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Dáil Éireann díospóireacht -
Thursday, 7 Oct 1993

Vol. 434 No. 3

Criminal Procedure Bill, 1993: Second Stage (Resumed).

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

I do not propose that there will be filtering of applications to the Court of Criminal Appeal as happens, for example, in the neighbouring jurisdiction where the Home Secretary decides whether a case should be referred back to the Court of Appeal. I do not propose to place any restrictions or obstacles in the way of such applications. Any convicted person who, after an ordinary appeal to the Court of Criminal Appeal, stands convicted of an offence and who comes across fresh evidence will be able to apply direct to that court for a reexamination of the conviction or sentence, as appropriate. I do not believe that this open access will prove unwieldly, but in any event the court is being given the power of summary disposal of frivolous or vexatious applications.

The Martin Committee was of the view that in those rare cases in which matters come to light, casting substantial doubt on the correctness of a conviction, further recourse to the court system would be likely to prove inappropriate. That is the one significant recommendation of the Martin Committee with which I cannot fully agree. I am of the view that where it is alleged that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to a conviction, it is appropriate to return to the courts on appeal to have the conviction quashed. Only a court of appeal can overturn a conviction imposed by a court. I am satisfied that the first choice of any person who has been convicted of an offence by the courts, and who has unsuccessfully appealed against the conviction would be, if a new fact comes to light, to appeal again to the Court of Criminal Appeal so that he or she could be vindicated by the criminal justice system.

Of course, in considering cases where a miscarriage of justice is alleged, it must be anticipated that not all fresh evidence might be admissible in a criminal court. I agree with the Martin Committee that in those cases there must be an alternative to the courts. I am, therefore, providing a new statutory procedure for the consideration of applications for a pardon in such cases. I expect that any necessary inquiries into the circumstances of such applications would usually be relatively straightforward, but I have made provision for the appointment of a committee with full powers to deal with any difficult or complex cases.

For the first time, and in line with the commitment in the Programme for a Partnership Government, there will be a statutory right to compensation where a miscarriage of justice is found, on the basis of new evidence, to have occurred. Of course the State can pay and indeed has paid compensation in the past in these exceptionally rare cases, but I think the House will agree that it is better to express this entitlement as a statutory right. It will also comply fully with the requirement for such a statutory right contained in article 14 of the International Covenant on Civil and Political Rights, to which Ireland is a party, and will enable the Government to withdraw its reservation to article 14 which has, up to now, been necessary because of our system of ex-gratia compensation.

I am also taking the opportunity presented by this Bill to consolidate and to a certain extent clarify the powers of the Court of Criminal Appeal. These are at present contained in statutes of 1924 and 1928 and in Rules of Court and would, I believe, benefit from a degree of codification.

Perhaps, a Cheann Comhairle, I might now turn briefly to the provisions of the Bill. Section 2 provides for a second or subsequent application to the Court of Criminal Appeal where it is alleged that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to the conviction or that the sentence is excessive. Heretofore, as I already said, a person has had one chance to appeal based on the appeal provisions currently in existence and, if the appeal was lost, that was the end of the line. No matter what facts he or she was able to produce later that cast a genuine and substantial doubt on the conviction, a further referral to the courts was not possible.

The definition of newly discovered fact is a broad one and includes a fact known to the appellant at his or her trial or appeal, but the significance of which was not appreciated at the time. The intention is not to permit appellants to reopen arguments already put before the court. My concern is to ensure that our criminal appeal system has the flexibility to deal with the difficulties which can arise in appeals and the capacity to ensure that justice is done in every case. That is why, in addition, I am providing that there will be no limit to the number of subsequent applications which can be made to the Court of Criminal Appeal, provided each application is supported by a new or newly discovered fact.

The scope of an application is not being restricted to an allegation of a miscarriage of justice in relation to the conviction. Under section 2 an application may also be made to review a sentence on the basis of a new or newly discovered fact, while not contesting the conviction itself. For example, a person convicted of an offence may be able to produce to the court a new fact that would tend to show that his or her part in the crime for which he or she was convicted was not as major as seemed likely during the trial. A reduction in the sentence might be appropriate, but as the conviction itself is not in doubt, simply the severity of sentence, the question of a miscarriage of justice does not arise.

Section 3 consolidates the powers of the Court of Criminal Appeal currently contained in section 34 of the Courts of Justice Act, 1924, section 5 of the Courts of Justice Act, 1928, and in Order 86 of the Rules of the Superior Courts. Those statutory provisions are being repealed by this Bill and the Rules of Court will need to be amended to take account of the new provisions. Generally the section puts in simple modern terminology the jurisdiction of the Court of Criminal Appeal in relation to appeals but it does give the court some new powers.

For example, in a significant departure from the existing powers of the Court of Criminal Appel, power is being given to the court in section 3 (3) to direct the Garda Commissioner, where an appeal is based on new or additional evidence, to carry out inquiries in order to see if further evidence ought to be adduced. The court's role will of course be to adjudicate on the evidence presented to it and not to carry out an inquiry itself.

Section 4 re-enacts in a modern format, with some additions, the provisions of the Courts of Justice Act, 1928, concerning retrial. Where the Court of Criminal appeal orders a retrial the person concerned can be reindicted, retried and, if found guilty, sentenced for the offence for which he was retried.

Section 5 deals with summary determination of appeals. It has always been recognised that there must be some simple, straightforward system for dealing with frivolous or vexatious appeals. The existing Rules of the Superior Courts enable suspected frivolous or vexatious appeals to be scheduled for hearing without the transcript of the trial having been obtained. Section 5 is a development of this, and provides a statutory procedure for dealing with clearly unmeritorious appeals. Special provision is, of course, made to protect the rights of appellants. The procedure for summary determination will be invoked only where the registrar of the Court of Criminal Appeal believes that there is no substantial ground of appeal or, in the case of an application under the new procedure in section 2, that there is no prima facie evidence of a miscarriage of justice or an excessive sentence. Of course the decision on the matter will be made by the court itself or by a judge of the court. In the latter case the appellant will be able to appeal to the full court.

Section 6 applies the relevant provisions of this Bill to courts-martial including the right to reapply to the Courts-Martial Appeals Court on the basis of new evidence.

I come now to section 7. I have said already I considered that the courts system was the most appropriate forum for deciding whether there has been a miscarriage of justice. However, we have to cater for the rare case where referral back to the court might not be possible. Section 7 deals with that situation. One obvious example of where the pardon provisions would be the appropriate way in which an alleged miscarriage of justice could be dealt with is where the new evidence was inadmissible in a court of law.

To deal with such cases, section 7 provides a procedure whereby a convicted person who alleges that a new or newly-discovered fact shows that a miscarriage of justice has occurred, can petition the Minister for Justice with a view to the Government advising the President to grant a pardon under Article 13.6 of the Constitution. There are two circumstances in which the procedure can be availed of. First, as I just said, where persons who might otherwise return to the Court of Criminal Appeal under the new procedures introduced in this Bill find that their fresh evidence is inadmissible in a court of law and, second, where persons have been convicted and sentenced in the District Court. It would not be practical to enable such persons to return to the relevant court of appeal, the Circuit Court, as no record is kept of proceedings in the District Court and appeals are by way of a complete rehearing.

The Minister for Justice will have several options on receipt of a petition for a Presidential pardon. These are, after making the necessary inquiries, first, inform the petitioner that the matters dealt with in the petition could appropriately be dealt with by means of an application to the Court of Criminal Appeal — as I said earlier, a return to the Court of Criminal Appeal should be the first choice where this is possible; second, inform the petitioner that no case has been made that a miscarriage of justice has occurred — this would be the option where the petition is clearly frivolous; third, recommend to the Government that it should advise the President to grant a pardon in respect of the relevant offence — this option would be relevant where an examination by the Minister, or a suitably qualified person commissioned by the Minister, shows that a miscarriage of justice has occurred; or fourth, recommend to the Government that it should appoint a committee to inquire into the case.

Section 8 deals with the establishment by the Government of the committee to inquire into an allegation that a miscarriage of justice has occurred. In considering a petition for a pardon under section 7 the Minister for Justice can, as I just said, as one of her options, make her own inquiries or employ someone else such as a barrister or solicitor to make the inquiries necessary before arriving at a decision provided for in that section. However, the Minister also has the option of appointing a committee to examine a petition for the grant of a pardon by the President and to report whether, in its opinion, the President should be advised to grant the pardon. Whether or not the President is so advised will remain, as it must under Article 13.6 of the Constitution, entirely a matter for the Government.

I envisage that the appointment of a committee would be necessary only in particularly difficult cases and, therefor, rather than have a standing committee one will be appointed as necessary to inquire into an individual case. This also gives flexibility in providing special expertise in a committee appropriate to a particular case. The committee will be a tribunal within the meaning of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979, and will, therefore, have all the powers of a tribunal set up under those Acts.

Any person who has been the victim of a miscarriage of justice will have suffered a grievous wrong. Nothing can fully compensate a person who has spent years in prison through no fault of his own, for his loss of freedom, loss of family life, and the effects of the imprisonment on his career and life generally. They are lost years. That said, the State can at least make some restitution through the award of monetary compensation to any person who can show beyond reasonable doubt that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to his conviction. Section 9 gives a statutory right of compensation in those circumstances. If the criteria are met compensation can be awarded either where the court of criminal appeal quashes a conviction or where a pardon has been received as a result of a petition under section 7.

The amount of compensation will be determined in each case by the Minister for Justice. There is provision for an appeal to the High Court where there is dissatisfaction with the amount awarded by the Minister. This will enable an independent and impartial assessment to be made in cases of dispute.

When the Martin Committee was appointed, its terms of reference excluded it examining whether an uncorroborated inculpatory admission made by an accused to the Garda Síochána could be sufficient evidence to ground a conviction. However, the Programme for a Partnership Government contains a commitment to examine the feasibility of prohibiting criminal convictions on the basis of uncorroborated confession evidence. The conclusions reached in that examination is that convictions can, in appropriate cases, safely be based on the evidence of a confession but that it is right there should be an additional safeguard. Accordingly, section 10 provides that where a confession of the accused is the sole evidence, this fact will be specifically brought to the attention of the jurors who will be required by the judge to have due regard to it in determining their verdict.

Society had every reason to be outraged when a miscarriage of justice results in an innocent person serving a prison sentence. If it happened widely, public confidence in the criminal justice system would be seriously undermined, perhaps irreparably. That is why this Bill is so important in that it will allow any alleged miscarriage of justice to be dealt with. However, that is not the full story. I venture the view that very little demoralises public opinion more than to see clearly guilty persons getting off, maybe on a technicality. What I am saying is that we must be very careful not to put the type of obstacles in the way of the crime detecting and prosecuting agencies that could, through a series of well publicised cases, cause great public anger and a disrespect for the law generally, resulting possibly in persons exacting retribution by taking the law into their own hands. I mention these things by way of explaining the reason for section 10. The fact is that uncorroborated confessions can be good confessions and the possibility of their being used in evidence should not be excluded.

