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.
(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.".