JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Monday, 8 Dec 2003

Vol. 1 No. 45

Review of Criminal Justice System: Presentations.

Chairman

I welcome our guests who appear before the joint committee today. I also welcome back the viewers of TG4 who are following this series of hearings over six days as part of our legislative and administrative review of the criminal justice system. This is the fifth meeting in the series of hearings 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; the Bar Council; the Irish Council for Civil Liberties; the Courts Service, and Professor Ivana Bacik, Trinity College. Today, we will meet the Director of Public Prosecutions, Mr. James Hamilton, and members of his staff; the Association of Garda Sergeants and Inspectors; Mr. Barry Galvin, solicitor, who was the first director of the Criminal Assets Bureau; and Professor Finbarr McAuley, Jean Monnet Associate Professor of European Criminal Justice, University College Dublin.

Following our hearings, a report will be presented to the Minister for Justice, Equality and Law Reform containing the text of the relevant submissions received and the recommendations of the joint committee as to what legislative and/or other changes are necessary to bring about an improvement of the current situation. I will explain briefly the format of todays proceedings. Each group or individual will, in turn, make a brief presentation. Two members of the joint committee will put questions to the witnesses, following which other Members of the Oireachtas may also put questions. We propose to have a brief general discussion before concluding at 11.30 a.m.

The joint committee appreciates the attendance of the Director of Public Prosecutions and acknowledges that great care must be taken to avoid jeopardising in any way legal proceedings currently in train or which might be taken in the future. We also acknowledge the need to bear in mind at all times that, when engaged in direct contact with public officeholders such as Mr. Hamilton, only directly relevant questions falling within the specific remit should be put. The joint committee is pleased that Mr. Hamilton has agreed to assist its work in connection with technical questions within his area of responsibility but without becoming involved in matters outside of that area. It is fully appreciated that the investigation of offences is a matter for the Garda and that ultimate responsibility for the system rests with the Minister for Justice, Equality and Law Reform.

I remind Mr. Hamilton that witnesses appearing before the joint committee do not have parliamentary privilege which Members of the Oireachtas enjoy. I invite him to make his contribution.

Mr. James Hamilton

I thank the Chairman and the joint committee for inviting me to this meeting and extend my congratulations on this initiative. I note from what I have seen or read of the proceedings to date that it has been a very useful and worthwhile initiative. I believe the findings of the committee are likely to be of considerable assistance to the Minister. As the Chairman indicated, I had some reservations about attending before it because obviously I have to be very careful to avoid saying anything which would prejudice any particular proceedings in being. Everybody will appreciate how easily that could happen, if one is not careful.

First, to put my position in context, it is important to say I have no investigative role. My role in relation to investigations is solely that of offering legal advice to the Garda when so requested. However, I do not direct it as to how to investigate. It is important to bear this in mind because this problem is largely an investigative issue in terms of how to get evidence in cases.

Second - it is also important to say this - the problem is not just one for the criminal justice system. While I will comment in relation to criminal justice, there are much wider social and economic concerns in this area. Obviously, that is a matter which the joint committee may wish to consider but I will not comment on it. However, it would be a mistake to regard the situation as something which can be dealt with by some adjustments to the criminal justice system.

Third, in terms of context, by and large, the criminal justice system works. The vast majority - approximately 90% - of cases prosecuted in this country lead to a plea of guilty and of the remaining 10% which are fought, approximately half end in a conviction. Accordingly, approximately 96% of all cases have a successful outcome from the prosecution's point of view. For that reason, it is important to avoid knee-jerk reactions to problems arising and have the type of calm debate which the joint committee has initiated. It is important that changes to be made are carefully thought out and made only after full debate and consideration.

I will now comment on the type of changes which perhaps ought to be made. The first point to emphasise, though this may come as a surprise to many, is that most of Ireland's substantive law has been enacted relatively recently. Most areas of law have had new statutes within the last 20 years or so, although there are some gaps such as homicide, for example. In the area of concern to this committee, I believe the main issues are perjury, contempt of court and attempts to pervert the course of justice, which have not been put on a statutory footing and, consequently, are somewhat unsatisfactory. In my view, the main areas requiring change relate to procedural criminal law, rather than substantive criminal law.

I wish to comment on one of the suggestions made by many commentators, with regard to the use of the Special Criminal Court, that the regime of law which applies in relation to terrorist offences ought to be extended to deal with gangland crime. Obviously, this relates to an area of policy which is initially a matter for the Minister for Justice, Equality and Law Reform and, ultimately, the Oireachtas. I do not wish to get involved in a policy debate but there are some technical matters which I believe the joint committee should understand.

As the law stands, I have the power, under section 46 of the Offences Against the State Act 1939, to have a trial sent to the Special Criminal Court whenever I form the opinion that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to a particular trial. Given the place of jury trial in our constitutional scheme, I do not believe I should use this power lightly, nevertheless, it is one I have a duty to exercise if I form the appropriate opinion. The power has been used on a small number of occasions in recent years in respect of offences carried out by organised criminal gangs rather than terrorists. Sending a case to the Special Criminal Court is not an effective means of dealing with witness intimidation problems. It is, however, effective in dealing with a jury. One is likely to have exactly the same problem in the Special Criminal Court if there are problems in persuading witnesses to give evidence.

I will discuss the other measures that can be taken. A package of measures has been enacted to deal with terrorist crime. I refer not only to the Special Criminal Court provisions but also to measures such as extended powers of arrest and detention, the establishment of special offences such as membership of a suppressed organisation and direction of the activities of terrorist organisations, provisions relating to the giving of opinion evidence by senior Garda officers and increased power to draw inferences from silence. Some commentators have suggested the extension of a similar regime in the gangland crime area. Such an extension would represent a major change in the criminal justice system. There may come a time when society has to take drastic steps to defend itself, but the decision on whether we have reached that stage will represent a political judgment.

I understand the Minister for Justice, Equality and Law Reform is on record as opposing the idea of giving police officers the power to give opinion evidence on possible new offences, such as membership of a criminal gang. I can think of very strong policy reasons he would take that point of view. Essentially, such a measure would represent a radical shift away from the power of courts to investigate crime. It would give such powers to police officers. It has been accepted that such measures are needed to combat terrorism, but it can be argued that the threat of terrorism is of a different order than that posed by organised crime. It represents a much more direct challenge to the State.

Some of those who have given evidence before this committee have explained that there are difficulties in defining what is a criminal gang. My written statement argues that there are difficulties in defining a criminal gang in a way that is not circular. There may be constitutional difficulties in criminalising somebody in legislation.

It has been suggested that certain new offences should be created. I doubt whether such provisions would add very much to our legal code. If evidence exists to show that people are associating in gangs, the evidence is probably there to show that they are engaging in criminal conspiracy or some other offence. The problem relates to gathering evidence rather than to defining offences.

I have set out some of the issues relating to powers of detention in my written statement. There are some anomalies in the present system. Section 4 of the Criminal Justice Act 1984 provides for the detention of persons for six hours, with the possibility of a further six hours, in cases of all offences for which there is a penalty of five years or more under a statute. It does not cover offences for which there is a penalty of more than five years under common law. I understand that the Minister for Justice, Equality and Law Reform intends to amend this provision in the near future. There is also an anomaly in section 30 of the Offences Against the State Act 1939, which allows for arrest and detention, for a period which can ultimately be 72 hours, in cases of firearms and explosives offences. A murder which is carried out by means of firearms or explosives can be dealt with in that way and is usually dealt with in that way by the Garda. Other forms of murder which cannot be dealt with in that way are dealt with under the Criminal Justice Act 1984. There is a case for allowing all forms of murder to be arrestable and to be dealt with under the equivalence power contained in section 30 of the 1939 Act.

The question of admitting the original statement of a person has been raised. I refer to cases of persons who make statements in Garda custody but do not back them up when cases come to trial. It has been suggested that we should adopt a procedure similar to that in Canada, where original statements made in police custody are allowed to be put before the court. This procedure is in place not only to discredit the witness but also to serve as evidence of the truth contained in the original statement. The Canadian courts have laid down quite strict rules under which original statements are admissible. They insist on certain indications of reliability, such as the video recording of the statement or the presence of a solicitor acting on behalf of the accused. The Canadian provisions have been quite carefully thought out. I think such a reform would be quite desirable in this jurisdiction. I do not think such a measure would be used all that often, but it could be useful in the small number of cases in which it could be used. I have dealt with this matter in some detail in my written submission. I have given some detail about how it works in Canada in the appendix to the submission. It has worked to the advantage of defendants, as well as prosecutors, in certain cases.

