Seanad Éireann debate -
Wednesday, 22 Dec 1993

Vol. 138 No. 18

Criminal Procedure Bill, 1993: Committee and Final Stages.

Section 1 agreed to.

NEW SECTION.

Mr. Neville

I move amendment No. 1:

In page 3, before section 2, to insert the following new section:

"2.—(1) The Minister for Justice is hereby authorised to set up an independent body of inquiry to be known as the Tribunal to Review Alleged Miscarriages of Justice and which shall have power to—

(a) enforce the attendance of witnesses, and their examination on oath, affirmation or otherwise;

(b) compel the production of documents;

(c) issue a commission or request to examine witnesses outside the jurisdiction;

(d) hold in contempt, similar to contempt of the High Court, a person who

(i) on being duly summoned as a witness, without just cause or excuse disobeys the summons, or

(ii) being in attendance as a witness refuses to testify when legally obliged to do so, or without just cause fails to produce documents, or

(iii) wilfully gives material evidence which he knows to be false or does not believe to be true, or

(iv) by act or omission obstructs or hinders the inquiry in the performance of its functions, or

(v) fails, neglects or refuses to comply with the provisions of an order made by the Committee, or

(vi) does or omits to do something which, if the Tribunal had been the High Court, would have constituted a contempt of that Court.

(2) The Tribunal shall be constituted and shall have the same powers as if it were a tribunal established under the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979.

(3) A person—

(a) who has been convicted of an offence either—

(i) on indictment, or

(ii) after signing a plea of guilty and being sent forward for sentence under section 13 (2) (b) of the Criminal Procedure Act, 1967, and

who, after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and

(b) who alleges 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 imposed is excessive,

may, if no further proceedings are pending in relation to the appeal, apply to the Tribunal for a recommendation that the Court should make an order quashing the conviction or reviewing the sentence.

(4) Subsection (3) shall not apply to a person who has entered a plea of guilty to an offence unless he also alleges that if the new or newly-discovered fact had been known to him at the time he entered the plea he would not have entered it.

(5) An application under subsection (3) shall be treated for all purposes as an appeal against the conviction or sentence.

(6) The reference in subsection (3) (b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings or a fact the importance of which was known to a party to the proceedings who decided to bring it before the Court.

(7) Where—

(a) after an application by a convicted person under subsection (3) and any subsequent re-trial the person stands convicted of an offence, and

(b) the person alleges that a fact discovered by him or coming to his notice after the hearing of the application and any subsequent re-trial or a fact the significance of which was not appreciated by him or his advisers during the hearing of the application and any subsequent re-trial or a fact the importance of which was known to a party to the proceedings who declined to bring it before the Court shows that there has been a miscarriage of justice in relation to the conviction, or that the sentence was excessive,

he may apply to the Tribunal for a recommendation that the Court should make an order quashing the conviction or reviewing the sentence and his application shall be treated as if it were an application under that subsection.

(8) A statement or admission made by a person before the Tribunal shall not be admissible as evidence against that person in any criminal proceedings other than those of the Court under subsection (3) or (7).

(9) Evidence taken by the Tribunal shall not be excluded by the Tribunal solely on the ground that it is hearsay.

(10) A recommendation and any report of the Tribunal under this section shall be admissible in the Court as evidence for the purposes of proceedings of the Court under subsection (3) or (7) to quash a conviction or to review a sentence".

This amendment proposes that a tribunal of inquiry, known as a tribunal to review alleged miscarriages of justice, should be established to decide in all cases under the Bill. While some might argue that a tribunal of inquiry should not have the power to overrule a decision of a court, I believe a very good case can be made for this under the legislation. It will be possible for a tribunal or other independent body to quash a court decision if it is provided for in law and if such a tribunal is set up in a proper way.

The amendment proposes that the recommendations and report of a tribunal should be admissible in the court as evidence for the purposes of the proceedings of the court under section 3 and 7 to quash a conviction or review a sentence. The Martin committee was very strong in its view that the matter should not be decided by the court, and I quote:

We doubt, however, whether reference to the court system would necessarily prove effective in establishing the truth.

The Martin committee gives two reasons for its view. It believes that a court is not the proper body to which to appeal what may be a miscarriage of justice or to rehear cases. A court has to operate under the rules of evidence, one of which is not to take hearsay evidence into account. The Martin committee recommended that in such circumstances it should be possible to go outside the parameters of the normal rules of evidence and to take hearsay evidence into account. It cites as an example the Civil Evidence (Scotland) Act, 1988, which allows hearsay evidence to be taken into account. A court cannot hear such evidence but the Martin committee strongly recommended that a tribunal should do so.

The Minister for Justice set up an independent committee under a judge to look at appeals procedures where new evidence which comes to light may clear somebody's name. The judge and committee say the courts are not the places to hear such appeals because of the way they operate and, specifically, because the courts are not there to find out the truth but rather to find out if a case is proven.

