Dáil Éireann debate -
Tuesday, 21 Nov 1989

Vol. 393 No. 4

Private Members' Business. - Criminal Justice Bill, 1989: Second Stage.

Mr. Spring

I move: "That the Bill be now read a Second Time."

The Bill that I am introducing this evening, and for which I am seeking the support of the House, is a simple one. It sets out to do two small but vital jobs, and in the process, to demonstrate that we are capable of learning the lessons of bitter experience.

There are times in the life of every legislator when we have to face up to our own imperfections and inadequacies. In my case, this is such a time. I have been aware for some years of the gaps in our criminal justice system that are addressed by this Bill, and I have to say that it is a matter of regret to me that I have not addressed them before now. We all of us go from day to day, pursuing our busy lives, attending to the problems that are creating the most pressure, and often ignoring issues that are nagging away at the backs of our minds. The issues addressed by this Bill have been around for many years, but it has taken the experience of the Guildford Four to wake many of us up to those issues. This Bill springs directly from that experience, and I hope that we are capable of learning the lessons that the case of the Guildford Four has taught us.

It has been said before, and is worth saying again, that the release of the Guildford Four touched a chord in every Irish heart. The conviction had been slow to take hold here, and yet had been growing for several years, that these people were innocent, that the confessions which had been wrung out of them under conditions of extreme duress and brutality were worthless. It has emerged in the course of the dramatic events that have unfolded since their release that they were more than innocent. These were not people convicted on the basis of confessions that were wrongfully procured — they were actually framed.

Confessions and statements were altered to suit the perception of the police and the prosecuting authorities as to what was most incriminating; details were added to increase the damage; the statements of witnesses who could have helped to clear the Four were suppressed; their defence lawyers were hindered at every turn. There was a considerable conspiracy to secure the convictions of the Guildford Four, and the result was that they emerged, fifteen years later, as the victims of the grossest act of misfeasance in British legal history. There was misfeasance in law enforcement and in the administration of the law, on a scale that surpasses anything that has yet been discovered.

Now the Guildford Four have to learn to live in the free world again. They will be financially compensated for what has been done to them, of course, and hopefully there will be no cheeseparing in the allocation of that compensation. But nothing can ever compensate them for the loss of a whole lifetime of growth and experience.

The night the Birmingham bombs went off, I was travelling on a train from Holyhead to London. The atmosphere when I arrived in London the following morning was indescribable, and unforgettable. It was to some extent at least that sort of atmosphere that led to the imperative need, as the police saw it, for early convictions in the Birmingham and Guildford cases. Convictions at any cost — even at the cost of fifteen years of life for four innocent people, and Six more who were convicted of the Birmingham bombs.

My generation was young then, and the world was a good place to live in. In the years since then, while the Guildford Four were in jail, almost in a state of suspended development, most of us got married and became parents; we watched our children grow and learn to walk and talk and go to school; we developed jobs and careers, and took a more active interest in the world around us. All of us here went through a similar pattern of experience and development in that period. We also experienced many of the humdrum and routine things that have made the quality of life more enjoyable and fulfilling. We went to the movies or the theatre, we followed our favourite football teams — some of us have memories of great Kerry teams, others of our Triple Crown victories, still others of great athletic performances.

All of these things, the things that add up to a body of enriching and maturing experience, were denied to the Guildford Four. They must adjust now to a world that went about its business while they were left to vegetate in jail. The fact that they did not vegetate, that they remain as articulate now as when they were first incarcerated, is a tribute to them and to the families and friends who supported them throughout their ordeal. It is no tribute, however, to the British system of justice.

Justice emerges from the aftermath of the Guildford Four battered, with faith in its impartiality weakened, perhaps fatally, and the rule of law undermined. It will take many years, and a great deal of effort, on the part of the authorities and the police to restore the rule of law in Britain to its rightful place. And there are many other implications of the case as well — implications for extradition from Ireland, for the administration of justice in the North of Ireland, for the cases of other individuals and groups, for our relations generally with the United Kingdom. I propose to deal with all of those implications in the debate which will take place later this week, and I will not go into them here.

Instead, I want to say this. It would be arrogant, and indeed ignorant, for us to look at the case of the Guildford Four from this side of the Irish Sea, and profess great concern at the implications of the case for British justice alone. There are implications for us too, lessons that must be learned, ways that we must put our own house in order.

The Irish courts have, by and large, interpreted our Constitution to strengthen the rights of the accused but we are still a jurisdiction governed largely by the common law. The defects in English law that made the convictions of the Guildford Four possible are equally evident in our own legal system. We are debating tonight a Bill to remedy some of those defects. Let all those Members of this House who have expressed legitimate worries about the implications of the Guildford Four case for the legal system across the water bear those worries in mind as this legislative provision is discussed and debated in this House.

Let it not be forgotten that this entire matter emphasises that there are several respects in which English law is superior to our own in these regards. For instance, we still maintain, in the Criminal Justice Act, 1964, the death penalty for certain crimes. This provision must be repealed as a matter of urgency. Many of us were gratified to hear the Minister for Justice undertake recently to bring a Bill forward to deal with this matter soon and it is my fervent wish and intention that this Dáil will see the end of the death penalty. We will give any encouragement we can to the Minister.

However, more to the immediate point, the English criminal justice system has what has now proven to be a crucial facility which does not exist in our law. There is in Ireland absolutely no mechanism, after the normal appeal process has run its course, for a criminal conviction to be reopened before a court for the purposes of re-examining the full factual basis for that conviction. If we learn one lesson from this entire tragic episode, let it be the necessity for the immediate introduction of such a procedure. To this end section 3 of our Bill empowers the Minister for Justice to refer to the Court of Criminal Appeal any conviction on indictment, whether at the petition of the accused or on the Minister's own initiative, for the purpose of a full rehearing — both on fact and on law — of the basis of the conviction.

After the statements that have been made, by members of all parties, in the House and outside it, regarding the Guildford Four case, I can conceive of no possible objection to this provision. I believe the case for taking such a step is both unanswerable and long overdue.

