Deputy McCartan is always informative and entertaining on these matters and I look forward to hearing from him. In moving the Bill, Deputy Spring asked how the problem of the Guildford Four arose. I would argue that the question is not how the problem arose but why. We all know that the problem arose because the police in Guildford in the south-east of England, conspired in large numbers to fabricate evidence, to swear false oaths and to beat confessions out of people.
The conspiracy was not confined to the Guildford police, it involved people in the office of the British Director of Public Prosecutions so far as the withholding of alibi evidence was concerned. A situation like that can arise at any time if the will is there. If one focuses on why the problem arose, one will find that it cannot be solved by legislation or regulation.
I very rarely have the opportunity of listening to BBC radio but coming up in the car this morning I decided, for a change, to switch to BBC radio 4. I switched over at about 8.30 a.m. and the presenter was reading a letter from a lady in Surrey on the question of the Guildford Four which is commanding a lot of media attention in Britain at the moment. I do not remember the exact wording but the tenor of the letter was that she did not give two curses about the Guildford Four or the Birmingham Six. She was very sorry for the victims of that appalling outrage but she was also sorry for the police who had been in trouble as a result. It is that attitude among a very large section of the British public that has given rise to this problem.
I have occasion to do some work in the United Kingdom and I have contact with many people there. I know that that is the prevailing attitude among the section of the population in Britain who like to think of themselves as ordinary, fair-minded and right thinking citizens. Naturally, if that is the view of a large minority of the population of the UK it will be reflected in the police force of that state, the Civil Service and the Judiciary. That is the problem which has given rise to this case and the miscarriage of justice.
There is no similar analogous situation here. We do not live in a country where a minority of foreigners engage in terrorist and quasi-political crimes. Therefore, there is no incentive on the part of our police, Judiciary or legal officers to engage in the sort of conduct which took place in the Guildford Four case.
It is facile to argue, as Deputy Spring seemed to last night, in so far as I understand him, that regardless of why the situation arose there, it could also arise here and he mentioned ways of preventing it. The police force of Guildford went to extraordinary and painstaking lengths to fabricate evidence against those people and intentionally put them away for life. If the law in the United Kingdom or Scotland was that some corroboration is needed to a confession of guilt on the part of the accused, can anyone imagine that the police would not have gone a minuscule step further and fabricated further so-called material evidence against those people? I could name 20 ways in which it could be done with every little effort or ingenuity on the part of the Guildford police. The problem is, therefore, essentially a political one and the outcome of the Guildford Four case will do a lot more to reduce the possibility of that recurring in the United Kingdom than legislation or judicial decisions.
On reading Deputy Spring's speech one would imagine that it is the law in this country that an uncorroborated confession made by an accused person can of itself be sufficient to lead to a guilty verdict. Of course that is not the law and Deputy Spring knows it very well as a legislator and from practical experience at the Bar. The law here is that in order to incriminate an accused person a confession of guilt made by a person must be a voluntary confession and even to say that does not fully state the law because the Irish courts have now decided that, in some cases, even a voluntary confession of guilt on the part of the accused will not necessarily lead to a conviction if the trial is unfair. The courts have expressed in the clearest possible terms that the right to a fair trial is a constitutional right, an individual right which is enshrined in the Irish Constitution. That is the law in this country and is the background against which we are considering this Bill.
The Bill has two parts. For my purposes I have divided them into a main and subsidiary part. I am not attributing any numerical order to Deputy Spring; I am subdividing them for my purposes. The Minister dealt in some detail with what I call the subsidiary part which deals with the right of a Minister for Justice to refer a case to the courts if evidence is presented or allegations are made that a miscarriage of justice has occurred. That is a proposal similar to that contained in section 17 of the English Criminal Appeal Act, 1968. I do not want to dwell on that at any length; the Minister dealt with it adequately. If I have time at the end of my contribution I will refer to it briefly.
I want to deal now with the main part of Deputy Spring's proposal, namely, that some material evidence should be needed in addition to a self-incriminatory statement made by an accused to ensure that person's conviction, in other words, statements of guilt made by the accused himself, whether voluntary or otherwise, will not necessarily lead to his conviction; there must be some further evidence. The law in this country is that confessions must be voluntary and, even if voluntary, a conviction might still not be secured if the whole proceedings of the trial fall short of what the court would consider to be a fair trial, which is a right enshrined in our Constitution.
Looking briefly through a few recent decisions of the Irish Courts of Criminal Appeal one is struck by the painstaking, arduous lengths to which the Judiciary go to ensure that, in cases based on confessions, the confession falls within the term "voluntary confession" as defined by the courts. I might mention in passing that, in a great many of those cases, when the matter comes before the Court of Criminal Appeal or is on appeal to the Supreme Court, as the case may be, there is no dispute about what actually happened. The method of questioning is something that is admitted and the only question is whether that admitted method of interrogation or questioning falls, or whether a confession produced by that admitted method of interrogation falls within the term "voluntary confession" as defined by the courts. I am not saying that is so in all cases. In some cases the question of how the confession was got, the precise details of the interrogation, is a matter of great dispute but, in many cases there is no dispute. If a man was questioned for 40 hours or 42 hours in an underground passageway rather than an interview room or whatever, does this form of interrogation fall within the term "voluntary interrogation" for the purposes defined by the courts?