What procedural questions need to be dealt with? The question of delay in the criminal courts is a major one because it causes great unfairness to victims and can cause unfairness to the accused. It can also have other consequences. I understand other delegations pointed out to the committee that witnesses who are keen to give evidence in the immediate aftermath of an event may no longer wish to do so as time goes by. The opportunity to pervert the course of justice or to intimidate a witness increases over time. The intimidation of witnesses may not involve anything more than walking past their home regularly, or staring at them in the street. It may be next to impossible to prove that certain acts are intimidatory.

It is said that there are delays of 12 months in the Central Criminal Court at present. If I apply today for a date for trial, the date I will be given will be 12 months from now. The case may not take place then, however, as between one quarter and one fifth of all cases that are listed are not reached and are delayed once more. It is unacceptable that some cases have been in the Central Criminal Court for four or five years. It is absolutely necessary that an additional three Central Criminal Court judges be provided until the list of outstanding cases has been cleared. It is not for me to say whether this should be done within existing resources or whether it requires the appointment of additional judges, but it should be done. The State is incurring expenses because additional judges are not being provided to the Central Criminal Court. If a case is listed for hearing, I have to pay counsel's fees and the defence counsel and defence solicitor are paid. We reckon that it costs about €250,000 a year to pay for the cases that do not get to the Central Criminal Court.

Things are generally good in the Circuit Court, with the exceptions of Cork, Limerick, Tralee and Kilkenny. There are high rates of crime in some of these areas. There are problems in the Court of Criminal Appeal. It has happened on many occasions that a defendant who wishes to appeal his or her sentence has already served it by the time the appeal comes to court. I have encountered the opposite problem when I have taken undue leniency cases. I have been told that although a sentence was unduly lenient, it would be unfair to lock up the person in question again as he or she has already been released. That is not satisfactory.

Other delegations have discussed court arrangements. A system which involves the segregation in court of prosecution witnesses from defendants and their friends is absolutely necessary. I suggest that one or two members of the committee should visit the beautiful new Laganside courts in Belfast, if they have the time. The circulation areas that have been provided in Belfast ensure problems of intimidation, such as people being stared at in the round hall, are avoided.

I have also mentioned the important question of prosecution rights of appeal. In this area, the system is very much loaded against the prosecution. As a result, decisions are often made in the course of a trial which make it more difficult for us to fight cases afterwards. They effectively become precedents but are usually not reported in the law reports. In the course of a trial, judges must make decisions quickly and do not always have time to think out all the implications. It is very important that where a point of law is decided, even if it is not directly a direction against the prosecution, there is a mechanism to move to a superior court to have it debated in a calm atmosphere. That does not exist at the moment. It has been recommended by the Law Reform Commission and in the Fennelly report. I understand the Minister for Justice, Equality and Law Reform intends to make provisions in this area. It is essential that it is done soon.

The Canadian ruling, in which people have become very interested, happened because the prosecution in Canada had rights of appeal. The prosecution was able to ask the old common law questions. We cannot do that here. One of the effects of this is that the defence sets the agenda in the making of new law. It can go to court and ask to have a law which it feels is wrong overturned. That I cannot do the same thing is quite absurd.

While I am conscious of time, there are a couple of other points I wish to make. The issue of juries must be examined. Important questions must be asked about how to protect jurors from intimidation. Should jurors be anonymous? I understand that currently the defence can see not just the names, but the addresses of jurors. Questions must also be asked about eligibility for jury service. The Juries Act excludes huge swathes of our citizens. Almost anybody with a professional qualification is either excluded or can claim to be excused. Naturally, most people avail of that provision if they are busy people and have professional lives to get on with. All members of the clergy are excluded. The days when other jurors would be intimidated by the presence of a clergyman in a jury box are over. All dentists, veterinarians and members of the Council of State are excluded. I cannot say why members of the Council of State should be excluded. We should move towards a system in which virtually everybody is included. I would even include lawyers who are not engaged in criminal practice. What one ends up with on a jury is not a group of 12 random citizens; it is a group of people who are very heavily weighted towards the unemployed, students and housewives. It is not, generally speaking, a representative sample.

There are some problems about exclusions from jury service. We do not exclude people who have criminal convictions abroad. Given the numbers of people coming to Ireland, it is time to examine this issue. We do not exclude people who have committed a serious criminal offence and received a suspended sentence.

There are other problems which involve cases in which there are many defendants. Each defendant can challenge eight people and, in effect, get rid of anyone they do not like the look of. The idea that people can be got rid of because one side does not like their appearance in court is rather a strange one. There is a great deal to be said for confining challenges to a paper exercise. The system of summoning people to court is absolutely archaic. The Juries Act predates information technology. It should be possible to draw up lists on paper, supply them to all sides, allow people to say who they challenge at that point and to pick a jury at random using electronic means from those who remain. This would avoid the wasteful process in which huge numbers of people have their lives disrupted by being brought to the courts.

We have also had problems involving the number of jurors. The number of jurors in a case cannot fall below ten which is a problem, especially in long trials, as one starts with only 12 people. We must look at this issue. Perhaps we could reduce the number below ten or start with more than 12 people on the jury.

Pre-trial hearings were recommended in the Fennelly report. The report's recommendations do not go far enough. While the report is useful in so far as it exists, its approach is rather timid. I would like to see far stronger disclosure requirements applied to the defence. At the pre-trial hearing, the defence should have to indicate what will be the nature of its case.

The Court of Criminal Appeal is an ad hoc court. It consists of one Supreme Court judge and two High Court judges. They are drawn in rotation and they see the duty as an interruption of their normal business. One should choose three judges to serve for a reasonable period of perhaps two to three years before being varied. The Fennelly report recommended establishing a panel of eight judges from which to draw the three. While that would represent a significant improvement on the present system, it does not go far enough. As the composition of the Court of Criminal Appeal is altered regularly, its jurisprudence is very inconsistent. Depending on who sits on the court, greater or lesser attention may be paid to legal points.

While the points I have made read almost like my wish list, many of the problems I have referred to are handicapping the prosecution of crime. I would welcome any support from the committee in attending to some of these matters.

Chairman

I am delighted we were able to afford Mr. Hamilton a forum in which to set out his comprehensive list and the important reform measures he identified in his submission. If interested persons wish to receive copies of the submission, can the committee's secretariat distribute them?

Mr. Hamilton

I have no problem with that.

Senator Tuffy

I thank Mr. Hamilton for his very comprehensive submission. I notice on page six of his written submission he states that there clearly comes a point at which society may have to take drastic steps to defend itself. He also states that a political judgment has to be made as to whether we have reached that point or whether more effective steps can be taken to deal with our problems without making major alterations to our system as a whole. Does Mr. Hamilton think we have reached that point?

In his report, Mr. Hamilton sets out the different measures which could be implemented. He mentions legal measures such as the Canadian rule and measures on organised crime. On the other hand, he mentions reforms including measures to address delays in the system, the lay-out of courts and pre-trial hearings. Which sorts of measures are more urgent to ensure the proper administration of the criminal justice system?

Mr. Hamilton

I do not wish to answer directly the question of whether we have reached the point at which we must take drastic steps. I do not wish to enter a policy debate. There are some questions I would ask if I were looking for an answer. What further steps can the Garda take to beef up and improve investigation of crimes? Has the Garda reached a point at which there is nothing more it can do? The committee will be meeting the Commissioner and that is an important issue to examine. Other questions include the degree to which forensic evidence can help and what can be done by way of covert surveillance.

I have already pointed to a number of areas in which the criminal justice system can be beefed up. If, having taken all of these steps, one still cannot deal effectively with people through the criminal justice system, that is the point at which one would have to begin to look seriously at taking drastic steps.

The most important issue to address is the delay in courts which makes it easier for people to be intimidated and to begin to feel afraid. Often they do not need to be intimidated because they know the people who are doing something are ruthless and have no concern for human life. It is natural, therefore, that anybody would be afraid in dealing with them.

Senator Tuffy

I understand from Mr.Hamilton's comments that a judge made the rule in Canada, whereas legislation would be required here, which could have constitutional implications, that is, it could require a referendum. Mr. Hamilton also noted the high percentage of successful prosecutions and described the rule as useful. Is the measure necessary as opposed to useful?

Mr. Hamilton

If we had such a rule, we would perhaps run one or two cases we would not otherwise run each year. It would, therefore, be useful in that respect. Judging by Canadian law reports, at least seven or eight cases have taken place, although there may well have been others which were not reported.