Our Bill also seeks to address an equally grave problem highlighted by the Guildford Four case. This is the fact that in both England and Ireland accused persons may be convicted and sentenced upon the basis of no more than an alleged inculpatory statement or confession, made in police custody and witnessed by no one but police officers. The voluntariness of such confessions may frequently be attested to only by the police; the very circumstances in which such confessions were made may be determined only by the evidence of police officers.

The Guildford Four case provides urgent contemporary proof of the dangers inherent in a system which enables a person to be convicted on such a basis, without any other evidence linking the accused with the crime. Yet every person who has been exposed for any length of time to the administration of justice in our criminal courts knows how often confessions allegedly made by an accused are introduced as evidence.

Everyone familiar with our criminal courts knows how often the accused will deny the crime and reject his confession and everyone familiar with our system knows how often such confessions constitute the entirety of the State's case against accused persons.

One English judge, delivering an opinion as long ago as 1893, expressed the matter well, when he said:

It is remarkable that it is of very rare occurrence for evidence of a confession to be given when proof of the prisoner's guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not unfrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession — a desire which vanishes as soon as he appears in a court of justice.

From the above statement, made not far short of one hundred years ago, it will be seen that the issue of the propriety of relying exclusively on confessions as evidence is not a new one.

In seeking to establish a statutory provision requiring confessions made in police custody to be corroborated by independent evidence, I am not seeking to cast any aspersions whatever on the Garda as a force. Far from it. Indeed I am very conscious of the struggle that the Garda have had to wage against crime and terrorism in recent years, and of the difficulties they confront in bringing criminals of all kinds to justice. I am conscious, too, of the debt we owe to the Garda Síochána, as a police force which have been successful in our service in the detection of crime and the conviction of criminals but I believe the measures I am proposing here are every bit as much in the interests of the Garda, and the perception of the Garda, as they are in the interests of the general public and accused persons.

Leaving to one side the rare occasions when British and Irish police have been suspected of subjecting those in their custody to actual violence, the fact remains that many suspects find the very fact of being detained in police custody so intimidating and overwhelming that statements made in such conditions of confusion and disorientation are often unreliable. This is of particular concern in the case of the young, the less privileged, the least educated members of society and those least integrated into it.

In this connection, since this Bill was published, a colleague of mine has described to me an experience he had when he was considerably younger. As a result of mistaken identity, he was taken into police custody and detained for six hours in a Garda station. There he was questioned continuously by four gardaí in succession, in a bare, cold room, in the small hours of the morning. He was well treated, in the sense that he was at no time threatened with, or subjected to violence, but it was made very clear to him that he was not believed, and he was continuously urged to come clean, to tell the truth about the matter under investigation. He has told me that the experience was unforgettable, that he was at times frightened, at times angry, and that, as the night wore on, he became more and more desperate to get out of the station, even to the extent that had the experience lasted much longer, he would have confessed to anything rather than remain there.

Happily, the mistake that had been made at midnight was discovered by one of the gardaí as dawn was breaking. My colleague was told that he was free to go, that there would be no charge brought against him and he was free to leave the police station. Twenty years later he still vividly remembers that experience as being one of the most frightening of his life. As I said at the outset, he was not ill treated in any way by any member of the Garda.

Many lawyers could recount similar experiences — some with less fortunate and less happy endings than that. These experiences are compounded for many who suffer them, as I said earlier, by the fact that they are young, or not well-educated, or are in some way on the margin of our society. Yet the current law on arrest and detention for questioning is one which operates most unfairly against those who need its protection most. For instance, while the courts have asserted that a person in detention has a right of reasonable access to a lawyer, there is absolutely no obligation on the Garda to inform him of this right. This contrasts starkly with the position in the United States. Similarly, while a person in police custody is generally under no obligation to incriminate himself, the police are under no constitutional obligation to inform him of this fact. Again, this is in stark contrast to the position in the United States.

The law here confers rights, but it operates most unfairly against those who do not know what are their rights. One of the ironies of this is that hardened criminals are much more used to coping with police custody than innocent, young or poor people — and they are much less likely to make self-incriminating statements while in a Garda station than somebody young and disoriented. For that reason alone, I would find it difficult to accept the argument that change along the lines we advocate would act to impede law enforcement.

The point has also been made that this Bill would act against rigorous and fair enforcement of the law where somebody surrendered himself to the Garda and confessed to a crime. There is no reason it should. The Bill is aimed at outlawing uncorroborated confessions made by persons under the duress of police custody. We will be open to secure agreement to any and all amendments that would improve the legislation on Committee Stage and urge other parties in the House to work with us in that way.

The major point about which we must satisfy ourselves is this: could a Guildford Four case ever occur in this jurisdiction? My answer to that question — and I believe this firmly — is yes, it could. One does not have to look as far as England to see what can and has happened in similar circumstances, nor are all the examples to do with terrorists or political offences. I should like to give the House two examples of what I mean. I will begin by reading these couple of sentences:

Ned, Mike, and I left our house at 3.50 a.m.... we drove through Tralee, on through Dingle town for about six miles and we stopped at a place where the road runs beside the sea, and Ned who was driving got out and opened the boot of the car and took out the bag containing the baby and threw it into the sea. It was about 5.30 a.m. when Ned threw the bag into the sea. You could see the water from the road where we were parked and when the bag was thrown in, it sank and resurfaced and floated on the water.

An Ceann Comhairle

Perhaps the Deputy would please give the reference to this quotation.

Mr. Spring

I intend to do that, a Cheann Comhairle. It is to be found in Appendix K of the Tribunal of Inquiry into the Kerry Babies case. It is what I consider to be a very dramatic passage taken from a statement made to the Garda by Kathleen Hayes, the sister of Joanne Hayes. As can be seen, it is a colourful account of a dramatic and tragic journey, full of the detail of authenticity. It is Kathleen Hayes' own description of that journey. Yet it is a description of a journey she never made, and a series of events that never took place.

