Dáil Éireann díospóireacht -
Wednesday, 22 Nov 1989

Vol. 393 No. 5

Private Members' Business. - Criminal Justice Bill, 1989: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time".

Debate resumed on amendment No. 1:

To delete all words after "That" and substitute the following:

"Dáil Éireann declines to give the Bill a second reading until a report on—

(a) the necessity for corroborative evidence, and

(b) the proposed power of the Minister for Justice to refer cases to the Court of Criminal Appeal, and

(c) other related issues

shall have been made by the Law Reform Commission and its recommendations considered by Dáil Éireann."

(Deputy J. O'Keeffe)

Mr. J. O'Keeffe

I elaborated at length last night on my reaction to the Labour Party Bill and my reason for tabling a reasoned amendment thereto. The Labour Party must be complimented in that they provided the springboard to coin a phase, for this important debate through the circulation of their Bill. Fine Gael proposed the correct response with my proposal to refer the issues arising out of the Bill and related issues to an independent body for examination and recommendation. The Government have made their contribution by accepting the principle of my amendment and by announcing the appointment of such an independent body.

My amendment, which I cleared with my party last week, proposed the examination of these issues by the Law Reform Commission. The Minister indicated that he agreed with the substance of my amendment but he was concerned about referring the matter to the Law Reform Commission who might not be able, because of their heavy workload, to produce a report as quickly as we should like. On that basis he announced that his response to my amendment was the establish of a committee under Judge Martin to carry out an examination of the issues in the context of our criminal procedure.

We have made such progress and there are just a few outstanding issues which need to be teased out. In accepting the substance of my amendment the Minister merely referred to his invitation to Judge Frank Martin to chair a committee of experts and his acceptance of that invitation. It is very important that without further delay the Minister should make a full statement on this issue. I understand that he was not in a position to do so when responding to my amendment. I presume, having made the decision in principle to accept the amendment, his first job was to find a chairman. There are other relevant issues. What terms of reference will this committee have? Then there is the membership of the committee. Will it be a committee of lawyers or a broad-based committee? I should prefer the latter. We have no knowledge of the Minister's views on these matters. Both the terms of reference and the membership of the committee need to be decided quickly. Perhaps the Minister would confirm at an early date that the committee will have research and other staff available. I should also like an indication as to the time within which the committee are to report and confirmation that there will be a Dáil debate on the report as soon as possible after it is available.

What has happened in relation to this Bill raises the whole question of criminal law reform and the need not just for an ad hoc response to this Bill but for an approach which would involve a comprehensive criminal law reform programme. That question needs to be addressed urgently. It could be done by the establishment of a criminal law reform commission, separate from the existing Law Reform Commission. Alternatively the mandate and the membership of the existing Law Reform Commission could be extended.

I believe all Members share the concerns expressed by Deputy Spring in presenting this Bill to the House. We are all anxious to ensure that miscarriage of justice will not occur in this jurisdiction, just as we are anxious that it should not arise in relation to Irish citizens elsewhere. We must have the appropriate machinery to deal in this jurisdiction with substantive allegations of miscarriages of justice. I hope we will have the report of Judge Martin's committee available to us with the minimum of delay and that we will have the opportunity of returning to these issues in a full debate as soon as that report is to hand.

Mr. O'Dea

I welcome the opportunity to speak on this Bill. Due to circumstances beyond my control I was unavoidably absent from the House yesterday and it was only in the last hour or two that I had the opportunity to study the Bill and the text of yesterday's debate, particularly the Minister's speech. I compliment the Minister on his initiative in establishing this committee under Judge Martin. The need for such a committee has been obvious for some time. It was proposed with varying degrees of seriousness by Members on all sides of the House during the past few years. I am delighted that Deputy Ray Burke as the Fianna Fáil Minister for Justice has seized the initiative and decided to appoint the Committee. Deputy O'Keeffe and others have referred to the hope that this committee will report as quickly as possible.

I share that view but, nevertheless, these are serious issues that affect the liberty of the subject. In such issues, changes in the law and criminal procedure require mature and careful consideration. I am not for one moment recommending that the Martin committee should unduly delay their proceedings but these matters need to be studiously considered with a view to getting the best possible recommendation. It is a difficult area which, as I said, goes to the heart of the liberty of the subject. Consequently, it cannot be the subject of a rushed report by a committee of experts chaired by Judge Martin or anybody else.

I compliment the Minister on his response and initiative in setting up this committee. I also compliment him on his speech which, as I said, I only read briefly. I welcome the generosity of his response to this Private Members' Bill. I recall several occasions when we were on the Opposition benches, when we moved Private Members' Bills and the response was less than generous, to put it mildly. I could cite several examples but the debate is not about that. I am not saying that all Ministers during that period adopted a negative and stonewalling response, there were one or two honourable exceptions in Ministers who took on board suggestions from the Fianna Fáil side of the House. However, I have rarely, seen a response to a Private Members' motion or a positive proposal by the Opposition that received such a generous and immediate response as that contained in Minister Burke's speech last night. Deputy McCartan seems to find that remark amusing.

Mr. McCartan

It is, coming from Deputy O'Dea.

Mr. O'Dea

I am delighted he is amused, perhaps he will give his reasons later.

Mr. McCartan

Deputy O'Dea has a very entertaining turn of phrase.

Mr. O'Dea

Deputy McCartan is always informative and entertaining on these matters and I look forward to hearing from him. In moving the Bill, Deputy Spring asked how the problem of the Guildford Four arose. I would argue that the question is not how the problem arose but why. We all know that the problem arose because the police in Guildford in the south-east of England, conspired in large numbers to fabricate evidence, to swear false oaths and to beat confessions out of people.

The conspiracy was not confined to the Guildford police, it involved people in the office of the British Director of Public Prosecutions so far as the withholding of alibi evidence was concerned. A situation like that can arise at any time if the will is there. If one focuses on why the problem arose, one will find that it cannot be solved by legislation or regulation.

I very rarely have the opportunity of listening to BBC radio but coming up in the car this morning I decided, for a change, to switch to BBC radio 4. I switched over at about 8.30 a.m. and the presenter was reading a letter from a lady in Surrey on the question of the Guildford Four which is commanding a lot of media attention in Britain at the moment. I do not remember the exact wording but the tenor of the letter was that she did not give two curses about the Guildford Four or the Birmingham Six. She was very sorry for the victims of that appalling outrage but she was also sorry for the police who had been in trouble as a result. It is that attitude among a very large section of the British public that has given rise to this problem.