As regards the constitutional question, this is obviously a matter for the Attorney General and there may be different views on the issue. The provisions of the Canadian charter relating to the quality of justice are similar to those of our Constitution. The country's judges are also strong defenders of due process and civil liberties and its legal system of common law is virtually identical to ours. The measure has passed muster under the Canadian charter. Members should also remember that the Supreme Court of Canada unanimously upheld the rule and that two of the dissenting judges would have gone further than the majority. I believe the measure would have a good chance here, although I cannot be certain because our judges could take a different view.

Senator J. Walsh

I thank Mr. Hamilton for his interesting paper and valuable contribution to the work of the joint committee. He has mentioned that the success rate regarding cases brought to court is about 95% and that the evidence in a significant number of murder cases and, I presume, other crime cases, is insufficient to bring a case. Will he comment on this? What are the issues involved? For example, are the quality and preparation of files factors? Does he have any guidance for the joint committee on the issue of insufficient evidence?

Mr. Hamilton

The Senator's question is difficult to answer. Of the files submitted to us, I believe we prosecute in about two thirds of cases and do not prosecute in the remainder of cases. In the vast majority of the latter, insufficient evidence is the reason for not prosecuting. Having said that, one must remember that the Garda Síochána will send us a file in many cases in which it knows there is no case or a prosecution is unlikely. It does this to be fair to complainants and everyone involved. For example, if somebody makes a serious allegation, the Garda will not make the judgment that there is not enough evidence but will - correctly - refer the case to us. The figure should not, therefore, be construed as meaning there are many cases in which the Garda Síochána believes there is a case and we do not.

While I do not have the statistics, we have not received a file on a significant number of the many recent gangland killings. I do not know the factual basis of decisions not to submit files to us but presume the Garda did not have enough evidence in some cases and may not have had any in others. Of the files we receive on alleged murder and homicide cases, few are not prosecuted. The figure is small, no more than a handful.

Senator J. Walsh

Mr. Hamilton also mentioned the issue of jury selection. Other presentations we received stated the jury system was unrepresentative. I believe Mr. Hamilton is making the same point, while expressing caution about moving away from the current system. We will have to consider categorising certain types of crime.

Mr. Hamilton also made a comparison with terrorism offences. One could argue that the human devastation visited on society by drug barons and drug related crime has consequences, perhaps even greater than some acts of terrorism. Should we consider the possibility of transferring certain categories of crime to the Special Criminal Court, rather than moving away from the use of the jury system for such cases? I am aware Mr. Hamilton will not want to stray into policy areas.

Mr. Hamilton referred to the liberal application of rules on the granting of bail. On continental Europe, the rules are applied much more strictly, with suspected criminals often detained until their cases come to court. Would it be beneficial to shift towards the approach of the continental system not only with regard to bail but also perhaps to its inquisitorial approach to trial, as opposed to our advocacy approach?

Mr. Hamilton

With regard to the Senator's point about terrorism, drug related offences and many others wreak as much havoc as terrorism for a large number of people. The distinction between these offences and terrorist offences is that terrorist organisations directly attack the State and attempt to undermine and bring it down, whereas drug gangs are essentially involved in trying to make money and in the process do not care who they hurt or what they do. A distinction can, therefore, be made.

On the subject of bail, this is another area in which delay is a major factor because the longer a case is delayed, the more likely it is that a judge will argue it is unfair not to give the accused bail. Our courts are too willing to give bail on the particular facts of cases. While I am not sure the principles we have are necessarily wrong, their application is not always right. The observation of practitioners is that the decision depends to a great extent on which judge is presiding. There are many inconsistencies in practice in the different courts with some judges more ready to grant bail, while others are stricter.

I do not have any particular complaint about the quality of files. We have taken steps with the Garda Síochána to try to standardise and regularise procedures and avoid housekeeping problems such as files not being well paginated, statements being submitted to our office twice and so forth. As a general rule, however, I will not complain. It is important, however, that we make our requirements clear to the Garda and, similarly, that it makes its requirements clear to us.

Deputy P. McGrath

I welcome our guests. Mr. Hamilton has stated he favours pre-trial hearings. Will he comment on the practice by which a file referred to his office may contain as many as 50, 60 or 70 offences cited for prosecution, yet it transpires that the accused pleads guilty to three or four sample charges? Gardaí become frustrated when, having done a considerable amount of work and lined up perhaps 100 witnesses to appear in court, they are told at the last minute that the Office of the Director of Public Prosecutions has decided the case should proceed on the basis of a plea being accepted on three or four charges. Will Mr. Hamilton comment on this? Does he agree frustration builds up among gardaí when, having done all the work - perhaps it would be wrong to say wasted time - in preparing a case, they take the view their case has been largely thrown out because a guilty plea is entered on far fewer than the number of charges they would have preferred?

Mr. Hamilton

This matter is dealt with in the guidelines issued by our office. We always try to keep a case as simple as possible when presenting it to a jury and an unnecessary multiplicity of charges is not desirable. However, if many different incidents are involved, a question arises as to what to do in respect thereof. The rule we always use is that we only accept pleas to a sample number if they are actually cleared within my office. The sample incidents being pleaded to must represent a basis on which an appropriate sentence can be passed by the judge. In many cases, we expressly say we are granting acceptance on the basis that the charges represent a sample and that there were other offences.

There may be times, of course, when a plea is offered to a number of charges and when the evidence is stronger on some charges than others. On such occasions, our office and the counsel always have to ask whether a bird in the hand is worth two in the bush, especially if there is a possibility that a case or certain parts of a case may go down if it goes to a fight. Sometimes there are practical compromises but these decisions are not made without consulting the gardaí who deal with the case. The investigating garda would always be asked for his view on the matter. This is not to say his view would always be accepted. However, this is how the system works. Deputy Paul McGrath looks sceptical.

Deputy P. McGrath

My information is that they are not involved.

Chairman

Does the Office of the Director of Public Prosecutions take cognisance of the victims or their sensibilities?

Mr. Hamilton

Yes. Very much so. We have made many changes in recent years. In murder cases, for example, the families of victims are offered a consultation with the lawyers dealing with the cases in advance of the trial. They can consult far in advance, but they usually do this a week or so in advance. There are also instructions to the people I appoint to deal with the cases that families are to be kept informed about what is happening throughout the trials and about what procedures are in place. The same applies in cases of serious sexual assault. This is how the matter is dealt with.

Deputy Costello

I thank Mr. Hamilton for his valuable contribution. The DPP group is the first to appear before the committee which has put a figure on the number of judges it believes is required to get rid of the backlog. Everybody has mentioned that there is an inordinate delay and that it should be avoided. Mr. Hamilton suggested that there should be three new High Court judges. Would speeding up the process of dealing with pre-trial issues and addressing issues such as visibility of evidence prior to a trial be sufficient to eliminate the requirement of extra judges?

Chairman

Will Mr. Hamilton wind up when he has answered Deputy Costello's question?

Mr. Hamilton

There is a need to clear the backlog. There may be an argument that fewer judges would be required when this is done. However, there are legislative techniques whereby the number could be increased and that after a certain date the first three judges, for example, would not be replaced.

I am not sure the pre-trial changes will reduce the need for judges. Such changes will certainly shorten the trial itself and one will not have to bring in jurors. In the longer term it might reduce the need for them but the immediate problem is to get rid of the backlog. Incidentally, other things could be done. For example, the use of courthouses is very low. We have courthouses which are used for only four hours per day. I am sure the judges would not agree with me in saying there is no reason trials could not start earlier in the day or finish later. There is no reason judges could not work in shifts, no reason the Four Courts should sit empty in August and September and no reason judges, barristers and solicitors could not stagger holidays. I am sure I will be very unpopular——

Chairman

Mr. Hamilton will be very popular for saying that.

Mr. Hamilton

Sometimes we are told we cannot appoint extra judges because there is no court space for them.

Deputy P. McGrath

Mr. Hamilton will need protection when leaving the building.

Mr. Hamilton

The Deputy may have to provide it. I do not accept it is not possible to make greater use of court space. There may be a problem with not having enough registrars, but if this is the case it is a simple matter of appointing another three or four.

Deputy Costello

Specific listing facilities would go a long way.

Mr. Hamilton

I would have thought so, in spite of the inadequacies and archaic nature of the listing system. Certain things could be done to solve an immediate problem and to have a blitz on backlogs to get rid of them. It is very helpful that five judges, on their own initiative, sat and cleared many cases last September, which is normally a vacation period. These extra sittings would have to occur for four or five years to get rid of the backlog and I do not believe we can wait that long to get the lists up to date.

