Criminal Procedure Bill 2021: Committee Stage (Resumed) and Remaining Stages

SECTION 6
Question again proposed: “That section 6 stand part of the Bill.”

When we finished the last day we had nearly completed our discussion of section 6. Does anybody else want to contribute on section 6? I do not see any hands.

Question put and agreed to.
NEW SECTION

I move amendment No. 4a:

In page 11, between lines 10 and 11, to insert the following:

“7. (1) The court of trial may permit any witness to be cross-examined in relation to evidence given by that witness in the course of any preliminary trial hearing where the court is satisfied that it would be in the interests of justice to do so.

(2) The court of trial may permit evidence of matters dealt with at a preliminary trial hearing having to be tendered in rebuttal of any other evidence adduced in the course of the trial where the court is satisfied that it would be in the interests of justice to do so.”.

This amendment seeks to insert a new section 7 into the Bill.

What I intended with this amendment was to make it clear that although the preliminary hearing could take place prior to the trial and at a different time, what happened at the preliminary hearing would not be out of bounds for consideration, were it relevant, when the trial actually commenced. There are several possibilities as to how this would work. For instance, if a member of An Garda Síochána disputed a claim that he or she had intimidated a person into making a confession, that garda could be cross examined again in relation to the evidence he or she gave, before the jury, if the trial proceeded. Likewise, the jury could hear of what happened at a preliminary trial hearing where that was relevant to rebut any evidence given or proposed to be given in the course of the trial. What I want to make absolutely clear, by tendering this amendment, is that the separation of the preliminary trial hearing from the trial itself should not in any sense make it out of bounds for the matters dealt with to be rehearsed again before the jury. If this were not so, we would have the strange situation where people could say things at the preliminary hearing in order to make a confession or other evidence admissible, in terms of whether they had proper suspicions before they carried out a search, for example, but that might not be revisited in the course of the criminal trial itself.

The real underlying purpose of this amendment is to ensure that the accused is not prevented from fighting an issue again just because the judge has declared an exhibit or a confession, for example, to be admissible. The aim is to ensure that the accused is not prevented from disputing that again before the jury, as to whether a confession was voluntary or involuntary, for instance. Likewise, the prosecution authorities, for their part, should be permitted to tell the jury that at a preliminary trial hearing, the accused gave entirely contradictory evidence to that given in the trial. The purpose of this amendment is to ensure that what happens at a preliminary trial hearing is not declared out of bounds just because the court has ruled that evidence was admissible, an arrest was lawful or a confession was voluntary, for example, in the absence of the jury. The aim is to ensure that the jury is not effectively bound by such a determination and prevented from hearing the accused's version again in relation to these matters. That is the purpose of this amendment.

I second the amendment.

In many criminal trials, one's liberty is at stake. After one's health and life, one's liberty is right up there as a fundamental freedom so all and any admissible avenues ought to be made available and accessible in a criminal trial to ensure justice is done. Except for very good reason, there should be no limitations or strictures placed on the substantive trial. In my experience as a practitioner, I have detected clear evidence in recent times of a disrespect for the oath or affirmation taken before our courts. Often a trial judge, whether in a civil or criminal case, can obtain or stumble upon a game-changing, probative piece of evidence by looking into the recent past. Once, where an allegation has been made, the person on the receiving end is afforded full rights to refute and rebut, I see no difficulty at all. In fact, to deprive a person whose liberty is at stake of the opportunity to go there - let us say it is against a garda - could trammel on the constitutional right to a fair trial. All and every piece of evidence in a non-jury trial which can assist the judge, or in a jury trial which can assist the members of the jury, ought to be put properly before them. There should be no prohibition, except in certain exceptional circumstances that are not likely to arise too often. Let us say a preliminary trial happens and for whatever reason, a significant period of time elapses before the trial itself and in the meantime, the accused is temporarily incapacitated. Let us say it goes on 20 or 30 years later. Perhaps in that instance there would be a prejudicial effect whereby bringing back and adducing that evidence would outweigh its probative value. I can think of very few grounds, apart from such exceptional circumstances. We must ensure that all is done to guarantee justice between the parties. The stakes cannot be higher when one is dealing with one's liberty, both from the point of view of the accused and the victim. This must be done as thoroughly and fairly as possible and as much information as is feasible ought to be brought into the realm of admissible evidence at the trial of the substantive action.