Fine Gael is concerned about the type of restricted evidence admissible in court. It believes that the absence of a tribunal in all cases renders the Bill fundamentally flawed. My amendment proposes the setting up of a tribunal which could be done in a number of ways. The tribunal could comprise people nominated by a panel made up of the Chief Justice, the Ombudsman and the Director of Public Prosecutions or any other group which could be put together to form an independent tribunal. The tribunal's objective should be to seek the truth, not whether a charge stands up. It should be empowered to hear whatever evidence it feels necessary. The Martin commission states: "We doubt, however, whether reference to the courts system should necessarily prove effective in establishing the truth.".

Minister of State at the Department of Justice (Mr. O'Dea)

I thank Senator Neville for his constructive contribution. I must say the message did not come across here as clearly as it did in the debate in the Lower House that the courts are not the place to go if one wants justice. That did not come across here as clearly and I compliment the Senator for that.

Mr. Enright

Could the Minister repeat that please?

Mr. O'Dea

I said that the message that came across from the Lower House was that if one wants justice, the courts are not the place to go. I am glad that did not come across as clearly here and I welcome that.

Mr. Neville

We are an independent House. We do our own thing here.

Mr. O'Dea

Of course, and more responsibly in certain matters than certain people in the Lower House who shall remain nameless.

Mr. Neville

I am not in a position to comment on that.

Mr. O'Dea

I wish to deal first with the Martin committee report, an excellent report for which we should all be grateful. The report formed the basis for a thorough examination in the Department of Justice of the issues involved during which we consulted widely with eminent legal opinion. We came to the conclusion that the recommendations of the Martin committee were essentially sound and acceptable in principle but in one respect the Government decided on a different approach.

There were three recommendations in the report of the Martin committee. First, it recommended the setting up of a statutory inquiry body to examine cases of alleged miscarriages of justice. The Government has accepted that recommendation but not that it should be a tribunal of first and only resort, as recommended by the committee, but rather that it should be a tribunal of alternative resort when recourse to the courts is either impractical or impossible.

The second main recommendation in the report was to provide a statutory right to compensation to a person who has been wrongfully convicted. That recommendation has been fully accepted. The third recommendation was that statements made in Garda stations should be video recorded and that has also been accepted by the Government.

I will explain again in detail the reasons for the main provisions of the Bill, of which section 2 is central, and why I consider them to be the most appropriate way of dealing with alleged miscarriages of justice. The Court of Criminal Appeal, which was established in 1924, for the first time gave a convicted person a right of appeal against the verdict of a jury. Leave to appeal can be granted by the court where there appears to it to be a sufficient ground for appeal. A decision of the Court of Criminal Appeal is final in every case except where a point of law of exceptional public importance is involved when an appeal can be made to the Supreme Court. In other words, it has been accepted since 1924 that the most appropriate way of dealing with unsatisfactory court decisions is by way of an appeal to the Court of Criminal Appeal. I consider that, in principle, going back to the Court of Criminal Appeal, where that is feasible, is still the most appropriate way of dealing with alleged miscarriages of justice but that the present provisions are inadequate in that they only allow for one referral back to the court.

Much has been said of the reasons given by the Martin committee for recommending a statutory inquiry body and, so far as they go, they are justified. The report gave some hypothetical examples of cases which could not be dealt with in our courts structures and which would therefore justify the establishment of an inquiry body. Having read the hypothetical examples given in the report, I can say that I fully agree that such cases, rare though they may be; would in all probability be unsuitable, indeed probably impossible, to refer back to the court and would be better dealt with by some alternative system. That is why provision is made in section 7 for petitions for the grant of a pardon. The Minister will have the power either to commission somebody such as a barrister or a solicitor to make inquiries and report to her on a case or, if it is clearly a complicated case, she can recommend to the Government that a committee be set up to make the necessary inquiries. That committee will have all the powers recommended in the Martin committee report for the statutory inquiry body and it will not be inferior in any way.

I am strongly of the view that what we are proposing in this Bill is the proper response to cases of alleged miscarriage of justice. Where a person alleges that a new or newly discovered fact shows that a miscarriage of justice has occurred he or she will be able to apply to the Court of Criminal Appeal to have the case heard again. The re-hearing is on the basis of the new or newly discovered fact and therefore there is no question of the court having to go behind a jury verdict. The fact on which the court will be asked to adjudicate would not previously have been before the court.

Allegations that the court would not overturn a jury verdict or would have some sort of vested interest in maintaining the status quo are well wide of the mark and are unworthy. In any case, as I have just explained, they are irrelevant to the proposals in this Bill. A person who goes back to the court and has their conviction overturned will, of course, be fully vindicated not only in that he will be seen to be innocent but in that he will literally have the conviction set aside. He will also be eligible to receive compensation.

Of course, there will be cases which will be unsuitable to go back to the Court of Criminal Appeal. That has been used as an argument for not allowing anyone to go back to the Court of Criminal Appeal. It is a false argument. In cases where the new evidence is for any reason inadmissible in a court or it is clear to the Minister that the case is one of great complexity which would require major investigation and inquiry, or where it is a summary conviction which cannot be dealt with in the Court of Criminal Appeal, the alternative procedures provided for in this Bill will come into play.

