Amendments Nos. 39 and 40 in the name of Deputy Woods are related, and, by agreement, will be taken together.
Criminal Justice Bill, 1983: Committee Stage (Resumed)
,Limerick East): Would it be possible to take the section with the amendments, by agreement?
I am agreeable to that procedure.
By agreement section 19 and amendments Nos. 39 and 40 will be discussed together.
I move amendment No. 39:
In page 13, subsection (8) (a), line 42, to delete "ten" and substitute "twenty-one".
Subsection (8) (a) states that the "prescribed period" means the period of ten days from the end of the preliminary examination referred in subsection (6) and my amendment proposes to delete "ten" and substitute "twenty-one". My second amendment proposes to substitute in subsection (8) (b) "twenty-one" for "ten". This section deals with notice of alibis in trials on indictment and trial procedure. Essentially, what is happening is that the accused person is being required to give notice of his intention to put forward an alibi. The intention of the section as a whole is to prevent a situation in which an alibi is pulled out, like a rabbit out of a hat, at the last minute and consequently the prosecution, or the gardaí bringing the case, can be left, dare I say it, flat-footed without having a reasonable opportunity to consider the alibi and present their view in regard to it. At present the calling of an alibi by an accused person without any prior notice presents an unsurmountable obstacle to those engaged in the prosecution of offences since no prior notice whatever is required. The gardaí cannot react in the event of a sudden production of an alibi to ensure it is examined properly and authenticated.
We are all aware of the many people on trial who from time to time have hoodwinked the Garda, juries and judges by being allowed without any safeguard to produce such evidence at the last minute. The intention of the section is to deal with that. Therefore, it is high time that this potential abuse was dealt with. The Minister's proposed measure is welcomed by this side of the House since it places a reasonable balance between the right of the defence and the prosecution which, under the Constitution, is taken in the name of the people. The prosecution represents the people and it is only fair that there should be a balance between the representation of the people and the representation of the accused. When the Constitution placed the prosecution on indictment in the name of the people it indicated a public interest in the successful prosecution of criminal activity in justice in finding, where right and appropriate, that successful prosecutions would take place. My amendment gives a reasonable opportunity to the prosecution to present a case without an unfair prejudice existing to favour those who are prepared to indulge in perjury to avoid the course of justice.
However, we believe that the section as proposed is capable of amendment. Subsection (3) deals with the requirement to inform the accused of the provisions in this section. The subsection does not specify in what manner this notice shall be given. Furthermore the notice may allow very little time in the so-called period of ten days and I think 21 days might be more appropriate. The method of informing a person should be spelled out and the period should be extended to more than ten days. It is possible that following on the passing of this Bill, through confusion or ignorance in regard to the duties of an accused, the period may be too short. Is there any reason why the notice prescribed here should not be given in writing?
The question of an alibi does not arise, of course, in all cases. The only clear case is in the event of circumstantial evidence which may not be supported by sufficiently clear evidence to avoid the possibility of the production of an alibi. Subsection (3) provides:
The court shall not refuse leave under this section if it appears to the court that the accused was not informed of the requirements of this section—
The section is confined to indictable offences and greater clarity might exist if the section contained an amendment to the Criminal Procedure Act, 1967, requiring the district justice to include the matters in section 7 (4) which specify the requirements of this section. The proposed section does improve matters in trials before the criminal courts, before both the Central Criminal Court and the Special Criminal Court. Now only a small minority of cases are heard before these courts. The vast majority are held before and dealt with in the District Court. This Bill should consider that fact and provide reasonable security for the Garda to rebut evidence of alibis where the Garda are taken by surprise, by allowing for a reasonable adjournment in which to allow the Garda to investigate the truth of an alibi pulled out of the hat at the last minute.
In the case of the District Court it may be desirable to make some provision that an adjournment could take place for a short period in order to allow an alibi to be tested. We talk of the end of the preliminary examination to mean the time of the return for trial. It is surprising that the time of the making of an order returning the accused for trial is not to ensure no doubt exists as to the meaning of the end of the preliminary examination. It is a question of where the end of the preliminary examination begins. That should be specified quite clearly so that the time in the prescribed period can also be seen clearly.
In the two amendments we have tabled the period of 21 days may be deemed too great for practical purposes. The fear I had was that ten days might be too short for practical reasons and I would ask the Minister to look at that aspect and see if the prescribed period of ten days in the Bill at the moment is adequate or would a longer period in some cases be necessary.
In relation to the section as a whole, it is a very welcome section. It will overcome a difficulty which exists at the moment. So long as we succeed in drafting it correctly it will be a considerable addition to the procedures and processes of the law as they exist. It is laughable — indeed, it is very regrettable — that a situation should exist whereby an alibi can be pulled out of the hat at the last minute and the Garda are given no opportunity to examine that. There is, of course, a contrary view expressed by the Association of Criminal Lawyers. They would be opposed to the section because it compels the accused, in their view, to give full particulars of every witness he may call relating to an alibi for the prosecution long in advance of the hearing. The purpose of this section is to allow gardaí to call upon the witnesses to check the veracity of their evidence. I recognise that if the period is too great there could be allegations of interference with witnesses in calling on them to test their evidence with them. According to the Association of Criminal Lawyers this will not be so. There would be no need for a full address to be given to the prosecution. They were particularly concerned about the practical implications of giving the full address to the prosecution so that the prosecution could pursue the individual very directly. The result of the section might be that witnesses would be reluctant to come forward on behalf of an accused regarding an alibi because that would undoubtedly mean being examined on the domestic doorstep prior to the trial. In the event that they were disbelieved the threat of prosecution would follow. It is submitted by the Association of Criminal Lawyers that the trial and examination of witnesses should only take place in court. This section involves switching part of the trial to the various homes of witnesses.
These are the points made by those who oppose the section. They are concerned that it may have the effect of bringing part of a trial outside the courts. To some extent one is caught between the situation where an alibi can be pulled out of the hat at the actual trial without a reasonable opportunity of examining it and the situation in which over-zealous members of the Garda Síochána may take very extensive measures to investigate or confront the witnesses and do that in their homes or anywhere else. It seems quite clear to me it is a section on which action must be taken and I welcome the Minister's proposals here to amend the law.
The Incorporated Law Society also had a view on this section. They said it is not clear why the provision should apply only to jury trials. It would appear it would be necessary for amendments relating to the rules for the form of notice of a return for trial to be made and it is intended that evidence on rebuttal under subsection (4) is to be by additional notice. The methodology by which it would be pursued in practice is brought into question and they have reservations. Is the prosecutor on receipt of a notice pursuant to the return for trial to be entitled to call for witnesses to be examined on deposition? There should be a provision for trial in the notice for the court. It may also be necessary to have a power for the court to extend the time.
While we are certainly quite clear that the measure the Minister is proposing is valuable and worthwhile, I would ask him to comment on some of the reservations that have been expressed by these very serious minded and interested groups of people and to tell us how their reservations can be met. Perhaps he would consider additional amendments to ensure that the form of notice is correct and properly served and that the prescribed time is adequate.
I am not sure that I share the feelings of the Minister and Deputy Woods in regard to this section as a whole and its object. My misgivings would not be removed merely by the extension of time recommended in the amendments put forward by Deputy Woods. I would draw the attention of the House to the general thrust of this section and of the preceding three sections. I do not object to this thrust but it is important to face up to it and see it in a broad perspective.
We have a criminal system which is accusatorial and which still will be so after the passage of this legislation. In contrast to other countries where the courts are supposed to find out what happened by means of testing the guilt or innocence of an accused person, the courts here have only one job, that is, to decide on the evidence produced by the State whether a person is guilty or not. We have always taken the line that the accusatorial system such as we have where the State's job is a confined one — namely, to find out whether the accused person is guilty or not guilty — is one which provides more safeguards to the accused person than the inquisitorial system which is the standard kind of system on the Continent. The latter is not as sinister as is sometimes made out and tends to involve the court in a less confined system of procedure, in which people are asked questions and to give an account of themselves in a way which would not be possible here. If we imagine the world of criminal process generally as being divided between two territories, one of them accusatorial and the other inquisitorial, the effect of this Bill is to push our system across the dividing line into the inquisitorial half of the field. I do not complain about that. Everybody has from time to time heard the suggestion that it was high time this was done and that the old fashioned kind of criminal process is not capable of dealing with the kind of criminals wandering around the world nowadays.
Under this section and the preceding three sections a mechanism is being provided which is to be exerted not by a court or a judge but by the police, putting it up to an accused person that he is in danger of prejudicing his own case unless he does something, before he is even charged. He must give an explanation for something and face up to the consequence of an inference being drawn through his failure to do so. That is the guts of sections 16, 17 and 18. Section 19 belongs somewhat to the same category, even though it is headed Trial Procedure and appears to belong to a different part of the Bill. This section puts it up to a person that he must give an account of himself not later than a certain time before his trial.
There is a difference between sections 16, 17 and 18, which I go along with, and section 19, which makes me somewhat unhappy. Sections 16, 17 and 18 do not at any point make it possible for a court to assume something to be true which is actually untrue, whereas section 19 leaves open the possibility that a true piece of evidence will be excluded by the court from its own cognisance, thus leading to an obviously unjust conclusion. That is by no means a subtle difference.
The section states that unless an accused person gives noticeet cetera, he cannot automatically produce alibi evidence after the expiry of the time limit. He can do so with the leave of the court but on what criteria is the court's leave to be accorded or withheld? We are told in subsection (3) that the court shall not refuse leave if it appears that the accused was not informed of the requirements of the section. That is a criterion, the application of which will oblige the court to admit this form of evidence. But what other criteria are there in the section or elsewhere by which a court can decide whether to allow a person, after the expiry of the time limit, to introduce alibi evidence? The expression “without the leave of the court” does not mean that the court can allow a man to introduce the evidence if they think it is true. They will not have heard the evidence, so no question arises of the discretion of the court being exercised on the court's impression of the truth or otherwise of the alibi. That does not arise. The court is not permitted to give itself the opportunity of considering the quality of this alibi evidence once the time limit has expired. I do not think there is any sinister intent but a principle is at stake which is different in quality to the principle we encountered in the preceding three sections.
I can imagine reasons, perhaps not very creditable reasons, why an accused person who has an alibi might choose to withhold that alibi. He might take that risk for personal reasons reflecting on his private life or the private life of somebody else. This might make him risk the withholding of evidence that he was in Ballybunion when he was supposed to have been in Dundalk. To do otherwise might be to expose some discreditable part of his life or risk exposing others, possibly setting up some friend or some marginally criminal acquaintance or contact or blowing somebody's cover. These reasons may not be as pure as the driven snow and he may conclude that it would be best to say nothing, believing that the weakness of the State's evidence will save him from conviction. At a later stage in the trial he may realise that the State's evidence is stronger than he thought and that the case is going against him. Possibly other matters would change and the arguments about protecting himself or others might not appear to have the same weight. He may suddenly lose his fear of producing his alibi compared with his fear of going to prison for several years following conviction of an indictable offence. Possibly the set of circumstances which had suggested secrecy will have changed and secrecy will no longer appear necessary. He now wants to produce his alibi but he cannot at this stage since he has let the time limit go by without leave of the court and what is he to say to the court? The court cannot literally gag him but he cannot say: "I want to say that I was in Cork when this crime was supposed to have been committed in Dublin and this is the real explanation". The court cannot say to itself: "That man has an honest face, has an honest ring to his voice and we are going to admit that evidence" because he has already tried to put that evidence before the court by saying those words and that is something which he is not permitted to do. The only criterion visible in this section which would allow the court to admit his evidence is if he says: "I was not warned at the time what the consequences of my not giving an early alibi would be".
I do not mean to be chopping at straws. There has been a whole haystack of straws chopped here since the discussion began and I do not want to add even one to it. I am not pretending that this would be a very common case but it is a pretty unusual thing for us to be enacting something which will visibly and patently make possible the situation where a court estops itself, precludes itself from hearing something which may be possibly true. That is not in conformity with the general principle of administering justice. It is not in conformity with the idea of justice at all. While I do not want to make a song and dance about it I think there is a principle here on which we are making a small abrasion, if no more than that. There may be some other way of doing it. There may be a way of surmounting this by providing an interruption in the trial while this alibi even at this late stage can be checked. I am not unaware of the difficulty and disruption of the usual patterns of the criminal process which that would involve but at least it could not be said of that that it flies in the face of justice or that it may fly in the face of justice, that we may find ourselves convicting somebody who is, in fact, innocent but who has been misguided or foolish enough not to produce the evidence which would show him to be innocent. We are clearly opening up here a possibility, even though I freely admit that it may not become actual in more than one case in a thousand, of an innocent man being convicted. That is a rare thing for us to do and while I have several times in the course of this debate paid tribute to the Minister — I know well he takes everything everybody here says very seriously and gives it great weight — I think we may be over-stepping ourselves here on this section and that Deputy Woods's suggested improvements do not mend it.
(Limerick East): First of all, I would like to deal with the section and then with Deputy Woods's amendments and try to incorporate some comment on the contributions made already.
The section prohibits an accused from adducing evidence in support of an alibi unless he has given notice to the prosecution of particulars of the alibi within a perscribed period. However, the court has discretion to allow evidence to be adduced in an appropriate case and subsection (1) provides accordingly. "Evidence in support of an alibi" is defined in subsection (8). The prescribed period is defined also in subsection (8). If the accused is returned for trial by the District Court at the end of the preliminary examination of the offence, it is the period of ten days after his return for trial.
Deputy Woods raised the point about clarifying when the preliminary proceedings ended. In the case of return for trial it is the period of ten days after the return for trial, if it is the District Court we are talking about. If the accused has pleaded guilty at the preliminary examination and is sent forward to the Central Criminal Court for sentence but later changes his plea to one of not guilty, it is the period of ten days from the date on which he changes his plea, so again there is no doubt about when the period of ten days commences. If he is brought before the Special Criminal Court for trial, it is different again because the Special Criminal Court fixes a trial date and in this situation it is the period fixed by the court when fixing the date of the trial. Therefore, it is ten days from the date of fixing the date of the trial. Deputy Woods asked why it did not extend to trials in the District Court and why it was confined to trial on indictment. It is because summary proceedings are less formal. There is no jury and a District Court can be adjourned to enable the prosecution to check an alibi.
The point I was making was that they should be able to have an adjournment. Is the Minister saying that is there?
(Limerick East): They can do that but the difficulty in trials on indictment is that once the jury is empanelled the trial cannot be adjourned whereas in the less formal proceedings in the District Court it can so the same difficulty does not arise.
Deputy John Kelly drew the methaphor of the terrain of criminal law being divided into two provinces, one where an investigative proceeding holds sway and another where there is an accusatorial system and said that we were moving our territory from one side of the line to the other. It is an interesting figure of speech but, if we are moving our system of criminal law in any way, I do not think we are moving very far in section 19, because what is being proposed there has been the practice in England since the English Criminal Justice Act of 1967 and, even though it is very difficult to argue against the theory of what Deputy Kelly has said, the practice in England since 1967 seems to have worked reasonably well and their section has been judicially interpreted on a number of occasions. As well as that, it has not been considered necessary to move amendments in England since the Bill was introduced in 1967.
For example, it has been held that the mere fact that the necessary information was not given by the accused within the prescribed period does not by itself, as a general rule, justify the court in refusing permission for evidence to be called: the discretion of the court with regard to allowing or refusing the evidence to be given at the trial must be exercised judicially. In another case it was said that the exclusion of this type of evidence for technical reasons was bound to lead to grievance where the failure to comply with it was due entirely to the fault of legal advisers. It was said that the proper course to take in such circumstances was to permit the evidence to be called subject (a) to the giving of notice out of time and (b) to allowing the prosecution such time as was appropriate in order to enable them to suitably investigate the alibi. However, in the latter case the Court of Appeal, having considered the alibi evidence to have been wrongly excluded, came to the conclusion that, if the jury had heard it, it could not possibly have made a difference to the result.
The subsection also applies where the accused alone is to testify that he was elsewhere at the material time, so the practice and the experience in England since 1967 would suggest that this can operate without difficulty and the particular case law in England would indicate that discretion would have to be exercised judicially and that the section as drafted here does not exclude the court from hearing the evidence simply because a legal adviser failed to comply with the regulations or somebody was not informed of their rights.
Subsection (2) obliges the accused, in general, to give the prosecution whatever assistance he can in locating the alibi witnesses. Obviously, it is necessary, if we are to give a period to the prosecution to check out an alibi and prevent an alibi being sprung at the last minute, that the prosecution is not put in a position where they cannot test in any objective way the validity of the alibi.
Subsection (3) provides that the court may not refuse leave to the accused to adduce evidence after the prescribed period has elapsed if he has not been informed of the requirement of this section by the court at the pre-trial stage. Deputy Woods asked whether there was a necessity there for actual formal notification. I do not think so. In a given situation it would be sufficient for the District Court to do so orally, to explain the rights of a person orally rather than presenting him with some form of documentation which might be a less effective way of communicating his rights to him.
Subsection (4) is a procedural provision. Any prosecution evidence to disprove an alibi may be given before or after evidence is given in support of the alibi. This is subject to any directions a court may give. Subsection (5) provides that a notice of alibi given by the accused's solicitor will, unless the contrary is proved, be deemed to be given with the authority of the accused.
Subsection (6) provides that the notice of alibi may be given either orally or in writing. It can be given orally only when it is given in the court during, or at the end of, the preliminary examination of the offence. If given later, it must be given in writing to the solicitor for the prosecution. Information provided subsequently by the accused about the whereabouts of alibi witnesses, paragraphs (c) or (d) of subsection (2) must be given in writing to the prosecution solicitor. Subsection (7) is a normal provision for service of notice of alibi on the solicitor for the prosecution.
Subsection (8) defines "evidence in support of an alibi" and also defines "the prescribed period", as referred to in subsection (1). Section 47 of the Offences Against the State Act provides that the Director of Public Prosecutions can direct that a person arrested for a scheduled offence can be brought straightaway before the Special Criminal Court and charged there rather than being brought in the ordinary way before a district justice.
In general, section 19 corresponds closely with the provisions of section 11 of the English Criminal Justice Act, 1967. That provision was recommended by the Criminal Law Revision Committee in their Ninth Report ("Evidence (written statements, formal admissions and notice of alibi)": Cmnd. 3145). In Scotland notice of alibi and also of certain other special defences has to be given, but in England it was thought that late alibis were the only cases that caused difficulty sufficient to justify making a special provision.
On the question of whether we should extend the time from ten days to 21 days — which is the burden of Deputy Woods's amendment — in the corresponding English legislation it is seven days and it seems to have worked well there since 1967. I am suggesting ten days here. But, of course, it is possible to argue that any period of time is too long or too short. As the section stands the accused may not, without the leave of the court, give evidence of alibi unless he has given the prosecution particulars of the alibi before the end of the prescribed period, and the prescribed period I am suggesting is ten days whereas Deputy Woods is saying 21 days. I think ten days is sufficient. I cannot see a strong case for extending it beyond ten days but perhaps Deputies would like to contribute further on that.
Deputy Woods referred to various points made and submissions to himself, myself and, indeed, other Deputies. For instance, the Association of Criminal Lawyers had certain objections. I think I have dealt with most of what they have said.
The purposes of the section is to allow the prosecution reasonable time to check out the veracity of an alibi. It may involve interviewing witnesses, it may involve conducting independent inquiries. Garda records may have to be checked to ascertain if the witness has had a criminal record. The Garda are bound to act properly when they are interviewing witnesses and, if they do so, I cannot see how there could be a reasonable objection. A witness will not be bound to co-operate with the Garda. There is no basis for the suggestion that alibi witnesses could, in any circumstances, be prosecuted if they were not believed by the Garda. That appears to be what the association means but it is not clear. They could be prosecuted only for any offence they have committed; they could not be prosecuted for not cooperating with the Garda or telling lies to the Garda. Of course they could be prosecuted for perjury if they gave evidence under oath in court and it transpired subsequently that they were telling lies. I do not think anybody would raise any objection to that. The interview with the witness if there is one, is outside the courtroom by the Garda and will not form part of the trial. The witness will have to attend, give his evidence in court and be subject to cross-examination on it. What he has said to the Garda will not be part of the evidence unless it is put to him on cross-examination, or for the purpose of casting doubt on what he is saying in court if it is inconsistent with what he had told the Garda earlier. Therefore I do not think that the argument advanced by the Association of Criminal Lawyers that it is transferring part of the trial to a pre-trial stage, where the Garda are actually trying the person, trying the witness, or going through some form of procedure which should be a procedure proper to the court is a valid criticism. After the checking out is complete and the alibi has been presented by the defence, the witnesses — whether they have been questioned by the Garda prior to trial or not — will be obliged to give evidence in court under oath and may be cross-examined on their evidence. Failure to co-operate with the Garda, telling lies to the Garda, anything like that, certainly would not be a criminal charge and they could not be charged with such. The only liability which could arise would be to be charged with perjury but that liability exists already if it can be proved.
The Criminal Law Revision Committee in England recommended that the police should be instructed that, where they propose to interview an alibi witness, they should take reasonable efforts to allow the solicitor for the accused to be present. That was their view and it has worked out very well in practice in England. There has been no pressure or move to amend section 11 of their Act since its introduction in 1967.
