Thursday, 1 March 1962
Dáil Eireann Debate
An Leas-Cheann Comhairle: I should like to point out that amendments Nos. 1 and 2, in the name of Deputy M.J. O'Higgins, have been adjudged out of order as well as amendment No. 3 in the name of Deputy Colley.
Mr. Ryan: We think it an extraordinary thing in a Bill of this nature that we have no definition of legal aid. Any practitioner knows that grave difficulties may arise as to what it would be proper to allow as necessary legal aid. It may be that some civil servant will decide that proofs which a solicitor considers necessary are not such as should be paid for out of this fund. As no doubt the Minister is aware, a rule exists whereby the Taxing Master cannot lightly interfere with a direction to a solicitor to produce certain things or with the exercise by a solicitor of his professional discretion. Therefore we feel that to leave “legal aid” in this Bill without an explanation as to what it covers or without making it quite clear that it covers proceedings as well as documents, copies of documents, expert opinions and of providing viaticum of witnesses and other necessary costs, is to create the possibility that some person ruling as to what is properly legal aid might decide that it should be confined exclusively to the provision of professional fees. That would defeat the whole purpose, surely, of a legal aid measure. Indeed, at times the fees and the costs which arise by reason of producing certain proofs may be far in excess of the costs of a solicitor. It may well be necessary in some cases to bring witnesses from abroad to establish a person's innocence and to establish a person's alibi. Not to make it clear that such an expense is legitimate legal aid may, we believe, lead to an unworkable Bill, if the necessary assistance which  the circumstances of the case may require is not provided.
Mr. M.J. O'Higgins: I should like to urge the Minister to consider this in the spirit of the amendment which has been ruled out of order, that is, on the lines urged by Deputy Ryan that there should be some broader—I was going to say some broader definition of legal aid in the section but in fact there is no definition at all. I should imagine it is the intention of the Minister's Department that the matters referred to in this amendment, such as documents, copies of documents, transcripts of evidence and things of that sort which might be necessary in connection with a poor person's defence and who is being granted a free legal certificate, will be made available and provided for in whatever scale of charges or costs will be fixed under the Act.
If I am correct in that, I suggest to the Minister that between now and the next Stage, he might consider the feasibility of writing that into the Bill in some form, if not in the definition section, then in one of these sections relating to the certificates or to the fixing of charges.
Where a legal aid (District Court) certificate or a legal aid (trial on indictment) certificate has been granted in respect of a person, the expenses properly incurred in preparing and conducting the defence to which the certificate relates shall be paid out of moneys provided by the Oireachtas.
I think that that is a fairly clear and specific statutory direction. “The expenses properly incurred in preparing and conducting the defence” are the words used. I feel that is as far as the Bill should go. I do not think it is desirable to spell out exactly what is involved or what would be involved or what is or is not to be covered. The regulations which will be made under  the Bill will deal with all the details. I have no reason to think that we will not be able to prescribe satisfactorily in those regulations what will be fair and reasonable. The Northern Ireland provisions are there for us as a headline. They seem to deal with the matter in a very reasonable way and I am quite certain we shall be able to do so as well.
Time and experience may show us that these regulations require to be altered. They may have to be restricted or they may have to be enlarged. We can amend our regulations regularly to cater for any requirements which experience indicates to be necessary. It would be a different matter if we had to come back here to the House to amend the Act on every occasion. I think the way we are approaching it is the right way. Section 7 sets out the plan and in accordance with that, the regulations will be framed.
Mr. M.J. O'Higgins: I accept what the Minister has said, but, in accepting it, I must say it puzzles me why my amendment has been ruled out of order. If the Minister is correct in saying that, in fact, these matters which I seek to provide for in my amendment are covered already in the Bill by reason of the framing of Section 7, it is beyond my powers of comprehension how the amendment can be regarded as out of order. I must of course accept the ruling of the Chair, but I think that comment does arise from the Minister's remarks.
Mr. Haughey: I do not think so. I suppose we cannot discuss an amendment that is not before us, but I think my approach to the matter is the right one, to insert in the Bill this simple directive principle, then spell out whatever is necessary by regulation afterwards.
Mr. Ryan: If I may, I would make this comment upon the Minister's explanation: This will arise again on amendment No. 38, but if the Minister's answer is that Section 7 will provide for the expenses under the all-embracing phrase “expenses properly incurred”, we would urge upon him  that, before any regulations would be made as to what would be proper, there should be consultation with appropriate trade unions and with those who are in a position to know what questions are likely to arise, that is, the Incorporated Law Society and the Bar Council.
