Amendment No. 16. Amendments Nos. 17, 18, 23, 25 and 26 form an alternative composite proposal. Amendments Nos. 19, 20 and 21 are cognate and consequential on amendment No. 17. Amendment No. 22 is related, and amendments No. 27, 31 and 32 are consequential on amendment No. 17. Therefore, amendments Nos. 16 to 23, inclusive, amendments Nos. 25 to 27, inclusive, and amendments Nos. 31 and 32 may be discussed together by agreement. Is that agreed? Agreed.
Criminal Justice (No. 2) Bill, 1997 [Seanad]: Committee Stage (Resumed).
I move amendmentNo. 16:
In page 10, to delete lines 5 to 27.
Amendment No. 16 is to deal with part three of the Minister's great treble: the first was the £10,000 cut-off point in respect of seizure or possession of drugs, the second was the mandatory minimum sentencing and the third part of his famous treble relates to pre-trial procedures.
I know the Minister is trying to speed up and streamline criminal justice procedures. On first observation the likelihood is that something like this would be perceived by the general public as addressing something needing urgent attention because it is widely believed that parts of the current criminal procedure are unwieldy and are not appropriate to modern circumstances as well as being weighted in favour of the defendants.
What the Minister is doing, however, is addressing this issue by abolishing preliminary hearings and by freeing gardaí from the necessity to attend court in person in certain circumstances. While it is right to eliminate unnecessary time-wasting procedures, the issue of preliminary hearing goes to the very heart of the justice system and due process, which is part and parcel of the nature of the system. The preliminary hearing has always been thought of as essential in order for the defendant to gain timely access to the facts of the case against him or her and in order for a judge to be empowered to throw out manifestly weak cases. In addition, from the point of view of the State there is no doubt that pre-trial proceedings and preliminary hearings have been extremely useful in enabling the State to put together its book of evidence. There have been circumstances when books of evidence were incomplete or rushed, when the case was presented and subsequently thrown out on a technicality. There is a dual usefulness in preliminary hearings and that has been proved in the past, both from the point of view of the defendant to enable him or her to put together a coherent defence and from the point of view of the prosecution to enable it to complete in a comprehensive way the presentation of its book of evidence.
If one looks at the examination of the area of pre-trial proceedings, the Minister should take into consideration the recommendation of the Committee on Court Practice and Procedure. In February 1997 the committee issued its 24th interim report and it came down decisively in favour of the retention of pre-trial proceedings.
It is not a treble. A treble is a component part of the bet. In fact, it is a patent. There are three single bets, three doubles and a treble, and all are going to come up. Mind you, it was a short head last night, Chairman.
These amendments are being taken together because they involve changes to the new procedures which it is intended will be put in place following the abolition of preliminary examinations. I will deal first with the Government amendments among them and then return to deal with those in the names of Deputies Higgins and Upton.
Deputies will appreciate that there are highly technical issues involved and it might be helpful if I first gave some background to the general approach being taken in the Government amendments. These follow on from detailed consultations I have had with practitioners in the field and in that context I propose to have final further consultations on the basis of the text which emerges from the committee to see if any further fine tuning might be desirable on Report Stage.
As the Bill stands, the new procedure provides that after a person has been sent forward for trial the trial court, usually the Circuit Court, will give all subsequent applications with the exception of applications for taking depositions which will continue to be made in the District Court. It has been represented to me that some aspects of the new procedures may have the potential to cause delay or confusion. Because the Circuit Court sits in fewer locations than the District Court all those concerned with any particular case may have to undertake additional travel to court venues for remand hearings. In addition, if applications for taking depositions are to be made to the District Court it is possible that more than one court will have seisin of a case at any one time. Furthermore, since the District Court judge will not have seen the book of evidence in advance of any application for taking depositions, a judge may either have to accede to all such applications or take time to read the book of evidence before deciding whether to grant the application.
Concern has been expressed to me about the operation of these aspects of the new procedures and as a result I have decided to remove the possible difficulties. Accordingly, I am proposing a number of amendments to Part III of the Bill to remedy the situation. The amendments will mean the District Court will continue to deal with remand hearings until such time as the book of evidence is served. When the book of evidence is served on the accused the District Court will send him or her forward to the trial court in accordance with section 4A of the new procedure.
