John O'Donoghue
Question:115 Mr. O'Donoghue asked the Minister for Justice the plans, if any, she has to introduce an inquisitorial system as practised in France and other European countries in place of preliminary examinations. [3897/96]
Written Answers. - Inquisitorial System.
The role of the preliminary examination in criminal trials is currently under review in my Department. This review arises from the general desirability of continuously assessing the effectiveness of criminal trial procedures, and more particularly from the concern which has been expressed in some quarters that preliminary examinations may in certain cases add unnecessarily to delay in the holding of trials.
My objective in carrying out this review is to ensure that the law on criminal procedure keeps pace with the demands made upon our criminal courts, while continuing to strike the right balance between effectiveness and the rights of an accused.
I will bring forward any proposals I may have for change, arising out of the review, as soon as possible. Without anticipating the outcome, perhaps I might make a brief comment on the suggestion contained in the question, that the preliminary examination should be replaced by an inquisitorial examination.
We need to consider very carefully whether one particular aspect of a different legal system could be successfully transplanted into our system. I am not saying that such a thing could not be done, but that any such move should be based on a detailed analysis of the benefits and disadvantages of the proposal in the context of Irish law, rather than a straightforward measurement of its effectiveness in a very different context.
The view is sometimes expressed that the adversarial system, which we have, is more a contest between opposing lawyers than a search for the truth, and that an inquisitorial system would better serve the interests of justice. While we must be open to constructive criticism of our procedures, and I certainly would not shrink from any necessary change, even if radical, we should not imagine that a critical debate is not taking place in civil law countries about the value of the inquisitorial system. Not only are some aspects of the inquisitorial system criticised in some of those countries, including the role of French examining magistrates cited in the question, but in some instances there is evidence of a shift towards a more adversarial system.
We have to be careful in assessing the merits of different legal systems, while keeping an open mind on any final conclusions. To take a practical example, and here I refer back to the concern that our system of preliminary examination may contribute to delays in criminal trials, we would all agree that delays should be kept to an absolute minimum. The reality is that delays also occur in those countries with an inquisitorial system, sometimes leading to long periods of remand in custody prior to trial.
In addition to practical considerations there are wider issues to be considered in any assessment of an inquisitorial system, in particular the degree to which such a system would accord with the constitutional safeguards afforded to accused persons. Particular care would have to be given to considering the extent to which the role of a judge could overlap or supplant the role of the prosecutor or the defence, roles which have always been separate and distinct, and the extent to which this could impinge upon the right of an accused to test the evidence offered against him or her.
In considering these matters, we must not forget the option of adjusting our existing procedures, if adjustment is needed, within the parameters of our present legal system. The Law Reform Commission, for example, in its reports on child sexual abuse and the law relating to dishonesty, has suggested that an accused who feels that there is noprima facie case should be enabled to apply to the court of trial for the case to be discharged, rather than a District Judge at a preliminary examination.
This suggestion, and all other aspects of this complex matter, need the most careful consideration. That is what I am undertaking in the review which is under way, and I will bring forward any proposals I may have for change as soon as possible after the review is completed.