I will not be as effusive in my welcome of the Bill as has been suggested by the previous speaker in his valuable contribution to the legislation now before the House. In anticipation of any criticisms I may bring down upon myself, either in the House or elsewhere, I should like to place on the record that nobody in the House is more supportive of the Garda Síochána than myself. My contribution, in the light of my support for the Garda and for the institutions of State generally, may be seen to be in ease and in aid of that organisation and of the institutions generally.
I do not give an across the board welcome to the Bill. The Bill in its completeness, as produced by the Minister for Justice, certainly does not meet the criteria that I would request of a Bill as important as this. It is extremely significant legislation, probably the most significant which the House will have to consider during the currency of this Dáil. The history of criminal legislation shows that the topic is only rarely the subject of legislative intervention. There were three previous Bills on criminal law, apart from special enactments dealing with subversive crime, the Courts of Justice Act, 1924, the Criminal Justice Act, 1951, and the Criminal Procedure Act, 1967. It is likely, therefore, that this proposal, if passed, will affect the administration of criminal justice, and indeed the liberty of the citizen, for a considerable period to come. It would be improper and wrong if the Bill received anything but the fullest consideration from Deputies.
The proposals in the Bill cannot be summarised briefly. It contains a large number of specific innovations, some clearly good, some indifferent or debatable and some which are radically misconceived. I do not doubt that the Bill as a whole is advanced as a genuine contribution to, as Deputy Doyle said, one of the most serious problems affecting us, particularly in the city and county of Dublin — indeed, all large cities are affected by the growing problem of criminal activity. It is right that it should be discussed in a non-partisan spirit and I hope that my own contribution will be seen in that light. The end result of a non-partisan contribution would be the production of the best possible legislation.
A debate in this House too rarely makes a significant contribution to the framing of legislation, so it is encouraging that on this occasion the Minister has announced in advance his openness to proposals from all sources for the improvement of the Bill. There are proposals in the Bill which must meet with general approval—for example, the proposal concerning offences committed by persons who are at the time of the commission of the crime, already on bail in relation to a previous alleged offence is very timely.
Irish jurisprudence in relation to liberty pending trial is one of the most advanced in the world and our courts, particularly in the well-documented case of the Attorney General v. O'Callaghan may be said to have given a lead to all common law jurisdictions on the matter of bail. Bail in ordinary circumstances is a right, not a privilege, and were it otherwise it would be an intolerable injustice to those charged with offences but subsequently acquitted. In this context it is clearly essential that measures should be taken to discourage those who have little doubt that they will be convicted and sentenced to imprisonment and who therefore feel they may commit further crime with impunity since the sentences will be concurrent rather than consecutive. I believe that the proposal in the Bill will be warmly welcomed by all sides of the House.
I hope that the proposals in relation to increasing sentences for the unauthorised taking of motor cars will command general support. This offence, particularly in Dublin over week-ends, takes place so regularly that every car owner can expect to be a victim of it at some time and perhaps more than once. My experience in that regard is that my own car was stolen last Thursday week. Thanks to the Garda and the assistance of civic-minded people it was returned to me 12 hours later. No later than last Thursday my car was broken into outside my home. As Deputy Doyle said, the possibility of citizens in this country being untouched by crime is remote. That was my experience in the last couple of weeks. On two occasions I have been touched by the criminal element in our society.
The proposal in relation to increasing sentences for the unauthorised taking of cars is to be welcomed. The present state of affairs constitutes a grave threat to individual car owners and it has serious consequences for ordinary social life. Those of us who come into the centre of the city from the safety of suburbia — though that is becoming less safe — to, say, the theatre in the evening come out to see lines of cars parked down side lanes with their windscreens broken, as I have seen on two occasions in recent months. That is a sinister development, very much to the detriment of the theatre, cinema and entertainment generally, the development of urban Dublin and the quality of life. I ask the Minister, who has indicated a willingness to listen, to consider making statutory provision in the Bill for some of these additional offences. Pick-pocketing, for example, comes readily to mind. Handbag-snatching in the centre of Dublin has reached almost epidenic proportions and has caused an appreciable number of people, particularly the elderly, to fear a trip to the O'Connell Street area. The Minister should consider a statutory deterrent to this type of crime in addition to the statutory deterrent to car stealing.