Chairman

I thank Mr. Hamilton for attending. We appreciate his contribution and found it very useful and informative. It will help us greatly in our deliberations.

I welcome the Association of Garda Sergeants and Inspectors. Its president is Mr. Joe Dirwan, who is accompanied by the vice-presidents, Mr. Paschal Feeney and Alan Dowley. Also present is the general secretary, Mr. Pat Flynn, and Mr. Michael Connell, who is an executive member of the association. I invite Mr. Dirwan to make a short presentation. It should be noted that while the members of the committee have parliamentary privilege, the same privilege does not apply to witnesses appearing before it.

Mr. Joe Dirwan

Our delegation consists of Inspector Feeney, who has experience in the District Court, and Alan Dowley, who has experience in rural stations and in the Border division. Pat Flynn, as the Chairman stated, is our general secretary but before being appointed to this position he served in the traffic division. Michael Connell is an inspector in Store Street and has experience in the inner city.

Chairman

Time is limited and I would appreciate it very much if Mr. Dirwan restricted his presentation to about ten minutes.

Mr. Dirwan

We accepted the invitation to address this committee because of our concerns about the administration and effectiveness of the criminal justice system. We feel deeply that the scales of justice are no longer balanced and that they are now tipped firmly in favour of the accused. The needs of the victims of crime are not paramount, as they should be. The intimidation of victims and witnesses is common, contrary to what has been said previously to this committee. The increase in intimidation has mirrored the rising tide of violence.

In addition to our shock regarding brutal gangland murders, our society has become shocked in recent years by the increasing tendency to use violence to settle any argument. We have witnessed the killing of young men by other young men when rows developed outside pubs, and we have also seen the television pictures of gratuitous violence on the streets after pubs shut for the night. Drink is the main contributory factor to this violence, but drugs are increasingly involved. We now live in a more aggressive society and we have about 60 murders per year.

My association recognises that society needs to tackle the causes of crime, which are deeply rooted and difficult. Crime cannot be dealt with by gardaí alone as it raises a range of issues that must be dealt with by society as a whole, including poverty, deprivation, education and social values.

It is clear that the agencies of the State must be involved in a co-ordinated effort to reduce crime levels. Gardaí are playing their part in the Garda projects and programmes referred to in our submission, and we have shown that community policing is successful and effective in maximising Garda involvement in the community. If community policing is to be the mainstay of policing, extra gardaí will be required. There is no doubt that a concentrated effort in areas of deprivation and endemic poverty, with the aim of improving living and educational standards therein, will benefit society as a whole by reducing the incidence of crime. However, there are criminals whose family ethos ensures they will never change.

We have made a range of submissions to deal with the fine details of matters of law and administration aimed at making the criminal justice system more efficient in the interests of both victims and witnesses. Our main suggestion is for a pre-trial system of adjudication that would iron out a range of issues before a full trial commenced. The pre-trial system would operate on two levels. The first part would be held in camera and deal exclusively with preliminary legal matters in the presence of the victim and the accused. The second part would deal with all matters pertinent to holding an efficient trial. Such procedures would be used to eliminate or reduce a number of matters set out in our submission.

We believe intimidation of witnesses is common. We only have to point to a recent high profile case drawn to the attention of the public. However, the problem is much wider than this; it extends to the depth of the fabric of our society and can take many forms which include gathering in intimidating groups on the steps of court buildings from the District Court to the High Court, staring at victims and witnesses inside and outside the courts and verbally threatening them. There have been cases of intimidation, even before court cases commence, and many are afraid to report crime to the Garda. Our members are aware of this intimidation to which they, as well as members of the public, have been subjected. Far from being a rare occurrence as has been said, we are convinced it is happening with increasing frequency. I can do little other than to quote the criminologist, Dr. Paul O'Mahony, who said in his submission that intimidation was taking place on a large scale in deprived areas.

In carrying out our duties members of the AGSI work closely with the victims of crime and witnesses. The overwhelming feeling of members is that the criminal justice system has swung off balance to such an extent that the rules are now heavily weighted in the favour of the criminal, murderer, drug trafficker and habitual offender. At the same time, the system is oppressive on the victims of crime, the witness who comes to the defence of the victim and the juror whose role it is to ensure justice is done and seen to be done. Much of the blame for this can be laid at the door of the system. The State has an equal duty of care to the victim, witness and juror as to the accused.

Once intimidation is likely to take place, the State should step in and put in place special measures to protect those vulnerable to intimidation. We have put forward many suggestions on how intimidation should be tackled. On the legal side, we point to the law in Canada that has a provision for the taking of evidence in pre-trial proceedings and for those statements to be made available to the courts no matter what the witness subsequently states. The Canadian courts may also direct the non-disclosure of the identity of witnesses. The accused and their associates should be forbidden by law to communicate with the victim and witnesses in any way, including gathering on the steps of courts and staring. When trials collapse after witnesses change their statements, the trial should be adjourned while the change is investigated, rather than aborted with no provision for resumption. Alternatively, the court should decide whether a written statement is admissible, similar to procedures under which it deals with the confession of an accused who later retracts his or her admission.

Victims should be allocated legal representation to protect their interests through the frightening experience of a major trial. They should also be involved in pre-trial conferences and not have to meet the prosecuting team for the first time on the opening day of a trial. The present status of the right to silence is an historical relic and harks back to a previous age when suspects were deemed to be of limited intelligence. It is untenable that in serious crimes such as murder and rape, theft or fraud suspects can refuse to disclose their whereabouts when questioned and courts cannot draw inferences from this. It is not a question of compelling anyone to speak but rather informing the court of a refusal and empowering it to draw inferences and take appropriate judicial note.

The prosecution must currently disclose all of its material to the defence. A similar requirement should be placed on the defence. Similarly, there should be an obligation on the defence to nominate their witnesses 14 days in advance of a trial.

We believe the State should make every possible resource available to protect victims and witnesses from intimidation, including making members of the Garda available to give such protection. Where it is possible to offer persons access to the witness protection programme, this should be done. We acknowledge that there are difficulties in our unique society. Special provision should be made in our courthouses in order that victims and witnesses do not have to sit feet from the accused and their associates. A victim or witness should not have to stand eyeball to eyeball with a suspect in the course of an identification parade. One elderly woman who had been raped told gardaí that her experience of the ID parade was worse than the rape itself. We have proposed a method for how ID parades should be conducted in the future. We believe participation in parades, where necessary, should be mandatory on suspects in serious crime cases.

We believe video link evidence should be used in trials where intimidation is likely and gardaí should be given the power to detain and question persons whom they reasonably suspect have information relating to serious crime. Currently, there is no such power. It may be of interest to the joint committee to note that gardaí have exactly the same power to detain and question persons whom they have a reasonable suspicion have information pertaining to the larceny of a bar of chocolate as to murder. In both cases, people can only be detained for six hours and, on extension, a maximum of 12 hours.

We suggest the establishment of an organised crime unit within the Garda Síochána. In the past stringent measures were taken to deal with subversive crime. Similarly stringent measures are now needed to deal with organised crime.

We also recommend the introduction of classifications of first degree and second degree murder, etc., to replace the current outdated murder and manslaughter definitions. The charge of manslaughter should be retained in specified circumstances.

Intimidation raises many questions for us all. If it takes root, our criminal justice system will collapse and civilian witnesses will not be willing to come forward and give evidence. If this happens, primary evidence will have to be gathered by the Garda which will have massive resource implications.

Apart from the summary I have given, we have made other suggestions of how the criminal justice system could be improved with the joint aim of redressing the balance to which I referred and improving the efficiency of the system. One of these proposals is to use a layperson magistrate system to deal with minor breaches of the law, including road traffic offences. This would free up judges and courts to deal with criminal cases.

While I do not propose to go into any further detail on these suggestions at this time, I urge the joint committee to read the full submission carefully and consider putting forward our recommendations for further consideration and implementation. On behalf of the Association of Garda Sergeants and Inspectors, I thank the committee for giving us the opportunity to make a submission.

Chairman

I thank Mr. Dirwan. We are appreciative of the extensive work done to put together the submission. It is obvious that a number of people have been involved over a significant period. We are grateful for the work done and the effort Mr. Dirwan, as president of the association, and his members have put into it.

Deputy P. McGrath

I welcome Mr. Dirwan and his colleagues. Given that gardaí have to deal with crime on an ongoing basis, it is particularly important that they have given us such a comprehensive presentation. Their experience and input are particularly important. I thank the delegation for its worthwhile submission which gives much food for thought.

