The main purpose of this Bill is to provide a new system of appeal for persons who claim to be the victim of a miscarriage of justice. Some cases can be looked at by a committee of inquiry to see if the grant of a Presidential pardon ought to be recommended; others can be examined, where appropriate, by the Court of Criminal Appeal.
Let me say at the outset that in fact very few cases of miscarriages of justice have arisen in our jurisdiction. Indeed, because of other steps which have already been taken or are in the process of being taken, I think it is unlikely that we will have to deal with many such cases in the future. I will return to this aspect later. While I hope and expect, therefore, that the substantive provisions of this Bill will rarely have to be invoked in the future, it is clearly right that our law should provide for them.
This is not to say, of course, that our system is at present devoid of a means by which miscarriages of justice can be remedied; there has always been the power provided by the Constitution under which the President, acting on the advice of the Government, can grant a pardon, and pardons have been granted in rare cases that have arisen. Similarly, while there is no statutory right to compensation in those cases, that has not prevented the Government of the day from awarding compensation in appropriate cases.
However, it has been widely felt for some time that there should be some specific mechanism in our system of criminal law to enable allegations of miscarriage of justice to be examined. In recognition of this, a committee to inquire into certain aspects of criminal procedure was established under the chairmanship of Judge Frank Martin. I would like to take this opportunity to thank Judge Martin and the members of the committee for their work. That the committee was able to consider all the submissions made to it, complete its deliberations and submit its report very quickly is a credit to the dedication and commitment of its members. They deserve the sincere thanks of this House.
Arising out of their terms of reference, the committee made three main recommendations. First, they recommended that allegations of miscarriage of justice should be examined by a statutory inquiry body. This is implemented by this Bill but with a variation involving the Court of Criminal Appeal which I will explain shortly. Second, they recommended that there should be a statutory entitlement to compensation where a miscarriage of justice is shown to have occurred. This is fully implemented by the Bill. Third, they recommended that the questioning of suspects take place before an audio-visual recording device. The legislation for this is already contained in the Criminal Justice Act, 1984, and so is not in this Bill. I would like, however, to briefly explain the position on this matter before returning to the Bill before us today.
The Government has fully accepted this recommendation. Accordingly, the Minister for Justice has established a steering committee for the introduction of audio-visual recording of Garda questioning of suspects on a pilot basis in selected Garda stations, as recommended by the Martin committee. The steering committee is chaired by Judge Esmond Symth. I would stress that this committee is not concerned with whether to introduce recording devices into Garda stations — that, as I said, has been accepted by the Government — but rather to make recommendations to the Minister on the necessary features of a pilot scheme. This is in accordance with the views expressed in the report of the Martin committee that recording of interviews be first introduced in selected Garda stations, so that by way of a pilot scheme the expertise gained thereby could be put to good use. This is a significant development which will complement the legal changes proposed in the Bill before the House. It will, I hope, lead to an enhancement of public confidence in the integrity of criminal investigations by providing a verifiable record of statements made in Garda custody. This should greatly assist our criminal courts in their difficult task of assessing evidence and should go a long way towards minimising actual or alleged miscarriages of justice occurring in the first place.
To return to the Bill, the proposals fulfill a commitment in the Programme for a Partnership Government to provide for a review of alleged cases of miscarriages of justice and to provide a statutory right to compensation for any actual miscarriage.
While there is an undoubted need for certainty and finality in the decisions of the Criminal Courts, the paramount objective is that justice must always be done and be seen to be done. An accused person, therefore, must have every opportunity to put forward his or her case and to challenge a decision or verdict which adversely affects him or her where there is good reason to suggest that the verdict may have been unjust. The recognition of this led in 1924 to the establishment of the Court of Criminal Appeal which for the first time gave to a convicted person a right of appeal against the verdict of a jury. It was provided that the decision of the Court of Criminal Appeal would be final in every case, except where a point of law of exceptional public importance was involved, when an appeal could with leave be made to the Supreme Court. One of the important proposals in the Bill is that the Court may re-examine a conviction or sentence where new evidence comes to light after a previous appeal has been dealt with. Under the present system, the Court of Criminal Appeal has no power to reopen an appeal already decided, even where clear evidence pointing to innocence comes to light. Everybody will agree that that situation needs to be changed.