Deputy Mac Giolla in his contribution — valuable by his lights; there was much of it that I did not agree with, although I agreed with some of it and do not take exception to what he said — raised the question of the administration of justice in the Courts. The Bill makes a number of proposals in that regard. Most practitioners would favour the provisions which allow formal uncontrovertible evidence to be "read into the record" with the consequent saving of time and expense at trials. It is true that the provision puts an increased burden on those engaged for the defence since they must state whether they require oral evidence and, as a consequence, the opportunity to cross-examine on the evidence so tendered within a specified time. But this will have proved well worth while if the length of trials, and thus delay in cases coming into the list for trials, can be reduced.
The section in the Bill proposing majority verdicts in criminal cases is another serious but, in my opinion, welcome departure from present practice and on balance I am prepared to support it. Practical experience suggests that an 11 to one disagreement is just as likely to occur when the majority favour acquittal as where they favour conviction and a second trial can be an intolerable burden, psychologically as well as financially, on the defendant. Equally, the rare cases where a single unreasonable and intransigent juror obstructs a conviction which is clearly called for on the evidence will disappear. However, I hope that where disagreement still results from a trial under the majority system the DPP will give very serious consideration before ordering a second trial in circumstances in which even a weighted majority of the first jury has been unable to agree. In such a case consideration of time, expense, probability of success and the anxiety involved for the defendant and other parties suggest that a second trial should be the exception rather than the rule.
The proposal that the defendant should be obliged to give notice of an alibi seems eminently reasonable. Since this type of defence is met with comparatively seldom it would not have a great impact on the administration of justice generally. Furthermore, the provision that in all cases the defending counsel will have the final right of reply is enlightened and reasonable. It seems only proper that the defendant or his representative should be able to answer everything the prosecution has alleged against him before the case goes to the jury.
I hope that, having welcomed these proposals, there can be no suggestion that we on this side are opposing for the sake of opposition or opposing every section of the Bill for the sake of doing so. Nothing could be further from the truth. Having endorsed the sections I have just mentioned, which I believe I conscientiously can, I trust that what I have to say about those provisions about which I have serious reservations will be taken in good part by the Government, within my own party and within the House generally. I believe the Ceann Comhairle—it is not fair to involve him —as an eminent jurist in his day would, if he were not sitting in that Chair, agree with me in what I have to say. I will not, of course, embarrass him.
Section 5 proposes a radical alteration in the powers of the District Court which, since the foundation of the State, has been in the nature of things limited to imposing a maximum period of imprisonment of 12 months. This was reasonable because trial in the District Court was held without a jury in a summary fashion and without previous notice to the accused of evidence to be tendered. This limitation was reasonable because, under the Constitution, the trial in the District Court can only take place where the offence is a "minor" offence. In the past superior courts have been critical on occasion of district justices for accepting jurisdiction in offences which could not possibly be described as minor. This not only deprives the accused of the right of trial on indictment and by jury but it deprives the community of the vindication of a proper sentence for a serious offence.
I have no doubt that some case can be made for the extension of the District Court jurisdiction as it has been extended in civil cases. Unfortunately section 5, as drafted, does not make it clear what precisely is intended and I would ask the Minister of State to bring to the attention of the Minister, when he is responding to this Second Stage debate, the need for clarifying exactly what is intended under this section as drafted. He should explain — there is no obligation on him to do so — the phrase "previously sentenced". This leaves it unclear if that phrase extends to a situation where the accused appears, as he not uncommonly does, on four separate summary charges and the District Court, having imposed a sentence on the first charge, is entitled to regard the accused as previously sentenced for the purpose of aggregating the sentences on the remaining charges. I have no intention of engaging in a purely hypothetical critique of these sections and I hope my remarks will be taken in the spirit in which they are offered. My position at the moment is that I am helpfully teasing out a section which causes me considerable conscientious concern. If a District Court is constitutionally a court of local and limited jurisdiction any ambiguity is rightly to be interpreted by superior courts as against the extended power.