I have occasion to do some work in the United Kingdom and I have contact with many people there. I know that that is the prevailing attitude among the section of the population in Britain who like to think of themselves as ordinary, fair-minded and right thinking citizens. Naturally, if that is the view of a large minority of the population of the UK it will be reflected in the police force of that state, the Civil Service and the Judiciary. That is the problem which has given rise to this case and the miscarriage of justice.

There is no similar analogous situation here. We do not live in a country where a minority of foreigners engage in terrorist and quasi-political crimes. Therefore, there is no incentive on the part of our police, Judiciary or legal officers to engage in the sort of conduct which took place in the Guildford Four case.

It is facile to argue, as Deputy Spring seemed to last night, in so far as I understand him, that regardless of why the situation arose there, it could also arise here and he mentioned ways of preventing it. The police force of Guildford went to extraordinary and painstaking lengths to fabricate evidence against those people and intentionally put them away for life. If the law in the United Kingdom or Scotland was that some corroboration is needed to a confession of guilt on the part of the accused, can anyone imagine that the police would not have gone a minuscule step further and fabricated further so-called material evidence against those people? I could name 20 ways in which it could be done with every little effort or ingenuity on the part of the Guildford police. The problem is, therefore, essentially a political one and the outcome of the Guildford Four case will do a lot more to reduce the possibility of that recurring in the United Kingdom than legislation or judicial decisions.

On reading Deputy Spring's speech one would imagine that it is the law in this country that an uncorroborated confession made by an accused person can of itself be sufficient to lead to a guilty verdict. Of course that is not the law and Deputy Spring knows it very well as a legislator and from practical experience at the Bar. The law here is that in order to incriminate an accused person a confession of guilt made by a person must be a voluntary confession and even to say that does not fully state the law because the Irish courts have now decided that, in some cases, even a voluntary confession of guilt on the part of the accused will not necessarily lead to a conviction if the trial is unfair. The courts have expressed in the clearest possible terms that the right to a fair trial is a constitutional right, an individual right which is enshrined in the Irish Constitution. That is the law in this country and is the background against which we are considering this Bill.

The Bill has two parts. For my purposes I have divided them into a main and subsidiary part. I am not attributing any numerical order to Deputy Spring; I am subdividing them for my purposes. The Minister dealt in some detail with what I call the subsidiary part which deals with the right of a Minister for Justice to refer a case to the courts if evidence is presented or allegations are made that a miscarriage of justice has occurred. That is a proposal similar to that contained in section 17 of the English Criminal Appeal Act, 1968. I do not want to dwell on that at any length; the Minister dealt with it adequately. If I have time at the end of my contribution I will refer to it briefly.

I want to deal now with the main part of Deputy Spring's proposal, namely, that some material evidence should be needed in addition to a self-incriminatory statement made by an accused to ensure that person's conviction, in other words, statements of guilt made by the accused himself, whether voluntary or otherwise, will not necessarily lead to his conviction; there must be some further evidence. The law in this country is that confessions must be voluntary and, even if voluntary, a conviction might still not be secured if the whole proceedings of the trial fall short of what the court would consider to be a fair trial, which is a right enshrined in our Constitution.

Looking briefly through a few recent decisions of the Irish Courts of Criminal Appeal one is struck by the painstaking, arduous lengths to which the Judiciary go to ensure that, in cases based on confessions, the confession falls within the term "voluntary confession" as defined by the courts. I might mention in passing that, in a great many of those cases, when the matter comes before the Court of Criminal Appeal or is on appeal to the Supreme Court, as the case may be, there is no dispute about what actually happened. The method of questioning is something that is admitted and the only question is whether that admitted method of interrogation or questioning falls, or whether a confession produced by that admitted method of interrogation falls within the term "voluntary confession" as defined by the courts. I am not saying that is so in all cases. In some cases the question of how the confession was got, the precise details of the interrogation, is a matter of great dispute but, in many cases there is no dispute. If a man was questioned for 40 hours or 42 hours in an underground passageway rather than an interview room or whatever, does this form of interrogation fall within the term "voluntary interrogation" for the purposes defined by the courts?

As examples of the lengths to which the Irish courts will go in examining every single, minute detail of the interrogation to discover whether that interrogation was in accordance with the Judges Rules or was otherwise voluntary as defined by a series of court cases, a number of cases that could be quoted. One such is the People v. McNally, Court of Criminal Appeal, 16 February 1981. I know Deputy McCartan will have some more incisive experience of those matters. I saw his name mentioned in one or two of the reports. This case arose from the Sallins mail train robbery. One of the questions at issue before the Court of Criminal Appeal was whether the interrogation of Bernard McNally and that of Osgur Breathnach — which ultimately produced confessions — produced "voluntary confessions" for the purposes for which that term has been defined. In McNally's case, in the course of his confession, he gave details of a van used in the course of committing the crime. Unless I am misreading the facts of the case it would appear to me that the police were very strongly of the view, as were the court, that he could not have known the details about that van unless he was involved in some way in the crime. His verbal confession was not reduced to writing.

The Judges Rules which govern the taking of statements and the interrogation of prisoners stipulate that such statements have to be reduced to writing. The question at issue was whether the failure of the police authorities to reduce that confession to writing rendered the confession involuntary or was in breach of the Judges Rules to such an extent that the confession should be excluded for the purposes of proving guilt. The Court of Criminal Appeal held that in fact it should. Admittedly the fact that the confession was not reduced to writing was not the only factor that influenced the Court of Criminal Appeal, but it is quite clear from the judgment of the Court of Criminal Appeal that, taken in conjunction with other factors, it was a major factor that influenced them in arriving at the conclusion they did. The President of the Court of Criminal Appeal, Mr. Justice Finlay, referred first to the fact that McNally had made various allegations of brutality against the police which the trial judge did not accept. Even taking into account the fact that the Court of Criminal Appeal and the trial judge believed that McNally had actually lied to the police, that he had lied on oath in the original trial, nevertheless the conviction was struck out. Mr. Justice Finlay said:

The Court is not satisfied that the Court of Trial was correct in law in admitting these verbal statements into evidence. No explanation, other than a previous course of conduct, was tendered to the Trial Court for the failure of the two Garda witnesses directly concerned to make a note of the alleged verbal admissions made by the applicant and to afford him an opportunity of correcting, amending or rejecting them. Bearing in mind that each of these alleged verbal admissions occurred in what are usually described as the early hours of the morning after very lengthy periods of questioning and interview extending over 44 hours, interrupted by one night's sleep only, the court is not satisfied that there were any circumstances proved before the Court of Trial which would justify the exercise of its discretion in favour of admitting in evidence these verbal statements notwithstanding the undoubted breach of the Judges Rules.