Mr. Ryan: The phrase in this section “by reason of the gravity of the charge or of exceptional circumstances” is an extraordinary one. It is also unsatisfactory. No indication is given as to what would be proper for the Court to take into consideration in measuring the gravity of the charge or exceptional circumstances. It is possible that where a charge is not of a nature involving great moral turpitude a prison sentence may be modified. We wonder whether in all cases where imprisonment is possible the court would not consider that it would be an exceptional circumstance or a grave charge and that it would be proper for the court to grant a legal aid certificate all other conditions being fulfilled. So long as the personal liberty of the subject is involved we believe that is a case where a legal aid certificate should be given and it is a pity that is not being provided for in Section 2.
Mr. Haughey: I think the wording of the section is quite suitable and  adequate. We are leaving the matter to the court. The section indicates that if it appears to the district justice that it is essential in the interests of justice then he may grant a legal aid certificate. I think we cover the two main cases, the gravity of the charge and exceptional circumstances. The idea of this Bill is to prevent a miscarriage of justice.
Mr. Haughey: Or in exceptional circumstances. The wording of the section should be studied carefully. It says if it appears to the District Court that “by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice”. The paramount thing there is that it must be essential in the interests of justice. We feel we are absolutely right, at this stage in any event, in requiring that it should be essential in the interests of justice a legal aid certificate should be granted. Then we give an indication to the court of the circumstances in which the danger of a miscarriage of justice could arise—either because the charges were very grave or because there were exceptional circumstances involved. I regard the wording as entirely appropriate and I think it exactly fits the situation as we envisage it.
Mr. McGilligan: I was not in time to hear the Minister's observations on this. What is added to the section by having the phrase “by reason of the gravity of the charge or of exceptional circumstances”? To say “it is essential in the interests of justice that he should have legal aid” meets everything.
Mr. Haughey: I have already indicated to the House that I feel these words are necessary to give an indication to the court of the type of case we want to cater for. I have said here quite openly on the Second Stage of this Bill that this is a restricted scheme—I am fully aware of the limitations—and I went on to explain to  the House—and I think the House has accepted my reasoning—that at this stage the prudent and sensible thing for us to do is to bring in a restricted scheme, see how it works and, in the light of our experience, extend and amend it in any way we possibly can. For that reason we are beginning with the most serious cases where a miscarriage of justice is most likely to occur and restricting the Bill to those cases as a preliminary step. When we see how we get on we shall probably be able to enlarge it.
Mr. McGilligan: The Minister need not advertise that it is a restricted scheme; that is perfectly well understood; but why restrict it even more narrowly than restricting it to criminal matters? If the phrase is left that, first of all, the person has no means and, secondly, that it is in the interests of justice that he should have legal aid, why limit the interests of justice on either of two grounds, the gravity of the offence or exceptional circumstances? What is the necessity for the phrase “exceptional circumstances”? “The interests of justice” would cover everything.
I raised this point on Second Reading because it does seem to me that under the provisions of this section, it may be necessary for a person seeking the benefit of a free legal aid certificate to disclose his defence and the nature of his defence.
I understood the Minister to say on the Second Reading that this was not so but is Section 3, subsection (2) (c) it is provided that a legal aid (trial on indictment) certificate shall be granted in respect of a person returned for trial for an indictable offence if—
... it appears to the District Court or the judge of the court before which the person is to be tried (as the case may be) that, having regard to all the circumstances of the case (including the nature of such defence (if any) as may have been or is proposed to be set up), it is essential in the interests of justice that the person should have legal aid in the preparation and conduct of his defence at the trial.
If it is not intended that the accused person should be put in the position of having to disclose the nature of his defence, and I understood from the Minister that that was not intended, then I would ask that these words be taken out of the subparagraph in subsection (2) of Section 3. I cannot understand why they were ever put into the Bill and there seems to be no reason why they should be allowed to remain.
It seems to me that in this Bill, restricted as it is, there is a welcome effort being made to provide a need, by giving free legal aid in a case where a person cannot provide legal aid for himself. Section 2 of the Bill restricts it further than one would suppose from the Title of the Bill and it is now going to be restricted further  in that the judge or justice will be required under Section 3, if it remains unaltered, to take into account in advance the nature of the defence that will be raised by the accused person.