I should remind the House that while a person is in custody there are very stringent regulations — embodied in the Treatment of Persons in Custody Regulations, 1987 — which must be complied with. The member in charge of the station is given specific responsibility to see that these regulations are adhered to in order to ensure that the person in custody is not ill-treated and that a detailed record of the procedures followed is kept. It is difficult to envisage oppressive treatment leading to false confessions taking place in the face of these regulations.

In addition, when the recording of statements in Garda stations comes on stream, and eventually becomes widespread, any lingering doubt there might be over Garda questioning — and there should be no such doubt in the light of the regulations I have mentioned — can be put to rest. Section 10 takes the sensible approach to the question of uncorroborated confession evidence by providing for the judge to advise the jury to have due regard to th absence of corroboration. No particular form of words has to be used by the judge — the judge can decide for himself or herself in the circumstances of each case. The Martin Committee made a tentative suggestion as to the form of wording but I am satisfied that, because of the infinite variety of cases that can come before the courts, the precise terms of the advice should be left to the judge.

Finally, I will say a few words about section 11. In 1982 in the case of the People (DPP) v. O'Shea, the Supreme Court gave a literal interpretation to the provision of Article 34.4.3 of the Constitution which says that “all” decisions of the High Court may be appealed to the Supreme Court. This not only gave persons convicted in the Central Criminal Court a right of appeal direct 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 of 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 appellate 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 of appeal without prejudice to a verdict in favour of the accused.

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. 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 specially 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 the verdict in favour of the accused, on a point of law of exceptional public importance.

This Bill is an important development in our criminal justice system. It faces up to the difficult issue of allegations of miscarriage of justice. It gives our courts the powers to deal with such allegations. It provides an alternative mechanism for cases which could not return to the courts. It provides for compensation where a miscarriage of justice actually occurs. It puts in place a new safeguard in the consideration of uncorroborated confessions. Last but not least, it consolidates and updates the main powers and the role of the Court of Criminal Appeal. This Bill will enhance public confidence in the criminal justice system and I commend it to the House.

This Bill does not provide for all the recommendations of the Martin report, the report of the committee established to inquire into certain aspects of criminal procedure, published in March 1990. In so far as it does deal with certain provisions of that report it does not follow those provisions precisely.

The terms of reference of the committee were first to examine whether there is need for a procedure whereby persons who have exhausted the normal appeals procedures can have their cases further reviewed and, if so, to make recommendations as to what procedure should be provided and in what circumstances it should apply. Second, given that uncorroborated inculpatory admissions made by an accused to the Garda Síochána can be sufficient evidence to ground a conviction, the committee was to examine whether additional safeguards are needed to ensure that such admissions are properly obtained and recorded and to make recommendations accordingly.

This Bill addresses the first part of the terms of reference but not the second part. The Martin Committee made detailed recommendations in relation to safeguards for persons in custody and those recommendations should have been incorporated in this Bill. I would ask the Minister to confirm that she will bring forward a further Bill dealing with the second part of the recommendations made by the Martin Committee without delay.

I congratulate the Martin Committee on producing a lucid and learned report which is easily readable and is of enormous assistance to those charged with the responsibility to legislate. I might gently take the committee to task for stating that the submissions made to it led them to believe that the conviction in our courts and imprisonment of innocent persons in circumstances similar to those which have recently come to light in another jurisdiction is "entirely unlikely". Human nature being what it is, this cannot be said with infallibility. I have no other constructive criticism to make of the report and I am very impressed with it.

I take this opportunity to praise the Judiciary for the way they have served the country down through the years. Nonetheless, they have been and remain a group which is aloof from everyday life and are far removed from the realities of life as it affects most people.

For example, judges generally are drawn from one social class. They do not have to go through an interview process before appointment, as is the case in other jurisdictions. The use of wigs in court sets them further apart from those on whom they sit in judgment. The lack of judicial reform here is quite extraordinary given that the lead for reform in Britain is coming from the head of the judiciary, the Lord Chancellor. Whereas I welcome the recent joint submission by the Bar Council and the Incorporated Law Society on the reform of the administration of the courts, and I published a Private Members Bill in 1986, the Reform of the Courts (Administration) Bill 1986 on this matter, I believe it is time for our leading judges to give example and leadership in reforming the courts and modernising them to deal with the realities of the needs of the justice system. The only criticism of which I am aware of the joint submission by the Bar Council and the Incorporated Law Society has been made by the President of the High Court, if his comments were reported accurately. The Judiciary has a role like ours as legislators. The Judiciary is separate from the Executive and has a role to give leadership in reforming the administration of justice. Since the courts, under the Constitution, are separated from the Executive and the Legislature a certain element of "physician heal thyself" must be involved in court administration reform.

As a Deputy who supports extradition and the bringing to justice of terrorists and criminals generally it is undesirable to create an air of emergency around a specific court case. This can have the effect of finding a person guilty before the trial. In the neighbouring jurisdiction steps should be taken to try to redress this question of excited hearings.

Before dealing with the sections of the Bill there is one further point I would like to raise. Under this Bill we are giving persons convicted of a crime the right to appeal in certain circumstances. Sadly, there are also circumstances where, say, the parents of a deceased child feel aggrieved because persons charged with the murder, unlawful killing or manslaughter of their child have been set free by the courts. This has happened in circumstances which can give rise to concern that an injustice has been done. In these circumstances the parents should be empowered to petition the Director of Public Prosecutions, the Attorney General, the Minister, the courts of some independent tribunal, to have the case re-examined. It is not clear whether such provision exists already and I would ask the Minister to address this point in her reply to the debate.

There are some fundamental differences between the Bill and the recommendations of the Martin Committee but before coming to these I would like to make three points. First, the right to seek to have a matter referred back to the Court of Criminal Appeal is confined to persons who have been convicted on indictment, or who have pleaded guilty and the sentence is imposed by one of the higher courts. The vast bulk of cases in which a miscarriage might be alleged will come within that definition involving all serious crime, but it is not impossible to allege a miscarriage of justice in respect of a summary trial in the District Court. In effect, the District Court can now impose a sentence of up to two years by way of two consecutive sentences of one year each were a person is found guilty of two or more offences. A person sentenced to a two year jail sentence might have a legitimate grievance in respect of which some form of redress should be allowed. While in the ordinary way appeals from cases which are tried in the District Court do not come to the Court of Criminal Appeal, there is no reason that court should not have jurisdiction to deal with miscarriage of justice cases even though it would not have had the right to deal with an appeal in the first place. An alleged miscarriage of justice is an important matter which should be dealt with by the higher courts. The Bill should be amended to address this shortcoming.

It is possible for a miscarriage of justice to occur in the District Court. For example a person might be convicted of child abuse in the District Court and the opprobrium that will attach to a person convicted of such an offence might be as difficult to bear as a sentence. If that conviction represented a miscarriage of justice, this Bill does not give any power to seek the intervention of the courts to review the case, simply because the case was dealt with in the District Court, or in the Circuit Court on appeal. That shortcoming should be addressed.

The Bill could be improved in relation to newly discovered facts. Under the Bill any person wishing to rely on its terms must satisfy either the courts, or where a pardon is petitioned for, the Minister or the Government, that a newly discovered fact has come to light. "Newly discovered fact" is defined in various places in the Bill but in practice it is confined to two circumstances, one being that the fact was not known at the time of the court hearings and the second that its significance was not appreciated at the time. A third category should be allowed, as it could give rise to a miscarriage of justice, and that is the circumstances where a party knows of the fact and of its importance but declines to produce it to the court for a good reason. For example, a person who is innocent and knows the identity of the guilty party might not bring that fact before the court for fear of reprisals or other intimidation. If the fear passed the person might want to air a legitimate grievance but he could not have it remedied. The circumstances in which jurisdiction could be exercised should be extended to include such cases.

We should consider the provisions in respect of compensation. It is reasonable to provide that persons who have been the subject of miscarriages of justice should be compensated and that the State should pay that compensation, but there is no apparent reason for the State not having the right to seek to recover compensation paid, together with costs incurred by the State, where it can be shown that a person or persons caused or contributed to the miscarriage of justice. If a wealthy person framed an accused, if the Garda were genuinely taken in and the accused was ultimately convicted it would be unjust if the State could not recover the compensation and legal costs incurred from the guilty party. This procedure might prove difficult to operate but it is not a reason the legislation should not provide for the State or the courts to have the power to make such a recovery order. There would be a genuine public outcry if the public purse had to bear the ultimate cost of compensating a person who had suffered a miscarriage of justice, where it was abundantly clear that the person who caused it would go scot-free although he could afford to pay full compensation or contribute to the legal costs. Will the Minister consider that point for Committee Stage of the Bill?

Page 10 of the Martin report recommends the establishment of a statutory inquiry body under the Tribunal of Inquiries Act and recommends against a reference or an appeal to the Court of Criminal Appeal. The Martin report says: "we doubt however, whether references to the Courts system would necessarily prove effective in establishing the truth." Yet, section 2 proposes that such reviews shall be requested by way of an application to the Court of Criminal Appeal. The Martin Committee gave reasons for considering this matter outside the courts system and referred to the rules of evidence, the Scottish Evidence Act, to the fact that hearsay is not ruled out in every case and that similar rules could apply to a body of inquiry which was not a court. The Department of Justice second guessed the contribution of this independent judicial committee of inquiry and have gone against the Martin Committee recommendations. That is hard to understand and perhaps the Minister could tell us what expertise is in her Department which would go against that fundamental recommendation which was not available to the Martin Committee. Many people made voluntary contributions to the Martin Committee. The Minister referred to them yesterday and I join her in thanking them for doing so. It shows a good public spirited attitude.

A person convicted by the Supreme Court, the Central Criminal Court or the Circuit Court can appeal to the Court of Criminal Appeal and on a point of law, to the Supreme Court. The Minister proposes a new appeal avenue to the Court of Criminal Appeal even though a case may have already gone on a point of law to the Supreme Court, before the new evidence or relevant fact was discovered. This goes against the Martin recommendation which says that the case should go on to an inquiry which could deal with evidence which could not be considered in a court of law because of the rules of evidence. This is a fundamental difference between the Bill and the recommendations of the Martin Committee and nothing the Minister said in her Second Stage speech explains why she has departed from such a fundamental recommendation. The Court of Criminal Appeal upheld the Nicky Kelly conviction and a number of other convictions. The Minister should explain why she is departing from the Martin Committee recommendations in this matter.

Section 3 (1) (b) could be interpreted by some people as an attack on the jury system. The jury in the original case may have convicted a person of one crime and the Court of Criminal Appeal having read the transcripts can now substitute another crime. For instance, handling stolen goods could be substituted for larceny. Essential to this procedure is that the Court of Criminal Appeal would decide those facts of which the jury must have been satisfied. This is a peculiar departure; I am not suggesting that this is an attack on the jury system but it could be interpreted as such. Perhaps the Minister would indicate her thinking in this regard.

Section 3 (3) (a) refers to the hearing of an appeal by the Court of Criminal Appeal where the court is considering an appeal based on new evidence. The court may direct the Garda Commissioner to make further inquiries. This is a useful power but I argue that the Garda Commissioner is the wrong person; it should be given to the Attorney General. Let me outline the reasons I suggest this.

