Thursday, 29 June 1961
Dáil Eireann Debate
(2) A judge of the Circuit Court may, if he thinks fit, transfer the trial of a criminal issue from the  place in his circuit where it is required by law to be held to any other place in that circuit, and, in that event, the trial shall be held at the place to which it is transferred with a jury drawn from the jury district or other area prescribed for trials by the Circuit Court sitting in the latter place.
Mr. Dillon: We were discussing this amendment which appeared to withdraw from the defendant his absolute right to secure a transfer to the Central Criminal Court. While the Bill is acknowledging that that absolute right is preserved at the stage of his return for trial by the district justice it appears that heretofore he had the right, which the original section 26 proposed to give him, to serve seven days' notice on the Attorney General whereafter the circuit court judge was obliged to grant him the necessary transfer he sought to the Central Criminal Court. In the amendment which is to be substituted for Section 26 it is sought to remove that absolute right and to place it again in the hands of the circuit court judge before whom he was originally returned for trial.
These are matters about which one must not allow oneself to get sentimental. We must be practical. To anyone who is on trial and alone, confronted with an appalling ordeal, there is not much consolation one can offer but there is this minimum that I think we should be concerned to make available to him—that is why Section 26 in its original form recommends itself to me —that he would have the right to choose within the judicial system the  court where he felt he would get the fairest trial.
I believe he would get a fair trial from a circuit judge or a High Court Judge. Of course we are not dealing with trials in this context. We are dealing with trials by juries, and we are dealing with a population which is largely a rural population. There are many cases of which we all know in this House where a defendant would prefer to be tried among his neighbours if he were charged with the right kind of offence, confident that the neighbours would never convict him. On the other hand, a man could find himself charged with some disgraceful crime or charged with some crime which excites public antipathy and profound sympathy for the victim. He may be a person driving a car while under the influence of drink or driving it recklessly as is provided for under the new transport legislation. He may feel that local feeling is so strong he would not get a fair run for his money. Would it not be a desirable thing, even though in his distraction and woe he is not taking a reasonable view of the situation, to say to that person: “All you have to do is give the Attorney General seven days' notice.” The jury knows nothing about the background of the case at all. I think it is a hardship to say to that man: “Make your application to the circuit court judge.” All the circuit court judges are not angels. It can happen that the judge may have a sore head and may get it into his mind that the person objects to being tried by him and the judge says: “Certainly not.” It is quite possible that the person will get a fair trial. If he is convicted and sentenced, he will leave the court not only burdened by the affliction of the disaster that has come upon him but by the sense of grievance that he has not had a fair run for his money.
I think we are right in this country in our strict adherence to the view that a man is innocent until the State has proved him guilty, unlike the Napoleonic law or the Roman law. I think he is entitled to as free a choice as is practicable to give him of the tribunal within our system of law before which to make his case and to  issue his challenge to the State to prove to a jury who are truly detached that he is guilty.
We had dramatic instances recently in which the Court of Criminal Appeal ordered, because a member of a jury had an interest, however remote, in matters which were before the court for decision, a retrial immediately. That is an indication, I think, of the view of the courts which I think they rightly hold that where there is any doubt at all about an interest in the jury box, the trial should be set aside and a retrial ordered. In those circumstances, I would suggest to the Parliamentary Secretary that his original proposal is better than the amendment he now submits.
Major de Valera: The position is that the Attorney General or the State can fix which court the man is to be tried at, for the very good reason that local circumstances might conspire to defeat the interests of the public. That is the principle upon which there is the discretion to bring the case either to the local circuit court or the Central Criminal Court. The same principle should apply in reverse because exactly the same difficulties can occur in cases in relation to an accused as they can for the State. We all know that there are cases where it is difficult for the State to get a conviction where a conviction should lie because of public sympathy. Conversely, it is very difficult for a man to uphold his innocence if there is a strong feeling in the locality about the crime or the circumstances in which the crime was committed.
I recollect a case where there was a considerable hearing in the circuit court. I do not want to go into all the details. The judge who presided at the trial is no longer on the Bench. In fact, he is no longer there at all. In that case, instead of having the retrial take place, as it would in the normal way, the Attorney General removed the case to the Central Criminal Court. The defence had no option in the matter. It was removed to the Central Criminal Court because it was felt that the situation had been bedevilled as the result of the first hearing and the atmosphere in the local venue.
 I am not in the least suggesting that the Attorney General was not right. I think we were all glad that it was removed to the Central Criminal Court. Suppose the accused had applied in that case and it were at the discretion of the judge and it were opposed by the Attorney General in that case, I am morally certain that the accused would have had to face his trial in the local circumstances. I mention that as an instance of the type of thing that can occur.
It is placing to some extent an unfair onus on a judge in the local venue—a judge who himself may be called upon to preside at the trial in the local court. It is unfair to put the burden upon him of deciding whether he will have it in his court or whether he will transfer it to the Central Criminal Court. It is an awkward one for the judge. I would urge that point for consideration by the Parliamentary Secretary, in addition to what Deputy Dillon said.
Mr. T.F. O'Higgins: I agree largely with Deputy Dillon and Deputy de Valera that as between the proposed new section and the section as in the Bill, I prefer the existing Section 26. I can understand and I think everybody will sympathise with the point of view expressed by the Parliamentary Secretary that, under the existing law, instances have occurred where the unbridled right to transfer was availed of merely for the purpose of obtaining an adjournment of the trial. One can see that if at the very last instance and without any warning, either the accused person or the Attorney General could transfer a trial to the Central Criminal Court, that might lead, as I am certain it has led, to very unfortunate consequences for a variety of people.