We will never know why that statement was made, or how it came to look as it did. We know from the findings of the tribunal that Kathleen Hayes was in voluntary custody, in the eyes of the law, when she made that statement, and that she was not subjected to any assault or physical abuse by the Garda. But there was at one stage a real possibility that that statement, obviously untrue, could have been used to incriminate her as an accessory in the murder of her sister's child. That is just one example.

The other example relates to a case that is not as well known as the Kerry Babies case, at least outside legal circles. The case in question is known as People (DPP) v. Lynch, and was heard on appeal by the Supreme Court, whose judgment was delivered in February 1981. The accused in that case — one Christopher Lynch — was convicted of murder on the basis of his own confession. That confession was extracted from him following 22 hours in police custody in circumstances that were both oppressive and intimidating. There was no other evidence against him. In that case, the Supreme Court found that the confession made by Lynch could not possibly have been true. He confessed to strangling his victim with a piece of wire, when in fact she was strangled with a scarf. He confessed to killing her at a time when she was seen alive and well. There was no motive for the crime and no history of violence on the part of the accused. Yet he had been convicted, on the basis of a confession which was obviously untrue and extracted in oppressive circumstances, and he spent several years in jail before the Supreme Court freed him.

Therefore, we cannot fool ourselves into thinking that these things could never happen here. The detention and questioning of suspects, in properly supervised conditions, must now be accepted as an integral part of our procedure in the investigation of serious crime. That is why the Labour Party supported the Criminal Justice Act, 1984. The evidence produced as a result of such questioning is often an essential component of the State's case. Yet, in many areas of the law, there is a requirement that equally essential items of evidence be corroborated. For example, the law requires that juries be warned as to the extreme danger of convicting on the uncorroborated evidence of accomplices, or on uncorroborated evidence based solely on visual identification.

The law does so in these circumstances because it recognises that such evidence may be unreliable and open to abuse. The Lynch and Hayes cases I quoted earlier show that confession evidence may be very unreliable. The Guildford and Birmingham cases show that it can be open to abuse. It is evidence which should not, without corroboration, furnish the basis for any criminal conviction, in a case where the accused subsequently rejects the truth of his confession and contests the charge he has to answer.

In recent weeks many people have revelled in the image which has been out there of the English legal system being totally discredited. I would prefer to do something practical, engage in something more than just self-congratulatory rhetoric, to forestall the likelihood of the tragic events of the last few weeks happening in this country.

This Bill offers an opportunity to enable the Minister for Justice to refer cases to the Court of Criminal Appeal for re-examination in the circumstances I have outlined. Had this facility existed in England the injustice suffered by the Guildford Four might have been discovered. We offer the opportunity to prevent the conviction of an accused on the basis of a contested and uncorroborated confession. If this rule existed in England, as it does at present in Scotland, more than likely these injustices would never have occurred. I would like to think that this House will take the opportunities being presented to it to ensure that, in the Irish jurisdiction, convictions which stood for 15 years — which now as we all know should never have been obtained in the first place — can never be obtained in our society.

The English, Northern Irish and Irish legal systems have a common origin and share many common principles. We have all struggled at various times in our process of law reform to strike a balance between upholding the rights of individuals before the courts and in our police stations, and on the other side, empowering the police to investigate serious crime effectively and efficiently. It would be fair to say that in each of the legal systems there have been causes célèbres and it has been seen that all of the legal systems produce serious miscarriages of justice. The Bill which we are presenting to the House goes some way to establishing additional safeguards to protect innocent people. While we are doing this perhaps it would be reasonable to suggest that the whole area of criminal investigation, procedure and evidence, requires urgent and thorough consideration in each of our jurisdictions. Needless to say we can only do something about that which persists in our jurisdiction. In the last number of months — not to mention over the years — we have not been slow, given the difficulties we have seen across the water, to stand up and criticise that system which pertains in the United Kingdom.

It will be of enormous importance to the Members of this House and the Irish legal system if we take steps and make an effort, collectively and in our best collective wisdom, to bring about the changes which I am suggesting and which we have suggested in relation to the Guildford Four case. As I have said we have not been slow to point the finger across the water and tell our counterparts over there to put their house in order. I believe very firmly that it would be of interest and immense importance to us, to the Irish Government and the various Ministers negotiating and dealing with our counterparts across the water, to be able to point out that, because of the fears which have arisen here in relation to our criminal legal system and the rules of evidence, we have done something concrete to ensure that there is no miscarriage of justice here — that is a very light expression considering that people have been jailed wrongly for 15 years. If the Government support and accept this Bill I suggest to the Minister that it would be of benefit to the Irish negotiators and the Irish Government in seeking and pressing — which all of us on this side of the House have been doing — for changes in the administration of justice in Northern Ireland and changes in relation to the trials which have taken place in the United Kingdom over the last number of years.

That is why in addition to introducing the Criminal Justice Bill, 1989, I also call on the Taoiseach to propose the establishment of a joint law reform commission to report on these matters under the auspices of the Anglo-Irish Conference. Such a joint commission was established in the past pursuant to the Sunningdale agreement. In fact the enactment of the commission's recommendations was the only successful outcome of that agreement. We on both islands have lessons to learn from the revelations of the past few weeks. It is essential for the continuation of security co-operation between Britain and Ireland that we have confidence in each other's procedures and laws. The principles underlying our laws should be jointly investigated and proposals for reform should be jointly established and enacted.

I commend this Bill to the House.

Minister for Justice (Mr. Burke)

With the agreement of the House I should like to share my time with Deputy O'Donoghue.

An Ceann Comhairle

Is that agreed? Agreed.

Mr. Burke

I fully agree with Deputy Spring that we must not be complacent about our criminal justice system. No system is perfect and I accept that. There is always a need for an ongoing review of procedures. The Guildford Four case has indeed shown that the English system of justice which is intended, like our own, to have the necessary checks and balances to prevent a miscarriage of justice such as has now been shown to have happened in that case can be found sadly wanting.

