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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
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