Tuigim go soiléir an áit óna bhfuil an Seanadóir ag teacht. The provisions of section 6, which we have already approved, give fairly wide latitude to judges dealing with preliminary trial hearings to address issues like this. The proposed section 7(1) from Senator McDowell clarifies what the court may permit in terms of cross-examination but I am not sure it is necessary. The wide purvey that is available in section 6 of the Bill probably covers that and there is fairly wide discretion afforded to a judge in a preliminary hearing to deal with those issues. Perhaps more salient is the proposed section 7(2) in relation to whether the judge can provide information to the jury at the actual trial of the offence as to what was heard in that preliminary trial hearing and, for example, issues that may have changed between the time of the preliminary hearing and the trial itself.

We have to look at these things from the point of view with which we would look at a voir dire hearing, a hearing in the course of a trial in the absence of a jury. The jury is excluded in order that the judge and the parties to the case can discuss an issue and decide, for example, whether evidence is admissible. The jury is excluded because the law takes the view, I believe correctly, that if it was to hear evidence that was subsequently decided to be inadmissible, it could not simply forget that it heard that evidence. It knows the evidence is there and even though the court has deemed it inadmissible it is quite difficult for a person, who is expected to act dispassionately in a case, having heard the evidence to then forget it and move on as if her or she had never heard it.

The provisions of the Bill already cover the notion that a trial judge would deal with decisions made at a preliminary trial hearing in the same way as he or she would deal with decisions made in a court's voir dire. The good and progressive aspect of this legislation is that it allows those hearings to be done in advance. Everyone would agree that to be able to do that in advance is an advantage, from the point of view of getting business done and not having juries sitting in windowless rooms in courthouses throughout the country while lawyers are arguing points. It allows trials to run more efficiently and quickly and to be completed in a shorter period of time. As the Bill stands, it is already in the power of the trial judge simply to view the decisions of a preliminary trial hearing in the same way as he or she would view decisions made in the course of a voir dire hearing during the trial. On that basis, I also suggest that the proposed insertion of subsection (2) is unnecessary because we have to look at it from the point of view of a parallel with a voir dire hearing. In that regard, trial judges must have regard to whether the evidence adduced there is probative or prejudicial and create that balancing exercise that they have to do all the time at present. The big advantage with this Bill is that they get to do it in advance of the trial and thereby shorten the trial, short-circuit many of the legal issues and avoid the waiting around for witnesses, complainants, defendants and jurors.

While there is no restriction on this quality discussion on important amendments, as a courtesy I am making Senators aware that the debate on the sections of the Bill must be completed by 12.45 p.m., according to the order of the House agreed on the Order of Business.

Tuigim an méid atá ráite agat, a Leas-Chathaoirligh. I will take your advice in regard to the tightness of today's debate.

Senator Ward has broadly outlined my read of this amendment. I spoke to it at an earlier stage regarding the experience of concerns in the North about some of these pre-trial hearings and, in some instances, how they could potentially be used to test witnesses. I broadly support the subsection (2) of the amendment in principle, but the experience and the growing concerns about the reference in the subsection (1) to cross-examining are of concern. The experience points to where that could become problematic. We are sympathetic to the rights of defendants but we are satisfied that they are sufficiently balanced here already. Introducing a specific clause about cross-examination could potentially lead to defence teams testing witnesses and their stories. That proved to be a significant issue of concern during a particularly well known and controversial trial in the North. Arraignment hearings are being abolished in the North due to some of these issues, as they have been allowed to expand too far in practice. We must keep their boundaries very specific in this jurisdiction. While defence teams have a job to do, any type of potential for tactical moves, such as calling a pre-trial hearing to probe witnesses, should be a matter for concern.

I will adhere to the guidance of the Leas-Chathaoirleach. I offer my views respectfully to the proposer of the amendment, but I will have to oppose it.

While I appreciate that, I am by no means trying to shorten contributions. I again welcome the Minister of State, Deputy James Browne, to the House.

I know what the Senator is seeking to do with this amendment. The concern is that evidence given at a preliminary hearing might somehow be inconsistent with the evidence given at a trial and, therefore, there should be a facility for the court to allow these inconsistencies to be brought into the open and challenged and interrogated. Clearly, such situations can arise from time to time, whether at a preliminary hearing or in various scenarios that already exist in trials at present. Let us say, for example, that an expert witness gives evidence during a voir dire which is not consistent with the version he or she gives later during the main trial. This can already happen and moving the voir dire to the preliminary hearing does not change that fact. In such a scenario, such inconsistencies, if not adequately explained, could clearly be used to undermine a witness's credibility. Of course, where evidence is ruled inadmissible it will not arise during the trial, as is currently the case.

