Select Committee on Legislation and Security debate -
Wednesday, 10 Nov 1993

SECTION 10.

Mr. G. Mitchell

I move amendment No. 28:

In page 9, between lines 25 and 26, 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.".

I am suggesting that we add in these words to the question of an uncorroborated confession. The section provides that where at a trial of a person on indictment, evidence is given of a confession made by that person and that evidence is not corroborated the judge shall advise a jury to have due regard to the absence of corroboration. It is further provided that it shall not be necessary for judges to use any particular form of words under this section.

I am asking that 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 will have due regard to the absence of corroboration. This again falls back on the original case I was making and falls into the whole area of summary conviction. I have made the point twice already, but it seems that if we are to accept the principle it may be necessary to extend this advice by the judge in these cases.

Ms O'Donnell

The question raised by Deputy Mitchell is a valid one. It calls into question many of the procedures in place at summary level. Since this is the first Bill which is comprehensively reviewing procedures — it is a procedural Bill — it might be a good opportunity at a later stage to consider dealing with some other issues which cause problems for practitioners at the District Court stage. I am referring to issues such as the deposition procedure and the fact that the defendant can demand that each witness be brought forward. There are undue delays at present and practitioners have complained about them. This might be a good opportunity to review other procedures at District Court stage which are being abused and causing delays in the prosecution of criminal trials.

Mr. O'Dea

I will take on board Deputy O'Donnell's suggestion. We have proposed an amendment that the judge will warn the jury about something and that can be provided for in a jury trial. There are two courts where there is no jury, namely the District Court and the Special Criminal Court, with which I notice Deputy Mitchell has not dealt with in his amendment — that may have been an oversight. The reality is that a judge is supposed to know the law. It is a matter of common sense that evidence which is not corroborated will carry less weight than evidence which is corroborated. I am not being facetious, but there would be no point in a District Court judge or a member of the Special Criminal Court advising himself to take this into account when he is weighing up the facts of the case. Practitioners will be aware of cases which have been appealed specifically on those grounds. They will appeal against the finding of the primary court specifically on those grounds. The chief point would be the dependence on one witness who will be put through a rigorous cross-examination in the Circuit Criminal Court.

What is stated there is the law and it is a matter of common sense. Uncorroborated evidence does not have the same weight as evidence which is corroborated and that is a matter of practice in the courts every day. The more witnesses one calls the better. One witness is not as good as two witnesses and so on. It is a different situation where one is writing into sections or subsections of Bills the warning a judge must give the jury or what a jury must take into account.

Mr. G. Mitchell

If we insert "the judge shall have due regard to the absence of corroboration", a judge will be required to ask himself or herself what the Legislature had in mind. A confession is a dangerous ground on which to send somebody to prison. There are occasions when that is quite justified, or, as the Minister mentioned, in the Special Criminal Court the evidence of a chief superintendent is sufficient.

The amendment would put a judge in the position where he would have to have due regard to the absence of corroboration. It would alert him to the fact that this is an exception and not the norm to be built on or extrapolated from and that the law requires the judge to have due regard to the absence of such corroboration. If a judge has to advise a jury of the absence of corroboration, I do not see why he or she should not have to take account of it. The judge should be required to do so by law.

In my view, it will cause judges to recognise that this is a requirement of the law and ask if they have had regard to it rather than accept it as a matter for their judgment. It makes it more objective than subjective and it would help in that regard.

Mr. O'Dea

If we are to accept the amendment, or one similar to it, we will have to include the Special Criminal Court also. I will consider the matter between now and Report Stage. There may be something in what the Deputy said.

Amendment, by leave, withdrawn.

Section 10 agreed to.

NEW SECTION.

Ms O'Donnell

I move amendment No. 29:

In page 9, before section 11, to insert the following new section:

"11.—(1) The right of appeal to the Supreme Court, other than an appeal under section 34 of the Criminal Procedure Act, 1967, from a decision of the Central Criminal Court is hereby abolished.

(2) This section shall not apply to a decision of the Central Criminal Court in so far as it relates to the validity of any law having regard to the provisions of the Constitution.".

This section abolishes an appeal from the Central Criminal Court to the Supreme Court except as per section 34 of the 1967 Act, which is a declaratory action. I submit that the section is unconstitutional because it also abolishes the right under Article 34.4.4th of the Constitution to appeal to the Supreme Court from the Central Criminal Court the question of the constitutional validity of any law.

A recent example of this was the case of DPP v. Quilligan in which the validity of the powers of arrest under section 30 of the Offences Against the State Act was challenged in the Central Criminal Court and subsequently on appeal to the Supreme Court. Article 34.4.4th states clearly:

No law shall be enacted excepting from the appellate jurisdiction of the Surpreme Court cases which involve questions as to the validity of any law having regard to the provisions of this Constitution.

There is a precedent for my amendment in the Local Government (Planning and Development) Act, 1992 and the wording of my amendment is taken from section 19 of that Act. I am sure the Minister has had cause to look at this and, perhaps, he will respond to my points.

