples, but I know of far more chicanery in regard to all sorts of other methods of alleged independent-from-politics systems of appointment that have operated in the past and are still operating. I do not see why politicians should not stand up and be counted in this and other areas. In my view, the standard of honesty and the standard of morality in regard to appointments by politicians can be often far better and far in excess of similar standards that are purported to be operated by officials or by other people devised under some sort of aspirational section of a statute to be independent, above board, and apart from politics and apart from undue influence.

The basic point which I should like to make on the principle of the Bill, which I welcome totally, is that we should rid ourselves of the sort of nonsense there is in section 6 and, in some degree, in section 7, and say to ourselves that we are appointing an officer who will be thoroughly screened in the manner set out in section 2, with final Government decision in case the committee do not come up with the proper person. As I said earlier, I disagree with my colleague to some extent here in that I think the Government should be the final arbiter in a matter of this kind. If it was left at that it would be an excellent Bill and would be free of any nonsense. I would appeal to the Minister—I know that he is a sensible man who has come up the hard road of politics and the law—to look at this in the way I suggest and to rid a very good Bill of unnecessary nonsense of this kind.

I would like to mention one legal point, for clarification purposes more than anything else; I refer to section 3 which is the important one in regard to what the Director of Public Prosecutions will do. I note that under subsection (1) everything that is referable to the Attorney General heretofore will now be referable to the Director of Public Prosecutions in regard to the functions to be exercised by the Director of Public Prosecutions and the references to the Attorney General are to be construed accordingly. I note that subsections (4) and (5) specify that notwithstanding anything in this section, the Attorney General may, in addition to the Director, exercise functions under section 29 of the Courts of Justice Act and section 34 of the Criminal Procedure Act, 1967, and in subsection (5), again notwithstanding anything in the section, that the Attorney General preserves these powers.

Again, for clarification, there is a very important power of which the Minister is aware. Under section 62 of the Courts of Justice Act, 1936, the Attorney General may proceed on his own in regard to any case where he may consider it desirable despite what the district justice may do. The Minister is aware that the Attorney General has the right to proceed on his own. I want to know whether that power is included under subsection (1). I hope it is because I think it is a very useful fundamental power to have in the hands of the Attorney General. If it is, why is it not specified as subsections (4) and (5) are specified? Here there are specific Attorney General powers specified in subsections (4) and (5) and a very fundamental power which is there under section 62 of the Courts of Justice Act, 1936, is not similarly spelled out. I want to know is the Minister satisfied that he has included this power in the global provision of subsection (1) and, if so, why is it not spelt out? Why the necessity to spell out subsections (4) and (5)? It is a legal-cum-drafting point. Why have subsections (4) and (5) spelled out and why not spell out this particular power under section 62 (1) of the 1936 Act? In other words, why have subsections (4) and (5) there at all, if they, equally, with section 62 (1) of the 1936 Act can be included in the global provision of section 3 (1)? I think the Minister takes the point. It does seem a bit sloppy from the point of view of drafting to write in two specific Attorney General powers into two specific subsections and the most important power of all, which is a basic one, in my view giving him the right to prosecute on his own, is included in an overall global provision rather than being spelled out. Why have two minor powers spelled out and a very important major power not spelled out? I can assure the Minister that this has been a cause of some concern in some areas and I should like clarification on the matter.

I welcome the Bill but I think it would be much better without section 6. I do not think there is any merit in amending it as Senator Michael O'Higgins suggested; that would only add confusion. I think he was just speaking to a brief or speaking because of his particular situation as Leader of the House. Basically, I think the Bill would be far better without section 6. I would suggest deletion.

Section 7 is full of the same aspirational nonsense and I would like its deletion also. It is not in quite the same aspirational vein as section 6. The quality of the Bill would be far better without either of these two sections. Certainly it would be better without section 6.

Minister for Lands (Mr. T.J. Fitzpatrick, Cavan)

First of all, I would like to thank the Senators who have spoken for what I regard as a generous acceptance of the Bill on the whole. The Senators welcomed the Bill and accepted it for what it is—a piece of reforming legislation long overdue. I should like to deal with two general points first before dealing with various other points made by the Senators.

