JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Friday, 5 Dec 2003

Vol. 1 No. 44

Review of Criminal Justice System: Presentations.

Chairman

I welcome those appearing before the joint committee today and the viewers of TG4 who are following this series of hearings, over six days, which is part of our legislative and administrative review of the criminal justice system. This is the fourth hearing. The hearings have been organised in the context of real public concern at recent developments and questions being asked as to whether there is a need for reform of certain areas of the criminal justice system.

To date, the joint committee has met Victim Support; the probation and welfare service; Dr. Gerard Hogan, senior counsel; the Law Society of Ireland; Dr. Paul O'Mahony, Trinity College; the Irish Prisons Service; the Irish Human Rights Commission, and the Bar Council. Today, we are meeting representatives of the Irish Council for Civil Liberties and the Courts Service and Ms Ivana Bacik of Trinity College. Following our hearings, a report will be presented to the Minister for Justice, Equality and Law Reform which will contain the texts of all of the relevant submissions received and the recommendations of the committee as to the legislative and other changes necessary in order to bring about an improvement of the current situation.

I welcome the representatives of the Irish Council for Civil Liberties and the Courts Service and Ms Ivana Bacik. Each group will make a brief presentation lasting approximately six minutes after which two members of the joint committee will ask questions for approximately six or seven minutes each. The other members of the committee will then ask questions. I welcome Ms Ashling Reidy, director of the Irish Council for Civil Liberties. She is accompanied by Mr. Michael Finucane, a member of the executive committee of the council.

Before we begin, I remind Ms Reidy that while Members of the Oireachtas enjoy parliamentary privilege, she does not enjoy the same privilege.

Ms Ashling Reidy

I will make the presentation and we will both answer members' questions. Members already have a summary of our submission before them. We have also provided a more comprehensive submission in writing which they may have an opportunity to peruse later.

The Irish Council for Civil Liberties welcomes this review, not least because of its own history in focusing on criminal justice issues. As part of our strategic plan for the period 2004 to 2009, we had already identified the need for a comprehensive review of the criminal justice system. We had particular regard to the fact that a review of the criminal justice system in Northern Ireland had taken place. In the light of the Good Friday Agreement and the obligations to provide equivalent rights protection in the Republic it contains, we believe there is a need to consider aspects of the criminal justice system to see what measures can be introduced to improve the quality of the system in protecting human rights and delivering justice. It is in that context that we welcome these hearings.

It is important that the hearings should not focus merely on single issues which may have been given prominence in the media due to high profile cases but that they should also focus on the wide range of issues surrounding the criminal justice system. I acknowledge the joint committee's statement that it will be considering the matter in broad terms. Having said that, however, I know that it is interested in the issue of the admissibility of witness statements and has taken regard of the precedent in Canada where statements of witnesses which are later not sworn to in court may still be admitted as evidence of their contents in certain circumstances.

In 1999 similar concerns arose among Members of the Oireachtas and the public in respect of the trial of those involved in the killing of Detective Garda Jerry McCabe and the fact that the people concerned were charged with manslaughter, not murder, as a result of the unreliability of certain witness statements. In the aftermath, the Criminal Justice Act 1999 made provision for measures that could be used in situations where there was evidence of witness intimidation. These were, for example, the use of depositions sworn previously before a District Court judge which could later be used in evidence and the use of television or video link evidence in proceedings. There has not been widespread use of these provisions. In fact, we do not know whether they have been used, notwithstanding the fact that they were introduced to deal specifically with the intimidation of witnesses. We urge that those provisions already on the Statute Book be considered before we try to make hasty changes to criminal law which would not be in the interests of justice.

In the Canadian case to which I refer the Supreme Court of Canada in 1993 agreed to allow, as an exception to the hearsay rule, statements of witnesses not sworn to in court on the grounds that they were video-recorded, that they had been made under oath in full acknowledgement of the possible penalties of making a false statement or recanting a statement and that the witnesses would be available at trial for full cross-examination by the defence. Unfortunately, the situation in Ireland does not bear any similarity to that in Canada. We do not have mandatory video-recording in respect of suspect statements, nor is there a right for a suspect to have a lawyer present when being questioned by the Garda. In the light of the fact that there are proposals to extend the period of detention, without charge, in Garda custody, we recommend, in line with the recommendations of the European Committee for the Prevention of Torture, that both of these safeguards, mandatory video-recording and the right to have a lawyer present during questioning, should be introduced before those proposals are considered.

In addition to the high profile cases where trials have collapsed, there is a litany of cases where unreliable statements have been taken from witnesses in Garda custody. I refer to the Dean Lyons case and the recent acquittal of two youths in the Brian Fitzpatrick murder trial because their statements in Garda custody were not admissible due to their unreliability. As a general rule, we would encourage that all statements taken in Garda custody be recorded as a safeguard for both interviewees and gardaí.

Rather than focusing on the need to ensure witness statements are admissible in court, it is more important to consider how, in criminal investigations, the police can secure probative evidence at the earliest possible stage. The deposition procedure provided for in the Criminal Justice Act 1990 is one of those methods. It is also clear, however, that there is less incentive for witness intimidation if there is other evidence such as that of a forensic nature available at trial which can be relied upon in the prosecution of a crime. Emphasis should be placed on securing other forensic evidence and not just relying on witness statements. In that context, we also link this to the fact that witness intimidation tends to arise where there is a greater gap in the delay between a case being sent for indictment and going to trial. Where such delays arise on foot of a lack of resources, action must be taken as a matter of urgency.

When considering issues in the criminal justice system, the need to protect witnesses and victims is not seen as a quid pro quo for undermining the basic safeguards to a fair trial. Both elements of the criminal justice system are equally important and are not a quid pro quo. Under the European Convention on Human Rights which will become part of our law on 31 December, the European Court of Human Rights has stated there are obligations on states to provide protection for witnesses and equal obligations to ensure such protective measures do not undermine or take away from the right to a fair trial guaranteed under Article 6 of the convention.

With regard to the protection of witnesses, we encourage the joint committee to have regard to the extensive review of the protection of vulnerable and intimidated witnesses conducted in the United Kingdom. An interdepartmental working group examined the protection of vulnerable and intimidated witnesses and issued 78 recommendations. It proposed measures such as the provision of a proper witness liaison programme, early identification of witnesses who may be vulnerable and subject to intimidation and the provision of proper witness care in the courthouse during pre-trial proceedings, not only while the witness is giving evidence in court.

The ICCL is opposed to further use of the Special Criminal Court. In line with the Good Friday Agreement, emergency measures such as this should be drawn back rather than extended. The Government has failed to deal with three outstanding human rights case arising from emergency legislation. These are the Kavanagh case before the UN committee on human rights and the cases of Heaney and McGuinness which are before the European Court of Human Rights. As my time is up, I will deal with the rest of my submission in reply to questions.

Chairman

Will Ms Reidy outline the recommendations at the conclusion of her submission?

Ms Reidy

We encourage the conduct of a wide ranging review of the criminal justice system. It should be similar to the review conducted in Northern Ireland between 1998 and March 2000. We request that interviews with suspects be subject to mandatory video-recording and that suspects be entitled to have a lawyer present when being questioned.

With regard to the protection of witnesses, there should be a review of the support and liaison services available to witnesses and an examination of a system to identify vulnerable and intimidated witnesses quickly. We are against the extension of the use of the Special Criminal Court to deal with general criminal cases. This does not happen in any other common law country. We encourage the winding down of the use of the court.

Given other developments throughout the world in tackling crime, we encourage the joint committee to examine more creative ways of improving our criminal justice system through restorative and restitution justice measures and explore systems of community courts and community justice systems that have been effective in other jurisdictions such as the United States, as opposed to abandoning the safeguards to a fair trial provided for under the Constitution and the European convention.

Chairman

I thank Ms Reidy. It was opportune that she concluded on the question of restorative and restitution justice because Deputy Hoctor, the lead questioner, has a great interest in those matters.

Deputy Hoctor

I welcome all of the witnesses. Restorative justice is under-utilised in Ireland. The system originated in New Zealand. The project in Nenagh, County Tipperary, emerged from the Timaru project. We have a great deal to learn from other countries and other practices. Both Ms Reidy and Ms Bacik referred to the position in Canada. I look forward to reading the comprehensive report submitted by the ICCL. Will Ms Reidy elaborate on the witness protection practices in Canada to which she referred?

Ms Reidy

There are two issues in Canada. The first is not related to witness protection but, according to judicial rule, certain witness statements can be admitted in evidence for the truth of their contents, even if a witness does not swear to them in court. Evidential rules do not go into the issue of witness protection as they are not designed to do this. Canada has a statutory based witness protection programme under the 1996 Witness Protection Act. It specifically addresses the protection needed for case involving serious crime whereby witnesses who give evidence may need their identities changed and to be relocated having given evidence. The witness protection programme in Ireland came in for severe criticism by the Court of Criminal Appeal following the John Gilligan trial and is under review. Putting it on a statutory footing, similar to the one in Canada, would be of benefit.