With regard to taking depositions, which is the point to which Deputy Higgins referred, the effect will be that an application for taking depositions will be made to the trial court. It will consider the application and will direct which witnesses are to give evidence by sworn deposition. It will then remit the case to the District Court where the sworn deposition will be taken. This will enable the trial court to maintain control of proceedings once the accused has been sent forward.
Regarding the effect of the main amendments in the group, amendment No. 17 adds a new subsection to section 4A to the effect that the accused will not be sent forward to the trial court until the book of evidence has been served on him or her. The practical effect is that the District Court will continue to deal with the case, particularly in the case of remands, until the book of evidence has been served. The function of the District Court at that point will be to send the accused forward for trial. It will not conduct any examination of the book of evidence or the case against the accused where he or she is charged with an indictable offence. Amendment No. 18 provides that, where the Director of Public Prosecutions gives consent to the accused being sent forward for trial on indictment, the book of evidence must be served on the person within 42 days of the date when he or she first appeared in the District Court.
A number of amendments are consequential on amendments Nos. 17 and 18. Amendments Nos. 19, 20 and 21 substitute reference to the trial court with reference to the District Court. Amendment No. 23 provides that an application for a charge to be dismissed may be made at any time after the accused is sent forward for trial, by which stage the book of evidence will have been served. Amendment No. 27 provides for the availability of legal aid in all District Court proceedings conducted under the new procedures.
Amendment No. 31 is an amendment to section 19, which is an amendment of section 15 of the Criminal Evidence Act, 1992, substituting new paragraphs for paragraphs 15(1)(a) and (b). Section 15 of the 1992 Act deals with procedures in cases of sexual offences or offences involving violence where the victim is under 17 and it is proposed to use a video recording of the victim's evidence. Amendment No. 31 provides that the date of the Director of Public Prosecution's consent is the relevant date for the purpose of the section. Amendment No. 32 is an amendment to section 3 of the Offences Against the State (Amendment) Act, 1998, which, when enacted, had to reflect the procedures then in operation for the conduct of preliminary examinations. Since the Bill is abolishing preliminary examinations, it is necessary to amend section 3 accordingly.
It is intended to change the procedure for applications for the taking of depositions. Amendment No. 25 provides that an application for the taking of the deposition will be made in the trial court and not in the District Court as is provided in the Bill at present. Amendment No. 26 provides that the trial court, if it is satisfied it is in the interests of justice, may order a person to appear to give evidence by way of sworn deposition. In that case, it will order the person to appear before the District Court so that the judge may take the evidence by way of sworn deposition.
The purpose of amendment No. 16 is to delete the new section 4A. The current procedures surrounding preliminary examinations can be cumbersome and the cause of needless delay. In the context of reducing delays and bringing persons to trial, the Bill abolishes preliminary examinations. Section 4A, which is the cornerstone of the new procedures the Bill introduces, provides that the function of the District Court in the case of an accused to be tried on indictment will be to send that person forward to the trial court. The District Court will not be involved in examining the book of evidence and deciding whether there is a case to answer. The effect of Deputy Higgins's amendment would be to revert in practice to the preliminary examination system. Were I to accept it, there would be little, if any, point in proceeding with the other provisions relating to preliminary examinations.
Deputy Upton's amendment No. 22 is unnecessary. It seeks to place an obligation on the Director of Public Prosecutions to serve any additional documents as soon as it is practicable. If the Deputy's concern is that the accused will have sufficient time to study the additional documents, I assure him that will be the case. The court on which the documents will also have to be served will be careful to ensure an accused has had ample opportunity to examine the case against him or her. To include a specific statutory requirement that additional documents be served as soon as practicable could lead to endless disputation in court as to whether something had been done as soon as practicable. This is undesirable and the courts can be relied upon to vindicate the rights of the accused at all stages of proceedings. In the circumstances, the amendment is unnecessary and I cannot accept it.
