I welcome Mr. Caomhín Ó hUiginn and Ms Valerie Fallon. Members of the committee may ask Mr. Ó hUiginn questions on aspects of the criminal justice system. I ask the assistant secretary to tell us his background and responsibilities and how he can assist us in dealing with this matter.
Criminal Justice System: Presentation.
Mr. Caomhín Ó hUiginn
I work in the criminal law reform division of the Department of Justice, Equality and Law Reform. Earlier the Minister mentioned that he is preparing a note for the committee on some aspects of criminal law that he considers may be relevant and helpful when it examines the criminal justice system in the context of recent developments. His note shall deal with a number of issues. In the time available I propose to go through some of the points that he will bring to the committee's attention. The five areas are as follows: substantive criminal law, powers of investigation, unco-operative witnesses, the protection of witnesses and witness evidence, the protection of jurors and the prosecution's right of appeal.
An extensive body of criminal law already exists and a substantial proportion of it has been updated in recent years. Updated laws include legislation dealing with fraud, including computer fraud, theft, offences against the person, drug trafficking, trafficking in people, sexual offences and money laundering offences. They provide for substantial penalties for the offences concerned. However, the Minister is always open to suggestions to change the law to deal with particular crime problems.
The Minister, in his note, shall deal with some of the issues and difficulties relating to the possible offence of membership of a criminal gang. For present purposes I draw the committee's attention to international developments for the definition of participation in organised crime. The European Union, in a joint action on participation in a criminal organisation, and the UN, in the convention on transnational organised crime, has attempted similar definitions. In general, the international instance provides that parties to the instruments should deal with organised crime in their legislation either by making it an offence for a person to agree with others to carry out certain serious crimes - that would be equivalent to our offence of conspiracy - or by making it an offence to actively take part in the activities of a criminal organisation, or in its other activities, with the intent or knowledge of either the aim or general criminal activity of the group.
At present the Minister is examining the definitions contained in the EU and UN instruments with a view to bringing forward whatever legislation is necessary to give effect to them. I can make the text of the relevant instruments available to the committee to facilitate its study of the matter.
The secretariat will circulate them.
Mr. Ó hUiginn
The Minister will go into more detail in his paper about a number of specific proposals he has for legislative change on conspiracy and the possession of documents or other articles with criminal intent in the context of tackling criminal gangs.
I shall now deal with the investigation of crime. I know that the committee is already examining the published scheme of the Criminal Justice Bill and that it has been briefed by the Minister on its provisions. Therefore, I will describe it in detail. The Bill shall provide for increased powers of detention for an arrestable offence that is punishable by five years imprisonment or more. The detention period will be increased from a maximum of 12 hours to a maximum of 24 hours.
An amendment to the definition of an arrestable offence will include common law offences punishable by five years imprisonment or more. This includes conspiracy. A general power shall be given to the District Court to issue a search warrant in respect of arrestable offences and also to provide that, in exceptional circumstances of urgency, a senior member of the Garda, not below the rank of superintendent, will be empowered to issue a warrant that expires after 24 hours; to reclassify saliva from an intimate to a non-intimate sample; to classify a mouth swab as a non-intimate sample; to clarify that hair samples, other than pubic hair, can include hair roots and to provide that the period for which samples may be retained before being destroyed will be increased from six months to 12 months.
On the issue of a DNA databank, the Minister believes that we need to make as extensive use as is possible of the DNA profiling technique having regard to the constraints of the Constitution and of the European Convention on Human Rights. He awaits the report of the Law Reform Commission on the matter before bringing forward his proposals.
I shall now deal with the issue of uncooperative witnesses. They can, depending on the circumstances, be prosecuted for perjury, contempt of court, an offence under section 7 of the Criminal Law Act 1997 or an offence under section 9 of the Offences Against the State (Amendment) Act 1998. The first two offences are common law but the latter two are recent provisions. Section 7 of the 1997 Act created an offence of impeding the apprehension or prosecution of a person who has committed an arrestable offence. The sentence for the offence is related to the substantive offence, the investigation or prosecution of which is being impeded. The maximum penalty ranges from three to ten years.
Section 9 of the Offences Against the State (Amendment) Act 1998 provides for the offence of withholding information that could prevent the commission of a serious offence or secure the apprehension, prosecution or conviction of a person for a serious offence. It is punishable by imprisonment for up to five years.
I wish to deal with the protection of witnesses, witness evidence and the protection of jurors. There are provisions in the Criminal Justice Act 1999 aimed at facilitating the participation in criminal proceedings of witnesses who may be in fear or subject to intimidation. Section 9 of the Act provides for the taking of sworn depositions by a District Court judge where he or she is satisfied that it would be in the interests of justice to do so. Either the prosecution or the defence can make such an application. These depositions may be admitted in evidence in certain circumstances. One circumstance is where the deponent does not give evidence at the trial through fear or intimidation. The deposition is taken in the presence of the judge and the witness may be cross-examined and re-examined on behalf of the accused.