Another witness protection mechanism is in place for all vulnerable witnesses for less serious crime who may include child witnesses and those who testify in domestic violence or sexual assault cases. I am not familiar with the Canadian jurisdiction in this regard and I am examining the systems being put in place in the United Kingdom because they follow on from the recommendations of the Standing up for Justice report. For example, all policemen are provided with guidelines and protocols on how to identify witnesses who may be vulnerable at trial. Points of contact are established for witnesses in order that, if they are intimidated or feel vulnerable, they know what to do and whom they can contact. For example, they may be provided with a pager system in order that they have direct contact with a liaison officer. The courts structure provides that witnesses will be put in separate rooms and will not be in direct contact with witnesses from the opposing party or the defendant, if they are prosecution witnesses.

A total of 78 recommendations are being implemented. Some are based on policy while others are based on legislation. I can supply the joint committee with a copy of the report.

Deputy Hoctor

I refer to securing forensic evidence against suspects. The Minister has referred to the taking of intimate samples in the context of the review of the criminal justice system. What are Ms Reidy's views on human rights in the taking of samples and DNA databanking in general?

Chairman

This relates to the question of the taking of swabs being reclassified from intimate to non-intimate.

Deputy Hoctor

Yes and the taking of hair samples.

Ms Reidy

On the issue of securing forensic evidence, we are supportive of this. The criminal justice Bill provides for cordoning off a crime scene more securely, for example. We welcome such measures. We are concerned that swabs can be taken without consent and by use of reasonable force. Given that practices in Garda stations have resulted in many injustices, we should not go down the road of forcibly taking samples without consent. DNA evidence does not change in a suspect from day one or two and, if a suspect decides not to give such evidence by consent, a simple procedure should be followed whereby a judicial order could be sought to take a sample because the individual is a suspect in a crime. It could then be taken in the presence of a lawyer and video-taped. There could not be allegations, therefore, that unreasonable force was used.

We are conscious, given the multicultural nature of our society, that, in the taking of swabs, cultural issues arise which relate, for example, to police officers inserting something into somebody's mouth. Legislative provisions relate to swabs in the mouth. There are other ways to take DNA samples. For example, a suspect's hair could be used. That choice should be given to him or her in order that he or she can choose the option he or she feels is less intrusive. This presumes there is no scientific difference between the DNA taken from a hair sample and a saliva sample. While we encourage the use of DNA as an investigative tool, there is no need to take it by force without safeguards because it can be valuable evidence if a prosecution is pursued. Such evidence will not disappear if it is not taken on day one. Evidence can be taken on day two or three of a criminal investigation.

Deputy Hoctor

We do not often hear about the conviction of innocent people in Ireland. Are measures in place to ensure innocent people are not convicted and imprisoned?

Mr. Michael Finucane

Serious consideration needs to be given to some of the measures being considered by the joint committee, in particular, practices while detaining people. There are examples of bad practices and, in some cases, flagrantly illegal practices being employed while people are in detention. The operation of such practices means that once evidence emerges - usually by way of statement - the person is at serious risk of being convicted on fundamentally unsafe evidence. A recent example is the Fitzpatrick case in which many rules were broken, almost on a systematic basis, during detention by police of two 15 year old boys who only had the fortitude of their parents upon which to rely and even that was not enough. There is always a risk that the system will break down and errors will occur. It is the duty of legislators and those involved in the criminal justice system to ensure there are sufficient safeguards in place tominimise the risk of errors or miscarriages of justice.

From my personal experience of dealing with detainees in custody and in offering them advice, Ireland's detention and interrogation system needs to be seriously overhauled and updated before we begin to change the balance between the suspect and the interrogator because the interrogator always has an advantage. The system, as it stands, is unsatisfactory. To extend periods of detention or make it easier to admit in court evidence obtained during detention would be undesirable.

Deputy Costello

I, too, welcome the Irish Council for Civil Liberties, Professor Ivana Bacik and the delegation from the Courts Service.

We are forever told that we do not need knee-jerk reactions to events or reports in the media. The Irish Council for Civil Liberties believes a wide ranging review of the criminal justice system as has taken place in Northern Ireland post the Good Friday Agreement is what is needed. Do we need an ongoing review of the system and, say, a type of standing review body? If so, who would be represented on that body? Perhaps Ms Reidy would address this question in the context of what has already been done in Northern Ireland.

Ms Reidy

There would be a great deal of merit in establishing a standing body to review the criminal justice system. I have not given much thought to its exact composition. The body in Northern Ireland comprised practitioners, representatives of Government from the criminal justice side and academics familiar with the legal system. It also commissioned many reviews from experts in the areas of human rights, community safety, restorative and reparative justice and juvenile justice. The standing body would need to include experts on the criminal justice system, victims and community representatives. It is not merely the work of a board to conduct reviews; it must also engage with and seek submissions from others who come in direct contact with the criminal justice system, provide examples of what can be done when injustices occur and work from an evidentiary driven review of the system.

The review in Northern Ireland covered pre-trial and trial issues, juvenile justice, community security, co-operation between all of the agencies involved and any further research required. It did not cover policing issues as that matter was being addressed separately.

Deputy Costello

The Irish Council for Civil Liberties has a strategic plan in this regard. How will it be developed?

Ms Reidy

The initial stage of development will involve an audit broken down into three sections: the pre-trial state of the criminal justice system; the trial state of the criminal justice system; and post-trial issues, including sentencing options, custodial and community sentencing and restorative justice options. We will need to audit current law in Ireland and examine the statistics surrounding crime and the rules governing pre-trial criminal investigations. We will then have to conduct a comparative review of the position in other countries. When that mapping exercise is complete, we will hold round table discussions with different sections of the community, including community justice groups and other sectors to examine where the system stands, what best practices are available, what does and does not work in the system and from whom we might learn. We hope, following recommendations from such discussions, to lobby on the issue.

Deputy Costello

I would like to leave open to the other groups the question of how they would see an ongoing review of the criminal justice system operating, the structures needed and who would be involved.

On the recommendation for mandatory video recording of all interviews with suspects and the entitlement of suspects to have their lawyers present, what is the council's view on mandatory video recording of all interviews with witnesses and victims? There appears to be an imbalance in the manner in which we treat witnesses and victims as distinct from other structures of the criminal justice system such as the law, the courts, judges and the Garda. Do we provide adequate protections? Would this be a protection? How does the council see the evidence of a witness being presented?

At the heart of the criminal justice system is the victim and the witness. The system can hardly operate effectively if they are not dealt with efficiently. How does the council view the new technology operating with respect to witnesses and victims?

Mr. Finucane

The Deputy has raised a number of issues. The ICCL would endorse some of his comments in regard to witnesses and, in particular, victims. Any demystification of the courts or legal process for a person going through it, in particular, as a witness or victim which can be extremely painful and traumatic, would be welcomed. Additional measures can and should be put in place, not just for the protection of witnesses and victims but also for their assistance. We should start from the base that one is assisting people as they go through the legal process and work up to protection, if necessary. That would be a sensible and practical way to approach the issue.

What is missing in many cases with respect to the role and input of witnesses and victims is practical assistance. I note in some of the submissions already made that the comment is made that even transport arrangements would make a great difference to many who have to come to court, some for the first time. An opportunity to go to the courtroom and get a feel for its location would remove much of the fear, nervousness and trauma people experience coming into the system for the first time.

On interviews, our position is that all interviews being conducted in police custody should be videotaped. Where interviews are conducted with a person suspected of a crime for the purposes of eliciting evidence that may be used against him or her, not only should the interview be videotaped but he or she should also have the right to legal assistance. It is disappointing that we are still debating this issue today. It has been a live issue for quite a number of years. I have been advocating this position for six years while older, better and more experienced people advocated it before that. We are not talking about leading edge technology to get videos independently recorded. The technology has been around for many years.

Chairman

Would the council encourage the videotaping of evidence, given immediately after a crime, of witnesses and victims?

Mr. Finucane

In a police station all interviews while in custody should be videotaped. There is room for discretion where one is interviewing a victim of a crime or a person who has witnessed a particularly horrific or traumatic crime. He or she may not wish to have his or her initial interviews videotaped. However, the counterbalance is that if the person's interview or statement is not videotaped at the first instance, he or she ought to be produced in court and made available for cross-examination by the defence, if necessary and required.

Deputy Costello

I would like to see that matter developed a little more but will not pursue it due to time restraints. What are the council's concerns regarding special courts, special legislation and the council's specific brief - civil liberties? How adamant is it that we should deal with the Offences against the State Act and the Special Criminal Court? Has any progress been made in this area considering one of the proposals arising from the Good Friday Agreement was that the area of special legislation should be addressed?