The Incorporated Law Society also made a number of points regarding this provision. I think they made a point that notice should be filed in court and I think Deputy Woods adverted to this. Subsection (6) requires that notice should either be given in court or in writing to the solicitor for the prosecution. It is not the court which is important here and which should get the notice but the prosecution because the purpose is to enable them to check out the alibi. If we think again about the purpose of the section — for example, alibis sprung at the last minute which cannot be checked out by the prosecution or by the Garda. Therefore it is important that the prosecution receive notice of the alibi, not so much that the court would get notice of it. Therefore I do not think any great purpose would be served by requiring notice to be filed in court which was a suggestion of the Incorporated Law Society.
The Incorporated Law Society also mentioned the power of the court to extend time. In effect the court has the power to extend time because it can allow, under subsection (1), evidence in support of an alibi to be adduced even where the notice has not been served at all. This ought to be adequate to deal with any unforeseen difficulties that might arise for the defence. If the court is satisfied with the reason the notice was not served in time, and consider it reasonable, then it can allow the evidence to be given. Again experience of case law in England would not suggest a problem in this regard.
The Incorporated Law Society also spoke about the necessity for amending the rules relating to the formal notice of return for trial. I am not too clear what their point is here. It seems that the point relates to the rules of court and does not require any alteration of the Bill. There seems no reason that the notice for return to trial should have to be amended in any way. The accused must be told, when he is being sent forward for trial, that he must give notice of alibi and that ought to be sufficient. Perhaps I have misunderstood it and somebody who has been briefed in more detail by the Incorporated Law Society would confirm if that is the burden of their objection.
The law society also talked about whether the prosecution on receipt of a notice and before the return for trial could call for witnesses to be examined on deposition. The answer there was "no". If the preliminary examination has been completed and the accused returned for trial, then the notice is given. The notice must be given before the expiry of ten days from the end of the preliminary examination but it could be given much earlier. If it were given before the preliminary examination started the prosecution would have an opportunity of examining the witnesses on deposition, otherwise that would have to wait until the trial. Therefore, the serving of the notice would not enable the prosecution to bring about a situation where witnesses would be examined on deposition before the trial itself where the notice was served within the ten-day period.
The law society discussed whether evidence would be rebuttable under subsection (4) and whether there would have to be additional notice. Again there seems to be misunderstanding on this. There is no question of giving of evidence by notice whether for or against the alibi. The accused is being required to give notice of his intention to put forward an alibi, but the alibi itself will have to be established in court by evidence in the normal way. Likewise, evidence to rebut an alibi must be given in court. There is no question of the prosecution having to serve notice to rebut an alibi.
To sum up, I am seeking in the subsection to prevent what I think is an abuse, springing an alibi at the last minute by the defence where it is impossible for the prosecution to get the Garda to check out the alibi. The alibi stands in the court. It may not be accepted by the court but it stands without rebuttal or attempted rebuttal because nobody has had time to investigate the alibi in any way. Because of the change a number of specifics are written into section 19 together with quite a number of safeguards. The safeguards written into the section together with the experience in England and judicial interpretations of a similar provision in English law will enable us to proceed with this section without great fear.
First of all, generally speaking, it is a bad plan to use English legislation as a pattern for ours if only because the English system is a different type of system. In Britain if you can persuade Parliament to pass an Act abolishing the courts of justice altogether there is no power in the country to challenge the legitimacy of law of that kind. You could shrink the function of the Queen's Courts to the imposition of penalty, leaving the determination of guilt to be carried out by the police. That is constitutionally, I will not say unobjectionable, because I am sure people would object to it and say that it was against the unwritten principles of their constitution, but immune from being overturned by anybody. We have not got that kind of system, and time after time Irish Governments and this House have been made to look silly by things we have done being overturned by the courts in consequence of our having copied British legislation enacted by a people who are freedom-loving, decent and so on, at any rate in their own country, but who do not operate under the constraints which the Constitution we like to live under imposes on us.
If the Minister had served notice on me of his intention to produce this argument I would have had the chance to produce a long list of such instances. A couple which I can give off the top of my head are relatively recent. The Supreme Court here struck down a provision of the Road Traffic Act, 1961, which was originally taken from an English Act, which made a particular kind of blood or urine sample conclusive evidence in regard to the process by which that sample had been taken. The court said that there is no such thing as imposing on us a conclusivity about a matter which it is inherently our function to judge for ourselves. We might have said "shall be evidence", yes, but "conclusive evidence", no, because that shuts out our discretion. I suppose that is a small matter and I do not intend to bore the House with further such examples, but to give other examples, the old Children Act and the Customs (Consolidation) Act are English statutes which were quite all right in the context of the British system of justice but fell foul of the Irish conception of the courts' function here under our Constitution.
Another instance with strong political overtones was the Haughey case in 1970 or 1971 when the importation of an English pattern into the proceedings of the Committee on Public Accounts and the importation of a special procedure from the Tribunal of Inquiry (Evidence) Act again led to a debacle here which I can remember very well. The whole House and the other House were falling over themselves to get an Act through in one day and it galloped through in one day. It was a sharp lesson to me never to go along with that again because we were all made to look extremely silly a couple of months later.
I have no doubt that what the Minister says is a perfectly fair description of what the case is in England, but there they have not a judiciary who are so jealous about the abridgement of their own functions as they perceive their own functions. A judiciary such as the Irish one will not allow themselves to be saddled with a legislative system which will compel them to abet an act of injustice. I have admitted that the probability that an instance of this kind will arise frequently is extremely small, but I believe that no Irish court will do other than permit somebody to say "I want to give evidence on the matter very relevant to my own innocence, namely the fact that I was a thousand miles away. I want to be permitted to give that evidence even though, for reasons which are, at the best, not respectable, I have not given it in the way that the law wished me to give it by notice within a certain length of time" and so forth. If somebody says, "I had reasons, which were perhaps bad, but they are my own reasons and it does not matter what they were, but now I want to give evidence to the effect that I was a thousand miles away when this crime being imputed to me was being committed", an Irish court would have to permit him to bring that evidence at whatever cost and inconvenience. If it refused to do so the conception of justice which the Irish courts deploy would be infringed. I have seen nothing in their behaviour in recent years which would encourage me to think that they would do other than that.
It would be a different matter if the Minister's section proposed to do something along the pattern of the preceding sections, in other words allow an inference damaging to the accused person to be drawn from the fact that he had not produced his alibi until the last minute. However, to leave the court in a position where the court might conceivably refuse to let him produce his evidence at all is to do something which the Irish courts on their record over the last 30 or 40 years will not permit. We keep coming back to the expression "with the leave of the court". The court has a discretion to allow the person to produce his alibi but I cannot imagine that discretion being exercised in any way other than in favour of the accused. Therefore, I am not sure that there is much point in the section.
It would have been more to the point had he tried to lean in a different way on an accused person who might possibly be trying to hold up his conviction by producing a bogus alibi at the last minute, that different way being by saying that failure to produce an alibi within a certain length of time might materially lead to a negative inference by the court. That would have been a better way of dealing with it. I hope I have not held the Minister up needlessly and that I have not misunderstood something but I must record a certain unease about the principle of the section, regardless of what the English may have done.
I appreciate the point Deputy Kelly is making. It is one the Minister might consider and assure himself on. Article 38 1º of the Constitution provides that an individual must have a fair, just and balanced treatment in all respects. It is essential that that principle be enshrined in this Bill in its final form.
If we take it that the preliminary examination is similar to the presentation of the book of evidence and the taking of depositions and submissions, what would be the normal time that would elapse before the trial took place? A period of 21 days may be too long in that it may hold up a trial. The idea I had in this regard was to give to the Garda a reasonable opportunity because to give them a lengthy opportunity might result in people going further than was intended in certain cases. The Minister has suggested also that certain records would need to be checked but that that is something which could be done fairly quickly. Can he give us some idea of the time-scales involved?
(Limerick East): The timescale would depend on circumstances. People in custody would be given priority over those who were not in custody. Trials could commence within the 21-day period but the time of year would also be a factor, having regard to the long judicial holidays. If one were charged prior to a summer vacation, an extensive period could elapse before his being brought to trial. I think the ten-day period is adequate but I shall look at this again in the light of deciding whether a somewhat longer period would be justified. The period in England in this respect is seven days.
Whatever we say about how the English behave in other countries, it is generally agreed that in Britain the legal system is one of the finest in the world, and that they perhaps have one of the freest societies in the world. If we are to measure what we do against the practice and procedure in a system in which the adversarial system still operates, it is valid to draw on the English experience. The British may not have a written Constitution but they do have a Constitution. However, I am not sure that the British House of Commons could go the distance suggested by Deputy Kelly in some of his examples.
There is one other point I should like to draw to the attention of the House and that is that a slight problem has arisen in regard to the definition of the prescribed period in subsection (8). We have realised that this does not cover a case in which an accused waives his right to a preliminary examination in the District Court and is sent forward for trial to the Circuit Criminal Court. In the section as drafted the prescribed period in that situation is not prescribed, so I am merely alerting the House to the fact that this may require amendment on Report Stage.
The Minister says that the English legal system is recognised as being one of the finest in the world. That may be the Minister's point of view and I am sure there are many who would support him but he should be careful because the English system as it is being applied in a certain part of this island has, to a great extent, brought the law into disrepute both in its application——
(Limerick East): I referred to the application of the British system in Britain.
The British system is operating in the northern part of this island. I know the Minister would not agree with certain aspects of that system having regard to his stated views during the course of this dreadful legislation which the House has to grapple with, and I use the word "grapple" advisedly, because having regard to what Deputy Kelly has said we are grappling with the legislation and not very successfully in some instances. When we recall comments such as those which emanated from the Bench in Northern Ireland last week we might very well question the description of the British legal system as being the finest in the world. I am not making a case for any extreme organisation either in this part of the island or in the North. My views on that matter are well known. I am a democrat, totally and absolutely, first and last. I abhor what is being done in Northern Ireland in the name of the Republic by a certain element but that is not what we are dealing with here. If I were to say that I would have been proud to make the speech made by Deputy Kelly, I would be telling the truth. The first part of the Deputy's contribution on this matter of trial procedure was totally consistent with my views on the now deleted section 16 and also sections 17 and 18. Deputy Kelly is absolutely correct in saying that the accusatorial system is being abandoned and that there is an intrusion of the inquisitorial system. I do not intend competing with the Deputy in his knowledge of the law, academically or otherwise. There can be attributed to him acorpus of work which should prove that he knows what he is talking about but it seems strange that the Minister dismisses the views expressed both by the Incorporated Law Society and the Association of Criminal Lawyers in relation to certain parts of this section. I am not saying that in any sort of insulting fashion but it appears to me that the Minister may well be dismissing what after all are very mild and moderate amendments proposed by Deputy Woods in respect of the meaning of the prescribed period and its extension from ten to 21 days.
These are very reasonable amendments having regard to the dangerous type of legislation we are dealing with and in the context generally of civil liberties. I am not making a case for the criminal. It is my opinion that he should get what he deserves but if this legislation should bring about a situation in which one innocent person were to be found guilty, it would be bad law. Sections 17 and 18 bring about that possibility as did also the deleted section 16. That is why I consider those sections and sections 19 onwards to be bad and very dangerous provisions. This Bill is a dangerous one. I do not like to have to argue for or against it. I wish we did not have it at all. However, to deal with the Bill——
The section, Deputy.
I understand the House is to sit until 10 a.m. Why the rush? The Minister indicated throughout the discussion on various sections up to and including section 19 that he wants to take the matter gently. He said he considers it to be legislation which should be well scrutinised. I do not see any reason for the House to sit until 10 a.m. to deal with Committee Stage. It is bad practice. However, I will sit through the night and until 10 a.m. I have no doubt there will be a vote at 10 a.m. if needs be. I sat in the House for longer periods in the past. That is a matter of historic fact.
We appear to be rushing this legislation. It is unnecessary. The legislation raises a lot of questions which require to be answered. In support of that, Deputy Kelly said that if he had more time he would have brought in more case law to dissuade the Minister in relation to some aspects of section 19 which he considers to be anathema to his beliefs. This legislation generally flies in the face of the civil libertarian concept of legal practice.
I do not know where that leaves Deputy Kelly's gentlemen who went to Cork for the week-end and did not want to reveal the fact until the last moment. I do not want to introduce Cork——
Let us call it Lisdoonvarna.
(Limerick East): I hope he will be back by 10 a.m.
Deputy Kelly made the point in relation to the constitutional requirement which applies here. It does not apply in England, however good or bad their laws may be. We must operate within the Constitution. Would the requirement that there should be fairness and balance not be met by subsection (2) which states: "Without prejudice to subsection (1), on any such trial the accused shall not without the leave of the court call any other person..."? If we take Deputy Kelly's example, while it may be inconvenient for everyone, including the court and the accused, it might come to a stage where he feels he must bring in an alibi. Surely the Minister has provided in subsection (2) a means whereby he can do this even at the last moment. If he has to disclose it to the court at that stage surely he would have reached a stage where he felt he had to do so.
I am not a legal or constitutional expert. I am, as the Minister pointed out last night, a common or garden layman. It would seem the Minister has made a provision to pick up such cases in which fairness may be in jeopardy. He has provided an opportunity for the court to overrule that and provide for a person who may have had an ill-advised week-end in Lisdoonvarna or wherever.
(Limerick East): I will look at the specific point about the length of the prescribed period. Ten days is sufficiently long. The section has been carefully drafted. I have notified the House that I may have to bring in an amendment on Report Stage about the problem which has been brought to my attention.
I shall welcome the company of Deputy Andrews for the night. He will help us make it through the night until 10 a.m. There comes a time when we must finish. There is no intention on my part to rush the Bill through. The difficulty is in a Bill such as this that we should take it very gently and tease it out line by line. There is also the difficulty of repetition in that people come into the House who may not be here for the major portions of the debate who, quite legitimately from their point of view, go through arguments which have been dealt with previously. That takes up a lot of time. There is also the difficulty that Deputies change their minds during the course of the debate. It is difficult for a Minister to allow for that. On 9 November 1983, on Second Stage, Deputy Andrews said:
The proposal that the defendant shall be obliged to give reasonable 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.
I still find it eminently reasonable but the Minister is misquoting me.
(Limerick East): The Deputy had no objection to the principle.
We will be here until 10 a.m. by the sound of it.
(Limerick East): It is eminently reasonable for a Deputy to change his mind. I changed my mind on certain sections of this Bill. He is changing his mind in a major way on this section.
That is untrue, unreal and unfair and flies in the face of what the Minister——
(Limerick East): The reference is the Official Report, Volume 345, dated 9 November 1983. The column No. is 1931.
The Minister has totally misquoted me, misread me and misinterpreted me. My views are and will continue to be consistent.
(Limerick East): The proposal that the defendant should be obliged to give notice of an alibi seems eminently reasonable.
The Minister can take it out of context. I did not say anything in the course of my contribution that deviates from that. I have not changed my views. The Minister is being grossly unfair and selective. However, it is part of his symptom.
Section 19 is one which on the face of it seems fairly reasonable and acceptable. But, when one gets down to analysing how it will work, doubts arise. The Minister indicated that he will look at the question of the time period within which notice has to be given. That is good. In principle I am not opposed to the idea of a person giving notice of an alibi. Without attributing ulterior motives to the garda, or whoever is investigating cases, there would seem to be grounds for believing that gardaí investigating a case who would be asked to follow up the name and address of a person listed as part of an accused person's alibi, could influence the witness concerned through the form of questioning pursued in trying to establish the veracity of the alibi. This could result in the witness withdrawing from the case, thereby demolishing the accused person's alibi. They may withdraw simply because they do not want to get involved any further, or it may be a more serious case than the witness thought when asked to give the information to establish an alibi. That is my concern about this section.
I am also concerned about subsection (1) where a person would not be able to bring in an alibi unless he had given notice. This seems to be very restrictive. I would ask the Minister if he has considered enabling the notice of the alibi to be given to the prosecutor and if some independent person would follow up the alibi, not the gardaí who would have been involved in the arrest of the accused and the taking of statements. I am not anxious to impute motives to the Garda. They are human and are anxious to get successful prosecutions, but in the manner of their approach, they may unfairly affect the alibi and the witnesses who are backing those alibis.
I am not too concerned about the period of time referred to in the amendment because the period mentioned in the Bill is adequate. A period of ten days was mentioned but having examined the experience in other countries, that period has been reduced to seven days. It is probably better to take a shorter period than the suggested 21 days because if experience has shown that this period is adequate, there is no need to lengthen it now.
On a point of order, the period left is the relevant period and if we give 21 days there will be less time to pursue it.
I understand that. It is unfortunate that we have made this comparison with Britain because in the light of the introduction of the Police and Criminal Evidence Act things are not better over there. Some weeks ago I listened to a public address by a British MEP and MP who pointed out the dangers of introducing this form of legislation and telling of the experience they had in Britain. He did not have many complimentary things to say about what is happening in Britain. I do not think we should ape what they are doing. Even in this Bill we have taken whole sections verbatim from the British legislation. Section 16 was one such section and it was rejected in Britain but still we wrote it into our legislation. Not only do we take in what is in operation in Britain, but we take what they reject even after years of painstaking examination. I support Deputy Andrews' comments on sections 16, 17 and 18.
We are discussing section 19.
I have a copy of Deputy Andrews' Second Stage speech which was lengthy and well balanced. He went to great trouble to show the inherent dangers of certain sections and gave 12 examples of instances which could cause us worry under those sections. Now we have another section which is causing a little worry mainly because of the comments from some of the legal associations. This has to do with witnesses. There is a general acceptance of the need to be able to put forward alibis in advance. In theIrish Independent of 16 November 1983 the Association of Criminal Lawyers said that they had no objection to the notification in advance of the alibi to be relied upon, once there was no question of Garda interference with witnesses. I do not know what they mean by “interference with witnesses”. The Garda have to check witnesses and if an accused person gives a name for an alibi, I do not know if it is necessary for somebody to check out what they said, provided prior notice is given. Section 20(2) (a), (b), (c) and (d) set out certain conditions. If a person does not know the address of his alibi, he must inform the Garda of that fact as soon as possible. It could happen that an accused person might not remember the name of a person who could provide an alibi, but if he is fortunate enough he might be able to remember and to get that person to be his alibi when the trial is being heard. It seems to me that the accused, in such circumstances, would be precluded from introducing an alibi. Though the section may prevent an accused from producing an alibi, in certain circumstances the court may allow such evidence to be given. No such limitations are imposed on the prosecution in serving notice of new evidence against the accused.
The objective of the section to prevent last minute intervention on behalf of criminals is laudable. The other objective of the section is to give an opportunity to the Garda to check an alibi. I am not fully convinced about that. I do not see why the Garda, having prior notice of names and addresses of witnesses, should go interviewing the witnesses unless it is expected that the accused, by himself or through others, may pass on an alibi to reliable friends. It seems to me that it would be sufficient to give names and addresses without having to check them out. That would provide the safeguards the Association for Criminal Lawyers are worried about: it would provide safeguards for the prosecution and the accused. It seems to me that, generally speaking, one of the objections to the section would be met if those points could be ironed out.
Another worry which Deputies expressed is the danger of a trial outside the courts by gardaí questioning witnesses. It was feared that there is nothing to stop the Garda from building up a case by paying multiple visits to witnesses. There is another cautionary note to be struck here. There may be reluctance by witnesses to go to court at the trial of an innocent person if they are to be paid multiple visits by gardaí at different times of day and night. Such witnesses may feel harassed or embarrassed by having squad cars calling at their houses or at their places of employment. Our objective overall is that justice will be done and I ask the Minister to bear these points in mind. He has accepted the fairness of other points.
(Limerick East): Deputies De Rossa and Skelly made two main points. One is that if witnesses in support of alibis have to be checked out it should be done by some body other than the Garda. I could not accept that. The Garda are charged with the responsibility to check out evidence. Now we are talking about a second police force. Regardless of the name we give to them, if we have a suggestion that a certain group of people would take care of adducing evidence or checking out portions of evidence, that cannot be acceptable.
Both Deputies expressed uneasiness about the Garda investigating witnesses supporting alibis. First, they feared that a witness might be worried about going to court, and, secondly, that certain parts of evidence might be subjected to a pre-trial procedure. Of course, witnesses can be required to go to court and there is not any possibility of an alibi falling, because the witness can be summoned to attend. In many investigations people bring forward alibis, and they do not present them at the last moment. Accused persons tell the Garda why they could not have been at a particular place at a particular time and at the moment the Garda have to go to check with witnesses. They have been calling on people's homes and at their places of work to ask them about alibis. That has not been giving rise to any problems, but the two Deputies seem to think there will be problems when alibis are sprung at the last moment.
As I have said, the checking of alibis is not new — the Garda do it all the time. The section provides an obligation on the person to give notice of intention to bring forward an alibi. I do not think there is any cause for concern about this section whose principle has been accepted by practically everybody. I have explained about the safeguards in it and the manner in which it is drafted.