Clearly, the circumstances where it becomes necessary to reopen cases would be exceptional, but we must face that possibility and provide for it. It is possible, for example, to envisage an important witness coming forward after the hearing of an appeal who was for some genuine reason unavailable for the appeal or the original trial. Another possibility might be where a new development in forensic science enables evidence which led to the conviction and its affirmation in the Court of Criminal Appeal to be seen in quite a different light.
It is not proposed that there will be filtering of applications to the Court of Criminal Appeal as happens, for example, in the neighbouring jurisdiction where the Home Secretary decides whether or not a case should be referred back to the Court of Appeal. It is not porposed to place any restrictions or obstacles in the way of such applications. Any convicted person who, after an ordinary appeal to the Court of Criminal Appeal, stands convicted of an offence and is able to adduce fresh evidence will be able to apply direct to that court for a re-examination of the conviction or sentence, as appropriate. This open access will not prove unwieldly, but in any event the court is being given the power of summary disposal of frivolous or vexatious applications.
The Martin committee was of the view that in those rare cases in which matters came to light casting substantial doubt on the correctness of a conviction, further recourse to the court system would be likely to prove inappropriate. That is the one significant recommendation of the Martin committee with which I cannot fully agree. I accept the view of the Martin committee that there may be cases which, perhaps because of the nature of the fresh evidence, or the need for an essentially inquisitorial examination, would not be appropriate for determination by the courts. That is why the Bill provides for statutory committees of inquiry as recommended by the Martin committee. It is, however, going too far to propose that every case, even ones which could be heard by a court, should go before a committee of inquiry. The Martin committee instanced several types of hypothetical cases which would not be suitable for referral to a court. Broadly speaking I agree with them, and the committee to inquire into alleged miscarriages of justice provided in section 8 would be able to deal with those types of cases. However, I could not accept because it is desirable to have a committee of cases that cannot be referred to the court, that the committee should also deal with the types of cases for which the courts have been established.
We should not abandon the principle of court appeals. They are a central feature of our criminal justice system and the new entitlement in this Bill to an additional appeal fit in easily into the present system. The full powers of the Court of Criminal Appeal, improved by this Bill, will be available in such cases. The court will, for the first time, be able to direct the Garda Commissioner to make inquiries. Not only will an appellant be able to get a conviction quashed on foot of new evidence, but the court will have the flexibility to substitute a lesser conviction or to reduce the sentence.
The Court of Criminal Appeal will, of course, be bound by rules of evidence in hearing any appeal under this Bill. This has been felt by some to constitute a reason for following the Martin committee recommendations and for abandoning the Court of Criminal Appeal. It is a mistake to look upon the rules of evidence in this way, as if they were arbitrary and capricious restrictions on the discovery of the truth. The rules of evidence have been developed by centuries of judicial experience in order to ensure a fair trial for accused persons. This should be borne in mind by these who, on behalf of convicted persons, advocate committees of inquiry on the grounds that the rules of evidence will not apply to them. Such committees will be free to accept evidence from any party, whether or not such evidence would be admissible in court.
If I had to sum up the thinking behind this central provision of the Bill, I would say that not every alleged miscarriage of justice can be dealt with by the courts and not every alleged miscarriage of justice can be dealt with by means of a pardon. The proposals in the Bill represent a balanced and reasonable approach by providing for the availability of both remedies.
For the first time, and in line with the commitment in the Programme for a Partnership Government, there will be a statutory right to compensation where a miscarriage of justice is found on the basis of newly discovered evidence to have occurred. Of course, the State can pay and indeed has paid compensation in the past in these exceptionally rare cases, but the House will agree with me that it is better to express this entitlement as a statutory right. It will also comply fully with the requirement for such a statutory right contained in article 14 of the International Covenant on Civil and Political Rights, to which Ireland is a party, and will enable the Government to withdraw its reservation to article 14 which has up to now been necessary because of our system of ex-gratia compensation.