We have carefully examined the issue the Senator raises and, although I agree that the courts must be able to deal with this type of scenario, I am satisfied that it is nothing it cannot deal with already. In fact, I am concerned that to pin it down in this way in a statute might interfere with the existing powers of the courts to deal with these situations effectively in their own discretion or using the flexibility already built into the statutory provisions which govern the various types of orders which may be dealt with at a preliminary hearing. I emphasise that the facility of a preliminary hearing merely moves the timing of these matters rather than changing the applications themselves. I should also mention that there is a discretion in the Bill in section 6(15) which allows a trial court to vary or discharge an order made at a preliminary trial hearing where the court is satisfied that it is in the interests of justice to do so. Furthermore, there is nothing in the Bill that would prevent additional applications during the trial itself, notwithstanding that there has been a preliminary hearing, where the court permits. As Senator Ward correctly pointed out, section 6(12) says it shall be the same judge who will deal with the matter both in the preliminary and the main hearings. Section 6(20) provides that the court in the preliminary hearing shall have all the powers it would have during the trial, while section 6(5) deals in particular with the timings of hearings with admissibility.

Finally, in the event that the prosecution or defence feels that the court has not dealt with matters in a way that is fair and just, there is always the right of appeal. That is the ultimate safety net where one side feels that the usual safeguards have not worked as they should in the hearing. In summary, we must rely on the judges to conduct trials fairly, and they have the necessary powers at present to do so. That faith in those judges to run those trials is very important.

Senator Martin raised an important point, which is the increasing disrespect that may be offered to the oath. The Perjury and Related Offences Bill 2018, which was initiated in the Seanad by the former Senator, Pádraig Ó Céidigh, and supported by Independent Senators, went to the select committee last week on Committee Stage. We should have it on the Statute Book as soon as possible to address Senator Martin's and other Senators' concerns in that respect.

I understand Senator McDowell's concerns, but we are satisfied they are addressed in the current law and in section 6. However, we will keep how it works in practice under review.

I understand the point that Senator Ward and the Minister of State are making. What I was worried about, and perhaps I did not express this adequately, is that section 6(14) states that a determination of a point at a preliminary trial hearing shall have binding effect. It is all very well to say that a statement is going to be admissible or inadmissible but if that were interpreted as meaning, for example, that a garda had not made a threat to obtain a statement, it should not be applied as somehow saying that the matter has now been determined and the jury cannot consider that issue afresh. That is the point I am making. However, I will not push the matter any further as I wish to proceed to the other two amendments, if I can. I will leave it at that.

Amendment put and declared lost.
SECTION 7

In this section we are working to the list of additional amendments dated 29 April 2021. Amendments Nos. 4b, 5 and 5a are related. Amendment No. 5 is a physical alternative to amendment No. 4b. Amendment No. 5a is consequential on amendment No. 4b.

Amendments Nos. 4b, 5 and 5a may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 4b:

In page 11, to delete lines 18 to 25 and substitute the following:

“(2) An appeal referred to in this section shall only lie where it is contended by the prosecution that the relevant order made by the trial court erroneously excluded evidence which is—

(a) reliable,

(b) of significant probative value, and

(c) such that when taken together with the relevant evidence to be adduced in the proceedings a jury, or in the case of an offence before a Special Criminal Court, that court might reasonably be satisfied beyond a reasonable doubt of the accused’s guilt in respect of the offence concerned.”

I second the amendment.

This is a technical amendment. I ask the Minister of State to consider it. The appeal provision in section 7(2) states an appeal referred to in this section shall lie only where the relevant order concerned made by the trial court erroneously excluded evidence which is reliable and such that when taken together with the other relevant evidence would be of significant probative value in the minds of a reasonable jury. The language there says that the appeal only lies where the "erroneously excluded evidence" is of that character. The question is, and the amendment put down by myself and Senator Boyhan seeks, to make it clear that it is the prosecution that is asserting that that is the case. The present phraseology of subsection (2) seems to say there is no appeal unless it is of a particular character. It does not say who decides the character. Presumably it must be the appellate court, but it seems to me that it should be made clear that the prosecution has to assert that the evidence is of that character, and that this gives it the right to go to the Court of Appeal, and that the Court of Appeal would then determine whether the appeal is of that character or not. At the moment it is open to interpretation that the appeal does not lie at all unless the aspects of the evidence in question are, as a matter of fact, satisfied under subsection (2). It was intended to make it clear that this was a matter for the Court of Appeal to decide whether the evidence is of that character, and not for the trial court to determine that.