The Bill is not without other ambiguities and obscurities of draftsmanship but none, with the exception of an aspect of section 3, of such fundamental effect as section 5. This section as drafted is not, I appreciate, intended to be devious or misleading; quite the contrary. I worked in the Department of Justice as a Minister of State and the people there are of the highest integrity. It cannot be suggested they are imbued with a deep spirit of liberality. They are, as I say, people of the highest integrity and I am not charging any wrong-doing to them in the drafting of this Bill. All I am suggesting is there is ambiguity in section 5 which requires to be clarified and, if the Minister when he comes to reply explains to my satisfaction, if not to the satisfaction of the Opposition spokesman on Justice, so be it.
I turn now to aspects of the Bill about which I have fundamental reservations, namely, sections 3, 16 and 17, but specifically sections 3 and 16. Section 17 may be a restatement of section 16 for particular and specific purposes. Shortly, these sections amount to a revolution in our criminal jurisprudence which would entirely transform the role of the courts in criminal trials. They seriously undermine certain well-established rights of citizens. They contain the potential to undermine the role of the Garda by exposing them to an unending series of cases where the verdict will depend upon the word of the garda against that of the citizen rather than on hard evidence.
It is very noteworthy that the operative part of this revolution is a direct copy of a British proposal—the eleventh Report of the Criminal Law Revision Committee of 1972, which was decisively rejected in its country of origin. It is unfortunate that 11 years later it should receive such uncritical acceptance by the Government and the Minister for Justice. I believe the Minister is willing to listen and, having heard me discourse on this section 16, he will come back to the House and amend this section by totally expurgating it from the Bill. Within my own party I would certainly be proposing that we in Opposition should oppose section 16 in its entirety. If that proposal is not accepted, so be it. That will be parliamentary policy. As of now, I see myself in difficulty on this section.
Five sections of this Bill provide for a situation in which it would be compulsory for a citizen to speak to the police. Those sections are section 14, 15, 16, 17 and 18. In sections 14 and 15 the penalty for non-compliance is a prison sentence. Happily, this is mitigated by the provision that a statement made following a requirement under these sections cannot be used in evidence against the person or his or her spouse. Section 16 is of general application. It provides a compulsion by a threat that an inference may be drawn from a failure to mention at the investigatory or charging stage a fact subsequently relied on in the defence. I am mainly concerned about section 16. I have a deep concern about its unreality. It is an almost verbatim copy, as I said earlier, of clause (1) of the draft Criminal Evidence Bill published in the interim report of 1972. It is reasonable to assume that the thinking underlying the present proposal is substantially that set out in that report and to use that committee material to elucidate the proposal. It may also be significant that the report was rejected in its country of origin, namely Great Britain, and attracted opposition from the Judiciary, the Bar, the Law Society and numerous academics. It has been replaced as a discussion document by the 1981 Report of the Royal Commission on Criminal Procedure which specifically rejected any change in the right to silence.
I am suggesting — and I am not criticising the Department of Justice who are not here to defend themselves—that this section was not an original thought or plan or approach to the Bill, as I understand it. Again the Minister can clear the air in that respect. The thinking behind section 16 is a direct lift from proposals which were suggested in the United Kingdom and rejected there because they were unacceptable to members of the Judiciary, members of the Bar, practitioners generally and, as I have already said, academics. This is a very serious situation. We are engaging in that slavish custom of running to the British House of Commons for our own law, but we have the Brehon laws and had our own laws and practices before the common law was forced upon us. We should be original. That is what causes part of the concern about the inclusion of section 16 in the Bill as presently drafted.
There is evidence that the priority given to the right to silence under section 16 reflects, as I say, a misconceived approach to the problem of crime and even a misconceived approach to the problem of crime detection itself. There is no evidence that the police are, in fact, hampered to any great degree by the exercise of the right to silence. The summary of the 1981 Report states at page 7:
Research has indicated that the right is not used by many suspects. The vast majority make some sort of statement.