There are a number of other cases which can be quoted as evidence of the careful and painstaking way in which superior courts in this country scrutinise the evidence, closely examine every detail of the interrogation, to ensure that the confession of guilt is voluntary, as they have defined "voluntary confession".

In the case of the co-accused, Osgur Breathnach, it was held by the Court of Criminal Appeal that the circumstances surrounding the making of his statement, which followd 40 hours in custody, after his repeated insistence on the presence of a solicitor — which was not granted — raised doubts as to whether that confession was voluntary. Again the President of the Court of Criminal Appeal, Mr. Justice Finally, had this to say:

On the admitted and accepted evidence concerning these statements, however, the position would appear to be that this applicant was a person fully and amply aware of his rights and had, on a previous occasion in connection with arrest and suspicion of the same crime, adamantly refused to be interviewed or to discuss the crime with any member of the Garda Síochána until his solicitor had arrived. On this occasion, having maintained the same attitude after his arrest for a period of approximately 40 hours, suddenly, at 5.20 in the morning, he decided to make a full confession of his participation in this serious crime.

The learned judge went on to refer to the judgment of Mr. Justice Sachs in the case of The Crown v. Priestly — 1967 Criminal Appeal Reports — on the question of what constituted oppressive questioning so as to render a confession involuntary. In that case the judge said:

To my mind this word in the context of the principles under consideration imports something which tends to sap, or has sapped, that free will which must exist before a confession is voluntary.

That is the standard of law applied by the Irish Judiciary in determining whether a confession is voluntary. Applying that standard and those principles to the facts of this case the court found as follows: that the unexplained change of attitude of the applicant at questioning concerning the crime after a period of 40 hours in custody, together with the fact that the questioning, which immediately preceded the making of the statement, took place not in the regular interrogation room but rather in an underground passage which had a somewhat intimidating atmosphere, together with the fact that the making of the voluntary statement occurred in the early hours of the morning, together with the fact that the accused had repeatedly requested the presence of his solicitor — which presence was not granted — served to raise doubts about the confession and render what was an apparently voluntary confession involuntary.

There are other cases I could quote but time does not permit. I know that a number of my colleagues and Members of the Opposition want to contribute. In the case of the Director of Public Prosecutions v. Pringle, judgment of the Court of Criminal Appeal, 2 May 1981, which referred to an appalling incident at Ballaghaderreen, County Roscommon, where gardaí gave chase to people who had robbed a bank and a garda was shot dead after an exchange of gun-fire. Nobody had any sympathy for the perpetrators of that crime. From a layman's point of view, it would be obvious to a five year old child watching a reconstruction of that crime on television that Pringle was guilty. One of the perpetrators of the crime got away but the Garda found Pringle hiding out, wounded and armed. Nevertheless, the Court of Criminal Appeal went to great lengths to examine the extent of his interrogation — so far as I can recall this was not in dispute — and applied the test of voluntarius to it.

If I was a cynical person I would say Deputy Spring had opportunistic motives for bringing forward this Bill at this time. I would also say he wants to command the Left, he is worried about the challenge of The Workers' Party, he wants to be seen as the champion of civil liberties and he wants to cash in on the publicity surrounding the unfortunate Guildford Four who have suffered quite enough. If I was cynical I would say that——

Mr. Ferris

That is a very cynical remark.

Mr. O'Dea

——but because I am not I will give Deputy Spring the benefit of the doubt and attribute the best possible motives to him for bringing forward this Bill.

Mr. Kavanagh

That is very good of you.

Mr. Flanagan

The Deputy has used a fairly cynical device to reach that conclusion.

Mr. O'Dea

There is no doubt that if the Government were to accept this Bill, which was conceived and prepared in haste by Deputy Spring, it would result in a fundamental blow to the system of criminal justice in this country. I hold constituency clinics a few times a week as do Deputy Ferris, Deputy Spring and every other Deputy in this House — fortunately or unfortunately, as the case may be, that is why we remain in this House — and some of the complaints I hear relate to the level of crime, the lack of protection people have and how people accused of crimes can walk out of court on a technicality because police cannot prove the case. While arguments can be advanced for the main part of Deputy Spring's Bill there is no doubt that it would give rise to a huge increase in the process I have spoken about and almost insurmountable difficulties would be placed in front of the Garda in a great number of criminal cases.

I want to give the House one brief example of this. I recall at the start of the eighties hearing an announcement on a radio news programme that a girl from, I think, County Mayo had disappeared without trace. There were all sorts of rumours going around about her disappearance, one of which referred to two Englishmen who were visiting the country. Descriptions of these people were given out on television, radio and in the newspapers and we were told to report anything suspicious or whether we had seen anybody who looked like these men. A couple of weeks later another girl disappeared without trace in County Wicklow. The level of terror rose and people were afraid to walk the streets in certain areas because it was rumoured that those people had been seen there.

Due to good detective work they were eventually apprehended. One of them made a statement incriminating the other. This case of the Director of Public Prosecutions v. John Shaw culminated in an appeal to the Court of Criminal Appeal. If anybody is interested in reading about this case it is reported on page 8 of the 1980Irish Reports. Maybe my reading of the case is in some way flawed but if the law was as Deputy Spring proposes it would not have been possible to convict that individual. Nobody doubted that the man was guilty, and nobody doubts it to this day. There is no great outcry for the release of John Shaw, the Essex One, who is languishing in Mountjoy, because everybody knows, including John Shaw, he is guilty. Under the law which Deputy Spring proposes John Shaw would have walked away. Is that the sort of system of criminal justice he wants us to have? If it is, he is welcome to it but it is not the sort of system I want to see in this country and it is not the sort of system we should have.

Mr. Kavanagh

How is the Deputy so sure about that?