First of all, Senator Lenihan seemed to think it necessary to make it clear that there was no reflection cast on either the present Attorney General or any previous holder of the post or on their staffs. I want to make it clear that there was no reflection cast on either the present Attorney General or any previous holder of the post or their staffs. I do not know whether Senator Lenihan was here when I made my Second Reading speech or whether he read my script, but I believe I made it perfectly clear in my statement that neither myself nor the Government suggested that there was any malpractice or any undesirable practice in the Attorney General's office either at present under this Government or under any previous Government. I want to make that abundantly clear. The Government are satisfied that all holders of the post of Attorney General discharged their duties in the most efficient and best possible tradition of the Bar. That goes for the staff of the Attorney General. I am sorry that Senator Lenihan found it necessary to introduce that note.

Mr. Lenihan

Section 6 brought it on.

Mr. T.J. Fitzpatrick

(Cavan): I am coming to that in a minute. Both in this House and in the Lower House it was made clear that there was no such implication either directly or indirectly. I am somewhat surprised that both Senator Ryan and Senator Lenihan are dissatisfied with section 6. I believe that section 6 is a very desirable section. I believe it is long overdue. I am not suggesting for one moment that representations which have been made to Garda superintendents, or State solicitors, or the Attorney General, in the past have borne fruit. I am not suggesting that they influenced those officers in any way in the discharge of their duties. I do believe that there is still in this country a belief that it is not what you know but who you know that matters. The sooner that is killed the better.

Mr. Lenihan

But you do not kill it.

Mr. T.J. Fitzpatrick

(Cavan): And I believe that section 6 will do something to kill that. I would have thought that particularly Members of Parliament would have welcomed section 6. It merely seeks to prohibit people from communicating with the Director of Public Prosecutions, or the Attorney General, or other people in charge of prosecutions, with a view to influencing the withdrawal or the non-initiation of a prosecution. I believe that is a good thing. It is a fact that in the past such representations have been made and following those representations, perhaps, prosecutions were not brought. They would not have been brought anyway if the representations had never been made. I am also satisfied that people who had these representations made thought that it was as a result of their representations that proceedings were not started. That is the sort of thing I think should be killed. It is the sort of thing we should see an end to.

Perhaps it is because I practised as a solicitor for quite a number of years that I recoil from this sort of approach. My flesh creeps when somebody asks me: "Will you see Superintendent so-and-so, or will you talk to the Attorney General?" It is really foreign to the training of a member of the legal profession. Yet under the law as it stands, if you refuse to do this you are making bad friends for yourself. I welcome the lay when I will be able to say to anybody who asks me to do that: "I am very sorry, but if I did that, I would be breaking the law."

Mr. Lenihan

How do you stop them?

Mr. T.J. Fitzpatrick

(Cavan): Maybe the Senator would know more about those things than I do. He has longer experience. I welcome the day when I will be able to tell people that I cannot make representations because it is not lawful. I also believe that the Attorney General, the Director of Public Prosecutions, and other people charged with the enforcing of the law and the bringing of prosecutions will welcome this Bill and will welcome section 6 because they, too, will be able to say to all and sundry: “I am sorry. I am not permitted by law to discuss that with you.”

Mr. Lenihan

If they were any use they would say that without having a section in an Act.

Mr. T.J. Fitzpatrick

(Cavan): They will have a section at their disposal now to reinforce them. Senator O'Higgins was a little bit afraid lest people might be prevented from passing on information to the officers concerned. I am satisfied that there is nothing in the section to prevent a member of the public from passing on relevant information by way of a statement to the gardaí in charge of the case or to others in charge of the case. It was never intended by the section that that should be prohibited and I do not think the section forbids it. It talks about communications. It does not use the word “representations” but it is really representations that it is getting at.

Those were the two points I wanted to deal with in the first instance. Senator Ryan accepted the Bill in principle. He thought that the qualifications of the Director of Public Prosecutions should be spelled out more clearly. In particular, he seemed to think that service in the public service should not be reckoned as part of the ten year service as a barrister or as a solicitor qualifying a person for the post. Senator Ryan understands, I know, that in order to qualify the person must hold a post for which the qualification of a solicitor or a barrister is a prerequisite. I agree with Senator Ryan that he could then spend three or four years in the Civil Service doing work which might not be regarded as practice at the Bar, or practice as a solicitor, and that that would be taken into account.

Senator Ryan may be satisfied that the committee which the Bill sets up to interview applicants for the position and report to the Government will take into consideration the length of service the civil servant has served, and will take into account the type of service— the type of work that the civil servant has been doing—and will weigh that on the one hand against the length of time that the other applicants have spent practising at the Bar, or practising as a solicitor, and will decide which best qualifies the applicant for the position which he seeks. I think Senator Ryan may rest at ease in the knowledge that the committee which is to be set up will be a very highly qualified and impartial committee and that it will bear all those things in mind.

