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.