Mr. Finucane

Some progress has been made in addressing it but I do not see any progress being made in scaling it down. Ireland's obligations under the Good Friday Agreement extend to the downsizing of the use of emergency legislation and special courts. It seems that current feeling is more in favour of building them up and increasing their use which is bad for many reasons. Some cases which come before the Special Criminal Court are of public concern. It seems that when they are concluded, the concern shifts, not from addressing the problem or punishing the guilty offender but from the many flaws that have come out before the Special Criminal Court where, frankly, a person is given less of a trial than a person charged with any other offence. It is a fundamental tenet of justice that if people are accused of a crime, they are entitled to be judged by their peers. To be judged in front of a judicial panel, when another citizen charged with another equally serious and sometimes more serious crime is judged by his or her peers according to his or her basic fundamental rights, seems inapposite.

Deputy Deasy

I thank the members of the council for coming today. I have a question for Ms Reidy concerning the idea of community courts which she mentioned in her submission. Will she expand on this idea and explain what she means by it? Will she also tell us how effective she feels the drug court has been to date?

Ms Reidy

I will deal with the second question first. We are not in a position to say how effective the drug court is. I hope the courts system has better statistics. I am aware that the drug court is one model of a problem solving court and it will be telling to see how effective it is.

The community court system to which I referred is a model which looks at courts not just as a process but also as a problem solving forum. The court would deal with low level crimes summarily. An example of this type of court is a court operating in Manhattan which brings together the parties involved. The court is treated not just as a criminal justice tool but also brings together social and education services and looks at involving the community in crime solving and delivering justice. The person accused of a low level offence, or anti-social behaviour, comes before a single judge who is able to dispense sentences based on the model of restorative or reparative justice which could include community service and also involve providing the perpetrator with support services if needed for behavioural problems, drug problems or other issues which had led to the commission of the crime.

The idea of community courts came from advocates who also advocate community policing and much greater involvement between the criminal justice system and the local communities served. They do not simply see courts as an element in the penal system at the end of the process but as a form in which a range of issues can be addressed and in which the community and the damage done to communities can be recognised in the sentence handed down where an element of responsibility by the perpetrator is taken on board.

Deputy P. Power

I wish to follow DeputyHoctor's line of questioning on the matter of DNA sampling. There is a view that a DNA database should be expanded to include the wholesale taking of DNA samples throughout the population. Some suggest this would be the ultimate deterrent to the sort of crime with which we are trying to deal. I understand where the council comes from on this matter but could we have its view on the matter?

Ms Reidy

We would oppose the use of a widespread data retention system. We do not oppose the use of DNA in criminal investigations but data retention. We have made a submission to the Law Reform Commission on the matter. To counter the suggestion that it would be the ultimate deterrent, the widespread use of DNA sampling which has occurred in areas of Australia such as New South Wales has not proved to be an effective crime deterrent. There is concern that DNA is retained not for criminal justice purposes but, because it is useful in other contexts, for other purposes. Therefore, we are against its widespread retention.

Chairman

We have not heard the last of the matter.

Deputy P. McGrath

Ms Reidy has raised serious questions about what happens in cases where people are detained and questioned by gardaí. She made two recommendations. It would be a straightforward matter to install videotaping facilities in Garda stations if we had the resources. The second recommendation was to have a solicitor or legal adviser present at interviews. How would that work in practice? In some cases people can be held and questioned for a number of days. How would a legal adviser be able to stay for that length of time, bearing in mind the disruption caused to his or her practice? More importantly, the Bar Council has asked who would pay for it.

Mr. Finucane

Yes, we may have a lawyer remaining in a police station or in contact with a police station over an extended period of time. This is not new. It is happening in the United Kingdom and has been happening since 1984. Under the provisions of the British Police and Criminal Evidence Act, a person can be held for up to 36 hours and sometimes a solicitor remains in the police station or nearby on call until such time as he or she is required. He or she sits in on an interview and listens to the questions being asked. Where legal advice is necessary, he or she provides it and the person concerned answers the questions. This is not to obstruct the officers or get in the way of the investigation, simply to provide on hand legal advice. This would remove all of the allegations of ill treatment, bad practice or bad faith levelled against the Garda. We acknowledge that sometimes allegations are made where nothing has happened but this would remove the doubt.

Who would pay for it? The money would probably have to come out of the public purse where people could not afford to meet the cost of legal representation. This should be contrasted with the recent trial that I mentioned where there were two weeks of legal submissions with senior and junior counsel for both the accused and the prosecution as well as the Courts Service time and all of the other inbuilt costs. We would get very good value for money.

Chairman

I thank Ms Ashling Reidy and Mr. Michael Finucane of the Irish Council for Civil Liberties. I now welcome Mr. P. J. Fitzpatrick, chief executive of the Courts Service, and ask him to introduce his colleagues.

Mr. P. J. Fitzpatrick

I am accompanied by Mr. Noel Rubotham who is in charge of our reform programme; Mr. Diarmuid MacDiarmada, the director in charge of the Circuit and District Courts; and Ms Nuala McLoughlin, the director in charge of the High and Supreme Court offices.

Chairman

They are all very welcome. While members enjoy parliamentary privilege, witnesses do not.

Mr. Fitzpatrick

I thank the Chairman and members of the joint committee for inviting us to contribute to the debate on this very important issue. We have submitted a written submission.

Chairman

It has been circulated to all members of the committee.

Mr. Fitzpatrick

With your permission, I will just give a summary of the submission, following which we will be happy to deal with any queries that arise or from any other aspects of the submission.

Chairman

That would be excellent.

Mr. Fitzpatrick

As members probably know, the Courts Service was established in 1999 and its functions concern the administration and management of court offices as distinct from the administration of justice.

First, I would like to comment on section 2 of the submission. The Courts Service board established a working group to review the jurisdictions of the courts, the criminal courts, in particular. This was established in January 2002. It carried out a root and branch examination of the organisation of the courts. The objective was to identify the changes that should be made in the interests of fair, expeditious and economic administration of justice. The group included representation from many of the organisations involved within the justice system and engaged in a wider public consultation programme by inviting submissions from the general public and interested groups. It conducted extensive legal and statistical research and examined the organisation of criminal courts in other jurisdictions.

The report was completed in May 2003 and submitted to the Minister for Justice, Equality and Law Reform in July. Essentially in summary, the group made recommendations covering the area of summary jurisdiction, indictment jurisdiction and criminal trial process. In terms of the manner in which they might be implemented they can be broadly categorised as: recommendations, the implementation of which would require legislation by the Oireachtas or the introduction of rules of court; recommendations, the implementation of which could be facilitated by direction of the Chief Justice or the president of an individual court, whether as an alternative or a precursor to legislation; and administrative recommendations relating to the management and administration of court offices.

The recommendations relating to the rules committees have been sent to the rules committees and the presidents for their consideration. We, ourselves, are implementing those recommendations that are of an administrative nature. We have completed a summary of the recommendations. It is a very large report. We would be very happy to supply a copy but we did a summary. In doing so we addressed it particularly and specifically to the terms of reference of the committee, that is, it is focused very much on serious crime as distinct from crime as a whole.

Chairman

I appreciate that. Do we have it in the appendix?

Mr. Fitzpatrick

It is in the appendix. In section 3 I have set out the jurisdiction of the different courts with particular reference to serious crime which is essentially dealt with in three courts - the Central Criminal Court, the Special Criminal Court and the Circuit Criminal Courts.

Section 4 of the report sets out the waiting times. The biggest delay or waiting time is in the Central Criminal Court where it was about 18 months. With the assignment of extra judges and extra sittings it is now about 12 months. Waiting time in the Special Criminal Court is about 14 months. Generally, the Circuit Criminal Courts around the country and in Dublin are pretty much up to date. Occasionally, there are delays in some venues around the country. The president has a core of moveable judges and will tend to assign them. There is a constant reallocation of judges to try to ensure the waiting time in the Circuit Court is kept to an acceptable level. In general, District Court business is dealt with without delay. There is an average waiting time in Dublin of about five months.

The main reason for the delay in the Central Criminal Court is directly related to the number of cases coming to the court. The two categories of case are murder and rape. Appendix 3 shows that in 1993, 25 murder cases came to the court. In 2002 this figure had increased to 55. In 1996 there were 48 rape cases received and 82 in 2002. The number of judges assigned by the president of the High Court to the Central Criminal Court has gone from one or two on average to four and he may well have to assign a fifth. Obviously, if more judges are assigned to the Central Criminal Court, the High Court dealing with crime, difficulties will arise in other areas such as judicial review, commercial cases and other work. It is a constant juggling act.

Section 5 deals with a specific issue that we were asked to address, current best practice to prevent witness intimidation. The first thing to say is that it is not a function of the courts to secure a successful criminal prosecution. Obviously, their function is to administer justice. Intimidation may be a problem in some cases but the only recourse available to the court is to refer such a matter to the Director of Public Prosecutions. The court cannot of its own motion act as accuser, prosecutor and court. The prevention of intimidation and the protection of witnesses are matters for the Garda. Obviously, there are some things we can do in terms of the building programme in which we are involved, to which I will return.