In its submission the association states the criminal justice system has swung off balance and that the arrogance of the criminals has reached an even higher level than before the murder of Veronica Guerin. I link the points that the criminal justice system is swinging off balance and the arrogance of criminals. Can Mr. Dirwan give us some evidence of why it has swung off balance and who is to blame?

Mr. Dirwan

I am not sure I can attribute blame other than to society at large. It would not be right of me to pinpoint anyone in particular.

In terms of the way it has swung off balance, when a suspect is taken into Garda custody, he or she is immediately advised of his or her legal rights. The suspect has access to a solicitor, is taken to the court and has access to all the legal facilities available. In contrast, the victim has no right to legal representation. He or she is taken to court, which is a frightening and traumatic experience, and in some cases may be seated beside the suspect and his or her associates. The victim may not be familiar with the prosecuting counsel, although I must acknowledge the help Victim Support provides in certain cases. The defence is given a full copy of the book of evidence, whereas the victim is not. It is only recently that the victim is given a copy of the statement. When the victim carries out an IDparade, he or she must face the suspect eye to eye.

In terms of the arrogance of criminals, I am stationed in rural Ireland and many of my colleagues and others living there are familiar with the criminal gangs which operate out of Dublin. These gangs inflict violence on the rural community when they travel out of Dublin. The gangs are usually made up of three members, namely, a thinker, a driver and an intimidator. The intimidator is there for the sole purpose of inflicting violence on people if the gang is confronted. The Garda knows criminals will do anything to escape justice. They will rarely stop, they are well-equipped and they know the law is with them because it is difficult for the Garda to take a case unless it has witnesses available to it. The criminals are well-educated in how to get around forensic evidence. That type of arrogance is coming to the fore.

Deputy P. McGrath

Mr. Dirwan referred to witnesses sometimes being badgered in court by counsel for the defence and that the same kind of interrogation is not allowable if it is used by the Garda in questioning suspects. Will he elaborate on that point?

Mr. Dirwan

When a witness or, more particularly, a victim, appears in court, the defence will relentlessly cross-examine him or her and put the same question to the witness in an attempt to break him or her down. I accept that the defence counsel has to do his or her best for the client and I am not trying to suggest he or she should do otherwise. However, the judge should intervene and restrict repeated questioning of witnesses. Witnesses tell us that their experience of court is so frightening that they never want to go back again.

Deputy P. McGrath

We can all see the knock-on consequences of that for society.

My final question relates to Mr. Dirwan's statement on Garda resources. He sets out the situation in regard to a number of the Garda stations and how numbers dealing with the public have dropped dramatically. Perhaps we can bear this in mind because it is my understanding that morale in the force is at a low level and there is expected to be large numbers of resignations after 1 January.

For example, the statement points out that in 1985 the total number of gardaí attached to the Limerick division was 455 and in August 2003, the figure had dropped by 84 despite the fact that Limerick is seen as an area which has a particular problem with crime. How does Mr. Dirwan see morale being improved in the Garda and how does he see the numbers of gardaí increasing in the short-term? Extra recruits are being trained in Templemore, but the flight from the force is substantial and seems set to continue. How does Mr. Dirwan see that difficulty being resolved?

Mr. Dirwan

I will refer the question of resources to our general secretary, Mr. Pat Flynn.

Mr. Pat Flynn

The Deputy is correct that morale in the force is low. We have given statistics in regard to Pearse Street and Store Street stations. In terms of Pearse Street station, the numbers dropped from four sergeants and 36 gardaí in 1986 to two sergeants and 22 gardaí. That drop is the result of some gardaí being transferred to other specialised units such as bicycle units, divisional drug units and community policing units.

Chairman

Was there a reduction in the overall numbers in those units?

Mr. Flynn

Overall, there is a small reduction in numbers in the station, but the operational unit which works the three relief system has dropped considerably as is the case in Pearse Street station where there were four sergeants and 36 gardaí and there are now two sergeants and 22 gardaí. That creates difficulties in that if one sergeant is off, we need to get another to replace him or her if possible.

Chairman

Where have all the gardaí gone? There is supposed to be the highest number of gardaí in the history of the State.

Mr. Flynn

The job has also become more complex than ever before in the history of the State. I am not knocking specialised units, but units have been set up over the past number of years. These include the Criminal Assets Bureau, the organisation and development unit, the immigration unit, air support unit, mounted unit and bicycle units as well as an increased number in the water unit. Gardaí have been also provided to the Corporate Enforcement Agency, the Competition Authority and the Companies Office. Therefore, while the pool of gardaí may have increased, we are still pulling numbers from the uniformed section, which is where the numbers are going. The demands on the police are more complex than ever before.

Deputy P. McGrath

Are they the gardaí who deal with the public, the uniformed ones?

Mr. Flynn

The more junior gardaí are on the street in uniform and as soon as they have served two or three years, they look to move on to specialised units. Those specialised units are needed because crime is becoming more complex. It is no longer sufficient to have general police officers dealing with specialised crime, such as fraud.

Chairman

I compliment the off-duty gardaí who were on duty at old folks parties throughout the country at the weekend.

Deputy Mulcahy

I welcome Mr. Dirwan and his colleagues and thank them for their submission. Like the Chairman, I represent a large urban constituency and see at first hand the work of the gardaí in the detection of crime, apprehension of criminals and community policing. It is much appreciated.

We are getting to the nub of the issue. Many common themes are emerging, which are supported in this paper, such as witness protection and intimidation, delays, redesigning of courthouses so that witnesses and accused persons do not meet each other and so on. The Garda is at the cutting edge of the fight against crime and has a different perspective. It is true that the paper presented to the committee has a different perspective from those of other groups such as the Human Rights Commission, the Bar Council and Professor Hogan. This submission calls for a radical overhaul of the criminal justice system. Mr. Dirwan referred to an inquisitorial justice system, the badgering and detaining of witnesses and the questioning of the right to silence. He seems to be questioning the nature and basis of the adversarial system of justice and saying the system is not working. Is that correct?

Mr. Dirwan

We would not be here today if there was no crisis within the criminal justice system. While about 95% of trials go ahead unimpeded, as the Director of Public Prosecutions said, some cases need a different approach. To qualify the remarks about the detaining of witnesses, we suggest in our submission that if a witness approached about a crime has information and refuses to co-operate, the Garda should have some power to detain that witness and obtain the information.

The benefit of the inquisitorial as opposed to the accusatorial system is that when a witness is interviewed by a judge, the answers to his or her questions are made available to the court later. Similarly, the suspect must be interviewed by the judge.

Deputy Mulcahy

Many of my law-abiding constituents would be shocked at the idea that they, as innocent people, could be detained for questioning.

Mr. Dirwan

That is an incorrect interpretation of our intention. We are talking about associates of criminals who have information and fail or are reluctant to disclose it when interviewed by the Garda. There is already such a provision in the Offences Against the State Acts. If a person has information about the commission or intended commission of a scheduled offence, he or she can be detained. We are suggesting that a similar statutory provision should be available to the Garda in the case of serious crimes such as gangland killings.

Deputy Mulcahy

Do we not need to adjust our laws to differentiate between serious organised crime and so-called ordinary crime? This issue was mentioned several times in earlier submissions. It appears there are organised, sophisticated, professional criminals operating, yet the Garda operates under similar provisions for petty, one-off and professional criminals. I was surprised to hear Mr. Dirwan say an organised crime unit should be established as I thought there was already such a unit within the Garda.

Mr. Dirwan

I agree with the Deputy that there should be a different approach for different types of crime and that the crime should be categorised in a manner similar to that of the Offences Against the State Acts in which there are scheduled offences.

On the matter of an organised crime unit, within the Garda we have the National Bureau of Criminal Investigation, NBCI, the equivalent of the FBI or Scotland Yard which assists local detective units in the investigation of crime. Our association debated this matter at length at our annual conference. We feel there is a need for a special unit within the NBCI to target criminals, gather intelligence and investigate their activities in a similar fashion to the Criminal Assets Bureau which deals with the proceeds of crime.

Deputy Mulcahy

Could the CAB and the proposed new unit form one unit?

Mr. Dirwan

No, because the CAB is a multi-agency unit.

Deputy Costello

I thank the association for its valuable contribution. I was struck by the description of the major Garda station in my constituency, Store Street Garda station, in which there has been an incredible reduction in the number of gardaí on the beat. The group's submission states that as a result of this, "regular units offering a front-line response service to the public are now reduced to skeleton staffing levels. This means that members of the public must wait for gardaí to attend their burglary, mugging, public order incident, road traffic accident etc. etc. as scarce gardaí deal with incidents in order of priority". That is what we always thought. We have found it hard to elicit this information from any official source. Are things as serious as this?