Therefore, I could understand the provision in Section 26 which specifies that in relation to the right of transfer on the application of either the Attorney General or an accused person, reasonable notice of the fact should be given so that the working of the courts and the engagements and commitments of a variety of people should not be ignored. I felt it was reasonable that at least seven days' notice should be given by either party of an intention to apply for a transfer. On giving that, they  should be entitled, as of right, to select a venue for the trial.
Indeed, I have an amendment, which is the next amendment, providing for the contingency where for one reason or another notice has not been given either by the Attorney General or the accused person. In those circumstances, I felt that it should then be at the discretion of the judge to decide whether the case should be transferred. Presumably, he would not exercise the discretion if he felt that the party applying should have given proper notice and was in fact making the application not bona fide in relation to the trial. Only in those circumstances should he have a discretion. For those reasons, as between the Parliamentary Secretary's amendment and the existing section, I would prefer the existing section.
I just want to ask the House to look at what the position would be if this amendment were passed, coupled with the amendment to Section 34, amendment No. 59. If that were passed, there would be a very strange position obtaining. The right to transfer would be restricted to those offences in which the maximum penalty exceeded five years' penal servitude. In relation to any offence where the maximum penalty might be imprisonment for three years, or whatever it might be, there would be no right to transfer at all. I think that is a very dramatic change. I would urge that we should not embark upon it without careful consideration. It is a novel view to assess the right purely in relation to the sentence which may be imposed.
One may well imagine some person charged with an offence which, naturally, he and society regard in a very serious light. I suggest it is an indictable offence. That particular offence, that person may feel, would be tried in a fair manner by a jury drawn from a particular area. I cannot understand why, merely because the offence does not call for a sentence in excess of five years, that person should not be entitled to do as he is now entitled to do—that is—to seek a transfer of his trial. That is the first point I should like to make in relation to the proposed amendment.
 The second point is that the right to transfer under the new proposal has to be exercised at the date of the return for trial. Again, I do not think that is wise. Frequently, that particular date may be considerably removed in point of time from the date of the trial. Certainly, it may happen and has often happened that it is only at the time when the trial is due to take place that the local conditions and the local climate may from one side or another make it undesirable to have the trial locally. It may be completely impossible to access that at the time of the return for trial. I do not think it is wise to provide that it is only then that there shall be a right to transfer.
I think the third point is the point very validly made that where, under the new proposal here, the application for a transfer is not made at the time of the return for trial, but is made to the circuit court judge, when the trial is about to take place, if it is made by the accused person and, indeed, possibly even if it is made by the Attorney General, it does, in my view, put the trial judge in a most invidious position to have to try in effect to come to a decision that in his court a fair trial will not be provided either for the accused person or for the people at the suit of the Attorney General. That, I feel, is a wrong position to put any judge into, and certainly I do not think it would work. I would urge on the Parliamentary Secretary to withdraw the present amendment and to retain the proposal he has in Section 26. I would, at the proper time, urge that it could be extended slightly in the sense of the next two amendments on the Order Paper.
Then there is another point which is a practical difficulty in regard to the application. I know there is an analogy there. If there is an appeal to the Court of Criminal Appeal, there is usually a procedure by which leave is first sought to appeal. Every lawyer knows that that procedure virtually means a hearing of the appeal. In other words, all the ground is gone over before the Court of Appeal can make up its mind to hear the appeal.
Major de Valera: Yes. What happens in the Court of Criminal Appeal is that, in order to make up their minds whether the judges will entertain the appeal or not, they have virtually to hear the appeal and there has to be a preliminary run, as it were. That is all right in the Court of Criminal Appeal, where it is a matter of law, where the facts are already more or less determined, but just think of what is involved if an application of that kind is made just before the trial or at the time of the trial to the judge. Does it not mean that before the judge can come to a reasonable decision whether to transfer to the Criminal Court or whether to retain in his own court—and this would be immaterial whether the application had to be made at the time of return for trial or before the hearing would commence—he would have to know enough about the case to make the decision? In order to know enough about the case, he would either have to have public inquiries in court, that is, preliminary, or, worse still, he would have to inquire privately.
I have heard Deputy Dillon make a point in this House about the importance of judges staying aloof and not consulting police officers or anybody else. What is the position in regard to the accused if the judge gets his information privately, where the judge will have to consult both sides in Chamber privately, which is prejudicial to justice and to the accused? Otherwise there has to be a preliminary run of the case in some form or other in the open court, again prejudicial to the accused.
Therefore, I see great dangers in working on that principle at all in the transfer system. I see all the difficulties. I have great sympathy with the Parliamentary Secretary in the matter of the Attorney General or the State transferring to the Central Criminal Court and making it very difficult for the defence to bring up witnesses and making it very expensive. That is an objection from the point of view of the accused. From the point of view of  the State the same objection can arise —the bringing up of witnesses, and so on, to Dublin. But, when all is said and done, these things have to be balanced and this question of the mechanics of the thing should be looked into rather closely. I see that great danger following the line of argument Deputy O'Higgins and myself have indicated.
I see a real difficulty from the point of view of the application and from the point of view of carrying it through without prejudice to the accused. As Deputy Dillon said, we have a very sound principle here that the onus of proof is on the prosecution and that the accused is assumed to be innocent unless he is proved guilty. Having said that, I would be more concerned about parity between the situation of the State and the situation of the accused. I would not, so far as the mere question of transfer is concerned, be very worried whether it was an absolute right to either party or whether it was through some judicial discretion provided the Attorney General, that is, the State, and the accused are on a fully equal basis.
