Deputy Ferris is in possession and has 23 minutes.
Private Members' Business. - Criminal Justice Bill, 1989: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
Debate resumed on amendment No. 1:
To delete all words after "That" and substitute the following:
"Dáil Éireann declines to give the Bill a second reading until a report on—
(a) the necessity for corroborative evidence, and
(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."
—(Deputy J. O'Keeffe.)
With your permission, a Cheann Comhairle, I would like to share my time with Deputy Garland, if he arrives in the House before I conclude my contribution.
Is that agreed? Agreed.
Prior to adjourning the debate last week I outlined the difference between a pardon and an acquittal. I also made reference to the Minister's contribution, in reply to Deputy Spring's remarks in introducing this Private Members' Bill, in which he made the point that the Guildford Four would have had to be released once the new evidence unearthed by the Avon and Somerset police had been uncovered whether the power to refer cases back to the court existed in England or not. Two important points need to be made here.
First, it is extremely unlikely that the Avon and Somerset police would have been asked to reinvestigate the case if the Home Secretary was not considering using his powers of referral; in other words, if in the mind of the Home Secretary the issue was dead the Avon and Somerset police would not have been asked to reopen it. Second, despite what the Minister has said, the Guildford Four were not simply released; they walked out of court both free and innocent of the charges on which they had originally been convicted.
The Minister also referred to the demarcation of powers between the Executive and the Judiciary and implied strongly that giving a power to reopen cases which had been decided upon by the courts and to review evidence to a member of the Executive would be a breach of that separation of functions, but that is exactly what the Attorney General does when he refers a case to the Supreme Court and it is what the Director of Public Prosecutions does when he decides to initiate a prosecution in the first place.
The power to put a case before the court is not in itself a judicial function. Furthermore, the Minister for Justice already has the power to release prisoners, notwithstanding the decisions of the courts, and to commute decisions. This is a power he exercises frequently. The Executive has the right to recommend the commutation of the death penalty and it has done so in all cases where it has been imposed in recent years. We know from recent experience that the Attorney General has what was described in this House by the Taoiseach as a quasi-judicial function in relation to extradition where he assesses the weight of evidence among other matters. None of these powers, which are not dissimilar to the powers being proposed in this Bill, has ever been seriously regarded as a breach of the separation of the role of the courts and the Executive.
It is implicit in this Bill that the powers we are proposing to give to the Minister for Justice would be used judiciously and wisely. The Minister also expressed total opposition to a statutory provision that would totally exclude the possibility of convictions based on uncorroborated evidence or confessions because, in his view, there could well be situations where it would be evident to everybody that such convictions were entirely unfair. Our Bill makes reference to contested cases only. If a man confesses his guilt to the police and when, outside of police custody, stands over that confession by pleading guilty the question of his confession standing as evidence would not arise as he would be convicted on his own guilty plea.
The Minister went on to argue that the necessity for corroboration in Scotland is interpreted very lightly by the Scottish courts and that in practice they accept very slight evidence in corroboration of a confession. That is tantamount to saying that because Scottish judges pay little regard to the rules of evidence Irish judges will do likewise. That seems to be a slur on the judges of both jurisdictions which we, in the Labour Party, simply do not accept, but even if it were true — and we say it is not — the degree of corroboration written into our Bill owes nothing to the Scottish model. The language used in our Bill is taken directly from the Children Act, 1908. Under that Act the unsworn evidence of children requires corroboration in a manner that is familiar to and has effectively been operated by the Irish courts for 97 years.
Having cast a slur on the Judiciary the Minister went on to cast a slur on the Garda Síochána by suggesting that if we were to impose a requirement for corroborative evidence on the Garda it would be just as easy for them to manufacture that evidence as it would to secure the confession in the first place. We simply do not understand how the Minister can advance that argument. He seems to be saying that we should not impose additional safeguards because the gardaí would ignore them and compound their perjury. It is impossible to interpret such a comment as anything other than a slur on the Garda Síochána and we, in the Labour Party, do not accept it.
The Minister went on to say that he accepts there are dangers with confession evidence — a case of having his cake and eating it — and he argued that the Judges' Rules which impose strict conditions within which police questioning can take place take care of this problem. They do not. The Judges' Rules, which incidentally were formulated by English judges, are administrative guidelines which have no force in law. The Minister sought to reinforce his argument in this regard by referring to the treatment guidelines made under the Criminal Justice Act, 1984. Again, these are only guidelines. A breach of these guidelines does not necessarily result in a statement made in custody being inadmissible in court. According to the Minister, all of these are important safeguards with confession evidence always being inadmissible in law unless the judge is satisfied beyond reasonable doubt that the confession was given voluntarily.
What happened in the Guildford case? What happened essentially was that there was a swearing match between the Guildford Four on the one hand and a very large number of policemen on the other with the police being believed while the Guildford Four were not. The result was that four confessions, which we now know should never have been admitted in evidence, were enough to deprive the Guildford Four of their liberty for 15 years.
The Minister referred to the provisions already recommended for the taping of interviews in Garda stations. He also said that the question of establishing pilot schemes is under consideration. That is all very well but it is surely worth pointing out that these recommendations were originally published in the Ó Briain report ten years ago. It is about time we got beyond the consideration of the possible establishment of pilot schemes.
I want to refer to the proposal made by the Minister for Justice to establish a committee, under the chairmanship of Judge Frank Martin, to carry out an examination, as a matter of urgency, of the issues raised in the Guildford case, and referred to in our Bill, in the context of criminal procedure as a whole. We welcome that decision which is an obvious attempt to respond positively to our Bill. However, a large number of matters require clarification. The Leader of the Labour Party sent the following letter to the Minister for Justice this morning, arising from our consideration of his proposal:
Dear Minister,
With reference to the proposal made by you in response to the Labour Party's Criminal Justice Bill, this proposal has been considered by my Parliamentary Party, and they have authorised me to seek the following clarifications.