Delays represent a matter of great concern to the board of the Courts Service, the presidents and judges of the courts. The working group, to which I referred, was chaired by the Supreme Court judge, Mr. Justice Fennelly. The report contained a number of recommendations which, in the opinion of the group, would speed up criminal trials. In particular, it recommended a preliminary hearing which the group considered would reduce the time involved by deciding a lot of issues before the trial.

Chairman

This has been mentioned before.

Mr. Fitzpatrick

The issue of delay is directly linked to the availability of judges and the increase in the number of cases, to which I referred earlier. With regard to section 7 and the issue of extending the admissibility of videotaped interviews, there is currently no prohibition on admitting, in evidence in court, videotaped interviews given by detainees in Garda stations. This is already done in line with procedures and regulations drafted by a committee chaired by the president of the Circuit Court, the Hon. Mr.Justice Esmonde Smith. We know that most Garda stations are now equipped. The working group, having looked at this issue, recommended that the act of utilisation of electronic recording should be promoted in the interviewing of all suspects. It also recommended that the existing facility for giving evidence by live television links, so to speak, should be extended by leave of the court.

The other issues, Nos. 8 and 9, are not really matters for the Courts Service. With regard to No. 10, the resourcing issue, the view of the presidents of the courts is that additional judges are required.

Chairman

I take it the witness is referring to the resourcing of the Courts Service.

Mr. Fitzpatrick

Yes. The resourcing issues include the need for additional judges and support staff. If additional judges are appointed, additional registrars are required and, possibly, some back-up staff. The view of the presidents of the High Court and Circuit Court, where virtually all serious crime is dealt with, is that additional judges are required.

The final issue - I have set out some of the steps being taken within existing resources - relates to courthouses. When the Courts Service was established, we inherited many court buildings in very poor condition, to put it bluntly. We have been involved in an extensive refurbishment programme, under which 35 court buildings have been refurbished to date. Six county towns remain to be dealt with and we have proposals for a major criminal court complex in Dublin, on which we are at an advanced stage of discussion with the Department of Finance. We hope to progress that by way of a PPP.

I have given the committee a very short, snappy summary.

Chairman

It was short and snappy but, at the same time, very comprehensive. I thank Mr. Fitzpatrick for his brevity. Members have some questions. If the replies can be kept short, we will be in a position to deal with more questions. Deputy Deasy is the Fine Gael spokesperson on justice matters.

Deputy Deasy

I appreciate that Mr.Fitzpatrick had to skate over the last point, due to time constraints. I wish to return to the refurbishment issue. Last week, a delegation from Victim Support made a point with regard to the importance of physical structures where victims are concerned. It was suggested that there was a very high level of under-reporting, one of the reasons being that people find courtrooms intimidating and the courts system very harrowing. I understand the Courts Service has undertaken a refurbishment programme of approximately €100 million. Relatively simple matters such as separate waiting rooms are important. Are such structures being put in place and what other ideas are there with a view to reassuring victims that courtrooms, the courts system and the whole experience in that regard would not be so harrowing or terrifying? I hope I am making my point clearly.

Chairman

It is a matter of providing a more protective environment.

Deputy Deasy

The reason given for non-reporting of crimes was that people are simply terrified of becoming involved in the courts system. What can we do to make it a better system for victims of crime?

Mr. Fitzpatrick

The Deputy's point is very valid. We have had a great deal of discussion with Victim Support, which is establishing new branches throughout the country. We consult with that organisation on the refurbishment programme. In all of the buildings we have completed, we have provided separate rooms which are available on an exclusive basis and include the use of tea and coffee making facilities and so on. With only 35 buildings refurbished to date, we still have a long way to go - there is no point in pretending otherwise. As I said, we still have six county towns awaiting attention and that is a priority. There are also other matters in progress.

It has to be said that courts, by their very nature, are intimidating places and there is a limit to what one can do in that regard. They are part of an adversarial situation and the stakes tend to be very high. All we can do is try to create as much comfort as possible for those who have to be involved in the courts. Our buildings committee includes judges and others. One of the issues we are considering is how the design of courtrooms can be improved, so that victims and other parties do not have to sit beside each other. Anybody who has been in courtrooms will know they do not easily lend themselves to segregation.

Normally, victim support rooms are provided and, where they exist, they are very good. Most recently, we provided one in the Four Courts, where there was no such facility for the Victim Support organisation. It is certainly a very private and well located facility, but we would like to have more such facilities in the Four Courts. In the new criminal court complex, there will be a suite of rooms for victims.

In looking at courtroom design, we have to keep in mind the functional aspect. In a relatively limited size of room, it is not all that easy to segregate people.

On the issue of information, one of the mandates given to us was to provide information to the public with a view to making court situations less mystifying and intimidating for people. We have an information office, on which we can provide details to the joint committee. We produced a series of information leaflets and booklets addressed specifically to the various parties who use the courts. Those publications included guidelines on dealing with the courts. We also have a substantial schools programme. In conjunction with the Department of Education and Science, we are developing a civics and scientific programme specifically for second level schools. It will include a module about the courts, in terms of their role and how they function.

Chairman

Deputy Deasy wishes to intervene.

Deputy Deasy

For the information of the meeting, the Estimates budget for the courthouse building project was cut by 4%. I referred earlier to the drug courts. How effective has that been? I believe it has been extended. In the drug courts, quite aggressive use is made of the community employment schemes to get people back into employment. Those schemes have been cut rather savagely this year. Will that affect the operation of the drug courts in any way?

Mr. Fitzpatrick

The drug courts system has been evaluated and extended. It is based, essentially, in the Dublin north inner city. The key to success is the involvement of all the relevant agencies - the Department of Health and Children, treatment centres, the Department of Education and Science, FÁS, the employment schemes and so on. Just to give the committee an idea of the situation with regard to the drug courts, there were 90 referrals up to December 2002 and about 120 this year to date. The number who joined the programme was 50 to the end of last year and approximately 70 this year.

There have been ten graduations, which may appear small, but the reality is that otherwise those people would be either in prison or dead by now. Some of them were really chronic drug abusers - I note that some of the Deputies present represent inner city areas. Every single success represents a life saved or a person kept out of prison. While, on the face of it, the numbers involved may appear small and, in an ideal world, we would like them to be bigger, it is a long-haul programme. Drug addiction is not cured overnight. The programme is supervised intensively by the judge and there are weekly meetings with the probation service and treatment providers in the Richmond court complex. Urine tests are reviewed on a regular basis.

To summarise overall, there were 120 referrals, 70 on the programme, ten graduations and 20 terminations for non-compliance or opting out. There is some element of a "big stick" approach also, in the sense that if people violate the rules or do not adhere to the conditions, they are, in effect, suspended.

Deputy Deasy

What is the position with regard to community employment schemes?

Mr. Fitzpatrick

Having regard to the numbers involved, one hopes it will not impact. I am certainly not aware that it has impacted yet.

Chairman

I congratulate the ten former drug addicts who have graduated. It is a great achievement.

Mr. Fitzpatrick

For many, the time spent on the drug court programme is the longest they have spent out of jail. One of those who graduated had been in and out of jail for 30 years. It is a chronic and repetitive problem in many cases. Although the drug court programme is slow and long, it is excellent. Every agency has assigned dedicated staff to it on an exclusive basis. Some gardaí, probation and welfare officers, nurses and doctors work exclusively with the court.

Deputy Deasy

Does Mr. Fitzpatrick know if the reduction in the number of community employment places will affect the drug court programme? Will he let the joint committee know if the cutbacks have an impact? It is important. There may be potential problems if those involved in the programme do not have community employment places.

Chairman

That is certainly a good recommendation. We will include it.

Deputy P. Power

It is a priority issue.

Deputy Deasy

I think so.

Mr. Fitzpatrick

In fairness to the other agencies involved in the programme, I should clarify that they have given resources to it as a matter of priority. My colleague, Mr. Diarmuid MacDiarmada, is much more intimately involved than me in this project. We hope resources will continue to be provided.

Deputy Deasy

The courthouse in Limerick was refurbished recently. One of the reasons the recent trial of a person accused of the murder of Kieran Keane——

Chairman

I do not want the Deputy to refer in any way to a specific case.

Deputy Deasy

Fair enough.

Chairman

We will speak in general terms.

Deputy Deasy

Court cases were moved from Dublin to Limerick for very good reasons, which I supported at the time. The Garda authorities believed the decision would reduce the number of man hours consumed by journeys to Dublin. The decision of the Courts Service to hold some trials in Limerick has, unwittingly, led to the joint committee's hearings. I am not criticising the committee's work - we are here for all the right reasons. Representatives of the Law Society have told the committee that they do not believe intimidation is widespread. The submission of the Courts Service submission seems to suggest that intimidation is certainly a problem in some cases. Dr. Paul O'Mahony of Trinity College told the committee that intimidation was endemic in certain neighbourhoods. What is Mr. Fitzpatrick's experience in courts throughout the country? Should we be worried about the matter? Does his experience suggest that it is widespread? Some have poured cold water on the idea that this is a problem. I would like to know Mr. Fitzpatrick's feelings on the matter.