However, I will look at the period in regard to notice. I think ten days is right but I will have another look at it. Any change would require an amendment on Report Stage.
People have expressed fears about intimidation of witnesses, the Association of Criminal Lawyers and a number of Deputies among others. What safeguards are there for witnesses against intimidation? According to the section, the notice to be given by the accused must include the name and address of the witness or, if the name or address is not known to the accused at the time he gives the notice, any information in his possession which might be of material assistance in finding the witness. Obviously the intention is to enable the Garda to go to the witness, and the fear expressed is that there might be intimidation in such circumstances.
I know that the Minister cannot guarantee what an individual member of the Garda Síochána might do in a particular set of circumstances. However, if a witness is intimated in any way, will there not be natural safeguards against that in that it could militate against the case being presented by the prosecution in any event? What safeguards are there that might operate in that way?
(Limerick East): They could make a complaint as a witness while they are in court. Certainly that would have an influence on the trial. Again, as we discuss these things we find ourselves out of the ball park or at the very least offside. The problem of intimidating witnesses at present does not arise in connection with the Garda. It arises out of the criminal fraternity intimidating witnesses on many occasions.
At the moment the Garda investigate alibis. If somebody springs an alibi at the last moment, they do not have an opportunity to investigate it. This section will give them adequate time to do so and they will talk to the witnesses. The Garda will have no role in adjudicating whether the witnesses are speaking the truth or on the validity of what they say. The witnesses will still have to go to court, take the oath, be cross-examined and it will be up to the judge to direct the jury as to whether what they say is sustained or not. I do not think that there is a particular difficulty there. If a witness has a problem, if he is, for instance, reluctant to turn up as a result of an interview with the Garda, for any reason that somebody might conceive, they can be compelled to attend court. If there is any question of the Garda for any reason intimidating witnesses, they can come to court and say that. We are not speaking now of the Garda station but of a court of law where there will be solicitors, barristers, people acting for the prosecution and the defence. Not only are the State's rights and the rights of the accused being protected but there are people there who can protect the witness for the defence. Any witness can, in any cases be cross-examined both by their own side and the prosecution side.
I am glad the Minister has contributed that comment. The point made by the Association of Criminal Lawyers is that the trial examination of witnesses should take place only in court, whereas this section brings a switching of part of the trial to the very homes of the witnesses. Surely in the case of people who give their alibis in advance and do not pull them out of the hat at the last moment, as the practice is at present, the Garda would investigate the alibi, having a fairly standard procedure for doing so. There would be limits to what they can do and the court can impose its own limits. The Garda will find from experience that these limits exist.
I want to assure the Minister that we are all out to get the bad guys. Let that be accepted from the start, so that we do not have to keep repeating it. Some new Members come in to the House and it may be necessary to stress that from time to time. We are giving a new power here and we are doing it for very practical and, we believe, good reasons, particularly to deal with the situation in which an accused person is inclined to bring out an alibi at the last moment, thereby setting the prosecution at an unfair disadvantage. In taking fairness overall, nonetheless fairness must be assured to the person accused. I presume that quite a large number of people volunteer alibis at a sufficiently early stage and there is a whole procedure which relates to that. The fears which some Deputies have in relation to this area would be groundless and the fears that the Association of Criminal Lawyers have expressed would not appear very substainable in practice.
It is on these grounds that we are prepared to accept this section. We appreciate the purpose, intent and value of it in having fair procedures on both sides and avoiding circumstances in which the course of justice can be thwarted by the submission of an alibi at the last minute. We have expressed our views in this regard. I take it that the Minister and his officials will take note of what has been said and consider, in the drafting for the Report Stage, taking into account what was mentioned in the House to see to what extent modifications may be necessary.
I withdraw amendments Nos. 39 and 40 in view of the undertaking of the Minister to look at the period which is the balance after the ten days or 21 days. My intention was to avoid having too long a period. The Minister has inadvertently pointed out another difficulty, that if the summer break comes in between, the period could then become quite extensive. Nevertheless, he has undertaken to look at what the appropriate period might be.
Regarding the section generally, we accept the case made by the Garda in the prosecution of cases. The courts will obviously be careful to ensure that witnesses are not unfairly interfered with and it seems, on balance, that the section will be a very useful addition to the law.
There is just one point that I should make, merely to correct the record. The Minister mentioned that I had changed my mind in relation to section 19. I was making my observations on the Bill as a package and I certainly have not changed my mind, or views, or opinions, or stance in relation to the inference section and section 16, now properly abandoned by the Minister. It is unfortunate that whoever produced to the Minister the November speech which I made on Second Stage may have convinced him selectively to misinterpret me and introduced an unfortunate note into what can only be considered as a very good and constructive debate on the Bill as a whole. But then, the Minister has proclaimed the English legal system as being considered one of the very finest in the world, so I can understand that kind of bitter note being introduced. It is unfortunate that the Minister has done so. Now, as a matter of honour, he should recognise that what he did was unjust and unfair to me.
I accept that the Minister may have misinterpreted me, having regard to the generality — and I use that word advisedly — of my views on the Bill as a whole. However, it was unfair of the Minister to say what he said. We should now put the record right in that regard if he feels that he should. If he does not feel that he should put the record right, that is a matter for him and his concept of what is fair play and correct in relation to the whole tenor of the debate.
I am deeply grateful to Deputy Skelly for his remarks in relation to my contribution on Second Stage of the Bill.
(Limerick East): I appreciated Deputy Andrews's contributions right through the Bill. I am sorry if I offended him in any way. It seemed from where I sit that we had gone through sections 17 and 18, that while Deputies were making passing reference to them they were really discussing section 19. Deputy Kelly had made a contribution on section 19. He did not think it was a good idea and that it might hurt only one individual in a thousand, but that was sufficient to cause him concern about the principle.
Deputy Andrews was listening to Deputy Kelly and said that he endorsed fully especially what the Deputy had said in the first half of his speech, where he was opposing the principle.
I was talking about the accustorial and inquisitiorial systems. Deputy Kelly made reference to the sections before section 19.
(Limerick East): I understood the Deputy to be saying that he was opposed to the principle of section 19.
The Minister is not prepared to put the record right.
(Limerick East): I was pointing out that he had said on Second Stage that he found the section reasonable. I was not casting any aspersion on his integrity or anything else. I was just pointing out that the difficulties I have in proceeding with the Bill through the House arises from its complexity and the desire to tease it out line by line, and, secondly, that Deputies repeated themselves, Deputies who were not here all the time came in and repeated points other Deputies had made and some Deputies were changing their minds. I also made the point that I had changed my mind on section 16 and changed my mind where I have indicated I am bringing in amendments. If Deputy Andrews if offended I apologise. I am not casting any aspersion on his integrity.
Unless we have the capacity to change our minds we have been wasting our time for the last few weeks. The purpose of our debate is to try to change each other's minds. The point I would like to raise further with the Minister is the question of the effect which requiring an accused person to give an alibi may ultimately have on the witnesses concerned. He indicated that at present when a person gives an alibi to the Garda they proceed to investigate that. We must accept that in those circumstances the person who is volunteering an alibi and the information about the alibi has no concern about whether the witnesses are approached.
This section is intended to oblige people who might otherwise not be willing to give details of an alibi for whatever reason to do so. It may be for very devious reasons or that the person wants to catch the garda or the prosecution at the end of a trial. There may be other genuine reasons such as the fact that the witness may be extremely nervous and may never have had occasion to have dealings with the Garda previously; the person may be ill in hospital or he may have been an accomplice of the accused person in relation to some other crime which would complicate matters for him and for the witness.
There are other implications in relation to this section. As I said — other people have also spoken about this — the principle of requiring a person to give an alibi is not in dispute. It is the question of how that is applied in particular circumstances where investigation by the Garda of a witness may have the effect of demolishing the alibi, not because it is a false one but simply because the witnesses feel constrained to withdraw from the case for some reason. That is my only concern.
My suggestion about an independent person investigating witnesses was a thought off the top of my head. I accept the Minister's point that it would involve a second tier of investigators which would not make a lot of sense. Perhaps the Minister could consider a situation where witnesses involved in alibis would be required to attend the State Solicitor's Office to make statements or give particulars of alibis. There could be something of that nature whereby there would be less likelihood of witnesses feeling overawed by visits by the Garda.
(Limerick East): If a person is a witness as an alibi and has been nominated as such it pre-supposes that that person will turn up in court and give evidence under oath. If that person finds it an intimidating experience to talk to the Garda in his own house and is nervous about it, it is equally valid to feel he would be nervous about the court situation where the formalities are even greater. It could be an intimidating experience for people who have not been in court previously, taking an oath, being in a witness box and dealing with people who are dressed in a rather peculiar way.
Two issues could arise. There is the idea that the witness would be reluctant to appear in court. If he were reluctant to appear in court as a result of a conversation with the Garda he could be compelled to appear. With regard to the other side of the argument, I cannot see why somebody would be nervous to talk to the Garda and, at the same time, be willing to give evidence under oath in court. I cannot see the validity of that line of thought. The Garda have power to investigate an alibi as it stands at the moment. We are now extending that power by the mechanism suggested in section 19 to situations where previously an alibi was sprung but now we are requiring that notice be given of an alibi. I will look at the points raised but I do not see any difficulty along the lines the Deputy is suggesting.
I want clarification on one point which I probably have missed during the debate. It was something which Deputy Kelly first raised. Do I understand that if an alibi, for the honest reasons which Deputy Kelly referred to, is produced after the prescribed period, it is precluded at the court stage under this Bill or is the discretion within the court to accept the honesty of it and allow it?
(Limerick East): No. It can be admitted with the leave of the court.
It says in the section: "shall not without the leave of the court adduce evidence in support of an alibi unless ...". It must have the leave of the court. Is it not very sad that people seem to be so nervous to talk to the Garda no matter what place it is in? It is symptomatic of the situation we have and which we should try to get away from. I hope the community police concept might help to get over that but it is a reality. I know it can be misinterpreted very easily but the vast majority of honest, decent, God-fearing people who are law-abiding are nervous about talking to the Garda.
The Minister quite rightly says that if we are going to require a witness to come to a State Solicitor's Office or somebody else's office that is a kind of threatening situation whereas a normal interview with a member of the Garda Síochána for an innocent person should not involve any fear or real apprehension. Perhaps this is something we should be working on to try to overcome this situation. It is a reality in our society. It reflects on measures like these when we introduce them. As I said earlier, I am satisfied with the Minister's explanations and with the discussion which has taken place. Since Deputy Kelly did not respond after I commented earlier I take it he is essentially in agreement or he has gone away to look up some more tomes on the question and will not return before we finish the section. In any event, we are prepared to accept the section.
(Limerick East): There is a lot of validity in what Deputy Woods said about the Garda Síochána. It is something that should concern us. In other countries over a number of years — and I think Deputies would be able to nominate them; they are democratic countries, Western European countries — certain sections of the police forces have entered a kind of demi-monde and have become almost a group apart. I do not want to mention particular countries, or particular police forces. In Western Europe there are a number of police forces and, while some of them can be quite acceptable to the community, others do not seem to be.
Amendment No. 41 in the name of Deputy Woods.
Could we take the amendments together with the section for discussion?
To section 21 there are amendments Nos. 41, 42, 43 which is related to No. 42, and Nos. 44 and 45 which have already been discussed.
The remainder for discussion would appear to be amendments Nos. 41, 42, 43 and the section. By agreement we could discuss the amendments and the section together.
By agreement, section 20 and amendments Nos. 41, 42 and 43 will be discussed together and put separately.
I move amendment No. 41:
In page 14, subsection (2) (d), line 22, after “days” to insert the following:
"or such further period as may be allowed by the Court to which the accused has been returned for trial where that Court sees fit".
Section 20 deals with proof by written statement and is a very welcome provision in the Bill. Section 20 (1) reads:
In any proceedings against a person for an offence, other than the preliminary examination of an indictable offence, a written statement by any person shall, if such of the conditions mentioned in subsection (2) as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person.
This is the clause which brings in the proof by written statement. Subsection (2) reads
The said conditions are:
(a) the statement purports to be signed by the person who made it;
(b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he stated in it anything which he knew to be false or did not believe to be true;
(c) a copy of the statement is served, by or on behalf of the party proposing to tender it in evidence, on each of the other parties to the proceedings; and
(d) none of the other parties or their solicitors, within 21 days from the service of the copy of the statement, serves on the party so proposing a notice objecting to the statement being tendered in evidence under this section.
Paragraph (d) provides that the notice must be served within 21 days. This is one of the conditions under which such a statement can be included. The amendment proposes to insert after "days""or such further period as may be allowed by the Court to which the accused has been returned for trial where that Court sees fit." Essentially the purpose of the amendment is to allow for a situation in which the 21 days would not, or could not, be complied with and to allow the court to extend the period if the court saw fit. A written statement shall be admissible as evidence only on the grounds of these conditions. One of the conditions is that it will be served within 21 days. It may be possible to have such a written statement. It may be available on the day in court. There could be very good reasons for its not being available within 21 days, and it may be very important to the defence or the prosecution to have it admitted.
On this side of the House we felt there should be an escape clause under the control of the court which would allow the court to give a further period for the tendering of this kind of statement. That is the point in amendment No. 41.
Amendment No. 42 reads:
In page 15, subsection (9), line 16, after "person" to insert the following:
"other than the accused".
Amendment No. 43 reads:
In page 15, between lines 28 and 29, to insert the following new subsection:
"(10) A document required by this section to be served on the accused shall be served personally on the accused and, if he is represented by a solicitor, by delivering it to his solicitor."
If amendment No. 42 were accepted subsection (9) would read:
A document required by this section to be served on any person other than the accused may be served——
(a) by delivering it to him or to his solicitor,
(b) by addressing it to him and leaving it at his usual or last known residence or place of business or by addressing it to his solicitor and leaving it at the solicitor's office,
(c) by sending it by registered post to him at his usual or last known residence or place of business or to his solicitor at the solicitor's office, or
(d) in the case of a body corporate, by delivering it to the secretary or clerk of the body at its registered or principal office or sending it by registered post to the secretary or clerk of that body at that office.
These are the various ways in which it can be served: by delivering it to him, by addressing it to him, by sending it by registered post or, in the case of a body corporate, by delivering it to the secretary or clerk. If amendment No. 43 were accepted the new subsection would read:
(10) A document required by this section to be served on the accused shall be served personally on the accused and, if he is represented by a solicitor, by delivering it to his solicitor.
Essentially it is to make a distinction between the delivery of a document to any person who is involved in the proceedings and the accused person. In amendment No. 43 we are proposing that a document required by this section would be served personally on the accused. The purpose is to ensure that the document is served personally on the individual. In the event of such a document being available, the accused should have the opportunity to have it served personally on him.
The first of these amendments seeks to give discretion to the court to extend the period of 21 days in the interests of justice where that is required. It is not suggested that the 21 days will suffice in general but an occasion may exist where such a period should be extended. It must be remembered that the State is often given an extended time in which to serve the Book of Evidence and, in our view, a similar discretion should exist in this section to ensure fairness. The second amendment is intended to ensure that no serious prejudice exists against an accused due to his failure to comply with the requirements of the section. More particularly, it is intended to ensure that no accident arises whereby an accused fails to receive actual knowledge of the matters required to be served on him. As the section stands, notice could be given by sending it to the last known residence of an accused at a time when he is in custody, away from that residence or ill in hospital. One must have reasonable regard to the rights of defence in a section like this which is designed to facilitate the prosecution. The section will greatly facilitate the prosecution, the State and the administration. In a case where there is such an effort to facilitate the prosecution and where there will be substantial benefits arising from the section generally in terms of efficiency, it appears to us that this amendment is a reasonable one.
The section as proposed does not appear to ensure that an accused will receive the notice intended for him. At present the Book of Evidence is required to be served personally on an accused. Therefore, how can anyone object to the amendment we have proposed which will also require that such a notice will be given personally to the accused rather than leaving open the chance that the accused will fail to receive the notice intended for him? The failure of an accused to respond within the 21 days referred to in subsection (2) (d) may seriously prejudice him. The requirement that it be served personally will ensure that an unintended injustice will not occur. That is why we propose that the document required by this section should be served personally on the accused.
This is an important section and we welcome it. It is part of the general tidying up of the administration of justice. The Incorporated Law Society had some reservations about subsection (11) which states:
This section shall also apply to a written statement made outside the State with the omission from subsection (2) (b) of the words from "and that he made the statement" to the end of the paragraph, and the omission of subsection (1).
They raised questions about the advisability of including this subsection which applies to written statements made outside the State and perhaps the Minister will let us have his views on that.
Section 20 deals generally with proof by written statement. It proposes that in criminal proceedings, other than the preliminary examination of an indictable offence, written statements will be admissible in evidence in the same way as oral evidence if certain conditions are satisfied. These are set out in subsection (2) (d) which includes the condition that none of the other parties or their solicitors objects to a statement being tendered in evidence within 21 days of being served with a copy. I have introduced an amendment to ensure that the notice be served personally so that an individual will have an opportunity to object if necessary.
If a statement is being tendered in evidence subsection (4) requires certain other conditions to be fulfilled; for example, if it is made by a person who cannot read it, it must be read over to him before he signs it and be accompanied by a declaration by the person who read it to the effect that it was so read. The whole section is about the provision of these proofs by written statement and safeguards are included in the section to ensure that where a new measure is introduced there will be appropriate safeguards. We have tabled amendments to deal with this matter.
This Bill has been debated and discussed very widely; some people feel already that perhaps it has been debated far too widely and for too long and that too much has been written about it. Despite that, the value of this section has not been appreciated fully. If section 20 goes into operation as it stands it will have the effect of reducing the cost of criminal proceedings which are commenced by the DPP or by Government Ministers by between £10 million to £15 million a year and I am surprised the full implications of this have not been realised. It is most important and valuable in terms of streamlining the legal system.
Section 20 (6) refers to proceedings in the Central Criminal Court, the Circuit Court and the Special Criminal Court. Taking subsections (1) to (4) on their own, it would give jurisdiction to use this procedure in the District Court. Subsection (5) states:
Notwithstanding that a written statement made by any person may be admissible as evidence by virtue of this section—
(a) the party by whom or on whose behalf a copy of the statement was served may call that person to give evidence, and
(b) the court may of its own motion or on the application of any party to the proceedings, require that person to attend before the court and give evidence.
(6) an application under subsection (5) (b) may be made before the hearing in a case in which the proceedings are in the Central Criminal Court, the Circuit Court or the Special Criminal Court and, for this purpose, the powers of the Central Criminal Court shall be exercisable by any judge of the High Court and the powers of the Circuit Court shall be exercisable by any judge of that court.
Therefore, it may give the jurisdiction to use this particular procedure in the District Court and perhaps the Minister would deal with that point. It involves the giving of uncontested evidence by written statement and thus dispensing with the attendance of such witnesses in court. This is not new, it has worked successfully in breathalyser cases and the Revenue proceedings for penalties for the non-filing of PAYE, PRSI and VAT returns. Having seen how well it worked in these cases, without any suggestion of a defendant being prejudiced, I see no obstacle to the proof by written statement in Garda cases such as no tax, no tax displayed, no licence, no insurance or the breach of the road traffic regulations relating to lights, tyres and registration numbers, etc. These are areas in which proofs by agreed and uncontested evidence by written statement could apply.
Taking these items alone, one can see how many Garda man-hours and time could be saved by not having to travel to court. We often talk here about the need to save money. Sometimes we think there are a sufficient number of gardaí in the station but, on further examination, we often find that the number involved in court cases is so large that it greatly reduces the effectiveness of the gardaí on the ground. This measure would have a very substantial effect in reducing the time which gardaí would be required to spend in court.
It would be fairly simple for the originals of the duplicated statements to be signed, one served with the summons and the other lodged in court with the original summons. The time of the court may not be reduced but it will save swearing in time and the time wasting cross-examination of a witness solely because he is there. For example, take a case of a Dublin visitor who goes to Kerry and whose car is involved in damage to property or person. He is not interviewed in Kerry and a garda in Dublin interviews him. The driver admits the offence but the garda must attend at Tralee to prove this which involves travelling time and expenses and time lost in relation to other work which could be done. This can be repeated over and over again. There is also the case of a detective who is transferred from Cork to the Special Branch in Dublin Castle who has many unfinished cases and has to go back to Cork merely to prove an arrest or that he was the person who took the statement. These are issues which are not in contention and proof by written statement would cover this particularly well. It also applies to civilian witnesses, say, the owner of a house which has been broken into. The owner has to attend court, maybe several times, to say that he or she gave no permission for the house to be entered or for the goods to be stolen. If a written statement was accepted this could save the employer money also.
The proposals are not restricted to Garda cases but cover the whole spectrum of departmental prosecutions. Various simple examples come to mind such as the prices section of the Department of Industry, Trade, Commerce and Tourism who send investigators to make purchases and, if they are overcharged, a summons is issued some weeks later. Each of these will normally be expected to give evidence in court so it is easy to calculate the costs involved. A Department of Agriculture inspector has to check for uncastrated bulls. It is policy that he should be from a different province and there are many costs involved if he has to appear in court. There are numerous cases where, under existing procedures, prosecutions under the Air Navigation Act, Fire Services Act, Planning Acts, Street Traders' Acts and others, an army of witnesses must be called to prove small technical matters which are not in contention. I hope that, in future, such people will be able to remain at work and give evidence by written statements.