My amendment No. 5 from the initial list of amendments, which proposes to delete “erroneously” in page 11, line 19, largely does the same thing that Senator McDowell's amendment proposes to do. The word "erroneously" suggests that before an appeal can be taken there has to be some form of establishment that the evidence was excluded erroneously. It is, of course, a subject of contention by the prosecution. I discussed this with the Minister of State, Deputy Browne, after the last Committee Stage discussion, and what he said to me is probably correct in that it is a matter of interpretation by the Court of Appeal. Notwithstanding the difficulty I have with the way this is drafted, I cannot foresee a situation where an appeal would be refused, or where the prosecution would be declined the opportunity to bring an appeal, merely because it had not in some way satisfied the court in advance of a hearing that the evidence was excluded erroneously. It is a subjective position it takes. I will withdraw my amendment No. 5 on that basis.

I will speak to amendment No. 4b. The Senators' intention with this amendment may be to try to adjust the wording to reflect whether the evidence is in fact compelling enough to meet the threshold that is undetermined at the point of going to appeal. I believe that this addition is unnecessary. Furthermore, I have a real concern that in reality, the wording proposed would have the unintended effect of changing the threshold for permitting these appeals under section 7 of the Bill, so that appeals could now lie wherever the prosecution contends that the threshold, in relation to the type of evidence excluded as inadmissible, has been met rather than the current wording that requires that the evidence actually meets the threshold. I appreciate that this may not be what is intended. The wording of this section and the other sections has been carefully and expertly crafted by the Office of the Parliamentary Counsel precisely to ensure that such unintended effects are avoided. I consider that the wording of the section as currently drafted is more appropriate, and therefore I cannot accept the amendment. We are satisfied that, as drafted, it is the Court of Appeal rather than the prosecution that will effectively decide the threshold. If there was any change to this wording it could have that unintended consequence.

If I may say so, Senator Ward is too easily persuaded by the Minister of State. An appeal, referred to in this section, shall lie only in certain circumstances. It seems to me that what is really intended is that it shall succeed only if it is established that it is erroneous that it excluded evidence that was reliable, had significant probative value, and when taken with the other evidence could have affected the outcome of the trial. With the greatest respect to the Parliamentary Counsel involved, they are saying that the appeal only lies where it is bound to succeed. I do not follow that. I probably agree with Senator Ward that the Court of Appeal would say that it would be slightly nonsensical to interpret the term "shall only lie" as excluding something, but I believe that it should have been stated that the appeal only lies where that contention is made and then, when the appeal is heard, the Court of Appeal decides whether or not the appeal succeeds. That is the point I make. I will not push it any further.

The wording mirrors almost identically that in section 23 of the Criminal Procedure Act 2010. This has worked effectively, so far, but we will certainly keep it under review. If there was any change in this Bill it could impact on those cases also. If it was to be changed it would need to be very carefully considered. I take the Senator's point.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 11, line 19, to delete “erroneously”.

Amendment, be leave, withdrawn.

Amendment No. 5a cannot be moved, as the question on amendment No. 4b has been negatived.

Amendment No. 5a not moved.
Question proposed: "That section 7 stand part of the Bill."

I do not follow this at all. Amendment No. 5a was to make sure that the Court of Appeal can "allow, quash or vary the order under appeal." It is not predetermined by any previous decision. It is to allow the Court of Appeal to vary an order. This is hugely important. At the moment there is a binary provision in the Act that it either allows the appeal or quashes the order under appeal.

