JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS díospóireacht -
Thursday, 13 Nov 2008

Justice for Victims Initiative: Discussion with Irish Council for Civil Liberties.

Vice Chairman

There will now be a presentation by the Irish Council for Civil Liberties on the justice for victims initiative. I welcome Mr. Mark Kelly, director, Irish Council for Civil Liberties, and Ms Deirdre Duffy, research and policy officer, Irish Council for Civil Liberties. The meeting will commence with a presentation which will be followed by a question and answer session. All mobile telephones should be switched off.

I draw everybody's attention to the fact that members of this committee have absolute privilege, but this privilege does not apply to witnesses appearing before the committee. The committee cannot guarantee any level of privilege to witnesses appearing before it. Furthermore, under the salient rulings of the chair, members should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

I invite Mr. Kelly to make his presentation.

Mr. Mark Kelly

I thank the committee for giving us the opportunity to appear before it. Many members will be aware of the Irish Council for Civil Liberties. It is the oldest independent human rights group in the State, having been in existence for about 32 years. The council does not seek, and has never accepted, State funding for any of its core activities. It strives to be an apolitical and genuinely independent voice for the promotion and protection of human rights in Ireland.

My colleague, Ms Deirdre Duffy, is our research and policy officer and is also the author of the two reports before the committee today as background documents, Taking Liberties and A Better Deal: The Human Rights of Victims in the Criminal Justice System. Our presentation today is in two parts and is relatively brief. One focuses on the Taking Liberties document while the other focuses on A Better Deal: The Human Rights of Victims in the Criminal Justice System and its implications for the future protection of the human rights of victims. We particularly sought to appear before the committee today because of our concern, already made clear to certain members of the committee in other capacities, about the recent announcement of a new justice for victims initiative.

I wish to make it clear, particularly in the current climate, that the concern of the Irish Council for Civil Liberties for victims is deep and long standing. In the aftermath of the recent tragic events in Limerick, we fully recognise the need for effective action to ensure that people who are the victims of crime, serious and less serious, have their rights effectively protected. However, on the announcement of the justice for victims initiative the Irish Council for Civil Liberties was immediately concerned that, in so far as we are able to glean anything of the detail, and little detail is yet in the public domain, the Minister's proposals appear to be mainly based on the Hogan report. This is the report of the balance in the criminal law review group which was commissioned by the former Minister for Justice, Equality and Law Reform, Mr. Michael McDowell. The proposals remained in abeyance for a period of time and now appear to have been reactivated.

We have four main areas of concern about the proposals in the Hogan report from a human rights stand point. We have produced a short two-page summary of the main report for the committee for the purposes of the discussion today to highlight those points clearly. Changes have already been made in our law on the right to silence. It is now the case that inferences can be drawn from the silence of a suspect, yet that reform process has not been completed because there has, as yet, been no change in the caution given to people in Garda custody. They are not at present properly informed about the consequences of remaining silent if they choose to do so nor are their legal representatives, who cannot be present during Garda questioning, in a position to properly advise them.

The second proposal we highlight is the issue of character evidence. At present, it is not possible in the ordinary course of criminal proceedings for previous convictions of an accused person to be referred to before sentence is pronounced for the good and straightforward reason that doing so would expose the accused to the risk of being labelled as a criminal rather than maintaining an exclusive focus on the specific facts of the case. However, as far as the ICCL is concerned, the danger from a victim's perspective is that a situation could arise whereby the result of a trial is a conviction of a person who may be a criminal but did not commit the specific crime with which he or she was charged and, as a result, the guilty party is still walking the streets. That is hardly conducive to protecting the rights of the victims of crime.

I wish to refer briefly to a further two Hogan group proposals which once again appear to have become subjects of political debate and speculation. The exclusionary rule, which is often described by lawyers as the doctrine of the fruit of the poison tree, prohibits evidence gathered in a way that is unconstitutional or any further information gathered as a result of that initial constitutional impropriety from being used in court. This is an important protection because it provides a positive incentive for gardaí to do their job properly and keep within the defined terms of warrants. The Hogan group report was remarkable in that a majority recommended a relaxation of this rule, whereas the chairman, Gerald Hogan, dissented lucidly on the grounds I have outlined to the committee.