The hidden costs related to the loss of man-hours, the saving in overtime by having staff available rather than in court, the extra production and the smoother operation of the District Court system will save much more money in public expenditure than many of the other fairly unsavoury charges that are applied nowadays as in the case of the attempt to apply water charges. If we look at this as a measure which would save funds, we can see how a major contribution can be made by examining the procedures and processes and introducing measures such as this which make the system much more efficient without anybody losing his rights. From calculations which we have made, the saving would be over £10 million per year but the Minister might have more accurate information in that regard.
We welcome the section, it is long overdue and obviously has the support of both sides of the House. We will be glad to see it in operation. The Minister has framed it well but we suggest these amendments as an attempt to improve the section and we hope the Minister will consider them seriously.
There are two small points to which I draw the Minister's attention. The first relates to the question of what "proceedings" are. If a statement of this kind is taken and used in evidence with the consent of the accused person, that would be a valid procedure only in that particular proceedings, in other words, in that particular trial. If, for example, an accused person is convicted, goes to the Court of Criminal Appeal and they order a new trial, quash or in some way reverse the previous proceedings, I should like it to be made clear that it would be necessary for this procedure in regard to the statement to be gone through all over again if a new trial is ordered. I hope that is the intention but I should like the Minister to clear up this point. He may not necessarily say it in so many words in the Bill but the intention should be made clear that, in the event of a second proceedings arising from the same set of facts that the whole procedure about the making of a statement and giving the accused person a chance to object to it would have to be gone through again. On the second proceedings, the accused person might be advised of a different line of defence, or different aspects of the case might occur to him which might make it necessary for him to require the attendance of the witness concerned in order to make him available for cross-examination. I do not ask for this statement of intent to be proferred in the second proceeding. That should be without prejudice to the accused person's right to object to it then, or to ask the court to have the witness recalled and have him cross-examined.
The second point I want to make deals with a slightly different aspect of the same idea. Even within the same proceedings where there was already only one trial it should be clear, and it would be worth making it clear in subsection (5), that where a witness's statement made under this section is admitted it remains open to the party affected by the statement to apply to the court, not merely immediately at the time of the admission of the statement but at any time thereafter, to have the person who made the statement produced in person for cross-examination. No doubt this might be equally important to the State.
Suppose the person is not just some official or a member of the police force, but has evidence of a more or less routine type relatively, say, a ship's doctor or a ship's mate or a ship's officer who might quite accidentally happen to be a witness to something which is not necessarily absolutely germane to the State's case but nonetheless is an essential link in the chain. He sails off to Valparaiso and will be away from Dublin for seven or eight months perhaps, and the State makes sure there is released from London to the port of Dublin the statement which this section elicited.
The trial then proceeds over several days, or possibly weeks, and takes such a course that, at the point where a statement is admitted, the accused person's legal adviser has no problem. He can reasonably make a request that the person who made this statement should be present and available for cross-examination, but the trial may take a twist which may suggest to the accused person that it would be no harm to have this person present so that he could question him about some quite different aspects of the management of the ship in the port of Dublin about which he had already made a statement. In other words, something has now surfaced in the prosecution's case which had not so surfaced at the time when the statement was admitted.
Now, the subsection does not explicitly exclude this. It does not even suggest that, once the statement is admitted, the court or any other person may require the personal attendance of the person who made the statement. It would be no harm if a line were put into the section which made it clear that any such application, requirement or request might be made at any stage in the proceedings subsequent to the admission of the statement.
(Limerick East): This section allows a written statement to be admitted in evidence in criminal proceedings, except in the preliminary examination of an indictable offence in the District Court, to the same extent as oral evidence would be admissible, provided certain conditions are satisfied. The purpose of this provision is to allow proof by written statement of matters that are not disputed by any of the parties involved but which at present must be formally proved by oral evidence.
Deputy Woods has outlined a whole list of circumstances where this new procedure could be used to the benefit of the parties involved, to the benefit of the State and, untimately, to the benefit of the taxpayer. For example, medical personnel might give formal evidence of the time at which a person was admitted to a hospital. A member of the Garda might have to prove that they guarded the scene of a crime at particular times. There would be no contention about this. It would not be disputed except that such persons might be required to appear in court and give oral evidence. This provision will result in speeding up the proceedings. It will save time. It will also be more convenient for witnesses. One has to quantify the actual savings. Obviously it would apply only in matters that are not being disputed. In anything that goes to the heart of the matter the witnesses would be present in court to give oral evidence because these matters would, I am sure, be contested on most occasions.
Deputy Kelly asked whether procedures would have to be gone through again in the case of an appeal. The answer is yes. Even if a statement were submitted and subsections (5) (a) and (b) were not invoked, the opportunity should be given to the parties in the case to request the court to allow someone to attend personally if the case were to take a particular twist which necessitated the presence of such a person for the purpose of cross-examination. I think subsection (5) (b) allows for that. The court may, of its own motion or the application of any party to the proceedings, require that person to attend before the court and give evidence. The power is, I think, there under subsection (5) (b). It has been suggested there might possibly be a line added. I shall have a look at that. I think the position is already covered.
On Deputy Woods's amendments, he has welcomed the section and dealt very fully with it. I do not intend to go over it all again. Subsection (5) contains the fail-safe mechanism. The section provides that, notwithstanding that a written statement made by any person may be admissible in evidence, the party by-whom or on whose behalf a copy of the statement was served may call the party by whom the statement was made to give evidence and the court may, on its own motion or in response to any application by any party to the proceedings, require the particular person to attend before the court and give evidence. Any party can make an application to the court for the attendance of the person who made the statement, and the court can decide. That person will then give evidence orally and that overrides the other provisions in the section. Deputy Woods suggested a period of 21 days during which a person could object to a statement being tendered in evidence. That is probably unnecessary. But even if there were not an extension period, the applicant can invoke subsection (5). Any person who wants to call a witness to appear to give evidence orally can invoke subsection (5) to do so.
Deputy Woods's other amendment proposes that where a document is to be served on the accused it should be served personally and, if he is respresented by a solicitor, by delivering it to his solicitor. The subsection as it stands allows a document to be delivered to the accused or to his solicitor. Presumably "delivery" means personal delivery. However, it also authorises service by addressing the document to him and leaving it at his usual or last known place of residence or business or by addressing it to his solicitor and leaving it at the solicitor's office. It authorises service by registered post on him or his solicitor. I presume it is designed to ensure that the accused is not prejudiced by not having the notice brought to his attention or to the attention of his solicitor. In the case where it was left at his house and he was not told about it, that would be covered. I believe the object is met by subsection (5). Similarly, if he does not get the notice and does not object but when he comes into court he or his solicitor, pointing out that they did not get the notice, seek to invoke subsection (5) and want a particular witness to attend to give evidence, the failsafe mechanism is there.
I am inclined to accept one aspect of the amendment, where a person is not represented by a solicitor. There seems to be a very strong case for requiring personal service on the accused where he is not represented by a solicitor. I find that a convincing case and I will consider bringing back an amendment on that aspect of it on Report Stage to facilitate that objective of Deputy Woods. If I were to do that the combination of that and subsection (5) would certainly make it absolutely watertight.
Deputy Woods also referred to subsection (2) and a comment by the Incorporated Law Society. That subsection allows a statement made outside the State to be given in evidence where there is agreement to this with the other parties to the proceedings. This could save the expense of bringing somebody from a foreign country to prove some formal matter not in dispute. I believe it is a useful provision and would save a great deal of expense. The relevant point is that it can only be done with agreement where matters are not in dispute. This was brought to public attention at the time a particular crime was committed in the Lebanon. The political situation in that country made it very difficult for people to attend court or for people from here to go to the Lebanon.
The House can see the type of difficulty that could arise in certain circumstances. By agreement the application of this section to people outside the State would be in ease of them and in ease of the State. I do not accept the point made by the Incorporated Law Society, that is if I understand correctly their objection to subsection (2). I am grateful to Deputy Woods for what he has said. He has explained the matter very fully. I hope his projections and savings are accurate. Obviously, it is very difficult to estimate, but apart from the savings to the State this section will be in ease of the accused in many cases. Certainly it will be in ease of witnesses where matters are not in contention. Concern was expressed by Deputy Woods about the 21 day extension but I believe subsection (5) gets over the problem he outlined. On the question of the personal service of notices on solicitors or accused persons, I undertake to examine this. I believe a convincing case has been made for the personal service of the documentation on the accused where he is not represented by a solicitor. I accept that concept and I will examine the possibility of bringing in an amendment on Report Stage on that aspect.
Deputy Kelly sought clarification of the first sentence of the section, asked about events changing and whether, apart from invoking subsection (5) initially where the written statement was admitted in evidence, it could be invoked subsequent to the admission. I believe it can. However, I will look at the matter again to see if it is necessary to add some words, as the Deputy has suggested. I believe subsection (5) (a) can be invoked.
There is a requirement on persons where there is an objection lodged against a written statement that such objection should be made within 21 days but it does not appear that there is a requirement that any level of notice should be given to the interested parties. There is no time specified prior to a case entering the courts during which the documents should be served on people. What is the position if people are away and the document is served three days prior to the court? The case could be based on an unchallenged document.
(Limerick East): It is implied that there must be a period of 21 days.
Is there a need to have that specified or to give a reasonable opportunity to people to prepare a case given that a case could be based on written evidence alone if there was not an opportunity for answer?
(Limerick East): It must be served in advance of proceedings and, by implication, it must be served 21 days in advance of proceedings.
Will the Minister have a look at that provision because without a protection written in a problem may arise.
(Limerick East): I will.
I welcome this section for all the reasons that have been specified. In particular this would save the time of the gardaí who have to attend court to make, on occasions, very innocuous statements. I have two queries for the Minister. Subsection (7) states that so much of any statement as is admitted as evidence by virtue of this section shall, unless the courts otherwise directs, be read aloud at the hearing. Will the Minister explain that precisely? Does it mean that a statement, or portions of a statement, which will be admitted as evidence will be kept from the court or from the hearing of those involved in the case? I assume that if a witness attends and gives evidence the evidence will be given out loud. Therefore, I do not think there is any necessity for a court to direct that a portion of a statement should not be read out loud.
In the course of his response the Minister mentioned that the need for section 20 was highlighted by events that occurred in the Lebanon. I note that section 28 states that the provisions of this Act relating to criminal proceedings shall not apply in relation to a trial by court-martial except under regulations made by the Minister for Defence. It would seem that while the situation in the Lebanon brought about this section, members of the Defence Forces will not benefit by it.
(Limerick East): We would not have the authority to apply this section to courts-martial. That is why the section is phrased in such a way. Because of events in the Lebanon the concept of admission of evidence by written statement got a public innings on that occasion. I was not saying that the proceedings proved the necessity but it was a legal concept which was brought to public attention in a rather dramatic way.
Subsection (7) states:
So much of any statement as is admitted as evidence by virtue of this section shall, unless the court otherwise directs, be read aloud at the hearing.
The normal practice is that the full document would be read aloud at the hearing in accordance with subsection (7), but if it was a very long document the court might decide that a summary was adequate since it was agreed anyway. The court would have the discretion but the normal practice would be that the full document would be read out.
I welcome the section and the fulsome observations made by Deputy Woods. I should like to see the amendments sympathetically considered. There is a safeguard in amendment No. 41 which it is important to incorporate because there are many different reasons why the period might be overrun, apart from slow solicitors and such like. Amendments Nos. 42 and 43 should also be considered because of the problem of delivery not being ensured. I do not know what the situation would be if a case arose between a client and a solicitor in the event of the solicitor not acting in time. The amendments might be useful. I gather from subsection (2) (b) that whoever is making the statement would have the benefit of legal advice. Therefore this caution can be very well explained to him, except in the case of someone not taking legal advice. That would be rather unlikely.
Most of the eventualities are taken into consideration but I would ask the Minister to consider the comments that have been made, particularly in regard to ensuring that the accused has proper notice and the delivery of the book of evidence. Generally the section is welcome.
It is important that we should welcome the positive sections of this Bill. I agree with Deputy Woods regarding his optimism about saving money. Perhaps the money could be put into the back-up system needed within the courts and the judicial system.
The Minister says that subsection (7) is to allow for the reading of a summary of a long statement. The subsection refers to "so much of any statement as is admitted as evidence", so it is part of the evidence either of the prosecution or the defence. That part of the statement which is admitted as evidence shall be read aloud at the hearing, unless the court otherwise directs. The court may direct that sections of the statement or all of it should not be read aloud. I do not think the section makes the point which the Minister claims for it, that a summary will be read. The prosecution or the defence may be anxious that the full statement be read before the jury. If a witness is attending in person, clearly his full statement will be heard by the court. I am anxious to have the subsection clarified so that it does not appear that a judge who is somewhat impatient at the length of the statement can have it chopped.
I understand that section 20 has been accepted in principle by the Opposition spokesman, Deputy Woods. I was called out of the House and did not hear the Minister express his attitude to amendment No. 41 which states:
In page 14, subsection (2) (d), line 22, after "days" to insert the following:
"or such further period as may be allowed by the Court to which the accused has been returned for trial where the Court sees fit".
It is a very worth-while amendment and I would ask the Minister for some indication that he will look at it again on Report Stage. It does much to improve the subsection and I would urge him to consider it.
I understand that the Incorporated Law Society made a submission in relation to subsection (11) regarding the application of the section to a written statement made by a person outside the State with the omission from subsection (2) (b) of the words from "and that he made the statement" to the end of the paragraph, and the omission of subsection (10). The Minister might wisely have a look at the very reasonable submission by the Incorporated Law Society. The generality of the section did not come within my criticisms of the more dangerous elements in the Bill. I do not see it as an attack on civil liberties and I support our spokesman with regard to this section.
(Limerick East): Section 28 allows the Minister for Defence to apply the Act to courts-martial and I presume he will do so. On the question of reading the full statement in court, the obligation and requirement under subsection (7) is that the full statement should be read unless the court otherwise directs. The discretion is in the hands of the court.
At the risk of raising the temperature of the House, I would refer to paragraph 15 of the ninth report of the Criminal Law Revision Committee published in 1966 which states:
In general a statement tendered in evidence under clause 1 should, in our opinion, be read aloud at the hearing, because the statement takes the place of ordinary evidence and it is desirable that the public, as well as the court and jury, should hear all the facts on which the decision is to be reached. But it seems unnecessary to make this an absolute requirement. Sometimes the court and the parties may think it enough that the effect of a statement or of several statements should be summarised by the party who tenders them. This may be the case, for example, where a series of statements is produced in order to prove the links in a chain of identification. Again a statement may be long and technical, while its effect could be summarised in a few words. It seems to us right to require that the statement should be read aloud unless the court otherwise directs.
Subsection (7) creates a requirement for the statement to be read out in full but it does give a discretion to the court where the court thinks it appropriate. The Criminal Law Review Committee saw the need for such a provision.
Subsection (5) of the section states:
Notwithstanding that a written statement made by any person may be admissible as evidence...
Any party to the proceedings may require that somebody attend and give evidence orally. That provides the fullest possible safeguard but I do not take the point about the service of notice on an accused person where he is not represented by a solicitor and I intend coming back with that.
I am trying to clear in my mind the point the Minister is making. Earlier the Minister kept talking about 21 days. It was "or such further period". It was an open clause leaving it as the court saw fit. Section 20 (1) says:
shall, "be admissible as evidence" to the like effect by that person.
Then there is subsection (d) which reads:
none of the other parties or their solicitors, within twenty-one days from the service of the copy of the statement, serves on the party so proposing a notice objecting to the statement being tendered in evidence under this section.
So it places an obligation on the accused to serve notice that they are objecting to it within 21 days. If they object there and then there is no problem. What I was trying to cover was a situation which perhaps we cannot see at the moment where a person cannot, for one reason or another, object within the 21 days, that for those exceptional cases it would be left to the court to extend the period, as it sees fit, for that objection. That seems to be fairly clear in that section as it stands in (1). What the Minister is saying is that subsection (5) has an overriding effect on it. Subsection (5) reads:
Notwithstanding that a written statement made by any person may be admissible as evidence by virtue of this section—
(a) the party by whom or on whose behalf a copy of the statement was served may call that person to give evidence, and
(b) the court may, of its own motion or on the application of any party to the proceedings, require that person to attend before the court and give evidence.
Subsection (5) (b) would seem to cover a situation where the court may find it necessary to require someone to attend before the court and give evidence. That may cover it. I am not quite sure. I am quite clear that the clause as it stands is quite an inoffensive clause. It seems to add to the section rather than create any problems. The section would read:
none of the other parties or their solicitors, within 21 days or such further period as may be allowed by the Court to which the accused has been returned for trial where that Courts sees fit.
It seems to give an option to the court which is a fail safe, if you like, within the section itself and to extend the period. That extends the period. The other is a question presumably of being in court and then saying; "We want to call that person in any event". It may be sufficient for the court to be able to extend the period. I would see our proposal as improving subsection (2) (d) as it stands.
I have been advised that sections 1 to 4 could have the effect of making these measures usable within the District Court. The Minister has said it would not apply to the District Court but if section 1 to 4 have that effect it might be advisable to have subsection (2) (d) comprehensive and complete in itself. I see it as clarifying and improving subsection (2) (d) and not causing any difficulty.
(Limerick East): First of all, there must be consent between the parties involved as to the admissibility of evidence by written statement rather than by personal appearance in the court. Subsection (2) (d) allows a 21 day period after notice is served during which somebody who does not agree can object. If they object the evidence cannot be admitted by written statement. If they do not object the matter goes to court, evidence is admitted by written statement but subsection (5) says that. Notwithstanding that a written statement made by any person may be admissible as evidence by virtue of this section, subsection (5) (b) goes on to say, in effect, that anybody who is a party to the proceedings may make an application to require people to attend personally and give evidence rather than accepting in the court that the evidence can be by written statement. I have no objection to the principle of the amendment but it seems to me to add an extra 21 day period in which one can object.
It is not 21 days.
(Limerick East): I am sorry, to add an extra period. It seems to be bringing in a complication because an application would have to be made to the court for the period of extension and since the opting out clause is provided in subsection 5 (b) anyway it is an unnecessary complication and does not really add any safeguard. I know the Deputy's intention is that it would be in ease of the accused, or to prevent the accused being prejudiced by his own or his solicitor's failure to object to the admissibility of a written statement within the 21-day period. Even if he himself or his solicitor fails to object within the 21-day period he or his solicitor can come into court and, under subsection (5) (b) make an application to the court for such persons to attend and give evidence personally rather than by written statement. I do not think there is a problem there.
I can see the difficulty in the other amendments as well. Again I think subsection (5) (b) covers most — the fact that we have subsections (5) (a) and (b) makes amendments Nos. 42 and 43 unnecessary except in one particular respect, that is where an accused is not represented by a solicitor. As the Deputy says he might be in jail. The notice might go to his prior address. He would not be represented by a solicitor. He would go into court and he would not know anything about proof by written statement or that he had the right to object. The case could proceed, and he could allow it to proceed, through ignorance because he did not have legal advice in the court. I accept that part of the Deputy's amendment and I shall try to come back with an appropriate form of words in order to amend the section and take that point on board.
I thank the Minister for being forthcoming in that respect. If the Minister is giving a firm undertaking on that aspect then I shall accept that undertaking. I would feel fairly strongly about amendments Nos. 42 and 43 because amendment No. 42 is really consequent on No. 43. I see no reason why it should not be the case. In fact I would rather that it would be served in any event on the person personally but I can accept that if a person is legally represented and if that legal representative is doing his or her job effectively then there would not be a problem. But certainly there would still remain a problem in the case of a person who was not represented by a solicitor. This takes us back to the many cases in which people may not be represented, especially in this kind of statement because very often these statements are in relation to fairly simple matters — they will not necessarily be substantial matters — and a person may decide that it is not necessary to be represented.
As far as the first one is concerned I would ask the Minister to examine that situation again. I can see quite clearly that by including it within subsection (2) (d) there is no doubt about it, that its effect is quite clear. I can also see that subsection (5) has an overriding effect. I accept for the present what the Minister says in relation to that and would ask him to look at it again for Report Stage. I shall do likewise.
In relation to the other amendment I would be prepared to accept what the Minister says at this stage and not bring everybody in to vote. However, I should like the Minister's firm assurances that he will return with an amendment along those lines to cover a person who is not represented by a solicitor. Whether it is always feasible to know whether a person will be represented in these circumstances is another question but we can examine that again in relation to Report Stage and ascertain the impact of the Minister's suggestion then. I think I understood the Minister to say earlier it would not apply to the District Court. Is that correct?
(Limerick East): It does but I cannot see it having major implications for the District Court.
The Minister had been talking about the extent to which it would apply. Fair enough. This is a useful section and one we should all welcome. From the calculations we have done it would appear that over £10 million will be saved. Along with the suggestion of Deputy Barnes it might be possible, in the administrative and other savings to be effected, to devise some sort of panel of duty solicitors whose expenses could be met out of such savings. Perhaps the Minister does not like to admit to too many savings lest we seek too many of these safeguards.