It may well be the case that the Court of Appeal will find itself in a situation where it determines that a confession or evidence has been, say, wrongly admitted as to half of it but rightly admitted as to the other half. If we leave this section as it is, without the right to vary the order, there will then be an unfortunate circumstance whereby the Court of Appeal will state that there is some evidence which satisfies the test and should be allowed in but some other evidence should not have been allowed in. All I am trying to do is to put in the word "vary" to allow the Court of Appeal to vary the order rather than simply allow or reject it. I do not think the previous decisions on my amendments or Senator Ward's amendments affect that point at all. Of all the things I am saying here today, I would ask the Minister of State especially to carefully consider whether it is appropriate to leave section 7(10) exactly as it is. It states: "On an appeal referred to in this section the Supreme Court or the Court of Appeal, as the case may be, may affirm or quash the order under appeal." It is not given power to vary the order. I can imagine a case in which a ruling will be made that, for example, a statement is admissible and the court finds that three quarters of the statement was admissible and should have been admitted but one quarter should not have been. It is wrong to prevent the Court of Appeal or the Supreme Court from varying an order and requiring them to make a binary choice to the effect that a piece of evidence is right in its entirety or it is wrong in its entirety. I ask the Minister of State to consider carefully whether the right of the appellate court, whichever it is, to vary the order where it considers it appropriate should be added to the legislation.

The Minister of State can come in again before I put the section.

I thank the Leas-Chathaoirleach. I can tell the Senator that the current wording is intentional. The provision was considered very carefully in drafting, taking into account the views of the Attorney General and the Parliamentary Counsel as to the nature of the decision or appeal and the best wording to achieve that. In effect, if the appeal is successful, it is remitted to the trial court to take into account what has been stated. The trial court will then have to attend to the matter, rather than the appeal court.

Question put and agreed to.
Sections 8 to 10, inclusive, agreed to.
Amendment No. 6 not moved.
Section 11 agreed to.
NEW SECTION

I move amendment No. 7:

In page 14, after line 34, to insert the following:

“PART 3

AMENDMENT OF THE JUDGES’ RULES

Definitions

12. In this Part, “the Judges’ Rules” refers to nine common law rules of guidance set out by a 1972 decision of the Supreme Court.

Power for Minister to amend the Judges’ Rules by regulation

13. The Minister may, where she feels it is in the interests of justice and efficiency, make regulations under this section, to amend Rule 9 of the Judges’ Rules to allow for the taking of statements from a person, otherwise than to require such a statement to be immediately recorded in writing, provided the statement is recorded in another form.”.

I am here proposing to insert a new Part relating to the Judges' rules into the Bill. The Judges' rules are a set of common law procedures that are to be followed in relation to persons in custody, the gathering of evidence and other areas. In this amendment, I am specifically considering Judges' rule 9, which relates to the taking of an account of what a person said while being interviewed in custody by members of the Garda. The Judges' rules are common law and go back to the early 20th century. They were affirmed into Irish law in the Pringle case in 1981. In that case, the Chief Justice, Mr. Justice O'Higgins, affirmed them from the point of view not of making them a rule of law but more of a guideline for the Garda, specifically with regard to two aspects. The first was to have accuracy on what a person says when interviewed in custody and the second was affording that person the opportunity to amend that record within a short time in order that he or she has a clear recollection of what was said.

When that decision was made in 1981, there was no video recording or audio recording in the way that there is now. Today we have a situation where almost all Garda stations, and certainly any major Garda station, have video recording facilities. It is par for the course that when a person is arrested and subject to all of the other protections that exist for that person during the time he or she is in custody, he or she will give an interview to the Garda that is recorded by video, with a clear audio recording. After the fact, in a criminal trial, it is standard practice for that interview to be reproduced as a transcript for the benefit of the parties involved in the trial. Although the handwritten note of the members of the Garda involved is also produced, the reality is that we rely either on the video recording, the transcript, or both, of the interview that was given in custody.

The reason I am proposing this amendment is that although the Judges' rules are only guidelines and do not have force of law, the reality is that the Garda sticks by them because its members know they are a template for the admissibility of that evidence gathered while a person is in custody. The difficulty that arises from the point of view of the Garda and, indeed, the person being interviewed, is that the interview can therefore only proceed at the pace at which one Garda member can write down the questions and answers in the interview. The result is that interviews take a great deal longer than they need to, meaning that the person involved will be detained for a longer period than is necessary, and the gardaí involved do not have the opportunity to regulate the flow of that interview to get the best effect from the questions they want to ask. Anybody who has witnessed a criminal court case will see that the barristers or solicitors involved will ask questions at different paces. At different times, they will ask quick, short questions while at other times, the questions will be longer and more discursive. That is a mechanism that is used to elicit the best quality of answers from the witness involved, obviously depending on what side one is. The reality is that the way the Judges' rules operate in practice, specifically rule 9, is that members of the Garda cannot regulate the flow of the interview. They cannot, in essence, cross-examine a person who is being interviewed. They may only ask a question and receive an answer at the speed at which one Garda member can write it down. That must be frustrating for both the gardaí and the interviewee and it is unnecessary. The reality is that we now have technology that renders that level or manner of recording unnecessary and superfluous.