It could be, for example, that the conduct of the Garda in the prosecution of the offence which is the point at dispute. It is possible that the Garda Commissioner of the day, because time will have passed by, could have been the chief superintendent in charge of the division where the original inquiry took place or could have been peripherally involved in overseeing the original prosecution. If inquiries were to be focused on the conduct of the Garda it would still pass through the office of the Garda Commissioner but he should be responsible to one of the senior law officers and I suggest that it is the Attorney General who should oversee inquiries of this kind.

The reason I suggest this is that the second leg of the conduct of the trial and prosecution could be the decisions and judgment of the Director of Public Prosecutions. This could be the subject of an inquiry into an alleged miscarriage of justice. It would therefore be inappropriate for the Director of Public Prosecutions to be the law officer who would oversee the Garda Commissioner. Taking all this into account, I suggest that the correct person is the Attorney General. Under Article 30.3 of Bunreacht na hEireann it is the Attorney General who is responsible for prosecuting all crimes in the name of the people, at the suit of the Attorney General or some person authorised by law.

I am not suggesting that the appeal court should not have the right to make these inquiries; it should and if they relate to the conduct of the Garda they should be made through the senior law officer, the Attorney General, simply because the Garda Commissioner and the Director of Public Prosecutions, in certain circumstances, would be faced with a conflict of interests. Since the Attorney General is not involved in the day-to-day administration of the criminal justice prosecution system he is the appropriate person. I therefore ask the Minister to consider amending the Bill to ensure that the court refers such matters to the Attorney General for examination to be carried out by the Garda or some other agency of the State and not to the Garda Commissioner.

Section 10 provides for cautioning by the trial judge of the jury about convicting on a confession without collaboration. The Martin Committee recommended this at page 39 of its report but said that the judges should be consulted about this matter. Would the Minister please tell the House — she referred to this matter in her speech — if the judges were consulted as recommended by the Martin Committee?

Section 11 abolishes appeals from the Central Criminal Court, that is the criminal division of the High Court, to the Supreme Court. The Minister referred to this matter in her speech. As I understand it, the present route is from the Central Criminal Court appeal to the Court of Criminal Appeal and onto the Supreme Court, if necessary. Alternatively, the Central Criminal Court decision can be appealed to the Supreme Court directly. I understand that the appeal from the Court of Criminal Appeal to the Supreme Court requires the consent of the court or the Attorney General or the Director of Public Prosecutions. The Bill proposes that every conviction by the Central Criminal Court shall be appealable only to the Court of Criminal Appeal.

The Minister referred to Article 34.4.3º of Bunreacht na hEireann which provides that the Supreme Court may have appellate jurisdiction subject to such exceptions as may be provided by law. This is reasonable but the words "in exceptions" are not used in the Bill. This will apply in all criminal convictions with minor exceptions, that is, other than section 34 of the Criminal Procedure Act, 1967 — 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 without prejudicing the decision of the court to free the accused. This provision may be unconstitutional because provision is not being made for exceptions; rather it will apply in all cases. I ask the Minister to address this question before Committee Stage.

As I mentioned earlier, it is suggested on page 14 of the Martin report that a provision similar to the Civil Evidence (Scotland) Act, 1989, should be introduced. This dealt with evidence being considered by the inquiry body — not a court as provided for in the Bill — and suggested that "evidence shall not be excluded solely on the ground that it is hearsay". This is another fundamental reason, that is, the gathering of evidence, why a court should not be used and an inquiry body should be established as recommended by the Martin Committee. It is extraordinary that judges and lawyers should say that an inquiry body, established under the Tribunal of Inquiries Act or other similar Act, rather than the courts, would be the appropriate body. Having taken advice and produced a Bill the Minister has said the exact opposite. It is rare for the courts to seek to give away powers or authority that they may have but in this report, which has been well researched, the committee of inquiry which was chaired by a judge makes a specific recommendation on good grounds. As I said, it referred to the Civil Evidence (Scotland) Act under which hearsay evidence may be allowed in certain circumstances and outlined the reasons a body of inquiry rather than a court would be the appropriate body. Yet the Minister has rejected this central recommendation of the Martin Committee.

The problem centres on the use of the word "evidence" and what is admissible in evidence before the court. Having taken evidence from a large number of people, including leading members of the Bar and the legal profession, the committee of inquiry has said in regard to the appeal procedure that the courts are not the most appropriate body to deal with it. This independent committee of inquiry states specifically in its report that hearsay evidence should not be ruled out in every case. Yet under the Judges Rules and court procedures, the courts cannot accept hearsay evidence. That is the reason it has recommended a body of inquiry should be used rather than a court. They specifically came down against a further court of appeal, including suggesting the provisions in the Scottish Act. I cannot understand why the Department of Justice should decide against their recommendations. Some of these points may seem technical, but they are central and fundamental to a procedure which, presumably, will be in place for many years. What is the point of setting up a learned committee to report into the aspects of criminal procedure in relation to an appeal and then largely ignoring its main recommendations?

I will not be opposing the Bill on Second Stage but the Minister owes this House an explanation of how she arrived at her conclusions when, in many cases, they run counter to the proposals of an independent judicial inquiry.

This Bill raises fundamental issues on which this House must decide. I hope the Minister will not take what I have to say in too negative a way. It is not intended to be personal because I am happy with the despatch with which this report has received a response. It is better than the vast majority of reports in terms of producing a legislative response.

However, this Bill is wrong in principle. It is fundamentally flawed and flies in the face of the expert advice given to the State by a committee established by the Minister's predecessor, Deputy Burke, when in office. That committee, which was chaired by a judge of the Circuit Court, consisted of a senior representative of the Minister's Department, Mr. Terry; a representative of the Attorney General's office, a senior Garda officer and a practising lawyer, among others. It took a long, hard, cold and dispassionate view of the problem, revealed by the outcome of the Birminghan Six case, and inquired into precisely what the Irish response should be to such circumstances. As Deputy Mitchell said, it came to the radical conclusion, which this Bill fundamentally rejects, that hoping that the courts will prove the vehicle of first recourse to secure the reversal of miscarriages of justice is entirely misconceived and wrong. I will explain to the House why I think it is wrong.

The courts have to operate on the basis of evidence. They cannot operate on the basis of hunch. They cannot operate on the basis of hearsay and they cannot draw inferences from circumstances which are not proven in evidence. Moreover, the courts, by definition, have a vested interest in upholding their dignity and in upholding their previous decisions. I need not remind the Minister of the fate of the Birmingham Six case where the Court of Appeal in England disgraced itself — and I use these words carefully — by the manner in which it dealt with the original appeals of those men. Two people gave evidence in the Birmingham Six case of assaults on the prisoners while in custody. One was an individual whose evidence the court rejected on the grounds that he had not made this case before and that he has been dismissed from the police for larceny. The second was a policewoman, a Miss Joyce Lynass who also gave evidence that she saw the prisoners being abused, and her evidence was thrown out by the Court of Appeal in England on the basis that she had changed her evidence. The court said it could not accept that her subsequent evidence was of value and rejected it in its entirety as unreliable.

We know now, and the Minister had better face up to this fact, that those men were abused. We know now that there were policemen who saw them being abused, and we know now that those men were forced to make confessions in circumstances of great terror, physical abuse and degradation. We know now that there were plenty of witnesses to those acts of abuse. However, the Court of Appeal, following very much the procedure the Minister is laying down here, heard evidence from two members of the police force at that time that that had happened. What was its response? It was to dismiss their evidence as unreliable perjury. Why did it do that? There was a very simple reason: it had a vested interest in not undoing those convictions.

Whatever else the Minister may think, it is a sad fact that judge-alone-courts are no real safeguard of ordinary individuals' rights and liberties in the long run. Judge-alone-courts have proven over the centuries to be inferior to jury courts, and a judge-alone-court, when confronted with evidence of two policemen, decided to reject their evidence as perjury. That was done because the courts are a quite inadequate and wrong instrument to use to remedy injustices in circumstances such as that. The great scandal was that the Birmingham Six were sent back to their prison cells, even though police officers had had the courage and truthfulness to come before the courts and say there had been a massive cover-up of physical abuse and torture of those prisoners. What was it, in the end, that tipped the scales? It was not the evidence of one Police Constable Lynass or Police Constable Clarke, the people who were disbelieved. It was technical evidence in relation to the production of documents and the like which exposed the conspiracy.

Relying on the Judiciary to determine that an individual has had his rights massively infringed, as those men had, is a fundamental mistake. The courts are not the appropriate forum in which to vindicate errors of that kind. Deputy Mitchell referred to the Nicky Kelly case. I do not want to become too controversial, but all I can say in relation to that case is that again the courts approached the matter entirely predictably in dealing with a verdict of the court system where there is a natural inclination on the part of the Judiciary not to upset in circumstances of public controversy.

That is what we are dealing with and there is no point in codding ourselves that we are dealing with something else. We are dealing with a committee chaired by a judge which asks what are the lessons to be learned from the case of the Birmingham Six, which asks if the Court of Appeal in England or the Court of Criminal Appeal in Ireland are the right fora in which to seek to reopen an alleged miscarriage of justice and if it should be the vehicle of first resort. The committee came to the conclusion that it should not; it said it would be inappropriate and defined very good reasons.

It is notable, as Deputy Mitchell pointed out, that the Minister comes before this House with no explanation of why that primary finding, that the principle of this Bill is wrong, has been rejected by her Department or the Government. It may well be that the Judiciary were consulted about this. I would be surprised if they were not. Frankly, it is not the Judiciary we need to consult in this matter. They are people who are, in my view, least in a position to be of assistance on this fundamental principle of how to undo miscarriages of justice. The Judiciary are, in a sense, part of the problem where there has been a miscarriage of justice and are not necessarily part of the solution.

As the Martin Committee report exposed, there were cases in the 1930s and 1940s where the Government was so dissatisfied with criminal convictions which had occurred and on which, presumably, the appeal procedure had been exhausted, that they asked a judge of the District Court to investigate one case. From a quite private inquiry he produced such material to the satisfaction of the then Government that it decided to give the man, effectively if not technically, a full pardon and compensation, and there was a similar decision in another case. Where there is an alleged miscarriage of justice the appropriate mechanism for dealing with that is to have an informal inquisitorial committee decide whether or not something is to be done and not to do what is being done here, saying that the primary means of redress is to go back to the court system. The courts are not apt or suited to this purpose. The Court of Criminal Appeal is not apt or suited to determine questions of fact. There is no hint in this Bill as to how it is to deal with new evidence that comes before it. Is it to do what the Court of Appeal in England did and say to Joyce Lynass, or her Irish equivalent, that it rejects her evidence?

Will it act as a mini-jury to assess and give weight to this new evidence? Will it be the case that witnesses like Lynass and Clarke in the first Birmingham Six appeal will be discredited and have their evidence rejected as perjury by these judges? As we now know the evidence given by Lynass and Clarke was true. What consideration of the issues involved led the Department of Justice to tender this Bill to the House? There has been a complete abandonment of the rationale of the Martin Committee's thinking and the Bill is a fundamental mistake.