(Limerick East): We might have to create a Funds of Criminal Justice Bill and dispense money all over the place.
That is right. The trouble is that they would be fairly scattered and it would be difficult to lay one's hands on such funds.
I would be prepared to withdraw amendment No. 41 on the grounds that we will have a look at it again on Report Stage and amendments Nos. 42 and 43 also on the grounds that the Minister has given us a firm assurance that he will introduce an amendment which will cover the situation in which a person is not represented by a solicitor. On that understanding I withdraw those three amendments. I take it I am correct in assuming that understanding from what the Minister said? I accept the Minister's nod of his head as meaning "yes".
Amendment No. 44 has already been fully debated with amendment No. 21 in the name of the Minister.
(Limerick East): I move amendment No. 44:
In page 15, subsection (10), line 36, to delete "£800" and substitute "£1,000".
Amendment No. 45 has already been fully debated with amendment No. 35.
(Limerick East): I move:
In page 15, subsection (10), line 39, after "years" to add "or to both".
Is it proposed to take a break any time this evening or are we going to work through until 10.30 tomorrow morning?
I have no control over the debate, Deputy.
I might suggest that we adjourn for about three-quarters of an hour for a cup of tea. I do not mind but——
(Limerick East): Would we take section 21 and then break?
What is section 21 about?
(Limerick East): Proof by formal admission; it is very similar——
It is very closely related. The only danger is that the restaurant may be closed but I do not really foresee any difficulty.
(Limerick East): There are no amendments.
Had we been wide awake it might have been possible to have taken both sections together for discussion.
(Limerick East): This section is intended to dispense with the need to produce formal proofs of matters that are not disputed and that the party concerned is willing formally to admit. It applies only to formal admissions deliberately made for the purpose of waiving proof of the fact admitted, not admissions made by the defendant by word or conduct in an informal way and which he may seek to deny or to suggest were given without proper caution.
Subsection (1) contains the two basic provisions that — subject to conditions specified in the following subsection — facts may be admitted and that the admission shall, as against the party making it, be conclusive evidence of the facts so admitted.
Subsection (2) sets out the conditions. They include conditions to the effect that: (a) the admission, unless made in court, must be in writing; (b) if the admission is made beforehand on behalf of or by an individual, it must be either made or approved by his counsel or solicitor; and (c) an admission made in court on behalf of an individual must be made by his legal representative, or, if made out of court, approved by such representative.
Subsection (3) provides that an admission made for the purposes of particular criminal proceedings shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to the same matter, for example at an appeal or retrial.
Subsection (4) provides that an admission may, with the leave of the court, be withdrawn. It is not the same as the previous section but it has a similar intent where proof can be admitted by formal admission.
We welcome this section. The law at present requires that whether the accused wishes it or not matters must be proved no matter how trivial or non-contentious. This has the effect of prolonging a trial unnecessarily and could be defeating justice by causing delay and hardship to accused persons, giving rise to enormous public expense which this section will help to avoid. I have not calculated the expense of this, but obviously further money is coming to the Minister and his team of gardaí.
He will probably have a new suit.
The books of evidence may run into hundreds of witnesses. Therefore, gardaí sit around in courtrooms waiting to be called to give evidence which may last only half a minute or a couple of minutes. The accused may be quite happy to accept that evidence, yet the gardaí must attend and wait around. Meanwhile criminals roam the streets free and the taxpayer pays the enormous cost of keeping gardaí waiting in the courtrooms when they should be out on the streets and in the communities. Here we have another example of how the streamlining of the system can result in gardaí being more available on the beat and in the community to do the work we all want them to do. Criminals are getting more and more time to roam around in the community and be involved in housebreaking and so on, and we all know from experience that the members of the Garda Síochána have to be in court and go through all sorts of technical procedures which absorb an enormous amount of time.
We have seen from statistics that in 1983 the volume of burglaries and house breakings has jumped enormously, by over 50 per cent since last year in the value of goods stolen. The business being done in that line is developing rapidly and it calls on this House to take steps to curb the activities and freedom of the criminal and give gardaí greater freedom within the community where they are needed. The House can be proud of this measure because it will give the gardaí that freedom. We could say that last year was the year of the burglar because of the large number of housebreakings and burglaries which occurred then. Obviously the burglar had far too much freedom while gardaí for one reason or another were held down and unable to be on the beat. Where they have been more intensely on the beat activities in relation to housebreaking have been curbed. The measures in this section will be particularly valuable in making it possible for gardaí to be on the ground in the community.
We should gain substantial benefit from sections 20 and 21 when they go into operation. I hope that they will help the Minister in his work and also the Garda Commissioner to provide more men within the community. We hear repeatedly from the Garda about the amount of time they lose through these technical procedures and the extent to which they are frustrated by the way in which the system operates at present. It should go out loud and clear to them and to the community that the House is taking measures which will assist the situation and will deal substantially with delays and the waste of time which are occurring. It is only fair that that be recognised, because the benefits will be hidden as they will be spread throughout the day and over the country.
(Limerick East): Subsection (1) of this section abolished the right of an accused to make a statement without being sworn. It applies to proceedings at the preliminary examination as well as at the trial itself. Subject to the exceptions in paragraphs (a) and (b) and subsection (2), any evidence he gives must be on oath and he will be liable to cross-examination in the same way as any other witness.
Under paragraph (a) an accused who is not legally represented may make any statement, without being sworn, on any matter about which a legal representative could make a statement on his behalf, if he were represented.
Paragraph (b) provides that the section does not affect any proceedings commenced before the commencement of the section.
Subsection (2) preserves the right of an accused to make an unsworn statement (a) where he is required by law to make a statement personally, for example, to plead guilty or not guilty to the charge or (b) where he makes a statement after conviction, in mitigation of sentence.
Subsection (3) paragraph (a), repeals section 1 (h) of the Criminal Justice (Evidence) Act, 1924, which preserved the right of a person charged to make an unsworn statement. This is purely consequential.
Paragraph (b) repeals section 7 (4) of the Criminal Procedure Act, 1967. This provision requires the justice to ask the accused if he has anything to say in answer to the charge. He cautions the accused that... "whatever he does say will be taken down in writing and... may be given in evidence at the trial". It goes on to provide that the statement may be given at the trial without further proof...".
Accordingly, if section 7 (4) of the 1967 Act were not repealed the accused could make a long exculpatory unsworn statement at the end of the preliminary examination and it would be admissible at the trial. This would defeat the object of this section which is to require any of the accused's evidence at the trial to be given on oath.
Paragraph (b) of subsection (3) also makes a consequential repeal of a reference to section 7 (4) in section 8 (2) of the 1967 Act.
As regards the position of a person whose religious beliefs, or lack of them, do not permit him to swear on oath, the Oaths Act, 1888, provides that such a person may make an affirmation instead of swearing an oath. The Interpretation Act, 1937, provides that the word "oath" includes an affirmation in the case of a person whose religious beliefs require him to affirm instead of swearing on oath.
I understand that the right to make an unsworn statement dates from a period when an accused was not allowed to make a sworn statement. It was a provision introduced in ease of an accused. Subsequently the accused has every right now to enter a witness box and to give evidence on oath. Therefore, the right to a non-sworn statement is now an anachronism. Statements by an accused in court should be given under oath and be subject to cross-examination except in the exceptional circumstances I have outlined.
As this is another of the measures relating to trial procedures, I should like to take the liberty briefly to mention the fact that in regard to section 21, which has been dealt with, the Incorporated Law Society suggested that since the procedure seems to be reasonable they saw no reason why a further procedure — the notice to admit facts — should not be introduced. I would ask the Minister to consider that suggestion when considering the section between now and the Final Stages. In our rush to tea I omitted to mention that point.
In relation to the section before the House which proposes to abolish the right of an accused to make an unsworn statement, we cannot think of any practical reason why the provision should not be applied. Indeed, we welcome the section, though one is always concerned in making changes like this that someone will be disadvantaged, someone whom we cannot identify at the time of making the decision. However, we would agree that the right to make an unsworn statement and in that way to avoid being cross-examined is a ploy used often to "con" or mislead juries into accepting the untested testimony of an accused. We would have to ask why an accused should not say what he has to say on oath or on affirmation and thereby leave himself open to being cross-examined. It is unfair to ask a jury to accept or reject a statement that may at first hearing may appear very plausible but which is not open to being tested by way of the process of cross-examination. Therefore, in relation to proceedings at trials this change would seem to be a very good development and one which may be long overdue in the interest of justice on both sides. This is a mechanism which I have been told was used to avoid cross-examination. In that sense it is a technical weakness. I welcome the opportunity to correct the matter in this Bill.
(Limerick East): This section deals with the rearrangement of the order of closing speeches. Subsection (1) provides that the defence shall have the last word in all jury trial cases. At present they lose it if they call a witness to the facts other than the accused himself. The change is just in the order of closing speeches and not in the right to make them except that it will remove the present discretion of a trial judge to allow the prosecution to make a closing speech even where the accused is not represented.
As regards the restriction of the section to trials on indictment, the position is that in the District Court the matter will be provided for by rules of court. This provision will not affect proceedings instituted before the commencement of the section in the absence of provision to the contrary. This is the effect of section 21 of the Interpretation Act, 1937. The new procedure will apply notwithstanding the provisions of section 2 of the Criminal Procedure Act, 1865 which provides that the defence must make a closing speech after the conclusion of the opening of their case and examination of witnesses.
Subsection (2) repeals section 3 of the Criminal Justice (Evidence) Act, 1924 which provides that the fact that the person charged has been called as a witness does not confer a right of reply on the prosecution. The intention is to allow the defence to have the last word. A jury who are expected to find somebody guilty beyond reasonable doubt should hear the voice of the defence last.
We welcome this section. Anyone interested in civil liberties and the rights of those accused should be very quick to welcome the section. The order of closing speeches is anomalous at present as the explanatory memorandum indicates. The purpose of the section is to remove the anomaly where by the right of the defence to have the last word depends on whether the defence has called a witness as to the facts other than the accused himself or a witness to character only. It ensures that the closing speech for the defence will be made after that for the prosecution. It does not alter the position in relation to the prosecution. They still have a right to make their closing speech. That is provided for under (a) in all cases except where the accused is not represented by counsel or a solicitor and does not call any witness other than a witness to character only.
The section is a reasonable one in the context of our legal system where the onus of proof lies on the prosecution. They still have a right to make a closing speech but the defence will always have the last word. This is as it should be. We welcome and support the section.
I suggest we take the section and amendments together.
I move amendment No. 46:
In page 17, between lines 38 and 39, to insert a new subsection as follows:
"(6) This section shall not operate while section 35 of the Offences Against the State Act, 1939, is in operation.".
This section seeks to introduce the concept of a majority verdict. Section 35 of the Offences Against the State Act was the one used to introduce the Special Criminal Court which is a tribunal of three judges. It was introduced by proclamation of the Government in 1972 on the grounds that it was not possible to have certain offences tried by jury and get verdicts because of the danger of intimidation of jurors.
The need for majority verdicts has not been proved so long as the Special Criminal Court continues to operate. When the court was introduced in 1972 Deputies O'Leary and Browne sought information from the then Minister, Deputy O'Malley, as to the reasons why it was brought into being. Deputy O'Leary asked the Minister to cite cases on which the Government based their opinion that the ordinary courts were inadequate to secure the effective administration of justice leading to their decision to introduce special courts. Deputy Noel Browne asked a similar question. The Minister replied:
I am precluded from referring to individual cases in which persons have been acquitted.
I would, however, draw attention to the fact that, when a jury has to be unanimous, each member of the jury that brings in a verdict of guilty is known to have supported the verdict and is thus a potential target for attack by associates of the convicted person. The possible threat of retaliation assumes new proportions when courthouses are picketed by persons in a barely-veiled atmosphere of intimidation.
The Deputy appears to be quoting from the Official Report. Will he please give the reference?
June 15, 1972.
The introduction of the Special Criminal Court in June 1972 was by proclamation of the Government. The reasons given were that there was a need to ensure that persons could be tried and jurors would not be intimidated. It was felt that the fact that unanimous verdicts had to be achieved left jurors open to intimidation. We would argue that so long as the Special Criminal Court continues in existence it is unreasonable to claim that it is necessary to introduce majority verdicts now.
The Irish Council for Civil Liberties are opposed to the idea of majority verdicts in principle. They argue that the implication of subsections (2) and (3) that a court need not accept a jury's verdict is also a radical new departure. My amendment does not affect the wording of the section. It simply asks that the section would not be effective so long as the Special Criminal Court continues in existence. In other words, that the unanimous verdicts continue to apply in the courts for as long as the Special Criminal Court continues as it is.
(Limerick East): I would like to deal first with the section and then with the amendment. At present the verdict of a jury in a criminal trial must be unanimous. This section is intended to deal with the possibility of intimidation of jurors and also to obviate the need for expensive and time-consuming re-trials where a small minority of jurors fail to agree with the majority.
Subsection (1) provides for majority verdicts at criminal trials where the jury consists of at least 11 members and at least ten agree on the verdict. A verdict of 11-1 or 10-2 will therefore be accepted by the court. As the Deputies probably know, with 12 jurors empanelled and if one is sick and absent, the trial can continue with ten. The proposal is that a verdict of 11-1 or 10-2 will be accepted by the court. The majority verdict applies to acquittals as well as convictions. Under section 23 of the Jurors Act, 1976, a trial may continue as long as the number of jurors is not reduced below ten. The section will not affect this provision and if a jury is reduced to ten, for example, through illness, the verdict, as at present will have to be unanimous. The proposal is that there can be a verdict of 11-1 or 10-2, or 10-1 but if there are ten on the jury the verdict would have to be unanimous.
Subsection (2) requires that before a verdict of guilty may be accepted the foreman of the jury must state in open court whether the verdict is unanimous or by majority, and if by majority, how many jurors agreed with the verdict. Subsection (3) is designed to ensure that all aspects of a case are thoroughly considered by the jury before bringing in a majority verdict. A majority verdict will not be allowed unless the jury have deliberated for at least two hours, or for such longer period as the court things reasonable having regard to the nature and complexity of the case. Deputy De Rossa adverted to this and said this is a new concept that is being introduced. The foreman of a jury can come back into court and say they have reached a majority decision but if they do that within two hours or for such period as the court thinks reasonable having regard to the nature and complexity of the case, the judge may refuse to accept the majority verdict and to ask the jury to go back and reconsider the situation until he is happy that due time has elapsed to enable them to examine the case sufficiently to arrive at a unanimous decision.
Subsection (4) obliges the court to take a verdict in such a way that where the verdict is "not guilty" it shall not be indicated whether the verdict was unanimous or by a majority. How this will be done in practice is a matter for the judges to work out but it would be along the following lines. The foreman would be asked on returning whether the jury had arrived at a verdict and, if so, whether it was one of guilty or not guilty. If it were "not guilty" that would finish the matter. If it were "guilty" he would be asked whether it was unanimous or by a majority and, in that case, the number of jurors who agreed to the verdict of guilty. Obviously it is desirable that if somebody is acquitted on a majority verdict that should be the end of the matter and there should not be any lingering aspersions cast on his reputation by the implication that there were some people in the jury room who felt he was guilty. That is the reason for this non-statement of the type of verdict reached in open court.
Subsection (5) provides that majority verdicts will not apply where the court must, on conviction, impose the death penalty, for example, for the murder of a garda acting in the course of his duty or where the trial commenced before the section came into force. In those two situations a unanimous verdict is still required.
Deputy De Rossa's amendment deals with the Special Criminal Court. The amendment reads "This section shall not operate while section 35 of the Offences Against the State Act, 1939, is in operation". This amendment would have the effect that majority verdicts would not apply whenever the Special Criminal Court is in operation, as at present. Under section 35 of the Offences Against the State Act, the Government can activate the Special Criminal Court for the trial of scheduled offences whenever they are satisfied that the ordinary courts are inadequate for the effective administration of justice and the preservation of public peace and order. A proclamation to that effect is made under section 35 and this has the effect of bringing Part V of the Act into operation; Part V contains the Special Criminal Court provisions.
It is suggested by Deputy De Rossa that majority verdicts should not be implemented while the Special Criminal Court is active. I see majority verdicts and the work of the Special Criminal Court as separate issues. On the face of it, the Director of Public Prosecutions can have a person who is accused of a non-scheduled offence tried by the Special Criminal Court and can transfer any trial to the Special Criminal Court under sections 47 and 48 of the 1939 Act. Whenever this has been done in the past for "ordinary", that is non-subversive, crime, it has proved to be very controversial, and it has not been practised to any great degree. Moreover, there would be a legal difficulty about scheduling certain offences under the Offences Against the State Act, for example drug related offences, because they are non-subversive in character and would be outside the general intent of the Act.
In the case of drug pushing and drug trading, for example, these people would be tried in the ordinary courts but situations could arise where jurors could be intimidated. That is one of the major reasons why I am looking for this section. There is some evidence that the incidence of hung juries is increasing and majority verdicts are necessary to deal with this. I presume the intent of this amendment is not to nullify the section but to abolish the Special Criminal Court. Apart from the question of intimidation of jurors in subversive cases, there is always the problem of the risk to jurors who bring in a guilty verdict in a subversive trial. It is not just the intimidation of the jury before they arrive at a verdict but it is the risk to them subsequently for having the courage to convict terrorists.
At present the Government have no intention of suspending the Special Criminal Court. This court is considered necessary for the proper administration of justice and the preservation of public peace and order. On the criminal side, especially organised crime and the organised drug rackets, there is need to ensure the juries are not intimidated and the provisions in this legislation will go a long way to make intimidation ineffective.
I support this section if for no other reason than to expose the intimidation of jurors, particularly in drug related cases. Drug pushing has become a very serious problem in the city and county of Dublin. Anything that will bring about the conviction of these people, including the provisions in this section, should be welcomed by this House. I know of one case where a drug pusher was before the court but the jury could not return a unanimous verdict because there was a feeling that one of the jurors had been intimidated. Consequently, it was a mis-trial and there had to be a retrial. This sort of thing should be stopped now and that is my main reason for supporting the section. I understand the views of Deputy De Rossa and having regard to his contributions on the Bill, with some of which I disagree, I have sympathy with him, but if he considers the views of the Minister and me I am sure he will agree with the section.
A similar provision was included in the 1967 Criminal Justice Bill, a highly controversial Bill which died with the 19th Dáil and was not reinstated in the 20th Dáil. The proposal to have majority jury verdicts has been cooking in the Department for a long time. I was very much against it in 1967 but my feelings are not as strong about it this time. Though I have the kind of worries expressed by Deputy Andrews about the possibility that two members of a jury might be intimidated or got at by the kind of criminals now going around who were not in evidence 17 years ago, it should go on record that for a long time the necessity to have unanimous findings of guilty was reckoned here and elsewhere to be a safeguard of freedom and against unjust convictions. The Minister intends that this provision, like the rest of the Bill, will have a time limit attached, that it will be reviewed after five years. The fact that it is temporary should relieve anxiety about a provision like this.
One point, however, arises, that not only was it reckoned to be a vital defence of liberty but arguably — no doubt this will be argued when counsel have the time to take it up — the type of jury envisaged in Article 38.5 of the Constitution should be looked at in the way in which juries were understood in 1937. Arguably, the references in the Constitution to the jury system carry embedded in them a reference to the composition, function, character and mechanism of jury trials in 1937, and arguably it is not open to this House without a constitutional referendum to identify the composition of juries with their composition and mechanism 50 years ago. It may be said that is a narrow and pedantic point of view, that a jury still are a jury, but I have no doubt that kind of argument would have been hotly contested 50 years ago.
Fifty years ago lawyers would have hotly contested the dilution or the removal of what we understood to be central to the jury system. In case that might be thought to be unduly rigid, I would put the hypothesis that the Minister was providing that a jury should no longer be constituted in the way they are but should be assisted by the judge who presided at the trial, sitting with them in the juryroom. I understand that is the type of system that exists in France where juries act with the judge and do not sit separately from him. I would say that is a strong dilution of the impression of a jury 50 years ago here. I do not say it is bad but it is no longer jury trial in the way that was understood.
We drew the frontiers of the jury system in 1977, and the proposal now is to confine the verdict to a majority of not fewer than ten out of 12. I am not trying to throw obstacles in the Minister's path by drawing attention to the objections that will be made legitimately, and which I would be inclined to make, to this change the Minister is talking about. The Minister has said we are having vicious crime the likes of which have not been seen here before and something has to be done about it. Everybody is with the Minister there, and the fact that he has put a time limit on the operation of the Bill will mitigate its impact on public opinion, but whether this House and the other House are competent to dilute the bulwark of the freedom and justice which the unanimous jury verdict was once understood to be, is arguable.