What I am suggesting is that rather than just sweeping away rule 9, which is tremendously important, we would, through this Bill, empower the Minister to make a regulation to change that and to acknowledge the fact that the Garda no longer needs to write down those interviews but can rely on the digital recordings of the interview, both audio and video, because the reality is there is always going to be a video recording. It will make everything much more streamlined and efficient. Garda members can still do it by writing in the very odd case where video recording facilities are not available. That is the purpose of these sections.

I am supportive of what Senator Ward is attempting to achieve. I do not know whether the particular mechanism by which he is proposing it should be done is the correct one. It may be of interest to him to know that when I was Minister for Justice, the exact same point occurred to me. Rather than seeking to cut across the Judges' rules, I asked the Chief Justice at the time to look at the question as to whether this was one which the Judiciary wanted to look at again or whether it thought it was proper for me to attempt to legislate on. Unfortunately, my request was never addressed in substance. The only thing that I can say is that it is absurd that there is a recorder, a video and somebody taking down in longhand the questions and answers as they are given. I remember another anecdote relating to representing members of the Garda at disciplinary inquiries where the same procedure applied. The question was typed out by a two-finger typist, a sergeant clerk, and the answer was then typed out when it was given.

The effect was that the cross-examination was completely subverted because it took about two minutes for witness to consider very carefully why the question was being asked and what kind of answer would be most supportive of his or her case.

I agree with Senator Ward that the time has some to scrap the requirement that a written record, as well as an electronic one, be taken of any matter. The point could be made that the recording system might collapse and there might be no record at all of what went on, although I do not think that is valid anymore. In this House we do not operate on the basis that every word is written out and that every response from a Minister awaits the writing out of a speech made in support of a motion. In the 21st century, we should look at the judges' rules again to see whether that particular requirement is antiquated and counterproductive.

It is probably prudent that we do not do that here.

To add to the comments made by Senators McDowell and Ward, that archaic device also finds its way into sworn depositions and people have to laboriously write out every word. I recall taking a deposition from the governor of a prison when I was a very young barrister. It was just me and the governor and there was nothing controversial about the deposition but the process went into a second day. We had to do this in the old Special Criminal Court and it seemed like something from a different century. It was highly inefficient and hugely delaying and at the end of the day it did not serve justice because justice delayed is justice denied.

The Senators raise a very important point. I thank Senator Ward for bringing this amendment forward. It proposes quite a substantial change but it is a very important and helpful proposal. He spoke about writing things out in longhand. The accuracy of auto-transcription software on mobile phones now is phenomenal. This proposal must be assessed from a legal and policy perspective and I ask the Senator to engage with the Department of Justice and the Minister, Deputy Humphreys - and Deputy McEntee when she returns - on this very important issue. I ask him to withdraw the amendment because this Bill is not the best home for such a substantial proposal. In that context, I will not be able to support it. That is not to take away in any sense from the importance of the issue he is raising here. It is something we need to pursue.

I appreciate what the Minister of State said and I am happy to engage with the Department. This proposal is also contained in a Private Members' Bill, namely, the Criminal Procedure and Related Matters Bill 2021, which is in my name. I am happy to engage with the Department and, on that basis, to withdraw the amendment.

Amendment, by leave, withdrawn.
SECTION 12

Amendments Nos. 8 and 9 are related and may be discussed together.

I move amendment No. 8:

In page 15, to delete lines 16 and 17.

Section 12(2)(b) states that a judge may provide specific documents or audio recordings of statements made in the course of a trial to the jury at the time of its deliberations. That includes a transcript of the opening speeches of counsel, a transcript of the whole or any part of evidence given in the trial, a transcript of the closing speeches and a transcript of the judge's charge. There is a case to be made for the importance of the second and fourth of those, that is, the evidence and the judge's charge, as they might benefit a jury in reaching its decision. However, the other documents referred to are the opening and closing statements of counsel. It is important to remember that opening statements are almost invariably only made by the prosecution. In the context of the closing statements made by both sides, such statements are not evidence. They are the opinions of the lawyers. They are the strategies and language lawyers use to convince the jury of one side of the argument or another but they are not evidence. I have a significant problem with the notion that a jury might be allowed to return to the jury room and have with it the arguments of either side, rather than the evidence their oath requires them to consider. That is why I suggest that subparagraphs (i) and (iii) be removed from section 12(2)(b).