I also agree that there is sufficient similarity between our criminal justice system and that in England to justify our looking at our own procedures in the light of the lessons to be learned from the Guildford Four case to see whether we need to make changes or improvements. Indeed, I would like to make it clear that this is something I already viewed as necessary even before the Deputy introduced his Bill.

I have no argument with Deputy Spring in this regard. However, where I do differ with him is in how we should proceed with this review. The Deputy's approach is to introduce this Bill as a hurried reaction to what he perceives to be defects without taking time to examine and consider the complex issues that first need to be addressed.

Certainly, he identifies issues which should be looked at and considered and I am quite agreeable to doing that. Where the Deputy has gone wrong, I believe, is in firstly concluding without sufficient examination that the issues raised in his Bill do, in fact, constitute serious flaws in our system and then, on that assumption, in suggesting that the solution is to copy English and Scottish law.

In regard to the Guildford case, Deputy Spring says that "if a similar injustice were to occur in Ireland, there would be no way in which the case could be reopened by a court". While that statement may be correct so far as it goes, if it is intended to imply that there is no way in which a similar injustice here could be remedied, then it is clearly wrong. If a Guildford-type case were to occur here, and by this I mean a case in which it became clear that the investigating authority had given false evidence and suppressed alibi evidence so that the original conviction was clearly unsafe, it would be open to the Government to advise the President to grant a pardon under Article 13 of the Constitution. We should not overlook that important safeguard.

Nonetheless, I can accept that our law is probably deficient in not providing a method by which a case can be referred back to the Court of Criminal Appeal or be otherwise reviewed in certain circumstances, for example, where significant new evidence has come to light, and I would be favourably disposed towards some such change when I have had an opportunity of considering exactly what should be done. The question is whether such a change would, of itself, solve the sort of case we are talking about.

What the Deputy proposes is that we simply copy section 17 of the English Criminal Appeal Act, 1968, which empowers the British Home Secretary to refer a case back to the Court of Appeal at any time if he thinks fit. Yet this very power existed in English law all the time that the Guildford Four, the Birmingham Six and the Maguires have been in prison. Certainly, the Guildford Four were eventually released by the Court of Appeal on a reference by the Home Secretary under that provision. However, given the evidence that had been turned up in the investigation by the Avon and Somerset police the Four would surely have had to be released whether the power in section 17 existed or not.

Contrast this to the case of the Birmingham Six. The Home Secretary used the power given to him in section 17 to refer their case back to the Court of Appeal but that did not result in the outcome which we would all like to have seen. It seems to me that if we contrast these two cases what emerges as being of most significance in determining their different outcomes was the thorough reinvestigation of the police evidence which was undertaken in the case of the Guildford Four. Let me say here I greatly hope that the ambit of the investigation which is currently being conducted into the operations of the West-Midlands serious crime squad will be extended to include the period when the Birmingham Six were arrested and questioned.

What seems clear to me from these cases is that a power similar to that contained in section 17 of the British Criminal Appeal Act might not of itself necessarily provide a guaranteed remedy in a case where a miscarriage of justice is alleged and this needs some further thought.

This is a point which seems to be recognised in Britain. As I understand it, there is now, in the context of the Guildford Four and other cases, a considerable body of opinion among eminent persons in Britain that section 17 of their 1968 Criminal Appeal Act is inadequate and that it needs to be replaced by something better. It has been reported that the judicial inquiry into the conviction of the Guildford Four being undertaken by Sir John May will, inter alia, examine this issue. For us now to simply adopt an English provision which many there feel has been found lacking in regard to the type of case we are now talking about and which is under scrutiny with a view to possible change is not, in my opinion, the proper way to proceed.

Rather than simply copy the English legislation, I believe what we need to do is to take time to examine this matter carefully in the context of the conditions which apply in our own jurisdiction. If we decide that there is a need to have a procedure whereby cases which have exhausted all the normal appeals procedures can be reopened, then we should look at the various alternative ways in which we might provide for this and choose a procedure best suited to our needs. For example, our Constitution is very precise in damarcating the powers which are appropriate to the Executive and those which are appropriate to the Judiciary and it could be that a procedure which would see the Minister for Justice reviewing evidence in a case with a view to deciding whether it should or should not be put before a court would create problems.

The nature of criminal justice inevitably involves a dilemma as to how errors should be corrected. Granted that a proper system of trials and appeals has been arrived at, the question as to how to provide for what should be the exceptional case where the system has perhaps failed to work properly in the sense that an innocent person may be in prison.

It seems indisputable that the Executive must be involved in such a case and that it must always have a reserve power to relieve the innocent person of the result of the failure of the judicial system. Beyond this the question arises of how best to look into the matter of a possible injustice. Should the whole case be investigated by, say, an authoritative person such as a judge or distinguished public servant, in either case in office or retired, who would look at all the papers, take statements and so on, and not be bound by the rules of evidence and so on? Or should the appellate court be asked to rehear the appeal, being bound, or not bound, by the rules of evidence? On one view an exhaustive and lengthy inquiry by an outside authority might seem the ideal way of securing the right. On the other hand, this process might go on for ever and it could be inconsistent with the principle of the judicial function to have an Executive inquiry into the convictions judicially imposed. These are the kind of problems that have to be faced, in considering the issue raised in the Bill.

Certainly ancillary or related questions would also have to be considered. These include the question whether the present provisions as to the powers of the Court of Criminal Appeal in deciding whether to allow or dismiss an appeal are satisfactory or should be altered; whether the existing rule that a person who appeals from the Central Criminal Court to the Court of Criminal Appeal thereby loses his right of appeal directly to the Supreme Court should be altered, and questions as to the applicability of any new provisions to appeals to the Courts-Martial Appeal Court and appeals from the Special Criminal Court to the Court of Criminal Appeal.