I apologise for speaking at length, but the committee will appreciate that substantial technical issues are involved. The official amendments will improve this part of the Bill and I cannot accept the other amendments for the reasons given. The effect of accepting Deputy Higgins's amendment would be to revert to the system already in place. The reason I brought forward proposals to amend it was because I did not believe the procedures should be operational in this day and age. There is no doubt that preliminary examinations delay trials needlessly and their abolition should lead to more expeditious trials.
Deputy Higgins is without question opposed to all the major reforms of the legislation. I gauge from what he said that he opposes the abolition of preliminary examinations and the minimum ten year sentence for drug trafficking where the value of the drugs exceeds £10,000. Since I support both provisions and since they form an important part of the legislation, it should be clear that never the twain shall meet. However, the proof of the pudding is in the eating and I am satisfied the provision dealing with the abolition of preliminary examinations will achieve the sought after result. In those circumstances and fortuitously for the system, I do not accept the amendments.
The Minister is right to say the proof of the pudding is in the eating, although perhaps it should be rephrased "will be in the eating". I have yet to meet a cook who was not highly confident about what he was cooking. However, time and circumstances have yielded different results so we will have to wait and see.
It is a pity the Minister will abolish preliminary examinations in the District Court. It removes a further protection from the accused and its abolition will have limited effect in combating crime. In implementing the measure, the Minister is rejecting the report of the Committee on Court Practice and Procedure chaired by Mr. Justice Blayney which recommended the retention of the procedure. An interesting point about the committee was its composition. It included the late Mr. Justice Spain, the President of the District Court, Judge Smithwick, Mr. Justice Barr, Mr. Justice Kelly, Deputy Marian McGennis, the former Deputy, Jim Tunney, and Mr. Gerard Hogan, senior counsel, who I gather is legal adviser to the Progressive Democrats.
I am surprised the Minister disregards this type of expertise. It is puzzling. I am sure he consulted at length with all involved, especially his colleague, Deputy McGennis. No doubt he invited Mr. Hogan for a chat to explain why his recommendations and those of his colleagues were disregarded. Perhaps the Minister might explain to us why he has seen fit to disregard another committee report. Perhaps it is what Deputy Higgins meant when he spoke of "three in a row".
The examination of any system must include its efficacy. In the last year for which figures are available the number of cases that were thrown out by the District Court on preliminary examination stage was minuscule. In the Dublin metropolitan district it would hardly have reached 2 per cent. One must balance that against the advantage of retaining the system. There appears to be no reason to retain the system, other than to cause excessive delays and that could hardly be described as an advantage. This is a system which allows for an accused person to insist that all the evidence taken on deposition can be taken down in longhand. In this day and age nobody could stand over that. I decided it was time for preliminary examinations to go in the interests of having speedier trials and I believe it will succeed in that objective.
With regard to the committee to which Deputies Higgins and Upton referred, I considered its report as well. However, I took advice from other practitioners. I took advice, for example, from people who deal with criminal trials every day of the week. They considered that I was right to abolish preliminary examinations. Committees can advise Ministers but it is a matter for Ministers to make the decisions in the final analysis. In this case, the decision is not to adopt the recommendation of that committee which, incidentally, was not established by me but by my predecessor. Having taken the view of several practitioners into account, I am of the opinion that the way in which I have embarked is the correct one.
Deputy Higgins, are you pressing amendment No. 16?