Mr. Haughey: I want to make it absolutely clear that what I said on the Second Reading is correct. We did not ever intend that the accused person would have to disclose his defence. If Deputies will look at amendment No. 9 they will see that we are doing something about that. The words “if any” are crucial and they clearly indicate that the defence need not be disclosed.
Mr. Haughey: I have gone into this very carefully with the Parliamentary Draftsman. I have asked for absolute assurance that these words give us what we want, that the judge will be able, taking the nature of the defence as a circumstance, to give a person free legal aid. These are not restricting words. They are enlarging words. They are intended to cover the situation where the person either does not apply for or is refused legal aid at the beginning. Subsequently, when the defence is disclosed, the judge, having regard to the nature of that defence, on reflection may say that this is obviously a case for legal aid. He would be enabled by virtue of these words to take that circumstance into account and grant legal aid.
Mr. M.J. O'Higgins: We have completely different approaches to this matter. The Minister feels it would be a merit to enable the judge or justice to take the nature of the defence into account in making up his mind.
Mr. M.J. O'Higgins: My approach is the opposite one to that. I think it would be a better and fairer Bill if the Minister would provide that the judge or justice may not have regard  to the defence or the nature of the defence. I do not think that anyone applying for free legal aid should be prejudiced in any way by saying what is the defence he wishes to make to the charge. The Bill can have only a prejudicial effect as it is worded at the moment and my view is that it cannot have a beneficial effect from the point of view of the applicant. I would prefer to see the Bill precluding the judge from having regard to the nature of the defence.
If the Minister is correct in regard to the phrase “having regard to all the circumstances of the case (including the nature of such defence (if any)”, it is not necessary to emphasise that by including the words “if any” in brackets. They could be omitted and it does not weaken the Bill in any way. All the Minister is doing is underscoring the fact that they should have regard to the nature of the defence.
Mr. Haughey: I do not accept that at all and I think it is a complete misinterpretation of the section. There can be no circumstances in which these words would be prejudicial to the defence. The effect and object of the Bill is that the certificate can only be given because of the gravity of the charge or of the surrounding circumstances. At the outset of the case it might not appear to the judge that the charge was sufficiently grave or that there were exceptional circumstances but when the defence is disclosed the court might say that this was a more complicated and serious matter and that there were exceptional circumstances——
Mr. Ryan: There may be a case before a district justice and the person is returned for trial. The justice may refuse the legal aid certificate but if the accused person produces a defence as the trial proceeds for which the court thinks he should have legal aid then the court might consider certain circumstances and grant aid. But, in that case, the defendant would have to make a fresh application or would the former application remain alive to be considered at any time?
Mr. Ryan: He is refused in the District Court. In another court, before another judge, how is the defendant to know that this other judge will consider he should then get legal aid? Supposing the court says: “You are putting up a defence which is serious: I think you ought to have legal aid”. The court then awaits the legal aid. Will the criminal court, for instance, adjourn to facilitate a defendant to get legal aid? It will make the working of the courts very difficult.
Mr. M.J. O'Higgins: He is arguing, rather, that he should not be required by the Bench to disclose its nature. The Minister's amendment, which comes later, does, I think, meet that point. However, the Bill, as it stood, at least implied that the Bench should require a person to come forward and say to him: “I shall not consider your application until you tell me your defence”.
Mr. Ryan: The experience of many practitioners in the district courts in Dublin is that there is always one member—particularly when a member of the Oireachtas happens to appear before him in his professional capacity—who loves to have a tilt at  this House. I foresee that any member of this House, appearing in his professional capacity, is bound to have thrown at him that this would not be in the Act unless he was obliged to have regard to the defence. I may be wrong. If I am right, however, I shall come and say to the Minister: “I told you so.” As things stand here, he must have regard to the circumstances of the case. The Minister will agree with that. Then it said: “including the nature of such defence ...”.
Mr. Haughey: Read the Section carefully. It is not that there is no defence but no defence set up at that stage—“(including the nature of such defence (if any) as may have been set up)”. That visualises that at the stage the judge is considering the matter no defence might have been set up. Later, the defence is disclosed. The situation becomes clearer and then the judge will be authorised to give legal aid if he so wishes.