Mr. O'Dea

That is not to say that there are no problems in the present system. Of course, there are problems. There will always be problems and we will never get a perfect system but the solution to those problems lies in reducing the possibility of improper confessions being obtained by the Garda. We should reduce the possibility of the Garda obtaining improper confessions from people. That is the road we should go. This is what the Minister has suggested and it is the road the Government intend to go. It is the right, logical and only road to go.

Regardless of what legislation is introduced in this House, a great deal will depend on the integrity and honesty of both the Garda and the Judiciary. I have seen no great evidence, except for one appalling period in our history, of widespread corruption, fraud or attempts by the Garda to fit people up. So far as the courts are concerned, all the evidence is the other way. The best protection which can be given to an accused person lies not only in the honesty of the Garda but in the vigilance of the Judiciary. The Judiciary must ensure, as they have continually tried to ensure in the past, that confessions of guilt are truly voluntary and accord with Judge's Rules. Even if they are voluntary and accord with Judge's Rules, they should also accord with the principle enshrined in the Constitution whereby an accused person is entitled to a fair trial.

There are also a number of other things we can do. The Minister referred to the Treatment Regulations under the Criminal Justice Act, 1984. These are exacting regulations which lay down the rules for interrogation of prisoners. They incorporate the recommendations of the Ó Briain Committee. I am sure there are members of the Labour Party who would not like to be reminded of the circumstances under which the Ó Briain Committee came into existence in 1977.

Mr. McCartan

It was a cop out decision.

Mr. Kavanagh

The Deputy should remind us; we are not worried.

Mr. O'Dea

I will come back to that. The power of the Minister for Justice to make regulations for the audio and visual taping of Garda interrogations was proposed in conjunction with the Criminal Justice Act, 1984. It is a matter of regret to me that those regulations have not yet been put in place. However, I note from what the Minister said that preparations for these regulations are far advanced and it is my earnest and honest hope that they will be introduced in the near future.

The Minister also referred to the possibility of providing for mandatory warnings to a jury about the danger of convicting a person solely on the basis of uncorroborated confessions. That is a worth-while recommendation. I do not think it is strictly necessary because I believe juries will be conscious of this themselves. Certainly in the case of non-jury trials the Judiciary are always conscious of this.

I want to refer to the record of the Government, of which Deputy Spring was Tánaiste, between 1982-87. They introduced the Criminal Justice Act, 1984. I participated on the Committee Stage of that Bill and anybody who has studied the debates on that legislation in the Official Report will know that the legislation which ultimately emerged was very different from the legislation which was initially proposed. That was because a number of Deputies from all sides of the House, with the shameful exception of the Labour Party — and the record will show that — participated in the debate. The Minister for Justice at that time, my constituency colleague, Deputy Michael Noonan, was receptive to our ideas and we managed to have some provisions taken out of that Bill which were nothing more than an echo of the penal code which was introduced in the Soviet Union in the thirties by that other great civil libertarian, Joseph Stalin, to whom I understand some of Deputy McCartan's party still owe allegiance. That is the record of the Government in which Deputy Spring participated. I accept his motives and I take them at face value but the Bill is flawed. The solution lies in another direction and I do not have any hestitation in recommending to the House that it should reject the Bill.

Mr. McCartan

I am tempted to answer directly some of the very obvious mistakes in law and fact outlined by Deputy O'Dea but I shall endeavour to address them as I proceed and in the context of what I intend to say. In introducing the Bill Deputy Spring indicated that his proposal arose directly out of and in the aftermath of the Guildford Four case. It is worth recalling some of the more salient features of that unfortunate saga and relate them to what we are attempting to address and deal with in the debate. On 5 October two bombs exploded in public houses in Guildford killing five people and injuring about 50 others. On 7 November 1974 another bomb was thrown through the window of a pub in Woolwich killing two innocent people and injuring 27 other innocent people. The Irish Republican Army were responsible for those atrocities and it would be remiss of all Members of the House in a debate like we are having not to record yet again our condemnation of their practices, their objectives and their methods.

Within one month of those two atrocities four people were arrested, detained questioned and charged. Paul Hill, Gerard Conlon, Carole Richardson and Patrick Armstrong were charged and brought before the courts charged with offences relating to Guildford and Hill and Armstrong were also charged, though subsequently not prosecuted, with offences relating to Woolwich. The four were convicted solely on statements of admission extracted from them while detained under the Prevention of Terrorism Act, then in operation, in circumstances in which they were deprived of both sleep and food, without access to lawyers or legal advice and in consequence of beatings inflicted on them. They were kept in isolation and without any form of supervision whatever.

It has now been established that important alibi evidence and testimony that would have been helpful to the defence in the course of their trial was wilfully withheld from them and their lawyers by police officers and senior officers of the courts of the highest standing. Those problems, and the problems of poor police practices and of dishonest practices by lawyers of the courts and officers of the courts, including in this instance the Director of Public Prosecutions and the now Attorney General in the British Administration, Sir Michael Havers, cannot be addressed in the form of a Bill but, nonetheless, they spring directly from the facts and must be addressed in any debate on the consequences of the sorry saga.

The accused, in time, were convicted and sentenced. The conditions and lengths of their sentences, are worth mentioning because they were a direct consequence of what happened at the time. Carole Richardson, then a minor, was sentenced to life imprisonment at the pleasure of Her Majesty the Queen; Gerald Conlon was sentenced to life not to be released until at least 30 years had expired; Patrick Armstrong was sentenced to life until at least 35 years had expired and Paul Hill was sentenced to life never to be released except in the greatest exceptions involving age or infirmity.

The conditions Paul Hill was detained under are worth mentioning. On a visit to him in October 1987 he recalled to me, and other Members, that he had at that time served 1,441 days in solitary confinement. In fact, at the time of his release he had spent more than three years at various times in solitary confinement. He told us that he had been awarded £1,500 by a court of law for beatings he had sustained at the hands of others when in Hull Prison, that he had been moved in October 1987 on 47 occasions to different prisons and that he had never spent longer than six weeks in any one cell. Those conditions were imposed upon him, and his co-accused, arising directly out of what has been described as, and rightly so, a monstrous conspiracy of deceit by the Guildford police force involved in the investigation. They are problems that we cannot address in a Bill of this type.