Yes. The Minister said the effect of my amendment would be to maintain the current position, that is, the retention of pre-trial examinations, which is precisely what I want to achieve. As Deputy Upton and myself pointed out, the expert body, the Committee on Court Practice and Procedure established by a former Minister, stated in the clearest possible terms that the pre-trial examination system did not significantly delay the criminal process and remained an important safeguard for an accused person. It should not, therefore, be abolished. As Deputy Upton said, we are not talking about people one meets casually in a pub, although one gets wise counsel there from time to time. These are not "hob" lawyers but Mr. Justice Barr of the High Court, Mr. Justice Blayney, formerly of the Supreme Court, the President of the Circuit Court, the President of the District Court, a senior counsel, a junior counsel, solicitors, and three other members, including Deputy McGennis of the Minister's party, who unanimously recommended that the preliminary examination system should be retained. It has always been thought essential to give the defendant timely access to put together his or her case. The Bill safeguards the rights of the accused to access to evidence but the abolition of the preliminary hearing is, like the £10,000 limit, a dangerous practice and, like the abolition of mandatory minimum sentencing, an unwise one. This is an attack on a traditional aspect of the judicial system and the Minister should re-think his attitude, because most reputable legal advice favours its retention. The Minister advanced the case that it resulted in an unnecessary 2 per cent delay in Dublin courts but this committee examined the matter in detail and I am sure it took all the evidence on time factors into account.
Will the Minister reconsider his approach? This safeguard should be retained in order to prevent miscarriages of justice. The main reason he favours its abolition is delay in the courts. Given the evidence that the delays are not significant, why does he persist with his proposal to abolish the system? As Deputy Higgins said, this was a heavyweight committee in terms of its legal membership, and of its other members the former Deputy, Mr. Jim Tunney, was in politics for a long time, is widely respected and is regarded as a reasonable, solid person who is not likely to go in the wrong direction. Deputy McGennis is another experienced politician——
We should avoid referring to people who are not present. I know others have done it previously.
I am simply making the point that this body was made up of senior legal people and politicians like Mr. Tunney and others whom I should not name who would have considerable experience. It is foolish to disregard their view and given that this procedure does not give rise to significant delays why is the Minister abolishing it?
I do not think there will be a meeting of minds on this so I will put the question after the Minister replies.
As I pointed out, at present few cases are thrown out on preliminary examination. One must measure the necessity of retaining preliminary examinations against their efficacy. In the Dublin metropolitan district only a minuscule amount of cases have been thrown out at preliminary examination stage by the District Court. We propose that the case would go for trial before the Circuit Court and, if it decides depositions should be taken, the case will be remitted to the District Court for such depositions to be recorded. They may be recorded electronically but not in longhand, as is the right of the accused at present. The case will then be sent back to the court of trial for consideration. If the court of trial considers the depositions do not establish a prima facie case, it is open to the trial court to do what the District Court did earlier.
The retention of preliminary examinations is unnecessary. Unquestionably it causes delays and is archaic. We already have another filter within the criminal prosecution system - the DPP considers a file and decides whether there is sufficient evidence for a case to stand up, measured against the burden of proof in a criminal trial, which is proof beyond a reasonable doubt. A preliminary examination at District Court is unnecessary at this point in the evolution of our criminal justice system.
I move amendment No. 17:
In page 10, between lines 27 and 28, to insert the following:
"(5) The accused shall not be sent forward for trial under subsection (1) until the documents mentioned in section 4B(1) have been served on the accused.".
I move amendment No. 18:
In page 10, lines 28 to 31, to delete all words from and including "Within" in line 28 down to and including line 31 and substitute "Where the Director of Public Prosecutions or the Attorney General consents to the accused being sent forward for trial, the prosecutor shall, within 42 days after the accused first appears in the District Court charged with the indictable offence or within any extension of that period granted under subsection (3),".
I move amendment No. 19:
In page 11, line 6, to delete "trial court" and substitute "District Court".
I move amendment No. 20:
In page 11, lines 7 and 8, to delete "trial court" and substitute "District Court".
I move amendment No. 21:
In page 11, line 22, to delete "trial court" and substitute "District Court".
I move amendment No. 23:
In page 12, lines 14 to 16, to delete all words from and including "after" in line 14 down to and including "4B(1)" in line 16 and substitute "after the accused is sent forward for trial".
I move amendment No. 24:
In page 12, to delete lines 46 to 48, and in page 13, to delete lines 1 to 9.
The purpose of this amendment is to delete the power to appeal the acquittal of the accused to the Court of Criminal Appeal. This is a major change to the criminal justice system because up to now an acquittal cannot be appealed and it is an undesirable change.