First, the terms of reference of this Committee are vague and unspecified, and we would wish to see more concrete terms agreed. For example, we would wish to see the following matters covered in the terms of reference for the Committee:
—whether uncorroborated statements made in Garda custody should, if subsequently retracted, always be deemed to be admissable, and if not, the circumstances under which they should be admissable or not;
—whether the power should be given to the Executive to reopen cases where existing appellate procedures have been exhausted, and if so, in what circumstances and at what level;
—the law relating to Garda powers of arrest, detention, and interrogation;
—the bringing forward of firm proposals for the videotaping of all interviews of detained persons in Garda custody;
—a review of the provisions of the Offences Against the State Act, 1939, and the Criminal Justice Act, 1984, in so far as they relate to these powers;
—whether existing provisions, including non-statutory guidelines set out in judges' rules, and statutory guidelines governing treatment of suspects in Garda custody, are sufficient to safeguard the rights of accused and to ensure the reliability of statements made.
Secondly, no time limit has been set on the operations of the Committee.
Thirdly, the membership of the Committee has not been specified. We believe that as the initiators of this legislation we should seek your agreement to enable us to nominate a representative on the Committee. We also believe that there should be some lay representation.
Fourthly, we believe the Report should be published.
I would hope to have an opportunity to discuss these points with you before the decision of the Dáil tomorrow night. Our next spokesperson in the debate, Deputy Michael Ferris, will be placing these views on the record of the House tonight. On the assumption that it is possible for us to reach broad agreement on these proposals, we would have no wish to force a vote on the Second Stage. Instead, we would seek your support that the debate on the Bill be adjourned, so that the Bill is neither adopted nor defeated, but instead remains on the Order Paper.
In his reply to the debate tomorrow night, Deputy Spring will be elaborating on these points, and he will, hopefully, be in a position to convey the Minister's response by then. For my part, I am glad that the presentation of our Bill has prompted action on these important issues, and I hope that it will be possible for that action to be brought to an amicable and speedy conclusion.
Speaking on this Bill last week, the Minister for Justice laid emphasis on the need to ensure that confessions obtained in police custody were obtained properly. It is a concern shared by all democrats and we would all welcome the introduction of systems such as the taping of interrogations which would, provided there could be access to these tapes, go some way towards ensuring in cases of doubt that justice is done and seen to be done. But, as Deputy O'Keeffe subsequently pointed out, such arrangements were suggested back in 1978 by the Ó Briain Committee, and provision had been made as long ago as 1984, under section 27 of the Criminal Justice Bill of that year, for just such recording. In the intervening five years nothing has been done.
Despite widespread concern with the operation of interrogation techniques in the case of the Guildford Four and the Birmingham Six throughout that period and despite the obvious implications for our own criminal justice system, and despite the fact that legislation to deal with this very problem was already passed by this House, nothing has been done. Yet, when someone of the calibre and integrity of Deputy Spring finally proposes that some action be taken, he is accused of being precipitate.
What are we to have instead? The Minister informs us of an apparently ad hoc decision to form yet another committee. We respect the Minister's choice of chairman for this committee. Indeed, his honour, Judge Martin, is widely respected and rightly so. He is certainly known as one who does not waste valuable time and we may expect a high quality report. Indeed, I hope for a report that will get to the root problem of the criminal justice system in this country, and nothing less. But we may also expect it with remarkable speed and efficiency. One could scarcely ask for anything better, but one can. One can ask for action now which is precisely what Deputy Spring proposes. No matter if it will be superceded by the report of the Martin Committee. Who knows when this House will actually see the recommendations of that report, yet to be written and passed into law? Who knows how many of those recommendations that are passed into law will lie neglected on a shelf for five years, ten years or 15 years? We cannot wait. Has there not been enough waiting? Has there not been too much waiting — 15 years waiting?
Deputy Spring talked last week about the intimidation implicit in the few hours that a colleague of his suffered while mistakenly in custody. It is an experience that not many Members of this House will have shared — being in custody, whether mistakenly or otherwise. We must imagine what it is like for a person to find that the freedoms they have taken for granted for years are suddenly gone, that one's right to movement, to warmth, to sleep, to privacy are gone, that before a single shred of evidence may have been produced, one is being treated like a prison inmate, people treating one as if one is guilty. It is deliberate, it is part of the way that the Garda get that confession needed to resolve 80 per cent of serious crimes, as we were told last week.
That, I suspect, is the real reason we are being asked not to vote for this Bill. It would make a tactical device, heavily relied on by the Garda, largely ineffective. The business of making one feel guilty while in custody, in the hope of provoking a confession, would no longer be sufficient to achieve the large number of convictions it does at this time.
What is at issue here, is whether or not one believes that that would be a change for the better. As it stands, the method works very well, so well, that innocent people can on occasion be made to admit to the most horrible of crimes within a matter of hours. They are innocent, often disturbed, people; poor, uneducated people; marginalised resentful people; some of them the very people who do commit crime, but not necessarily this time. These people harbour attitudes that we dislike or distrust. They arouse our suspicions. They do not recommend themselves to our sympathy, but they just happen to be innocent of the crime of which they stand accused.
The problem here is simple. This method of extracting confessions cannot distinguish between the innocent and the guilty. Confessions gained by it should, therefore, not be admissible as evidence in themselves, where they are later contested by the accused.
