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.