The Minister said there will not be any filtering process and that the Bill which she commended to the House will enhance public confidence in the criminal justice system. I strongly believe — this may not be a fashionable view — in the idea of having finality in criminal cases. Every prisoner who is put away for seven to ten years will spend three-five of those years thinking up a scheme whereby he can get someone to say he saw him somewhere else at the time the crime was committed. Prisoners in Portlaoise, Mountjoy or prisons in Cork or Limerick will have the greatest possible incentive to think of ways to have their convictions reversed. They will undoubtedly produce perjured evidence to the Court of Appeal. If there is no filtering system the Court of Appeal will need a leathery exterior if it says: "We have heard Mr. McDowell's evidence that he saw the accused in a place five miles away from the scene of the crime at the time the crime was committed but we reject it. Why did you not come before us previously? Why did you not give this evidence earlier?" There will be more and more scandals of more and more judges rejecting evidence in the Court of Appeal where only one judgment is given. It should be noted that there will not be three judgments and that there will be no assessment.

We will have the same problems as in the Birmingham Six case where three or four witnesses will say they saw the accused ten miles away from the scene of the crime, that he could not have committed it and that they only realised when the case was over and the appeal dealt with that their evidence was relevant. Seemingly plausible evidence will be given to the Court of Appeal which it will have to assess. It should be remembered that it will be as clear as day in such cases that if the evidence is true the accused could not have committed the crime and that if it is false the witnesses are perjurers. Day in, day out prisoners will be thinking up ways of getting their cases back to the Court of Appeal. There will be no mechanism to stop this apart from the one the Minister proposes to put in place, that is, if it is frivolous or vexatious evidence. If somebody says that the accused was not at the scene of the crime, that he was ten miles away, that evidence cannot be found to be frivolous or vexatious. If a witness says he heard another man confess to the crime, as Deputy Mitchell said, that evidence will be inadmissible as it is heresay evidence and it cannot be heard in the Court of Appeal.

Nobody who has examined this problem carefully and heard, as the Martin Committee did, the evidence on the likely possibility of going over to the English system of referring cases back to the Court of Appeal can have any confidence that this Bill will improve the situation. Rather, it will create more trouble for the Irish courts and Irish legal system than any other proposed measure. It will mean that every jury verdict will not be the end of the road; rather, it will be the start of a long battle where people will be furiously trying to establish their innocence by producing new evidence and explaining why they could not produce it before. The Irish Court of Criminal Appeal will be brought into disrepute because it will find itself in the position of either accepting plausible perjury and ordering a retrial or assessing the truthfulness of that evidence, in which case it will substitute itself for the jury. There will be no mechanism to stop anyone who has a plausible case, however contrived or untrue, from bringing that case before the courts. It will take days to deal with such cases.

Under the scheme envisaged by this Bill the Court of Criminal Appeal will be able to direct the Garda to investigate the truth of the evidence in question. As Deputy Mitchell said, the notion that the Garda and the DPP should be the primary investigating agencies of miscarriages of justice is deeply unsatisfactory. Unlike England, we do not live in a large society and we do not have the luxury of being able to bring in one police force to investigate another police force. We live in a small society with a small cohesive police force to which I wish to pay tribute — we have an excellent police force. The idea that all the heavy gang allegations should be investigated by the Garda at the time is a bit rich. I do not believe the proposal in the Bill will remedy the situation.

I do not believe that the courts will be happy to reverse their decisions as there will already have been appeal to the Court of Criminal Appeal in many of the serious cases and it will have considered some of the evidence and deemed one or two witnesses as new evidence witnesses. If two further witnesses appear two years later will it say: "Sorry, we now have a reasonable doubt about the evidence we rejected as perjury two years ago; we will go back to that evidence and reverse our decision"? That is the stuff of pantomime; it is the stuff that made the English Court of Appeal judges look so foolish in the long run. As I said, Joyce Lynass and Police Constable Clarke were branded in public as perjurers even though they told the truth. Three judges like something in "Jurassic Park"— they were later referred to as dinosaurs — condemned Lynass and Clarke as perjurers even though they told the truth. The scandal of believing them was more than the British court system could bear. That is precisely what it is proposed to bring in here.

It is a pack of dinosaurs.

It is a mistake. I cannot understand why a Department of State would advise a Minister to reject an expert report and not to come into this House and explain the rational basis for rejecting it.

Deputy Mitchell referred to hearsay evidence. While this may sound technical to some people, it is very real to others. If, say, Deputy Mitchell stood convicted of a crime and Deputy Gilmore heard me say that I committed the crime that would be hearsay evidence.

Would he come forward?

Not likely.

If he came forward to the Court of Appeal his evidence would not be tenderable or receivable as evidence even though it might be the most cogent evidence of all, for example, it might prove that a prosecution was sustained by a forged confession, etc. That kind of evidence is inadmissible in many cases. Judge Martin's committee was correct in pointing out that what is needed in all these cases is a flexible, inquiring and inquisitorial mechanism which will determine the truth. We do not need a system where, like the grotesque farce in the English Court of Appeal, truthful witnesses are rejected as perjurers because it is inconvenient to believe them. That is what will happen in Ireland if the Bill is passed in its present form as it is mosconceived.

This is not a new problem. In 1879 the Westminster Parliament set about codifying its criminal law, something they have only come back to this year. A famous jurist, James Fitzjames Stephen, was put in charge of the codification process. He addressed the question of what happens in cases of miscarriages of justice. He said:

Cases in which, under some peculiar state of facts, a miscarriage of justice takes place, may sometimes though rarely occur; but when they do occur it is under circumstances for which fixed rules or procedures cannot provide.

That is very true. What is appropriate for one inquiry — the Nicky Kelly inquiry — might be wholly inappropriate for another inquiry, for instance, a fingerprint inquiry case. He continued:

Experience has shown that the Secretary of State (in England) is a better judge of the existence of such circumstances than a Court of Justice can be. He has every facility for inquiring into the special circumstances; he can and does, if necessary, avail himself of the assistance of the judge who tried the case and of the law officers .... He is fettered by no rule, and his decision does not form a precedent for subsequent cases. We do not see how a better means could be provided for inquiry into the circumstances of the exceptional cases in question.

I believe from my experience of criminal law that in 99 per cent of cases the verdict of a jury is accepted by virtually everybody in court but most particularly it is accepted by the public at large. A jury in Ireland takes its task seriously, each member swears on oath to afford to the accused the benefits of the doubt. It holds the scales, we hope, evenly between the prosecutor and the accused, between the Garda and lay witnesses and when Irish juries have convicted, the vast majority of their convictions have been proper and warranted. Of course, it is true that Irish juries have let guilty men go but this is because they respect the valuable rule of law that only convictions beyond reasonable doubt will suffice in criminal cases.

This measure and the first set of provisions to allow persons who are sentenced to jail to go to the Court of Criminal Appeal alleging that there is new evidence to assert their innocence will do massive damage to the jury system of trial and to the Court of Criminal Appeal. It will do much more damage to the judicial system than the deplorable absence of any mechanism at the moment. The Minister would be well advised to abandon this line completely, to rely on the inquiry mechanism and to take the Martin report's analysis and conclusion on board. It is no slight to the Judiciary that they should not be involved in the matter but it will be a huge slur on the Judiciary if three members of our present Court of Appeal, are seen — as in the Birmingham Six case — to have rejected as perjury evidence which was later proven to be true. That destroys their credibility as a court thereafter and it destroys their capacity to function. Any politician would then be able to stand up and say that the Court of Criminal Appeal rejected as facile perjury evidence which was later proven to be true and blew a witness out of court who was telling the truth. That is precisely what is wrong with this measure. It will bring the Judiciary into disrepute and it will clog up the system with a predictable wave of applications to the courts on which the Judiciary, bending over backwards to deal with such applications, will make errors on occasion. In those circumstances I do not know how the interests of justice will be advanced.

I agree with one or two provisions of this Bill. I agree with the idea of giving any committee established by the Government powers under the Tribunal and Inquiry Evidence Acts of 1921 and 1979. As Judge Martin pointed out, that is necessary because if the Government ask somebody to inquire into an alleged miscarriage of justice and say, for instance, — and I do not say this with any prejudice — the Garda refused to co-operate, that would make a farce of the inquiry.

There are portions of this Bill which I find difficult to understand. One of those, for instance, is the proposal in relation to compensation. Why is it that the standard of proof in relation to compensation is proof beyond reasonable doubt? How is it that somebody cannot prove beyond reasonable doubt that he is innocent while, on the other hand, a jury on a civil standard of proof would say he is probably innocent? They may hold the view that perhaps the policeman is not telling the truth and they may believe that the accused man is innocent. They will not condemn the policeman out of hand but on balance they may believe that the accused man was innocent. How can a person who has spent five years in jail, whom everybody thinks is probably innocent but who cannot prove it beyond reasonable doubt, be excluded from compensation? That is a foolish provision to put into a Bill. It will be a very unfair system that there will be a distinction between pardons in that some will carry compensation because they are given on the basis that the Minister is satisfied beyond reasonable doubt and others are probability standard cases. That is unfair and will pose difficulties for the Minister and her successors as time goes by. It will embroil her in controversy because people will not want that type of pardon. It does not say a person is innocent and if it did say "innocent beyond reasonable doubt" the person would be entitled to compensation.

I realise the Minister does not wish to be in the position of compensating people simply because there is a doubt about their conviction. That is what the Minister is trying to avoid but to tell somebody who has spent ten years in jail that he is not entitled to any compensation because there remains a doubt as to his guilt — even though it is felt that he was probably not guilty — is an absurdity. That will cause the media to question the kind of provisions we are putting into our laws if we can say a person is probably innocent but because there is a doubt about it we will not give him a halfpenny for wrongly keeping him in Portlaoise Prison for the past ten years. How can somebody stand over that and say that it is a justifiable distinction to make in law? I can see what the Minister is trying to do but I suggest to the Minister that this is yet another symptom of the fundamental error in this Bill.

We must start off from the premise that we want finality in our criminal law and that the vast majority of jury decisions, and not Special Criminal Court decisions, have evinced no query later as to their correctness. In the Special Criminal Court there are particular reasons, of course, because there is a whole group of people who have a vested interest in discrediting that court. Nonetheless it suffers from the defect that it not 12 men and women who are sworn to be objective deciding on those cases.

Three members of the Judiciary decide and that is always a problem in the criminal law. If we start from the proposition that there is satisfaction with the great majority of jury verdicts and that in a tiny minority of cases juries can get it wrong, then the answer is to do what the Martin Committee suggested, that is to go through a special process to satisfy oneself whether the jury got it right, to use the method of Presidential pardon and decide, on an entirely discretionary basis, without creating a precedent and without having to state publicly the basis of the decision, whether the person receives compensation. However, in this provision if the Minister arranges that any individual should receive a Presidential pardon, she is taking on board the duty of saying that she still has a doubt in the matter and, therefore, no payment will be made. That will bring the Minister and her successors into disrepute and controversy where none is required.

This whole issue was debated at length by the Martin Committee. They said that it was better to leave the Court of Criminal Appeal as it is, a once off appeal process which decides on the case and when that process has been exhausted that is the end of the matter.