I support Senator Ward's amendment. This unnecessary provision to start giving juries prosecution or defence counsel speeches undermines their oath, which is to consider the evidence rather than the arguments that are put before them and to confine themselves to their judgment of the evidence.

The other thing I am slightly worried about, and which I raised on the last occasion on which this Bill was before the House, is that jury trials are becoming immensely lengthy. The implication here is that transcripts of speeches and the judge's charge will be prepared for the jury before it retires. Think about that. If a judge stops proceedings at noon, is a transcript to be prepared of what he said to the jury and handed to its members before they start considering the case? That would be another day gone. I am opposed to section 12(2)(b) in its entirety. It is a mistake and will lengthen cases rather than shorten them. The whole purpose of this Bill is to shorten trials but it will considerably lengthen them if these kinds of transcripts are to be prepared.

There is another issue, with which Senator Ward did not deal, in that there will be arguments about whether people actually said what the transcript shows, if they misspoke or uttered the word "not" when they did not intend to do so, and so on. There would then have to be a hearing on the transcript and the lawyers on both sides would have to go through it and decide if that is what they think the judge, prosecution counsel or defence counsel actually said. If the defence counsel made a remark in the course of his or her speech to the jury and the judge's eyebrows went through the roof, would that be included in the transcript that goes to the jury? This is a mistake and section 12(2)(b) should be scrapped completely.

I flagged this issue on Second Stage. The jury is to consider evidence. I understand that this proposal came about on foot of recommendations from the Law Reform Commission so I looked into those recommendations. The commission's concern seemed to be about very complicated and fraudulent matters and allegations that come before the court. The Government is proposing to extend that to all indictable criminal offences.

The word "not" only has three letters. It is one of the shortest words in the English dictionary but it can utterly change the complexion of a statement. As Senator McDowell said, counsel could, for example, misspeak. The matter about which I am open-minded is the charge to the jury by the trial judge, but that may have to be edited. I am implacably opposed to this section. It goes against the whole ethos of a jury considering evidence. It also states that they can be given audio recordings. There is some great stuff here about giving juries charts. Give them as much information as possible. That was the rationale behind the Law Reform Commission's recommendations but the information must be evidential in nature, not a stylistic opening speech from a counsel, although no doubt they are very cogent.

It is good to have the Minister of State in the Department. This is no criticism of his predecessors or his current justice team but it is always an added benefit. It might not be a necessary or essential prerequisite for someone in the Department to be a competently trained lawyer but that can only help and enrich the Department.

The Minister of State can call on his experience.

I am a huge advocate of reforming juries and making the law and workings of the legal system more accessible to the public. The Minister is going to talk to Senator Ward about issues. That could open up some other dialogue but it is not a discussion for today. All of the wonderful trials of yesteryear could be video-recorded under the safe management of the Courts Service. Students, including those studying history, could benefit from looking back at those trials in years to come.

The hook line of the RTÉ television programme "Gunplot" was a nugget of information that was saved and recovered, namely, the utterances live in court from the late Seamus McKenna, who comes from a wonderful line of experienced barristers in the Farney county, including Mr. Justice Herbert McWilliam, Paul Callan, Paddy McEntee and, in more recent times, Pat Hanratty, Hugh Mohan and a long list of other up-and-coming barristers. To store their words for years to come would be a huge oracle and treasure for students of history and law. That is for another day. I am digressing. I am implacably opposed to this, but I am not opposed, in the right supervised circumstances, to audio-recording major trials in this country.

Section 12 of the Bill implements a recommendation, as Senator Martin pointed out, from the Law Reform Commission's 2013 report on jury service to the effect that the types of information already available under section 57 of the Criminal Justice (Theft and Fraud Offences) Act 2001 would be extended to other trials on indictment and that a trial judge may order that copies of any or all certain documents can be given to a jury in the form that the judge considers appropriate. That includes a transcript of the opening speeches of counsel, a transcript of the closing speeches of counsel and any other document that, in the opinion of the trial judge, would be of assistance to the jury in its deliberations. That is what is contained in section 57 and has been operational for some time. The Bill proposes to extend this provision.