From what I have just said it is obvious that I cannot accept the amendment we are discussing. The strength and passion of argument both here and in the Lower House ensured that the issues were again thoroughly examined following the matter being referred from the Lower House. The arguments put forward in the Lower House in favour of an inquiry body as the only tribunal capable of examining alleged miscarriages of justice proved, on examination, not to make the case for such a one track approach. Indeed, they strengthen my belief that the approach adopted in the Bill is the correct one.

I would now like to comment on Senator Neville's amendment. It is an interesting amendment that clearly represents a genuine attempt at a compromise solution. By diverging from the recommendations of the Martin committee report, Senator Neville is indicating that he is not hung up on those recommendations. The amendment deserves a detailed response which I will now give.

I have already explained in some detail why, when a miscarriage of justice is alleged, recourse to the courts where the conviction can be set aside should be the preferred option. The Senator seems to agree with my contention that a person should not be deprived of the right to have a conviction set aside, where possible, when a miscarriage has occurred. The purpose of the amendment is to enable a convicted person who alleges that a miscarriage of justice has occurred to apply to a committee which in turn could recommend to the Court of Criminal Appeal that a conviction should be quashed or the sentence reviewed. In fact, the amendment does not achieve its objective but I do not wish to become bogged down in the drafting difficulties I see in the amendment.

Clearly, a recommendation by a committee of the type envisaged by this amendment could not be binding on the Court of Criminal Appeal. The court could not be obliged automatically to accept and endorse such a recommendation. Any such provision would clearly infringe on the independence of the courts and would be unconstitutional. We must take it, therefore, that the amendment envisages that a recommendation will constitute mere advice to a court which may or may not be accepted. In hearing an appeal against conviction or sentence, however, the court could not simply accept the recommendation but would have to form its own conclusion on the evidence supporting the recommendation.

The discretion of the courts in evaluating evidence was upheld as being an integral part of the courts' exclusive competence to administer justice in the Supreme Court decision in the case of Maher v. the Attorny General, 1973 Irish Reports. To the extent that the evidence considered by the committee would be admissible in court, it could in any event be heard in the ordinary way on appeal but some or all of the evidence, as the amendment clearly anticipates and provides for, could be inadmissible evidence such as hearsay. The effect of the amendment, therefore, would be to introduce inadmissible evidence to the Court of Criminal Appeal through the back door. Any proposals to change the rules of evidence to allow hearsay or other evidence at present inadmissible to be heard in courts could only be considered after detailed consideration and public debate. The amendment would put the court in the impossible position of being unable to itself test or examine evidence in order to come to its own conclusion. In effect the court would be asked to accept on trust, without question, evidence considered by the committee and to decide guilt or innocence, or the severity of punishment, on that basis. I cannot see any court agreeing to set aside a conviction on such a basis.

It is in recognition of the difficulties created by inadmissible evidence that the Bill proposes a comprehensive statutory scheme for the consideration of pardons in such cases, including where necessary the establishment of a committee to report its opinion on whether the Government ought to advise the President to grant a pardon. That is the way to proceed. While welcoming Senator Neville's recognition of the central role of the courts in deciding cases of alleged miscarriage of justice, I regret that I cannot accept his amendment.

Mr. Enright

Senator Neville's amendment No. 1 is extremely important. I listened with interest to what the Minister of State had to say. The basis for or terms of reference of the tribunal to review alleged miscarriages of justice are very wide ranging. It is to be comprised of many qualified people including the Chief Justice, the Ombudsman, the Director of Public Prosecutions and a panel to be nominated by the Minister which would include people of that calibre. It is most important that there be people of distinction who would serve on that tribunal, which should be totally independent.

The Minister of State made the point that he considered that this tribunal, as outlined by Senator Neville and in the report of Judge Frank Martin, may well be found to be unconstitutional. I could not agree with that view. I would not think that the body who advanced this proposal would do so if they thought it could be construed to be unconstitutional. I contend that it would be quite constitutional and that all of their proceedings would be in order and be seen to be above board.

Other Members have paid tribute to Judge Martin for the work undertaken in producing his report. As somebody who has known him over many years I should like to wish him every happiness in retirement. I congratulate him on his achievements on the Bench and on having produced this report.

The establishment of this independent tribunal is of immense importance in that we have been somewhat lacking in not having had such a review body in place. In the course of his remarks the Minister of State said it was unlikely that we would have to deal with many cases of miscarriage of justice in the future. We cannot envisage whether or not we shall encounter such cases in the future. That is why there is need to establish such a review body. Bearing in mind the current trend in the drafting of legislation, such review body and procedures may well be necessary in the future in that the numbers of such cases may well increase rather than decrease. That is why it is essential that we have such an independent tribunal of inquiry.