I now turn to the other major provision of this Bill, that of empowering the Minister for Justice with the right of referral in cases where he sees fit to do so. It has been suggested that this might prove an unconstitutional arrangement. The reason given is that it would enable an arm of the Executive to countermand the legally-arrived at decisions of the courts not to reopen a case. Is that unconstitutional? I do not know. But I know that it is precisely the power that we need, if we are to refer cases such as that of the Guildford Four for reconsideration by the Judiciary. It is the power that we, the democratically-elected representatives of the people, need. If it is unconstitutional, let that be proved, and let the Constitution be amended if necessary. That is no reason not to procede with this Bill at this time because we will have to cross that bridge sooner or later and it might as well be sooner for the sake of taking action now.
It has been commented that this power of referral did not help in the case of the Guildford Four in the United Kingdom. That is accepted, but the other major proposal of the Bill — to disallow uncorroborated confessions — might well have done so. It is, therefore, not a valid argument against the Bill, and not a valid argument against section 3 of the Bill, if there are instances when section 3 would not, of itself, have been enough to protect an innocent party. That is why there are these two proposals in the Bill. Not every section of a Bill must cater with every case.
The power of referral is, therefore, not to be seen on its own, but in conjunction with the impact of section 2, when it would operate as a crucial failsafe mechanism, available at all times, whenever it seems likely that the normal processes of justice have acted in error, something which inevitably — as the Minister himself suggested — they will do. For that very reason, this provision is not, as the Minister implied, an inadequate solution to a complex problem. It is a democratically desirable piece of legislation.
Private Members' Bills tend to suffer in this House. They are something of an over-hunted species. I ask the Members of this Chamber to relax their killer instinct a while, and let this remarkably enlightened Bill pass. What if it is superseded in a year by Judge Martin's report becoming law? So much the better. It is action now that will motivate future reforms, reforms like the abolition of the death penalty, for which we have waited far too long already. Failure to act now might well delay future developments. No one knows how many people will be wrongfully imprisoned in the meantime.
Finally we should remember that the British authorities thought that they were all right with the law as it stood, and now look at the appalling vista that that overconfidence has wrought.
This is the first time I have had the pleasure of hearing my South County Dublin colleague, Deputy Garland, speaking. I would like to wish him well and congratulate him on his election to the Dáil and on his contribution.
I am afraid that is where we part. He said that this is a remarkably enlightened piece of legislation. I would suggest the removal of the word "remarkably". It is undoubtedly an enlightened Bill in the sense that it was brought forward with the intention of tightening up criminal law procedure. It is to be welcomed for that reason and for giving us the opportunity of discussing this fundamental question of the corroboration of evidence in the context of a criminal charge. I can only presume that the Labour Party introduced this legislation as a result of their examination of the Guildford Four, Maguire family and Birmingham Six cases.
As a civil lawyer with some peripheral experience in the criminal law, so that my comments might be seen as those of a layman, I have to say that section 3 (1) appears to me to give the Minister for Justice extremely wide powers — I am sure the draftsman did not intend this — and this would be of serious concern to me. While the Constitution is not necessarily my forte, living under it and doing my best to practise within it, I would suggest that maybe there is an unconstitutional tinge in section 3 (1) which provides that where a person has been convicted on indictment of any offence the Minister may, if he thinks fit at any time, refer the case to the court. As a person with an interest in human rights and civil liberties I would be very concerned at that. I would also be concerned about it from the point of view of a person who is charged. If a person applies for leave to appeal to the court of appeal and the court of appeal decides that the charge should stand, the case would then be referred to the Minister for Justice, and if he thinks fit at any time, he can refer the case back to the court. I would not have thought the Executive should have that kind of wide ranging power.
I understand that maybe the Minister is not supporting the Bill, having regard to the fact that he is setting up the Martin Committee to take a look at criminal law procedure, and that he may not allow the Bill to go further than this Stage. If the Bill is to be reintroduced in the event of the Labour Party not being satisfied with what comes out of the Martin Committee, I would suggest that they might have a look at the section I have described as being loose. It is well intentioned but it is loose in its meaning and I suggest that the constitutional lawyers might well have a field day in relation to it.
To return to the reasons for the introduction of the Bill, maybe it is presumptuous on my part to assume that the Bill was introduced arising from the various miscarriages of justice in the cases I have just mentioned. As a person who has pursued the cases of the Birmingham Six, the Guildford Four and the Maguires for some considerable time, I see the Sir John May inquiry into the circumstances of the evidence of the Guildford Four and the Maguires as an opportunity for this committee to review in depth not only the charges on which they were convicted but to go further and extend this inquiry even to people in high office in the British police judicial system. It is not good enough to simply suggest that the prison officers or the police officers into whose hands they were committed were entirely to blame for having them in prison for over 14 years on charges of which they were entirely innocent. In the final analysis the small fry were not the ones who made the decisions as to how these cases should have been processed further, based on the evidence obtained. That is why I believe the Sir John May inquiry into these two cases should be wide ranging and fundamental.
In that regard, while I was in Strasburg last Thursday at a first class discussion on the Birmingham Six, it came to my attention that an advertisement was placed by the Sir John May secretariat inquiring into the cases of the Guildford Four and the Maguires inviting submissions from the public, either orally or by way of written submission. While newspapers come in here from the United Kingdom, that point may not have received wide currency. It is very important that anybody who may have a point of view on the Guildford Four and the Maguire family cases should make a submission to the Sir John May inquiry by writing to the secretariat as suggested in The Guardian and The Independent of London of last Wednesday, Thursday and Friday, and they could find the details from those advertisements. They could write to the secretariat. They could apply to present their case in person or they could make a written submission and no doubt very serious attention would be paid to those submissions.
I am not certain whether it is appropriate that our Government make a submission to that inquiry, but my intention as chairman of the Oireachtas all-party committee on these cases is to ask the Oireachtas all party committee to make such a submission to the inquiry whether it be a personal oral submission or a written one. We will be doing it as Members of the Oireachtas.