I have heard the Senator's concerns around this issue. However, it is not automatic and will be a matter for a judge to decide in the circumstances whether the information should be provided to juries. It has been operational under the Criminal Justice (Theft and Fraud Offences) Act 2001. I am not minded to accept the amendment in the circumstances in which it is proposed.

Is the amendment being pressed?

No, I will withdraw it.

Amendment, by leave, withdrawn.

I move amendment No. 9:

In page 15, to delete lines 20 and 21.

Amendment, by leave, withdrawn.
Section 12 agreed to.
NEW SECTION

I move amendment No. 10:

In page 16, between lines 10 and 11, to insert the following:

“Amendment of section 4A of Act of 1967

13. Section 4A of the Act of 1967 is amended—

(a) by the substitution of the following for subsection (1):

“(1) Where an accused person is before the District Court charged with an indictable offence, the Court shall send the accused forward for trial to the court before which he is to stand trial (the trial court) unless—

(a) the case is being tried summarily, or

(b) the case is being dealt with under section 13.”,

and

(b) in subsection (5), by the substitution of “in accordance with that section” for “on the accused”.”.

This is a technical amendment. I will withdraw it.

Amendment, by leave, withdrawn.
Section 13 agreed to.
NEW SECTION

I move amendment No. 11:

In page 16, between lines 12 and 13, to insert the following:

“Amendment of section 4B of Act of 1967

14. Section 4B of the Act of 1967 is amended in subsection (1)(a), by the insertion of the following new subparagraph after subparagraph (ii):

“(iii) in the case of an offence that may be tried on indictment only, the prosecutor directs that the accused should be sent forward for trial, or”.”.

This is a proposal to amend section 4B of the Criminal Procedure Act 1967, a very important provision which relates to the service of a book of evidence or, essentially, a collection of documents, on an accused person in the District Court before he or she is sent forward to a trial court of indictment. The reason I am proposing this amendment to include a third subparagraph is that the section currently relates only to matters where directions of the DPP are required. For example, in what are commonly referred to as hybrid offences, where a person can be tried summarily or on indictment before a judge and jury, the Office of the Director of Public Prosecutions must, in the first instance, provide directions as to what it wants to happen with the case, in other words, whether it is happy for it to go forward on indictment. The difficulty arises in respect of certain cases that are indictable only. It would appear that section 4B makes no provision for such cases and, consequently, the time limits. The time limits are very important because there is a 42-day time limit built into the legislation, which means that accused persons do not languish in the District Court while waiting to get into the indictable court. That time limit does not apply to people accused of indictable only offences such as murder or certain firearms offences, section 4 assault or whatever it might be. The reality is that such persons do not benefit from the protections of section 4B or the time limits. I suggest we change that to include a subparagraph 3 which will state: "in the case of an offence that may be tried on indictment only, the prosecutor directs that the accused should be sent forward for trial, or". It includes a subparagraph which includes those offences that are currently left out by section 4B.

I would also suggest that in making this amendment we do not in any way prejudice the prosecution because the District Court judge, whoever he or she may be, has a very wide discretion to extend the time where it is in the interests of justice to do so. Therefore, the DPP loses nothing by this.

In addition, even if the District Court judge was to decide to strike out the matter, there is no dismissal with prejudice and it is still open to the DPP to re-enter the matter. This is an amendment to include a cadre of offences currently admitted and, therefore, to afford the protections available to people who are charged with hybrid offences to people who are charged with more serious offences.

As it is now 12.45 p.m., I am required to put the following question in accordance with the order of the Seanad of this day: "That amendment No. 11 is hereby negatived in committee, section 14 is hereby agreed to in committee, in respect of each of the sections undisposed of, the section is hereby agreed to in committee, the Title is hereby agreed to in committee, and the Bill is accordingly reported to the House without amendment; that Fourth Stage is hereby completed; and that the Bill is hereby received for final consideration and hereby passed."

Question put and agreed to.

When is it proposed to sit again?

On Monday, 24 May at 10.30 a.m. in the Dáil Chamber, or earlier if necessary.

The Seanad adjourned at 12.47 p.m. until 10.30 a.m. on Monday, 24 May 2021.