The amendment is designed to remove the right of the DPP to appeal against a decision of the trial court on the application of the accused to dismiss the charge against him or her. At present if the District Court, having conducted a preliminary examination, decides a case has not been disclosed sufficient to put the accused on trial, it can discharge the accused. In those circumstances the Director of Public Prosecutions would have the option of having the decision reviewed in a higher court.
Section 9(4E)(7) and (8), the paragraphs which the Deputy wishes to delete, give to the Director of Public Prosecutions the right to appeal to the Court of Criminal Appeal against a decision of the trial court to dismiss the charge. They provide that the right of the Director of Public Prosecutions to have the earlier decision reviewed will be heard in the Court of Criminal Appeal. It will be for that court to decide whether the earlier decision should stand or the trial of the accused should proceed. Given that paragraphs (7) and (8) represent a continuation, albeit in a different form, of the existing right of the Director of Public Prosecutions in relation to a decision to dismiss a charge, I must reject the amendment.
I move amendment No. 25:
In page 13, lines 12 and 13, to delete "a judge of the District Court to take the evidence of a person" and substitute "the trial court for an order requiring a person to appear before a judge of the District Court so that the person's evidence may be taken".
I move amendment No. 26:
In page 13, to delete lines 17 to 24, and substitute the following:
"(2) If satisfied that it would be in the interests of justice to do so, the trial court may order a person who is the subject of an application under subsection (1), to attend before a judge of the District Court in the District Court District-
(a) in which the offence was committed, or
(b) in which the accused was arrested or resides,
so that the judge may take the person's evidence by way of sworn deposition.".
I move amendment No. 27:
In page 14, to delete lines 18 and 19 and substitute "all proceedings conducted under this Part before the District Court.".
I move amendment No. 28:
In page 16, lines 11 and 12, to delete "that court" and substitute "the trial court".
This is a technical drafting amendment to section 9(4K). The reference to "that court" is to the trial court.
I move amendment No. 29:
In page 16, line 15, after "oath" to insert "or affirmation".
This amendment seeks to make clear that the court may receive evidence on affirmation as well as on oath. The Minister and I have discussed this matter a number of times previously but it is still worth making the point. However, I am sure the Minister will give me the usual reply.
The subsection to which the amendment relates provides for the issue of witness orders or where the court is satisfied by evidence given on oath that a person is unlikely to comply with a witness order and has the power to compel compliance. The amendment is designed to put it beyond doubt that such evidence may also be given by affirmation. I appreciate Deputy Upton's intention but I cannot accept the amendment because the matter is already covered by the Interpretation Act, 1937.
This Act provides for the interpretation of expressions and words contained in Acts of the Oireachtas and set out in the Schedule to the Act. Paragraph (20) of the Schedule states that the word "oath" in the case of persons for the time being allowed by law to affirm instead of swear includes affirmation. Paragraph (31) provides that the word "swear" includes affirm under the Oaths Act, 1888. Any person who objects to being sworn is permitted to make a solemn affirmation instead of taking an oath.
It appears, therefore, that the amendment is unnecessary. It might also create confusion or uncertainty to include it in the Bill since other Acts do not include it. I am aware that the Law Reform Commission has reported on this matter. It would be best to deal with the matter in the context of any reform of the law relating to oaths and affirmations generally. Accordingly, I cannot accept the amendment.
I move amendment No. 30:
In page 21, subsection (3)(b), line 23, after "section," to insert "or".
This is a technical amendment to remedy an omission of the word "or" which occurred in the drafting.
I move amendment No. 31:
In page 22, to delete lines 10 to 19 and substitute the following:
"(a) under Part 1A of the Criminal Procedure Act, 1967, the Director of Public Prosecutions or the Attorney General consents to the sending forward for trial of an accused person who is charged with an offence to which this Part applies,
(b) the person in respect of whom the offence is alleged to have been committed is under 17 years of age on the date consent is given to the accused being sent forward for trial, and".