In the tiny minority of cases where there remains a doubt, or where some new evidence has come to light to merit an inquiry, the Martin Committee recommended that it be dealt with completely out of the courts. It is notable that in England, in the wake of the Birmingham Six case, the legal establishment there said it would be much better if this kind of procedure was not dealt with in the courts. Looking to the likes of those three Appeal Court judges to reverse their previous judgments, or to reverse the judgments of their predecessors sitting in the same chairs; to say that they got it wrong, to say that when Clarke and Lynass were flung out as perjurors, totally wrongly, that that was not a mistake, is almost asking the impossible. Certainly it is asking them to engage in an uphill task.

We want a system which is flexible. In the last sentence of the Minister's introductory remarks she said her purpose in all of this was to enhance public confidence in the criminal justice system and it was on that basis she commended the Bill to the House. I warn the Minister that these measures, if implemented, will deflate and destroy confidence in the minds of the public in relation to the administration of justice. I warn the Minister it will cause untold mayhem, with people flooding the courts with new facts. We must remember that people in jail have nothing else to do for long periods except to think of some way to get out of jail. If they can produce the alibi witness who was away on holiday during their trial and never heard of the case, what will the Court of Appeal do? Will it interrogate him? Will it subject him to an unsympathetic, searching cross-examination? Will that be seen as bias on the part of the judges as they really put the man through his paces to ascertain whether he is telling the truth. It is not obviously the case that the Minister will bring the Court of Criminal Appeal itself into disrepute. I am of the view that the approach of the Martin Committee was right. Because I am of the view that this Bill, in principle, is introducing the Martin route as well as the court, we will not oppose it on Second Reading. Because I do not want to force the Minister into a position today to take a stance on the principle of bringing these matters back to the courts, likewise I shall not call a division.

I appeal to the Minister to consult widely on this issue. If the Minister asks the Bar Council, the Irish Association of Criminal Lawyers, the Irish Association of Civil Liberties and a number of other groups their views on the arguments I have been advancing — whether it will enhance people's sense of confidence in justice — I guarantee her that their response will be that, if the Bill is passed in its present form it will prove to have been a very bad day's work for this House and for respect of the law in Ireland.

In opening this debate the Minister said she believed that the provisions of this Bill would be widely welcomed. I contend it is more likely that its provisions will be widely criticised. There are some things that can be said for this Bill. As Len Murray, who was a fairly moderate trade union leader, used to say "little fish are sweet" and, on the principle that something is better than nothing, probably there is something to be said for some of the provisions of this Bill.

I contend this Bill has been introduced too late. The Martin Committee was established in 1989, reported early in 1990 and, notwithstanding Deputy Michael McDowell's perhaps more realistic expectations of the enthusiasm of Government Departments to put into legislation recommendations of committees, I contend that three and a half years after the Martin Committee reported, at a time when there was considerable public concern here about the Birmingham Six, Guildford Four, the Maguire cases, the Nicky Kelly case and so on, was too long an interval. Nevertheless, the Bill is now before us.

Second, I contend the Bill is inadequate in that it deals only with the first part of the report of the Martin Committee. Later in my contribution I want to deal with some aspects of the second part of the Martin Committee recommendations. Worst of all, the Bill flies straight in the face of the principal recommendation of the Martin Committee, referred to already by Deputies Gay Mitchell and Michael McDowell, that the mechanism which should be used for dealing with people who claim there has been a miscarriage of justice should be by way of a statutory inquiry body rather than back through the Court of Criminal Appeal.

It appears to me the debate on this Bill on which we now embark will become a pitched battle in this House for the implementation of the recommendations of the Martin report. It may well be that, after the Martin Committee report appeared, members of the Judiciary went behind doors — as perhaps they may be entitled to do — to disabuse the Minister and her Department from implementing its recommendations. It may well be that they expressed a view that the implementation of the recommendations of the Martin Committee report would give rise to an Irish version of the appalling vista — that the stature, status, independence and so on of the courts and Judiciary, would be undermined in some way, that the prospect of a body, outside the Judiciary as perhaps they might see it, in some way supervising the work of the Judiciary in relation to miscarriages of justice was more than they could take. That may well have been the case. Indeed, there is much rumour about that and that is what has caused the Minister and the Government to introduce a Bill in the House whose provisions flatly contradict the key recommendations of the Martin Committee report. If that is the case, then the debate in this House will be one seeking the implementation of the recommendations of the Martin Committee. I predict that what the Minister is now facing into is a pitched battle for the implementation of the recommendations of the Martin Committee.

We must remember that the Martin Committee was not composed solely of wild-eyed civil libertarians. It is perhaps worth putting on the record the members of the Martin Committee. Here I join in the words of appreciation expressed by the Minister and other Members of their work and for the speed with which they carried it out. The Martin Committee was comprised of Judge Frank Martin himself, Mr. Henry Abbott, barrister-at-law; Mr. Edwin Alkin, barrister-at-law from the Office of the Attorney General; Mr. Hugh Sreenan, Assistant Commissioner of the Garda Síochána; Mr. Patrick Terry, of the Department of Justice and Mr. Frank Ward, solicitor, hardly a body of people from whom one would expect a recommendation that would be overturned so decisively and firmly by the Government in the introduction of legislation.

Of course, it was the highly publicised cases in Britain involving the Birmingham Six and Guildford Four which demonstrated the dreadful damage that can be done to the lives of innocent people by miscarriages of justice, innocent people taken away from their families, locked up under the harshest of conditions for almost 20 years for crimes they did not commit. No amount of money could adequately compensate for lives destroyed in that way. While many people in this country were very quick to condemn the British judicial system for the failings highlighted by these cases, it was a fact that there was a facility for reopening those cases when new evidence came to light and ultimately, that led to the vindication and the ultimate release of the Birmingham Six and Guildford Four.

Those cases focused attention also on the absence of any similar facility for the reopening of cases in this country when all the normal judicial procedures had been exhausted. There was a facility for the Government to advise the President to issue a pardon but this was used on two occasions only in the 1940s. We, too, have had our miscarriages of justice. The State has accepted that Nicky Kelly was wrongly convicted, a Presidential pardon was issued belatedly and compensation paid to him. Substantial compensation was paid also to others convicted of the Sallins mail train robbery for the ill treatment received while in custody. There is a very strong body of opinion that believes also a serious miscarriage of justice was done in the case known as the Tallaght Two.

Most reasonable people will accept that even with the best legal system in the world miscarriages of justice can take place; new evidence can come to light, new scientific techniques can be developed which can cast doubt on forensic tests believed previously to have been reliable; new witnesses can come forward; witnesses can commit perjury and later have a change of heart. It is impossible to provide total protection against miscarriages of justice. Therefore, it is essential to have procedures for reopening cases whenever new evidence emerges to cast doubt on the validity of convictions. What is needed are procedures for dealing not just with the high profile cases, often the subject of public campaigns or political lobbying, but also for responding to those cases which receive less public attention, where sentences may be shorter but the damage done by the miscarriage of justice great. Interestingly enough, the events about which we know — the Birmingham Six, Guildford Four, the Maguire case, the Nicky Kelly case — all were cases in which, happily, the people who were the victims of those miscarriages of justice had the capacity or connections to have campaigns outside prison carried out on their behalf. It was the persistence of those campaigns, perhaps many of the people participating had an added political motivation to carry on the campaign, which ultimately led to their release and to the exposure of the miscarriages of justice. What about those victims of a miscarriage of justice, where the offence does not have any political overtone, where they are simply left to languish in jail and have no means to have a campaign conducted outside prison on their behalf? Are they not also entitled to have their cases heard and processed?

As Members of the House a regular feature of our work is that we receive correspondence, often accompanied by very weighty documentation, from people in prison arguing that they are the victims of a miscarriage of justice and asking us, as Members of the House, to initiate or to participate in a campaign on their behalf. For obvious reasons, it is very difficult for a Member to assess whether there has been a miscarriage of justice. One side of one's brain is thinking that this is a prisoner who, aware of the amount of public concern there has been about miscarriages of justice, is trying his hand but the other side of one's brain is saying that when the Birmingham Six and Guildford Four cases began many people thought they were guilty and that the campaign to have them released and vindicated was politically motivated. We now know the fallacy of that position.

There is a need for the kind of statutory body which was recommended in the Martin report to filter those applications.

The mechanisms provided for in this Bill, that a case can be dismissed for vexatious or frivolous reasons or, if not dismissed for those reasons, that it is heard by the Court of Criminal Appeal, do not appear to be an adequate way of dealing with that issue. Deputy McDowell outlined the types of cases which can bring that whole process into disrepute.

Against the background of the Guildford Four and Birmingham Six cases the then Minister for Justice, Deputy Burke, established the Martin Committee in 1989. The committee concluded its business expeditiously in March 1990. Rather than simply applaud the committee for the work they have done it would be much better if we took the recommendations they made more seriously and implemented them by way of legislation.

The history of what has happened since the publication of the Martin report requires some examination. The Fianna Fáil-Progressive Democrat Government announced in March 1990 that it had accepted the recommendations in principle. Nevertheless it has taken three and a half years for firm legislative proposals to be brought forward. While the Bill represents an advance over the present situation in that it provides some facility for reopening cases where none existed previously, it is not an adequate reponse to the problem. It does not implement the recommendations of the Martin report. It ignores key recommendations made by Martin and the procedure to be adopted for reopening cases is directly in conflict with the advice offered by the Martin report.

The key recommendation of the Martin report was the establishment of an independent body with statutory powers of inquiry to investigate cases where substantial doubts arise as to the propriety of a conviction. It was recommended that this would be a permanent body with powers of inquiry similar to those provided for in the Tribunals of Inquiry (Evidence) Act, for example, the Kerry babies case, the Stardust case, etc. Cases would have to be referred to the tribunal by the Attorney General.

The Martin Committee specifically advised against referring such cases back to the courts and said:

We feel that any further recourse to the court system is likely to prove inappropriate, as must recourse to any system other than one which is essentially inquisitorial in nature — which our Courts are not.

The Martin Committee further argued that because of the restrictive nature of the rules of evidence, the courts were not the most suitable forum in which to pursue what must essentially be a matter of inquiry. This Bill goes totally against that advice by providing that the usual procedure to be adopted where an alleged miscarriage of justice has occurred is that the aggrieved person can apply again to the Court of Criminal Appeal to have the conviction quashed.

In addition, while the Martin Committee recommended that the power to refer cases should be given to the Attorney General, under the Bill an aggrieved person will have to apply to and satisfy the courts that there are substantial grounds for reopening an earlier decision of the courts. Under this Bill it is only where there is a petition for the grant of a pardon that the Government may establish an ad hoc committee, with limited powers, to deal with each individual case.

I have yet to hear a satisfactory explanation as to why the Government rejected the Martin approach. There were rumours at the time that the Martin recommendations did not go down very well with some of his colleagues on the Bench. It was suggested that some senior judical figures considered that the proposed statutory inquiry body would undermine the dignity and sanctity of their judgments. If this was indeed the case, them some member of the Judiciary clearly regarded the dignity and sanctity of their judgments to be more important than putting in place the best possible procedures for dealing with miscarriages of justice.