Mr. Ryan: If he is refused legal aid by the district justice, and he feels he ought to have it; if he is refused because he has not disclosed his defence and he feels he needs legal aid, he then feels he must tempt the district justice by disclosing his defence.
Mr. Haughey: He has to disclose his defence if he wants to defend himself in court but there is no question of the disclosure of the defence being in any way a prerequisite of procuring legal aid. Deputy Ryan may be envisaging a situation in which an accused person would be refused a legal aid certificate and who would then say: “As this case proceeds, in  order to get legal aid I shall have to disclose my defence.”
Mr. Haughey: There is no question of that. The only implication in the Section is that as the defence comes to be disclosed it may reveal some striking and unusual circumstances which will bring the case within the ambit of our legal aid provisions whereas it appeared to the District Justice, before disclosure of the evidence, that it was not within it.
I want to mention the way this matter was approached in England. It bears out my argument. The provision I have mentioned has the same phraseology as the corresponding section of the Poor Prisoners Defence Act, 1930, in Britain, Section 1 (3) (b). This is a quotation from the Justice of the Peace (1943) which appears on page 25 of the Rushcliffe Committee's Report which formed the basis of the comprehensive legal aid and advice scheme in civil cases established by the 1949 Act in Britain. I quote:
Under the repealed Act of 1903, it was undoubtedly necessary that a defence should have been disclosed before legal aid could be granted; the Act of 1930, however, required the certifying authority to take into consideration the defence, if any, thus clearly implying that the disclosure of the defence is not now a condition precedent.
The Committee made no comment on this quotation, from which it may be assumed that it is a correct statement of the position. In other words, the Justice of the Peace and the Rushcliffe Committee both felt quite specifically and clearly that the phraseology did not require any disclosure of defence as a condition precedent.
Mr. McGilligan: I want to know what was in the minds of the people who provided this, when they put in the phrase which it is now proposed to cut out “(including the nature of such defence (if any) as may have been or is proposed to be set up)”. If that was  not looking into the nature of the defence, I do not know what words mean. I know that that is coming out: I am speaking about the minds of the people who provided that. I accept that it is not a condition precedent. Supposing we leave out the whole phrase in brackets, then consider the position. It is a decision by a judicial person that, having regard to all the circumstances, it is essential in the interests of justice that free legal aid should be supplied. Does that not cover everything?
Mr. McGilligan: It would allow it. Certainly it is covered by the phrase “all the circumstances”. There was a celebrated trial for murder in England some years ago. A book written about it is now the subject matter of a legal action in the English courts. The person appearing for the Crown writes in his book that he went down to deal with this case feeling it was hardly worth while, the case being so open and closed.
What the Crown had was a statement from the prisoner confessing that he killed a woman in an inn. He had been picked up for some other purposes. Then he said to the police who took him up first that his conscience was troubled, that he had not slept a night since the night of the John Barleycorn Inn. He gave a very substantial account of what happened. The murder occurred during the war. A black-out curtain had been torn off the window and draped over the body of the dead woman. He told the police how he had done all this. First of all, he made a rather incoherent statement to them. They got it in writing and he signed the confession.
Naturally, the Crown Prosecutor felt this was a walk-over. Counsel appearing against him simply gave a warning that the case was about to start and said, in effect: “I shall not put any reliance on that man's statement.” As the case proceeded no cross-examination phrase was required to disclose what the defence was. It was a cast-iron alibi, that the man had been in an underground shelter in London at the time when the murder was committed, somewhere down about Plymouth, I think. Five reputable people said they were talking to him in the underground air-raid shelter. That defence was flashed on the prosecution and the result was that at the first trial there was disagreement. When the second trial came on, the prosecution by that time knew of this alibi but had no way of countering it but, even then, a new thing was sprung on them when the defence opened by calling the distinguished British pathologist, Sir Bernard Spilsbury, to show that a man with a deformed hand could not possibly have strangled this woman.
There were two surprise defences. The first was the complete surprise of the alibi of the air-raid shelter and the second was the deformed hand, buttressed up by Sir Bernard Spilsbury's evidence. The result was that the man was acquitted. In that case if the man were applying for free legal aid, where was the point reached when he could ask for a free legal aid certificate if he had not got aid before the case came on?