Deputy F. McGrath

Mr. Dirwan said there had been an increase in the amount of intimidation. Has the increase in the intimidation of witnesses and intimidation in broader society over the last five years been small or dramatic? A number of people who have spoken here have said the intimidation issue has been exaggerated.

Mr. Dirwan

To answer Deputy Costello's question, what we state in our submission is correct. Our general secretary has explained how our drained resources are going to the specialised units. We must prioritise some requests for services because we just do not have the manpower to respond immediately, which a police service should have.

In response to Deputy Finian McGrath's question, intimidation is increasing. There is no point in denying it - society must face up to this.

Mr. Flynn

I was in Store Street station recently on the evening of a gangland murder. The staff were literally running from place to place to keep the station operating. Gardaí go into Pearse Street station on weekend nights and queue with their prisoners to be attended to at the counter. One can look at the list of calls on hold in Tallaght station while gardaí deal with the more serious crimes. Overall, the issue of resources is a difficult one for the police. We must prioritise and do the best we can with the resources available.

Mr. Michael Connell

I am attached to Store Street station and have been stationed in the north inner city for some years. There has been a reduction in numbers on regular units, as mentioned, but the personnel involved have not disappeared - they have been redeployed to deal with community issues and specialised areas. We have addressed all of the problems with the co-operation of the community. This results in a reduction of numbers on regular units but it is a matter of matching resources with problems on the street.

We have identified and targeted problems in the community over the last seven or eight years. The basis of community policing is that certain members attend regular problems in specified areas, which means they are not available for other work for much of the time. Sophisticated and complex crime deserves and demands a different reaction. The community is our core and we operate with its consent. We cannot ignore the fine job being done in the community. To say gardaí are not there is not accurate - they are not available for front-line policing. There is a difference.

Chairman

I thank Mr. Dirwan, Mr. Feeney, Mr. Dowley, Mr. Flynn and Mr. Connell for their excellent submission and the way in which they answered questions. They may remain in place in case there is a general discussion after the following submission.

I welcome Mr. Barry Galvin and thank him for travelling from Cork. He is the former head of the CAB. He should take into account the fact that, unlike committee members, he does not enjoy parliamentary privilege.

Mr. Barry Galvin

I thank the committee for inviting me to make a submission. My background is that I spent many years doing criminal defence work and since 1982 I have been doing prosecution work as the State solicitor for Cork city. For six and a half years I was the bureau legal officer of the Criminal Assets Bureau. I want to make it clear that my perspective is not entirely based on Cork, even though the committee will see Cork cases in my submission. I conducted a short evaluation for the Council of Europe on the criminal justice system in Bulgaria and carried out an evaluation and reported on the situation in Bosnia-Herzegovina with problems of organised crime, drug trafficking, human trafficking and asset seizure.

I have long been of the view that the Irish criminal justice system has failed to keep pace with changing trends in criminal activity, that this has been to the detriment of the public and that there is no quick fix to the problems that now exist. The level of criminal activity is unacceptably high having regard to the socio-economic background of Ireland, a relatively small and law abiding population residing on a small island with only one large cosmopolitan area.

An example is contained in appendix one of my submission, which deals with one of the nastiest crimes from the public point of view, burglary and larceny. In a four year period, according to the Garda report for 1998 to 2001, the total value of property stolen was €263,685,324, while the amount recovered was worth €19 million. Those figures speak for themselves.

The efficiency of the Garda investigations has fallen way behind what is required to combat modern criminals. For a long time there has been a need for reform. In 1996-97, I was a member of the strategic management committee that investigated the efficiency and effectiveness of the gardaí. We produced a report on the legal framework necessary to enable the gardaí to conduct investigations effectively and to save resources. Those recommendations are reproduced in appendix three of my submission and the committee can read them in its own time. A number of the submissions were included in the Criminal Justice Bill 2003 which is now before the Dáil but not in as effective a manner as is necessary. Some recommendations were ignored totally.

I will give examples. An efficient system for search warrants is vital so gardaí can do their work. Many cases have been lost because of small errors in search warrants or because search warrants under legislation have not been available. When I left Cork to go to the bureau in 1996, there was no effective search warrant for evidence until a reasonably effective warrant was introduced in 1997. One of the most successful attributes of the Criminal Assets Bureau work is a section 14 search warrant which allows CAB to search wherever it feels evidence of assets or their whereabouts will be found. The 2003 Bill proposes a new search warrant but it is limited because an inspector's consent is needed and it is restricted to serious crime. That is no good, the warrant should be issued by the case officer who knows the case and should be available for all crime for which six months imprisonment or longer is the penalty.

The taking of forensic samples is vitally important. When there are problems with witnesses, evidence and investigation, forensic science plays a major role in solving crime and proving people innocent or guilty. Until the 2003 Bill, if a violent rape took place in the street and a person was apprehended two streets away, a DNA sample could solve the crime but the person could not be forced to give such a sample. If he refused to give it, he could be fined €1,000 or sentenced to six or 12 months in prison. That is an easy choice for someone facing a significant sentence for a brutal rape. I do not know of any case where a person has been charged with refusing to give a sample.

The SMI committee recommended that if a sample was necessary for a case, the person would have to give it. Forcing the person to give a sample has been proven by the gardaí to be ineffective. One very unpleasant case involved a person doing something to prevent the sample being taken, as the AGSI will know. A criminal will frustrate the forcible taking of samples. We must be able to go to a court and state that we need a sample and the suspect is thereby ordered by the court to provide it, intimate or not. If he refuses he should get a salutary sentence for contempt of court. If a person disobeys an order of the civil courts, he is put in prison indefinitely until he obeys the order. I do not see why that should not follow in the criminal system. There are human rights issues but this is necessary and proportionate.

There is a requirement in law at present that all forensic data be destroyed within six months if a person is not charged. I respectfully say that is nonsense. Ireland must bring up a bank of forensic evidence, finger prints, DNA samples or any other forensic material to solve crimes in the future. When a fingerprint is found or DNA is needed, it should be available. The new Bill extends the period to six months but it should be unlimited.

Visiting policemen from foreign jurisdictions who are assisting in a criminal investigation think we are joking when we explain how the Irish system works. That a person can be detained for only six hours and for possibly another six hours, no matter how serious the crime or the number of crimes he or she has committed, is meaningless. I know of a case where a person was suspected of 300 very serious crimes in Cork city but there was no way to put to him those crimes in six and six hours. The law is that any crime of which a person is suspected must be put to him or her within the first period of six and six hours and he or she cannot be re-arrested and questioned about those crimes subsequently. In the 2003 Bill, there is a suggestion to increase that period of detention to 24 hours but that is also insufficient. The DPP suggested a period 72 hours for serious crime. It is a policy matter but it should be re-negotiated.

There are complex and contradictory arrangements between section 4 detention under the ordinary law and section 2 detention for drug trafficking, which allows for up to seven days detention. Both require that the suspect is told of what he or she is suspected but it is unclear if it must be done in the first period or the second period or if it can be extended. That should be clarified.

There is no right to silence in Ireland, there is a prohibition on self-incrimination. The right to silence has been trotted out as essential but it is not, the prohibition on self-incrimination is essential. Video recording is being introduced to protect the suspect and interrogators. That video recording is not used automatically in court to show the suspect's demeanour or attitude to questioning defies common sense. Also, there is a crisis in public order but the gardaí have no power of arrest for assault. That defies logic.

It would be useful if the exclusion of evidence was improved. A correct balance between the rights of the accused and the rights of the victim must be put in place, along with a significant increase in the robustness of the system to reinforce the credibility of the rule of "now, as necessary". It is no exaggeration to say the existing odds are 80:20 against a prosecution. The current criminal justice system involves trial by ambush of any criminal case ranging from the District Court to serious trials on indictment. The only obligation on an accused to partake is to give details of an alibi. I have brought two examples for the committee and as they are of public cases there is no need for concern about privilege. The first is in Appendix 5 and it states:

On 12 December 1991 at the EBS Building Society premises at the bottom of Shandon Street in Cork at about 3.50 p.m. two men entered the premises armed with a hammer, a hatchet and a knife. They terrorised the staff and made off with a sum of just under £6,000 in cash. An all systems alert went out over the Garda radio, alerting the Gardaí that an armed raid had taken place and giving descriptions of the raiders. A young Garda was on duty as a Station Officer in Mallow Road Garda Station.