This view appears to be shared by our own O'Briain Report of 1977 which appears to accept the statement that "confessions" are the cause of detection of 80 per cent of serious crimes. Figures of that order are compatible with the experience of practitioners. Occasionally the case is met of the person who starts to resolve to say nothing and does not deviate from that resolve. Far more common, indeed far more deserving of research and inquiry, is the case of a person who starts resolved to say nothing but in a remarkably short time in a police station or elsewhere changes his mind completely than the case of the person who starts with an explanation of innocence and in a remarkably short time exchanges this for a confession. These phenomena are largely unexplained and are statistically of much greater significance than the isolated cases of reliance on the right to silence.
We must discuss the effect of section 16. Under that section an inference adverse to an accused person may be drawn from his failure at the pre-trial stage to mention any fact "relied on in his defence" if the fact is such that he could "reasonably have been expected to mention it". The failure to mention may also be treated as corroboration of any evidence in relation to which the failure is material. The pre-trial stage in which the failure to mention may take place is broken down into four sub-categories —(a) on being questioned by a garda endeavouring to ascertain whether an offence has been committed, (b) on being questioned by a garda endeavouring to ascertain by whom an offence has been committed, (c) on being charged with the offence, or (d) on being informed by a member of the Garda Síochána that he might be prosecuted for that offence.
It is noteworthy that the provisions of this section apply to every offence once the effect of the section has been explained to the accused in ordinary language. If I may just divert here for a moment, it would need to be explained in ordinary language. If the section is brought into law, which I hope it will not be, the draftsmen themselves should have another look at it. Certainly, it is not couched in ordinary language. I know that it must be explained, or an attempt made to explain it in ordinary language to the accused, but section 16 as presently drafted, apart altogether from what it expresses, is one of the greatest pieces of legislative gobbledegook ever to come before this House. It represents a lawyer's paradise and a hell-hole for the accused. If the accused, as he is entitled to do, wishes to defend himself in certain circumstances, he will pick up section 16 of this Bill, then an Act, and try to interpret it. I believe that at the end of the day he will be committed for insanity. It is a disgraceful piece of drafting and leaves a great deal to be desired. That is not a criticism of anything or anybody, because I have never been in the business of criticism, but I am just pointing out the realities. That is what we are about on this Bill and we must help the House to bring about legislation which is comprehensible and understandable to the so-called lowliest citizen, the ordinary man in the street.
It is also noteworthy that the four situations in which failure to mention, as I have already indicated, may take place are all stages at which, typically, the accused does not have access to legal advice. Every accused sent forward for trial has been asked at the end of the preliminary cross-examination in the District Court whether he wishes to say anything and at this stage he has almost invariably had access to legal advice. Also at this stage there is the facility for and an obligation to record verbatim what he said, yet this formal stage is excluded from the section.
The section concerns itself with the time of the investigation where there is generally no legal advice, certainly no impartial recording system, when the accused is more than likely to be in custody and without advice. That flies in the face of everything that we believe in concerning jurisprudence in this country.
On the other hand, once the effect of this section has been explained or said to have been explained, there is no necessity that the person being questioned need even be a suspect at the time of the questioning to which the alleged failure relates. In other words, an entirely casual conversation could be sufficient to bring the section into operation.
It is also noteworthy that the section does not confer any right on the Garda to information in general or to any specific sort of information. We are here under this section attempting to assist the Garda. It does the very reverse. Accordingly, no specific use can be made of it by the Garda at the investigation stage. It comes into practical effect only in the event of certain things transpiring at a subsequent trial. It would therefore appear to be directed at increasing the already high conviction rate, rather than the detection of crime which is where improvements should be sought.
Again, it is noteworthy that the English report from which the inspiration for almost all the wording of section 19 proceeds takes a broad view of the meaning of the phrase "relied on in his defence". At paragraph 36 of that report it is stated:
Usually we think it would be sufficiently clear from the cross-examination of the witnesses for the Prosecution whether a fact is being relied on in this way and then the Prosecution would be able to adduce evidence that the accused did not mention it when interrogated.
It seems therefore that the section would be available for use even against an accused who does not give evidence. Lord Devlin likened the English proposal put forward by his own contemporaries to an amendment to a civil procedure whereby a defendant on being served with a writ had to go immediately to the office of the plaintiff's solicitor and there submit to interrogation, without advice, on his defence to the statement of claim which had not yet been delivered.
