Deputy Taylor argued that we are changing fundamentally the tried and tested system whereby a witness goes into a witness box in full view of the courtroom and is questioned in the presence of the judge, jury and counsel. Deputy Taylor's contention is that since we are making such a radical change he would prefer the more conservative formula suggested by Deputy Shatter's amendment that the judge should not allow evidence to be taken by television link unless the interests of justice require it. As the Bill stands, the judge is obliged to do this unless there is good reason for not doing so.
This relates to a small minority of witnesses in criminal trials. Part III of the legislation applies only when the witness is under the age of 17. That would be a very small percentage of witnesses in criminal trials. Secondly, it applies to a limited, narrow category of offences. We may be making a fairly fundamental change in the rules of evidence but we are doing so only in respect of a small percentage of the total number of people who will be giving evidence and only in relation to a tiny percentage of the totality of offences in which criminal proceedings are brought.
I do not accept that the change we are making in the giving of evidence under Part III will unduly prejudice an accused. If it is shown that this is in some way prejudicial to the accused or if it results in people being convicted who plainly should not have been convicted, the Government will move very quickly to change the legislation. I do not envisage that this will be the case, particularly in the light of international experience. This system operates without any great objection in most civilised countries. It is not the intention of the Government to make the accused more vulnerable or to bring about a situation where the accused in certain types of cases will almost certainly be convicted. Our intention is to protect vulnerable witnesses in relation to accusations of particularly nasty types of offences. That is the thinking behind the section. We are also trying to ensure that the trauma which these vulnerable victims may be made to suffer will not be such as to enable the guilty to go free, as has happened in many cases in the past.
I should like the Judiciary in this matter to take their responsibility seriously. If a court simply decides to use the television link even if it plainly should not be used, that will have to be recognised and taken on board by the Government. I do not envisage that it will happen. It has come to my attention, although perhaps not to the attention of Deputy Taylor, that some judges have been very quick to go public, not necessarily in the media but when speaking in a private capacity, saying that they find this part of the legislation seriously objectionable and are not prepared to put it into effect. We want to ensure that they will do so. We do not want to give them a formula such as "the interests of justice" to hide behind. We want to make it plain that the use of this equipment in such cases and for such witnesses will be the norm, unless there is some good and obvious reason why it should not be.
It has also been brought to my attention that the higher one goes in the judicial system the greater the expressions of reluctance seem to be. Hence Deputy Taylor's point about appeals is not valid. He made the point that judges do not always get their decisions right and the more points of law on which a person can appeal the better. Experience in this country and in the United Kingdom has shown that the courts of appeal do not always get it right either. In many cases the trial court was right and the court of appeal was wrong. There is no rule that the court of appeal must be right more often than the court of trial. We want to ensure that the higher echelons of the Judiciary in the courts of appeal do not take it upon themselves to hinder in any way the development of this system for vulnerable witnesses in these types of cases by overruling conviction after conviction on the basis that the television link evidence should not have been used. We want to make it crystal clear that this is to be the norm in this type of case. For that reason I could not accept Deputy Taylor's argument. I am not anxious to give any judge who may be reluctant to use this system a formula to hide behind.
Deputy Cotter questioned what constitutes a live television link. The United Kingdom legislation uses the phrase "live television link" in section 32 of the Criminal Justice Act, 1988. I am far from suggesting that just because the British do it it is right and we should follow the British system slavishly. I would point out, however, that the British system is very similar to ours and their experience is that the non-definition of that phrase "live television link" has caused no problems there.
Deputy Cotter asked how this system will work in practice. A demonstration of these facilities took place in the Four Courts on 29 April, 1922 at 4 p.m. I arranged for Deputy Shatter, Deputy McCartan and other Opposition spokesmen to be invited because they had said they would like to see how it worked in practice. The demonstration took place in Court No. 4 in the Four Courts and was given by AEL Video (Ireland) Ltd. Representatives of the Judiciary, the Bar and the Law Society were present, as were Deputies Máirín Quill and Alan Shatter. Deputy McCartan was unavoidably absent as he had to be in London for the Judith Ward appeal.
The system provides a separate monitor for the judge covering the witness room. It was suggested by some of those present that this would not be enough. Counsel should, they said, also have a similar monitor at their table, so that they too could be reassured that nothing irregular, such as prompting by gestures, was taking place. It was also said that the judge's separate monitor was inadequate in that, while it would show five-sixths of the witness room, it would not be detailed enough to indicate any "prompting" by an intermediary of a child witness.
In discussions with the firm's representatives afterwards, the Department of Justice said they would wish to have an additional monitor covering the witness room for counsel's table. They also said that they would want two "surveillance" cameras in the witness room. One would (as in the demonstration) cover the witness room or most of it. The other would cover the witness and any intermediary, so that any irregularity on the part of the intermediary could be detached. A switch on the monitor would select whichever camera the judge or counsel wished to operate. There is of course also a camera in the witness room giving continuous coverage of the head and shoulders of the witness and replayed to the large-scale monitors in the courtroom. The firm's representative said that there would be no difficulty in making these modifications. From the point of view that we are getting the technical facilities right we are making this as close as possible to the actual proceedings that take place in a courtroom so that every relevant person can see everything. My inclination is to let the formula in the Bill stand.