He saw a taxi passing by and with a policeman's hunch, he decided it was somewhat suspect. He took the patrol car and followed the taxi. He saw the person in the back seat slump down so he radioed for back-up armed units. They stopped the taxi, questioned the youth in the back seat and found £6,000 strapped inside his teeshirt. The gardaí arrested and searched him under section 30 which covers firearms offences and the youth was detained.

When it transpired that the robbers had not used a firearm but were armed with a knife, a hatchet and a hammer, the youth got off because he had been arrested under section 30, making it an incorrect arrest and search. The epilogue is that the suspect had the audacity to try to hold onto the money with which he was found, but Cork justice prevailed when his application before a Cork District Justice failed.

The Dillon case in Appendix 2 is a drugs case. In March 1996 a unit of the Cork drug squad had information that a drugs deal was about to "go down" and they were on surveillance. Two well-known drug traffickers approached the area about which the gardaí held the information. The gardaí took the men out of the car in which they were travelling and brought them to Gurranabraher Garda station for a more appropriate search. While the gardaí were minding the car, a mobile phone rang which the inspector picked up. Prior to this they had found a "tick list" on which drug traffickers keep records of their business using nicknames, with the amount owed and a tick mark against the names of those who have paid. On examination of the tick list the gardaí found the name "Joe Limerick" with no tick and guessed this might be significant. When the detective inspector answered the phone he heard a Limerick voice and said "Is that you, Joe?" The man said it was and asked who was speaking. The inspector answered "Mick", said the first meeting place was not appropriate and arranged to meet the man at a hotel outside Cork where they apprehended him and found the money with which he was going to buy the drugs.

The case went to trial and a Cork judge in the Circuit Court decided that method of getting evidence was appropriate under the law and the man was sentenced to three years imprisonment. The man appealed and the Court of Criminal Appeal decided that, as the law stands with regard to telephone intercepts, this was an illegal intercept and overturned the sentence. Taking the director's point, it took so long to get the case taken in the Court of Criminal Appeal that the man had already served the sentence by the time his sentence was overturned. Meanwhile, the £28,000 which was found on the man remained in the possession of the Garda. A person was put forward to claim it in a police property application in Cork but he failed to show and the money has been forfeited to the State. The person is not to be found where he resides and it is assumed that he has either gone abroad or died.

They are examples to bring home to the committee the nonsense of criminal investigation and the rules of admissibility of evidence which must be revised.

Chairman

Can Mr. Galvin please summarise any other points as we are running out of time?

Mr. Galvin

The only other point I will raise is regarding persistent offenders. In my submission, I refer to Citizen A. He is a prolific offender who has wasted a great deal of court time and has inflicted serious damage on the community in Cork. By the time he was sentenced to seven years, he had 33 court appearances for numerous offences. I have made recommendations for a system to deal with persistent offenders who are clogging up the courts, causing delays and not being dealt with effectively. They are also causing serious damage to their victims.

Chairman

Thank you for that very comprehensive report. We will finish questions at 11.20 a.m. before we move to Professor Finbarr McAuley for a short period.

Senator Terry

Mr. Galvin is very welcome this morning, all the way from Cork, and I thank him for his detailed presentation. He said that the criminal justice system has failed to keep pace with changing trends in criminal activity to the great detriment of the public and he disagrees with this committee's view that the criminal justice system is fundamentally sound. In light of Mr. Hamilton's statement that 95% of all cases have a successful outcome, are we fire-fighting by responding to recent high profile cases or should this have been done long ago?

Mr. Galvin

It should have been done long before now. There have been practically no improvements in the procedural system since we took over from the British in 1916, or 1922, depending on one's view. We need to move forward. Many habitual criminals continue to commit crime but the system does not deal with them, as the level of stolen property demonstrates. A system which permits that amount of crime is not working.

Senator Terry

Why does that level of crime go undetected or fail to reach a successful outcome? I wanted to question the gardaí about this when they were here, but perhaps I will have another opportunity later. Does Mr. Galvin believe they have the resources necessary to deal with this level of crime? He suggested a change of practice within the Garda system, stating that it should not do some jobs, such as checking motor tax discs, and that its time would be better spent detecting crime on the ground, including the serious crime of which we speak today.

Mr. Galvin

There is no easy answer but several things should be done and one is that habitual criminals should be removed from the system. When I became State solicitor in Cork in 1982, I met the local gardaí and we agreed that we had a hotel with 60 beds which we could fill with persons whom we could name without being able to prove their crimes and that would halve the level of criminal activity in the city. The gardaí are filling the courts with suspects, but the same people turn up again and again. For more serious crime, in terms of the methods available to the gardaí, as in the Dillon case and the telephone intercept, it is not possible to police modern crime without regular efficient telephone intercepts and bugging devices in the houses of criminals. There is a variety of powers which the gardaí do not have but which are urgently needed. There is also the evidential problem of excluding evidence in common sense cases which needs to be addressed. There is no single answer but the gardaí are bringing people to court and they need more resources. That is a policy issue; it is not my place to deal with it.

Senator Terry

I welcome Mr. Galvin's comments on the criminal justice Bill which will be helpful to us in the Seanad when we are dealing with it. On the issue of reoffending, he has stated it should be tackled at source when individuals get into trouble at 14 or 15 years of age. He has also stated our education system is failing to address the problems these individuals have at an early age. If resources were put into the system to tackle this problem, would we have anti-social behaviour and reoffending?

Mr. Galvin

It is more than just an education issue, it is also a social one. Many of these individuals come from one or no parent families and deprived backgrounds. There needs to be a greater response from the State to look after young people who become involved in crime.

Senator Terry

I recently spoke to a fifth class teacher who has an 11 year old child who regularly attends school under the influence of drink and drugs. This is a shocking fact and we can only imagine where the child will be in five or ten years' time. I agree with Mr. Galvin that this matter needs to be tackled.

Deputy Hoctor

I welcome the delegation to the joint committee, in particular, Mr. Galvin. I commend him for his submission to the committee which I imagine must have taken days of work to compile. I look forward to reading it in detail. He is noted for his proactive and aggressive pursuit of organised crime. Can he define the difference between organised and gangland crime?

Mr. Galvin

At a recent meeting I attended the question was asked, what was organised crime? A senior QC said it started off with two burglars and a ladder, from which one could move on. Organised crime is probably a misnomer in Ireland. There are crime gangs of stood down paramilitary dissidents and gangs of drug traffickers. However, there could be organised crime gangs of six for one month and the following month three of them would form a dissident group, probably shooting each other. It is a moving matter. In short, it is the combining of people together for one or a series of criminal activities. It would be difficult to put legislation in place which would target a person for being a member of an organised crime gang because they are so disparate. It could be done for some gangs but it would not be an overall solution. It may be useful for some serious cases but I would question its usefulness for the majority of crimes occurring.

Deputy Hoctor

Criminal gangs have been known to give cash loans for the purpose of money-laundering which are used to buy houses not registered to the person who has given the loan but another. From his work with the CAB, how does Mr. Galvin suggest this can be tackled?

Mr. Galvin

The old saying is that it is an operational matter. At one stage the criminal fraternity decided that property was a good investment and there was widespread investment by such persons throughout the State. There are many means of finding out who owns a property. One of the simplest is to put it under surveillance to see who is going in and out. However, the search warrant about which I spoke has been useful because every property deal has to take place in a solicitor's office. Normally, the evidence as to who really owns a property is to be found in the solicitor's office where the conveyancing took place. The Deputy is correct that there was a widespread practice of not registering ownership. A trip to the Land Registry or Registry of Deeds would not have led to the information normally expected. There are police and bureau investigation methods able to do this.

Deputy Hoctor

How can high technology assist in tackling gang crime?

Mr. Galvin

It is absolutely vital. People speak of a knee-jerk reaction which we have not seen for so long. "Knee-jerk" is an emotive word but urgent action is needed in the fight against crime.

Chairman

I thank Mr. Galvin. The joint committee appreciates his submission which will be useful in its final deliberations and when making recommendations. I now invite Finbarr McAuley, Jean Monnet Associate Professor of European Criminal Justice, University College Dublin, to make his contribution. He does not have the same level of parliamentary privilege that committee members enjoy.

Professor Finbarr McAuley

I thank the joint committee for the invitation to address it and compliment it on the atmosphere of calm deliberation which is most conducive to a proper examination of the difficult questions before it. I wish to make nine short points, on some of which I can be brief because they have been covered by other speakers who know more about the area than I might do. My point of departure is the hostile witness problem, the triggering condition for the famous collapse of a trial not too long ago. That sad event, a terrible thing to have happened——

Chairman

We are going to lengths not to be specific in any particular case.