Section 39 of the Act permits any person in criminal proceedings on indictment other than the accused, who is in fear or subject to intimidation, to give evidence through a live television link, with the leave of the court. This also applies in the case of the sworn deposition procedure that I have just outlined. Section 40 makes it an offence for any person, without lawful authority, to try to identify or disclose information about the whereabouts or new identity of a witness who has been relocated under a Garda witness protection programme.
Section 41 of the 1999 Act also creates a statutory offence for a person to harm or threaten, menace or in any other way intimidate or put in fear another person who is assisting in the investigation by the Garda Síochána of an offence, or is a witness or potential witness or a juror or potential juror in proceedings for an offence, or a member of his or her family, with the intention thereby of causing the investigation or the course of justice to be obstructed, perverted or interfered with. A person found guilty of an offence under the section shall be liable, on summary conviction, to a fine not exceeding €1,500 and/or imprisonment for a term not exceeding 12 months, or, if found guilty on indictment, to a fine and/or imprisonment for a term not exceeding ten years.
The issue of providing protection for jury members in addition to the provisions just mentioned during trial proceedings, by way of provision for their anonymity, also arises. The Juries Act 1976 makes provision for matters relating to juries, including provisions relating to qualification and liability for service as a juror, and the selection and service of jurors. The prosecution and the defence are given the opportunity to challenge members of the jury prior to such members being sworn in whether on cause shown or without cause.
There are obvious difficulties if anonymity is to be given to jury members as it could serve to limit the right of the defence to challenge, with or without cause, members of the jury. For example, in the UK a judge, in exceptional circumstances, may order that the names of the jurors be withheld and that they be balloted by number. The defence is entitled to inspect the panel from which the jury is drawn, as is the case here. The problem is likely to be more acute in cases where the court is sitting in regional areas where there is the increased likelihood that the members of the jury may be known to the accused. It is possible under our law to have cases transferred from regional areas to Dublin. It happened recently when it proved difficult to empanel a jury. Section 32 of the Court and Court Officers Act 1995 makes provision for the transfer of trials in criminal cases by Circuit Court judges. Where a person has been sent for trial to the Circuit Court sitting outside the Dublin circuit, the judge may, on the application of the prosecutor or the accused, transfer the trial to the Circuit Court sitting in the Dublin circuit if satisfied that it would be manifestly unjust not to do so.
The issue of admissibility of prior witness statements will be central to the committee's examination. It is what use a court can make of a prior witness statement when the witness subsequently refuses to testify at trial or recants on the statement previously made.
In Irish courts a previous statement made to gardaí cannot be admitted in evidence as proof of any fact contained in it. The fact that a witness may have previously said something different can be used to attack the credibility of the witness but the assertions in the earlier statement cannot constitute proof of those assertions. The basis of this approach is that the Constitution guarantees the right to a trial in due process. However, due process requires that the defence has a right to be presented with evidence in court by a witness who can be cross-examined and whose demeanour and credibility can be assessed by the court. The requirement that the defence must, at some stage during the proceedings, have the right to challenge and question a witness is echoed in the rulings of the European Court of Human Rights on the rights that derive from the Convention on Human Rights.
Aspects of the rule have been relaxed. For example, statements by witnesses who have died or, as I mentioned, by the admission as evidence at a trial of sworn depositions where the witness does not give evidence through fear or intimidation.
Other jurisdictions have gone further. The UK has provided in its Criminal Justice Act 1988 that a statement by a witness to a police officer can be admitted in evidence as proof of its contents if the person who made the statement does not give oral evidence at trial through fear. Other jurisdictions have also taken a flexible approach to the admission of statements made out of court. Such provisions may not meet our constitutional requirements for due process. The Minister is interested in the approach of the Canadian Supreme Court that allows for the admission of prior statements, subject to certain safeguards to protect against the dangers that the traditional hearsay rule seeks to guard against.
The Supreme Court of Canada said in its judgment in the case of R v. KGB that a prior statement can be admitted if it would otherwise be admissible as the witness’s oral evidence and if the judge is satisfied that indicia of reliability are present and genuine. The indicia are as follows: that a warning must have been given to the witness of the necessity to tell the truth and of the consequence of not doing so; that the statement was made on oath or solemn affirmation; and that it was video recorded or that other substitute indicia are established.
The judge must also be satisfied that the statement was made voluntarily and that there are no other factors that would tend to bring the administration of justice into disrepute. In coming to this conclusion the court was careful to ensure, in particular, that the witness could be subject to contemporaneous cross-examination from the defence and that the jury would have the opportunity to examine, not just the words of the witness, but also his or her demeanour. The court was satisfied that these concerns could be adequately dealt with by the witness being available for cross-examination in court on the previous statement and that a video recording of the original statement may be available. The Minister has already announced that he has initiated a study of the Canadian approach and will deal with it in his paper.
The Minister will also deal with prosecution appeals. While there are broad defence rights of appeal in Irish law there exists only a very limited prosecution right of appeal.
In May 2002 the Law Reform Commission issued a consultation paper on the subject. It stated that it strongly believes that Irish law should move from a near token system of prosecution appeals to one in which prosecution appeals would represent a real and substantial element in the criminal process. It further sets out five possible options for reform ranging from a narrow without prejudice model to a comprehensive with prejudice model. It will issue a report making its final recommendations in due course.
