I do not propose that there will be filtering of applications to the Court of Criminal Appeal as happens, for example, in the neighbouring jurisdiction where the Home Secretary decides whether a case should be referred back to the Court of Appeal. I do not propose to place any restrictions or obstacles in the way of such applications. Any convicted person who, after an ordinary appeal to the Court of Criminal Appeal, stands convicted of an offence and who comes across fresh evidence will be able to apply direct to that court for a reexamination of the conviction or sentence, as appropriate. I do not believe that this open access will prove unwieldly, but in any event the court is being given the power of summary disposal of frivolous or vexatious applications.
The Martin Committee was of the view that in those rare cases in which matters come to light, casting substantial doubt on the correctness of a conviction, further recourse to the court system would be likely to prove inappropriate. That is the one significant recommendation of the Martin Committee with which I cannot fully agree. I am of the view that where it is alleged that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to a conviction, it is appropriate to return to the courts on appeal to have the conviction quashed. Only a court of appeal can overturn a conviction imposed by a court. I am satisfied that the first choice of any person who has been convicted of an offence by the courts, and who has unsuccessfully appealed against the conviction would be, if a new fact comes to light, to appeal again to the Court of Criminal Appeal so that he or she could be vindicated by the criminal justice system.
Of course, in considering cases where a miscarriage of justice is alleged, it must be anticipated that not all fresh evidence might be admissible in a criminal court. I agree with the Martin Committee that in those cases there must be an alternative to the courts. I am, therefore, providing a new statutory procedure for the consideration of applications for a pardon in such cases. I expect that any necessary inquiries into the circumstances of such applications would usually be relatively straightforward, but I have made provision for the appointment of a committee with full powers to deal with any difficult or complex cases.
For the first time, and in line with the commitment in the Programme for a Partnership Government, there will be a statutory right to compensation where a miscarriage of justice is found, on the basis of new evidence, to have occurred. Of course the State can pay and indeed has paid compensation in the past in these exceptionally rare cases, but I think the House will agree that it is better to express this entitlement as a statutory right. It will also comply fully with the requirement for such a statutory right contained in article 14 of the International Covenant on Civil and Political Rights, to which Ireland is a party, and will enable the Government to withdraw its reservation to article 14 which has, up to now, been necessary because of our system of ex-gratia compensation.
I am also taking the opportunity presented by this Bill to consolidate and to a certain extent clarify the powers of the Court of Criminal Appeal. These are at present contained in statutes of 1924 and 1928 and in Rules of Court and would, I believe, benefit from a degree of codification.
Perhaps, a Cheann Comhairle, I might now turn briefly to the provisions of the Bill. Section 2 provides for a second or subsequent application to the Court of Criminal Appeal where it is alleged that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to the conviction or that the sentence is excessive. Heretofore, as I already said, a person has had one chance to appeal based on the appeal provisions currently in existence and, if the appeal was lost, that was the end of the line. No matter what facts he or she was able to produce later that cast a genuine and substantial doubt on the conviction, a further referral to the courts was not possible.
The definition of newly discovered fact is a broad one and includes a fact known to the appellant at his or her trial or appeal, but the significance of which was not appreciated at the time. The intention is not to permit appellants to reopen arguments already put before the court. My concern is to ensure that our criminal appeal system has the flexibility to deal with the difficulties which can arise in appeals and the capacity to ensure that justice is done in every case. That is why, in addition, I am providing that there will be no limit to the number of subsequent applications which can be made to the Court of Criminal Appeal, provided each application is supported by a new or newly discovered fact.
The scope of an application is not being restricted to an allegation of a miscarriage of justice in relation to the conviction. Under section 2 an application may also be made to review a sentence on the basis of a new or newly discovered fact, while not contesting the conviction itself. For example, a person convicted of an offence may be able to produce to the court a new fact that would tend to show that his or her part in the crime for which he or she was convicted was not as major as seemed likely during the trial. A reduction in the sentence might be appropriate, but as the conviction itself is not in doubt, simply the severity of sentence, the question of a miscarriage of justice does not arise.
Section 3 consolidates the powers of the Court of Criminal Appeal currently contained in section 34 of the Courts of Justice Act, 1924, section 5 of the Courts of Justice Act, 1928, and in Order 86 of the Rules of the Superior Courts. Those statutory provisions are being repealed by this Bill and the Rules of Court will need to be amended to take account of the new provisions. Generally the section puts in simple modern terminology the jurisdiction of the Court of Criminal Appeal in relation to appeals but it does give the court some new powers.