In relation to the Guildford Four and the Maguire cases, as far as I am concerned the Maguires must also be declared innocent. The Court of Appeal decided on a submission from the Director of Public Prosecutions that the Guildford Four had no further case to answer and in a technical way the Court of Appeal released them. However, I would not suggest for one moment that the English Court of Appeal is the best mechanism by way of appeal in the sense that this was not a full blown appeal by the Guildford Four.
The Court of Appeal released the Guildford Four on a technical submission by the Director of Public Prosecutions and I believe in my heart the Court of Appeal in their hearts cannot find it possible to review the Birmingham Six case in as a complete a way as it should be reviewed. I attended that Court of Appeal hearing and at the end of the proceedings I was astonished to hear Lord Chief Justice Lane hand down his decision without once commending the evidence proffered on behalf of the six men. He gave them not one positive response arising out of some 28 days of a hearing, which was an astonishing revelation to me. My conclusion, and I think the conclusion of the other people, was that the Court of Appeal, well intentioned though they may be in relation to matters of this nature, cannot find it in their hearts or in their perception, capacity or understanding of the accused to come to a conclusion on their behalf.
It is fair to say the team acting on behalf of the Birmingham Six produced very cogent, persuasive evidence. My belief is that the Court of Appeal, again in their wisdom, should have decided the appeal be heard by a jury and that the jury in the circumstances, particularly on the very debatable and doubtful evidence given by Dr. Skuse the forensic scientist, would have acquitted the men. There are two down and one to go in the sense that the Guildford Four have been declared innocent and it is now only a matter of time before the Maguires will be declared innocent. As we know, the Maguires and the Guildford Four cases are interlinked.
The Maguires were accused of having a bomb making factory and the forensic evidence obtained from the seven involved — the Maguire family, including two lodgers, Giuseppe Conlon, Paddy Maguire senior, Paddy Maguire junior, Vincent Maguire, Paddy O'Neill and Pat Hill — was so tenuous and so extraordinary that by any standards of evidence they should have been acquitted. It is very important to remember that Annie Maguire herself was charged with implication in the Guildford and Woolwich bombings but she could establish an alibi and consequently was released but subsequently she was arraigned on the basis of supplying bombs to the Guildford Four for the Guildford and Woolwich pub bombings. If the Guildford Four case falls, I would have thought that in justice and in fair play the Maguire case would automatically have fallen too. The Balcombe Street siege group — the active service unit of the IRA involved in Balcombe Street siege — took "credit" for the Woolwich and Guildford bombings. If one can be fair to the members of the IRA, then it is fair to say that they were and are the guilty party but the judge at that time could not find it in his heart to accept that they may have been guilty on their own rather than guilty in association with Paddy Armstrong, Carol Richardson, Gerry Conlon and Paul Hill.
Referring again to the Bill before us and the whole question of corroboration and a declaration in the minds of people of the innocence of the people we are discussing, in November 1977 the Birmingham Six applied to institute civil assault proceedings against the West Midlands Police. In 1978 Mr. Justice Cantley moved that these actions should be allowed to proceed. However, the police lodged an appeal against this decision and in 1980 Lord Denning, Master of the Rolls, upheld the police appeal with the following words which I use advisedly because effectively they have become somewhat of a cliché and in fairness to Lord Denning he apologised for them:
In the light of the release of the Guildford Four and a declaration of their innocence, if the six men win
—their appeal—
it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and improperly admitted in evidence and that the convictions were erroneous. This would mean that the Home Secretary would either have to recommend that they be pardoned or he would have to remit the case to the Court of Appeal. This is such an appalling vista that every sensible person in the land would say it cannot be right that these actions should go any further.
Subsequently I heard Ludovic Kennedy, the well known broadcaster, describe the Denning dicta — for want of a better expression — the Denning expression of an appalling vista as "the most shocking thing I have heard by any English judge". It is important to remember that Lord Denning was then Master of the Rolls which is the second highest judicial position in England.
That is the reason we are discussing the Bill before us. The Bill cannot be lightly dismissed. I have argued that maybe constitutionally it needs some tightening but that will be a matter for the Supreme Court in the final analysis. At the same time we have an obligation to express a point of view and it is for that that I praise the Labour Party because it gives us an opportunity to discuss widely the reasons for introducing the Bill. In the nature of things it is a talking point, but if the Bill is introduced on the basis of what happened in Guildford and Woolwich and the "Mulberry Tree" pub, and the "Tavern in the Town" on 21 November 1974 in Birmingham and if the Bill was introduced on the basis of a miscarriage of justice in the Maguire Seven cases, it should be examined once more.
While we have a deep interest in these three cases, taking into account that all but Carol Richardson are Irish, the three cases did not happen in Ireland and I am satisfied that it is most unlikely that they would have happened here. There are people who would argue that we should put our own house in order and I do not think that is an unreasonable criticism. I know the Nicky Kelly case and others will be thrown at me. Nevertheless we have an obligation in Ireland to pursue these three cases. Indeed, and I hope I am not treading on anybody's toes — we have an obligation to keep a very close eye on the Winchester case because the more I examine that case, the more I hear from the relatives and the more I delve into it, the more it becomes obvious that while there are two down with one to go, it may be two down with two to go.