With regard to the section as it is drafted, it would be very much open to challenge because it gives the Minister power to refer a case to the Court of Criminal Appeal, to be treated as if it was an appeal by the convicted person, even where the trial judge had refused the accused person a certificate that the case was a fit case for appeal and/or where the Court of Criminal Appeal itself had refused leave to appeal. If the Minister was given the power as proposed in the Bill, without any criteria and at any time, it would be a power to overrule the decision of the trial judge and the judgment of the Court of Criminal Appeal, pursuant to section 31 of the Courts of Justice Act, 1924, refusing leave to appeal. Under section 32 of that Act leave to appeal must be granted where the court is of the opinion that a question of law is involved, or where the trial appears to the court to have been unsatisfactory, or there appears to the court to be any other sufficient ground of appeal. A decision by the Court of Criminal Appeal to refuse leave to appeal necessarily involves a negative ruling of the court on all these matters. An unfettered power of reference by the Minister "at any time" would mean that the Minister could overrule such a judgment and this would probably be found unconstitutional.

Furthermore, if the Minister for Justice were to be involved in referring cases to the Court of Criminal Appeal there would be a need to consider very carefully whether there should be some consultative process to assist the Minister in performing a function which would involve consideration of complex legal issues in many cases.

I turn now to section 2 of the Deputy's Bill which proposes to introduce into our law a rule of evidence which operates in Scotland, that a person cannot be found guilty of a criminal offence solely on the basis of a confession of guilt made by him to the police. While cases may arise from time to time the circumstances of which may give rise to legitimate concern about specific convictions on uncorroborated confessions, I think it will be generally accepted that there are undoubtedly cases in which convictions can properly be based on such evidence. I would be opposed, therefore, to a statutory provision that would totally exclude the possibility of such convictions which is, in effect what is proposed in Deputy Spring's Bill.

As I will point out later, there is a better way of dealing with this problem, which is to strengthen the safeguards against the possibility of improper confessions being obtained. To prohibit by law the possibility of any confession, no matter that there may be no ground whatever to doubt its veracity and that it was given voluntarily, from being used to secure a conviction would be wrong. Think of the position of a victim of a crime where the perpetrator has confessed but no prosecution can be taken.

I have no doubt that the Deputy is making his proposal from a genuine concern to minimise the risk of persons being convicted of a criminal offence on the basis of confessions which may not have been made by them on a free and voluntary basis. I can hardly argue with this as our objective. However, the problem is again, as with what is proposed in section 3 of the Bill, that the Deputy has adopted what appears to be a solution to a problem he perceives without sufficiently investigating the matter.

He asks us to accept a rule of Scottish law as a precedent. My understanding is that the rule about corroboration in Scottish law is interpreted very liberally by the courts there and that in practice they accept very slight evidence in corroboration of a confession made to the police.

Indeed, the Scottish system is not without its critics even in Scotland. In the case of Sinclair v. Clarke Lord Justice Clerk Thompson described the rule requiring corroboration of admissions to the police as “somewhat archaic” and he also stated that the merit of the rule in modern conditions is “not always obvious”. In addition, the view was expressed recently in a report published by the British section of the International Commission of Jurists that the degree of corroboration required under Scottish law is so slight as not to constitute the safeguard to be expected.

I think it is clear that if the Scottish rule had existed in England it would not have prevented the conviction of the Guildford Four. The convictions in that case sprang from the fact that the police were prepared to give false evidence relating to the confessions and to suppress alibi evidence. It is not unrealistic to suggest that if those police were faced with the Scottish rule, it would have been within their capacity to produce false evidence sufficient to supply the corroboration required by that rule.

Inculpatory admissions including confessions of guilt are very significant in terms of securing convictions. Any change therefore in terms of their admissibility or evidential value in criminal trials could have a very serious impact on the proportion of offences for which successful prosecutions could be taken. We need to be very careful therefore before contemplating a change as radical as that proposed in the Deputy's Bill.

I accept that there are, of course, dangers with confession evidence and this has long been recognised. As I already indicated I believe that the proper approach is to provide the conditions in which the possibility of confessions being improperly obtained or falsified by the Garda is very remote. The Judges' Rules, which impose strict conditions within which police questioning can take place, were long ago formulated for this purpose. Furthermore our courts, in addition to ensuring that the requirements of the Judges' Rules are complied with, exercise a power to exclude evidence, including confessions, where the court is satisfied that the admission of such evidence would not satisfy the right of an accused to a fair trial which is enshrined in our Constitution. This power has been in issue in a number of important cases and was discussed by Chief Justice O'Higgins in DPP v. Lynch (1981).

Indeed, Deputy Spring quoted earlier from the same case in support of his argument, which I will now use in reverse:

Where there exists a written constitution which guarantees rights to citizens, prohibits acts and conduct then quiet different considerations must apply. In countries governed by a written consititution one may expect that judges by their Oath and Office to be bound to uphold the constitution and it's provisions and to do so on all occcasions in courts in which they preside.

The Rules of Evidence in Irish Courts are mainly exclusionary in nature, thus items which are or may be relevant to the issue being tried can be excluded under special rules. The trial judge always retains the power to exclude evidence including statements which would be legally admissible, if such exclusion has as its object the securing of a fair trial for the accused.

The "Treatment Regulations" made under the Criminal Justice Act, 1984, represent further very exacting standards as to how persons detained in custody in Garda stations are to be treated and as to the manner in which they can be questioned. These regulations incorporate the recommendations which were made by the O'Briain committee which was established in 1977 in response to concerns which were expressed at the time about the treatment of suspects in Garda custody. Deputy Spring was incorrect when he said that the Garda do not have to inform a suspect that he is entitled to consult a solicitor. Regulation 8 (1) (b) of the Criminal Justice (Treatment of Persons in Custody of Garda Stations) Regulations, 1987, provide that the Garda must so inform him.

There is, therefore, already in place a considerable number of safeguards to ensure that confessions made in Garda custody are both voluntary and authentic. As I have pointed out, the courts are extremely vigilant when dealing with the question of admitting evidence of confessions. Such evidence is inadmissible in law unless the judge is satisfied beyond a reasonable doubt that the confession was made voluntarily.