Major de Valera: Yes, I know. But even so, if you put the accused and the Attorney General on an equal basis, there is no room for objection. I do address myself to the Parliamentary Secretary, on, as I say, the difficulties and the mechanics of the thing from the point I first developed.
Mr. Dillon: I see the general principle which Deputy de Valera seeks to lay down, that is, if you seek equality of status between the accused and the State, the bulk of the objection is gone. I am not prepared to accept that.
Mr. Dillon: I agree with the Parliamentary Secretary. I think that the Attorney General has his rights which are primarily designed to enable him to vindicate the law. No one would doubt the importance of that, but we are here in Parliament to vindicate the rights of the individual. I do not want  to go over the same old argument again. I do not want to be sentimental, but I do not want to dismiss from my mind the position of an ordinary person appearing in the dock. Let us concede that 50 per cent. of such people are fairly familiar with the dock and know their way around the dock, but there are the other 50 per cent. who have never been there before. I am peculiarly solicitous to ensure that there is not added to their existing woe and desolation a sense of grievance that they have not had a fair run for their money, have not had a fair trial. Therefore, I should like to see reserved to the prisoner at the bar an absolute right to be transferred from the local court to the Central Criminal Court if he feels, however mistakenly, that he cannot get a fair trial in his own area. The right is so manifestly desirable that we should not have to argue unduly, and I want to dissent very strongly from the principle Deputy de Valera seeks to set down. I do not think parity between——
Mr. Dillon: I think the Parliamentary Secretary agrees with me that what we are charged with is to concern ourselves with equity and justice for the accused. When I hear somebody like Deputy O'Higgins, who is versed in the practice of general law, speaking about the expense, inconvenience or annoyance of bringing witnesses, exhibits and so forth and then getting an application for a transfer from the Circuit Court to the Central Criminal Court, to my way of thinking, it would be far better to have that expense, inconvenience or annoyance in the few cases where it arises than to have anyone feel that because he was ignorant himself—and that can happen—or because  his solicitor was indolent and did not serve the notice within the seven days, he is constrained to face trial in a court where he does not think he will get justice.
Do not let us get too practical. Let us occasionally indulge in the licence of going into the dock with the accused and standing for a moment in his shoes. I think if we all did that we would be agreed. We would go to the limit of our resources to ensure that a person standing in peril of conviction of a serious offence—because he cannot be tried for minor offences on indictment —will not only get a fair trial but will get the highest assurance we can give him that he will get a fair trial and that he has had a fair trial. This original section requires the defendant to give seven days' notice. I prefer the original section to the amendment now proposed. I would have asked the Parliamentary Secretary to allow prisoners at the bar on arraignment before the circuit court judge to apply for a transfer to the Central Criminal Court and to have that as a right.
I do not believe five per cent. of the prisoners would make such a demand but I would let those who did have it. It will not cause inconvenience. On occasion, you will get the odd “old lag” who wants to postpone the evil day and to try to stretch things out, but what of it? Ordinarily, the law will catch up with such people in due course and if the odd jailbird stretches it out a few weeks, the State will not come to an end. It would be a great pity if the man who seriously believed himself to be innocent found himself convicted by a court in which he felt he was not getting the full measure of justice to which he was entitled. I would ask the Parliamentary Secretary, if possible on Report Stage, to reinstate not only Section 26 but to ensure that a defendant will have that right to go to the Central Criminal Court.
Mr. Haughey: I must say it is a very good thing that in this House, when legislating, we should be concerned, as Deputies are, for the rights of the accused and should be careful to ensure that in so far as we can the best principles in regard to this  matter will be upheld. First of all, let me say that that is the sort of discussion in which I am very glad to join and I am hopeful that we can come to agreement as to exactly what is the right thing to do in this regard and achieve the best possible Bill.
The existing Section 26 suffers from this defect, that if you have a case where the accused has neglected or omitted for one reason or another to apply for a transfer within seven days and then some circumstances arise which make it manifest that he will not get a fair trial in the local circuit court, there is nothing you can do about that defect. Deputy O'Higgins realised it and attempted in his amendment to do something about it. From that point of view alone the existing section could not stand and we must, therefore, amend it; and, in amending, we must take two contending factors into account.
On the one hand, there is the principle, which has been fairly eloquently enunciated by Deputy Dillon, of the fundamental right of an accused person to a fair trial and, on the other hand, the question of practicability enters in. We must be practical. We must ensure that the courts function with a reasonable degree of efficiency. It has happened that the time of the Central Criminal Court has been taken up unnecessarily with trivial cases, cases which could just as easily have been tried in the circuit criminal court but which were transferred to the Central Criminal Court for very unworthy and unmeritorious reasons. I have instanced the cases. The transfer was sought in an attempt to postpone the evil day, because of dislike of some particular judge, because of some feeling that another judge would be more lenient—for some motive which cannot really stand up to the light of scrutiny.
We have then, as I said, these two contending factors. We must ensure that the Central Criminal Court is preserved for that for which it should properly be preserved. In order to ensure that, we are providing that the general run-of-the-mill criminal cases  will be tried in the circuit criminal court. The existing law is that either the accused or the Attorney General may apply to the circuit court judge to have the case transferred to some other court within the circuit. That right is there at the moment and we are preserving it. That is the first leg of the defence we offer to the accused. If, for some reason, he thinks the particular court before which his trial is listed is unsuitable, he may apply to the court and the court, in its discretion, can transfer the case to some other court.
Mr. Haughey: When I say “trivial” I have two concepts in mind. First of all, I mean the sort of offence which does not carry a heavy penalty and, secondly, the sort of cases transferred to the Central Criminal Court for trivial reasons.
