We very much welcome the joint committee's decision to hold hearings on these issues. It means that issues of crime and criminal justice can be discussed in a more measured and reflective way than some of the recent discussions on the topic. We very much agreed with the Minister for Justice, Equality and Law Reform when he said recently in the Dáil that it would be disproportionate because of difficulties in one particular case to suggest that the criminal justice system had collapsed and that its constitutional and legal basis had been discredited.
As our president, Dr. Manning, said, our role in a discussion like this is to put forward and defend the fundamental rights established over the years by the Constitution and the international human rights treaties to which we are a party. It is from that standpoint that we approach some of the proposals that have been made recently about dealing with crime and that are reflected in the points in the committee's letter of invitation. Part of our function is to comment generally on administrative or operational aspects of the criminal justice system.
We should also preface our remarks by saying that we agree with comments that were made by the report of the National Crime Forum, set up by the previous Government, which stated:
What is undeniable, however, is that the socio-economic conditions of a given community are one factor which can encourage offending behaviour and that those conditions are the proper responsibility of society as a whole, not of the offending member.
We believe that poverty and disadvantage provide a fertile breeding ground for crime and that law enforcement measures alone cannot eradicate crime without strategies and commitments to put an end to the social conditions in which it thrives. In addition, we point out that there is a clear link between the failure, contrary to our European Convention obligations, to provide adequate supports, including residential care for troubled and disturbed young people, and their subsequent involvement in crime. That came across fairly clearly on the television programme last night.
Turning to some of the specific points raised in the committee's letter of invitation, the first point refers to ways of dealing with witness intimidation. Witness intimidation is not a phenomenon unique either to Ireland or to recent proceedings which have caused a lot of controversy. There is a whole variety of means which are fully compatible with our common law system and our international human rights obligations for protecting both witnesses and the rights of the accused when the question of intimidation arises. They include providing full protection for persons giving evidence, both within and outside the boundaries of the courtroom proceedings. They could include limiting the access of the entire public to witness evidence, although that raises other issues of justice being administered in public - it is probably one of the measures we would least like to see used - and giving adequate witness support to vulnerable witnesses.
There have been specific suggestions that we should follow a decision of the Canadian Supreme Court, in the Queen v. K.G.B., which held that where a witness - usually a prosecution witness - who has made an earlier statement withdraws that statement in court, the original statement could then be used in evidence. The current legal position here is that that can not be done. Such a prior inconsistent statement, as it is called, can be used to test the witness's credibility but it can not be used as evidence in its own right. It has to be said that sometimes putting the original statement to the witness vigorously in cross-examination can lead to the witness going back to, and re-affirming, that original statement, even if he or she had previously withdrawn it. That happened recently in a case in the Special Criminal Court, which is concluded so it is all right to refer to it.
There have traditionally been serious concerns in the common law system about relying on prior statements that have been repudiated in subsequent live evidence in the court. Such prior statements are often made in police stations without the benefit of a lawyer being present, and it must be remembered that there is still no right in this country to have a lawyer present during questioning. They are often made by frightened, vulnerable or highly suggestible people and there have been many examples, both here and in the UK, of people wrongly confessing to crimes - one thinks only of the Dean Lyons case, for instance - and it is equally likely that people make incorrect or misleading statements of evidence.
We believe that the due process rights of accused persons, as protected by Article 6 of the European Convention, may be impaired by putting in place a system of statement admissibility which, taken together with the lack of access to a lawyer by the people making the statement, fails to fully protect the accused in the criminal justice system. It also should be borne in mind that sometimes statements are made incriminating other people by persons who want to minimise their own involvement in an incident. So there can be a lot of reasons why the original statement made, rather than the subsequent withdrawal, was flawed. The witnesses who make these prior statements are not under oath at the time they make them and are not subject to cross-examination, which can show up flaws and contradictions in a witnesss statement. In addition, the jury, which is the trier of fact eventually, cannot see the demeanour and behaviour of a witness when he or she is making this sort of preliminary statement. In a bid to meet these types of concerns, the Canadian courts have laid down a number of preconditions for such previous statements being made admissible: the witness should be warned of the consequences of making the statement before he or she has made it; and the statement should be made under oath and should be videotaped.
However, all that is quite cumbersome and difficult. In our own law, we already have a system whereby, if there is concern that a witness may not maintain his or her evidence in court, the witness can be asked to swear a deposition prior to the trial, and that deposition has the advantage of being subject to live cross-examination by defence counsel, etc., which is absolutely crucial to testing evidence.
So we have existing safeguards within our law. We have actually a new provision in the 1999 Act for the admissibility of depositions in a trial and we suggest that our existing law should be tested to the ultimate before making such a radical change as suggested in the Canadian system. Certainly if any such change is made, we would suggest that such statements would have to be videotaped and a lawyer would have to be present while they are made - as should really be the case in all interrogations.
The third point of the committee's letter also raises the question of using videotaped statements. That raises some the points that I have already mentioned, that is, it means that the trier of fact, the jury, does not have available to it the live cross-examination, which is so crucial in a criminal system and which is defended by the European Court of Human Rights. Again, that should be used very sparingly because it is not at all ideal. It should be used, we would suggest, only by consent by both parties or where there is some really exceptional reason, such as where a person is gravely ill and cannot attend in court.
The fourth point raises the question of jury trial and impact on jury trial. There have been suggestions that gangland type cases should be tried in the Special Criminal Court or that some other form of non-jury court should be used for such trials. The UN human rights committee has already found that Ireland is in breach of its international human rights obligations, in a case called Kavanagh v. Ireland, for sending a non-paramilitary case for trial before the Special Criminal Court without giving adequate reasons for doing so. To do more of this without clear and adequate reasons would just mean more breaches of the international obligations of the State.
In addition to that, jury trial is laid down in the Constitution. It is a cornerstone of our criminal justice system. If there is a significant problem of jury intimidation - that has not been proved because the big case that raised this, a trial from Limerick, is now proceeding in front of a jury - there are many measures which could be taken to protect juries short of abolishing jury trial. Juries could be transported to the court from a distance so that they could not be followed. Juries could, if necessary, be sworn in anonymously. In most extreme cases, juries could even be shielded from the public sitting in court and could be seen only by the legal teams, etc. All these measures should be taken before there is any question of trying to withdraw the fundamental right of a jury trial.
The point on resources for policing, etc., would not be our function but we would take the opportunity to reiterate our belief that it is very important that a Garda ombudsman be put in place as soon as possible in order to generate more confidence by disadvantaged and alienated communities in the Garda Síochána so that they have more trust in, and more willingness to co-operate in the fullest possible way with, the gardaí.
There have been suggestions of creating a new offence of membership of a criminal gang and also of using a chief superintendent's opinion in evidence, as in the IRA and other paramilitary cases in the Special Criminal Court. We would urge the greatest caution about that. There is a world of difference between a criminal gang and an organisation like the IRA, which is named in the legislation, which has a clear structure, whose members are sworn in and which is a sort of coherent organisation.
The concept of a criminal gang is incredibly loose. How would one define a criminal gang? Does it extend from major drug dealers down to robbers who organise to steal handbags in stores in town? It is virtually impossible to define. We think it is not really effective.
On the chief superintendent's opinion, there are serious questions already about the admissibility of that under the European human rights legislation. To use that in regard to something as amorphous and vague as a criminal gang would be stretching the criminal law to a point where it infringes on the rights of the accused. We said at the beginning that the question of social and economic rights is also important to the question of the debate on crime. My colleague, Nuala Kelly, will deal with that area.