In contemplation of providing a further safeguard provision was made in the Criminal Justice Act, 1984, empowering the Minister for Justice to make regulations for the audio and/or visual tape recording of Garda questioning of suspects. Subsequently, a small expert committee was established to examine the way in which tape recording could be introduced. Much preliminary work has been done and the question of establishing pilot schemes for practical testing is under consideration.

A further suggestion which has been made to provide an additional safeguard for an accused is that there should be a legal requirement for a judge to warn a jury of the danger of convicting an accused solely on the basis of an uncorroborated confession. Such a warning would be similar to the one which is given and which was referred to by Deputy Spring where the prosecution is asking a jury to convict a person on the uncorroborated evidence of the victim of a sexual offence or where identification evidence is involved.

On the face of it, Deputy Spring's proposal seems attractive. However, I would like to have it further examined as it may well be open to question whether making such a change in our law is needed at all in view of the meticulous way in which evidence is considered by a trial judge before it is admitted and given that juries will in any event be more than conscious of the significance of confession evidence where it is disputed.

To summarise the position then, what is wrong with Deputy Spring's Bill is that it is precipitate. It seeks to address what are complex issues by adapting provisions from other jurisdictions which, as events now show, may be less than adequate or appropriate.

As I said at the beginning of my remarks, if there are lessons we can learn from the Guildford Four case, I am as anxious that they be learned as the Deputy. However, I am equally concerned that any changes we might make would be sensible and workable.

With this in mind I have, on behalf of the Government, invited His Honour, Judge Frank Martin, to chair a committee of experts which I intend to establish immediately to carry out an examination, as a matter of urgency, of the issues raised by the Guildford Four case and referred to in the Deputy's Bill in the context of our criminal procedure as a whole.

Judge Martin, who has willingly accepted the Government's invitation to chair this committee, sits in the Dublin Circuit Criminal Court and has long and wide experience of dealing with criminal trials. This experience will undoubtedly be invaluable in considering the issues which will be before the committee.

The amendment put forward by Fine Gael proposes to refer this matter to the Law Reform Commission. In fact their amendment indicates that Fine Gael share my concern that these matters would be thoroughly examined before any action is taken. However, the Law Reform Commission have a very full programme of urgent work on hand and a more speedy examination can be arrived at by adopting my proposal to refer the case to an expert committee. I believe this is an urgent matter which needs very special attention. When Judge Martin's examination is complete, I will take whatever measures, legislative or procedural, which are considered necessary. In the meantime, I would ask Deputy Spring to withdraw his Bill for the reasons I have put forward. If the Deputy is unwilling to do this, I must formally oppose the Bill.

Mr. O'Donoghue

I can well appreciate Deputy Spring's concern about this matter. Unquestionably, the Guildford Four case, which has rocked the British criminal justice system to its very foundations, has lessons for every judicial system in the civilised world. There are lessons not only for the system of justice in Great Britain but in Ireland and throughout the civilised world.

I wonder if Deputy Spring, when comparing cases such as the Guildford Four with criminal law in the Republic of Ireland, is comparing like with like? It has to be remembered that in many of the cases — I have no doubt that there was injustices in British courts not just in recent years but in recent decades — a certain hysteria was evident which was built up either by the media or otherwise. This, of course, had an overpowering influence on the outcome of many of the cases to which Deputy Spring referred. That is not to say that our system of justice should not at all times be subject to review by all right thinking people and that we should not do everything possible to ensure that such a calamity would not occur in an Irish courtroom. Of course, such a calamity in certain exceptional circumstances could occur in this country because in an imperfect world no system of justice can guarantee justice in every case. There are exceptions to every rule and the objective must be to minimise the possibility of these exceptions occurring and an injustice being done.

In general terms the criminal law as it applies in this country has served the country relatively well. It is fair to say that the judges' rules relating to voluntary confessions, the trial within a trial, are safeguards which have assisted greatly in ensuring that in general justice was not only done but was seen to be done. However, it is true that the most dangerous evidence, if uncorroborated, before a court is without question a voluntary confession which is contested by the accused. A voluntary confession contested by the accused means that the State is saying the confession was voluntary and the individual is stating that the confession was involuntary. One then has to establish that the confession was involuntary.

Deputy Spring has given the example from the Kerry Babies case where unquestionably, undoubtedly and irrefutably the confession, whatever about the situation surrounding it, was patently untrue and was subsequently proven to be so. That raises certain questions in relation to the system at large. However, there is irrefutable evidence to suggest that in the vast majority of confessions given by suspects in criminal cases in Ireland they can be taken at their face value. That is not to say that there have not been confessions which unquestionably have been involuntary and have been proven in Irish criminal courts to be so.

I suppose the truth of the matter is that if people want to tell lies about a suspect it is difficult to prevent them from doing so. Nobody knows why anybody would do such a thing but the truth is that in a minimal number of cases it does happen. I for one do not believe that corroboration based on the Scottish model would solve that problem because tragically corroboration too can be falsified and utilised in the same way as an involuntary confession which is presented to a court as a voluntary confession. In short, it is true that the most dangerous evidence upon which a jury can convict is a voluntary confession where the accused subsequently states that the confession was involuntary. Therefore, I welcome the statement by the Minister this evening that he is to set up a committee of experts to examine this entire position. In this regard I am delighted that Deputy Spring raised the matter because it is certainly an area that is well worth looking at in the minimal number of exceptional cases where an injustice does occur.

If we were to copy section 17 of the English Criminal Appeal Act, 1968, it is possible we would not be doing the right thing at this time. It has to be remembered that the power of referral for the English Home Secretary was also in existence while the Guildford Four, the Birmingham Six and the Maguires were, and indeed in the latter case are, in prison. It must be remembered also that in one of these cases the power of referral failed to release men who, in my view, are clearly innocent. The Minister has pinpointed the difference between these two cases in a very graphic way. He has pointed out that a thorough reinvestigation of the police evidence was undertaken in the case of the Guildford Four. Such an investigation was not carried out in the case of the Birmingham Six. I welcome the Minister's extremely important call here tonight to have included in the investigation of the West Midlands serious crime squad the case of the Birmingham Six. Such an investigation would reveal beyond doubt that these men are innocent. Section 17 of the Criminal Appeal Act, 1968, is, to a large extent, inadequate. Its adoption by this House would ultimately lead to the Minister for Justice of this country being accused of political interference. That would be the worst possible thing that could happen to the judicial system — if there was a feeling that the Executive was interfering with the judicial arm of the State.