It occurs to me that the rights of the individual which Deputy Kelly spoke about in relation to jury trials apply equally to guilty or not guilty verdicts and there are people who will be found not guilty to whom this provision will apply. That is a distinct advantage to such people. At the time when the Offences Against the State Act was introduced it probably would have been inconceivable that such a change would occur and would be acceptable. However, it obviously became necessary to have a special measure to deal with very special circumstances. Within the revised law it is not clear that some of these cases can be dealt with by majority verdicts and I can see the desirability of having those cases dealt with in the ordinary courts. However, the Minister should look at these matters: he should consider the operation of the Special Criminal Court and the Offences Against the State Act now that the provisions of this Bill are coming in. I would not compel him in the way the amendment seeks to do, but the spirit of the amendment is correct. In answer to a parliamentary question on 2 November 1983 the statistics given were that during 1982 2,308 persons were arrested under section 30 of the Offences Against the State Act, 1939, and 1,207 of these were arrested in the Dublin metropolitan area. Ninety-two of those arrested, including 41 who had been arrested in the Dublin metropolitan area, appeared before the Special Criminal Court.
It would appear that the Offences Against the State Act is being used because no other mechanism is available to the Garda. Now that we are providing section 3, with powers of arrest and detention on suspicion, one would certainly expect to see a change in these statistics, with more people being arrested and questioned under section 3 and fewer coming under section 30 of the other Act. The statistics showed that of those appearing in court only 4 per cent appeared before the Special Criminal Court in any event. That implies that it was a case of arresting for questioning. Section 3 would surely deal with that and provide what is required of those cases.
I accept the point made by the Minister that there is in a certain limited number of cases need to provide protection and safety for judges, apart from anything else. Obviously, the same would apply for jury members if there were jury cases. I can see why the Minister must, at least for the present, retain that section. At the same time, it is quite clear that the amendment in section 24 is necessary on a wider basis. The Minister could have a look at the Offences Against the State Act. Now that we are prepared to have some other measures — for instance, majority verdicts in certain cases — it may mean that some categories now on the schedule could be transferred to the ordinary courts. Could the Minister tell us the statistics for 1983, if they are available, regarding the numbers actually tried before the Special Criminal Court? That may now be quite small, as I understand it, the numbers having dropped very considerably. I could not go along with the proposal which Deputy De Rossa makes in this amendment, while I accept that there is something to it.
The Minister also mentioned that drug trafficking offences needed majority verdicts. We on this side of the House would support that, particularly in the case of drug pushers. The proposal, of course, is quite open. It is that the verdict of a jury in criminal proceedings need not be unanimous. It is not restricted to any selected offences. As I said earlier in relation to the major merchants in drug trafficking, I would have no hesitation in including their crimes in the schedule of of offences under the Offences Against the State Act. I know that the Minister is reluctant to do that, but if one talks about subversion there is no greater subversion than that happening in connection with these drug offences, particularly concerning heroin and hard drugs. The majority verdicts are an answer in this area and a very worthwhile answer and I welcome that step. Majority verdicts exist and have been accepted in civil cases at present. They are also established in other countries and democratic jurisdictions. We have no hesitation in accepting this section. It is necessary in the present circumstances and we would welcome its introduction.
I notice that the Association of Criminal Lawyers do not support this section. They feel that a majority verdict would be dangerous in cases of capital offences. Consequently, it is only logical in their view that it would be dangerous in cases of non-capital offences in that a person may be found guilty when he or she should not. Capital offences are excluded here because subsection (5) states: "This section shall not affect the trial of any offence for which the court is required, upon the conviction of the accused, to sentence him to death...." The association are concerned about the danger, but present day needs outweigh that. It is a reasonable and timely step to take.
The Incorporated Law Society have raised a question of a minimum time limit of two hours being imposed on a jury. This is something that we have suggested over quite some time — indeed both sides of the House have suggested that majority verdicts be introduced. The intention of that limit is to ensure that the normal process would operate in the first instance and that only if a jury were having difficulties and had taken a reasonable amount of time, would it be open to the judge to indicate to the jury that he would accept a majority verdict. The view of the Law Society is that it is a reflection on the intelligence of the jury to suggest that they must be kept locked up for any specific period of time before they are entitled to return their verdict. That is probably an acceptable argument until one thinks into it. Presumably, if there is a difference of opinion it will take some time to emerge and be teased out by the jury. If there is unanimity, they may come back with an unanimous verdict very quickly. If there is not, it will probably take at least two hours before they would have to introduce this measure.
Subsection (3) states:
The court shall not accept a verdict by virtue of subsection (1) unless it appears to the court that the jury have had such period of time for deliberation as the court thinks reasonable having regard to the nature and complexity of the case; and the court shall not in any event accept such a verdict unless it appears to the court that the jury have had at least two hours for deliberation.
How will that work in practice? The way it is stated it seems to suggest that the court will sit back and will not accept a verdict unless it appears that the jury have had that period. In other words, the judge does not become involved directly unless such a verdict is brought in before the two hours. He would then have to say to the jury that they have not been out for two hours and would require them to stay out for that period. It will not involve a direction by the judge in the first instance.
When I looked at this first, I was thinking in terms of a jury going out and being out for some time and when they had gone beyond two hours the judge would be empowered to say to them, "You are obviously taking some time. I want to let you know that I am prepared to accept a majority verdict". This was the way I saw it operating. From what the Minister has stated it appears that the jury will go about their business and if they are gone beyond two hours they will then be entitled to some in with a majority verdict. If they come back before the two hours and want to introduce a majority verdict the judge might have to tell them they have not yet done their two hours because there is a definite minimum period. The subsection states:
The court shall not accept a verdict by virtue of subsection (1) unless it appears to the court that the jury have had such period of time for deliberation as the court thinks reasonable having regard to the nature and complexity of the case;
It obviously means that the judge in that case, if it is a very difficult one, could regard such time as being more than two hours. It further states:
....and the court shall not in any event accept such a verdict unless it appears to the court that the jury have had at least two hours for deliberation.
How will that operate in practice? Does the Minister see the judge after a certain period telling the jury that they are out for some time and he wants to let them know that he will accept a majority verdict? Will it work the other way round, that after they are out for that time the foreman will have in his brief something which tells him that he can go on to a majority verdict because they are there for longer than two hours? If they bring back a majority verdict after two and a half hours and the judge considers the nature of the case is such that they really should be out longer before they come to a majority verdict that seems to be possible under the section because it states:
The court shall not accept a verdict by virtue of subsection (1) unless it appears to the court that the jury have had such period of time for deliberation as the court thinks reasonable having regard to the nature and complexity of the case;
In any event it has to be at least two hours for deliberation. Apart from the minimum period the straightforward situation seems to be such a period as the court thinks reasonable having regard to the nature and complexity of the case. How does the Minister envisage that operation in practice?
I would like to make a brief contribution on the section because it is a departure from a principle which has been enshrined in our criminal law until now. I accept the arguments put forward for the need for change at this time because of the gravity of the situation and, particularly, as there is good reason to suspect that people who are guilty are getting away. I was not aware, perhaps naively so, or perhaps from lack of contact with criminal lawyers, that there is a feeling among lawyers that there is a certain amount of intimidation of jurors going on. I had not heard much about that and I did not believe that to be the case. There is, however, among Irish people generally, an attitude of fairness which wants to give everybody the benefit of the doubt. Probably in that case you are likely to get one in 12 who will decide that there is not reasonable grounds and everybody else will see there is reasonable grounds for finding a person guilty. On the arguments put forward I am certainly prepared, given the problems we have, to support the section. I hope the House will take this attitude so that whoever is looking at this section in three or four years time — I am very glad there is a time limit on sections like this——
I am sorry to interrupt the Deputy but I want to say that by a slip of the mind I inadvertently said there was a time limit on this section. This is not one of the sections to which the time limit applies.
I thank Deputy Kelly for clearing up that point. I presumed there was. I suggest that this is one of the sections on which there should be a time limit. If we are looking at this section of the Bill again I would not like it to start at the point of having majorities of ten out of 12, then find ourselves going to nine to three or at some future stage find ourselves going to eight to four and we might end up at seven to five. That is not likely to happen under the present Minister but who is to know what the makeup of Ministers we will have in this House in the future will be.
The Deputy could easily be there some time.
I am very flattered to hear the Deputy say that.
It is very necessary to put this on the record because at some stage in the future we will be reviewing the whole Criminal Justice Bill. I would not want us to start from this majority and work our way down to a simple majority some time in the future because that would be very dangerous. We are now departing from established principle. Once we start on that road the question is where do we stop? I would like to see the firm opinion of the House being enshrined in the record of the House against any further departure from this ten out of 12 or 11 out of 12 rule. I would also like to see a time limit put on this section like the other sections so that we could look at the situation in three or four years time to see if we cannot at that stage return to a unanimous verdict. I would not like to see this section watered down gradually at various stages as we progress to the next Dáil or future Dáils. I ask the Minister, given the interruption by Deputy Kelly, to consider including this in the sections where the time limit applies.
The point Deputy Mitchell made is a very valid one and it could be added to what I was saying earlier. It is perhaps a better point in regard to drawing a frontier between what a jury was in 1937, what it must still be understood to be for constitutional purposes and what it may become under the impact of amending legislation. Deputy Mitchell's point makes it more graphic than mine about the judge consulting with the jury. If we can persuade ourselves that a ten out of 12 system still leaves it a jury in the constitutional sense will we be just as sure about that when it becomes, as he says, eight to four or seven to five? Once you breach the unanimity principle, there is the danger of breaching something which this House is not entitled to breach without a constitutional referendum. The danger he described is very much there.
The second thing I want to say bears on an argument raised by Deputy Woods when he said that, after all, we still have majority verdicts in civil cases. That is quite true, but civil cases and the status of juries in civil cases are on a quite different plane. There is no constitutional requirement that any civil case, even the most important one, should be tried by a jury. It would be quite competent for this House and the other House to abolish juries altogether in civil cases. It is suggested here frequently. I have heard it suggested by Deputies on both sides of the House that juries should be abolished in civil cases involving negligence. That suggestion is made every day of the week by the insurance profession because they feel it runs up the premium. I need not get into that. That is a commonplace suggestion, and it could be done by this House and the other House without the faintest constitutional apprehension. Whether it would be right to do it is a matter which we need not discuss now.
A criminal jury is entrenched in the Constitution and was entrenched in the 1922 Constitution in a way which a civil jury is not. With respect to Deputy Woods, his arguments based on the analogy with a civil jury are quite beside the point.
Like other speakers I am concerned about why it must be unanimous. We need a fuller explanation of the reason for the change. I do not think anyone has an absolute opinion on it, because it has been bandied about for a long number of years. When we get down to changing it, we have to look at it very closely. Perhaps the Minister has information at his disposal, statistically or otherwise, which would persuade us that this would be the best move to make, and that there would be no inherent danger in making that move.
If we are introducing majority verdicts in criminal proceedings except for offences punishable by death, this would appear to reduce the traditional protection afforded to accused persons by the requirement that guilt must be proved beyond reasonable doubt. People may say that if one or more jurors dissent from a guilty verdict there must be a reasonable doubt, the benefit of which should go to the accused.
A suggestion has been made that jurors can be got at, or intimidated, or interfered with in some way. We have extensive jury vetting. I would like to know a bit more about the effect jury vetting has in the existing climate. Have we any evidence that juries are being interfered with, or bribed, which would indicate the need for a change?
I appreciate that, in the case of serious crimes such as drug offences, if juries were being interfered with or got at, and there were miscarriages of justice as a result, we would look with more confidence at making this change. I hope the Minister will comment a little further on this section and tease it out so that we can satisfy ourselves. Are we talking about a stubborn person who will not agree with the other jurors, or a person who is being thick about something and will not agree with his colleagues, and there has to be a retrial as a result?
I wondered was it possible to restrict this section to cases of serious crime, and then I realised that was not feasible because very often the only way the Garda can get at gangsters or criminals who are big into rackets and crime is to accuse them of minor charges or less serious charges. If that were the reason for bringing in this section it would be necessary to retain it for all crimes. There is evidence over the past few years of dangerous criminals being brought to law on less serious charges.
Has the Minister any evidence of intimidation or bribery, or have the Garda any information which would suggest that is happening? I would be grateful if the Minister would enumerate the different reasons for bringing in this section. I have an open mind on it. I should like to be persuaded a little more, and to satisfy myself that we are making a sensible decision and not going onto a slippery slope not knowing where it will end up.
It is regrettable that we are moving away from the principle of majority verdicts. If that is the case, so be it. It is a sad reflection on the society we are living in. I am intrigued by subsection (3). I can understand a certain time being required by a jury before bringing in a majority guilty verdict. After hearing the evidence and deliberating for half an hour the jury may come to a conclusion by ten votes to two that the person is not guilty. What is the purpose in asking that jury to continue on for another two hours? Is it to try to change the opinion of the ten? I could understand it more easily if subsection (3) provided that "the court shall not accept a verdict of guilty..." I should like to hear the Minister's views on that.
When I mentioned civil cases I thought Deputy Kelly might come back on that point. I appreciate the point in relation to civil cases. He raised the question of constitutionality. As it stands at present, it looks as if it would be within the competence of the House to proceed along the lines on which we are proceeding. The section in the Constitution says:
Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury.
Article 72 of the 1922 Constitution contained a corresponding provision. At page 322 ofThe Irish Constitution by J. M. Kelly we read:
"Jury" is one of the terms which the Constitution uses without defining, and the question accordingly arises whether the effect of the section is to give constitutional entrenchment to "juries" in the sense in which their composition and function were understood in 1937. At the very least, there must be some irreducible component of jury trial, as then understood, which is so entrenched, as it seems certain that if the function and mode of operation of juries were substantially changed, the intent of Art. 38.5 would not be respected. The question has never squarely arisen except in the context ofde Búrca v. Attorney General in which what was in issue was the formation of the panels from which juries are drawn, but not the actual role of the jury once empanelled.
Nevertheless Walsh, J. offered in the Supreme Court his view on the nature of the constitutionally guaranteed jury trial. He said:
It is undoubtedly true that jury trial, as we know it, has certain incidents such as the unanimity of verdict in criminal cases and the majority verdict in civil cases, and that juries consist of 12 persons. In my view such matters, however, are not the essential ingredients of trial by jury. The constitutional provision of trial with a jury is not a guarantee that juries must always consist of 12 persons, neither more nor less, or that the verdict must be unanimous. Looking at the essence of trial with a jury, I am of opinion that it does presuppose that the trial should be in the presence, and under the authority, of a presiding judge having power to instruct the jury as to the law and to advise them as to the fact, and that the jury should be free to consider their verdict alone without any interventions or presence of the judge or any other person during their deliberations. I think it also imports an element of secrecy....
In my view, it was not the intention of the Constitution to impose a standard and uniform procedure upon all legislation relating to trial by jury or upon all forms of trial with a jury.... While saying that I do not think that a jury may not consist of more or less than 12 members. I am not offering any view as to what figure would constitute the minimum below which a jury would lose its essential character.
That appears to state the position fairly well. By departing from 12 to 11 or even ten I do not think that we are changing too significantly the essential character of the jury. There is the right to trial by jury and they will meet in secret and alone and come to their conclusions. A ten to two verdict or an 11 to one verdict is reasonable within what would appear to constitute a jury.
Deputy Kelly was suggesting that by dropping the number to six or seven we might be on a slippery slope. Obviously the character of the jury would change and there cannot be much doubt that by going lower in the numbers there would be a clear risk of being found to be unconstitutional by departing from what is the essential character of a jury as envisaged in the Constitution.
In the present circumstances this is a reasonable measure and is in keeping with the spirit and the intention of the Constitution. Obviously it is open to some extent in that apparently the numerical strength of a jury has never been tested in that way. It has been accepted as having 12 persons and has continued in that way and questions have arisen more in relation to the empanelling of juries and other aspects. What is proposed is reasonable in the context of what constitutes a jury under the Constitution. We had to think about that aspect because obviously that question arises.
I want to make our position clear in view of what Deputy Kelly said. I only mentioned that majority verdicts exist already in civil cases but I was not suggesting this was a basis for having them in criminal cases. I fully appreciate that is a different situation and one that is obviously affected by the Constitution. So far as what we are planning to do here is concerned, it is reasonable to assume we would be consistent with what the Constitution would regard as a jury. I ask the Minister in his reply to come back to the question of how the judge will give a direction and how that will operate.
(Limerick East): I do not have statistics collected by the courts on juries but in the Department we have been collecting newspaper reports of trials. In the nine-month period from November 1982 to July 1983 reports in the newspapers reported 12 disagreements where there were hung juries. It is interesting to thumb through the cuttings and the various headlines. For example, Irish Independent of 20/7/83 had the headline “New murder trial called as jury split on verdict”; The Cork Examiner of the same date quoted “Murder trial jury fails to agree”; The Irish Times, 20/7/83, “Jury disagrees in Galway murder trial”; Irish Independent, 24/6/83, “Jury fail to agree on accused Garda”; The Irish Times, 24/6/83, “Jury disagrees in alleged Garda assault case”; Irish Independent, 11/6/83, “Jury fail to agree: retrial”: another headline, obviously relating to the same case, but I am showing the way it impacts on the public, “Jury fails to reach verdict in `witness' Case”; Irish Independent, 3/5/83, “Judge orders witness to give evidence”, the import of the case being that the jury disagreed; Irish Independent, 27/4/83, “Jury disagree on verdict in drugs case”— the report continued, “A jury in Dublin Central Criminal Court last night failed to reach agreement on a verdict in the trial of Laurence Dunne. The jury of seven women and five men took ten hours over their deliberations at the end of the five-day trial”. The report continued that Mr. Justice Keane remanded Dunne on bail until May 12 when a date was to be fixed for a new trial. We know now what happened at the new trial. In the Irish Independent of 22/4/1983 there was a headline, “Jury fail to reach raid charges verdict”; The Cork Examiner, 11/12/82, “Murder trial: Jury discharged”; The Irish Times of the same date, “Jury fails to reach verdict”; on 26/11/83 there was another headline, “Jury fails to agree on verdict in murder trial”; The Irish Times, 30/11/83, “Jury disagree in fraud case”; The Irish Press, 2/12/1982, “Jury fails to reach verdict”; The Irish Times, 2/12/1982, “Jury fails to agree in rape case”; Irish Independent, 2/12/1982, “Jury fails to agree in rape case”; The Irish Times, 2/12/1982, “Jury fails to agree in rape case”; The Irish Press, 22/4/82, “Judge stops trial over jury threat”. It reported that the trial of a Belfast man was stopped in the Circuit Criminal Court when Judge Frank Martin said that some of the evidence could be taken as an oblique threat to the jury if they returned a verdict of guilty. The Irish Independent, reporting the same case, said that the judge halted the case for the jury's safety. He said that he was doing this for the safety of jury members. Somebody was charged with stealing £1,050 in cash, 105 Deutschemarks and two watches. The court heard that two men carried out the raid who said they were from the IRA and that, if they were caught, the IRA would fix the two members of the hotel staff who were held up and their families. On 10 June 1983 The Irish Press reported a man cleared of murder trial threats. They reported a Dublin man being cleared of attempting to pervert the course of justice by threatening a prostitute to prevent her giving evidence in the trial of his brother for the murder of Dolores Lynch last January. The Circuit Criminal Court jury failed to agree on a verdict. On a second charge of attempting to buy off a witness in another trial in which the man's brother was charged, Judge Gleeson said that the case would be mentioned to the President of the Circuit Court.
I am not being dramatic or alarmist but you can see over a short period of time how these matters were reported to the public. There was consistency in the headlines and no attempt to dramatise them. In the text of the stories you can see the threat or the implications of the threat or intimidation coming through. Certainly there is a difficulty and I do not know if one difficulty existed in 1967 when it was introduced. However, I know that many people who opposed it in 1967 changed their minds subsequently.
A number of points have been raised by different Deputies. Deputy Woods was interested in how the mechanics of majority verdicts would operate. The best help I could give is to read an extract from Halsbury, 4th Edition, Vol. 11, Para. 319:
Procedure on majority verdict. If the jury returns before the statutory two hours¹, or such longer time as the judge thinks reasonable and intimates that its members have not reached a verdict on which they are all agreed, the jury should be sent out again for further deliberation with a further direction to arrive if possible at a unanimous verdict². Should the jury return (whether for the first or second time) or be sent for after the two hours or longer period has elapsed³, the jury should be asked again whether its members have reached a verdict on which they are all agreed, and if they are unanimous the verdict is accordingly taken; if it appears that they are not unanimous the jury should be asked to retire once more and told that its members should continue to endeavour to reach a unanimous verdict, but that if they cannot do so, the judge will accept, in a case where there are not less than 11 jurors, the verdict of ten of them, and in a case where there are ten jurors, the verdict of nine of them 4.
When the jury finally returns its members should be asked whether at least ten (or nine as the case may be) of them are agreed upon their verdict. If the answer is in the affirmative the foreman is asked to declare the verdict by the words "Guilty" or "Not Guilty". If the verdict is one of not guilty it must be accepted without more ado; if the verdict is one of guilty, the foreman must be asked whether that verdict is unanimous or by a majority. If the answer to that question is that the verdict is by a majority, the foreman must be asked how many jurors agreed to the verdict and how many dissented 5.
The numbers there are different, there are nine mentioned in that extract, but I am trying to illustrate that there is a particular procedure advised and it would be up to our judges to decide what procedure they would adopt. I read the extract to illustrate that it is not a very difficult process to get a procedure that works and which can be clearly used in court in different situations.