Chairman

We are seeking clarity. What is Mr. Fitzpatrick's position on the matter?

Mr. Fitzpatrick

If there is intimidation, it is a very serious matter. If it is widespread, it affects the courts system on a fundamental level. One hears of occasional cases of intimidation but it was not widely felt in the courts system that it was rampant until recent times. Having spoken to the presidents of the courts, if intimidation is taking place, very few know about it. It can happen in many subtle ways. It is very difficult to establish with any certainty its extent but it seems to the Courts Service - I do not say this in any definitive way - that it is relatively isolated, although there have been some high profile cases.

Deputy Deasy is right to say that in July the Central Criminal Court dealt with a small number of cases in Limerick, all of which went very well. It provided an excellent level of convenience for gardaí, the prison service and witnesses. It worked very well until July. It is still sitting in Limerick. It is sitting there today. I will not comment on the particular case referred to briefly. I do not think policy should be determined by a single case. I know that the case in question will not determine where the Central Criminal Court sits.

Chairman

I call Senator Kett who comes from the inner city area referred to.

Senator Kett

I welcome the delegation. I thank it for its written submission and commend the fine work it has done in its short time in existence. The suburbs of Dublin are probably as densely populated as the inner city. What are the plans of the Courts Service for new courthouses in suburban areas? Has it identified locations to that end?

Mr. Fitzpatrick

I thank the Senator for his kind introduction. A great deal of the work being conducted in the city centre is at variance with the policies of every other public body in the city. We are actively looking for new courthouses in some large satellite towns. The courthouse in Swords is in poor condition and a new building is needed rather than refurbishing an inadequate building. A similar situation prevails in Blanchardstown which has a large population. Additional services are required in the north Kildare region - I refer to places such as Leixlip, Celbridge and Maynooth, as well as Lucan nearby in County Dublin. Kildare County Council has made an interesting proposal in that regard. It plans to construct a multi-purpose civic centre with some private involvement.

The board has approved a policy that courts and associated offices should be provided in large satellite towns. People living in such towns who receive maintenance payments from spouses through court offices should not have to go to the city centre. They should be able to go to local offices in places like Swords, Blanchardstown or Tallaght. The policy being pursued is to provide District Courts in such areas. I will give an example of the volume of cases handled by the courts. I appreciate that the joint committee is discussing serious crime. The District Courts account for approximately 500 of the 750 cases that go through the courts system each year. The highest volume of work is at District Court level.

Senator Kett

I read in the annual report of the Courts Service for 2002 that the Judicial Studies Institute's budget had increased from £5,000 in 1999 to €360,000 in 2002. Do judges participate in staff training under that budget? If one wants to exercise people's minds, one should mention the issue of inconsistent sentencing. What part do judges play in spending the staff training budget?

Mr. Fitzpatrick

There are two separate budgets. The staff training budget is about €700,000 or €800,000. The budget to which the Senator referred is the budget of the Judicial Studies Institute which is run by judges. The budget of €360,000 is provided for judicial training programmes which are organised on a regular basis. Participation in such programmes has been obligatory for newly appointed judges since 1995. There is a very active training programme. The committee is chaired by the Chief Justice.

Chairman

What form of training is given to judges?

Mr. Fitzpatrick

They are often trained by judges from other jurisdictions, eminent professors or lawyers. District Court judges were recently advised of changes in legislation arising from the Children Act 2001. Conferences are organised and certain topics are selected.

Chairman

Senator Kett mentioned inconsistent sentencing.

Mr. Fitzpatrick

That is a matter for judges. Under the relevant legislation, I am not permitted to comment on the matter.

Senator Kett

I noticed in the report that the Courts Service employs fund investment managers. I assume they are charged with managing the service's pension fund.

Mr. Fitzpatrick

The courts hold approximately €800 million in trust for wards of court and minors. A substantial review of the system was conducted recently. It has been computerised. We had to engage fund managers because the courts hold money in trust, mainly for wards of court but also for many minors. A person under the age of 18 years awarded damages is not allowed to collect the money until he or she reaches the age of 18. The funds were managed by individual offices prior to our establishment but they are now managed centrally to maximise the purchasing power of the fund. There was a tender competition and fund managers and investment advisers were appointed.

Senator Kett

How has the fund fared over the last two years?

Mr. Fitzpatrick

It is being set up. The investment advisers were engaged last year. Most of the fund was in cash until now.

Chairman

We are taking questions on criminal justice matters.

Senator Kett

One of the recommendations involved greater utilisation of teleconferencing. Mr. Fitzpatrick said in his presentation that he would examine this recommendation further. Has there been an analysis of potential savings, particularly in terms of Garda time, which greater use of teleconferencing might involve?

Chairman

For what purpose would teleconferencing be used?

Senator Kett

I understand it would be used to conduct interviews and take evidence.

Mr. Fitzpatrick

The taping of interviews at Garda stations is a matter for the Garda. Such interviews are admissible in court. The working group suggested that taping should be utilised more fully. The extension of the circumstances in which video recorded interviews might be deemed admissible by a court is a matter of legislative policy in the first instance. Such legislative policy will be developed in the context of the constitutional requirement of due process. There is an issue involving the entitlement of the accused to see his or her accuser.

Chairman

Would teleconferencing make it possible to have a witness in Dublin and a trial in Limerick or vice versa?

Mr. Fitzpatrick

A committee chaired by Mrs. Justice Denham is sitting to examine the issue of video conferencing. The extent to which it can be used in the courts will depend on circumstances. There may be possibilities with bail applications or preliminary issues. Whether or not it can be used for trials is another question. Video links are used at the moment in cases involving children. It has happened that children have provided evidence by video link in the murder trials of adults. There is a larger constitutional issue involved however.

Chairman

Time is almost up. I will take two short questions from members who have not asked anything yet. We will then listen to the presentation by Professor Ivana Bacik. Mr. Fitzpatrick's answers should also be short.

Senator Terry

Deputy Deasy spoke about intimidation. In his presentation this morning, Mr. Fitzpatrick said the prevention of intimidation and the protection of witnesses are essentially matters for the Garda. I presume he means that it is a matter for the Garda once the witnesses are outside the court. I expect that Mr. Fitzpatrick has responsibility for witnesses within the court. It is essential that protection is afforded to witnesses in all courts. The importance of victim support was identified by the Irish Council for Civil Liberties this morning.

Chairman

Does the Senator have a question? We are running out of time.

Senator Terry

Does Mr. Fitzpatrick feel he is responsible for the provision of protection to witnesses within the courts?

Mr. Fitzpatrick

The protection of witnesses within the courtroom is carried out by the Garda. A garda is present in the criminal courts because cases can be volatile. To the extent that we can provide separate facilities for victims and design buildings to cater for them, we do. Ultimately, we rely on gardaí within the courtroom to prevent any incident. Intimidation may be very subtle and not particularly visible. It might involve eye contact. Whatever can be done will be done. We consult and liaise very closely with the Garda which provides security from the Bridewell station which is right beside us.

Senator Terry

Access to the building is the issue. Witnesses should be allowed to use different entrances. Various rooms should be provided for them.

Chairman

It is a question we will have to return to as a committee at another time. We will invite the courts service to address members.

Deputy Ó Snodaigh

Is it intended to produce an explanatory guide or plans of the courts, especially in respect of the Four Courts facility? When witnesses arrive the place is chaotic. Mr. Fitzpatrick mentioned the business case for a new complex. When is it likely such a complex will be provided? While I am opposed to public private partnerships in this regard, I would like to know when the project will be progressed.

Mr. Fitzpatrick

A map of the Four Courts is available on our website. We have also published a leaflet.

Deputy Ó Snodaigh

I was referring to their availability to witnesses arriving at the courts.

Mr. Fitzpatrick

There is an information desk at the Four Courts. It is a large building in which signage must be carefully designed due to preservation orders. The building is of great architectural significance. The real issue in the Four Courts is that all business is dealt with in the same building be it civil or criminal. A new criminal courts building is proposed to remove criminal work from the Four Courts complex. At the moment, courts sit at different locations as the courts are wherever the jury rooms are. There is a lack of sufficient access and egress for prison vans with the result that prisoners are often seen and photographed in public.

Chairman

Deputy Ó Snodaigh has made a very valid point. Whatever improvements can be made should be made.

Mr. Fitzpatrick

Certainly, in the new criminal court building all of issues which concern victims, jurors and separate facilities will be addressed. Deputy Ó Snodaigh asked about the timeframe involved. At the moment we are conducting the business case. We hope, if approval to proceed is forthcoming, to go to the market next year.