The Minister in her contribution — I have reread the passage a couple of times to see whether I could find any indication as to what exactly was the Government's reason for rejecting this key Martin recommendation — simply states that this is the one significant recommendation of the Martin Committee with which she cannot fully agree. She said it was more appropriate that somebody should return to the Court of Criminal Appeal with their case. She makes the point that only the Court of Criminal Appeal can overturn the earlier decision and that most people pursuing a miscarriage of justice case would want to return to the Court of Criminal Appeal to have their case overturned. As I understand it, that is the logic of the Minister's explantion. That presumes that the person against whom there has been a miscarriage of justice can get back to the Court of Criminal Appeal in the first place, and there is considerable doubt about that. Indeed, the Martin Committee anticipated this line of logic which the Minister has now given. I should like to quote a passage from the Martin Committee report in relation to the statutory inquiry body, which refutes the Minister's argument. It states:

We have given this aspect of the matter the fullest consideration and have taken into account the many submissions received. As a result we are of the view that in the circumstances envisaged, where substantial doubt may arise as to the propriety of a conviction, the setting up of an independent body with powers of inquiry is by far the most effective manner of dealing with the situation.

It considered a hypothetical case in which, say, five years following a conviction a prosecution witness, as a result of whose testimony the accused was convicted, developed qualms of conscience and is prepared to admit that it was his perjury which brought about the conviction and his forgery of the vital documents supporting such perjury which resulted in the miscarriage of justice. The reality of the siuation is that such a person, despite his remorse, may be entirely unwilling to testify in court proceedings unless given immunity from prosecution for perjury and forgery, a course which the Director of Public Prosecutions, in the proper exercise of his functions, may well refuse to take, thus effectively precluding any remedy for the miscarriage of justice within the court structure.

The report goes on to argue why the most appropriate way of dealing with this is by a statutory inquiry body. It flatly turns down the option of return to the court. A number of recommendations of the Martin report is being taken on board, for example, the introduction of statutory procedures for the payment of compensation and the need to warn juries of the dangers of convicting on the basis of uncorroborated evidence. However, other key recommendations of the Martin report have been ignored.

A two-pronged approach is needed to solve the problem of miscarriages of justice: we need a procedure whereby cases involving miscarriages of justice can be reopened and, we need to ensure that every step is taken to prevent the miscarriage of justice in the first place.

In this Bill the Government has completely ignored the recommendations of the Martin Committee in that regard. For example, the Martin Committee recommended that all interviews of suspects by gardaí in Garda stations should be electronically recorded, but there is no reference to that in the Bill. The only reference was made by the Minister when she said she accepted the recommendation in principle, that she proposes to set up a working party to consider how it might operate and that it will be carried out on a pilot basis in a number of Garda stations.

I am curious about that provision because the Martin Committee should not have had to draw our attention to the need for electronic equipment to record interviews in Garda stations. There is no necessity for the Minister to accept that recommendation in principle because that is covered in section 27 of the Criminal Justice Act, 1984, which states that the Minister for Justice may, by regulation, provide for the recording by electronic or other similar means the questioning of persons by members of the Garda Síochána. Although the matter was legislated for almost ten years ago the regulations permitting such recording have not been put in place and, consequently, there is no electronic recording in Garda stations. Almost ten years after this House legislated for the electronic recording of interviews in Garda stations all we hear from the Minister is that she accepts the Martin Committee report in principle that she proposes to set up a working group to examine the matter and that this procedure will be carried out on a pilot basis in a number of Garda stations.

I do not understand what a working group has to do with this matter. The technology and means for carrying out either audio or visual electronic recordings is readily available in most large retail stores and is relatively inexpensive. Since electronic recording is a common method of recording I fail to understand why a working group needs to be set up to examine how such recording might operate in Garda stations ten years after being legislated for in this House. In my view this is an excuse to put the implementation of this proposal on the long finger. I cannot understand why this proposal should be introduced on a pilot basis. Does that mean that a few Garda stations in every district will have electronic equipment in place and that if a member of the Garda wants to interview a suspect without the availability of such equipment, he can take the suspect to another station? That would make a nonsense of the matter.

I fail to understand why the provisions for installing such equipment have not been put in place. In all the famous cases — the Birmingham Six, the Guildford Four, the Nicky Kelly and Maguire cases — the miscarriages of justice arose from what happened in police stations, and by putting in place this mechanism as soon as possible we would be dealing with the problem at source. In that way we could ensure that suspects are not mistreated in the interview rooms of Garda stations and that the interview is carried out in a proper manner. It would also assist the gardaí by providing a playback facility and, perhaps, lead to further questioning at a later stage. Apart from providing protection for the suspect the electronic recording would assist the gardaí carrying out the interview.

The Bill falls far short of what was recommended; it is very disappointing and will have to be amended. I do not intend to oppose it on Second Stage because on Committee or Report Stages the Minister might be prevailed upon to amend some of the key sections to give effect to the recommendations in the report. However, if the Minister persists in deviating from the recommendations of the Martin report, as is obvious in this Bill, I will reserve judgment about supporting it at that stage. I will table the appropriate, Committee Stage amendments to give effect to the recommendations in the Martin Committee and I hope the Minister will respond positively. Regardless of the behind the scenes representations made to the Minister and her Department to depart from the recommendations in the Martin report, those of us representing the public will argue strongly that to ensure public confidence in our criminal justice system it is necessary that those recommendations as presented be implemented. In that way miscarriages of justice could be prevented. The Martin Committee acknowledges that miscarriages of justice will occur from time to time; nobody can state with certainty that there will never be another miscarriages of justice but if these recommendations are adopted an effective mechanism would be in place thus ensuring that victims have recourse to a mechanism through which all the circumstances of their case would be considered and they would not be restricted to the Court of Criminal Appeal. At the same time it would filter out the less vexatious cases which clog up the system.

I welcome the Bill which attempts to deal with what has been a serious deficiency in our criminal justice system for some time. We can benefit from the experience in other jurisdictions — the Birmingham Six, Guildford Four and Maguire cases in Great Britain. The debate has been worth-while and I am sure the Committee Stage will accommodate a number of the viewpoints made during this debate, in particular the fundamental issue whether the courts procedure represents the best instrument for processing appeals of this nature or an alternative mechanism should be put in place.

One can be very subjective in these cases. I have always maintained that it was a source of embarrassment for this country to lobby the British Government continually about the Birmingham Six and other such cases when we did not have proper court procedures to deal with similar cases. There is an urgent need to remedy our system in that regard. There was a procedure in Britain to deal with these cases, albeit in a most unsatisfactory manner but the system was in place and we can benefit from their experience.

I was particularly interested in Deputy McDowell's, a practitioner in the field, enlightening contribution. I believe that much of what he had to say is valid and could be examined by the Minister. In that context suitable amendments could be brought forward on Committee Stage. However, let me sound a word of caution on the filtering process. Deputy McDowell referred to the lack of a filtering process but we have to establish who will decide whether a case is frivolous or if the person is chancing his arm. That is a great difficulty. Hindsight is a virtue.

I am sure there are many people in Britain who were convinced that the Birmingham Six and the Maguires must have been involved in something illegal and were chancing their arm when they appealed. It presents a great difficulty to ascertain who is telling the truth and we have to establish parameters for a court or a committee of inquiry to ascertain the truth, particularly when new witnesses come forward. It is easier to adjudicate on forensic or technical issues where clear cut scientific facts emerge than to adjudicate on what has been said by new witnesses or witnesses changing their original evidence.

This Bill attempts to remedy a deficiency in the system and I hope we will improve on it during its passage through the House. The Nicky Kelly example is a case in point. It was unedifying to witness his slow progress in clearing his name and the way the issue of compensation was dragged out. This Bill effectively puts to bed the whole issue of compensation and establishes it on a proper basis. It gives a clear cut right to proper compensation to be determined quickly for anyone who has been wrongly convicted. It also allows redress to the courts for anyone who is dissatisfied with the level of compensation on offer. Perhaps the alternatives to the court system which the Minister puts forward in the Bill — that is, the establishment of a committee of inquiry which would have the powers of a tribunal of inquiry — could be developed in parallel with the courts system. I think there is a certain elasticity in the Bill to deal with that point. Indeed a straightforward petition to the Minister for a pardon could be developed as well. I believe the views that have been expressed could be accommodated in that context.

On the question of the court asking the Garda Síochána to seek further evidence in a particular case, I take on board Deputy McDowell's point that one would not ask members of the alleged "heavy gang" to investigate themselves and tell us what happened. However, it must be acknowledged that the Garda Síochána have effective internal investigation units and they are not unused to investigating themselves. In fact, the Garda Síochána is one of the most successful models of the formation of a civilian police force in any country, particularly in a post-colonial administration emerging from a civil war. It is one of the great monuments to the establishment of a democracy in this country.

I would be cautious of ruling out the Garda in this situation. It should be within our competence to create a special investigative unit or to allocate certain personnel in the Force to this function, in other words, to have a body of personnel within the Garda Síochána to assist the Court of Criminal Appeal in producing extra evidence or re-examining certain cases. We are a small country where people know more about each other than in larger jurisdictions but I would not ridicule the provision in the Bill that the Garda carry out further inquiries, which they have the power, experience and track record to do. That option should not be ruled out.

I accept the Minister's sincerity — I disagree with Deputy Gilmore in this respect — to put in place audio-visual recording of questioning at Garda stations. The Minister is genuinely wanting to implement the system but it makes sense to establish a pilot scheme to ascertain the best means of doing so. I imagine there will be many logistical difficulties and it is important that there be a uniform application of the system throughout the country. It is regrettable that we have been slow to develop such systems given the fact that electronic recording was provided for in previous legislation. The Minister is very determined to progress the pilot scheme and the subsequent scheme throughout the country. This will complement the intent of the Bill.

I detect in Britain and in Ireland an appreciable improvement in awareness and understanding within the court system of the possibilities of miscarriage of justice. I suspect people have benefited from the miscarriage of justice that occurred in Britain over the past 15 years. I also suspect that the Judiciary are chastened by this experience. I believe it has informed, and will continue to inform their approach to cases like this in the years ahead. We hope some good will have come out of those incidents. In that context the court system should provide an alternative means of appeal so that a person can be cleared of any wrong-doing under the criminal justice system which will be provided for if a person has the right of appeal to the Court of Criminal Appeal.

In section 17 (1) the registrar is given significant powers to determine whether to summarily dismiss an appeal. This needs to be further clarified. This comes back to who determines if a case is genuine. In the cases I mentioned they did not even get to the courts because of the filtering process whereby the Home Secretary or lower courts held the view that these cases were not valid or were frivolous and there was nothing to proceed with. One would always be worried that a case could be summarily determined and dismissed. The registrar might say the case does not merit a hearing. I would like to see more detailed guidelines to enable the registrar to make that decision or parameters should be laid down to help the registrar in coming to such a decision.

Deputy McDowell would have us believe that if this Bill is passed there will be a flood of applications from ingenious prisoners who will spend 15 to 20 years looking at ways and means of petitioning——

Wait and see.

——and using the scheme.

They have nothing else to do.

We have yet to see that happen. We have heard about the main cases because the injustice was so obvious and people pursued appeals.

The Deputy probably receives one letter a week from people claiming they were wrongfully convicted.

That is not the case.

I get letters regarding petitions and fines but I do not receive many letters from people sentenced to life imprisonment for major criminal offences claiming they have been falsely convicted.