In time those people were afforded an appeal but that appeal was inadequate to deal with the pressures and prejudices that existed or to try to redress the wrongs that had been perpetuated at the trial. It is a similar tribunal that has been mentioned in the context of the Bill before us for the purposes of reviewing cases as and when they might arise here. The Court of Appeal then, and I believe the Court of Appeal now, will be unable to probe into, address or deal with the scale of the problems that can arise in circumstances similar to those that occurred in Guildford and similar to a number of cases that we have experienced in our jurisdiction.

In time the Balcombe Street accused, when arrested and sentenced, made admissions in regard to the crimes for which the Guildford Four had been convicted. Their evidence was brought before the Court of Criminal Appeal in Britain and, again, the court, and the lawyers were not prepared to be swayed or offer any relief to the four innocent people then serving sentences for the Guildford bombings.

The case of Annie Maguire arose directly from the detention of the Guildford Four. The evidence used in the Guildford case was employed to convict those in the Maguire case. The statements or information extracted from the Guildford accused were used to lead the police directly to the family. That is not addressed in the Bill and it could not be but we must deal with it and we would be remiss in not mentioning it tonight. Finally, in the context of referring to the Guildford Four case, tribute should be paid by the House to the three solicitors involved. Alastair Logan, from the outset as a young lawyer in Guildford stood by the accused in the face of huge pressures and animosity both from within and outside his profession. We should also pay tribute to Gareth Pierce and Michael Fisher. The House should record its appreciation of their commitment and unrelenting drive for justice on behalf of their clients.

Those facts help to put into context what we have to try to address in the debate tonight and in any legislation we seek to draw up. I should like to deal firstly with the matter of questioning, interrogation and admissions that might arise. I should like to make a point to Deputy O'Dea, and anybody else who suggests that we have not had abuses in this area brought before our courts. I worked through the period he appeared to be referring to — he did not specify it — a period of black history as far as police investigation is concerned, the era of the heavy gang, as a professional solicitor and I can say that we have perpetrated Guildfords in this jurisdiction. Unless we address the law and take steps to protect accused people in the future we will commit them again.

The fundamental question in this context is whether we are prepared to address the drift towards police interrogation and investigation centering in the police station and relying on a police station orientated investigation entirely. Are we prepared to allow the law, and conditions of the law, to continue so that we will prosecute by admission, and admission only? This trend in our law, and it definitely exists, is closely linked to times of panic when we were faced with crimes of atrocity and terror in our jurisdiction. I believe it started in 1973 when we capitulated in this House in the face of terrorist bombs in the city and introduced the infamous Offences Against the State (Amendment) Act. It was repeated in 1976 with the Emergency Powers Act, where powers can be introduced by the mere resolution of the Minister to allow for seven days detention of accused persons. This is a specific provision which aids and abets the form of police station oriented investigation and leads to abuse, the type of power that was used so effectively in the Guildford Four case under the Prevention of Terrorism Act.

We have continued to use the 1939 Offences Against The State Act for crimes that were not specifically intended as offences against the State. The statistics given by the Minister show that over 1,000 people per annum are detained under the Act and in the vast majority of cases this leads to no charge or court action. The blackest moment in the trend towards police station interrogation as a means of solving crime was the administrative decision by the Minister for Justice of the day to introduce the interrogation squad, now known and exposed in The Irish Times as the heavy gang. Guildford type crimes were perpetrated by them during our time. Some people are still in prison, serving sentences as a result of activities of that squad. It would be wrong of us not to mention this and be clear about it. We will do no service to this debate if we are not prepared to recognise our own potential faults in this area and by doing so recognise the potential for faults in the future.

The work of the heavy gang led to the establishment of the Ó Briain commission. The main thrust of the Ó Briain report, which was available in 1978, has not yet been acted upon. The report advocated that where an accused is brought into custody for questioning under any circumstances, he should be afforded the benefit of a custodian guardian, somebody appointed by a sergeant or somebody of higher rank or, under section 30, an inspector or a policeman of upper rank with explicit duty or obligation to look after the interests of the person detained. That has not been acted on.

On the other hand, in 1984 we introduced the Criminal Justice Act which allows for a minimum six hours detention. As illustrated at the time and as is the reality today, depending on the hour of the day or the circumstances of detention this can mean the accused being detained for questioning for 40 hours and upwards. The Act advocated full video taping and recording of any interview. This comes to the nub of the issue on how we can act. The concept of corroboration will not provide the remedy Deputy Spring is looking for. What we must do is invade the police station interrogation centre and interview room with all of the safeguards available to us that have been advocated and recommended since 1978. The 1984 Act allows for video taping and recording. The Minister of that administration and the current Minister have not acted to introduce regulations under that provision. The Ó Briain report has been ignored. To suggest that the provisions of the 1984 Act take on board the main thrust of the Ó Briain report is to mislead the House in its purport and intent. The idea of a custodian guardian is good if it were properly implemented and utilised. I believe we can never introduce safeguards to the extent we need them in the context of corroboration. However, we can bring some form of scrutiny and security into the interrogation and interview centre so as to satisfy any court of inquiry on a subsequent date that matters were as either side maintains. The essential ingredient of the argument is that confessions or statements of admission are potentially good evidence, even where they stand on their own. It would be a mistake to introduce an absolute law excluding the statement of confession or admission simply because there was not any other extraneous evidence supporting it. I appreciate that Deputy Spring has said he is prepared to flesh out the content of the Bill. This has been welcomed as it has helped us to address this debate and I welcome his receptiveness to our suggestion that he look further at it.

People who commit murder often admit to their crime out of remorse. It is not unusual that a person who has committed a serious crime goes into a Garda station years later saying that he can no longer live with the deed and must bare his chest. Are we to say that such a person, making a full and voluntary confession, should not stand liable to conviction? I doubt it. Often a person caught red-handed during the course of a crime will admit to other crimes of a similar nature committed in the same locality or in similar fashion as a means of ingratiating himself to the investigative personnel and should suffer the wrath of the court when presented for sentence. Are we to say that these crimes should go unrecorded simply because no other extraneous evidence is offered? Where an accused makes an admission we have to address seriously the circumstances in which we would allow that accused retract his statement simply because the police had failed to establish extraneous evidence. These are features that should be looked into. The Minister has offered a mechanism whereby an expert committee will examine the case. These aspects should be looked at much more carefully.

I do not say that the principle contained in Deputy Spring's provision is entirely wrong, but it certainly needs modification. It is well capable of modification in the course of due deliberation. The concept of corroboration is difficult and has caused difficulties not only in this House but in the courts with the result that the trend is to move away from the concept of corroboration, as instanced by the Criminal Law (Rape) (Amendment) Bill.