We have an obligation and an absolute duty as members in this Irish democratic Republican jurisdiction to keep an eye on our own citizens in another jurisdiction— this happens to be an English jurisdiction — to ensure that they receive justice and that justice is seen to be done on their behalf. In that regard and on the basis that somebody may be foolish enough to read my contribution, I would like to pay tribute to a very strong radical, liberal tradition in the English psyche. Throughout their history they have had this tradition. This tradition presents itself as fair and reasonable. I believe it is that tradition of fair-minded English men and women which helped these cases most. Without the help — and I have said this on a number of occasions — of some members of the so-called English Establishment, whether it be Church or State, who took up these cases and who assisted in proclaiming the innocence of these 17 individuals we would not be as far today as we are. Some of the people in the Tory Party, who espoused the case of the Birmingham Six are decent people who have been described as Shire Tories and complete right wingers, could find it in their hearts to espouse those cases that have given rise to the Bill before us this evening. For that we should be most grateful. They are the same people of that radical, liberal, English tradition who will find it in their hearts and minds to espouse the cause of the Birmingham Six.
I am not in the business of predictions but keeping in mind that the Birmingham Six are in prison since 21 November 1974 and that they were convicted in August the following year, by my calculations they have been in prison for over 15 years. I would like to put a time limit on the release of the Birmingham Six. I want to praise all those people who have involved themselves with the Guildford Four, the Birmingham Six and the Maguires in the recent past. The more people who support the Birmingham Six case, because that is the case we are left with, and closely examine the Winchester case the better.
I do not in any way want to suggest or diminish the fact that there are three young Irish people still languishing in prison for over 12 months for a crime of which their families say they were not guilty. The immediate problem, as I see it, is the Birmingham Six. I would like to think that in the next 12 months we will see the end of this case and that these individuals will be released on bail, or that the incoming new Home Secretary, Mr. David Waddington, would find it possible under the mechanism of the Criminal Appeal Act, 1968, to release them.
Having visited the Birmingham Six on a number of occasions I know they do not want pardons as such. They would like to have the same treatment given them as was given the Guildford Four. Nevertheless I have argued with them and convinced some, if not all of them that it would be well to be outside prison seeking a declaration of innocence rather than inside prison having other people seeking that declaration on their behalf and engaging themselves in their own campaign for a declaration of innocence as, indeed, does the honourable and decent Mrs. Maguire. This is a most remarkable lady in every respect. She was in prison for a crime she did not commit. She served ten years in very difficult circumstances. She is a courageous and brave lady. She is concerned for a declaration of her own innocence and that of her six associates, including one deceased Giuseppe Conlon. The moment the question of the Birmingham Six arises, Mrs. Maguire and the Guildford Four say they want to support that campaign.
We have not heard much from Patrick Armstrong and Carole Richardson but I hope in the not too distant future we will hear something from them. From the moment Messrs. Conlon and Hill were released they made a special appeal on behalf of the Birmingham Six. That is the generosity of these people and it should be recognised. That is why I believe that within the next 12 months, led by the Government of this country, led by the Taoiseach, led by the Minister for Foreign Affairs in association with the Minister for Justice through the Anglo-Irish process, through the Anglo-Irish Agreement, and led by the various committees associated with the Birmingham Six, there should be a strong and concerted effort to maintain a public and ongoing campaign on behalf of these individuals. I would like to see that campaign take off with a strong impetus in England but that may not be. We have an obligation to keep the pressure — I cannot stand the word "pressure"— or the campaign at a high pitch and these people may well be released within 12 months. There are a number of options open. There is the mechanism under the statute available to the Home Secretary, there is the question of bail available to the courts and there is also the opportunity for the Director of Public Prosecutions to release them with a declaration of their innocence.
I do not want to stir the so-called greasy pot but I was a little disappointed with the new Home Secretary in that almost 24 hours after he took office he said he was not going to review the Birmingham Six case until there was new evidence. I cannot understand how a Home Secretary — no matter how bright, courteous and generous he may be — could have studied the case of the Birmingham Six in 24 hours and dismissed it on the grounds that he will not deal with it until new evidence turns up. I suggest that the Minister for Foreign Affairs immediately meets the new British Home Secretary and brings him up-to-date on the reality of the reasons for the Birmingham Six being in prison for crimes they did not commit and being convicted on the basis of evidence — confession and forensic — produced which, quite clearly, was not substantive or within the rules of evidence.
I suggest to the Minister for Foreign Affairs that he ask for the release of the Birmingham Six pending an examination of the special crime squad of the West Midlands Police and that they be given bail. I realise that the examination and inquiry into the West Midlands Police deal with the years 1986 and 1988 and only between those years. We are asked to believe that the special crime squad were good boys up to 1986, became bad boys between 1986 and 1988, and remain bad boys until they are declared to be good boys. I do not accept the logic of that argument. My view is — and I come back to the meeting which I hope will soon take place between the Minister for Foreign Affairs and the Home Secretary — that the Minister should ask for the release of the Birmingham Six pending, within the West Midlands inquiry, an examination of their case on a once-off basis. A number of the police officers under investigation by the West Midlands Police inquiry were involved in the Birmingham Six case, there is no gainsaying that.
The Deputy must finish now.
Thank you for your indulgence and that of your predecessor for giving us an opportunity to discuss this very important Bill. I welcome the Martin Committee and the appointment of a first class judge as chairman. I hope the committee will be made up of very powered individuals who will have something to tell us about criminal law and its procedures.
It is regrettable that we put a time limit on a debate such as this. I will continue in the same vein as Deputy Andrews by adding my voice to the main thrust of his contribution. If the Birmingham Six are not released by the time the new intergovernmental tier meet, it is a matter which should be high on the agenda for early consideration.
I welcome the fact that we are debating our criminal justice system and I hope that areas in need of urgent reform will be addressed by the committee promised by the Minister a week ago. Such a debate is particularly timely in the aftermath of the gross miscarriage of justice in the United Kingdom. The years served in prison by the Guildford Four, which resulted in their youth being savagely eroded, can never be redressed and no form of compensation can ever be regarded as sufficient when one considers the appalling circumstances of their conviction.