Chairman

Thank you very much, Mr.Fitzpatrick. I am sorry the session has been truncated. I look forward to seeing the courts service back before the committee to answer a number of queries which members have in respect of a number of matters which have been raised. I appreciate the attendance of the delegation.

We turn now to Professor Ivana Bacik, Reid Chair of Criminal Law, Criminology and Penology at Trinity College, Dublin. She is very welcome to the committee. While it may not be necessary, I remind the Professor that while members of the committee have parliamentary privilege, she does not.

Professor Ivana Bacik

Thank you, Chairman, for the invitation to address the committee. I appreciate it very much. It is important to continue to review the criminal justice system. I speak as an academic lawyer and as a practitioner with some experience of the criminal justice system. While the committee has heard the point being made several times this week, I begin by stating that however important reviews of the criminal justice system are, the causes of crime lie in the very different areas of social and economic deprivation. It is impossible to tackle crime effectively without tackling poverty. Many other speakers have made the same point.

As I understand it, the committee seeks to examine gang crime and measures to tackle what has been described as gangland, organised crime. The committee seeks also to deal with witness intimidation. I will first deal with the Canadian precedent of tackling criminal organisations and gangland crime through legislation before moving to a discussion of the witness intimidation issue on which most of this morning's meeting has focused.

The committee sought references to the Canadian model of tackling gangland crime. A provision was enacted to introduce the concept of criminal organisation into Canadian law in 1997 on foot of public concerns about gang wars. It has been suggested that this model should be incorporated here. The Canadian legislation made it an offence to participate in a criminal organisation, to commit an offence for a criminal organisation or to instruct the commission of an offence for a criminal organisation. A definition of "criminal organisation" was included in the legislation. An organisation must involve three or more persons and have been established for the particular purpose of the facilitation or commission of a serious criminal offence.

The suggestion that a similar offence should be introduced in Ireland could be subject to certain criticisms and I would be critical of any move to introduce a similar measure here. Membership of a criminal organisation is not an offence in Canada. However, participation is and one must be found to have taken a proactive step before one can be convicted of an offence. The offence itself has been subject to serious criticism in Canada and, given the vagueness of the definition, there are doubts about its effectiveness. Irish law already has a measure, contained in the Offences Against the State Act, which could be used to cover crime carried out by criminal organisations. However, I would oppose using this to cover non-subversive crime. The various safeguards that must be contained in a criminal justice system would not be present if the measure in Offences Against the State Act was to be used as it envisages the use of the Special Criminal Court. Like the Council for Civil Liberties, I am opposed to any extension of the use of this court. Any idea that a criminal organisation offence should be introduced here should be opposed and I hope the committee does not consider it.

Deputy Deasy raised the issue of how widespread is witness intimidation. While we do not have empirical data on this in Ireland, the committee may be aware of a crime survey carried out by the British Home Office. It examined levels of intimidation and found that in criminal matters 8% of witnesses and victims had experienced some form of intimidation. However, the survey showed that less than 1% of victims said that the purpose of the intimidation was to stop them giving evidence. Most respondents said it was done either to annoy them or was part of an ongoing relationship of intimidation, generally arising from domestic violence. This gives us some idea of the level of intimidation with which we are dealing. It is isolated and tends to occur more often when the victim and offender are known to each other, particularly in domestic violence cases where we feel its incidence may be much higher.

In terms of measures that could be introduced to deal with the small number of cases where witnesses are intimidated, Canada has useful models such as the witness protection programme Act. The Canadian courts have powers to order witnesses to testify outside the courtroom, from behind a screen or by video link. Similar measures are being introduced in legislation in Britain whereby witnesses would be permitted to give evidence other than directly in court where there is evidence of fear or intimidation. Ireland could draw lessons from these models and introduce these practical measures to increase the likelihood of victims and witnesses giving evidence in court.

We should seek to make recommendations in a number of areas, such as greater liaison between the Garda, the prosecution service and witnesses before trials. We could also look at the increased use of screens or live video links for the purpose of giving evidence where witnesses are in fear - this is already provided for in section 39 of the Criminal Justice Act 1999. We could also look at the Canadian model and introduce a peace bond system whereby a witness facing intimidation from a particular individual can apply to court and ask that that individual be placed under a peace bond, which is a court order that he or she will not intimidate. Breach of this court order can give rise to a criminal conviction. For the most extreme cases of intimidation, we should see the introduction of a statute-based witness protection scheme, given that our current scheme has been criticised by the courts and is not placed in legislation.

Any changes of this nature that are introduced will have to be in line both with the jurisprudence of the European Convention on Human Rights and the Council of Europe recommendation of 1997 on the intimidation of witnesses and protection of the rights of defendants. The Council of Europe's recommendation is useful as it sets out the measures I mentioned that have been adopted in Canada, which provide practical support for witnesses prior to trial and minimises the risk of intimidation preventing the giving of evidence.

The committee has looked at extending the admissibility of pre-trial statements, be they video taped or written, and using them as evidence in court. Like the view expressed by the Council for Civil Liberties, I would be wary of extending this admissibility. There would be serious concerns around using such statements unless the person who made the statement is available for cross-examination in court. The real difficulty is that if the person is not available in court or by video link, it would deprive the defence of the right to cross-examine and thereby reduces the reliability of the statement. The law in this regard has already been changed in England and Wales but there have been concerns about insufficient safeguards. I understand changes are in the pipeline in England to ensure the law is tightened up in this area and where such statements are admitted, they have to be video taped and require supporting evidence. Express permission based on fear or intimidation must be granted and other safeguards must be put in place for the defendant. The Court of Human Rights has ruled in a number of cases about the need for additional safeguards where out of court statements are used as evidence in criminal trials.

We can also learn from the ways in which domestic violence is prosecuted in other jurisdictions. The Council of Europe, British crime survey and other studies recognise that the real issues of witness and victim intimidation arise mostly in cases where the victim and offender are known, particularly in cases of domestic violence. California has adopted a useful model around victimless prosecution and the need for the police to gather evidence around offences that have occurred on the assumption that the victim may not be available or willing to give evidence. There are useful lessons there. As the Courts Service said, the protection of witnesses is a matter for the Garda and we must look at practical measures to improve policing and supports for witnesses before we look at legislative changes, especially when we have existing legislation that could deal with witness intimidation if applied.

Chairman

I thank the professor for her clear presentation.

Deputy P. Power

I welcome Professor Bacik to the committee and thank her for her prior written submission. It was extremely well thought out and gave a good comparative analysis to the Canadian system. Ms Bacik is the Reid Professor of Criminal Law, Criminology and Penology. I was interested to note that she did not refer to the penal aspects of the criminal justice system in her submission - perhaps she was not specifically invited to do so. In her statement, she referred to the causes of crime in terms of social deprivation. As a criminologist, what weight does the professor attach, in terms of balancing causes, to the issue and importance of deterrence? Rather than tinkering with the nature of the crimes identified by the professor, should we now look seriously at deterrents? Should the penalties for the sort of gangland crimes that have been recently discussed be greatly and manifestly increased in terms of the amount of time served in prison? I am thinking of time served for murder. As a criminologist, does the professor think that we need to see someone who is guilty of murder serving a minimum of 15 to 20 years? While I am not saying that I necessarily subscribe to the view, I am interested in the professor's opinion.

Professor Bacik

I could simply say "no". I confined myself to the questions the committee had asked. I have written several articles on and conducted studies of the penology aspect of the Irish sentencing system. I disagree with any notion that increasing penalties is an effective deterrent. We need only look at the US system of sentencing to see that in a society where serious crime and murder levels are infinitely higher than in our own and where there are much more severe penalties, including the death penalty, no deterrent effect results from increased penalties or more punitive measures. That is not the answer to gang crime or other forms of serious crime, and I query locking people up for long periods. Obviously there are situations where that must be done for the sake of public safety. However, in general, imprisonment should be a measure of last resort, and we should be looking at other ways to prevent crime rather than long sentences.

Deputy P. Power

As an adjunct to the first question, and notwithstanding what Professor Bacik has just said, does she still think that sentencing is too lenient?

Professor Bacik

It probably lacks consistency in Ireland. I do not see it as too lenient as we have hugely increased the use of imprisonment. I have examined sentencing figures over the past ten years and found that we are locking up far more people now. We have far more prison places now than in the middle of the 1980s, even though crime was at the same level of indictable offences then with a smaller population, meaning that the rate was higher. If anything, our system is too punitive, but it lacks consistency, and I support the recommendations of the working group on the jurisdiction of the criminal courts which suggested some form of guidelines for sentencing. People's concerns, as Senator Kett said, relate to inconsistency in sentencing.