Mr. Haughey: He will get as good a trial in the circuit criminal court as he will in the Central Criminal Court. Deputies should not allow themselves to get the impression that only in the Central Criminal Court will people get a fair trial. That is not so. The only thing that concerns us is whether it is likely that, because of circumstances, a jury in a particular local area might  not give the accused a fair trial. In every other case it is absolutely elementary in our whole system that the accused will get as fair a trial locally as he will in the Central Criminal Court. We want to provide for the one case in which there might be a possibility that the jury might be prejudiced. First of all, if it is a serious criminal offence at district court level, which is the point at which the accused is returned for trial, the accused has an absolute right to apply at that stage—and, at that stage, all the facts are known—to have the case transferred to the Central Criminal Court.
Mr. Haughey: Am I not to be allowed to speak without interruption? Deputy McGilligan has kept up this practice throughout the debate. I have never said that an offence which carries a sentence of less than five years is trivial. I was speaking of trivial cases which are taken to the Central Criminal Court. I said in a serious  case—a case which carries five years, or more, penal servitude as the penalty —the accused has an absolute right to go to the Central Criminal Court. In all other cases, under the new dispensation, he does not have to give seven days' notice, or anything else. He can at any stage apply to the circuit court judge and give his reasons as to why he thinks he will not get a fair trial and apply to have the case transferred to the Central Criminal Court, or some other court in the same circuit. What could be fairer than that?
Mr. T.F. O'Higgins: Assume a person is accused of a criminal offence The depositions are taken in the district court and the accused is returned for trial. Assume this happens in the North-West—Deputy O'Donnell's part of the country. The accused is returned for trial to a particular town. He may think that is all right—he will probably get a fair trial there—and he does not apply. Under this proposed section, when the case comes for trial, the judge may transfer it to some other area in which, in fact, the accused may not get a fair trial.
Mr. T.F. O'Higgins: He may of his own motion. A judge of the circuit court may, if he thinks fit, transfer the trial to somewhere else. I might be quite happy to be tried in Letterkenny but I might not particularly like to be tried in Donegal, and if I knew I was going to be tried in Donegal——
Mr. Haughey: He applies to the circuit court judge for a transfer to some place else in the same circuit. If the accused claims that, when informations were accepted, he did not apply for a transfer because he was satisfied he would get a fair trial, and he is strenuously opposed to transfer to another area, I am quite certain that will be a perfectly satisfactory case to put to the circuit court judge and I am quite certain it will be allowed. I cannot see any difficulty.
Mr. McGilligan: But if the accused applies it is still the circuit court judge who hears the application. This matter is based on the argument that a great many trivial cases have been engaging the attention of the Central Criminal Court which could properly be tried by the circuit criminal court.
Mr. McGilligan: Then it is not trivial cases any longer. It is the excuses made. Within the framework of the law these are indictable offences and, therefore, they are not trivial cases; and, secondly, on the new meaning, it is where a person is charged with an offence the maximum penalty for which does not exceed five years' penal servitude. Certainly, that wipes out all the element of triviality as far as the offence is concerned. Now for trivial reasons.
Up to date what was the situation? It lay in the accused's hands if he liked to have himself tried by the Central Criminal Court. He had the choice. It is now moved to take that away and give the decision entirely to the judge. The new section 26 says: “The judge may at his discretion transfer”. The only reservation in that is that application can be made  only by the Attorney General or by the accused person. Those two being the only two who have the right to apply, the decision in the end lies with the judge of the circuit court. He may, if he thinks fit.
I am told now there are cases which have been transferred for trivial reasons. In the opening statement made on this the Parliamentary Secretary referred to people who wanted to be longer, so to speak, away from the clutches of the law and secondly, to people who had applied for an adjournment and had it refused and then the second way of getting an adjournment was to get the transfer to the other court which, of course, would take some time. I should like to have some statistics on that. I am not so well aware of the circuit court in other areas but the Central Criminal Court is very fully occupied at the moment. I do not know if there has been any great number of cases that have gone before the Central Criminal Court under the old dispensation which could be regarded as sent there for trivial reasons.
Mr. McGilligan: I was going to say that. It is on the State's side that most of the applications were made for an adjournment. Accused people are generally anxious to get the thing over and done with and, if the application for an adjournment comes from the State side, very good reasons are given on some occasions and very poor reasons on other occasions. On the matter of the application to get a transfer made, the great majority of those come from the State side also. So, what we are dealing with is the minor number of cases. I should like to be informed of something that is called a trivial reason by which a person got a transfer from the circuit court to the Central Criminal Court. I do not know of any such at the moment.
Mr. T.F. O'Higgins: In fact, I know the Parliamentary Secretary has in mind one case. I only know of it occurring once. It may have occurred a second time. It is a case where a particular application was made to a particular judge for an adjournment in a particular case. There was considerable argument as to whether the adjournment was to be granted or not and the judge, in a very vehement way, refused the adjournment. The person who made the application said: “I am applying for a transfer to the Central Criminal Court.” That was a much talked of instance. I know of only one such incident and, in fact, when the Parliamentary Secretary mentions transfers applied for for trivial reasons, I think he must to some extent be assuming things there because the ordinary rule—and I think it is a rule that has never been altered and could not be altered indeed—is that there is no reason given; it cannot be given. An application is made for a transfer. Full stop. Because, under the law as it stands, the judge, once the application is made, must grant the application and, therefore, no reason is ever given. It is just that the application is made and the transfer is ordered.
Mr. Sherwin: I should like to remark that there is no such thing as a trivial reason as far as the accused is concerned. The mere fact of being accused is enough to create a calamity for that person and, therefore, the provision should be retained.
