I understand there are time pressures. We thank the joint committee for giving us the opportunity to address it on the matters outlined in its letter of 7 November 2003. Its brief is widely framed and merits a more deeply researched and detailed response than it has been possible to compile in the time permitted. However, the society will address the areas for discussion set out in the committee's letter.
On the issue of witness intimidation and current best practice in other jurisdictions, we are of the view that a responsible legal system is one that seeks to strike a balance between the rights of the accused, victims and witnesses. It is a hallmark of a civilised society and should be valued as such. The society notes the joint committee's concern about the issue of witness intimidation. While we share its view that this is not a widespread problem and that most trials are proceeding in a normal fashion, we note what appears to be a high level of public concern arising from the widely reported facts of a case recently before the courts. While it would not be appropriate to comment on individual cases, certain categories of potential problem can be identified under the general heading of witness intimidation.
The first of these is the problem of witnesses refusing to come forward to make statements to enable proceedings to commence. The society is of the view that it is unrealistic to expect to eradicate witness intimidation through the use of any one strategy or approach. In particular, it does not believe recourse to legislative measures can provide a solution to such a problem. Clearly, where such difficulties arise, there are cultural and social issues involved which require to be fully researched.
Another potential problem is that of witnesses who have made statements and subsequently either refuse to attend to give evidence or refuse to confirm that evidence in court due to suspected intimidation. The vast majority of witnesses appear to have little difficulty in performing the duty thrust upon them to sit in the witness box in open court and give their evidence. The public, in general, appears to appreciate the fundamental importance of the right to trial in open court and the right of an accused to face his or her accusers and have their evidence tested. The society is committed to the preservation of the right to trial by jury in open court in its fullest possible manifestation. In the absence of empirical evidence to suggest witness intimidation is either widespread or pervasive, the society is of the view that no legislation should be countenanced that would restrict that traditional right in any way.
A further problem is that of witnesses who conspire together to change their statements or refuse to confirm the contents thereof. Where evidence of such a course of conduct is present, criminal charges in the nature of contempt of court, perjury or conspiracy may lie. It is interesting to note that such charges are pending against certain of the witnesses involved in a recent case. Where there is evidence of such behaviour, it appears the criminal process has adequate tools and mechanisms necessary to respond.
Media and public reaction to even the suggestion that such a factor may have been present in a recent case appears to confirm the view that such behaviour is not perceived as being widespread. Even an alleged isolated incident retains its power to shock. While the society, on the basis of the foregoing, would not recommend legislative interference with trial procedures, it feels the common law offences of contempt and perjury require to be statutorily defined.
We also have the problem of witnesses who having made statements later recant them and contradict the contents thereof in evidence. No legislative change should be considered which would dilute the duty of the prosecution to produce all of the relevant evidence in a criminal trial. To permit a statement known to have been recanted to be tendered in evidence, in preference to the witness's later version, is undesirable in the extreme and could contribute to a serious miscarriage of justice, as appears to have happened in at least one other jurisdiction. On the issue of successful prosecutions, the society is of the view that a successful criminal prosecution is one which results in the conviction of a guilty party, or the acquittal of an innocent person.
A prime cause of delay in criminal trials is the simple fact of insufficient judicial resources. Reducing the time between indictment and trial would have the effect of reducing the opportunity for intimidation of witnesses. Furthermore, where video-link cases are concerned, cases frequently do not get on for trial because of the unavailability of courtrooms with video-link facilities. The society notes and supports the recommendation of the working group on the jurisdiction of the courts with regard to the extension of video-link facilities. Delays could be further reduced if a form of "case management" was introduced for criminal cases, as happens in the United Kingdom.
With regard to extending the admissibility of videotaped interviews as evidence in court, the society feels all interviews with accused persons should be videotaped and preserved for trial without exception. Videotaping of witnessed interviews does not present any great quality of justice issue.
On other changes in the criminal justice system and the impact on the right to jury trial, the society is opposed to any measure which would detract from the right to jury trial, widen the use of non-jury courts, or create specific offences triable other than before a judge and jury. The society notes the strong support for the right to jury trial evinced by the report of the working group on the jurisdiction of the courts.
On the matter of resourcing, operational and administrative issues relating to the courts system, the society recommends that considerable additional resources be allocated to the Courts Service for the appointment of additional judges and support staff. As at November 2003, there are eight High Court and Circuit Court judges serving on tribunals of inquiry and commissions. No later than last Tuesday, 25 November 2003, some 350 criminal cases were adjourned to March 2004 in Wexford District Court because there was a backlog of some 66 family law cases to be heard.
The society supports the recommendations of the report of the working group on the jurisdiction of the courts and is of the view that given sufficient resources, considerable improvements in the operational issues relating to the courts system could be achieved. The society also supports the initiative of the Courts Service in its proposal to build a criminal court complex in the general vicinity of the Four Courts complex in Dublin, along the style of the Laganside courts recently completed in Belfast. It is submitted that if such a criminal court complex could be erected it would considerably reduce if not totally obviate the possibility of witness intimidation within the confines of the court complex by virtue of the design of the building whereby witnesses have a different entrance to that of defendants on bail and-or their associates. It is also the Northern Ireland experience that there is increased availability of courts, increased efficiency and a greater number of court sittings compared with the corresponding former elderly buildings before the Laganside complex was incorporated.
The society is particularly impressed with the design features which cater for the separate needs of juries, witnesses, defendants, child witnesses, witnesses in fear and victims, together with their families. In this regard, the society wishes to compliment the President of the High Court, Mr. Justice Joseph Finnegan, for recently giving up part of his chambers in the Four Courts for a victim support room which has transpired to be very successful.
I offer to bring any member of the committee to the Four Courts to see at first hand the difficulties that are encountered and which are dealt with in more detail in the society's full submission. I recommend that the committee consider visiting the Laganside complex in Belfast, having first seen the situation in the Four Courts. It was mentioned earlier in other presentations and in particular by the Prison Service that the common areas where prisoners meet jurors, judges, witnesses, families, is wrong and should not be countenanced.