There appears to be a misunderstanding in the course of the address made by Deputy Spring with regard to the law on referrals in Britain. I have to mention this because it is central to my critique on the way the British authorities have handled the referral of cases. The same provision as he proposes in his Bill exists in English law under section 17 of the Criminal Appeal Act, 1968. As my time is limited I will not read it out in full. What has happened under this provision, which has possibly led to misunderstanding, is that the Home Secretary has extended it by administrative definition. Douglas Hurd has consistently refused to refer cases under its provisions by insisting on material extra evidence being established. When an injustice is investigated so many years after the act it is exceptionally difficult to address that requirement. That is why the Guildford Four case has been so slow in being referred back to the Court of Appeal, that the Birmingham Six Case is in the logjam and that we cannot get the opportunity to address the wrong in the Annie Maguire case. Nonetheless, this provision is welcome and is an important addition to our armoury. For that reason I commended this provision to the Minister for consideration in any legislation he subsequently examines in the light of the report of the committee of experts.

I am pleased that in the course of this debate no one has seriously suggested that there is anything wrong in principle with an administrative officer like the Minister or the President granting pardon or clemency in circumstances where we in this House or the public at large can identify or expose an injustice. I pay belated tribute to the Minister for Justice of the day for the premature release of Nicky Kelly from serving the full sentence that was imposed on him. There were still a long number of years to serve when he was released. No one suggested at that stage that there was any interference with the administration of justice and no one would complain in any circumstances if a Minister were to act to revert a case to the Court of Appeal or to grant clemency or pardon, to the extent he can under the 1951 Act. It is an important principle to recognise that our courts are limited in the way they can address cases and in the way they can redress wrongs when they arise. The Court of Criminal Appeal has a limited jurisdiction. It is a creature of statute and it works within very defined parameters. There are instances where it cannot simply put right what has initially been put wrong. How can the Court of Appeal reconstruct the prejudice, the pressures and the anxieties of those investigating and prosecuting to get someone to answer for the great atrocities of Birmingham and Guildford ten, 12 or 15 years later when they inquire into the facts?

There is a great deal of concern about the way the Court of Appeal is trammelled by its own rules. In recent cases lawyers arguing for appellants constantly sought to broaden the terms of reference of the Court of Appeal so that it could act as a tribunal of inquiry. Perhaps the Minister would ask the committee of experts to examine whether a case could be made for broadening the terms of reference and powers of the Court of Appeal.

I welcome Deputy Spring's Bill as it gives us an opportunity to address the issues arising out of the Guildford case. It has its obvious limitations. It is a modest proposal but it is one which has at least prompted a good response. I welcome the establishment of the committee of experts as announced by the Minister. While he will not have a right of reply, before the end of this debate he may be able to tell us what their terms of reference will be, give us some indication of when he expects them to report and if he is prepared to act on all or only on those recommendations he selects. The Ó Briain report was to have been acted upon but this did not happen. Provisions inserted into the 1984 Act have not been acted upon. I would like to get a firm commitment from the Minister before the end of this debate that whatever recommendations the Martin committee of experts make they will be acted upon.

In conclusion, it would be wrong of us to pass from any debate or discussion on these issues without referring to the Birmingham Six case. Six innocent people are still languishing in prison. I was in the Court of Appeal in London when the most recent judgment was handed down, in December last year. In the last sentence of his judgment I recall Lord Lane directing a very strong word of warning to the Home Secretary. He pointed out that in the course of the appeal he had listened, and the more he listened the more he became convinced that the verdict at the original trial was right and the appellants would not be allowed to appeal. He said he wanted the Home Secretary to take those matters on board in considering whether to send any further cases before that tribunal in similar circumstances. Lord Lane was telling Douglas Hurd that he did not want the Guildford case or the Annie Maguire case to be presented before his court.

We must remember that it was the investigation carried out by the Somerset and Avon police which exposed the miscarriage of justice in the Guildford case, and not the Court of Appeal in Britain, Lord Lane, or anyone else like him. We must redouble our efforts and not seek to have the Birmingham Six case sent back to the Court of Criminal Appeal in Britain as it will not get the type of investigation or inquiry it deserves, but rather we should press the Home Secretary, Mr. Waddington, to ensure that at an early stage the Royal prerogative of pardon is visited upon those unfortunate six people and that they be released without delay.

An Leas-Cheann Comhairle

I did not want to interrupt the Deputy but from recollection I think he stated that there were Guildford Four cases in this State. I think he made that statement. I do not know on reflection if he would like to refine, modify, or qualify that statement. It is a matter for himself.

Mr. McCartan

No.

Mr. Roche

I too welcome this Bill, limited and flawed as it may be, as it gives us the opportunity to cover the ground covered by Deputy O'Dea, by the Minister last night and by Deputy McCartan in perhaps a more provocative way. I too feel that all human institutions are frail and we can never be confident that our institutions have not been as frail as our neighbours. Circumstances at a particular time may force institutions and human beings in a particular direction. An attempt is being made with this Bill to close loopholes in the law which have been highlighted by the recent dramatic and welcome developments in the case of Gerard Conlon, Patrick Armstrong, Paul Hill and Carole Richardson, the Guildford Four. Above all else, that case and the related cases of Annie Maguire and her family and the Birmingham Six teach us the folly of putting blind and stubborn faith in any human institution. The blind faith among the establishment figures in Britain, their almost mystical belief in the truth and efficacy of judicial institutions have been illuminated for what they are, the ultimate in human folly, by this case.

The Guildford case has also illuminated the human frailty of the prisoner under pressure following an arrest. This is a point which was covered more than adequately by Deputy McCartan. Young men, such as Paul Hill and Gerard Conlon, picked up for a crime in which they played absolutely no part were, under duress, willing not only to ignore their own innocence but to confess guilt and, even more dramatically, to implicate other innocent people. There were circumstances which I hope, but doubt, are unique to the Guildford and Birmingham cases. At the time there was mass hysteria, political clamour for revenge and a fanatical gutter press fanning this hysteria. More importantly, although related to all of those points, there existed within the police establishment — and it seems now within the highest levels of the British judicial administration — a great evil, an evil which led otherwise good men to do what was wrong, an evil which led good people to do what was bad. That evil led those men to stand doggedly by their great untruth through the long and tragic years when Annie Maguire and her family rotted in British cells, during which Giuseppe Conlon died and through the thousands of days of solitary confinement of Paul Hill.