Senator Ryan also raised a query on subsection (6) of section 2 which provides that the Attorney General and the director shall consult together from time to time in relation to matters pertaining to the functions of the director. I would refer the Senator to the immediately preceding subsection which says that the director shall be independent in the performance of his functions. The fundamental provision of the section lays down that the Director of Public Prosecutions shall be independent in the performance of his functions and that he will not be compelled to account to the Attorney General, the Government or anybody else. As I pointed out in my opening speech, that is somewhat different from the practice prevailing in neighbouring jurisdictions where the director is subject to the Attorney General. Having regard to that subsection it is necessary to write in subsection (6) so that the director will not think that he is so independent that he does not even have to discuss general policy with the Attorney General. There is nothing more sinister in it than that and I think it will prevent the Director of Public Prosecutions from being so independent that he might become awkward.

Senator Ryan also thought that the President of the High Court should be on the committee provided for in subsection (7) (a) of section 2. The idea in drafting this subsection setting up this committee was to make it a strong committee but to ensure that it would not be unwieldly. It was decided to have a judge of the High Court or the Supreme Court on it and in selecting such a judge the highest judge in the land was selected, that is the Chief Justice for the time being. The Chief Justice very often presides in the Court of Criminal Appeal and has generally first-class knowledge of the criminal side of the courts as well as the civil side. I suppose the President of the High Court might have been selected but I imagine if we came in here with the President of the High Court as chairman of this committee we would be asked why did we not select the Chief Justice. It is a matter of selecting one of them and we selected the senior judge. I think that the Seanad will be satisfied that we were right in doing so.

Senator Ryan also raised the point that the Government may reserve the right to refuse to accept a name submitted to it by the committee. The overriding safeguard here is that the Government cannot appoint a person who has not been recommended by this committee. It is true that they may refuse to appoint a person for some reason that might be known to them, and that might not be known even to the committee but the public safeguard, if it is necessary, is that the Government cannot appoint a person who has not been screened and recommended to them by the committee consisting of the Chief Justice, the chairman of the General Council of the Bar of Ireland, the president of the Incorporated Law Society, the secretary to the Government and the senior legal assistant in the office of the Attorney General. They cannot appoint somebody who has not been screened and certified as competent by that committee. I think that is an adequate safeguard and I would ask the Seanad not to tie the hands of the Government beyond that because in the ultimate the Government must accept responsibility for this important appointment.

Senator Ryan was also worried about section 4 because the definition of "law officer" was left to the very end of the section. As a practitioner myself I sympathise with him because you have to read to the end of the section before you find a definition of "law officer" which appears in the first line.

Mr. E. Ryan

My point was that it should be in section 1.

Mr. T.J. Fitzpatrick

(Cavan): The Senator thought that it should have been transferred to the definition section. The Senator from his experience will know that there are many, many precedents for defining a term when it appears only in one section, in that section. I think that is what has been done here. I do not think the term “law officer” appears in any other section. For that reason it was defined in the section in which it appeared.

It was Senator Ryan who first dealt with section 6. I repeat that I think it is a section that will do a lot of good. It will do something to bring home to the general public that not alone justice is done but that justice is seen to be done. I think that there is nothing more objectionable than when somebody comes to a TD or a Member of Parliament and asks him to make representations and tells him that there was a case a couple of years ago when somebody saw so-and-so and there was nothing more about it. I want to put an end to that and I am not alleging that these representations bore fruit but they got credit for bearing fruit. I cannot understand Senator Ryan and Senator Lenihan on this.

Section 7 deals with the distribution of State briefs and I think it has been generally welcomed by everybody, with the possible exception of Senator Lenihan who gave it a sort of mixed reception. I think it does nothing more than seek to put an end to the closed shop. I think we all agree that the closed shop should be ended in this particular branch of the law. Furthermore, I think it is something that will be welcomed by the first Director of Public Prosecutions. If the new Director of Public Prosecutions assumed office and had no direction as to which counsel he should brief he might be uncomfortable. I hope that he would not be uncomfortable——

Mr. Lenihan

If he was a proper man he would not be.