Mr. McGilligan: In this case or any other case? I am just giving an example of a murder case. I cannot understand the hesitation to accept a reasonable amendment to cut out unnecessary words. “The circumstances of the case” would certainly cover it all particularly if it is going to be interpreted either by a district justice or, more likely, a judge. As far as I can see the procedure contemplated is that the person will be sent forward for trial on indictment without free legal aid and when he comes to the court of trial, at some point his defence is disclosed and the court may then say: “This is a matter that will require a good deal of controversy. We will now stop the trial and give you free legal aid.” Up to that point,  the man has been carrying on the case on his own. The thing is nonsensical.
Mr. McGilligan: I am taking the case of a person who has not got a certificate at the time when the preliminary investigation is on and the district justice sends him forward for trial. At that time he is alone.
Mr. McGilligan: I am talking of a circumstance that can happen. He goes forward for trial and then it comes to the point where circumstances can be disclosed. I would not mind if there were some clause put in to say that the nature of the defence could be disclosed. I would not mind if there were some clause put in to say that the nature of the defence could be disclosed—not in open court to the prosecuting counsel but—to the judge, but I cannot understand what is the hesitation about this. It is not as if there was going to be any rush. People are not going to run madly about seeking legal aid but if it appears to the district justice or the judge in a criminal court——
Mr. McGilligan: I should like to have that confusion cleared up. The certificate is then applied for to the judge at the trial court and he is asked to take into consideration the nature of the defence. He cannot take that into consideration if the phrase is “having regard to all the circumstances”. How those circumstances will be disclosed is still a matter of mystery to me. Hanging on to these words only focuses attention on one point and will undoubtedly create the impression that you have a better chance of getting legal aid if you are to disclose your defence.
Mr. Haughey: At the outset of the case, the section stipulates that the judge will take all the circumstances into account. The Deputies opposite are arguing that a defendant should not have to disclose his defence to get legal aid. We are all agreed on that. At the outset of the case, therefore, if we do not want to have a situation where the defendant would have to disclose his case in order to get legal aid, we must exclude “the nature of the defence” from “all the circumstances”. Therefore, a judge in approaching the matter, taking all the circumstances into account, would not ask what the nature of the defence was, if it had not been disclosed, and he would decide at that early stage, without regard to a possible defence, either to give or not to give the certificate. If he decides not to give it and if, as the case proceeds and the nature of the defence indicates that there is need for it because of the particular circumstances of the case, then he can give it. I think that is a sensible and logical provision. There is another aspect of it. If, at the outset, the defendant does disclose the nature of the defence it is only reasonable that the judge should be entitled to take the nature of the defence into account as one of the circumstances.
Mr. Haughey: And we are spelling that out in the section. First, if it has been voluntarily disclosed, put down in black and white, the judge is entitled to use the nature of the defence as one of the circumstances. That is one of the reasons why that provision is there. The second is that the defence may be disclosed later on. At the outset all the circumstances surrounding the case, excluding the nature of the defence, would not indicate that free legal aid was necessary, when the judge would take into account the particular type of defence that emerged later, then legal aid might become justified. The wording here, as in Britain, as far as  I can see, clearly indicates what we have in mind.
Mr. M.J. O'Higgins: The Minister has not gone as far as relying on the Encyclopaedia Britannica but has relied on the British to help to clarify this. I am not sure that the Minister has succeeded in clearing up the confusion that may have been caused. It seems to me there are a number of things to be taken into account. My personal preference would be that unless the accused sought to have it taken into account, the Bench would not be entitled to take into account the nature of the defence in adjudicating on an application. The section as it was originally drafted——
Mr. Haughey: May I interrupt the Deputy just on that point? For example, suppose the defence in the case of a charge of larceny is an abstruse, technical defence, would that not be a circumstance which would——
Mr. M.J. O'Higgins: I am coming to that. I am talking at the moment about the Bill as it was originally drafted. The Minister in a later amendment is suggesting taking out the words “or is proposed to be”. As originally drafted, I have not the slightest doubt that the justice or judge to whom application for a free legal aid certificate is made could say to the applicant: “I am not going to consider this application unless you tell me what your defence is going to be.”
Mr. M.J. O'Higgins: The Minister may disagree with me in words but he has agreed with me, at least in his actions, because he is trying to remove that danger in amendment No. 9, I think, by taking out those words. Now we are left in the position, if we regard those words as out of the section for the moment, where we are saying to the Bench: “You may take into account all the circumstances of the case.” That means something or it does not. If it means “all the circumstances of the case” it  means that the Bench is entitled to take into account any defence which may have been made.