Professor McAuley

I take the point. The phenomenon of that collapse represents a crisis in the criminal justice system.

I agree with the Director of Public Prosecutions that approximately 90% of trials and indictments end in a conviction as a result of the entering of a guilty plea or a jury trial ending in conviction. The remainder of cases are acquittals because the jury was not satisfied beyond reasonable doubt that the prosecution had proved its case. That is a fundamental and basic feature of our system and complacency is out of the question. It is hard to see how the system can be represented as being in crisis because of the hostile witness problem in the face of such facts of that scale and magnitude. As a result, I do not believe it is either necessary or desirable to change the law to enable prior inconsistent statements to be admitted in evidence.

I have additional reasons for holding to this view. Such a change to the regime would reduce the need for the prosecution to offer forensic evidence. This point has been made by other speakers which I echo. It would also run the risk of shifting the centre of gravity of the criminal process from the courtroom to the police station. It is a trial system and we should be careful before we tamper with this fundamental feature of the system. I say this with the greatest of respect to the distinguished members of the Garda present. Incidentally, it would not be fair to the police force to shift the centre of gravity in the way described. I am mindful, however, of what the Director of Public Prosecutions said about the Canadian model which has been carefully crafted and passed muster with the Canadian Supreme Court which is no easy thing to do. While it is a risk I would not be opposed to examining, I would caution against shifting the centre of gravity in the way I have described. The third point I want to make has been echoed by other speakers, namely, that the hostile witness problem is not necessarily the same as the problem of witness intimidation. I am entirely in agreement with the distinguished representatives of the Garda when they make that point. One cannot be complacent about the 90% success rate I mentioned earlier because one does not know how many cases never get off the ground at all because of witness intimidation. It would be ostrich-like not to acknowledge that point. It is a difficult problem.

It follows that all the various solutions to the hostile witness problem that have been canvassed, such as speeding up the trial, isolating witnesses and even introducing changes regarding the admission of pre-trial inconsistent statements of evidence, will not individually and collectively solve the problem of intimidation of witnesses to which the Garda has rightly drawn attention in the sense that we are talking about intimidation which prevents cases from getting off the ground. I acknowledge that point. It is difficult to say how widespread it is, although anyone who talks to senior gardaí off the record will be left in no doubt that they view the fact that so many gangland killings do not end up in any prosecution is testament to the reality of that problem.

What one does about it is another day's work. Many suggestions have been made. For example, it has been suggested that we might again at least contemplate the Canadian initiative in bringing in legislation which would in various ways and in one form or another make it an offence to engage in criminal activities connected with the operation of a gang. There are difficulties there. I would not be opposed to that in principle if the offences thus framed could pass muster with the principle of legality, that is, if it could be made plain exactly what the elements of the offence were, that they were real elements and did not merely turn on someone's opinion. In principle, I would find no difficulty in going down that route, provided in addition that, as other speakers recommended, the matters were not already adequately catered for by existing provisions of the criminal law. In principle, I do not like duplication.

I have perhaps two or three residual points to make about organised crime. I do not believe that it represents a major threat to the social order in Ireland. It has been stated in recent times that it does, but people who hold that view should get out more and should certainly travel more. I recommend that they go to the countries of the former Soviet Union if they want to see what a real crime crisis looks like and an example of where the tentacles of organised crime reach into the institutions of the state. If they went there, they would get a better perspective on our situation.

I do not deny the reality of organised crime in Ireland, but we should stop thinking about it in the way in which some distinguished people here today seem to be doing, as a problem visited on the law-abiding among us by criminal elements. As Mr. Galvin correctly observed, organised crime in this country is essentially about trafficking in drugs and in people for prostitution purposes. Those activities are bankrolled by thousands, if not hundreds of thousands, of otherwise law-abiding citizens who consume the goods and services in question. That is a salutary point we should contemplate. It should act as a brake on the desire to throw legislation at the problem. Given the large scale of the demand for these goods and services by people who are otherwise law-abiding citizens, the problem is not something that can be simply rubbed out of existence.

By parity of reasoning, we should stop thinking about the causes of crime in this country in terms of social deprivation. This dreary hypothesis has been rehearsed before the committee by several people in recent days and it is time that people rid themselves of this idea. It ignores the reality of middle class and upper class crime in our community, spectacular examples of which pour forth daily from the revelations of the tribunals. It places a completely incorrect focus on one type of crime. Naturally, if one focuses on the criminal activities of one social group, it becomes a self-fulfilling prophecy to say that crime should be defined in terms of those activities. If we broaden our perspective, as we should do, the crime problem itself becomes a much more broadly based issue. I thank the committee for its attention.

Chairman

Thank you very much for that point of view, which is probably different from other views we have heard this morning. It is now 11.25 a.m, so we will have some very brief questions and answers in order to get in as many points as possible.

Senator J. Walsh

Professor McAuley mentioned that the current situation does not perhaps represent a major threat. However, does he agree that if it is not tackled now it may lead to much more serious organised crimes in the future? What would he say to the points made by Mr. Galvin about the need to deal with some of the areas of inadmissibility of evidence which he cited? What does he think of the right to silence, where perhaps changes should be made in the law to allow the court draw inferences?

Chairman

We will bank the questions.

Deputy Costello

The professor is right to emphasise the importance of looking at organised crime in terms of white collar crime. The Criminal Assets Bureau is perhaps the only organisation to have defined organised crime. Now that we have that definition, and do not need to put in place Special Criminal Court-type restrictions on the rights of individuals, the professor and Mr. Galvin might tell us why it is not possible to deal with organised crime and criminals.

Senator Tuffy

I thank Professor McAuley for his contribution. He made a good point that we should not think about the causes of crime merely in terms of social deprivation and he mentioned middle class and upper class crime in that regard. He said that those who consume drugs are part of the issue. However, the consumption of heroin, for example, is much more prevalent in socially deprived or neglected areas. If problems are addressed in those areas, one can tackle the drugs problem. Is the professor saying that social deprivation has nothing to do with the crime problem we face?

Deputy Mulcahy

Have we any statistics on the number of successful convictions of actual crimes, as opposed to crimes that are sent to the DPP? We understand that 90% of crimes that go to trial are successfully indicted, but what percentage of all crimes is fully resolved on indictment?

Chairman

There is half a minute for Mr.Galvin and a minute for Professor McAuley. That is all the time we have.

Mr. Galvin

In response to Deputy Costello, so long as there is jury intimidation, there must be an alternative. Some of the biggest criminals in Ireland, members of organised crime gangs, have been taken out in special courts where they were known by the Garda to be actively intimidating jurors, calling to their houses and sitting beside them on buses on their way home. For the time being, the special courts should remain in cases of jury intimidation. They have no place where witness intimidation is concerned.

Professor McAuley

I was given a raft of questions. I have forgotten which of the distinguished committee members raised the question of admissibility. I am certainly in agreement and I share the view expressed by the DPP. I could not but share it, as the Law Reform Commission, of which I have the honour of being a member, recommended some time ago that there should be a more broadly based system of prosecution appeals introduced. I fully agree with that view. That would take care of the point regarding the difficulties and problems relating to the admissibility of evidence which the prosecution currently does not get the opportunity to ask to have appealed. It would resolve that problem. I made the assertion that our society is criminogenic in the sense that otherwise law-abiding citizens participate in criminal activities by consuming the goods and services associated with drugs and prostitution. This is a serious point in my judgment which is exacerbated by the fact that the lowering of borders in the European Union facilitates to a great extent the operation of organised crime and criminal gangs. In that sense, the arrangement is to some degree criminogenic. We must bear in mind these facts when starting to throw legislation at a problem in the mistaken assumption that it alone can get rid of it.

Chairman

That concludes our discussion for today. I thank all our guests, including the Director of Public Prosecutions, Mr. James Hamilton; the representatives of the Association of Garda Sergeants and Inspectors; Mr. Barry Galvin and Professor Finbarr McAuley, for appearing today. The joint committee will note all of the comments made. If there are any additional points to be made, will they, please, make them to the secretariat? Tomorrow, 9 December, we will meet the Minister for Justice, Equality and Law Reform, Deputy McDowell, and the Commissioner of the Garda Síochána. I thank everyone for attending today and TG4 viewers. I look forward to the meeting tomorrow.

The joint committee adjourned at 11.30 a.m. until 9.30 a.m. on Tuesday, 9 December 2003.