The point I might make is that we have actually been dealing with high profile cases of miscarriages of justice. There is a danger, in the manner in which legislation is being drafted, presented and passed, that there will be cases of miscarriage of justice for that very reason. Future cases may not be what could be described as high profile ones. The Road Traffic Bill, 1993 is an illustration of what I have in mind. For example, in the case of a dangerous driving incident, the uncorroborated opinion of a garda, could lead to a person being convicted of dangerous driving, in turn leading to a mandatory sentence. The person involved may lose his or her driving licence and, thereby, their source of livelihood. They have right of appeal to the Circuit Court, when it will be a case of one person's view against another. At that point the relevant procedures will have been exhausted.

We need to be very careful in drafting legislation, ensuring that all its provisions are sound constitutionally and legally. Whenever a person is deprived of their freedom, perhaps also of their livelihood in one form or another, it is incumbent on us legislators to ensure that the provisions are in place so that any person who feels that an injustice has been perpetrated has some procedure available to them to have such miscarriage of justice annulled.

Over the years, there have been miscarriages of justice for one reason or another. We are lucky in having an excellent Garda Síochána force, an excellent judicial system and legal profession. In spite of all of that, miscarriages of justice continue to happen and will occur in the future. We must ensure that there are provisions to allow redress.

The Bill's proposals are quite good and I congratulate the Minister of State, but there is need for some independent tribunal. As a State, we are encroaching very much on people's civil liberties and rights. It is vital that we have in place the type of mechanism that will prevent such excesses occurring. We are afforded such an opportunity today and should grasp it.

I do not think the Minister will accept Senator Neville's amendment, albeit an excellent one that has widespread public support. People consider it necessary that an independent tribunal be established. Had there been such an independent tribunal in Britain many years ago, all the miscarriages of justice that occurred there would never have happened, or at least would have been nipped in the bud much earlier.

I will go along with the Minister in his proposals if he will take on board Senator Neville's amendment.

Mr. Crowley

I am quite confused by the language used by Members opposite. While I agree that there must be processes put in place to ensure that miscarriages of justice can be investigated and so on, what I cannot understand is their total commitment to a single independent tribunal to deal with all such cases. The Bill, as drafted, affords the option to establish an independent tribunal of inquiry, in addition to the structures in place for the Court of Criminal Appeal to investigate such cases, and reappeal them, whenever new evidence comes to light. That meets the requirements of Fine Gael Senators.

I would never equate the Irish and British judicial systems, not merely because of the independence of our Judiciary but also because we have a written Constitution which guides every action taken by Government, by the Judiciary and the Legislature. Therefore controls are already in place whereby if legislation infringes on people's rights it can be referred to the courts by the President, before it becomes an Act, or afterwards by a constitutional action taken by an individual to protect their rights. I am at a loss to understand the necessity for a totally independent tribunal without any reference back to the court. The dual system, as proposed in the Bill, is the optimum solution to the present problem.

Mr. Neville

If somebody claims, having gone through the court procedure, that he or she is not guilty of the crime, as happened recently, it should not only be possible for him or her to have the case reheard on facts but to have an independent tribunal to seek out the truth without being confined to the traditional court procedures or rules of evidence. The tribunal should pursue the truth as recommended by the Martin committee. It should be able to take a broader spectrum of evidence than is possible under the court system in all cases. The tribunal, as proposed in this amendment, would review alleged miscarriages of justice, would have the right to enforce the attendance of witnesses, to compel the production of documents, to issue a commission or request to examine witnesses outside the jurisdiction, to hold in contempt, similar to contempt of the High Court, a person who fails to comply with the summons and various other matters; and to ensure there is no problem about a tribunal overruling a court — if such a problem should exist.

The amendment states, as the Minister has recognised, that any report of a tribunal be taken in the court as evidence for the purpose of the proceedings of the court under subsections (3) or (7) to quash a conviction or review a sentence. Whereas the court would not have heard the hearsay evidence or any other evidence it should not hear, it could take as evidence the report of the tribunal. It would be a tidier operation if the tribunal was empowered to overrule the courts but the basic principle of the amendment is to establish how miscarriages of justice should be dealt with. While there could be a waiver as to whether a tribunal should overrule the courts we are saying it would not do so and that hearings of the tribunal would be submitted in evidence to the court in preparation for the final decision. For a number of years there was much controversy in regard to having a review of the conviction of the Guildford Four, the Birmingham Six and other cases in the United Kingdom. During that time politicians in this country could stand up and criticise UK authorities for their failure to move on miscarriages of justice though we did not have in our own legislation procedures that would enable us take similar action. I now welcome those procedures. The core recommendation of the Martin committee is that the rules of evidence be relaxed. The thrust of the amendment we are proposing is to ensure that the strong views of Judge Martin and his committee are adhered to.