More importantly, the same stubborn adherence contributes to this day to the continued torment of Hugh Callaghan, Patrick Hill, Gerard Hunter, Richard McIlkenny, Billy Power and John Walker, the Birmingham Six, and their families. I say these things not out of any sense of triumphalism nor because I harbour any ill-will towards the nation in which these black events occurred, but rather because they illustrate the need for a move in the direction which this Bill hopes to propel us. The need for some means of reviewing a case even after the final court of the land has given its final view, where the circumstances emerging over time so require, and the need to ensure the validity of the conviction won on the basis of uncorroborated evidence, are pressing needs indeed.

As the Minister said last night in reply to Deputy Spring there is a sufficient similarity between the laws and institutions of justice of this land and the institutions and laws of the United Kingdom to justify our being sufficiently concerned at the unthinkable vista which has been opened by the Guildford case. There is a sufficient similarity between our institutions, our police procedures and our courts and those in Britain for us to be anxious to very urgently review the operation of our own system of justice.

There is no difference between us on this aspect of the matter. There is a need for great urgency in strengthening our institutions in response to the weaknesses which are now evident. Last night Deputy Spring said it would strengthen our hand in our contacts with the British if we put our own house in order — I am not so sure that contacts with the British would be my primary motive in looking for improvements in our system. However I share his interest in improving our system where such improvements are needed. The only difference between us lies in the manner of our response.

Deputy O'Dea has already focused on the issue of confessions. I avoid repetition I will focus on what could be termed the institutional side of the issues raised by Deputy Spring. While I do not wish to cover ground already covered and I have not the expert knowledge to cover the aspects of confessions covered by Deputy O'Dea and the Minister last night and by Deputy McCartan just now, there is a central folly in the proposition contained in the Bill which would attempt to ban convictions on the basis of an inculpatory statement unless the evidence is corroborated by some other material evidence.

Other speakers have amply illustrated that this is not a workable proposition. It is clear, as Deputy McCartan said, that sometimes many years after a crime, when evidence has gone, an individual may turn up and confess due to feelings of guilt or remorse or whatever, and it would be wrong if the crime were to remain unsolved simply because we moved in the direction proposed in the Bill. It is equally true that occasionally sometimes hideous crimes occur such as the one to which Deputy O'Dea referred where young girls in Galway and a young girl in Mayo were murdered, where ultimated very limited evidence is produced but a conviction is gained because of a confession. As Deputy O'Dea said at that time, it is obvious that the persons involved in those crimes were as guilty as sin and it would have been very wrong indeed if they could not have been visited with the full rigours of the law simple because we were hidebound in the manner envisaged in this Bill.

Deputy Spring will agree, on mature reflection, that that portion of the Bill was perhaps drafted in haste and is clearly unworkable. I do not wish to impute any negative suggestion or motive to Deputy Spring. The Bill is welcome because it gives us the opportunity to focus on those things. Deputy Spring's proposals also have an important institutional aspect and in the remainder of my comments I will focus on that.

There is a flaw in the institutional proposition put before us by Deputy Spring. Deputy Spring suggests that we should import a provision which exists in section 17 of the English Criminal Appeals Act, 1968. Deputy McCartan is probably attributing too much to himself when he suggests that he was the first person to spot that aspect of the Bill, because he was not. It is odd that in terms of our law this should be our response to the Guildford case. It is very odd indeed if one looks at the circumstances of that case and at the circumstances of the Birmingham Six case. The problem in the case of the Guildford Four, in the case of the Birmingham Six and in the Maguire case is not that there was a lack of a mechanism to permit a review. As Deputy McCartan said, echoing what the Minister said last night, there is in British law a mechanism for a review. Whatever the problem was in these cases it was not the lack of a review mechanism. If any conclusion can be reached from the British experience it must surely be that the safeguards along the lines of section 17 of the 1968 English Act do not work or at least that they are unlikely to work unless special circumstances exist.

There were after all very special circumstances in the case of the Guildford Four. There was a constabulary which was clean, which was interested in justice and which was willing to contemplate the vista which Lord Denning and others like him felt could not be contemplated, that is, the vista of mass police collaboration in committing a crime. There was also the fact that the original police paper work was still on file 15 years after the case. It is obvious that the original investigating constabulary were cock-a-hoop that they had hidebound these innocent men, to the extent that they could leave this incriminating evidence lying on file. I have no doubt that if we went with fine tooth combs through all the police files involved in the Birmingham Six case, whatever the chances were before Somerset and Avon came up with this extraordinary finding in the Guildford case, there would be no trace of such evidence now.

Contrast the case of the Guildford Four with the case of the Birmingham Six. There is now clear evidence that the West Midlands force, the investigating force in that case, were, and until recently remained, not just willing and able but as force of habit bent the rules to get convictions. This has now been proved to the point where the British Home Office has been sufficiently concerned to move in the direction of an investigation. Sadly, the Home Secretary stopped pushing that investigation far enough back to benefit the Birmingham Six. There has for a long time been positive proof as to the criminal incapacity of the forensic scientist in this case and there remains the stubborn unwillingness of those who advised the British Home Secretary and of those who have been Home Secretary to recognise that this case, too, is wrong.

Two years ago I with other Members of the House including Deputy McCartan met with the British Home Secretary and raised the case of the Six. The infirmity of the case against the Six was put very clearly, as it had been put before and since to Mr. Hurd and as it has recently been put to Mr. Hurd's successor. The response which came back was complex but always negative. The fact is that the institutional arrangement envisaged in section 17 of the 1968 Criminal Appeal Act in England is a political one and it requires politicians with strength to put it into effect. The system which operates in England under the 1968 Act is too political and too subject to pressure, even self-imposed pressures as, for example, happened in the case of Mr. Hurd, to work well.

In the case of the Birmingham Six it was pointed out to the Home Secretary — it was pointed out more than once when we met him, by Deputy Andrews — that forensic tests which were applied to the Six by Mr. Skuse were unsafe and that on the basis of the evidence which subsequently emerged were also probably doctored. If any human being wanted clear evidence that something was wrong and that there was something new in this case, that was the evidence, and yet the Home Secretary cautioned us that one could not import either forensic science standards which existed in the late 1980s or even the judicial standards relating to the quality of evidence which existed in the late 1980s into a reconsideration of a trial which took place in the late 1970s.