Mr. T.J. Fitzpatrick

(Cavan): I hope he would not be, but he has the direction here. He knows that he is expected to be completely impartial in his prosecutions. He has a statutory direction giving him independence and a direction directing him to retain counsel on a fair basis.

Senator O'Higgins dealt with section 6 and I hope I have assured the Senator that the section does not prevent the placing of relevant information in the hands of the proper officers. It does not do any such thing.

Senator O'Higgins also spoke on section 7 which deals with the distribution of briefs and I have also dealt with that. Senator Robinson gave the Bill an unqualified welcome as a piece of reforming legislation. She did raise one point in regard to section 4 which provides that a law officer may direct any of his professional officers to perform on his behalf and in accordance with his instructions any particular function of the law officer in relation to a particular case or cases or in all cases in which that function falls to be performed. I want to be perfectly clear about this. There is no question of general delegation of authority here or indeed of any delegation of authority. At present certain functions are performed by the Attorney General in person: he must give the direction himself. He must, for example, direct that a person who is charged with an indictable offence may have that offence disposed of in a summary manner. It is also true that at present, the Attorney General must direct under section 47 (1), of the Offences Againt the State Act, who will be brought before the Special Criminal Court. He must be communicated with regardless of where he is; the facts must be put before him as clearly as possible and his direction obtained. Very often that has to be done by long-distance telephone calls. Very often the official seeking the direction has much more information about the case than the Attorney General, and more than he could hope to communicate by telephone.

This section enables the law officer, that is the Director of Public Prosecutions or the Attorney General, to direct a professional officer to perform these functions on his behalf. A professional officer is a person with the qualification of a barrister or solicitor, in his office. He can give directions to that officer to discharge these functions on his behalf. Of course, he will give his directions having regard to the type of case and circumstances. From long experience by many Attorneys General, this is an amendment of the law which is necessary and is not in any way an abuse of the functions of the director or the Attorney General. It is merely calling a spade a spade. I think that is the point about which Senator Robinson was worried. I ask her to accept that explanation.

I have dealt with the first two points raised by Senator Lenihan. He was fearful that some aspersion was being cast on the Attorney General's office. I do not think he really was; that was just a political point which he could not resist making. I have said very clearly that there is no such intention. That was stated by me and by those who handled the Bill in the other House.

Senator Lenihan did raise a serious point on section 3 (1). The position is that the omnibus provisions of section 3 (1) enable the Director of Public Prosecutions to send forward somebody who appeared before the district justice, where the district justice refused information. The only person who will now be in a position to send that man for trial will be the Director of Public Prosecutions. There will be no dual function there. The Attorney General will not have that right. That is as it should be because this is part of the clear functions of the Director of Public Prosecutions.

Mr. Lenihan

It might have been stated for clarification. It is only a drafting point.

Mr. T.J. Fitzpatrick

(Cavan): Sections 4 and 5 are put in to remove doubts and make it abundantly clear that the Attorney General retains the functions set out in sections 4 and 5 because the rights conferred, clearly, on the Attorney General, in subsection (4) of section 3 are in relation to an appeal on a point of law from the Court of Criminal Appeal to the Supreme Court, and on a reference of a point of law from the trial judge to the Supreme Court where somebody has been acquitted by direction without prejudice to that acquittal. It is clear why the Attorney General should still retain those powers—because they are concerned not with the prosecution of criminals but with the clarification of the law. The Attorney General is the proper officer to see to it that the law is clarified and that wrong decisions do not become law. That is the point behind that.

Mr. M.J. O'Higgins

The director also has the power.

Mr. Lenihan

Each one has the power. The Minister is satisfied that subsection (1) transfers this from the Attorney General to the Director of Public Prosecutions?

Mr. T.J. Fitzpatrick

(Cavan): In section 5 the Attorney General is clearly brought in there because section 5 deals with international offences and the question of national security. I think those were the only points raised by the Senators. I again wish to thank them for their reception of the Bill and for the reasonable way in which it was dealt with. It has been a very pleasant experience to return to this House, even for a short time.

Question put and agreed to.

Mr. Lenihan

The Minister is an excellent man.

An Leas-Chathaoirleach

Is it agreed to take Committee Stage now?

Seanad Éireann díospóireacht - Wednesday, 17 Jul 1974

Prosecution of Offences Bill, 1974: Second Stage

An Leas-Chathaoirleach

Seanad Éireann díospóireacht -
Wednesday, 17 Jul 1974