I have received such letters both from people in the North and in the South.

The Deputy might receive such letters because of his profession and his ingenuity in the legal field.

The Registrar is empowered to summarily dismiss a case or decide if it proceeds but this matter should be reviewed.

The provisions in regard to sentencing are welcome. The Bill is comprehensive in that it deals with compensation, sentencing and conviction procedures. In the past some sentences were excessive and one is often alarmed at the range of penalties handed down by judges in different jurisdictions. Such variations in sentencing have given rise to concern so the provision to provide for appeal on the grounds of excessive sentencing is an important one. People on the prosecuting side should have the right also to appeal what they consider too lenient a sentence, particularly if they are the victims.

I look forward to the progress of this Bill and I am sure the Minister will accommodate the different viewpoints articulated during the Second Stage debate. The Minister's track record in accommodating amendments and taking on board changes in regard to other legislation has been good.

I am alarmed at the perception among the public in relation to crime. It is perceived that crime pays. I welcome the debate although I do not welcome the Bill which was introduced in conjunction with the Martin report and will be food for thought for many people. Many believe that the criminal justice system is weighted in favour of the criminal. People have told me of the trauma they experienced when, having reported a crime, the person they believed to be the perpetrator was either not convicted or, if convicted, got only a lenient sentence. Nobody wishes to see a miscarriage of justice whereby a person is jailed for a crime he or she did not commit but there should be some standardisation of sentencing. We have a good system of justice but no system is so good that it cannot be improved.

Therefore, I support the recommendation that audio visual equipment be put in place at all Garda stations but it would be farcical if such equipment was installed on a pilot basis only. Criminals know as much about the law as the professionals representing them, perhaps more in some cases, since knowing about such matters is part of their line of business. They know the shortfalls and the loopholes. However, if audio visual equipment is put in place on a pilot basis and a suspect is apprehended close to a station with such equipment but interrogated at another place, he or she might allege that they were subjected to abuse and there would be no evidence either to prove or disprove such allegations.

A suspect might, for instance, inflict injuries on himself or herself. Such cases are not unknown and the Garda have a difficult task dealing with them. I am sure the Garda would welcome such a scheme. It would be beneficial not only to the Garda but to the person who is being interviewed to ensure that, subsequently, his evidence is factual. Such a system would not benefit the criminal. Cost should not be a factor in the installation of such equipment.

There has been a small number of miscarriages of justice cases where people have been exonerated in respect of alleged serious crimes. We have become overly concerned because of serious miscarriages of justice across the water, those well documented cases of the Birmingham Six and the Guildford Four. Because of such cases we should not open up the criminal justice system to those who may abuse it. In this country the punishment does not fit the crime.

Statistics show that the criminal has a 50:50 chance of getting away with crime. If a betting man believed there was a 50:50 chance of a horse winning a race he would bet his shirt on it. Delays in bringing cases to court enable criminals to commit further crimes. Sentences in respect of crime are nominal and criminals can get early release for good behaviour. Criminals who are properly sentenced should serve the full term of their sentence. The jail system is chock-a-block, the revolving door syndrome operates. One criminal must be released before another is admitted and criminals are aware of this position.

I wish to refer to the appeal system recommended under this Bill. Murder is not the only hard crime. Repeated house burglaries come within that category, too. It is very traumatic on returning home to find that one's house has been ransacked. Burglary is a hard crime, but it is treated as a petty crime. The criminals concerned serve approximately five years in prison. Under the provisions of the Bill such persons will be able to get a friend to act as alibi and say they were in another place when the crime was committed. Under the provisions of this Bill, too, such criminals will have the right to appeal their case, lay people are concerned about the lenient attitude to crime which supports that provision. Will such criminals be allowed bail because of an overloaded system under which appeal cases may be delayed for a period of months or perhaps years or will they remain in jail? Who will pay for the appeal?

Having regard to the system the Minister proposes to implement, an appeal system will also have to be put in place. Will the Minister indicate if convicted persons will be allowed back out on the streets? Every system must be available to ensure against miscarriages of justice, but I have confidence in the existing criminal justice system. I support the appeals system recommendation in the Martin report. It provides that a board of inquiry will question persons who act as alibis, to ascertain their background, their standing in the community and decide if their statement is reliable. Such a measure is reasonable and preferable to the establishment of a court of criminal appeal to investigate such matters. I am not a legal person but such a board of inquiry would not be as public as an appeal case in a court of criminal appeal. To open the flood gates by providing a criminal system of appeal to those who would abuse it and consequently abuse society is not good enough and I could not support anything of that kind.

I certainly agree with the points made about protecting the Garda and the victim and about having an audio visual system operating in the barracks where the investigation takes place. I agree too with the Martin recommendation of a system of inquiry. That will be another safeguard to ensure that people in jail are the people who committed the crime.

I would urge the Minister to adopt a stronger attitude to crime. The 1993 figures show an increase in crime because the system is breaking down and crime is seen to pay well.

Broadly speaking, we have been well served by our judicial system, it would be difficult to devise a better system. That is not to say that the system cannot be improved or that the system does not make mistakes. Unfortunately mistakes are made regularly. This Bill sets out to remedy miscarriages of justice. Some of the circumstances in which miscarriages of justice occur have been alluded to by colleagues here and others are specifically mentioned in the Martin report.

The report points to circumstances where in good faith people have wrongly identified persons as being criminals. We already have a procedure whereby judges are required to bring to the attention of juries the unreliability of identification evidence in circumstances where a person sees someone fleetingly and is subsequently asked, months or perhaps years later, to recall the person. Other circumstances in which miscarriages of justice can be shown in retrospect relate to the Birmingham and Guildford cases where decades later improved forensic and scientific evidence showed that the evidence relied on at the time was unreliable. The committee points out circumstances where somebody recants, where somebody who has given crucial evidence admits that he has perjured himself. There are also circumstances in which new facts come to light or where facts which were regarded as being of little importance are subsequently seen to be far more important. I mention all those circumstances, because in such circumstances it is probably appropriate to ask the courts to intervene again.

There are circumstances where an appeal to the courts is probably inappropriate. There are cases where courts makes simple mistakes, where courts judge evidence to be wrong which subsequently turns out to be right, where courts choose to disregard evidence because it considers the witness to be unreliable and it subsequently turns out that the witness was telling the truth. In such cases the jury or the judge has simply made a mistake and there is no need for further facts to come to light. We have seen plenty of well reported examples, for instance the Birmingham and Guildford cases where evidence was discounted and subsequently proved to have been accurate. This has given rise to great public disquiet. In those cases we are asking a great deal of the courts to ask them to reverse decisions. Judges, understandably, are reluctant to condemn fellow judges or to say that the system has not worked. I wonder whether going back to the courts in these cases is most appropriate. The Martin Committee says that a committee set up by the Minister would have the advantage of being able to inquire into the circumstances rather than simply operating on the adversarial system like the courts. In that type of circumstances an inquisitorial system would be far more appropriate.

We must openly acknowledge that in a very limited number of cases judges do not perform well and do not cover themselves in glory. The same could be said of juries. They occasionally make perverse decisions. There have been allegations that a judge has been asleep during the course of a significant amount of evidence given in one of our higher courts. I wonder whether putting cases of that sort back into the judicial system will produce the necessary result. We have observed a marked reluctance on the part of some of the Judiciary in the famous cases in England effectively to condemn their fellow judges or parts of the judicial system. They seemed reluctant to uphold cases where it seemed almost certain that there was physical abuse of prisoners while in custody. We need only think of the famous Denning judgment in which the good judge could not conceive that the facts as alleged could possibly be true because if they were it would not serve the public good. The judge has since recanted that judgment, but it stood for a long time.

That was only when he was proved wrong.

While in many cases recourse to the courts may be appropriate there are circumstances where it is not the best way and where the Martin Committee's suggestion of a committee of inquiry would seem more appropriate.

Under the 1951 Criminal Justice Act the Minister for Justice can remit sentences or fines or can reduce fines. The Minister in a response some months ago suggested that this power was used in about 4,000 cases in the last 12 months. That is extraordinary. The judicial system has already been drawn into disrepute by the revolving door system which allows prisoners out simply because we have not enough room to accommodate them. Under this petition system the Minister can overturn court decisions without further public review. That is also bringing the judicial system into disrepute. I can well understand why judges in the District Court think twice when they are imposing a fine when the chances are that the individual concerned will appeal it to the Minister, who will consider the appeal in private and might overturn it. I wonder whether we should use the system to the extent we are currently using it. I am sure that when this system was instituted it was not intended to be used so regularly. The system should be used only in exceptional circumstances but the figures the Minister produced some months ago suggest that it is used far more often than that.

I unreservedly welcome some sections, particularly the section in relation to uncorroborated confessions. The Bill has the balance right in that regard. It would have been perverse to say that we could not convict on uncorroborated confessions. In that case a person could make a confession knowing that it was not sufficient to convict him, decide to plead not guilty at the last moment and try to undermine the confession. Juries should be instructed that it is unwise to convict purely on confessional evidence and the Bill has got the balance right here.

Confessional evidence brings into play the whole business of audio-visual tape recording of interviews in police stations. I know audio-visual tape recording was provided for in previous legislation in 1984. I am surprised and disappointed that it has not happened before now but I warmly welcome the Minister's announcement that she is setting up a committee to advise her on how best it can be implemented. The Martin Committee set out in detail the way it could be done. I see no reason we could not implement most of its recommendations. I hope the committee to be set up by the Minister will complete its work quickly so that this necessary provision can be implemented soon.

It is correct to say that this would be as much to the benefit of the Garda as to people in custody. Having made a confession it would be easy for a person in custody to have second thoughts a few days later and allege that he was mistreated. It would be to the advantage of the Garda if they could prove clearly, with the aid of video tape, that this was not the case. I hope, therefore, that this provision will be implemented as soon as possible.

I wish to refer briefly to the provision for the payment of compensation. I am pleased that provision is being made for a statutory right to compensation but I am concerned about the wording used. It appears that the Minister will have discretion in the matter. A person is either guilty or innocent. If a person is exonerated he or she is entitled to compensation. However, under section 9 the Minister will have discretion. That section states that where the Minister for Justice is of the opinion tht a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice compensation shall be paid. I do not think we should reserve that right to the Minister in those circumstances. We appear to be saying that although a person has been exonerated the Minister, if he or she still has some lingering doubts, can say that person is not entitled to compensation. There should be an absolute right to compensation in such circumstances.

We should also set out in regulations, not necessarily in legislation, the criteria to be used in deciding the amount to be paid in compensation. I am aware that guidelines have been issued by the Home Office in Britain in this regard. I hope the Minister will publish the regulations to be applied in assessing the amount to be be paid in compensation. During the past few years there has been an unseemly wrangle in assessing the amount to be paid in compensation following the Nicky Kelly case. It is important that this should be avoided if at all possible in the future.

Earlier Deputy Mitchell referred to a number of issues raised in the Martin report which has not been dealt with in the Bill. These are few in number but it is important that they are dealt with, not necessarily in legislation but in the Judges' Rules or regulations. For example, we should set out the circumstances in which people will be entitled to legal advice and have access to a solicitor. I hope the Minister will address those aspects.