Nobody in high office in the Executive or Judiciary of the United Kingdom has formally apologised to the Guildford Four, which is a sad condemnation of a legal system which finds it so difficult to redress a judicial wrong. One comment from a high ranking member of the British Judiciary was disgusting. When asked why there was not a formal apology he replied that nobody said these people were innocent, they said that the manner of their conviction was wrong and that there was inadmissible evidence which led to the recent decision. I hope a formal apology might yet be made by high ranking officials across the water. I also hope that criminal prosecutions will be brought, where necessary, and that there will be no cover up in bringing all those involved to justice, even if that means going to the highest level within the stratum of the British legal system.
The judicial miscarriage that prompted this Private Members' Bill has not been corrected by the release of those involved and it is important to acknowledge that the decision to release them would never have been made but for the fact that the Guildford Four — like the Birmingham Six — are fortunate to have a number of courageous and tenacious lawyers and public figures constantly keeping their grievance before the public. I am sure, a Leas-Cheann Comhairle, that you will forgive me on this occasion if I compliment the previous speaker on the work that he, as chairman of the committee, has undertaken over the past number of months. The work of Deputy Andrews and the committee played no small part in the decision and I hope, notwithstanding the success in the Guildford Four decision, the committee will keep this matter before the public through any avenue open to this House, the European Parliament or the new structure to which I referred at the outset.
My welcome for this debate, however, does not extend to the substance of the Bill because it is defective. I hope that its promoter, Deputy Spring, and the Labour Party, having had the benefit of certain ministerial assurances last week, will seriously consider not proceeding further. Deputy Spring said that justice delayed is justice denied. That is true but it is also true that justice hastily considered is equally bad law and would also have serious consequences. Notwithstanding the contents of the letter referred to by Deputy Ferris, I hope that the Labour Party will consider the Minister's assurances and the Fine Gael amendment which would allow this matter to be considered by a special committee which would not only look at the matters raised in sections 1 and 2 of the Bill but would further expand to discuss the general areas of our criminal legal system.
We must bear in mind the proper context in which to discuss the provisions of the Private Members' Bill. We cannot over-emphasise the need to tackle our crime problem as a matter of urgency. Even if we see a certain stabilisation in the crime rate, we must constantly remind ourselves that there is no such thing as an acceptable level of crime. Law enforcement is one of the really large tasks at present confronting our society and has a major impact on the quality of life enjoyed by the vast majority of our citizens wishing to live in a peaceful, ordered society. The incidence of crime here is at an alarmingly high level. Violence in our society has not abated as the daily quota of armed robberies clearly demonstrates. There is no doubt that the members of the Garda Síochána enjoy the support and confidence of the vast majority of people in this State. While there is clear need for a criminal law review and for codification of elements of the criminal law, to act hastily in the manner proposed in this Bill is not advisable. We all wish to live under a legal code and system geared to serving the interests of our citizens as a whole, one in which we could have a certain degree of pride.
It is of vital importance for the day-to-day management of a democratic State that the exercise of power by each State institution be subject to a system of checks, controls and balances in order to minimise the risk of injustice. The type of controls envisaged in the provisions of this Bill, in my view, would benefit the criminal only and, as such, would not be in the best interests of society generally.
The overriding reason for the introduction of this Bill, openly admitted by Deputy Spring, stems from the miscarriage of justice perpetrated in Britain by those responsible for the conviction of the Guildfour Four. The most important aspect of that trial was the matter of the admissibility of the false confessions. I contend that the provisions of section 2 of this Bill would have the effect of outlawing all confessions made without the benefit of corroborated evidence. This could have grave implications for the operations of our criminal law code and, in fact, would benefit many law breakers.
It is important to examine the regulations governing the taking of confessions. It is also important to underline the basic tenet running through our criminal law, that is, that no person charged is obliged to incriminate himself but he can do so at all times if he so wishes. Trial judges, at all levels, are obliged to warn an accused of this fact. Before any confession of an accused is admissible the prosecution must establish that the confession was made voluntarily, without any duress or undue influence having been exerted. The basic test of admissibility of a statement is whether it was made voluntarily. The Minister was correct when he stated that there are cases in which there is no corroborated evidence at all but in respect of which convictions can be properly sustained. I request that Deputy Spring refer to this matter when replying tomorrow evening. Surely Deputy Spring is not considering outlawing or rendering unsustainable a conviction in respect of an accused who enters a plea of guilty — for whatever reason — to an offence? In accepting the provisions of section 2 — requiring the necessity for corroborated evidence — we are making it impossible for the State to succeed with a conviction on a confession of guilt alone. That will be the case no matter how voluntary such an admission of guilt.
I invite the Labour Party to reflect on the very common occurrence of an accused entering a plea of guilty, volunteering a confession, in order that he might receive a less severe sentence. It happens every day of the week. Somebody may be caught red-handed, may commit a crime and become a remorseful almost immediately deciding voluntarily, or when apprehended by the forces of the law, to come clean and make a confession. It happens in the vast majority of cases, probably in the hope that one will receive a lesser sentence from a justice by being upfront and admitting guilt. Rather than outlawing the confession — as the Bill does — what we should be doing is outlawing the confession improperly obtained. That is the nub of the argument which the provisions of this Bill ignore.