For example, in a significant departure from the existing powers of the Court of Criminal Appel, power is being given to the court in section 3 (3) to direct the Garda Commissioner, where an appeal is based on new or additional evidence, to carry out inquiries in order to see if further evidence ought to be adduced. The court's role will of course be to adjudicate on the evidence presented to it and not to carry out an inquiry itself.
Section 4 re-enacts in a modern format, with some additions, the provisions of the Courts of Justice Act, 1928, concerning retrial. Where the Court of Criminal appeal orders a retrial the person concerned can be reindicted, retried and, if found guilty, sentenced for the offence for which he was retried.
Section 5 deals with summary determination of appeals. It has always been recognised that there must be some simple, straightforward system for dealing with frivolous or vexatious appeals. The existing Rules of the Superior Courts enable suspected frivolous or vexatious appeals to be scheduled for hearing without the transcript of the trial having been obtained. Section 5 is a development of this, and provides a statutory procedure for dealing with clearly unmeritorious appeals. Special provision is, of course, made to protect the rights of appellants. The procedure for summary determination will be invoked only where the registrar of the Court of Criminal Appeal believes that there is no substantial ground of appeal or, in the case of an application under the new procedure in section 2, that there is no prima facie evidence of a miscarriage of justice or an excessive sentence. Of course the decision on the matter will be made by the court itself or by a judge of the court. In the latter case the appellant will be able to appeal to the full court.
Section 6 applies the relevant provisions of this Bill to courts-martial including the right to reapply to the Courts-Martial Appeals Court on the basis of new evidence.
I come now to section 7. I have said already I considered that the courts system was the most appropriate forum for deciding whether there has been a miscarriage of justice. However, we have to cater for the rare case where referral back to the court might not be possible. Section 7 deals with that situation. One obvious example of where the pardon provisions would be the appropriate way in which an alleged miscarriage of justice could be dealt with is where the new evidence was inadmissible in a court of law.
To deal with such cases, section 7 provides a procedure whereby a convicted person who alleges that a new or newly-discovered fact shows that a miscarriage of justice has occurred, can petition the Minister for Justice with a view to the Government advising the President to grant a pardon under Article 13.6 of the Constitution. There are two circumstances in which the procedure can be availed of. First, as I just said, where persons who might otherwise return to the Court of Criminal Appeal under the new procedures introduced in this Bill find that their fresh evidence is inadmissible in a court of law and, second, where persons have been convicted and sentenced in the District Court. It would not be practical to enable such persons to return to the relevant court of appeal, the Circuit Court, as no record is kept of proceedings in the District Court and appeals are by way of a complete rehearing.
The Minister for Justice will have several options on receipt of a petition for a Presidential pardon. These are, after making the necessary inquiries, first, inform the petitioner that the matters dealt with in the petition could appropriately be dealt with by means of an application to the Court of Criminal Appeal — as I said earlier, a return to the Court of Criminal Appeal should be the first choice where this is possible; second, inform the petitioner that no case has been made that a miscarriage of justice has occurred — this would be the option where the petition is clearly frivolous; third, recommend to the Government that it should advise the President to grant a pardon in respect of the relevant offence — this option would be relevant where an examination by the Minister, or a suitably qualified person commissioned by the Minister, shows that a miscarriage of justice has occurred; or fourth, recommend to the Government that it should appoint a committee to inquire into the case.
Section 8 deals with the establishment by the Government of the committee to inquire into an allegation that a miscarriage of justice has occurred. In considering a petition for a pardon under section 7 the Minister for Justice can, as I just said, as one of her options, make her own inquiries or employ someone else such as a barrister or solicitor to make the inquiries necessary before arriving at a decision provided for in that section. However, the Minister also has the option of appointing a committee to examine a petition for the grant of a pardon by the President and to report whether, in its opinion, the President should be advised to grant the pardon. Whether or not the President is so advised will remain, as it must under Article 13.6 of the Constitution, entirely a matter for the Government.
I envisage that the appointment of a committee would be necessary only in particularly difficult cases and, therefor, rather than have a standing committee one will be appointed as necessary to inquire into an individual case. This also gives flexibility in providing special expertise in a committee appropriate to a particular case. The committee will be a tribunal within the meaning of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979, and will, therefore, have all the powers of a tribunal set up under those Acts.
Any person who has been the victim of a miscarriage of justice will have suffered a grievous wrong. Nothing can fully compensate a person who has spent years in prison through no fault of his own, for his loss of freedom, loss of family life, and the effects of the imprisonment on his career and life generally. They are lost years. That said, the State can at least make some restitution through the award of monetary compensation to any person who can show beyond reasonable doubt that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to his conviction. Section 9 gives a statutory right of compensation in those circumstances. If the criteria are met compensation can be awarded either where the court of criminal appeal quashes a conviction or where a pardon has been received as a result of a petition under section 7.