Mr. Haughey: Let me just say what I am objecting to. I do not care what sort of language we use or what objection is taken to some particular phrase I used but what I object to, and I think Deputy O'Higgins appreciates this because he has experience of it, is this sort of thing where the local  circuit criminal court is perfectly qualified in every way to give an accused a fair trial and, for some reason which is not a valid or good reason, he applies to take up the time of the Central Criminal Court unnecessarily and inconvenience everybody concerned. That is the sort of case I want to obviate.
Mr. Dillon: Should I point out to the Parliamentary Secretary that this is a most unfortunate approach? When we are dealing with a man who is dependent on a criminal trial, reasons that may appear to persons who are cold, detached observers as being trivial do not so appear to the person under the appalling stress of defending himself in a criminal case and you have got to make allowance for that. After you have made full allowance for that, I am prepared to concede to the Parliamentary Secretary that you will get in 100 defendants a small percentage of what we call “old lags” who know all the ropes and for their own reasons wait to the last moment and then clap in what perhaps all experienced practitioners know is virtually a fraudulent application for transfer to the Central Criminal Court, made for no reason other than to postpone a decision. I want to make the case to the Parliamentary Secretary that in that full knowledge we ought to say that the fact that a few old practitioners will play fast and loose with this provision should not deter us from making the provision for the benefit of the vast majority of applicants who are actuated by trivial reasons, objectively seen, because subjectively the reason is to the defendant one of importance.
We could go on reciting cases ad infinitum but if you are living all your life in Dublin and you are to be tried at the Dublin Circuit Criminal Court the difference between a jury in the Dublin Circuit Criminal Court and a jury in the Central Criminal Court is nil but I am not thinking of that case; I am thinking of the case of a fellow who is going to be arraigned in Boyle or Monaghan or Dundalk and who knows that the evidence that is going to emerge is going to be of a kind of which he is desperately ashamed. He  maintains that he is not guilty of a criminal offence but has to go through the ordeal of having all these deplorable matters exposed to public view.
It may be that if we could search his mind what he is really recoiling from is having all these unfortunate matters ventilated in the presence of his neighbours but subjectively he believes: “If they hear I did all this they will certainly come to the conclusion I did the rest but if I can get the best of twelve men who simply see me out of my background I will prove the State has proved nothing against me except, perhaps, folly or imprudence or impropriety and I will go free.” The Parliamentary Secretary's line is that we are full of charity. It is not charity. I think he is entitled to say: “I want to go to the Central Criminal Court.” We cannot say: “You must stand your trial in a court where you believe you will not get justice.” We are forced into saying: “That is a position we cannot consider. All men in this court are equal under the law and we are prepared to take every conceivable precaution to ensure that you get your indictment before a court which is absolutely impartial.”
There is no such thing in Ireland as impartial justice and we cannot establish the law on sentiment and allow sentiment to govern reason in this Bill. Do not let us go too far in the direction of saying that we all know that certain persons for trivial reasons go to the Central Criminal Court in the city. I am prepared to say at once to the Parliamentary Secretary: “Let them go.” The number of such cases is microscopic. The vast majority of defendants who seek a transfer to the Central Criminal Court seek it for reasons which they think are good and grave. They are entitled to protection when they are in the midst of misfortune.
Major de Valera: I have been out of touch for some time now and I should like to know the proportion of cases in which application has been made during the past 10 or 20 years for transfer to the Central Criminal Court, and the number of cases which have been transferred. It would be interesting  to know what proportion were made on the initiative of the Attorney General, and what percentage of applications were made on the initiative of the accused.
As I say, I have been rather out of touch in recent years, but my recollection is that when I was practising the vast majority of cases transferred to the Central Criminal Court were transferred on the initiative of the Attorney General. The impression I got was that the general grounds, though not stated, were that it would be easier to get an impartial trial in the Central Criminal Court divorced from circumstances that really had nothing to do with the case but which would colour a local hearing. That would be a very important factor to ascertain before coming to a final conclusion on this matter.
In my experience, and I think other lawyers will probably agree with me, a defendant and his legal advisers do not seek to go to the Central Criminal Court, unless they have some reason for it. There is the uncertainty that they do not know in advance what judge will be trying the case. There is complete uncertainty in advance as to what judge will be trying the case, and there is also the point of view that the jury is completely impersonal in a big city because it is chosen at random. In that way, so far as possible, there is an impartial tribunal that cannot be associated in any way with the case. That in itself is an encouragement to an accused who wants to seek the specific advantage that he is going prima facie before the most impartial tribunal that can be conceived.
There is one other reason, possibly a trivial one, I agree, that is, to cause delay. A person may have a perverse wish to cause the maximum amount of inconvenience to the State and to the prosecution, but, in my experience, accused persons do not do that kind of thing because it rebounds on them. It is well known that if you are obstreperous, you pay in the penalty. Legal advisers are very careful to watch the matter in that light, so mere delay does not seem to me to have any particular advantage in such cases.
An accused may apply for a transfer because of local considerations. He  may feel that the jury will be familiar with background which is really outside what is evidence in court. That is one reason. Another reason is that he may feel that in a particular type of case a judge from the circuit court may have, to put it mildly, extreme views. We must talk about judges here with respect, but they have their own points of view, and we all know that in particular matters judges, like the rest of us, have strong views. It is common knowledge that a judge can get the reputation of having a particular type of view on a particular type of case. That will be known to the defending solicitor and to the accused and may be valid ground for seeking a transfer.
I know the Parliamentary Secretary has listed that ground among the trivialities but I should like to urge on him that it is indeed a very valid ground. I know there is appeal to the Court of Criminal Appeal which can correct any misdirection in judgement, or any positive misdirection during the case, but juries tend to lean on the opinion of the judge in the court, and the judge's general attitude and facial expression very easily can, and often does, convey his opinion quite forcibly to a jury in a way that can never be caught by the Court of Criminal Appeal.