The question of constitutionality has been raised by Deputy Kelly, Deputy Skelly and Deputy Woods. Of course it is a matter for concern because there is no point in bringing in legislation if it is unconstitutional. I hope this will not prove unconstitutional and the advice to me is that it is constitutional. I respect the views expressed in the House, especially those of Deputy Kelly, who is an expert in that area. Two essential qualities are needed in a jury and unanimous jury verdicts. It could be argued that anything less than the involvement of 12 people would not constitute a jury in the sense which was expected by the people who passed the Constitution in 1937. One could also argue that it is not the number which is essential but the unanimity of the group. If the requirement is that there must be 12 people in the jury room, that was breached before 1937 and on subsequent occasions because even though 12 jurors are empanelled at present, the trial can proceed if one or two become ill and cannot attend and are, accordingly, excused. Trials proceed at present with 11 jurors who bring in a unanimous verdict or with ten jurors who bring in a unanimous verdict. I would be surprised if the concept of requiring 12 people to consent to an acquittal or a conviction would be an essential ingredient in any test of constitutionality. On the other hand, the question of unanimity is obviously something that could possibly be challenged. Deputy Woods has dealt with this and I think he was referring to Mr. Justice Walsh's judgment in the de Búrca case. There must be some doubt about the situation but the advice to me is that there would not be a constitutional problem.
The "duration" amendment, which deals with sections 3 to 8 and sections 13 to 18, does not apply here and I am not introducing section 24 for a temporary period. Deputy Gay Mitchell asked me to introduce it for a temporary period and to extend the scope of that amendment and he also advanced the proposition that subsequent Ministers for Justice may go for simple majority verdicts and that there could eventually be a situation where seven to five would either convict or acquit. The very mechanism of putting a time limit on this provision would be that the House would review it. When something like this becomes law and it is operating reasonably well, it will continue to operate over a long time scale. If, in four years' time, we had a very serious crime wave, the temptation might be to change it. I do not think it is necessarily a good idea to have a time limit on this section but, obviously, other people might see it differently.
On the question of having a period of two hours where the jury would deliberate before they bring in a majority verdict, the Incorporated Law Society did not think that this was a good idea. However, I think it is and that we should guard against precipitate action against any person. Those Deputies who, in their youth, saw Henry Fonda convincing the jury in "12 Angry Men" were probably entertained by the film but it was a very good dramatic presentation of how a group can work and how views and opinions can change as time goes on.
We have just passed a section which ensures that the defence will make the last speech a jury will hear before they retire. That brings me to the point raised by Deputy Doyle. I do not think it would be proper that a jury, after hearing a very good speech by the barrister for the defence, would retire and come to a very quick decision on a majority to acquit, or, as Deputy Doyle put the proposition, would go out the door to the jury room and within ten minutes return with a ten to two majority in favour of acquittal. I do not think that is the way things should be done. I am sure all Deputies agree that if a person is to be found guilty by a majority a reasonable period of time should be allowed to consider the matter. The amount of time could vary from case to case. Judges may consider that a case requires a further period of deliberation and the subsection allows for that.
It is important also that a jury act with caution in the case of an acquittal by majority. If they reach a unanimous decision it should be accepted. The time limit will not apply there whether it is a conviction or an acquittal. It is proper that we should ensure that due deliberation takes place. When a group of people are brought together there are always some strong ones in the group. It will take some people a time before they assert themselves. A type of group leader could assert themselves very quickly in the first 15 or 20 minutes and dominate the group. It is necessary that a sufficient time should elapse. We must also remember that we have young jurors now because people can be empanelled from 18 years of age onwards. With hald of our population under 25 years of age we can have very young juries. Young people are very sensible but there is a possibility that they will be dominated by older people in the group with the result that decisions they are reluctant to take are being rushed. Those young people would settle in if given the time. The time provision is very important.
Deputy Skelly suggested that it might be possible for us to confine majority verdicts to very serious crimes. He went on to say that he did not think we could do this because on occasions the godfathers of crime cannot be convicted on the serious offences but may be convicted on the minor ones. There is a stronger reason for not doing that because the more serious the crime the more severe the penalty. We would have a situation where lesser penalties would require unanimity while more severe penalties could, as a result of the verdict of the majority of a jury, be imposed by a judge. That would be to stand the matter on its head. If we are changing the principle it should extend to all cases.
The question was posed as to why a majority verdict should be required in cases where a death penalty is imposed. If there is no change in the death penalty here, if it remains part of our legal system and our body of criminal law, we should not move away from the unanimity verdict for such a drastic penalty. The Association of Criminal Lawyers made the point that they were opposed to this on the grounds that it was not proposed to have this for capital crimes and, accordingly, it must be wrong in principle. I do not agree that that is logical. We have not had anybody executed here since the mid-fifties but if a pardon is given after the death sentence has been imposed, a very severe period of imprisonment is substituted. Where there is a risk of a person being condemned to death I advocate that we retain unanimity.
Deputy Woods asked about the Special Criminal Court and wanted to know if figures were available. I will provide the Deputy with figures but it is true to say that the number of cases being referred to that court has gone down dramatically. I hope the number continues to go down. I have seen a memo on this recently and I will provide the Deputy with the information on it. I would not advocate to the House that we do not need the Special Criminal Court however. The people who are tried before that court are members of the Provisional IRA who are very active in Northern Ireland and still active in this jurisdiction. The political parties which support the activities of that organisation clearly support what they call the campaign of violence or the military campaign. We need the Special Criminal Court because of the risk of intimidation of jurors if we were to refer subversive crime to jury trials and also because of the fear — they are interrelated — of revenge being taken on members of the jury who had the courage to find members of subversive organisations guilty of the heinous crimes in which they are involved. In dealing with the points raised I did not refer to the Deputies who raised them. I do not think there is any other point to be dealt with but if there is I will deal with it later.
A number of points arise from the debate so far. In indicating that he was not accepting my amendment the Minister said the main reason was that there were drug-related offenders going before juries who could be expected in certain circumstances to intimidate jurors. My point is that the provisions of the section will apply to all criminal cases that go before juries and not just drug-related offences. For that reason the majority verdict will affect everybody who goes before the court. At present in criminal cases unanimous verdicts are required and we have Special Criminal Court to deal with cases that the ordinary courts cannot cope with. The DPP has power to refer even non-scheduled offences to the Special Criminal Court.
In my view there are two ways to approach this. I am not that anxious to argue for greater utilisation of the Special Criminal Court but if there is evidence — the Minister has not produced it — that drug offenders are intimidating jurors then the Minister has the power to refer such cases to the Special Criminal Court. My argument is that we should not be taking both powers. We should not have a position where cases can be referred to the Special Criminal Court on the grounds that unanimous verdicts cannot be achieved because of intimidation and, on the other hand, say that there may be other cases we do not want to send to the Special Criminal Court which might not also get unanimous verdicts and, therefore, we will drop the majority number to ten or 11 as the case may be. It is unfortunate that the unanimous verdict is being interfered with at all. I recognise that circumstances may require it at present and that is why I am concerned that the Minister is not extending the amendment which covers sections 3, 14, 15, 17 and 18 after four or five years and that there will not be a review of it. If in five or six years' time the headlines which the Minister read out remain the same, what is our next step? Where do we go from there? Do we drop it to eight or nine or, as Deputy Mitchell suggested, do we end up with majority verdicts of seven to five? We are on the slippery slope in relation to juries.
I am concerned that we are taking a double power since we are retaining the Special Criminal Court and dropping the necessity for a unanimous verdict. Subsection (5) requires unanimous verdicts in cases where capital punishment can be imposed. This would apply where a garda, a member of the Defence Forces or a prison officer was killed in the course of duty. Experience in recent years indicates that where this occurs subversive organisations are involved. Late last year a young garda recruit and a member of the Defence Forces were murdered by subversives. If they were to be brought before the ordinary courts, assuming they were apprehended, unanimous verdicts would be required. Surely the argument that organised criminals, whether political or otherwise, are likely to nobble a jury is more likely to apply in those circumstances than in circumstances where ordinary crime is involved. There is a gap in the Minister's logic in maintaining the need for majority verdicts because of intimidation while at the same time retaining the need for unanimous verdicts in cases where capital punishment or execution is involved.
Traditionally an accused person must be found guilty beyond reasonable doubt and if one or two people on a jury have a reasonable doubt the accused person is entitled to be found not guilty. The headlines which the Minister read out indicating the number of times it has been reported that juries disagreed do not indicate to what extent they disagreed. Was it two or three people who disagreed and in what way did they disagree? I am not convinced that headlines are sufficient evidence for taking such a dramatic step in relation to the unanimity of juries.
I am not happy that we should be doing away with unanimous verdicts, but if we are doing so then we should at least be considering to what extent we should retain the Special Criminal Court. I understand that while in theory the Special Criminal Court is a temporary provision introduced by proclamation of the Government, which presumably can be disestablished by Government proclamation without coming into this House, the Criminal Law Jurisdiction Act, 1976 can only operate if the Special Criminal Court makes a request for it to operate. I do not know the ins and outs of it but there are two sides to the argument. One is that the Criminal Law Jurisdiction Act, 1976 makes the Special Criminal Court permanent. If the Government were to decide that there was no longer a need for the Special Criminal Court and disestablished it, the Criminal Law Jurisdiction Act would fall and could not be operated. The Dáil should look at that area to see exactly where we stand in relation to the Special Criminal Court. It is becoming a permanent part of our court procedures? I would ask the Minister to look at this matter and to give us some definite information as to the necessity for retaining the Special Criminal Court, in view of the fact that we are now moving towards majority verdicts.
I have to act as the devil's advocate in relation to this section. A panel of 12 jurors is selected and we have no way of finding out the personality problems of those 12 people. The case might be a sexual offence and some of the jurors, say two of them, might have a hang up in their personal lives in relation to this type of offence. From the first hour they may decide that the person in the dock is guilty. The evidence is heard, counsel for the prosecution and the defence make their speeches, the judge sums up and the jury retire to consider their verdict. It is quite clear after half an hour's deliberations in the jury room that ten jurors are prepared to find the accused person innocent. I cannot understand why in such circumstances the other two jurors, who might be people of strong personality, should be able to exert their influence on the other ten to find the accused person guilty. This is the very reverse to the case of the "12 Angry Men" which the Minister mentioned. I do not fully understand why they should be left for two hours in those circumstances when ten of the jurors are prepared in the early stages to find the person not guilty. I can understand quite clearly that if they are bringing in a verdict of guilty sufficient time should be given to the jury to consider their position.
Deputy Doyle has made a perfectly valid point. The trouble about the jury system is that it is intended to represent a cross-section of the people. An Irish jury therefore has to be a cross-section of the Irish people, hang-ups and all, and has to manage to live and do its work and discharge its duties carrying those hang-ups. The peculiar virtue and value of a jury verdict is the certitude represented by the fact that 12 people, even with those hang-ups, can agree that a person is guilty and that there is no reasonable doubt that he can be anything else but guilty. That is the valuable protection of liberty that it was always understood to be and which we are changing this evening, and here I speak for myself only, reluctantly and only under pressure of understanding our duty to the public, or the duty which the public expect us to discharge — and I hope they are not mistaken in thinking that this will be any good to them — against the background of the terrible crime wave. I hope this thing will be some good.
I do not want to hold up the House because we have spent a very long time on this Bill, although there were far less important Bills on which we spent much more time. I had the very same feeling in my mind, though I did not put it into words, as Deputy De Rossa. I could not be so sure that this or some future Minister in a few years time after the passage of the Bill would not have a great big thick file still referring to jury disagreements. We do not know. Deputy De Rossa said that reports do not say by what margin disagreement took place. I do not know whether Deputy De Rossa meant that the newspaper report did not say but the truth is, as perhaps Deputy De Rossa knows, that nobody knows. The judge himself does not know by what margin the disagreement may have taken place. It may be that the list which the Minister read out sounds impressive when he introduces a litany of them, one after another, stretching back over the last couple of years. It may be that in some of these cases disagreement was more than of 7:5 or 8:4 variety. The Minister himself does not know or could not know.
It is also fair to say — and here I do not mean to be sniping at the Minister — that it would have been interesting had we been told how many jury convictions there had been over that two-year period measured against the number of known disagreements. Indeed it would be interesting if we could be told even now, since we seem to be following the jolly old English in passing this section, as in so many other things, to what extent the British are still getting disagreement notwithstanding their majority verdict system. I took it for granted that this point had been made by somebody. The reason we are doing this, and doing it with such a light heart is that, of course, the English did it back in the sixties. They have had majority jury verdicts ever since the Kray Brothers era or a little before it. And so it seemed perfectly safe for the poor old Paddies to trod that well-worn path, beaten down first of all by the people who kept them down and from whom they were so anxious to get free.
I hope I do not offend the Minister's very hard-working and responsible Department by saying this but that is why we tend to look first at what the English have done to cure what they assumed to be their problem without worrying too much whether our problem is of exactly the same kind and without it ever entering our heads to see what somebody else may have done perhaps outside the common law world to solve these problems.
I mentioned earlier the question of judges consulting with juries as they do in the assize courts in France. There is a slightly different system in Germany — though I am far from an expert on this; I know next to nothing about it except from the general impressions one picks up going through life — but I cannot see a Community with ten nations with which we share so much, from which we hope to get so much, with whom we share so many values, all, of course, except for the willingness to share their defence, which we are too wise and too holy to take upon ourselves —I cannot see why a Community of that kind——
That is not in the section.
No, Sir, it is not, but you will have to allow me that. Well, you do not have to allow me anything, naturally, Sir, but I cannot resist that one. It seems to be a terrible commentary on us that we are always praising ourselves on being Europeans, holding out our hands like good Europeans and so on but will not raise our hands against an enemy of Europe; we are too wise and too holy to do that. Of the other nine nations, I cannot see why it is that the only one that should seem to offer us a model for improving our institutions in criminal law or anything else is the one next door to us. The Germans have had subversive crime, not on the same scale proportionate to their population as we have had. The Italians have had it and they are put to the pin of their collar to deal with it. Certainly I do not want to see Irish courts arrive at a time when a court is half filled with a case like something in a circus and about 60 or 70 defendants crowded behind it. It is beastly looking system. In saying that I do not imply a criticism of the Italian legal system which must do the best it can in conditions which I cannot presume to judge. No doubt they have experience on which we could draw. If we are going to change this system at all, if we are going to take it on ourselves to dilute a system which undoubtedly in 1937 meant one thing only, why should we change it in the way only that the English have changed it? If we are going to change that at all, why not look around the see if perhaps juries could be kept on the straight and narrow by some other method?
Although I misled the House unwittingly by a slip of the mind when I said an hour ago that this was a temporary measure — of course it is not one of the ones which the Minister has quite rightly made temporary, but perhaps it should be — there is a precedent in the lifetime of this State for a temporary measure in regard to this very thing we are talking about — majority jury verdicts — because the Protection of Juries Act, 1929, I think, introduced this very change. I do not think they were 10:2; I think they were majority verdicts of nine —I will not be positive about that — but this kind of change was introduced then. That law remained in force for a year, I think it was extended for a further year and that it lapsed in 1931, a year in which a standing military tribunal was introduced. Those were years in which the heroes of the day thought it was quite all right to murder jurors and intimidate them.
One of my own childhood memories is that of living across the road from a man who had had the misfortune to serve on a jury which had convicted an IRA murderer. He had a police guard on his house day and night all the years I can remember, as a child, living opposite him. That is not a nice thing for a man and his family. But those were the kinds of people who were going then. It might have seemed necessary to the Government of the day to introduce a special measure which would have taken the pressure off people who felt intimidated. I quite sympathise with the Minister's anxiety to do that. But even at this late stage, if the Minister thought well of it, there would be a case to include this section among the ones which the House has already accepted as proper to be made temporary. I think they ended on section 18 but I can see a lot of reason the Minister might perhaps include this one as well and he has got the precedent of the same thing having been done by the Cumann na nGaedheal Minister for Justice back in 1929.
The last thing I want to say is something that had not occurred to me until I heard Deputy De Rossa speak about the exception made here in the case of capital verdicts. Why in the name of God are we talking here in this House about capital verdicts? I thought the House was virtually unanimous that capital punishment should be done away with. I thought there was actually a Bill before this House which would have been processed through the House except that — one loses count — one of the many general elections of 1981-82 took place so that the Dáil lapsed and the draft legislation before it lapsed as well. I thought this had been agreed in principle by us. If so, why do we not press ahead and pass that legislation instead of appearing to countenance its perpetuation by envisaging such a thing as a capital sentence in a new Bill?
(Limerick East): I think I have dealt with most of the points raised. Deputy De Rossa returned again to the argument that there had been no conclusive proof that juries were being intimidated. But in the list of headlines I read from the newspapers I referred to three specific cases, one a murder, one an armed robbery and one a drugs related case, where the newspaper report carried a very strong implication that the juries were intimidated, or would be intimidated or put under threat.
Deputy Joe Doyle reverted to a point we had raised earlier. I just do not agree that a verdict of guilt or innocence should be brought in in a very short period of time by a majority; I think adequate time should be provided. The two sides of the scale are the same. If one argues that a jury should remain out for two hours, minimum, to bring in a verdict of guilty, it is at least logical to argue that they need a reasonable time before they bring in an acquittal.
We talk about juries being drawn from a cross-section of the community. Of course they are and they do a very good job. As Deputy Kelly said, we must put up with them, hang-ups and all. I do not think he was intending to pun but one of the reasons it is in here is the particular hang-ups which lead to the hung jury.
In the case that Deputy Doyle posed, sex-related offences, indecent assault or rape, two people who had a preconceived notion about it were going to bring in a guilty verdict regardless of what they had heard in the court. Rape, for example, would carry a very long sentence, so it would be appropriate that a jury would think about it and discuss it over a period. The idea of somebody against whom there is serious evidence being released after a quarter of an hour on a majority verdict would worry me also.
The point I was trying to make was in regard to the judge in his summing up putting into the mouths of the jury that this person is innocent.
(Limerick East): If somebody is before a court and the jury are sitting on it talking about the possibility of people being put into jail for ten or 14 years or whatever it might be, the jury could give the other two hours to think and talk about it. On the other hand they might say, “OK, we like acquitting people, we will acquit in a quarter of an hour or 20 minutes”. The public interest requires deliberation for an adequate period before the person is released by a majority. I am sure that Deputy Doyle will continue to disagree with me. I do not agree with him on this issue.
I do not intend making it a temporary provision. The sections of the Bill that were controversial need examination to see how they operate. We have already moved the amendment which puts a time limit on them and I do not intend extending it to this section. There is always a reluctance to change something that has worked for a long time and worked well for most of that time. I can see the reluctance of some Deputies in the House to move away from the situation of unanimous verdicts.
I would see the Special Criminal Court continuing in operation while terrorists provide business for it, and when they stop doing so the technicalities of how one abolishes the Special Criminal Court are pretty academic. If there are no terrorist-related cases to go before it, then it will very quickly cease to function.
(Limerick East): It is up to them. They have it in their own hands. They can abolish it if they like. They are now outside polling booths giving a nice, clean-cut image, but they still operate with the ballot paper in one hand and the Armalite in the other, and they intimidate. I am not so sure that if we were back to jury trials for these offences Deputy Kelly again would not find outside certain houses policemen guarding people for 24 hours of the day because they had the courage to bring in a guilty verdict for some of our so-called patriots. It is in their own hands. If they want to become part of the democratic system I have no objection to that, but there is an entry fee and that is to put down the gun.
(Limerick East): That is the entry fee. Stop shooting Irish people, North and South. Stop robbing banks. Stop intimidation.
And do not usurp the right of the Dáil to declare war.
(Limerick East): And do not usurp the right of the Garda to protect people in their communities. Do not continue to operate as the wolf in sheep's clothing, self-styled protectors of the people, self-styled spokesmen for this country who arrogate the right to declare war, to claim responsibility for murder as if they had the right to dispense life and death. If they do not like the Special Criminal Court it is in their own hands to stop what they are doing and the court will run out of business and that will be the end of the Special Criminal Court.
I would like to confine the Special Criminal Court to the scheduled offences under the Offences Against the State Act. Even in the case of drug-related offences there would be a legal difficulty in scheduling drug pushing, for example, under the Offences Against the State Act because, however we decry it, it is not a terrorist-related offence. Consequently, I can see the need for majority jury verdicts to deal with ordinary crime on the one hand and, on the other hand, a continuance of the Special Criminal Court to deal with subversive crime.
The Minister referred to what I said about drugs, the Special Criminal Court and the Offences Against the State Act and mentioned the word "terrorist" in that connection. The word used there is "subversive". It will be the interpretation of "subversive" and that is why I said that I would regard drug offences as one of the most subversive activities one can have at present. Leaving that aside, we have called for majority verdicts and we aread idem with the Minister in relation to that. We have discussed at reasonable length the minimum two-hour period. It was what we intended in relation to this section when we discussed it earlier and I asked the Minister if he had any further information on it. He gave us some of the mechanics and I would be grateful if he would pass over the reference when we are finished. I am satisfied that the two-hour minimum time period is not only desirable but necessary in both cases. It is only reasonable that the two-hour minimum would apply. Having listened to the debate and participated in it here this evening, I am satisfied that the two-hour minimum is appropriate. I would have no objection to the Minister making the operation of this section temporary if he chooses to do so on the basis of the four years or five years or whatever, but if it does not work it can be dealt with in any event.