I am also taking the opportunity presented by this Bill to consolidate and to a certain extent clarify the powers of the Court of Criminal Appeal. These are at present contained in statutes of 1924 and 1928 and in Rules of Court and would benefit from a degree of codification.
On the provisions of the Bill section 2 provides for a second or subsequent application to the Court of Criminal Appeal where it is alleged that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to the conviction or that the sentence is excessive. Heretofore, a person has had one chance to appeal based on the appeal provisions currently in existence and, if the appeal was lost, that was the end of the line. No matter what facts he or she was able to produce later, even if they cast a genuine and substantial doubt on the conviction, a further referral to the courts was not possible.
"New fact" is defined so as to permit a convicted person to base an appeal under this Bill on evidence which he or she knew of all along, but failed to reveal, where there is a reasonable explanation for that failure. I emphasise the need for a reasonable explanation, because this obviously could only occur in extraordinary circumstances. The intention is to provide for situations, however remote the possibility, where an accused withholds exculpatory evidence out of, for example, fear or intimidation or out of a misguided desire to protect another person.
Of relevance to more cases will be the definition of "newly discovered fact". This is a broad definition and includes a fact known to the appellant at his or her trial or appeal, but the significance of which was not appreciated at the time. The intention is not to permit appellants to re-open arguments already put before the Court. My concern is to ensure that our criminal appeal system has the flexibility to deal with the difficulties which can arise in appeals and the capacity to ensure that justice is done in every case. That is why, in addition, it is provided that there will be no limit to the number of subsequent applications which can be made to the Court of Criminal Appeal, provided each application is supported by a new or newly discovered fact.
The scope of an application is not being restricted to an allegation of a miscarriage of justice in relation to the conviction. Under section 2 an application may also be made to review a sentence on the basis of a new or newly discovered fact, while not contesting the conviction itself. For example, a person convicted of an offence may be able to produce to the court a new fact that would tend to show that his or her part in the crime for which he or she was convicted was not as major as seemed likely during the trial. A reduction in the sentence might be appropriate, but as the conviction itself is not in doubt, simply the severity of the sentence, the question of a miscarriage of justice does not arise. This type of appeal could not be catered for by the Martin committee proposal which would limit the available remedy to a pardon.
Section 3 consolidates the powers of the Court of Criminal Appeal currently contained in section 34 of the Courts of Justice Act, 1924, section 5 of the Courts of Justice Act, 1928, and in Order 86 of the Rules of the Superior Courts. Those statutory provisions are being repealed by this Bill and the Rules of Court will need to be amended to take account of the new provisions. Generally the section puts in simple modern terminology the jurisdiction of the Court of Criminal Appeal in relation to appeals but it does not give the court some new powers.
For example, in a significant departure from the existing powers of the Court of Criminal Appeal, power is being given to the court in section 3 (3) to direct the Garda Commissioner, where an appeal is based on new or additional evidence, to carry out inquiries to see if further evidence ought to be adduced. The court's role will, of course, be to adjudicate on the evidence presented to it and not to carry out an inquiry itself.
Section 4 re-enacts in a modern format, with some additions, the provisions of the Courts of Justice Act, 1928, concerning retrial. Where the Court of Criminal appeal orders a retrial the person concerned can be reindicted, retried and, if found guilty, sentenced to the offence for which he was retried.
Section 5 deals with summary determination of appeals. It has always been recognised that there must be some simple, straightforward system for dealing with frivolous or vexatious appeals. The existing Rules of the superior courts enable suspected frivolous or vexatious appeals to be scheduled for hearing without the transcript of the trial having been obtained. Section 5 is a development of this, and provides a statutory procedure for dealing with clearly unmeritorious appeals. Special provision is, of course, made to protect the rights of appellants. The procedure for summary determination will be invoked only where the registrar of the Court of Criminal Appeal believes that there is no substantial ground of appeal or, in the case of an application under the new procedure in section 2, that there is no prima facie evidence of a miscarriage of justice or an excessive sentence. Of course the decision on the matter will be made by the court itself or by a judge of the court. In the latter case the appeallant will be able to appeal to the full court.