The right way forward is to re-examine the position, as the Minister has proposed, very closely to ensure that what occurred in the Guildford Four case, and indeed in other cases in Great Britain, would never occur here and that, if such a thing did happen, the power would be there for justice to be done and to be seen to be done.

Mr. J. O'Keeffe

I move amendment No. 1:

That Dáil Éireann declines to give the Bill a Second Reading until a report on—

(a) the necessity for corroborative evidence,

(b) the proposed power of the Minister for Justice to refer cases to the Court of Criminal Appeal, and

(c) other related issues,

shall have been made by the Law Reform Commission and its recommendations considered by Dáil Éireann.

Before I deal with these issues I would say that the Minister's response to my amendment by way of appointment of a committee of experts under Judge Martin to examine the issues is reasonable, considering that the work load of the Law Reform Commission is so heavy that we cannot get a report as a matter of priority, which I believe is needed in this case. I have the highest regard for Judge Martin and, as my amendment indicates, what I am really anxious to see is that these complex issues would be researched and examined as a matter of priority. Perhaps I should mention one small matter that concerns me in relation to the Minister's response to my amendment. He said that when Judge Martin's examination is complete he will take whatever measures, legislative or procedural, are considered necessary. Any such conclusions should be debated in this House. I hope the Minister will confirm that this will be the case. In my amendment circulated earlier I propose that Dáil Éireann should decline to give the Bill a Second Reading until such time as a report is available with recommendations and these recommendations have been considered by the House. In fact, there is a slight alteration to my reasoned amendment but it would provide a procedural route for such an examination. I mention this at this stage so that the mover of the Bill, Deputy Spring, and other Members of the House would have time to consider it.

The Labour Party Bill raises issues which are of deep public concern. The trial of the Guildford Four has cast a pall over the credibility and integrity of sections of the British police and criminal justice system. Deputy Spring very movingly explained the background and indicated very fully his concern about what happened to the Guildford Four. The best I can say on that score is that his concern is shared by myself and by most, if not all, Members of this House.

The investigation into the West Midlands police force, which was referred to by the Minister, raises further important questions both for the present and future of the system of justice in Britain but in dealing with these issues and their application to the Irish criminal justice system we must be careful not to create unsatisfactory Irish solutions to English legal problems. What is at stake in relation to the main proposal in the Bill requiring corroboration of statements made in the custody of a member of the Garda Síochána is our belief in the integrity and honesty of the Garda Síochána, nothing more or less.

The implication which arises, which must be faced, is that this proposal is designed to deal with an alleged or perceived failure of integrity. If this is so, the proposals as they stand do not afford the type of protection that Deputy Spring suggests. To put it simply, and if I recall correctly the Minister touched on this, if the Labour Party believe there is a possibility that members of the Garda Síochána might invent or manufacture an inculpatory statement, then it is a very short step from that to inventing or manufacturing corroborative evidence, whether trivial or substantive. The proposals do not even begin to deal with this perceived problem, if it exists.

Having said that, I believe very strongly that it is proper that we examine the system here so that the necessary changes can be made and so that as far as possible they provide a proper basis under the rule of law leading to the conviction of the guilty and the acquittal of the innocent. The points raised by Deputy Spring are very appropriate. He touched on the need for an examination of the system in the UK, following the appalling miscarriage of justice which occurred in the Guildford Four case. Certainly we, who quite rightly raise our voices on the need for such a review and necessary changes in the UK, obviously have to look at our own system here, if only for the reason that our system and the UK system are very largely rooted in the same common law system of jurisprudence. Therefore, it is proper to examine our system here.

The issues, including satisfactory safeguards in relation to the making of statements, must be looked at in a much broader context, not just in the context of the proposal contained in section 2 of Deputy Spring's Bill. It has been mentioned on radio and television discussions and here in this House that a requirement of corroboration for confessions or inculpatory statements exists in Scotland. However, we should be aware that this has not of itself been sufficient to prevent allegations of miscarriages of justice in that jurisdiction being made.

I am indebted to the Irish Independent for carrying out some research in this regard. Recently they quoted a number of cases in an article which appeared in the edition of 16 November under the headline “Crimes Against the Innocent”. This investigation turned up four cases in the UK but what is significant in the context of the suggestion that we should willy-nilly follow the Scottish system is that two of those four cases were Scottish. Patrick Meehan was charged with murder in Ayr and jailed for life in October 1969. Subsequently, he was released and granted a Royal Pardon in 1976. Ernest Barrie was charged in connection with an armed raid at Blantyre. He was convicted in 1986 and sentenced to 18 years in jail. In March of this year he won his appeal, having earlier been released on bail prior to the appeal. That followed an investigation documented in the “Rough Justice” television programme on the BBC.

I mention these cases merely to illustrate that the necessity for corroboration will not of itself prevent miscarriages of justice. Of course I accept that the Scottish system and those being operated in other countries which have like Ireland a common law system of jurisprudence should be researched and examined. It was for that reason that I circulated the amendment on behalf of Fine Gael proposing that the issues raised in the Labour Party Bill and related issues be researched and examined by the Law Reform Commission and its recommendations be considered before we reach a definitive conclusion on Deputy Spring's proposals.