As examples of the lengths to which the Irish courts will go in examining every single, minute detail of the interrogation to discover whether that interrogation was in accordance with the Judges Rules or was otherwise voluntary as defined by a series of court cases, a number of cases that could be quoted. One such is the People v. McNally, Court of Criminal Appeal, 16 February 1981. I know Deputy McCartan will have some more incisive experience of those matters. I saw his name mentioned in one or two of the reports. This case arose from the Sallins mail train robbery. One of the questions at issue before the Court of Criminal Appeal was whether the interrogation of Bernard McNally and that of Osgur Breathnach — which ultimately produced confessions — produced "voluntary confessions" for the purposes for which that term has been defined. In McNally's case, in the course of his confession, he gave details of a van used in the course of committing the crime. Unless I am misreading the facts of the case it would appear to me that the police were very strongly of the view, as were the court, that he could not have known the details about that van unless he was involved in some way in the crime. His verbal confession was not reduced to writing.
The Judges Rules which govern the taking of statements and the interrogation of prisoners stipulate that such statements have to be reduced to writing. The question at issue was whether the failure of the police authorities to reduce that confession to writing rendered the confession involuntary or was in breach of the Judges Rules to such an extent that the confession should be excluded for the purposes of proving guilt. The Court of Criminal Appeal held that in fact it should. Admittedly the fact that the confession was not reduced to writing was not the only factor that influenced the Court of Criminal Appeal, but it is quite clear from the judgment of the Court of Criminal Appeal that, taken in conjunction with other factors, it was a major factor that influenced them in arriving at the conclusion they did. The President of the Court of Criminal Appeal, Mr. Justice Finlay, referred first to the fact that McNally had made various allegations of brutality against the police which the trial judge did not accept. Even taking into account the fact that the Court of Criminal Appeal and the trial judge believed that McNally had actually lied to the police, that he had lied on oath in the original trial, nevertheless the conviction was struck out. Mr. Justice Finlay said:
The Court is not satisfied that the Court of Trial was correct in law in admitting these verbal statements into evidence. No explanation, other than a previous course of conduct, was tendered to the Trial Court for the failure of the two Garda witnesses directly concerned to make a note of the alleged verbal admissions made by the applicant and to afford him an opportunity of correcting, amending or rejecting them. Bearing in mind that each of these alleged verbal admissions occurred in what are usually described as the early hours of the morning after very lengthy periods of questioning and interview extending over 44 hours, interrupted by one night's sleep only, the court is not satisfied that there were any circumstances proved before the Court of Trial which would justify the exercise of its discretion in favour of admitting in evidence these verbal statements notwithstanding the undoubted breach of the Judges Rules.
There are a number of other cases which can be quoted as evidence of the careful and painstaking way in which superior courts in this country scrutinise the evidence, closely examine every detail of the interrogation, to ensure that the confession of guilt is voluntary, as they have defined "voluntary confession".
In the case of the co-accused, Osgur Breathnach, it was held by the Court of Criminal Appeal that the circumstances surrounding the making of his statement, which followd 40 hours in custody, after his repeated insistence on the presence of a solicitor — which was not granted — raised doubts as to whether that confession was voluntary. Again the President of the Court of Criminal Appeal, Mr. Justice Finally, had this to say:
On the admitted and accepted evidence concerning these statements, however, the position would appear to be that this applicant was a person fully and amply aware of his rights and had, on a previous occasion in connection with arrest and suspicion of the same crime, adamantly refused to be interviewed or to discuss the crime with any member of the Garda Síochána until his solicitor had arrived. On this occasion, having maintained the same attitude after his arrest for a period of approximately 40 hours, suddenly, at 5.20 in the morning, he decided to make a full confession of his participation in this serious crime.
The learned judge went on to refer to the judgment of Mr. Justice Sachs in the case of The Crown v. Priestly — 1967 Criminal Appeal Reports — on the question of what constituted oppressive questioning so as to render a confession involuntary. In that case the judge said:
To my mind this word in the context of the principles under consideration imports something which tends to sap, or has sapped, that free will which must exist before a confession is voluntary.
That is the standard of law applied by the Irish Judiciary in determining whether a confession is voluntary. Applying that standard and those principles to the facts of this case the court found as follows: that the unexplained change of attitude of the applicant at questioning concerning the crime after a period of 40 hours in custody, together with the fact that the questioning, which immediately preceded the making of the statement, took place not in the regular interrogation room but rather in an underground passage which had a somewhat intimidating atmosphere, together with the fact that the making of the voluntary statement occurred in the early hours of the morning, together with the fact that the accused had repeatedly requested the presence of his solicitor — which presence was not granted — served to raise doubts about the confession and render what was an apparently voluntary confession involuntary.
There are other cases I could quote but time does not permit. I know that a number of my colleagues and Members of the Opposition want to contribute. In the case of the Director of Public Prosecutions v. Pringle, judgment of the Court of Criminal Appeal, 2 May 1981, which referred to an appalling incident at Ballaghaderreen, County Roscommon, where gardaí gave chase to people who had robbed a bank and a garda was shot dead after an exchange of gun-fire. Nobody had any sympathy for the perpetrators of that crime. From a layman's point of view, it would be obvious to a five year old child watching a reconstruction of that crime on television that Pringle was guilty. One of the perpetrators of the crime got away but the Garda found Pringle hiding out, wounded and armed. Nevertheless, the Court of Criminal Appeal went to great lengths to examine the extent of his interrogation — so far as I can recall this was not in dispute — and applied the test of voluntarius to it.
If I was a cynical person I would say Deputy Spring had opportunistic motives for bringing forward this Bill at this time. I would also say he wants to command the Left, he is worried about the challenge of The Workers' Party, he wants to be seen as the champion of civil liberties and he wants to cash in on the publicity surrounding the unfortunate Guildford Four who have suffered quite enough. If I was cynical I would say that——