One cannot discuss the very important matter of the confession improperly obtained without referring to the Judges' Rules. I would hope that the expert committee proposed by the Minister under Mr. Justice Martin would seriously consider giving statutory effect to the Judges' Rules rather than view them as a set of rules which constitute a mere guide for police officers in the taking of a statement from a person suspected of having committed a crime. Given that the Judges' Rules have not got the force of law, are merely administrative directions to police officers, I hope consideration might be given to tightening them or giving them statutory effect. The Judges' Rules have been part and parcel of our legal system for quite some time. The first four have been with us since 1912. It has been clear that these rules constituted no more than guidelines for police officers. Rules Nos. 7 and 8 are of particular importance in discussing the provisions of this Bill which arose out of the unfortunate consequences across the water. Judges' Rule No. 7 clearly states:
A prisoner making a voluntary statement must not be cross-examined and no questions should be put to him about it except for the purpose of removing an ambiguity in what he actually said.
Even more importantly, Judges' Rule No. 8 says:
When two or more persons are charged with the same offence and statements are taken separately from the persons charged, the police should not read these statements to the other persons charged but each of such persons should be furnished by the police with a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charged desires to make a statement in reply the usual caution should be administered.
Clearly, having regard to what we know so far from the manner in which the statements were obtained from the Guildford Four, the Judges' Rules must have been thrown into the nearest wastepaper basket. That is an indication of how important it is for us to consider giving legal effect to the Judges' Rules and not have them remain as mere guidelines which may not be enforced from time to time or to the same degree as if they were incorporated on the Statute Book.
At present a statement obtained in breach of the provisions of the Judges' Rules is admissable if it can be shown that such a confession or statement was voluntary. The fact that it is a voluntary confession does not take away from a judge's discretion to refuse to admit the evidence if it has been obtained in violation of the Judges' Rules.
It would be my hope that the expert committee would consider whether the discretion of the trial judge is sufficiently tight to meet the needs in this regard. The fight against crime must not be rendered remote. Were we to enact the provisions of this Bill, as at present drafted, we would be seriously hindering the forces of the State in the battle against serious crime. While accepting that the matter of a confession is of extreme importance in this fight, I contend that the provisions of section 2 are defective. The questions we should be addressing are confessions improperly obtained and the provision of sufficient safeguards against the obtaining of lawful confessions.
The Minister mentioned the provisions of the Criminal Justice Act, 1984 and the matter of tape recording. I was happy to note that at long last the initiation of pilot schemes for practical testing of this wide-ranging reform is under consideration at present. I might pose the question asked before: when? While the Minister will not have an opportunity of replying I hope he will place his views on that matter on the record at the earliest possible opportunity.
Accepting the principle of tape recording, we must ensure that the entirety of interviews in police stations are recorded rather than summaries, extracts, edited portions or whatever. I hope that requirement will be borne in mind when making the necessary regulations here, so that the entirety of conversations between the relevant parties is available on tape. It is absolutely essential that the regulations in the form of guidelines for such pilot schemes should be taken in the context of the judge's rules. They might even replace the judge's rules entirely. I believe the Minister has power in this regard under the 1984 Act.
It is important that all tape recordings should be made openly, not surreptitiously. The aim of such recording must be to produce an accurate record of the interview and to monitor police behaviour during the interview so that the court can be satisfied at all times that the product of the interview, namely the statement, is free from any duress or malpractice. This procedure has the sanction of the Garda Síochána. Nobody is saying that statements are illegally obtained to any significant degree, but the fact that the proceedings will be tape recorded will benefit members of the Garda Síochána as well as those who claim from time to time to be oppressed. On the arrival of the parties at a Garda station it is important that all the interviews be recorded and also that the suspect be cautioned and reminded of the fact that all his subsequent conversations are on tape.
Much is expected of tape recording. It will cause many changes in the criminal justice system. It will involve the disclosure of the central part of the prosecution case in summary trials. It may increase the "guilty" plea rate. It will certainly reduce contests over verbals and it will also minimise the number of complaints against the police force. It will undoubtedly tend to outflow oppressive questioning and is a reform which should be welcomed.
I hope the expert committee will see fit to proceed with haste as soon as the Minister provides the committee with the terms of reference. Tape recording alone could achieve what is intended by the Labour Party in this Bill. Regulations under the 1984 Act are perhaps a better way of proceeding than enacting the Bill before us. The Minister must give a clear and unambiguous statement of clarification as to the terms of reference of the special committee. Will the committee deal with provisions outside the scope of this Bill, such as the right to silence or bail? Will they consider changing the judge's rules? Will they have power to summon witnesses? Will their report be laid before the House and will the Minister provide the House with a date by which the committee might begin their deliberations and subsequently produce a report?
A further safeguard is that a judge might be legally required to warn a jury of the dangers of convicting an accused person solely on the basis of a confession, without any corroborating evidence. This is already used to good effect in regard to sexual offences and it is worth further consideration. The Minister conceded that point and I hope to see immediate action. Safeguards such as these will ensure that the type of confession unlawfully extracted by police inspectors who stand accused in Britain cannot be sustained in our courts. If that is the case, then we have done exactly what this Bill was designed to do.
I must express some fears about the powers vested in the Minister under section 3 to refer cases at any time he thinks fit. On initial reading I felt this referred to cases where confessions were at issue but I now see this is not the case. Where a person has been convicted on indictment of any offence the Minister may refer the matter back to the courts. I am somewhat afraid of vesting such unfettered powers in a Minister of the day. I would not be entirely against a review which would allow us to have a valve in the event of there being a miscarriage of justice, but the answer is not to allow the Minister for Justice of the day to have free rein to do what he likes and refer any case back to a court.
Does the Deputy trust the courts?
Yes, I have every confidence in our legal system and in our courts. I do not think it is possible for much evidence to be laid before this House which would direct us otherwise. We must safeguard at all times in our democratic society the separate institutions of the Executive and the Judiciary. By allowing a Minister unfettered power under section 3 we would be encroaching on a very important line. I am not entirely against a review and perhaps there might be scope to give power to the Minister in consultation with the Attorney General or other officers of the State. This might be thrashed out by the committee. Our providing the Minister with such power could give rise to very serious dangers.