I welcome the Bill. It may not be appropriate in all circumstances to allow someone have recourse to the courts and it would not be difficult to imagine circumstances where this would not be appropriate. Will the Minister reconsider this aspect?

First, I thank Deputies for their contributions. Many important issues have been raised and I assure Deputies that these will be considered between now and Committee Stage. Deputies will have an opportunity to raise them on Committee Stage and table amendments, if necessary.

I would like to comment briefly on the main issues raised by Deputies. Deputy McDowell strongly suggests that the reputation of the Court of Criminal Appeal would suffer if, on a subsequent application, it quashes a conviction it previously upheld. With all due respect to the Deputy, a conviction will be quashed on the basis of new evidence; are-examination of previous evidence will not be required. In any event the proposal made by Deputy McDowell that every case should be considered by a committee of inquiry would result in convictions which had previously been upheld being found to be mistaken. The end result would be the same. We should not shrink from the task of seeing that justice is done in every case.

Deputy McDowell also suggested that in the absence of a process to filter applications to the Court of Criminal Appeal there would be an endless number of applications by convicted persons. First, as he acknowledged, there is a procedure whereby frivolous or vexatious applications can be dismissed in a summary manner. However, if a convicted person can produce new evidence which tends to show that his or her conviction was wrong that person should have the opportunity to put forward that evidence provided it is not vexatious, imaginary or thought up and which, at face value, deserves consideration. If this proves to be awkward or embarrassing, so be it. Justice must be done and be seen to be done. The standing of the courts in the eyes of the public can only be enhanced if a wrongful conviction is quashed and an innocent person is freed.

Deputy Mitchell suggested that the Garda Commissioner may not be the appropriate person for the Court of Criminal Appeal to ask to make inquiries in an appeal as proposed in the Bill. Under the Bill the Court of Criminal Appeal is being given an important new power to order the Garda Commissioner to carry out inquiries to see if further evidence ought to be adduced. It may happen that the behaviour or action of some gardaí may be among the issues raised by the appeallant during the appeal — they often are — but what is at issue is the duty of the Garda Commissioner to carry out specific orders issued by the Court of Criminal Appeal having heard all the evidence put forward. The court will have to be satisfied that any report produced by the Garda Commissioner is adequate and answers the queries raised. The Commissioner has access to the technical and forensic resources necessary to carry out the inquiry which the court would be likely to suggest. It would not be appropriate, as suggested, to appoint a person such as the Attorney General who, first, would not have the resources and, second, whose functions would not fit in with the role proposed in the Bill.

Deputy Mitchell also said that the parents of a child who is killed and who are unhappy at the acquittal of a person charged in relation to the death should be empowered to petition the Director of Public Prosecutions, the Attorney General or the Minister for Justice to have the case re-opened. I share his concern at the deep anguish felt by parents in this situation. Everything possible must be done to ensure that persons suspected of criminal involvement in such a tragic death are brought before our courts. However, the Deputy is suggesting in effect that the prosecution should have the right of appeal against an acquittal. That is a fundamental proposal and it would need to be fully and thoroughly debated here before we could make such a change.

We said we were going to give the Director of Public Prosecutions the right to appeal against a sentence which he considers is not severe enough and I should like to know if he will have the right to appeal against an acquittal.

The State has got the right to appeal against a sentence which it considers is not severe enough; it does not have the right to appeal against an acquittal.

Deputies Mitchell and Gilmore would like the Minister to introduce legislation to implement Part II of the Martin report which deals with audio visual recordings. No legislation is required to implement it; this power is available under the Criminal Justice Act, 1984. I recall the Committee Stage debate on that Bill in which Deputy Mitchell took part. Under that legislation the Minister is empowered to make regulations which provide for the audio visual recording of interviews. Unfortunately, this has not been done as yet.

The question of instituting feasibility studies on the video taping of interrogations in the investigation of serious crime was first raised by Judge Barra O'Briain in his report in 1978. I am glad the Minister for Justice is now making provision for the introduction of pilot schemes as recommended by the Martin Committee. This was one of the questions considered by the Martin Committee which was reported in 1990. The committee adverted to the fact that this power was available but had not been used. It recommended that questioning in Garda custody should be recorded audio visually, initially by way of a pilot scheme in selected Garda stations.

It is worth recalling the clear recognition by the committee of the preparation necessitated by their proposal. It stated:

The implementation of such a recommendation is more easily said than done. Apart from the considerable cost factor involved, which for obvious reasons we are unable to quantify, the choice and purchase of necessary equipment, the modification either by soundproofing or otherwise of interview rooms, together with the need for some degree of training in the techniques involved, must all of necessity involve delay, and perhaps what some might describe as considerable delay. Should our recommendations be considered worthy of implementation, we would think it unrealistic to expect more than a commitment towards implementation "with all convenient speed".

The Martin Committee's recommendation has been accepted in principle by the Government and the Minister will set up a steering committee for the introduction of audio and audio-visual recording of Garda questioning suspects on a pilot basis in selected Garda stations. The steering committee is chaired by a Circuit Court judge, Mr. Esmond Smyth. The Garda Síochána, the Attorney General, the Director of Public Prosecutions, the Bar Council, the Incorporated Law Society and the Department of Justice are represented on it. The steering committee held its first meeting in April and has met regularly since then. It will make recommendations to the Minister on the location of the pilot schemes, the type of equipment to be used, the essential modifications to interview rooms, the Garda training required, a code of practice, a possible need to amend the Judges' Rules and the special arrangements adverted to by the Martin Committee which will be needed when questioning relates to terrorism or organised crime. I understand that the steering committee is dealing actively with these matters and has also seen first hand the experience of electronic recording in England and Scotland. When the Minister has received the steering committee's recommendations and agreed the features of the pilot scheme, the committee will arrange for the stringent monitoring and assessment of pilot schemes over a period of time. The steering committee will also submit for the Minister's consideration a report on the outcome of such assessment.

Deputy Mitchell referred to miscarriages of justice in the District Court. The Minister explained that it would not be practical for summary convictions to be referred to the Court of Criminal Appeal. The District Court is not a court of record. Such cases can be dealt with under the pardon provisions of the Bill, i.e. section 7.

Deputy Mitchell also referred to the definition of new or newly discovered fact. The suggestion made by the Deputy is one which the Minister intends to consider between now and Committee Stage.

Deputy Mitchell was concerned about the compensation provisions. The Minister fully appreciates the point he made on recovering compensation from persons who cause miscarriages of justice. However, the practicality of what the Deputy proposes would have to be looked at.

Deputy Mitchell also wanted to know whether judges were consulted about section 10. The Bill was discussed with a wide range of legal persons and their views have been taken into account in preparing the Bill. Deputies Mitchell and McDowell did not seem to want persons to be able to refer again to the Court of Criminal Appeal but the only way a conviction can be set aside is on appeal to a court of law. The Minister is providing for a committee which can investigate complex cases which cannot go back to court. This is a more acceptable way of dealing with alleged miscarriages of justice. Where the new evidence is inadmissible a committee will be established but, as it will not be a court of law, it cannot set aside convictions. That is why we are providing, in effect, a dual procedure — access to the courts where appropriate or access to a committee where that is appropriate. Where the courts cannot deal with a case the alternative of access to a committee is being provided. With all due respect to the Deputies, we are providing the best of both worlds.

Deputy Michael McDowell referred to cases in the 1940s mentioned by the Martin Committee. I will not refer to any particular cases. However, I repeat that a pardon does not automatically set aside a conviction. Deputy McDowell assumes that people would prefer to go through the committee system rather than having their conviction set aside. I have to question that assumption. It is certainly not true in every case.

Deputy McDowell was concerned that the provisions of this Bill would bring the criminal justice system into disrepute. The provisions of the Bill clearly indicate confidence in our judicial system. With respect to Deputy McDowell, it seems that it is he who does not have that confidence.

Deputy McDowell referred to hearsay evidence. In such cases referral to the court will, of course, be out of the question, because the court is not entitled to listen to hearsay evidence. Under the provisions of the Bill, where a new fact is based on hearsay evidence, the alternative procedure of a petition to the Minister for an inquiry or a committee would be clearly appropriate. It is not correct for Deputy McDowell to imply that the Bill does not provide for such circumstances. He referred to damage to the integrity of the jury system. We were very careful not to do anything that would in any way undermine the jury system. The new facts the Court of Criminal Appeal would hear would not have been before the jury system — that is the whole point of the procedure. The basis for the referral to the Court of Criminal Appeal is only where a new or newly discovered fact is being considered.

Deputy Michael McDowell referred to a person having to show beyond reasonable doubt that there has been a miscarriage of justice to qualify for compensation and Deputy Derek McDowell expressed some reservations about the compensation provisions. The Minister will bear in mind what Deputies said when preparing Committee Stage.

Deputy Gilmore was concerned about cases where persons cannot get back to the Court of Criminal Appeal. At the risk of repeating myself, such cases will be dealt with by the alternative system provided in the Bill and that includes the committee which will have the same powers as the inquiry body recommended by the Martin Committee.

Deputy Martin referred to the powers given to the registrar of the Court of Criminal Appeal under section 5. The registrar is the person involved in administration. However, jurisdiction of the court under section 5 will be exercised by a judge of that court and his decision can be appealed to the full Court of Criminal Appeal.

Deputy Boylan was concerned that there might be frivolous appeals. As I already said, no matter what system is put in place, there will be frivolous applications and the Bill provides clear procedures for dealing with them, whether they are made to the court or the Minister.

Deputy Derek McDowell asked why the Minister was not taking the opportunity to provide for major changes to our criminal justice system, such as giving the courts inquisitorial functions, etc. The Bill is specific in its objectives and I am satisfied that it meets them. Other changes to our legal system would have to be considered only after very careful debate. A country would be very foolish to precipitately change its long established and proven legal procedures unless there was certainty about what was to replace them and it certainly would not be appropriate to replace them piecemeal. The procedures in other countries are sometimes held up as being better than ours, the result of the belief that the grass is greener elsewhere.

That is the sort of thinking that says Dublin can never host the Olympics. Not everybody shares that view, thankfully.

I am aware there is a view in the Treasury in Australia that they were very unlucky to get the Olympics because of the costs.

I am sure the Minister will have read the Price Waterhouse report which sets out the facts.

I do not have as much time nowadays to read reports as I had in the past. We should not lose sight of the fact that in looking at other systems we are looking at the legal traditions of those countries. Their systems may be as unsuitable to us as ours is to them. I am also aware that other countries sometimes look to our system for inspiration. From their point of view the grass is greener over here.

We have had a relatively short but nevertheless important debate. I want to thank Deputies on all sides for their contributions. Everything they have said will be borne in mind and if constructive proposals, underpinned by persuasive arguments, are put forward on Committee Stage I am sure the Minister will be very open in her response.

Question put ans agreed to.

When is it proposed to take Committee Stage?

On Tuesday, 12 October 1993, subject to the agreement of the Whips.

Committee Stage ordered for Tuesday, 12 October 1992.

Is it intended that this Bill will go before the Select Committee on Legislation and Security?

Sitting suspended at 1.20 p.m. and resumed at 2.30 p.m.
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