The amount of compensation will be determined in each case by the Minister for Justice. There is provision for an appeal to the High Court where there is dissatisfaction with the amount awarded by the Minister. This will enable an independent and impartial assessment to be made in cases of dispute.
When the Martin Committee was appointed, its terms of reference excluded it examining whether an uncorroborated inculpatory admission made by an accused to the Garda Síochána could be sufficient evidence to ground a conviction. However, the Programme for a Partnership Government contains a commitment to examine the feasibility of prohibiting criminal convictions on the basis of uncorroborated confession evidence. The conclusions reached in that examination is that convictions can, in appropriate cases, safely be based on the evidence of a confession but that it is right there should be an additional safeguard. Accordingly, section 10 provides that where a confession of the accused is the sole evidence, this fact will be specifically brought to the attention of the jurors who will be required by the judge to have due regard to it in determining their verdict.
Society had every reason to be outraged when a miscarriage of justice results in an innocent person serving a prison sentence. If it happened widely, public confidence in the criminal justice system would be seriously undermined, perhaps irreparably. That is why this Bill is so important in that it will allow any alleged miscarriage of justice to be dealt with. However, that is not the full story. I venture the view that very little demoralises public opinion more than to see clearly guilty persons getting off, maybe on a technicality. What I am saying is that we must be very careful not to put the type of obstacles in the way of the crime detecting and prosecuting agencies that could, through a series of well publicised cases, cause great public anger and a disrespect for the law generally, resulting possibly in persons exacting retribution by taking the law into their own hands. I mention these things by way of explaining the reason for section 10. The fact is that uncorroborated confessions can be good confessions and the possibility of their being used in evidence should not be excluded.
I should remind the House that while a person is in custody there are very stringent regulations — embodied in the Treatment of Persons in Custody Regulations, 1987 — which must be complied with. The member in charge of the station is given specific responsibility to see that these regulations are adhered to in order to ensure that the person in custody is not ill-treated and that a detailed record of the procedures followed is kept. It is difficult to envisage oppressive treatment leading to false confessions taking place in the face of these regulations.
In addition, when the recording of statements in Garda stations comes on stream, and eventually becomes widespread, any lingering doubt there might be over Garda questioning — and there should be no such doubt in the light of the regulations I have mentioned — can be put to rest. Section 10 takes the sensible approach to the question of uncorroborated confession evidence by providing for the judge to advise the jury to have due regard to th absence of corroboration. No particular form of words has to be used by the judge — the judge can decide for himself or herself in the circumstances of each case. The Martin Committee made a tentative suggestion as to the form of wording but I am satisfied that, because of the infinite variety of cases that can come before the courts, the precise terms of the advice should be left to the judge.
Finally, I will say a few words about section 11. In 1982 in the case of the People (DPP) v. O'Shea, the Supreme Court gave a literal interpretation to the provision of Article 34.4.3 of the Constitution which says that “all” decisions of the High Court may be appealed to the Supreme Court. This not only gave persons convicted in the Central Criminal Court a right of appeal direct to the Supreme Court, as an alternative to appealing to the Court of Criminal Appeal, but for the first time it gave the prosecution the right of appeal to the Supreme Court against convictions in the Central Criminal Court. However, the terms of Article 34.4.3 provide that legislation may exclude decisions of the High Court from the appellate jurisdiction of the Supreme Court and that is what this section does in relation to the criminal jurisdiction of the High Court. A saver is included to protect the prosecution's statutory right of appeal without prejudice to a verdict in favour of the accused.
In effect, section 11 restores the right of appeal from the Central Criminal Court to what it was thought to be before the O'Shea case. Persons convicted in the Central Criminal Court will continue to have a right of appeal to the Court of Criminal Appeal, which is the court specially designed for that purpose, with the possibility of a subsequent reference to the Supreme Court on a point of law of exceptional public importance. The prosecution will continue to have a right of appeal direct to the Supreme Court, without prejudice to the verdict in favour of the accused, on a point of law of exceptional public importance.
This Bill is an important development in our criminal justice system. It faces up to the difficult issue of allegations of miscarriage of justice. It gives our courts the powers to deal with such allegations. It provides an alternative mechanism for cases which could not return to the courts. It provides for compensation where a miscarriage of justice actually occurs. It puts in place a new safeguard in the consideration of uncorroborated confessions. Last but not least, it consolidates and updates the main powers and the role of the Court of Criminal Appeal. This Bill will enhance public confidence in the criminal justice system and I commend it to the House.