Mr. O'Dea

I should like to deal with a few points that have been made in the course of the contributions. Senator Enright alleged I said that the tribunal, as proposed by Senator Neville, may be unconstitutional. I did not say that. I said that if we are to take it that the tribunal's conclusions would be binding on the court then, clearly, that would be unconstitutional. I have no hesitation in saying that. If the tribunal's finding were binding on the court, the court would then only be a rubber stamp and the courts will not and cannot be relegated to that position under Article 34 of the Constitution.

The alternative is that the proposed tribunal's recommendations would not be binding on the court. In that situation the court will have to consider all the evidence itself, including evidence on how the tribunal came to that conclusion. Let us assume that all that evidence would be admissible in a court of law. If that is the case why go to a tribunal? To allow the tribunal to reach a conclusion and then ask the court to reach a conclusion on the same evidence is not sensible. Suppose part of the evidence is inadmissible, in a court of law, and you set up a tribunal — if the court has to make a decision on its own right as in the case of Maher v. the Attorney General— it must make its own decision and cannot accept anybody's recommendation, the court would be in a totally invidious position. It will be asked to make a decision based on some evidence when a tribunal, which is reporting to it, has made a decision based on that evidence and other evidence which cannot be admitted into court because it is inadmissible. That is the position. We cannot have that.

Some Senators said I thought it unlikely that there would be many such cases. For two reasons, it is unlikely that there will be many cases of this sort in the future, first, because of the new safeguards we are putting in place to protect people in custody and, second, because of the audiovisual recording procedure which we are now going to introduce. The scope for miscarriages of justice will be considerably less. The Martin committee recognised and, indeed, envisaged in some part of the report that the cases would be rare and exceptional. Senator Enright said the new legislation would lead to more miscarriages of justice in the future and that, therefore, a tribunal would be needed. Frankly, I cannot understand that. I do not know what legislation he has in mind. He did not say why or how new legislation would lead to more miscarriages of justice although he did mention the Road Traffic Act which provides for summary convictions.

As I have already explained to the House, in the case of a summary conviction, it will be a matter for referral to the Minister for Justice who is empowered, if her inquiries establish a prima facie case, to set up a tribunal. It would not be appropriate for such a case to go back to the court because it would not have been before the Court of Criminal Appeal in the first place. We are providing that the only cases that can go back to the Court of Criminal Appeal are those which were before that court in the first place but where new evidence has emerged. The court will be reviewing its decision rather than guessing, some years hence, into the future but examining its previous decision based on the new evidence.

Reference was made to the need for an independent tribunal. History has proved that no institution in this country is more independent than the courts. Section 8 deals with the tribunal which will be established by the Government. The section clearly sets out the parameters stating that the chairman will have to be either a judge, a former judge or a practising barrister or solicitor of not less than ten years standing. That is a tremendous advance on the system that has prevailed up to now because, first, there was no mechanism to go back to the courts and, second, if somebody wanted a pardon they petitioned the Minister for Justice of the day who carried out his or her own inquiries. The Minister is being given the additional power now to set up a tribunal. That is a considerable advance.

It is not desirable to have a tribunal comprised of specific people who would be called upon whenever they were needed. There are different types of cases involving miscarriages of justice, from murder and offences against the person to the most complicated fraud cases. Obviously different types of expertise will be needed in the different tribunals which will be set up from time to time.

Senator Neville said that the conclusion of the Martin committee was that the body inquiring into alleged miscarriages of justice should be able to take a broader spectrum of evidence than a court. If there is broader evidence which tends to show a miscarriage of justice and it is not admissible in court that would be a perfect reason for the setting up of a tribunal. If the evidence is such that it can be considered the court is the proper body to hear it. To suggest otherwise would be a vote of no confidence by this House in the courts of this country. I would not countenance that for a moment.

From my recollection of the Martin report, that particular conclusion is not supported by the reasoning which precedes it. The Martin committee referred to cases where there might be hearsay evidence which would not be admissible in court or cases where witnesses do not want to change their evidence because they might be prosecuted by the DPP for perjury. Because of these type of cases they say that nobody should ever have to go back to court but should go before a tribunal. In the legislation we are providing the Minister for Justice with the power to set up a tribunal specifically for those cases. I will deal with the perjury aspect in a moment. In any other case where it is appropriate and where all evidence can be resubmitted and readmitted in court we are saying that they go back to the court.

On the question of perjury, I want to make our position clear in case there are any doubts. For instance, in some cases a person will want to change his evidence, such as in the Birmingham case and, naturally, the witness will be afraid to go back in because a person was sentenced to imprisonment on his evidence which was sworn falsely. If, seven years later because of qualms of conscience, the witness agrees to go back to give evidence will the DPP agree not to prosecute him? We have no guarantee in that regard. It is an example of a case where the person's legal advisers will look to the Minister for Justice to set up a tribunal because as a tribunal is defined in this Bill there can be no prosecution for perjury as a result of somebody changing his evidence.

Amendment put and declared lost.

Question: "That section 2 stand part of the Bill", put and declared carried.

SECTION 3.

Mr. Neville

I move amendment No. 2:

In page 5, subsection (3) (a), line 20, to delete "Commissioner of the Garda Síochána" and substitute "Attorney General".