I move amendment No. 32:
In page 23, before section 24, but in Part III, to insert the following new section:
"24.-Section 3 of the Offences Against the State (Amendment) Act, 1998, is hereby amended-
(a) by the substitution of the following subsection for subsection (5):
'(5) A notice under subsection (1) or under paragraph (c) or (d) of subsection (2) shall be given in writing to the solicitor for the prosecution.',
(b) in subsection (7) by the substitution of the following for paragraph (a):
'(a) the period of fourteen days after the date the accused is, in accordance with section 4B(1) of the Criminal Procedure Act, 1967, served with the documents mentioned in that section, or',
(c) in subsection (7) by the deletion of paragraph (b), and (d) in subsection (7) by the substitution of the following for paragraph (c):
'(c) where the accused, on being sent forward for sentence, changes his or her plea to not guilty, the period of fourteen days after the date the accused is, in accordance with section 13(4)(b) of the Criminal Procedure Act, 1967, served with the documents mentioned in section 4B(1) of that Act, or'.".
I move amendment No. 33:
In page 26, subsection (1), lines 5 and 6, to delete " , if it considers it appropriate to do so,".
The amendment will ensure that the court always gives full weight to a guilty plea by seeking to delete the phrase "if it considers it appropriate to do so".
The purpose of the amendment is to ensure that such pleas are taken into consideration by the court. If a person makes a guilty plea, it should be taken into consideration as a matter of course. The court should note the stage during the proceedings at which the person indicated an intention to plead guilty and the circumstances in which the indication was given. These two factors should be taken into consideration in the court's final attitude and determination.
The amendment relates to section 28 which, for the first time, sets out on a statutory basis how guilty verdicts are to be dealt with by the courts. Section 28(1) provides that in determining what sentence to pass on a person who has pleaded guilty to an offence, a court, if it considers it appropriate to do so, shall take into account the following factors: the stage of the proceedings at which the person indicated an intention to plead guilty and the circumstances in which this indication was given.
The effect of the amendment would be to remove the words "if it considers it appropriate to do so". In other words, a court in all circumstances would have to have regard to the factors I mentioned. The inclusion of the words "if it considers it appropriate to do so" is considered desirable so as not to make it an absolute requirement on all courts to take such matters into account in relation to all offences. This is for the practical reason that the provision relates to all offences. For example, it would not be necessary or desirable for a court to examine these matters in relation to routine road traffic offences.
There is in existence case law in relation to when it is appropriate for the courts to take guilty pleas into account. While the proposed section places aspects of that law on a statutory basis, it will not supplant that case law to the extent that the old law already deals with when it is appropriate to take into account guilty pleas. In that sense, the point of the amendment is already met by the law. The amendment would require a court to take into account guilty pleas and, in particular, the circumstances in which they were made in the most routine cases. There would be no benefit to be gained in that. On the contrary, it might needlessly clog up the operation of the courts. In the circumstances, I am not disposed towards accepting the amendment.
I move amendment No. 36:
In page 28, before section 35, to insert the following new section:
"35.-Section 15 of the Offences Against the State (Amendment) Act, 1998, is hereby amended by the substitution of the following subsection for subsection (3):
'(3) Section 3 of the Explosive Substances Act, 1883, inserted by section 4 of the Criminal Law (Jurisdiction) Act, 1976, is hereby amended by the substitution of "shall be liable to a fine or imprisonment" for "shall be liable to imprisonment".'.".
I move amendment No. 37:
In page 28, before section 35, to insert the following new section:
"36.-Section 18 of the Offences Against the State (Amendment) Act, 1998, is hereby amended by the substitution of the following subsection for subsection (2):
'(2) A section referred to in subsection (1) may, by resolution of each House of the Oireachtas passed before the expiry of the section, be continued in operation from time to time for such period, not exceeding twelve months, as is specified in the resolutions.'.".
I move amendment No. 38:
In page 5, line 20, after "1984" to insert "TO PROVIDE FOR THE ARREST AND DETENTION OF PRISONERS IN CONNECTION WITH THE INVESTIGATION OF OFFENCES OTHER THAN THE OFFENCES FOR WHICH THEY ARE IMPRISONED, TO AMEND THE OFFENCES AGAINST THE STATE (AMENDMENT) ACT, 1998,".