That does not seem to be a trivial thing. It is a substantial thing if in a particular type of case the accused feels that he would be at a disadvantage with an individual judge. I do not think that should be listed as a trivial reason for taking away his right of transfer.
Mr. Haughey: I certainly could not possibly contemplate the administration of criminal justice on the basis that the accused would have the right to pick his judge. That is really getting to the daft stage.
Mr. Haughey: I cannot accept the argument put forward that the accused should have the right to transfer because, in his opinion, the judge is a  crank or does not like him for some reason. That would be absolutely nonsensical.
With regard to the argument put forward by Deputy Dillon, the House should not forget that the amendment I am proposing works against the Attorney General in certain circumstances just as much as it works against the accused. The Attorney General may be convinced that because of the sort of crime and the type of person involved the local jury would be prejudiced in favour of the accused. Up to now, the Attorney General had absolute right to transfer to the Central Criminal Court. From now on, if this proposal is accepted, he has that right subject to the discretion of the judge. It works that way as well.
Our view is that the circuit criminal court is the normal court in this country charged with the job of trying these criminal offences. The theory is that only certain parties should be brought to the Central Criminal Court and only in certain circumstances should cases, as an extraordinary measure, be transferred to the Central Criminal Court. In the normal course of events cases should be tried by the local circuit criminal court. It is because that desire and intention of the Oireachtas in this regard is being circumvented to a considerable extent at the moment and because we have the unnecessary and undesirable transfer of cases to the Central Criminal Court—cases which could properly, in every sense of the word, be tried in the local Circuit Criminal Court—that we want to put this brake on the situation from now on. In certain cases we will give the absolute right to transfer serious cases carrying more than five years' penal servitude. In all other cases both the accused and the Attorney General will have an equal right to apply to the circuit court judge.
That brings me to the point raised by Deputy Dillon. He argued a certain case very well. As he was arguing it, I put myself in the position of the circuit court judge listening to his argument. If the argument advanced by him in that case were put to a circuit court judge, surely he must accept it? The very idea is that we give discretion to the circuit court  judge. If the facts of the matter produced by Deputy Dillon prevail, we are entitled to assume the judge would grant the transfer in that case.
Mr. Dillon: I see the Parliamentary Secretary's argument but I think he has misled himself. He seeks to say this proposal abridges the right of the Attorney General just as much as the right of the defendant. He says it cuts both ways and that he would not amend it one way or the other. He would go on to say: “If you examine the records, you will probably find it will operate to restrict the Attorney General much more than it will operate to restrict the defence, because the vast majority of applications for a transfer of proceedings arises with the Attorney General.”
I submit that is to misdirect the answer to this matter. I do not mind how far the Executive, represented by the Attorney General, restricts the prerogative of the Executive. In fact, the further you go in that direction, the happier I am. I think it is thoroughly good democracy. If the Attorney General wants to transfer a case to the Central Criminal Court let him satisfy the judge to whom the case has been referred that there is a good reason why it should be transferred. I concede at once that the Parliamentary Secretary is taking away from the Attorney General a prerogative he at present enjoys. But I do not think he can say: “Because I am doing that to the Attorney General, it is fair enough to do it to the defendant as well.”
Mr. Dillon: A non sequiter, yes. You are dealing with two persons in entirely different circumstances. I will agree with the Parliamentary Secretary it is a good departure to require the Attorney General to get the consent of the circuit court judge to the transfer, if he is the applicant for the transfer to the Central Criminal Court. That would be all right as long as we did not say in a case of that kind. “What is sauce for the goose is sauce for the  gander,” because these two parties are not in the position of the goose and the gander. One is the Attorney General, whose sole concern, acting coldly and objectively, is to vindicate the law and whose daily chore it is to be in or about the courts on criminal or other business. The other is an unfortunate individual, bewildered, overwrought, irrational, and in a state of the most extreme psychological upset.
I do not think it is appropriate for us not to have regard to that, even if we were to go so far as to say with the Parliamentary Secretary: “We think the Central Criminal Court is being cluttered up unnecessarily and we think it is expedient to take some measures to restrict this flood of work which could properly be done in the local court.” If that is the answer, I say: “Very well. Restrict the powers of the Attorney General to move cases to the Central Criminal Court.” But when he goes on to say: “We also propose to put at the discretion of the circuit court judge the right to accede to or deny an application from a defendant to transfer a case to the Central Criminal Court” I say that is going too far in the cause of efficiency. We ought to say we will tolerate whatever measure of inefficiency is brought about by the small number of unmeritorious applications for transfer to the Central Criminal Court made by old lags who are simply swinging the lead. There cannot be a dozen such cases in twelve months. I am giving the outside figure. I would suggest to the Parliamentary Secretary that of all the the persons returned for trial by the district court not 50 per cent. will apply for transfer to the Central Criminal Court from the dock, and of that 50 per cent. not 5 per cent. will be old lags concerned to create the maximum inconvenience and protract the period of their trial.
I think Deputy de Valera is right when he says, in regard to the old offender who finds himself back in the dock, that his anxiety is to get out of it as quickly as he can, as cheaply as he can, to make himself as agreeable as he can to the judge and jury and everybody else, and that he makes an ad misericordiam appeal to the judge  not to be too hard on him and to give him another chance. I concede you get a small few who will make a nuisance of themselves in that way. But the amount of time they will waste and the amount of expense they will cost the State is trivial compared to the feeling we have that a defendant should be given the highest measure of assurance that we can by law provide that he will have access to a court in which to maintain his innocence against the State's efforts to prove him guilty.