Deputy P. Power

My second question relates to Professor Bacik's paper and her criticism of the Canadian system, although it does not have a specific crime of gang membership. I would like to hear her opinion on the suggestion that trying to draw an analogy with the crime of directing terrorism, we should have a crime of directing gangland activity as an adjunct to other specific crimes of violence - murder, battery or whatever. While I fully accept Professor Bacik's points regarding the use of the Special Criminal Court and not using the same laws that apply to subversive activities for those under scrutiny here, would she accept this as an alternative crime which the DPP and the gardaí could pursue separately to the specific crimes of which we are all aware? In other words, someone would be convicted of crime A, and it would be manifest from the case that the crime had been brought about through membership of a gang and that the person had been directing gangland activity. I say that as someone who comes from and represents Limerick and lives very near to where much of that gangland activity takes place. I am very familiar with the players on the ground. Would this not be a welcome addition to our criminal code?

Professor Bacik

I am not convinced of the need for it. In our criminal law, offences already exist that could be used to deal with the situation the Deputy describes, where someone is not actively participating in a crime but is directing it from another physical location. We can already catch that in our criminal law with the doctrine of joint enterprise and common design in conspiracy and the common law on incitement. It is not necessary to introduce a new offence. There would still be the same practical problem of evidence gathering. That is why we have not seen more use of the existing offences. Equally, it would be very difficult to convict someone of an offence, even if one created a new offence of directing gangland activity. The Deputy mentioned the offence of directing terrorist organisations. That has not been used much either.

Deputy P. Power

My final question relates to evidence gathering. As a criminologist, what is Professor Bacik's view on much greater use of high technology and the invasive surveillance of gangs? Again, I am thinking of the sort of surveillance that occurred with "The General" many years ago. Should we have that type of very invasive surveillance of gangs? The second element in that, about which I asked Ms Reidy, related to the enhanced use of an extended and expanded DNA database.

Professor Bacik

Surveillance is a very important part of the policing function, and in such situations, perhaps we should be using surveillance more. That is obviously an operational matter for the Garda. However, surveillance alone cannot surmount the problem of a lack of witnesses, which I mentioned briefly in my submission in the context of the gardaí. They must have the trust of people in the community. Normally they have the trust of sufficient people to make people come forward when crimes are committed who testify without difficulty. However, in specific cases we have seen issues arising where witnesses do not have sufficient faith, either in the gardaí or the criminal justice system, to feel they would be safe if they testified. We must see how we can best tackle that and make people feel safer. That brings us back to the issue of giving witnesses proper supports and so on. Surveillance is one matter, but we also need to enjoy the trust of the communities, so that people will come forward to give evidence.

On DNA, my answer would be the same as that of the Irish Council for Civil Liberties. DNA is obviously very important as it has been used to acquit people of crime as much as to convict them. However, one must balance the collection of that evidence against the rights of people in custody.

Deputy F. McGrath

I welcome the group to the committee and thank its members for their contribution. In Professor Bacik's submission, where she talks about the causes of crime, she mentions educational and social disadvantage, drug addiction, early school leaving, and dysfunctional and violent homes as factors. Many of us on the committee agree with her analysis. However, another kind of violent criminal gang leader is emerging. I would say such people account for approximately 20% of the gangland leaders throughout the State. They come from middle income or well off families and manipulate people in poorer communities. I speak in particular of the cocaine trade, which is a new phenomenon. How does one respond to this and what legal measures would Professor Bacik suggest to deal with it?

Professor Bacik

Obviously, the criminal justice system should deal with people irrespective of their background. It has been a problem for many people that the criminal justice system is not perceived to deal in the same way with middle-class offenders as it does with working-class offenders. In an empirical study of the Dublin District Courts, we found that people from the poorest areas tended to receive the more severe sentences, irrespective of what offences they had committed. To put it bluntly, they were more likely to go to prison than people from less deprived areas. The first point is that the system must be even-handed and be seen to be so. This has not been the case in the past.

Deputy F. McGrath

Is Professor Bacik saying that the system is not even-handed?

Professor Bacik

In response to the Deputy's point about middle-class gang leaders, they should be treated in the same way by the criminal justice system as if they were from working-class areas. The Deputy asked how one can tackle causes which are not as directly connected with the deprivation I have described. If that phenomenon is arising, the fact that people can manipulate others still lies in deprivation and disadvantage. Those who tend to be brought before the courts on drugs charges are the couriers and the very lowest of the low in the drugs gang system. They are the mules, those who carry the drugs. Those who are responsible for directing their activities are generally not the ones who are brought before the courts. We must put in perspective the fact that the courts are not applying the ten-year minimum sentence because in many cases, those who are charged are not those to whom the ten-year minimum sentence should be applied. Poverty is still the main cause——

Deputy F. McGrath

Of 80% of crime, I submit.

Professor Bacik

——of people being in the position where they feel that they should get involved in crime.

Deputy F. McGrath

I accept that some 80% of crime is directly connected with social deprivation and disadvantage, but a type of violent criminal has emerged over the past five or six years, particularly in the cocaine trade. We will have to face up to them too. They are exploiting poorer communities.

In her submission, Professor Bacik refers to the current public concern over the perceived difficulty in bringing those responsible for gangland crime to justice. What is meant by the term "perceived difficulty"?

Professor Bacik

It is clear that there is a perception abroad that it is difficult to bring those responsible for this sort of crime to justice. We will have to await various developments in order to discover how true is that perception. I did not want to make an assumption that it is that difficult because I am not sure that this has been proven yet.

Deputy F. McGrath

Professor Bacik stated in her submission that many communities are in real fear due to the existence of gangland culture. Does she accept that there are many areas throughout the State and in the capital city which suffer from this nightmare of intimidation and that many communities feel let down by society in general? She referred to figures from Britain which show that 8% of people there experience intimidation. I worked in a school in a disadvantaged area for 20 years and I felt that 80% or 90% of intimidation was hidden, that the gardaí in the area were unaware of it and that only certain people knew about it. Does Professor Bacik accept that intimidation is more widespread than people perceive?

Professor Bacik

I accept that the levels of intimidation may be higher. The only empirical data we have is from the British crime survey and that was not derived from official figures but rather from asking people directly about their experiences. The latter is, perhaps, more reliable than official data but it still probably masks a higher level of intimidation in reality. The British crime survey indicated that where victims knew the offenders, levels of intimidation rose to 15%. We must be aware of that fact. In the communities to which we are referring, the levels may be higher because people are known to each other.

Deputy F. McGrath

There has been a great deal of discussion about the Canadian model. Are we losing the run of ourselves in considering what happens elsewhere? We have adequate legislation in place and in my view we should focus on tackling social disadvantage and putting in place more effective policing methods and court and support services. The latter will provide a resolution, not putting place further legislation or copying what happens elsewhere.

Chairman

I will now take questions from Members to any of the groups. However, will one of the representatives of the courts service respond to the remark that poorer people receive longer sentences in the District Court than those who are more well off?

Mr. Fitzpatrick

Sentencing is a judicial function and under the Act I am specifically precluded from commenting on judges' decisions. I do not wish to be unhelpful, but it would be entirely inappropriate and at variance with the Act for me to comment.

Chairman

We are somewhat in the same boat because of the separation of the Judiciary and the Oireachtas.

Deputy Moynihan-Cronin

My first question is directed to the representatives of the courts service. They stated that they do not have a role to play in respect of witness protection. However, the fact that there is an 18-month waiting list at Tralee Circuit Court is an issue for them because the longer cases are waiting to be heard, the more likely it is that witnesses will be intimidated. Why is there such a long waiting list in Tralee and what can be done to address this problem?

I am delighted that Professor Bacik raised the issue of domestic violence. I hope the committee will devote a specific section to dealing with it because, as evidenced by the recent SAVI report, victims do not have confidence in and do not feel comfortable with the courts system. Does Professor Bacik have any specific recommendations for the committee on how that matter can be dealt with?

Chairman

We are concentrating on criminal justice matters. I call on Mr. Fitzpatrick to address the serious matter of the waiting list at Tralee Circuit Court.

Mr. Fitzpatrick

I stated that there are a number of Circuit Criminal Courts, including that at Tralee, outside Dublin where the waiting time is quite long. There were two judges, the local permanent judge and another judge, working in that area, which is comprised of Clare, Limerick and Kerry. One of those judges was asked to chair the Residential Institutions Redress Board for the victims of child abuse and as a result a delay has been created. The president has assigned a second judge, in so far as he can, to the south-western circuit. That a number of judges are chairing tribunals and other——

Chairman

When does Mr. Fitzpatrick expect the difficulty raised by Deputy Moynihan-Cronin about the length of the waiting list in Tralee to be addressed?

Mr. Fitzpatrick

I know the president is aware of it and is doing everything possible to address it. Members will see from the appendix that the delay is kept to a next session basis. I know that he has appointed an extra judge to the circuit.