The reason for proposing this amendment is that the conduct of the gardaí and the prosecution of the offence could be a point of dispute and it is possible that the Garda Commissioner of the day could have been an officer overseeing the original inquiry and been promoted in the meantime. He, in fact, could have been responsible for the conduct of the original case and although the inquiries could be focused on the conduct of the gardaí it would still pass through the office of the Garda Commissioner. For this reason, I believe the Attorney General should oversee the conduct of any inquiry. This is the question not only of justice being done but seen to be done and ensuring that nobody faces difficulties. The Garda Commissioner of the day would not find it difficult to work under the supervision of the Attorney General in these circumstances.

Where the Garda Síochána is involved someone other than the Garda Commissioner should have the right to oversee a request in a review case. Circumstances may occur which may involve evidence available to members of the Garda Síochána which would have been presented in court in the interests of the perception of what is fair and thorough by way of an examination, inquiry or interrogation. In fairness to the commissioner the matter should not be the responsibility of the officeholder. It is more appropriate that the Attorney General should hold such a position. It is important that the public perceives a degree of independence and detachment in relation to the duties or investigations being conducted by the officeholder. We are dealing with unusual circumstances where an alleged miscarriage of justice has occurred and there is a conflict of interests if the commissioner investigates his own force. We are not casting any aspersions on the Garda Síochána, but I am convinced that the Garda Commissioner should be removed from direct involvement in the investigation of his own force and that the Attorney General should oversee the investigation.

Mr. O'Dea

In replying to this amendment I will refer briefly to the purpose of the provision as it stands. In section 3 (3) (a) the Court of Criminal Appeal is being given an important new power to order the Garda Commission to carry out inquiries to see if further evidence ought to be adduced. The court's role will be to adjudicate on the evidence presented to it and not to carry out an inquiry itself. There may be cases where particular issues raised by the appellant on the prosecution cannot be resolved on the facts available and which the court may wish to have further investigated. The purpose of this provision is to enable the court to so order the Garda Commissioner to make the investigation.

What is at issue here is the duty of the Garda Commissioner to carry out specific inquiries ordered by the Court of Criminal Appeal. It will be up to the court — I want to stress this point — to be satisfied that the investigations have been properly carried out by the Commissioner and that they adequately answer the queries raised. The Commissioner has the technical and forensic resources necessary to carry out any inquiry which the court is likely to suggest. He also has the necessary investigative expertise available to him. He is clearly the most appropriate person, if not the only one, who could be asked to perform those functions.

There may be a perception that when the court directs the Garda Commissioner to conduct an investigation, the purpose of the investigation will somehow be concerned with uncovering some wrongdoing or mishandling of a case by the gardaí. This need not necessarily be the case and, in practice, might only very occasionally be the case. However, as I said, because of the investigative role, expertise and resources of the gardaí, they would be the obvious and correct body to undertake such an investigation. In those circumstances it is better that they report direct to the court, rather than through an intermediary, whether or not the Attorney General.

The principle of the Garda investigating matters which concern their own operations, under independent supervision and in accordance with a statutory duty, is not new. It is already contained in the Garda Síochána (Complaints) Act, 1986, and is working well. As I say, any investigations by the Commissioner would be under the supervision of, and according to the instructions of, the Court of Criminal Appeal and there is no reason to doubt the safety of such a procedure.

It would be particularly inappropriate to appoint a person such as the Attorney General to carry out or oversee these investigations. While the Director of Public Prosecutions has taken over the prosecutorial functions of the Attorney General, there remains the possibility, whether under specific legislation or under the Prosecutions of Offences Act, 1974, that certain prosecutorial functions could be allocated to the Attorney. For example, individual statutes may, despite the Prosecution of Offences Act, 1974, allocate prosecutional functions to the Attorney General. The Fisheries (Amendment) Act, 1978, has done so in relation to maritime fisheries offences. Under the Prosecution of Offences Act, 1974, the Government may, in the interests of national security, order that functions in relation to specified types of criminal matters shall return to the Attorney General.

I have the fullest confidence in the integrity and ability of the Garda Commissioner to carry out the orders of the court in a proper and efficient manner. I regret that I cannot accept the amendment.

Mr. Neville

The Minister referred to the Garda Complaints Board. I would like to refer him to an Adjournment Debate in this House in the past two weeks on the chaos in that procedure although I know it is not relevant to the Bill.

Amendment, by leave, withdrawn.

Section 3 agreed to.

Sections 4 to 6, inclusive, agreed to.

SECTION 7.

Acting Chairman (Mr. R. Kiely)

Amendments Nos. 2a and 2b are related and may be discussed together.

Mr. Neville

I move amendment No. 2a:

In page 7, subsection 2, line 20, to delete "he" and substitute "she".

I will quote the relevant subsection: "The Minister for Justice shall make or cause to be made such inquiries as he considers necessary and" ... and so on. Three weeks ago we passed the Interpretation Bill which had been passed by the Dáil and will be enacted into law. The Minister is a woman and I propose that we honour the detail and the spirit of what we discussed at length during the course of that debate.