In making my proposal I was mindful of the following: first, in both the Guildford and Birmingham cases serious questions arose as to the manner in which statements were taken and confessions made. Should the emphasis, therefore, not be on ensuring that any such statements or confessions be entirely voluntary rather than having an absolute requirement of corroboration? Second, in April 1978 the Ó Briain report which recommended certain safeguards for persons in custody and protection for members of the Garda Síochána against unjustified allegations of ill-treatment, was presented to the Government. Certain of its recommendations were provided for in the Criminal Justice Act, 1984. Is it now appropriate in this context to have a review of these provisions and the 1987 regulations made thereunder and to have a fresh look at those recommendations which have not so far been implemented? Third, sections 18 and 19 of the 1984 Act provided for inferences to be drawn from the failure of the accused to account for certain matters. How is this worked? My understanding is that the sections in question have not been relied on at all in criminal law cases. Why is this so? If things work why change them but if they are not working at least we should examine why they are not working with a view to changing them.

Section 27 of the same Act provides for electronic recording of questioning. In the UK a pilot project is under way providing for recording and video taping of interviews and interrogations. As long ago as 1978 the Ó Briain Committee suggested that a feasibility study be instituted to establish whether video taping of interrogations in the investigation of serious crime was a viable proposition. In hindsight I would say that was a very far seeing proposal. In addition, the report suggested that tape recording should be tried on as wide a basis as possible. Is this the route we should follow? I will not raise any query with regard to Minister Burke's committee of experts. I have too much respect for Judge Martin to do that, but the Minister said that an expert committee was established to examine the ways in which tape recording could be introduced. I inquired in the Oireachtas Library for a copy of the regulations which were to be made under section 27 of the Criminal Justice Act, 1984 in relation to the electronic recording of interviews and was advised that they had not yet been made. Five years later I raise the issue as to whether priority should not be given to these.

There are various commissions and reports in other countries having a similar common law jurisprudence which have dealt with these issues. It was Judge Barra Ó Briain himself who referred to the Committee on Criminal Procedure in Scotland and to the Commonwealth Law Reform Commission in Australia. Should not these and other systems be studied with a view to learning and taking advantage of experience in these countries? It is interesting that one of our leading criminal lawyers, Paddy McEntee, in proposals published by him focused on the desirability of video taping of interviews in respect of serious crimes rather than on the need for corroboration. He also raised other matters which should be considered in the review I proposed.

If the requirement of corroboration is considered to be the desired route to prevent miscarriages of justice a number of other issues arise. The Labour Party Bill proposes that inculpatory statements be "corroborated by some other material evidence". In Scotland any shred of evidence is sufficient. In fact, the Scottish system has been described, by one whose opinion I greatly respect, as a bit of a fraud. Obviously the question of the weight of the corroboration required is a material factor in the approach proposed if the Bill is adopted.

The question of the Judges' Rules under which the questioning of suspected persons is conducted may also need to be reviewed. The first set of rules was drawn up in 1912. They were revised in 1918 and have applied here since. After a spell of 70 years is an up-to-date review not indicated in the context of the issues raised by the Labour Party?

Another issue for examination in this context concerns a judge's charge to a jury. In sexual cases the judge is required to say that it is dangerous to convict without corroboration. This also arises in the question of accomplices and of visual evidence but what we must consider is that perhaps the right approach is that there should be an extension of this procedure to other cases. I raise this as a question.

In passing I should mention that in the context of having a certain degree of uniformity in our approach to reform of the criminal legal code, the Criminal Law (Rape) (Amendment) Bill presently before the House actually proposes that such a warning should not be mandatory but should be left to the discretion of the judge trying the case.

We should also consider the statement in the Ó Briain report that 80 per cent of serious crime in respect of which convictions are obtained are solved by confessions. This indicates a high degree of reliance on self-incrimination and according to that report an "inability of reluctance to secure evidence by scientific methods of criminal investigation and by persevering police inquiries". Members of the Garda Síochána had told me that apart altogether from the statutory requirement, good policing requires an effort to find corroboration. However, accept that difficulties can arise in many cases in securing such corroboration. The point therefore has to be squarely faced that we may have in cases of serious crime no charges brought even where there are complete confessions of guilt. That would be the inevitable result if we take the proposal as it stands.

It should also be mentioned that there is little point in changing our systems and putting procedural safeguards in place unless they are allowed to operate properly. I have to mention in this regard the related subject of the Garda Síochána Complaints Board which cannot operate effectively now in relation to current complaints because they have not been provided with proper staffing. What we are talking about is a few senior people with supervisory skills. The problem does not relate to money. I am told that out of the allocation this year at least 25 per cent will be refunded to the Exchequer. The Estimates for 1990 provide for an even bigger allocation but that is no use whatever unless they are in a position to spend that money in a way in which they need to by taking on the two or three supervisory staff that are required.

In relation to the other change proposed by Deputy Spring that the Minister for Justice should have power to refer cases if he thinks fit at any time to the Court of Criminal Appeal, I favour in principle the giving of such power. However, there are a number of factors to be taken into account before giving legislative effect to such provision. Our political culture is such that any such power would need to be, and be seen to be, exercised totally free of allegations of political pressure. This gives rise to the question of whether there should be a commission or body to sift any evidence suggesting a miscarriage of justice and then making a recommendation to the Minister.

If we had, for instance, a Gubu type Minister for Justice, would there be a danger that cases would be referred on the basis of other than substantive allegations of miscarriage of justice? There is no need for me to develop that point any further.

In this regard also I should mention the McEntee proposal on an advisory body to deal with appeals for clemency. Perhaps this proposal should also be considered in this context.

Another issue that arises on this score, and indeed a very serious one, is whether there should be a compensation provision in the event of a miscarriage of justice being proved. It seems to me to be obvious that there should be such a provision in the event of a proven case of miscarriage of justice resulting in the deprivation of a person's liberty. That leads me on to the question of looking at the systems for such compensation that apply in other jurisdictions. We are all aware that there is such a system in the UK. I am not sure about the systems that would apply elsewhere but we should certainly look at such systems to see the best basis for establishing such an arrangement here. The Bill is fundamentally flawed in regard to miscarriages of justice unless we provide for compensation, and that is an issue which has to be teased out fully; it has to be examined and researched and precedents available in the UK and elsewhere looked at so that we can move in that direction and establish a system which is appropriate to our situation and our surroundings.

Debate adjourned.