Section 6 applies the relevant provisions of this Bill to courts-martial including the right to reapply to the Courts-Martial Appeals Court on the basis of new evidence.
I come now to section 7. As I have said already, while I believe that the courts system is the most appropriate forum in many cases for deciding whether there has been a miscarriage of justice, we have to cater for the rare case where referral back to the court might not be possible. Section 7 deals with that situation. It provides a procedure whereby a convicted person who alleges that a new or newly discovered fact shows there has been a miscarriage of justice can petition the Minister for Justice with a view to the Government advising the President to grant a pardon under Article 13.6 of the Constitution. There are two circumstances which come to mind in which the procedure might be availed of, first, where persons who might otherwise return to the Court of Criminal Appeal under the new procedures introduced in this Bill find that their fresh evidence is inadmissible in a court of law and, second, where persons have been convicted and sentenced in the District Court. It would not be practical to enable such persons to return to the relevant court of appeal, the Circuit Court, as no record is kept of proceedings in the District Court and appeals are by way of a complete rehearing.
The Minister for Justice will have several options on receipt of a petition for a Presidential pardon. These are, after making the necessary inquiries first, inform the petitioner that the matters dealt with in the petition could be appropriately dealt with by means of an application to the Court of Criminal Appeal; a return to the Court of Criminal Appeal should be the first choice where this is possible; second, inform the petitioner that no case has been made that a miscarriage of justice has occurred; this would be the option where the petition is clearly frivolous; third, recommend to the Government that it should advise the President to grant a pardon in respect of the relevant offence; this option would be relevant where an examination by the Minister, or a suitably qualified person commissioned by the Minister, shows that a miscarriage of justice has occurred; or fourth, recommend to the Government that it should appoint a committee to inquire into the case.
Section 8 deals with the establishment by the Government of a committee to inquire into an allegation that a miscarriage of justice has occurred. In considering a petition for a pardon under section 7 the Minister for Justice can, as I said, as one of her options, make her own inquiries or employ someone else such as a barrister or solicitor to make the inquiries necessary before arriving at a decision provided for in that section. However, the Minister also has the option of advising the Government to appoint a committee to examine a petition for the granting of a pardon by the President and to report whether, in its opinion, the President should be advised to grant the pardon. Whether the President is so advised will remain, as it must under Article 13.6 of the Constitution, entirely a matter for the Government.
I envisage that the appointment of a committee would be necessary only in particularly difficult cases and, therefore, rather than have a standing committee one will be appointed as necessary to inquire into an individual case. This also gives flexibility in providing special expertise in a committee appropriate to a particular case. The committee will be a tribunal within the meaning of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979, and will, therefore, have all the powers of a tribunal set up under those Acts.
Any person who has been the victim of a miscarriage of justice will have suffered a grievous wrong. Nothing can fully compensate a person who has spent years in prison through no fault of his or her own, for his or her loss of freedom, loss of family life, and the effects of the imprisonment on his or her career and life generally. Those years have been lost years. However, the State can at least make some restitution through the award of monetary compensation to any person who can show beyond reasonable doubt that a newly discovered fact shows that there has been a miscarriage of justice in relation to his conviction. Section 9 gives a statutory right of compensation in those circumstances. If the criteria are met compensation can be awarded either where the court of criminal appeal quashes a conviction or where a pardon has been received as a result of a petition under section 7.
The amount of compensation will be determined in each case by the Minister for Justice. There is provision for an appeal to the High Court where there is dissatisfaction with the amount awarded by the Minister. This will enable an independent and impartial assessment to be made in cases of dispute.
When the Martin committee was appointed, its terms of reference excluded it examining whether an uncorroborated inculpatory admission made by an accused to the Garda Síochána could be sufficient evidence to ground a conviction. However, the Programme for a Partnership Government contains a commitment to examine the feasibility of prohibiting criminal convictions on the basis of uncorroborated confession evidence. The conclusion reached in that examination is that convictions can, in appropriate cases, safely be based on the evidence of a confession but that it is right that an additional safeguard should be put in place. Accordingly, section 10 provides that where a confession of the accused is the sole evidence, this fact will be specifically brought to the attention of the jurors who will be required by the judge to have due regard to it in determining their verdict.