Mr. O'Dea

Under the Interpretation Act, 1937, references to "he" include "she" but the opposite does not apply; that means that the term "she" does not include "he". The situation will change when the recently debated Interpretation (Amendment) Act becomes law. However, it has not yet been signed. While fully accepting the reasons for the amendments I am not in a position today to accept them. I am very happy with the Interpretation Bill which I hope will soon be signed by the President. Because it has not been signed today I am constrained.

Mr. Neville

I accept what the Minister has said and I note that two women are now delaying the introduction of this Bill — the Minister for Justice and the President.

Acting Chairman

That is not relevant but the Senator has made his point.

Amendment by leave, withdrawn.

Amendment No. 2b not moved.

Section 7 agreed to.

Section 8 agreed to.

SECTION 9.

Mr. Neville

I move amendment No. 3:

In page 8, between lines 46 and 47, to insert the following subsection:

"(2) The Tribunal established under section 2 may recommend that persons deliberately involved in the perpetration of a miscarriage of justice shall be liable to contribute to the payment of compensation and the costs of trials in relation to that miscarriage of justice.".

This amendment proposes that either the tribunal or the court should have the power to recommend that persons deliberately involved in the perpetration of a miscarriage of justice shall be liable to contribute to the payment of compensation and the cost of the trial in relation to the miscarriage of justice. Exceptionally well off ruthless racketeers might become involved in framing a person. Why should the taxpayer pay the compensation rightly due to the victim as a result of a miscarriage of justice brought about in this way and why should the taxpayer have to pay the cost of the retrial in these circumstances?

Mr. O'Dea

I fully understand the reason this amendment has been put down and I fully sympathise with its sentiment. Unfortunately, we cannot always provide in legislation for something which, on the face of it, might seem like a good idea, especially when the provision is aimed at a person perceived as having done something wrong. However, no matter how much we might disapprove of someone's behaviour, the rule of law must always apply.

Having said that, I will give my reasons despite my inclinations for not being able to accept the amendment. The court has no jurisdiction to award costs against a person who is not a party to proceedings and it would be neither desirable nor feasible to give the court that function. In awarding compensation against a person in criminal proceedings, the court is essentially adjudicating between the two parties to the proceedings. It could not make a compensation order against a person who is not a party to the proceedings, has not been convicted of, let alone charged with an offence, and may not even be involved as a witness in the case and would not have had an opportunity to defend himself or refute allegations made against him. That is not the way to administer justice.

In cases such as this it should be a matter for the Director of Public Prosecutions to decide whether there is sufficient evidence to justify the prosecution of a person for an offence related to causing a miscarriage of justice, such as perjury. No doubt in the event of a conviction the question of compensation for the victim could be considered by the court under the terms of the Criminal Justice Act, 1993, which provided for compensation orders against convicted people, and no doubt, if might be possible to take any such compensation into account in determining any compensation to be paid by the State for the miscarriage of justice.

Another minor point about the wording of the amendment is that the person who was deliberately involved in the perpetration of the miscarriage could be the appellant. For example, with the clarification of what is a new fact now part of the Bill, a person who deliberately withheld evidence at his trial and appeal because of intimidation could well appeal again to the Court of Criminal Appeal. Such a person, under the provisions of this amendment, could find himself liable to pay compensation and costs.

To sum up, I understand and empathise with the sentiment expressed in this amendment but for sound legal reasons I cannot accept it. Miscarriages of justice are very rare occurrences in this country and the circumstances whereby an amendment such as this would be relevant would be a rarity in a situation that seldom arises. Therefore, even if the situation envisaged by the amendment could be catered for in the Bill, the legislation would not in practical terms be much the better for it.

Amendment, by leave, withdrawn.

Section 9 agreed to.

SECTION 10.

Mr. Neville

I move amendment No. 4:

In page 9, between lines 31 and 32, to insert the following subsection:

"(3) Where at the summary trial of a person evidence is given of a confession made by that person and that evidence is not corroborated, the judge shall have due regard to the absence of corroboration."

This section provides that where an uncorroborated confession is used as evidence, the judge shall advise the jury to have due regard to the absence of corroboration. However, in a summary trial the judge is not required to do so. My amendment provides that in a summary trial where an uncorroborated confession is used as evidence the judge will have due regard to the absence of corroboration. The Minister might argue that the judge will have due regard but it should be stated in law that the judge must have due regard to the absence of corroborated evidence with regard to confessions.

Mr. O'Dea

The purpose of this amendment is to apply the provisions of section 10, whereby a judge shall advise the jury to have due regard to the absence of corroboration, to a judge himself or herself sitting in the District Court. It might be helpful to review the law generally on corroboration so that section 10 and the proposed amendment can be seen in their proper context.

A small number of offences, for example, treason under the Treason Act, 1939, require corroboration as a matter of law. In other words, the uncorroborated evidence of one witness is not sufficient for a conviction.