Professor Bacik

There are lessons to be learned from domestic violence surveys and measures that have been adopted to deal with issues of victim withdrawal from cases of domestic violence and the fact that victims often retract statements. The position is similar with survivors of rape. Some years ago we compiled a report on the experience of rape victims in the courts. We interviewed a number of women who had been through trial processes and developed recommendations based on our findings. Those recommendations could be applied here. They mostly centred on the need for the witness to feel that she was involved in the process and knew what was going on. In other words, it is necessary that she is kept informed of the stages of the prosecution. That applies to all prosecution witnesses, be they the victims of a crime or simply witnesses to a crime. Witnesses need to feel involved and they need to know that they can contact a member of the Garda with their queries. That is a way of rebuilding trust between witnesses and the prosecution system. It is also a way of ensuring witnesses testify at trial. Practical support, such as those to which Victim Support referred, and the need for contact are essential.

Deputy Deasy

The professor referred to policing at the end of her submission and stated she believes the Garda Síochána faces a difficult task in dealing with organised crime. She suggested that they do not have adequate resources to tackle the problem. The professor specifically mentioned a lack of training in terms of dealing with communities. Is additional funding or resources for surveillance activities required? Should overtime be increased or additional gardaí sent out on the beat?

Professor Bacik

My recommendation specifically related to training in dealing with witnesses and the communities from which they are drawn. It was based on the interviews we conducted with police and victims around the prosecution of rape. We found that gardaí felt they were working in a vacuum because nobody other than them was keeping victims informed of the progress of a prosecution case. Gardaí often felt they were not sufficiently trained to carry out the function of dealing with victims and witnesses. That could be extended to cover situations where gardaí are obliged to deal with prosecution witnesses in general.

As stated in the submission, however, there is an issue about trust in the Garda and the need for there to be a transparent system of complaints to deal with situations where gardaí abuse their powers. That is why I stated that resources also need to be invested in establishing a Garda ombudsman.

Deputy P. Power

Everyone would agree with Professor Bacik's recommendations, particularly those relating to greater liaison with the Garda, pre-trial depositions, the establishment of a statute-based witness protection programme and reporting restrictions in certain court cases. However, I put it to her that they are all somewhat lightweight and post facto in nature. I represent people, including gardaí, who work at the coalface in terms of dealing with the toughest and roughest people in this country. While I would personally sign up to every one of Professor Bacik’s suggestions, as a criminologist would she agree that they are too lightweight and that we need to adopt a much more aggressive approach in order to deal with the problem which has given rise to the need for these hearings?

Professor Bacik

I do not accept that the recommendations are lightweight. We are talking about extremely practical measures which, from my experience in the courtroom, would go a long way towards addressing people's fears in terms of testifying in a criminal court. One cannot dismiss such changes. It is important they are made and outrageous they have not been before now.

The Courts Service is doing a difficult job with limited resources. Some of our criminal courts are appalling. I have represented people in criminal courts where children were running around outside and screaming because there were no facilities to care for them and where there were no rooms for consultation with clients or for prosecution counsel to have consultations with witnesses. These measures are not lightweight; they are practical measures which would go a long way towards addressing many of our concerns.

I am not sure what is meant by heavyweight and aggressive measures. The criminal justice system has within it many heavyweight and aggressive measures in terms of policing and sentencing powers; it is a matter of applying them. Perhaps we have not applied them sufficiently until now. I do not accept we need to introduce more powers to be seen to be taking a tougher stance. We need to adopt practical measures to support witnesses, in particular, and make the prosecution and progress of criminal trials more effective. We also need to look at safeguarding the rights of defendants, something we do not do sufficiently.

Deputy Costello

With the appointment of two new High Court judges yesterday, do we have enough judges to deal with the delays being experienced in, say, Tralee and other locations? I compliment the Courts Service and the Judiciary on their proactive approach regarding the drug court, a matter about which I know quite a lot. I am aware community employment schemes will not be ringfenced. However, the current programme is only running on a pilot basis. Can it be extended?

I am mystified about the difficulty in defining what is a criminal organisation. Virtually all drugs in this country are imported and often two or more people are involved. A whole range of offences such as human trafficking and smuggling are amenable to the definition of organised criminal activity. Perhaps a representative from each delegation could respond to this matter.

Chairman

Because of time constraints, I will ask the Courts Service to address the question of the number of judges in the system and Professor Bacik to address the question of organised crime.

Mr. Fitzpatrick

In due course the two new additional judges will be of benefit. In the meantime, one of them is chairing the residential redress board while the other will head what was previously known as the Laffoy commission. The problem in Tralee is an issue for the Circuit Court. That position is vacant as a result of the appointment of the extra High Court judge. An appointment will, presumably, be made shortly.

Chairman

Does the Courts Service believe the system would operate better if there were more judges at Circuit Court and High Court level?

Mr. Fitzpatrick

I have to be guided by the presidents who manage and distribute business among judges. They tell me they need more.

Chairman

How many are needed?

Mr. Fitzpatrick

I do not have a figure off the top of my head. Any number of extra judges would improve the situation.

On the drug court issue, the pilot scheme was extended for 12 months with a larger catchment area. That term is due to expire in approximately six months. It is critical that every agency is able to commit resources. It succeeded in the north inner city because the treatment centres, the probation system and the Garda were able to assign dedicated personnel to this area. That was their first task and the key to its success. The scheme is resource intensive. We would like to extend it to other areas in Dublin experiencing difficulties. Treatment services are improving all the time. Operation of the scheme requires that all of the agencies involved, the probation and welfare service and the Garda, assign personnel exclusively to this programme.

Professor Bacik

Evidence on unlawful organisations prohibited under the Offences against the State Act tends to be given in terms of oath, ideology and structure. Where there is neither oath, ideology nor structure in a gang, it is harder to prove its existence or even membership of or participation in it.

Mention was made of transnational crime. As far as I am aware, Ireland has not yet signed up to the United Nations convention against transnational organised crime of 2000. The convention requires the establishment of offences around participation in an organised criminal group where transnational crime is involved. That is a different issue from that of domestic crime about which we are speaking.

Deputy Hoctor

I acknowledge the work of the Courts Service in the advancement of work at the courthouse in Nenagh which I understand will be operational by the end of January.

My question is directed at the ICCL. It relates to evidence taken from suspects during previous convictions. What guidelines are in place to protect the rights of a suspect? Are greater measures required to ensure there is not over-reference to previous convictions?

Mr. Finucane

There is no reference to previous convictions in a criminal case prior to conviction. Criminal convictions are disclosed to the judge when deciding sentencing. Evidence given in previous convictions is not used against a person when a trial is ongoing. It only becomes a factor when the matter of sentencing arises.

Ms Reidy

Deputy Costello asked about those who participated in transnational crime. Evidence surrounding aiding and abetting, participation and conspiracy is already available. I would caution - this was referred to by Professor Bacik - about the need to introduce new legislation. Very little of the criminal activity engaged in is not covered by existing legislation.

Senator Kett

What consideration is the Courts Service giving to access for the disabled in its new building programme? I read in the submission about access to jury benches but that appears to work more to the benefit of the courts rather than disabled people.

Mr. Fitzpatrick

Access is a serious issue. Most of our existing buildings were designed in a different century. The first matter to be considered is whether it would be possible to put modern courts in old buildings. It is possible to do this in most county towns - work on the courthouse in Nenagh will commence in January - because the local authorities have built new offices and vacated space traditionally occupied by the council councils. This has happened in many areas. Six county towns remain to be dealt with.

Wheelchair access is a priority. Last year we spent almost €2 million in making the Four Courts accessible to the disabled. The design of many of the buildings involved is protected. There are loops and Braille systems within courtrooms to facilitate the hard of hearing and those with eyesight problems. We do not only cater for those with physical disabilities. All of these matters are being addressed as we refurbish courthouses, many of which remain to be upgraded.

Senator Kett

What about wheelchair access?

Mr. Fitzpatrick

It is included. It is a routine requirement in all refurbishments undertaken.

Chairman

I am glad Senator Kett raised that matter. Equality forms part of our brief and whatever can be done to improve access for the disabled would be appreciated.

That concludes our discussion for today. I thank Ms Ashling Reidy and Mr. Michael Finucane of the Irish Council for Civil Liberties; Professor Ivana Bacik of Trinity College; Mr. P. J. Fitzpatrick, Mr. Noel Rubotham, Mr. Diarmuid MacDiarmada and Ms Nuala McLoughlin of the Courts Service for attending. Should any other items or additional points come to mind, would they, please, put them in writing and send them to the joint committee? We would be delighted to take them on board. On Monday, 8 December, we will meet Mr. James Hamilton, Director of Public Prosecutions; representatives of the Association of Garda Sergeants and Inspectors; and Mr. Barry Galvin, solicitor and former director of the Criminal Assets Bureau.

I thank everybody for attending today. I also thank the viewers of TG4 and look forward to our meeting on Monday.

The joint committee adjourned at 11.30 a.m. until 9.30 a.m. on Monday, 8 December 2003.