Since it seems fairly clear that the statistics on these matters are not being kept by his ever-vigilant and thorough officials, I ask the Minister to institute proceedings to ensure that the information on majority verdicts is gathered and kept so that review will be possible at any stage if impressions are gained by Members of the House over the next few years that things are not exactly what they might like them to be. If the Minister's officials can keep the appropriate records then he would have the statistics to look at himself and he could make a balanced judgment on the basis of that information.
One should always be careful about the headings in newspapers. What the learned reporters write underneath them may be more accurate than the headlines themselves which may suggest a point of view that somebody has. It is a pity that we have to depend on newspaper reports for that kind of information. We should have better information in this area particularly in relation to the change we are making now in majority verdicts, and we should make arrangements now to gather that information.
We support this section. It has had a good airing here tonight on all sides. I respect the spirit of the amendment put forward by Deputy De Rossa and Deputy Mac Giolla. I had dealt fairly well with that earlier. I recognise the necessity to maintain the Special Criminal Court and the Offences Against the State Act but there is an onus on the Minister at this time to re-examine the usage of the Offences Against the State Act. I am satisfied that up to now it has been used for a purpose different from that which was intended. The fact that only 4 per cent of the many people detained for questioning under the Act appeared before the Special Criminal Court indicates that it is being used for another purpose and the fact that we have section 3 would seem to indicate that it is time we looked at that Act. It may be that there is not a need for some of the cases to be sent to the Special Criminal Court but that is something that can be looked at. We support the section and while we respect what we understand to be Deputy De Rossa's approach in his amendment, we do not support it.
Section 3 is a fair attempt to emphasise the seriousness and the caution that must be exercised in terms of bringing in a verdict of guilty or of not guilty as the case might be. This is a necessary clause. I thank the Minister for the information he supplied in regard to majority verdicts, sparse though that information was. Perhaps, though, we could not expect him to have more detail than he has given us but because of the major change taking place we would have been happier to have had more information rather than merely the 12 different examples over a nine-month period the Minister gave us.
As the section stands, there are numerous challenges that both prosecution and defence can make during the selection of a jury. Safeguards can be devised to ensure that there is no interference or intimidation but the reason for the majority verdict arises from two different factors, one is the inconvenience of a hung jury. I should like to make a couple of points about the effect such a situation could have on the system.
The Minister referred to the possibility of the necessity for a re-trial. One of the examples he gave was where one of the defendants absconded between the time of the abortive trial and the time the new trial took place. If it is a question of administration in that there are further costs involved, that a different jury have to be selected, that more time must be devoted to another trial, we should ask ourselves how often that sort of situation arises, what level of nuisance or cost factor is involved and what number of people abscond. I submit that any problem that may be associated with the holding of a new trial is an administrative problem. While it may cause some nuisance and some extra cost to have a new trial, one must ask whether the public generally would be very dissatisfied because a new trial were ordered. The fact that such a situation is given headline treatment in the media for the purpose of selling a few more copies of newspapers should hardly warrant too much significance being attached to it. Normally one expects a trial to commence, to proceed from A to Z and a verdict to be given but it is hardly headline material to inform readers of newspapers that a trial had taken place, that it had proceeded normally and that a verdict had been given. It is when there is an element of sensationalism that there would be headline treatment. However, I would not like to be seen to imply that the points made are trivial because what we are dealing with here is a genuine attempt to bring about an improvement in the criminal law situation. The Minister and his Department are very sincere in bringing about such an improvement and also in bringing more efficiency into the system but I am posing the question as to whether the desired efficiency could be achieved in another way.
The court system generally has been overloaded and rather unwieldy. It could be streamlined but if there must be re-trial situations as a result of the requirement to have unanimous jury decisions, that is how the system works. It is democracy and everybody may be very happy about it.
We are relating this section to the problems being experienced now, the problems of drugs, of organised crime and so on. That may not be the case but I am suggesting that it is. We may be thinking that in this way we are taking another step in the fight against crime. On the other hand it may be something that has been under consideration actively by the Department for a number of years and that it is being brought in now because we happen to be changing the law. However, if it is for the first reason I mentioned, I suggest that all those problems can be dealt with without changing the system in this way especially if, as Deputy Kelly has suggested, we will alter radically a system which traditionally has afforded protection to accused persons by reason of the requirement that guilt be proved beyond all reasonable doubt and that there must be unanimous verdicts in order to secure convictions.
I am not suggesting that we should ape the next island even though it is hard to refute the suggestion which has been made that we should look at other systems. We should find our own solutions to our problems. We are a small homogeneous society but we have plenty of ability to do that. Given the number of trials we are dealing with it would not be a great problem to streamline the situation so that intimidation of a member of jury or his family could be stopped.
If it is thought possible to intimidate or bribe a single member of a 12 man jury and if it is happening to a worrying extent why is it not possible to intimidate or bribe two people? If one can get at one or two people why not get at three or four people? If we change the system for that reason there will be fewer people to get at. The section must be looked at again.
If we do not need to make this dramatic change now we should not change it. Given the statistical evidence which is available, we do not have good reasons for changing it. There are only two cases of jury intimidation and the absconding of one criminal. We should not make this change now. I have an open mind about it and will not push it one way or the other. I am not satisfied that we should change it right now.
I thank the Minister for his explanation about why a unanimous verdict should apply in the case of a death sentence and not in other cases. Since it is irreversible, that is how it should be.
In response to my previous points the Minister seemed to imply I was arguing for the abolition of the Special Criminal Court. My amendment states that the section we are debating should not come into effect so long as the Special Criminal Court is in existence.
The speech the Minister made in relation to Provisional IRA and Provisional Sinn Féin was one I could have just as easily made. I agree with the sentiments he expressed. I recognise as does the Minister that the Provisionals are attempting to run with the hare and hunt with the hounds. They have no case to make regarding the courts or justice as they are involved in kangaroo courts and set themselves up as judges and executioners. At the same time they campaign against legitimate forms of justice. If we want to defeat the Provisional IRA and Provisional Sinn Féin it is not enough simply to have the Special Criminal Court. We must work to protect and defend the rights of citizens and to ensure we are not seen in any way to diminish them. That is our best guard against the undemocratic and fascist nature of the Provisionals.
Senator Mary Robinson did a study on the Special Criminal Court. It is her belief that at least five cases of ordinary crime were brought before the court. All the cases brought before the court were not subversive crime. It is a weakness for us to maintain that court on the basis that it is to deal with subversive crime and then bring ordinary crime before it while at the same time looking for the abolition of a unanimous verdict in criminal cases. I accepted earlier in the debate that there was a case to be made for majority verdicts. Where it is possible to do so we should eliminate the Special Criminal Court. For that reason I put down the amendment that majority verdicts should only come into effect when the court ceased to exist. The Minister explained that there is need for it although he said earlier that the number of cases brought before it has fallen dramatically. I should like to see evidence of that. I ask the Minister to reconsider the position.
(Limerick East): Deputy Skelly asked what the motivating factor was for moving towards majority verdicts. He asked if it was for administrative convenience or to speed up the course of justice. If there are hung juries and retrials it takes up the time of the courts and time of the judges. That results in delays in access to justice for others on the waiting list. There is the expense involved and another jury has to be empanelled to go over the same set of facts. More importantly, it causes tremendous stress to the accused who has to go through the trauma of a trial again. It also causes tremendous stress to witnesses. Frequently key witnesses are also the victims. They go through a trial with all the publicity attached to it and if there is a hung jury they are forced to go through the whole process again.
Deputy De Rossa, in pressing his amendment, has argued himself into a corner because, if he is setting up the Special Criminal Court as an alternative to majority verdicts, it can only work in one of two ways. If we abolish the Special Criminal Court we will have to try subversives and terrorists by jury in the ordinary courts. On the other hand, if the Special Criminal Court exists for cases where there could be intimidation, even if they are non-terrorist cases, the Deputy seems to be advocating that we would increase the number of trials where there is no jury.
I cannot see how he is logically pressing the amendment if, on the one hand, he is worried about encroachment on civil liberties by moving away from the principle of the unanimous jury and then he is saying that the two concepts are alternatives and that we can move some of the cases into the Special Criminal Court where there is no jury. That seems to be a worse option. My position is that we need the Special Criminal Court as long as subversives are active in this country, and because there is intimidation, we need to attempt to solve the problem on the other side.
That position has been fully considered.
I think the Minister misunderstood my point. I have argued from the beginning that the former Minister for Justice introduced the Special Criminal Court because unanimous verdicts existed at that time and it was necessary to have a court with three judges but no jury. By this section we are saying that we must move for majority verdicts. What I am arguing is this. So long as the Special Criminal Court exists, we should retain unanimous verdicts. That is simply what my amendment means. It is not an argument for the abolition of the Special Criminal Court but for the retention of the unanimous verdicts as long as the Special Criminal Court exists.
As we made clear earlier, there is a need, independent of the Special Criminal Court, for majority verdicts and it is that need we support.
Amendment No. 47 in the name of the Minister.
(Limerick East): I do not propose to move this amendment. I should explain to the House that since I tabled the amendment I have been giving the matter further consideration with a view to formulating, in consultation with the Attorney General, a comprehensive provision covering appeals in the various criminal courts. I may be in a position to have the amendment I have in mind ready before the Report Stage, but if not — and it is a somewhat complex matter — I would hope to bring it forward in the Seanad.
The difficulty about the present amendment is that it may not take sufficiently into account the observations of the Supreme Court judges who delivered the majority judgement in the O'Shea case. That case decided that the prosecution could appeal an acquittal in the Central Criminal Court. These judges made it clear, however, that their jurisdiction to hear an appeal could only be invoked where a mistrial or a non-trial had taken place as a result of an erroneous ruling or direction by the trial judge, or where the verdict had been procured by improper means. In other words, there would be no appeal where the acquittal was by the jury on the merits. The amendment must, therefore, give effect to these views. There will then be no possibility of an appeal by the prosecution where the acquittal was the decision of the jury having considered the evidence and not the result of a direction to them by the judge.
The amendment will also seek to deal with the present analogous position as regards appeal by the prosecution in relation to acquittals in the various criminal courts. At present, apart from the position in the Central Criminal Court which the amendment sought to deal with, the State has a right of appeal on a point of law from an acquittal in the District Court by way of case stated. However, the State cannot appeal an acquittal in the Circuit Court or the Special Criminal Court.
There is also the provision in section 34 of the Criminal Procedure Act, 1967, which allows the prosecution to state a case to the Supreme Court on a point of law where the jury brings in a verdict of not guilty on the direction of the trial judge. In that case, the decision of the Supreme Court does not affect the acquittal.
As the House will see, the matter is complex; but the overriding principle will be that there can be no appeal where a jury has acquitted an accused on the merits having heard the evidence. I need more time and I am not moving this amendment now.
Amendment No. 47 was not moved and there cannot be a discussion on it.
Does the Minister not need leave of the House to withdraw it?
No, because he did not move it.
Is it in order to say anything about it, even on the section?
No, because this is a new section.
Let me see if I can ingeniously do so.
The Deputy can think about it.
I too am disappointed because I had done my work on the People v. O'Shea. We agree with the Minister's withdrawal.
Amendment No. 48 has been ruled out of order.
The heading of this section is "Proceedings after arrest". I would like to draw the attention of the House to a very conspicuous change in what was always understood to be the law of this country revealed by the decision of the Supreme Court in the O'Shea case to which the Minister has adverted. That was a small majority decision supported by the undoubtedly very powerful authority of the Chief Justice, Mr. Justice Walsh and Mr. Justice Hedderman, but opposed by as passionate a judgment as I have ever read from an extremely experienced and respected judge, Mr. Justice Henchey, and the very respected President of the High Court, who ranks as a Supreme Court Judge, President Finlay. The two dissenting judges pointed out that it had never entered the head of anybody in 1937 that an acquittal by a jury, whether on the merits or on the direction of a judge, could be called up for review in another court in such a way as to expose the accused person to double jeopardy.
On a point of order, what are we dealing with? Are we dealing with the amendment which has been withdrawn or with the section?
We are dealing with section 25.
I am trying to deal with the deficiencies of section 25 in as much as——
We are bringing in the amendment by the back door.
The reasoning behind the majority decision was the plain words of Article 34.4.3º of the Constitution whereby all decisions of the High Court, except so far as excluded by law — in other words, by post-1937 Oireachtas law — shall be capable of appeal to the Supreme Court. An acquittal in the Central Criminal Court counts as a High Court decision.
This has nothing to do with section 25.
I do not want to fall out with the Ceann Comhairle or with the Minister but——
There will be no question of falling out.
It is a question of falling in.
Let us see how it goes. I say this with respect because it is not for me to make comments on the way you handle business, but since you permitted the Minister to explain why he was withdrawing the amendment it would be fair to allow other Deputies to explain briefly what they feel about the Minister's withdrawing this amendment.
I am not prepared to allow that. The Minister was given a short opportunity to explain why he was not moving the amendment. We are now on section 25 and any contribution will have to be related to the section.
Can we take it that amendment No. 47 is gone?
Amendment No. 47 is gone and amendment No. 48 has been ruled out of order.
I should like to say briefly that amendment No. 48 provided for a Garda Síochána complaints body——
It has been ruled out of order.
The Minister made more than a passing reference to it. Are we to have equality of justice on both sides of the House?
We have dealt with two distinct things. The Minister gave a brief reason why he was not moving his amendment. Your amendment was ruled out of order and any remarks by you about an amendment that has been ruled out of order can be taken as challenging the ruling of the Chair, which is not in order and which, if persisted in, is disorderly.
I am only asking the Chair if I might explain why——
I have written to Deputy Woods explaining why it was ruled out of order.
I want to raise a point of order.
If Deputy Kelly has a point of order he is entitled to be heard.
We have all had a long day but I should like to put this point of order. I should like to know whether it is in order — this is not directed at any Minister or Member — for a Deputy to put down an amendment which has a certain purport or direction but which leaves other Deputies to suppose that they will be discussing the amendment, and then at the last moment to withdraw it——
That is not a point of order.
The Chair gave Deputy Woods an unsatisfactory reason——
Perhaps it is, but it is in accordance with Standing Orders.
You ruled my amendment out of order, as being irrelevant. How could a complaints procedure be irrelevant?
I must ask Deputy Woods to resume his seat. The Deputy cannot challenge the Chair's ruling in this way.
The amendment was put here for the benefit of the House, to give Deputies an opportunity——
Deputy Woods is being disorderly and I have asked him to resume his seat.
You resided your confidence in Deputy Woods in relation to the admissibility of amendment No. 48. As one of the innocents on the back benches would you please give me the reason why you overruled the proposed amendment, or is this a confidential document between you and Deputy Woods?
Deputy Woods put down his amendment and I ruled it out of order and, in accordance with long estabished practice, I conveyed to Deputy Woods why I ruled it out of order.
Is the House not entitled to information as to why the amendment was ruled out of order? I do not think that is unreasonable.
Out of courtesy to Deputy Andrews, and in no way establishing a precedent, I say in one sentence that I ruled the amendment out of order because it is not relevant to the provisions of the Bill and constitutes a separate piece of legislation.
On a point of order, is it not very unusual that the memorandum should have contained reference to this — this is only a technical point——
Deputy Woods was informed in writing why this amendment was ruled out of order. Briefly I have repeated that.
I do not intend to go any further, but many pages of our amendments have been ruled out of order because of this, from page ten to page 17——
It is too bad that they are out of order.
I am glad the Ceann Comhairle recognises how bad it is, because of the work that was put into it——
I am now asking Deputy Woods to resume his seat, and if he does not resume his seat he will have to leave the House.
That would be a lovely situation arising from a point of order.
I have been co-operating with the Chair all day.
Deputy Woods is now obstructing the Chair and the business of the House.
The House realises that the amendment, which is highly relevant — and I am not trying to challenge the Ceann Comhairle——
Deputy Woods will leave the House. If he does not resume his seat he will leave the House.
Deputy Woods will leave the House.
I certainly will if it is on this basis——
He will leave the House.
I appeal to you——
Will Deputy Andrews resume his seat?
I am appealing to the Chair, as a matter of justice and fair play——
Deputy Andrews will resume his seat.
I will not.
Deputy Andrews will leave the House. He has challenged the Chair.
I have been pointing to the outmoded regulations which govern this section. That is what I have been trying to point to.
Deputy Woods and Deputy D. Andrews withdrew from the Chamber.
(Limerick East): I suggest we have a sos until 11 p.m. or 11.15 p.m.
Is there agreement?
On a point of order——
I must draw Deputy Andrews's attention to the fact that before the House adjourned I had to order him to leave the House and I understand that he left the House.
I thought that order was rescinded in relation to myself and to Deputy Woods.
No, Deputy, I am sorry.
In which case I take it that I am out of order.
I must say that is the position. I regret it very much.
I have to say that the ruling in relation to Deputy Woods is unjust.
I am sorry Deputy Andrews, please do not put the Chair ——
There should be some formula worked out under which Deputy Woods can be allowed back into the House. His contribution to the Bill is recognised.
The Deputy is out of order. I shall have to ask the Captain of the Guard to perform his duty——
The Chair is out of order.
For Heaven's sake, this is an absolute disgrace.
Deputy Andrews is not entitled to be heard. It is not reasonable.
On a point of order——
The House is suspended, I am sorry. The House is suspended for 15 minutes.
Criminal Justice Bill, 1983, in Committee. The question is: "That section 25 stand part of the Bill".
On a point of order, before proceeding any further we would like to know exactly the position regarding our spokesman, Deputy Michael Woods.
The position, regrettably, is that when the House reached amendment No. 48 in the name of Deputy Michael Woods I announced that the amendment had been ruled out of order. This was done some considerable time ago and Deputy Woods had been so informed. Deputy Woods rose. Deputy Kelly got up on something else that was out of order and I ruled him out of order.
Then Deputy Woods made an effort to question my ruling on amendment No. 48 and to discuss No. 48. I informed him that he was out of order, that I could not allow a discussion on it. I asked him to resume his seat. My recollection is that he resumed his seat but he got up again and repeated an effort to question my ruling in that way. Again, I asked him to resume his seat. He did it and this happened, to my recollection, a third time at which juncture he was joined by Deputy David Andrews. I had no alternative, having asked him on a number of occasions to let the business go on, but to ask him to leave the House and I ordered him to leave the House. My hands are tied. I am the custodian of the Standing Orders and of order in the House. If I yield on one occasion it will be quoted to me and to my successors in time to come. I either maintain my authority in the House and enforce it or I will lose the authority and Standing Orders and precedents mean nothing and the House goes into chaos.
As the Chair knows, we have facilitated the Government in the passing of this Bill and we are still anxious to do so. I am sure you will agree that Deputy Michael Woods has addressed himself to this Bill with total commitment and dedication and has studied every line and section of this Bill. We are not prepared to proceed with consideration of this Bill without Deputy Michael Woods. I ask the Government, through the Chair, to find a formula whereby Deputy Michael Woods may resume his rightful position as our spokesman on this Bill.
I have given serious thought to this and, consistent with preserving the authority of the Chair, I would be only too anxious to facilitate the continuation of the processing of the Bill before the House. If Deputy Woods were suspended by an order of the House the Standing Orders provide that if I received an expression of regret——
Ordinarily he would be out for four days. If I got from the Deputy concerned in that case an expression of regret I could put that to the House and admit him immediately. In this case Deputy Michael Woods was not suspended under Standing Orders. He was ordered out of the House under another Standing Order. In my opinion, if I were to get an expression of regret from Deputy Woods I could admit him on my own authority without an order of the House. That is drawing the analogy from the other procedures I have just mentioned and I would be prepared to do that.
I regret that it is not possible for us to provide any expression of regret for Deputy Michael Woods because, in our view, he has not transgressed the order of the House.
I suggest to the Government that there should be some formula, some motion, some way in which the business of the House can proceed with Deputy Michael Woods who has devoted himself so assiduously and so tirelessly to this Bill. I am quite sure the Minister would gladly pay a tribute to the attention Deputy Michael Woods has given to this Bill. The Opposition place themselves in your hands and in the hands of the Government to find some way out of this unfortunate dilemma. We are not prepared to proceed with this Bill until Deputy Michael Woods is readmitted to carry on his brief on our behalf.
My hands are tied and I regret that.
(Limerick East): I am desirous that we continue as we had proceeded over the months. We got very constructive contributions from Deputy Michael Woods.
(Limerick East): I would like the agreement of the House to adjourn until 12.30 to see if the Whips can work out a formula to get us out of the particular dilemma in which we find ourselves now. I appreciate the Chair's position. The Chair is responsible for order in the House. I am not entering that particular controversy. I am desirous of finding a formula by which we can proceed in the constructive way we have done. Deputy Michael Woods played a major part there. I am proposing that we adjourn until 12.30 to allow the Whips to get together.