I am satisfied that is the right line of procedure, and therefore I would ask the Parliamentary Secretary to retain Section 26, subject to one amendment that he might consider between now and Report Stage. That is, to provide that in paragraph (b) of subsection (1) instead of the words at present standing there, there should be inserted:
Mr. Dillon: I think that is an altogether bad arrangement. If an ignorant person does not know about it or if an indolent solicitor fails to  provide it, the court is stopped from entertaining the application of the prisoner in the dock. The worst of all reasons for the judge to use would be: “Because your solicitor has not served notice I cannot grant it.” We are dealing with a situation which concerns very few people and we would have the satisfaction of feeling that, in the full knowledge of what we were doing, we did what was right.
Mr. Sherwin: An offence may appear trivial but an accused person may have other reasons for wanting a transfer. If his trial is to be held in the neighbourhood in which he resides he may feel embarrassed at neighbours' talk and instead of being calm, cool and collected in considering his own case he may be more concerned about what other people are saying behind his back. He should be given the right to have his case heard outside that neighbourhood.
Let us suppose the judge concerned is a sort of hanging judge or one of those judges who go in for stiff sentences, as there are, or an abusive judge. In 1924 I remember having the experience of going before Mr. Justice O'Shaughnessy. He was most abusive to me. It was a political matter. If I had the choice I would object to going before Mr. Justice O'Shaughnessy. A person might object to the judge on the grounds that the judge might not be fair, on reputation. Even if the accused were an old lag it is quite possible he might say to himself: “This judge knows me and he may make it tough  for me. I would rather go where I am not known.” Cases which are regarded as very trivial may be very serious to the person concerned. I have known people to commit suicide over what might appear to others to be a trivial matter. The right of transfer of a case should not be denied if a person wishes to exercise it.
Mr. Lindsay: There is just one matter to which I wish to refer in relation to the amendment that is proposed in paragraph (3) (c) in regard to making the discretionary order of the circuit judge on such applications as we are discussing final and unappealable. In matters of the exercise of discretion on the part of a judge, it is always a necessary concomitant of the exercise of that discretion that it should be judicially exercised. It would not be usual but it is not beyond the bounds of possibility that the discretion could be exercised capriciously under the guise of being done judicially. Accordingly giving no right of appeal to persons is dangerous, making the exercise of discretion something absolute in a Court of First Instance, as it were.
Mr. Lindsay: That is what I am objecting to, the discretion of that judge. The seven days' notice in the case of the Attorney General should be there. I think “good and sufficient reason” would probably meet this much better than saying “at his discretion”. The Attorney General would have to argue the case as to why he wanted it transferred to a particular venue and give his reasons before any discretion would be exercised. It is wholly undesirable to place the Attorney General with, as Deputy Dillon says, all the administrative machinery at his disposal, on a par with an accused person who might or might not be represented. It is something worthy of further consideration.
This is purely for the purpose of removing doubts and to make it absolutely clear, as the proposed subsection says, that the rule-making authority for the circuit court shall also be the rule-making authority for the Cork Local Admiralty Court and the Cork Local Bankruptcy Court.
I come back to this point again. I have almost lost myself in the changes that occur in regard to titles. Under the Courts (Establishment and Constitution) Bill, 1959, Section 5 provides there is to be a Court of First Instance which is to be called An Chúirt Dúiche (The District Court). Subsection (2) says:
We are to establish a district court which is to be composed of judges. Judges are to be addressed as “Breitheamh” which is the word used with regard to the judges of the Supreme Court, the High Court and the circuit court and in a translation of the word “Breitheamh” we use the term “Justice”. Then we come to Section 28 where it says the number of justices are to be so many. This verbiage is very confusing. These people are judges. They must be judges under the Constitution. They have no status as members of the judiciary unless they are judges and nobody can deal in our courts with matters of justice except judges. Justice must be administered in courts established under the Constitution by judges appointed in the manner determined by the Constitution.
I asked with regard to other judges, where there is a distinction between the President of the High Court and ordinary judges, what would the warrant of appointment of these judges be? I am told it will be as a “judges” and not “ordinary judge”. Every judge is to get a warrant of appointment in terms of “judge”. This court is to be composed of judges. These judges, as far as the Irish title is concerned, are given the title “Breitheamh” which is the word used for a judge. Yet, we are told that we are going to provide for a number of justices in a particular court. Is that not nonsensical?
The next subsection deals with people who are to be qualified for appointment. They have to be qualified in certain ways by having a certain standing or by being justices already. They are to be qualified for appointment as justice of the district court. We are not appointing justices in the district court but judges. Except for the English translation of the Irish term, we never use anything throughout the whole of the Constitution except the word “judge”. Here we are going to appoint a number of justices. I do not know why.
Mr. Haughey: I explained that in another connection. I think that on a previous occasion we went forward to deal with this section. The position is that in the Courts (Establishment and Constitution) Bill we establish the court and we bring into being the office of judge of that court. In other words, in regard to the district court, in Section 5 of the Courts (Establishment and Constitution) Bill we state that the district court shall be constituted of the following judges, a judge who shall be styled so and so and such number of other judges each of whom shall be styled “Breitheamh den Chúirt Dúiche”.
We create the office of judge and, at the time of creating it, we indicate that from then on they shall be styled justices. That seems to me to be a perfectly legitimate way of proceeding. It is one to which, as I have already explained on a couple of previous occasions on this Bill, I cannot see any objection whatever. We comply with the constitutional requirement when we create the office of judge. At the same moment we indicate how they are to be styled right through the two Bills and we style them accordingly.