The committee is welcome but its inauguration must be seen in the context of our criminal justice system. The onus of establishing the guilt of an accused never shifts from the prosecution. There is never an onus on the accused to participate in the proceedings other than by appearing in court and he has at all times an absolute right to remain silent, both during police investigations and the entire court proceedings. The fundamental principle before the court is not whether the accused is guilty but whether the prosecution succeed in proving that guilt. This distinction must never be forgotten. The prosecutor must prove beyond all reasonable doubt that the accused is guilty; on the other hand, the accused has no burden of proof whatever and not even a duty to disclose certain facts which may be at issue. We must remember when dealing with crime that we are dealing with a very small group within society who from time to time may be unfortunate enough to come before a court. Nevertheless, it is of vital importance that, however unfortunate or marginalised that person might be, he or she must be afforded a trial that is free at all times from any taint of prejudice or abuse.
I thank Deputy Spring for initiating this debate, which I do not think we would otherwise have. The debate has been worthwhile and I look forward to the positive results expected from this ministerial committee. I would like to be associated with the amendment in the name of the Fine Gael Party which broadly recommends the type of action the Minister has promised. It is high time that either the Law Reform Commission or a special commission such as that envisaged by the Minister takes a look at the manner in which the criminal justice system operates in the hope that we can ensure, in so far as we possibly can, that no miscarriage of justice can take place. I am glad to be associated with the debate. The Bill, as constructed at present, is not one that should receive the wholehearted support of the House and I hope Deputy Spring, along the lines of his earlier letter, might consider withdrawing it at this stage until we see what fruit this special committee will bear.
I too welcome the opportunity that Deputy Spring's Bill has given to Deputies to express their views on the very tragic happenings in the United Kingdom, which is the reason we are having this debate. Various background details to decisions taken by the British courts have been found to be sadly wanting and there were tragic consequences for the people affected by these decisions. The Guildford Four case, which came to a painful, slow, tortuous but satisfactory conclusion, brought to people's minds the question whether such an occurrence could take place in this country and whether our laws in this regard are adequate. In that context, Deputy Spring gave this matter some very detailed thought and put forward this Bill to the House. The Minister very adequately dealt with a number of the concerns of the House in the event of the Bill, as circulated at present, being enacted. In asking the eminent High Court justice, Mr. Justice Martin, to chair a special committee to look at the broad range of issues that need attention the Minister has taken the right course of action. On the understanding that it will not be too long before the chairman and his committee go about their task of looking at the present procedures and making recommendations, the Minister should then bring before the House the necessary changes.
A number of wrongs do not make a right, as can be seen from the tragedy of the Guildford Four, the Birmingham Six and other cases. Like Deputy Flanagan, I would like to comment on the excellent work carried out by my colleague, Deputy David Andrews, who raised the matter in this House at every available opportunity. He was very ably supported by members of all the parties across the floor in an effort to ensure that justice was seen to be done in the end. Sometimes there were doubts that the circumstances would ever change and those doubts still exist in the case of the Birmingham Six. Deputy Andrews, when speaking earlier, articulated a number of opportunities and options available to the Home Secretary in an effort to establish the bona fides of the claim of innocence by the Birmingham Six, believed so vigorously by many of us.
We have witnessed the very tragic circumstances surrounding brutal acts of bombing resulting in innocent deaths in the UK. As a result of the political table-thumping to bring about action and to bring the bombers to justice, there was a very severe over-reaction by the police and the results are only too sadly known to us all. That is not a satisfactory background against which to rush legislation on to the Statute Book. As was so glaringly seen in the UK, an over-reaction in those circumstances brought about a whole web of activities which resulted in the convictions of people whom we all believe to be innocent. The whole tragedy in Northern Ireland also spilled over into these cases and there was an urgency on the part of the police officers to charge people and bring them before the courts.
We must stand back and look coldly and calmly at the circumstances which apply in this country. We do not want to give the impression that there is a grave urgency for action on the basis of the workings of the Garda Síochána. There is no specific case where people have been found guilty in our courts which would in any way compare with the cases that have highlighted the need for a detailed scrutiny of the system. There should be a provision whereby such cases could be reheard. In those circumstances, the setting up of a working committee, as proposed by the Minister, is the right course of action. Deputy Spring and the Labour Party can recognise that this is not a matter that will be put on the long finger, dismissed or left with the great backlog of other legislation that is so badly needed. Action will be taken and the Minister, in his contribution, has given a very firm commitment as to the necessary course of action.
From a reading of the debate on this Bill last week, it is quite obvious that Deputy Spring quite simplistically adopted the procedures from the English law and embodied them in this Bill. As we only too well know, with all the safeguards in the English law, the tragic cases that we are only too familiar with still occurred. For that and other reasons we do not want a knee jerk reaction. We do not want to be seen to be rushing into putting legislation in place as a result of the recent outcome of the Guildford Four case. This whole area needs to be looked at. Deputy Flanagan has touched on a number of other areas that could be embraced in the workings of this committee. I would like to think that a time scale could be put on the workings of the committee so that they would report back within a minimum of three months and maximum of six months. In that way the Minister, before the rising of this House next year for the summer recess, could bring forward any changes that may be necessary. A target date of reporting back is necessary so that we can all feel that the subject is getting the urgent attention it so badly needs.
With that view in mind, I think the Labour Party Bill is premature and is an over-reaction. This subject needs attention and I hope it will be dealt with in a much more balanced and realistic way. The workings of the committee will probably highlight a number of other areas which need to be looked at.
Debate adjourned.