The Gazette 1967/71

Section 19 which is declaratory of existing law and deals with the taking of the fingerprints of a person charged with an offence but not tried therefor and who is in lawful custody. However, the right which Section 20 seeks to confer on the Garda Siochana of taking the fingerprints of a suspected person, not in custody is, completely, new to our criminal law and, in our view, dangerously open to abuse. It is an interference with the liberty of the subject. It is to be noted, that without notice to the person concerned, an ex-parte application may be made to a District Justice, on Oath, by a member of the Garda Siochana not below the rank of Sergeant and, thereupon, a warrant may be ordered authorising the taking of the fingerprints of the person con cerned and the Gardai are empowered (sub-sec tion 3) to use such reasonable force as may be necessary for that purpose. Any suspected person, therefore, is amenable to arrest at any time or place without prior notice or indication and, indeed, without opportunity of recourse to seek legal aid. Proof and Evidence Any legislation, which tends to lessen the strict rule of law requiring the prosecution to establish the guilt of an accused person beyond reasonable doubt and which is achieved by whittling down the essential proofs required for that purpose, is to be deplored. Thus, although Section 24 pro vides apparent safe guards whereby written state ments in criminal proceedings, other than the pre liminary examination of an indictable offence, may be admitted in evidence, we think it right to say, in this connection, and in regard to Section 25 that: (a) No Solicitor should be a party to making admissions, on behalf of an accused person, in any criminal prosecution and which ad missions may tend to lessen the onus which rests upon the State or bring about the guilt of his client, (b) no jury should be deprived of the oppor tunity of hearing, viva voce, the evidence of a witness and, thereby, of assessing, in any cross-examination which might follow, the degree of credibility to be attached to the witness and the value of the evidence which is tendered. Meetings, Processions and Demonstrations The controversial sections 30 and 31 of the Bill appear to have been fairly approached by the Minister for Justice in the proposed amend­

ments which have, recently, been circulated and we think it proper to commend the Minister for a sincere effort to meet public disquiet on a matter of serious consequence to the people. Appeals and Cases Stated We regard the provisions of Sections 36, 37, 38 an 40 as a most serious and dangerous in novation in criminal jurisprudence. Jurists have always recognised the principle of double jeopardy. It is an established rule of the common law that a man may not be put twice in peril for the same offence. If, therefore, a man has been tried and found to be not guilty of an offence by a Court competent to try him, the acquittal is a bar to a second indictment for the same offence. There is no justification to assert, as does the explana tory Memorandum (Paragraph 142) that Sub- Section (1) of Section 40 is intended to give the Supreme Court the same power as it has in habeas corpus cases. In cases of grave offences where the construction of a Statute or of a legal principle is in reasonable doubt justice demands that the accused should be given the benefit of the doubt. It is sought, now, to remove this protection which an accused person has always been entitled to and to nullify defence submissions. There is ample provisions in our existing procedure whereby mat ters of public importance have always been re ferred to the Supreme Court in proper cases. Miscellaneous It is true that Section 43 which for the first time introduces into our Criminal Law a pro posal to accept majority verdicts in place of unanimous ones will apply both to verdicts of "guilty" and verdicts of "not guilty". We do not think that the principle of "unanimous verdicts" in criminal trials can be lightly disregarded or interfered with. Such an innovation may, well, be the "thin end of the wedge" and, in time, may result in the further whittling down of the great bastion of liberty which the jury system, in criminal cases, provides. It should be remembered that in the empanelling of a jury an accused person is limited in his challenges, save for cause shown; whilst, the prosecution may "stand-by" as many Jurors as it may think fit, without giving any reason. We protest, as strongly as we can, to the pro posal contained in Section 45 which empowers the Minister to Order the transfer into military custody of a person under going a sentence of imprisonment. The introduction of a provision of this nature into our law smacks more of a 109