Mr. M.J. O'Higgins: Yes. If the Bench is already entitled to take that into account, why is it necessary then to write into the Bill “including the nature of the defence, if any, which has been set up”?
Mr. Haughey: We are all agreed that if the defence has been disclosed it should be a ground which would be taken into account. We are all agreed also that it should not be necessary to disclose the nature of the defence in order to get free legal aid. This is the formula by which we achieve that. We say: “including the nature of such defence (if any) as may have been...” That makes it perfectly clear that you are excluding a case where a defence has not been set up at that stage—that is the meaning of the words “if any”—and it also makes it clear that if it has been set up it can be taken into account. That is the machinery to give us that alternative.
Mr. McGilligan: May I continue on what Deputy O'Higgins has said. Is anything which the Minister has outlined as procedure likely to be adopted by a judge? Is there any part that will not be permitted if this phrase is left out? No, I suggest. The more I read this the more difficult it appears to be in its application.
Mr. McGilligan: The Minister need not argue any more by way of interruption. If that is his contention I cannot accept it. He says the phrase, “having regard to all the circumstances of the case” would not allow any judge of the trial to take into consideration the nature of the defence. Surely it does. However, the whole thing gets “curiouser and curiouser” as we go on. When is the defence to be disclosed? I am thinking of a rather notorious case that has just finished. It did not have anything to do with murder, but it had to do with embezzlement or some way of getting money into a person's hands that did not belong to him. Three or four points emerged from that case eventually. One was whether there was any element of conspiracy, and all the conspiracy charges were ruled out by our court. The secondary question was whether there could be conversion by an individual of moneys that had been received by a company of which he was one person. There were a variety of technical defences. Of course, to lay the ground for that defence, counsel had to cross-examine State witnesses on various points.
Take the case of a man faced with charges of that type, who has not got a certificate from a district justice and has been sent for trial before the Central Criminal Court. Naturally he would not know the legal procedure and he would make an ordinary statement. At that point he would be tripped up by any judge who said: “There is a lot of evidence you did not try to counter at cross-examination.”
Mr. McGilligan: A person may have an alibi and he would let the evidence go on because he has an alibi in the background. When he mentions the word “alibi” for the first time he has not indicated it in cross-examination about identification. He has four or five witnesses to his alibi in the background and that is the stage at which the judge of the court before whom the person is to be tried—not is being tried—learns of the defence.
By cutting out the phrase “including the nature of such defence as may have been set up” which does not add anything, that could be taken into consideration when the judge is adjudicating on all the circumstances. It adds nothing and is certainly limiting. It would make people believe that if they disclose their defence they have a better chance of legal aid.
Mr. Haughey: I want to point out that the Deputies opposite have changed their ground twice on this issue. The first suggestion was that we were making it mandatory on the accused to disclose his defence. That has now been abandoned. The net effect of what Deputy McGilligan is now arguing is that these words are unnecessary because he considers the words “all the circumstances” are in themselves wide enough to include the nature of the defence. That is the exact point I am trying to make. We want to make it clear that all the circumstances may or may not include the nature of the defence.
Mr. Haughey: There is. If we were to accept Deputy McGilligan's suggestion and simply leave the wording “all the circumstances of the case” a judge might say: “We have to take the nature of the defence into account. That is one of the circumstances.” It is my  contention that if we were to leave the words at large as Deputy McGilligan wants them left at large we would ensure that the judge would have to find out the nature of the defence and take it into account before granting legal aid.
Mr. Haughey: The Deputy should not interrupt me. I did not interrupt him. It is to avoid that, that we have this wording. It is so obvious. We are making it clear that if the defence is disclosed it can be taken into account as one of the circumstances, and if it is not disclosed it is not to be asked for. As the case proceeds and the defence is disclosed the judge, if he thinks it desirable, can take it into account as one of the circumstances. The whole idea of the wording is to achieve that.
Mr. Haughey: I am saying that the nature of the defence is one of the circumstances bearing on this matter. We are all agreed on that. We want to make it clear that the judge can consider the case without having regard to the nature of the defence where it has not been set up, and we want to make it clear that he is taking all the circumstances into account in a case like that. That is the point. If the defence has been set up he can take it into account as one of the circumstances; if it has not been set up, it is made clear that the defence is not included in the circumstances he has to take into account.
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