The more usual application of the law on corroboration, however, is to certain types of evidence which by their nature require careful examination before they can support a conviction without corroboration. A judge must advise the jury of the reasons particular care is needed in assessing this type of evidence, but if the jury is satisfied beyond reasonable doubt it may convict without corroboration of the evidence. The law in this area is under regular review. There have, for example, been two significant changes since 1990. The Criminal Law (Rape) (Amendment) Act, 1990, abolished the requirement of a warning to the jury about the danger of convicting a person of a sexual offence on the uncorroborated evidence of a complainant. Any such warning, which up to then had been mandatory, is now at the discretion of the judge. Similarly, the Criminal Evidence Act, 1992, abolished the requirement of a warning by a judge to a jury of the danger of convicting a person on the uncorroborated evidence of a child. Once again such a warning is now discretionary.

It is still the law, however, that a jury must be advised to take particular care before convicting a person on the uncorroborated evidence of an accomplice, who may have much to gain by minimising his or her role in the offence and exaggerating the role of the accused. A jury must also be advised to take particular care in convicting a person on uncorroborated visual identification evidence, as experience has shown that witnesses can make genuine and sincere mistakes.

Section 10, therefore, adds to the list of types of evidence on which a judge must advise a jury to take particular care in assessing, but which may nevertheless support a conviction even if uncorroborated.

It is, however, an entirely different matter to try to apply the requirement in section 10 to a District Judge so that he or she has to, as it were, self-administer a warning. We have to look at the principle of District Judges being required by law to have regard to matter which a judge in a higher court must explain to a jury. This principle extends far beyond corroboration of evidence. A judge, for example, must advise a jury that the accused is innocent until proven guilty, that the onus of proving guilt is on the prosecution and that the burden of proof is beyond a reasonable doubt. The judge must also advise the jury on the law which it must apply to the facts. It would be absurd to suggest a legal requirement that District Judges must have regard to all these matters. That is their job and an appeal against conviction would certainly succeed if they did not do it.

Even if a requirement on District Judges was somehow limited to consideration of the need for special care before convicting on certain types of uncorroborated evidence, presumably the law on corroboration in general would need to be addressed and not simply the question of uncorroborated confession evidence covered by the proposed amendment to section 10. It is not simply a matter of incompleteness, although that is important, but of the implications which might flow from it. If there are several types of evidence which juries must be advised to assess with special care and the Oireachtas enacts a law which requires a District Judge to have regard to one, and only one, of these types of evidence, then the conclusion could be drawn that the other types of evidence need not receive the same attention from a District Justice.

The law of evidence, including the law on corroboration, is immensely complex and any change must be considered in the minutest detail. I am satisfied that section 10 is a logical and welcome extension of the law on the assessment by juries of certain types of uncorroborated evidence. While I fully appreciate the intention of Senator Neville in proposing this amendment to section 10, it raises substantially wider issues which could not be taken on board in this Bill. I might add that the absence of a jury can occur not only in the District Court but in the Special Criminal Court. There is a lacuna in the amendment in that regard. If I accepted it, I would have to amend it.

Mr. Neville

Would the Minister agree to it on Report Stage?

Mr. O'Dea

No, I cannot write into legislation that judges, in the absence of a jury, must consider certain matters. Judges have to consider a miscellany of matters, all of which cannot be provided for in legislation. To do so would be an infringement on the independence of the courts as set out in Article 34 of the Constitution.

Amendment put and declared lost.

Section 10 agreed to.

Sections 11 to 14, inclusive, agreed to.

Schedule agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Minister of State at the Department of Justice (Mr. O'Dea)

I thank Senators for their constructive contributions. I regret I could not accept any of the amendments but, with one exception which for technical and legal reasons I could not accept, the amendments tabled today were a repetition of those tabled in the Lower House where we had a thorough debate on them. While worthwhile arguments were put forward today, when some of the senior counsel in the Lower House were unable to convince me to accept amendments, the arguments put forward here were not sufficient to convince me. However, I do not hold the Fine Gael spokesperson here in any less regard than those Members of the Lower House.

Mr. Neville

It is unfortunate we had to take all Stages of this Bill today. The principle in regard to legislation is that each Stage should be considered on the basis of the discussion on the previous Stage. That principle was not applied today and the Bill is being rushed through the House. I did not table any amendments on Report Stage because I felt it was pointless as they would not be accepted. That decision was made before we came in here this morning.

Mr. O'Dea

I reject that statement. I was here to listen to the arguments and I hope I made a reasoned response to them If the Committee Stage amendments were resubmitted on Report Stage and further arguments were put forward I would have considered them. If new amendments had been tabled on Report Stage I would have considered them also on their merits.

Question put and agreed to.

An Cathaoirleach

I wish the Minister, his staff and all Members a happy Christmas. When is it proposed to sit again?

Mr. Crowley

I propose that we adjourn sine die.

The Seanad adjourned sine die.