I do not wish to pillory a member of the British establishment or a person for whom I have some respect, but if those human errors can occur in Britain we would be foolish to suggest that they could not be repeated here. I do not make the point to pillory Mr. Hurd but to illustrate how infirm the type of measures envisaged by Deputy Spring in this Bill are. It would be wrong, for a variety of reasons, to try to introduce the restriction on convictions through confessions. Secondly, the institutional aspect of the Bill, would not, I feel, be workable. Nor, on the basis of the experience that we have from Britain, would that section of British law imported into Irish law have a great deal to recommend it. I am not saying this to in any way attack or undermine Deputy Spring's bona fides in this matter. Before he came into the House, I had congratulated him on introducing the Bill because it is important that we should at this time sit back and not just criticise British institutions but review the operation of Irish institutions. We cannot throw stones if we have not put our own House in order.

The Minister last night said that the nature of criminal justice inevitably involves a dilemma as to how errors should be corrected. That is our dilemma now. The Minister responded to Deputy Spring's proposals in great detail. I have neither the time nor the technical expertise to go into them in as detailed a fashion as he did. The Minister informed us last night — and this was very welcome — that he had received the permission of the Government to proceed with the appointment of the Martin Committee. It strikes me that a review along the lines envisaged by the Minister is the best response to the circumstances in which we find ourselves at this time.

Our law is very complex. There is a whole set of factors which come into interplay at this time. Our laws are different from those in the UK not least because we have a fine Constitution, a well drafted Constitution, a Constitution which has passed the test of time. I feel that Deputy Spring should folow the Minister's suggestion and withdraw this Bill, secure in the knowledge that the concern which prompted him to propose these measures are commonly shared on all sides of the House, he can derive some satisfaction from the fact that the Minister chose this occasion to announce the appointment of the commission.

Finally, I would like to compliment the Minister on his actions. It is time to conduct the type of review he suggested last night. I am sure all Members of the House will join with me in wishing Judge Martin and the members of the committee every success in the speedy fulfilment of the ardous task that lies ahead of them.

Mr. Ferris

In speaking on this Bill tonight I would like to refer to what has been said by the Minister and particularly by my colleague on the Government side of the House, Deputy Willie O'Dea. He said, that on the one hand, he did not wish to be facetious or to accuse Deputy Spring of ulterior motives or liberalism, but on the other hand suggested that if we wanted to have criminals running free it was not the kind of jurisdiction that he, Deputy O'Dea, wanted. That was an unfair accusation particularly from a person who has had no experience whatsoever in the Department of Justice, as Deputy Spring has had, or indeed in Cabinet, as had Deputy Spring where he was privy to what was before Cabinet on these important matters. Deputy O'Dea withdrew his remarks but, at the same time, got them on the record. Deputy Spring's bona fides should not be questioned by somebody of the calibre of Deputy O'Dea. Nor should the bona fides of the Labour Party be questioned in this manner because we have a strong record both in and out of Government in this area, a record that we, as the oldest political party in the country are proud of. We owe no apologies to Deputy O'Dea for introducing this kind of legislation in Private Members' time.

I would like to refer in particular to what was said by the Minister for Justice last night. Then I want to outline my party's response to the proposal the Minister has put forward for dealing with the issues that are under discussion in this Bill. I do not intend to do more than summarise the arguments put forward in favour of our Bill because these were adequately ventilated last night by Deputy Spring.

To summarise, in the aftermath of the Guildford Four case, a number of responsible commentators have made the important point that there can be little room for complacency in our jurisdiction about a number of the issues that arose in this case. Two specific points were made. First it will be remembered that the case was referred to the court of appeal by the British Home Secretary. There is no equivalent procedure here. If a similar injustice were to occur in Ireland — and we hope and pray that there would never be a similar injustice here — there would be no way in which a case could be re-opened by a court. The Guildford Four case has also thrown into sharp relief the practice that applies both in England and in Ireland of relying solely on confessions to secure convictions. The facts of the Guildford case have raised serious doubts about the propriety of this practice which does not apply throughout the United Kingdom. In Scotland, for instance, the Rules of Evidence provide that an accused person cannot be convicted solely on the basis of an uncorroborated confession. That is why we have asked the Dáil to agree to this short, simple Private Members' Bill which deals with both of these points.

Generally there has been a welcome for the fact that the Labour Party initiated this Bill, first because it allows Members to discuss what has happened in another jurisdiction but to reserve their position about whether it could happen in this jurisdiction. It provides for a reference procedure which can be availed of by the Minister for Justice. It also introduces a rule that no accused person can be convicted solely on his own uncorroborated confession made in police custody. There is a case to be answered; we must put our own house in order. In this House and at public meetings etc, we have all criticised the British approach to justice. We have criticised the British approach to justice for Irish citizens in particular and have done so in the recent past. There is no doubt that we will continue to do so whenever such criticisms seem warranted. We believe there would be widespread support here for any measure that would ensure that we could never have a Guildford Four case in Ireland. Irrespective of what Deputy McCartan may have said, we feel that nobody here would like to see a case like that occurring here.

The Minister took what can only be described as a strange position in relation to the Bill we have put forward. In the first place he appears to have gone a long way towards recognising that the deficiencies in the law which the Bill highlights do exist. He expresses sympathy with us about the intentions of the Bill. However, the Minister's contribution stops a long way short of proposing urgent action on an issue that he appears to recognise requires urgent action.

There is a number of points in the Minister's speech with which we take issue. Many of the arguments put forward by the Minister last night are simply wrong. In our opinion the Minister's response is not correct. It is necessary for us at this stage to deal with this matter in a sympathetic way. The Minister made the point that in the event of a Guildford-Four-type case arising here it would be possible for the Government to recommend a pardon to the President and to free the wrongly convicted person by that method. That misses the point of our Bill entirely. I suggest that the Minister take cognisance of our position in that regard. Clemency is possible under the British system, so is a Queen's pardon. The safeguard, as the Minister called it, a presidential pardon, is copied directly from British law into our law. Still under British law there was the Guildford Four case. A pardon is not an acquittal. We have heard evidence from people who were convicted in England, wrongfully in our opinion, being offered pardons but they wanted to be acquitted of the charges levelled against them.

Debate adjourned.