Society has every reason to be outraged when a miscarriage of justice results in an innocent person serving a prison sentence. Were it to happen widely, public confidence in the criminal justice system would be seriously undermined, perhaps irreparably. That is why a Bill such as this is so important in that it will allow any alleged miscarriage of justice to be dealt with. However, that is not the full story. I venture the view that very little demoralises public opinion more than to see clearly guilty persons getting off, maybe on a technicality. We must be very careful not to put the type of obstacles in the way of the crime detecting and prosecuting agencies that could, through a series of well publicised cases, cause great public anger and a disrespect for the law generally, resulting possibly in persons exacting retribution by taking the law into their own hands. I mention these thing by way of explaining the reasons for section 10. The fact is that uncorroborated confessions can be good confessions and the possibility of their being used in evidence should not be excluded.
Also, I should remind the House that while a person is in custody there are very stringent regulations — embodied in the Treatment of Persons in Custody Regulations 1987 — which must be complied with. The member in charge of the station is given specific responsibility to see that these regulations are adhered to to ensure that the person in custody is not ill-treated and that a detailed record of the procedures followed is kept. It is difficult to envisage oppressive treatment leading to false confessions in the face of these regulations.
In addition, when the recording of statements in Garda stations comes on stream, and eventually becomes widespread, any lingering doubt there might be over Garda questioning — and there should be no such doubt in the light of the regulations I have mentioned — can be put to rest. Section 10 takes the sensible approach to the question of uncorroborated confession evidence by providing for the judge to advise the jury to have due regard to the absence of corroboration. No particular form of words has to be used by the judge — the judge can decide for himself or herself in the circumstances of each case. The Martin committee made a tentative suggestion as to the form of wording but I am satisfied that, because of the infinite variety of cases that can come before the courts, the precise terms of the advice should be left to the judge.
Finally, I will say a few words about section 11. In 1982 in the case of the People (DPP) v. O'Shea, the Supreme Court gave a literal interpretation of the provision of Article 34.4.3 of the Constitution which says that all decisions of the High Court may be appealed to the Supreme Court. This not only gave persons convicted in the Central Criminal Court a right of appeal direct to the Supreme Court, as an alternative to appealing to the Court of Criminal Appeal, but for the first time it gave the prosecution the right of appeal to the Supreme Court against convictions in the Central Criminal Court. However, the terms of Article 34.4.3 provide that legislation may exclude decisions of the High Court from the appellate jurisdiction of the Supreme Court and that is what this section does in relation to the criminal jurisdiction of the High Court. A saver is included to protect the prosecution's statutory right of appeal without prejudice to a verdict in favour of the accused and to enable an accused to continue to appeal straight to the Supreme Court against a decision of the Central Criminal Court on the Constitutional validity of any law.
In effect, section 11 restores the right of appeal from the Central Criminal Court to what it was thought to be before the O'Shea case. Persons convicted in the Central Criminal Court will continue to have a right of appeal to the Court of Criminal Appeal, which is the court specially designed for that purpose, with the possibility of a subsequent reference to the Supreme Court on a point of law of exceptional public importance. The prosecution will continue to have a right of appeal direct to the Supreme Court, without prejudice to the verdict in favour of the accused, on a point of law of exceptional public importance.
This Bill is an important development in our criminal justice system. It faces up to the difficult issue of allegations of miscarriage of justice. It gives our courts the powers to deal with such allegations. It provides an alternative mechanism for cases which could not return to the courts. It provides for compensation where a miscarriage of justice actually occurs. It puts in place a new safeguard in the consideration of uncorroborated confessions. Last but not least, it consolidates and updates the main powers and the role of the Court of Criminal Appeal. This Bill will enhance public confidence in the criminal justice system and I commend it to the House.