I want to move again to put in the term judges instead of justices. This is not a mere matter of terminology. There are certain qualifications for appointment as justices of the district court. In subsection (2) we are told that there are certain qualifications for appointment as a justice of the district court. Later in subsection (2) we are told that people with certain standing and practising qualifications are to be qualified for appointment as a justice of the district court. It is unconstitutional to appoint a person as a justice to the district court. Justice must be administered by judges. If you are going to appoint a justice, you are going outside the Constitution.
Mr. Haughey: My objection is that we must be consistent in the terminology we use. In the Courts (Establishment and Constitution) Bill we said from now on, once we have established these judges, they are to be styled justices. Throughout the two Bills we refer to them as justices.
Mr. Dillon: I do not think the Parliamentary Secretary is right. I do not think he is using the word consistently throughout. The Courts (Establishment and Constitution) Bill, 1959 and this Bill are being read together, I think. In the Courts (Establishment and Constitution) Bill, 1959 which we have just passed we speak of “such number of other judges (each of whom shall be styled `Breitheamh den Cúirt Dúiche' (`Justice of the District Court').” We do not call them in that context justices. We say the court shall consist of a number of other judges.
This is a point which has already been made in regard to other courts. Deputy O'Higgins argued this with regard to the President of the High Court and the circuit court. I understand the Parliamentary Secretary says he is advised the amendment is not required, that the qualification carries a——
Mr. Haughey: There is a principle in Deputy O'Higgins's amendment which I am prepared to accept. As the Bill stands at the moment, only a district justice as such would be eligible for appointment as President.
 I think we should add, on reconsideration, to this. We could specify that the first office of the President of the District Court should be appointed from among the existing district justices but thereafter we should leave it open to have an outside person appointed directly to the office of President of the District Court. I would ask that the amendment be not pressed and I shall arrange to have the appropriate amendments put down for the Report Stage.
Mr. McGilligan: On the section, I had intended putting down an amendment making the age of retirement the same as in the other courts, 70 or 72, whatever is the appropriate year. I assumed that because these people would have to be carried on their salaries for a longer period, that might be regarded as imposing a burden on the State and therefore I would not be entitled to move it, as a Deputy. I would ask that consideration be given to two points.
At present, the district court judge age of retirement should be 65. That is subject to this very peculiar business that when one of the personnel of this court reaches the age of 60 he must, for the 5 years after that, present himself, I think on his birthday, as each one comes along, to a committee consisting of the Chief Justice, the President of the High Court and the Attorney General. I do not know whether he is bound to do this but certainly it is the procedure that the district justice between the years of 60 and 65 must also produce a certificate from some qualified medical person to the effect that he is fit and able to carry on his work.
I do not know that any Justice, using the, to me, incorrect term, has ever been removed from his office in the interval between the period of 60 and 65 years. I think every one of them has been accepted. It seems to be odd. There is, right through the  whole of our legislation back since 1924, a procedure which tends to diminish the status of the district court and it is carried out in this matter in particular. No other judge has to appear before any committee to show he is in physical good form and possibly to be questioned, although I have never known a question of a searching type put to a district justice to see if he is mentally suited to the office. I doubt if this is proper. This is of very long standing. It creates the impression that those who get to the Bench in the district court are inferior in their physical and mental equipment to those of the higher courts or else that their work is so trying that they wear out quicker.
Mr. McGilligan: Neither of these impressions can be substantiated by experience. I do not remember any occasion on which such a person on presenting himself to a committee of three has been turned down. They have been able to go to the retiring age. It should be the same as the other courts—70 or 72 years.
We are apparently coming to the point that 70 is the correct age of retirment for the courts generally but there has to be provision for 72 years for people appointed with that age limit. However, a prejudicial distinction is made between the district court and the other courts and it should be removed.
Mr. Haughey: I do not know that I got Deputy McGilligan accurately there. If he said that there was a continuing attempt since 1924 to lower the status of district court judges, that is not so. It was in 1946, for the first time, that the district court justices were given the same status of tenure as the judges of the superior courts. This matter of the retiring age of district justices was fully debated in this House in 1946. At that time the retiring age was fixed at 65. It was again debated in 1949 when the proposal to extend the age to 70 was mooted. I suppose the  real reason why district justices have a lower retiring age than judges of the superior courts is that to a far greater extent their job as district justices involves travel. They are expected to travel around their areas and to attend the sittings in different parts of their areas. In that regard, they must be more active people than the judges of the superior courts. There is no ordeal involved in this. It would be wrong to describe the process of applying to the Judicial Committee for an extension, year by year, of from 65 to 70, as an ordeal. In the normal way, it is a pure formality.
It is important that we should retain the retiring age of 65, only to be extended if the district justice is fit enough to carry out his job, which entails a fair amount of travelling around, first to get to his area and then to travel around within it. Another argument is that there is a well-settled pattern now established of retirement ages for justices. I do not think we should change it unless for some very good reason. Otherwise, we would never get finality. I think the present scale of 72, 70 and 65 years is appropriate in all the circumstances and I think we should stick to it.
Mr. Lindsay: I cannot see the reason for the distinction between 72  and 70 as between the Supreme Court and the High Court any more than I can see the reason for retiring district justices at 65. The reason given in relation to travel does not carry great conviction. I look around this House. I see seasoned warriors who travel more in coming to this House and going back again than district justices. These warriors submit themselves to the ardours of the consideration of legislation and the work in their constituencies as well as the social hazards of a strange city and yet a great number of them can undertake all those duties. Therefore, I do not see travel as an impediment which influences the retirement of district justices at the present age level.
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