In three of the four situations in which the section may be operated, the charge itself, and a fortiori the evidence to be adduced in support of it, is entirely hypothetical. The great majority of people will have no idea what is or is not material to their defence and considerable research and consultation may be necessary before their legal advisers come to a conclusion on this matter. Many matters raised in cross-examination may be raised in a purely exploratory manner or for the purposes of exclusion. It would be an intolerable burden on the conduct of a defence if the cross-examiner had to keep in mind, in relation to every topic, the prospect of giving rise to an “inference” under the section.
Again, the section seems to assume that the type of matter relied on in defence is sufficiently simple and straightforward to be within the knowledge and understanding of the average person questioned — we are talking about the ordinary person in the street — so that there is no reason he should not mention it to the police. In fact, in an English investigation of 324 jury trials 120 only turned on straight forward physical facts and the rest on more complicated matters such as intention, knowledge, self-defence and so on. It is simply unreal to expect a suspect to dilate on such a defence without advice.
It is noteworthy that section 16 goes further than merely encroaching on the right to silence. It does so in a specific way, by seeking to compel the defendant to reveal his defence. That is one of the most serious defects of section 16, that the defendant should be requested, urged or compelled to reveal his defence.
It places emphasis on the extra judicial interrogation and this emphasis will in fact become the dominant element in many criminal trials. It carries the substantial risk of an individual being convicted, not because there is evidence against him in the traditional sense of the term but because he is ignorant of the law or too cross-grained or too distrustful of the Garda, or too inarticulate, to have put his defence immediately and without advice, or simply because he has done so but it has not been recorded. Jeremy Bentham, on the subject of extra judicial interrogations, said two centuries ago:
The information derived from (them) is necessarily incomplete and fallacious; for how much of what the accused may have said extra-judicially reaches the Judge? Only so much as the opposing witness is able and willing to recollect; and even in this what security is there for the accuracy of his memory and the veracity of his character?
The English Criminal Bar Association have listed a large number of reasons, compatible with innocence, whereby a person might abstain from making his defence in the circumstances envisaged by this horror section. Many of these are self-evident after a little thought, but to them I would add that to disclose one's defence, before the trial has begun and before it is even certain that it will take place at all, to the agent of the adverse party, who may or may not record it and who may even be in a position, if he wishes, to destroy the evidence on which it is based if he knows of it, in all cases calls for an act of faith and in some cases would be extremely unwise.
Since almost all criminal trials at present contain evidence in relation to what the accused said, or the fact that he did not say anything, it is reasonable to expect that this section would be relevant to almost every case of crime coming before the court. It seems likely that each effort to apply the section would involve an issue or trial within a trial. This trial would involve matters of both fact in law and at least 12 such issues could arise. They are:
(1) It would be necessary to establish in all cases that there was questioning before a charge either to discover whether a crime had been committed or to discover who had committed it.
(2) Alternatively there would have to be proof of a charge or that the suspect was informed that he might be prosecuted.
(3) There would then be an issue as to whether an explanation in ordinary language of the effect of section 16 sub-section 1 had been given.
(4) Whether the explanation explained the section correctly and whether the language was in fact ordinary and comprehensible.
(5) There would in many cases be an issue as to whether a particular fact was, or was not "relied on" in the defence.
(6) Whether it was a fact which was or was not mentioned by the accused to the police and, if not,
(7) Whether it was a fact which could reasonably be expected to have been mentioned.
(8) The question of whether any, and if so which, inferences could be "proper" would arise in every case and in many cases the question of,
(9) Whether such inference was capable of corroborating any evidence in the case would also arise.
(10) The question of whether there was any evidence in relation to which the failure is material would also arise and a number of general issues would be present in every case such as,
(11) Whether the circumstances of the questioning, apart from the section, were such as to make it admissible and (12) whether the questions and the answers to them had in fact been correctly recorded.
The above 12 examples are by no means an exhaustive list of the possible issues which might arise in the operation of the section but probably exhausts those likely to be met in daily practice. They are very self evident. When the Minister comes to explaining the section as drafted, and his philosophy and meaning, will he deal with the points I raised?