In the meantime the DPP has raised the need to extend the provisions of the 1967 Act to make it possible for him to appeal, without prejudice, a decision of a court on a point of law even if the point does not arise from a judge-directed acquittal. The criminal justice Bill contains a number of prosecution appeal provisions that incorporate the specific proposal made by the DPP.
The provisions come within the narrow without prejudice model provisionally recommended by the Law Reform Commission. The Minister will consider whether, and to what extent, we can go further in the area of prosecution appeals. As soon as the commission's final report is available he will examine it with a view to ascertaining what, if any, further legislative provisions are required.
I thank Mr. Ó hUiginn for his informative and useful contribution.
The following statement seems to adopt a wide approach:
The UK has provided . . . that a statement by a witness to a police officer can be admitted in evidence as proof of its contents if the person who made the statement does not give oral evidence at trial through fear.
Can the same approach be adopted in Ireland?
Mr. Ó hUiginn
The essential issue in Ireland is the constitutional provisions on due process. For example, the case re Haughey established that an accused must be in a position to confront the accuser, or any witness giving evidence against them, and cross-examine them on their statement. The issue also arose in the context of the Canadian decision. The statement would have been video recorded initially but in court a person could be confronted.
Could the witness's demeanour, etc. be taken into account?
Mr. Ó hUiginn
Yes, and they could be questioned.
Does the witness not have to be present in the UK system, even though a person recants their claims? Juries can impute certain things from demeanour, etc.
Mr. Ó hUiginn
In England if a witness is not present because of fear their statement is admitted in court.
Will the Minister present us with this type of document?
Mr. Ó hUiginn
He will expand on some of these issues. I tried to present the committee with the factual situation regarding the current provisions in law that protects witnesses and jurors.
That is part of it. The assistant secretary mentioned new issues such as creating the offence of being a member of a criminal gang. He also touched on issues on which the Minister shall make proposals.
Mr. Ó hUiginn
The Minister will go into more detail about the difficulties pertaining to the latter issue.
Substantial powers of protection for witnesses already exist. If a witness is not prepared, through fear or intimidation, to give a testimony a deposition can be taken and presented in court.
Mr. Ó hUiginn
Yes. Even at that stage a deposition can be made through video link. There are two choices for giving depositions. First, a witness may be present in court, give evidence and be cross-examined or use a video link in another room. In that situation the witness would be available for cross-examination on behalf of the accused.
Is that if the judge allows it?
Mr. Ó hUiginn
The judge must allow it.
The prosecution can also request it?
Mr. Ó hUiginn
Yes.
For example, in the case that gave rise to all of these meetings, many witnesses were not prepared to proceed and recanted their testimony. Would the prosecution not have known that prior to the witnesses appearing in court? Why did the prosecution not seek to get a deposition instead if it already knew the outcome resulted from fear? Is this just a provision that it not used in practice?
Mr. Ó hUiginn
No, it does happen because it was discussed in another context in the Fennelly report. That report discussed whether the deposition should be taken in the District Court or the court of trial. The fact that the matter was discussed in the Fennelly report, by reference to depositions that had already occurred, suggests that it is used by the prosecution. I cannot answer the Deputy's question on whether it was considered for a particular case or why it was not done. The committee shall meet the DPP.
He may not talk about the issue.
Mr. Ó hUiginn
I presume that he will not talk about the case. However, he may talk about the general issue of when they might consider doing it.
The UK and Canada were given as examples. Are other jurisdictions being looked at? Will we be able to draw on information from other countries?
Ms Valerie Fallon
Yes, we are looking at other jurisdictions. We looked at Canada because the Minister was particularly interested in the provision and it seemed to address the issue of giving the defence an opportunity to cross-examine witnesses. There are provisions in other jurisdictions but we have not been able to look at them in the time available. We will try to do so as part of a study of what is possible.
Mr. Ó hUiginn
Canada does not have a legislative provision but it is a development of common law and is a reversal of a traditional view of the hearsay rule. The Canadian case was also mentioned in a recent case before the Court of Criminal Appeal. As it was not related to a point at issue in the trial the Judiciary expressed no view as to whether it would be acceptable. I can let the committee have a copy of the case. The courts are aware of it.
If you would, please.
The British provision of giving a statement to a police officer has constitutional problems. Do they relate to questioning in the same circumstances? Are statements videotaped in Britain? Is the Minister thinking about the Canadian proposal and will he shift the hearsay rule from common law to statute here?
Mr. Ó hUiginn
I shall answer the last question first. The Minister cannot direct the courts on how to deal with the hearsay rule. The only way he could introduce the provision is through legislation.
The Deputy asked whether the British have an equivalent provision to what is contained in the 1999 Act. I do not know the answer. We will do some research and we will forward it to the committee.
Why is one provision questionable constitutionally?
Mr. Ó hUiginn
It is a question of being able to cross-examine a witness on their statement. We attempted to set down the current extensive provisions. The one area that is not covered in law is the Canadian situation. The committee shall probably return to the issue later.
We have had a very useful debate.
The joint committee adjourned at 11.40 a.m. until 9.30 a.m. on Friday, 28 November 2003.