Mr. G. Mitchell

I have reservations about the section but the amendment deals with them. I mentioned on Second Stage that section 11 abolishes appeals from the Central Criminal Court, that is the criminal division of the High Court, to the Supreme Court. The present route is from the Central Criminal Court to the Court of Criminal Appeal and on to the Supreme Court if necessary. Alternatively, the Central Criminal Court decision can be appealed to the Supreme Court.

I understand in this case that the appeal to the Supreme Court requires the consent of the court, the Attorney General or the DPP. The Bill proposes that every conviction by the Central Criminal Court shall be appealable only to the Court of Criminal Appeal. That is my reading of the provision and if I am wrong the Minister can correct me. The Bill proposes that every conviction by the Central Criminal Court shall be appealable only to the Court of Criminal Appeal.

Article 34.4.3th of Bunreacht na hÉireann provides that the Supreme Court shall have appellate jurisdiction subject to such exceptions as may be provided by law. This is reasonable but the Bill does not say "in exceptions", the point I was making on Second Stage. It is to be in all criminal convictions with minor exceptions, i.e., other than section 34 of the Criminal Procedure Act, 1967 which is a reference of a question of law to the Supreme Court. Where a court acquits an accused on a point of law, the Attorney General may appeal the law without prejudicing the decision of the court to free the accused.

Will the Minister say why the right of appeal to the Supreme Court is not to be provided for in this case and if such a provision in the Bill is constitutional? That is almost word for word what I said on Second Stage. If this Bill proposes, as I undersand it, that every conviction by the Central Criminal Court shall be appealable only to the Court of Criminal Appeal, it is my advice that it is unconstitutional.

Article 34.4.3th of the Constitution refers to exceptions and "subject to such regulations as may be prescribed by law". In my view, we are not providing for an exception; we are providing for a category of cases that simply cannot be appealed. This is of doubtful validity and the legal advice given to me is that it has doubtful constitutional validity.

Mr. O'Dea

Section 34 of the Criminal Procedure Act, 1967, which is specifically referred to in section 11, is an exception. I will give the reason I am making this change. A person convicted on indictment in the Central Criminal Court has a statutory right of appeal to the Court of Criminal Appeal. The only statutory right of appeal by the prosecution against on acquittal in the Central Criminal Court is to the Supreme Court on a point of law of exceptional public importance and without prejudice to an acquittal.

In the case of The People (DPP) v. O’Shea, 1982, IR 384, however, the Supreme Court gave a literal interpretation to the provisions of Article 34.4.3th of the Constitution which says that all decisions of the High Court may be appealed to the Supreme Court. That not only gave persons convicted in the Central Criminal Court the right of appeal directly to the Supreme Court as an alternative to appealing to the Court of Criminal Appeal but, for the first time, it gave the prosecution the right to appeal to the Supreme Court against convictions in the Central Criminal Court.

However, the terms of Article 34.4.3 provide that legislation may exclude decisions of the High Court from the apellate jurisdiction of the Supreme Court and that is what this section does in relation to the criminal jurisdiction of the High Court. A saver is included to protect the prosecution's statutory right to appeal without prejudice to an acquittal.

In effect, section 11 restores the right of appeal from the Central Criminal Court to what it was thought to be before the O'Shea case. In other words, persons convicted in the Central Criminal Court will continue to have a right of appeal to the Court of Criminal Appeal which is the court specifically designed for that purpose with the possibility of a subsequent reference to the Supreme Court on a point of law of exceptional public importance.

The prosecution will continue to have a right of appeal direct to the Supreme Court, without prejudice to an acquittal, on a point of law of exceptional public importance. The loss by the prosecution of an appeal against an acquittal is of little real significance as it had not been decided by the Supreme Court in the O'Shea case or subsequent cases, that it could order a retrial in such circumstances. In any event, provision for an appeal by the prosecution against an acquittal is a matter of such fundamental importance to the criminal legal system that any such change should only come about as a result of the decision of the Oireachtas after a full debate.

The amendment proposed by Deputy O'Donnell is excellent. I thank her for bringing this point to our attention and I accept the amendment.

Amendment agreed to.

Question: "That section 11 be deleted from the Bill", put and agreed to.

Sections 12 to 14, inclusive, agreed to.

Question proposed: "That the Schedule be the Schedule to the Bill."

Mr. G. Mitchell

We are repealing section 34 of the Courts of Justice Act, 1924, section 5 of the Courts of Justice Act, 1928 and section 18 of the Courts-Martial Appeals Act, 1983. I would like a brief explanation of the three Acts we are repealing.

Mr. O'Dea

No. 10 of 1924 and No. 15 of 1928 are being repealed but they are being repeated in consolidated form in section 3. They relate to the powers of the Court of Criminal Appeal in deciding an appeal. Section 18 of the 1983 Act becomes redundant because of section 6. Section 6 deals with courts-martial appeals courts so, in effect, the law is being consolidated and updated both in relation to the powers of the Court of Criminal Appeal and the powers of the Courts-Martial Appeals Court. Nothing is being taken away, we are adding new powers and provisions, and we are repealing what was there.

Question put and agreed to.

Amendment No. 30 not moved.

Title agreed to.