The proposal on new forms of appeals is superficially attractive in that the DPP will be able to bring with prejudice appeals of not guilty verdicts or fresh evidence appeals. In essence, however, these changes would amount to removing the final say from juries, a historical constitutional protection which we think is so fundamental to the Irish justice system that it would not be in the interest of justice to change it.

Most important, none of the measures which I have outlined are capable of impacting positively on the rights of victims of crime, and no lucid case has been made to suggest otherwise. On the contrary, as the companion volume report we are presenting today, A Better Deal, shows, our detailed consultations with 16 victims' rights groups suggest they have no interest in proposals of this sort. They simply want their human rights to be properly and fully protected. We do not come before this committee to carp and complain nor to speculate on the minutiae of proposals which we have not yet seen in detail. Rather, we offer a constructive alternative in the form of the ICCL's charter of rights for victims of crime. With the Chairman's indulgence, I ask the author of the report, Ms Deirdre Duffy, to address its contents and chart for the committee what we see as a positive alternative where the rights of victims of crime are concerned.

Ms Deirdre Duffy

In an effort to keep my comments brief, I will outline the background to the report and then focus on two or three of the rights addressed therein. The report addresses six different human rights for crime victims, namely, information, privacy, participation, protection, remedy and recognition. We assessed these rights against four international standards, the UN declaration of basic principles, an EU framework decision from 2001 on the standing of victims in criminal proceedings, a recommendation of the committee of Ministers of the Council of Europe and the European Convention on Human Rights, which has been incorporated into Irish law by the European Convention on Human Rights Act 2003.

Our research was greatly assisted by an evaluation report issued by the European Commission in 2004 on member state compliance with the EU framework decision. As members will be aware, states have discretion in how they implement framework decisions. This report was instrumental in assessing how Ireland complied with the decision's provisions.

We tried to focus from the bottom up by consulting 16 victim organisations, a few of which were unable to respond to us. We also consulted statutory agencies such as the Garda Síochána and the Office of the Director of Public Prosecutions in order to hear from a broad spectrum of organisations. We identified the challenges and issues these organisations said they were facing and used these to assess how Ireland's performance measured up to international standards. We asked victims' organisations to provide feedback on the report and met them subsequently to discuss its findings. We continue to maintain ongoing contacts with these organisations.

I will now address the rights to information, privacy and protection from harm. As the latter two rights are interrelated, I will deal with them together. I chose these three because they are the rights most commonly mentioned by victims' support groups. There is no hierarchy of rights, however, and the remaining ones are just as important. All of the international standards to which I referred are clear on victims' rights to information. Article 4 of the European framework decision is comprehensive in this regard, setting out a variety of areas in which victims have a right to information. Ireland stated in its compliance report to the European Commission that the victims' charter and guide to the criminal justice system provided information to victims on their rights. However, this charter was published in 1999 and is now nearly ten years out of date, although I understand the commission for the support of victims of crime is reviewing it.

The European Commission identified two challenges with the focus on the victims' charter. First, it is aspirational rather than mandatory and there are no binding rights for victims. Support groups were clear in their desire for a binding charter of rights that could be enforceable. Second, it is not the answer to everything. The framework decision takes a holistic approach to protecting victims' rights and the reports states that no one measure will solve everything. Inventiveness is needed in terms of developing differing platforms for giving information to victims. Vulnerable people should be particularly targeted because it is not always easy for them to access information.

Provision of information is managed by two agencies in particular, the Garda and the DPP. The Garda has produced an up-to-date charter which outlines the information it gives to victims and it has been progressive in rolling out its family liaison officer scheme. I understand there are now 78 such officers. The only problem I would identify with this scheme is its application solely to victims who have been subjected to violent or serious crime. Victim support groups reported positive individual experiences with the DPP but found a lack of initiation on the part of the office in communicating with them. They wanted the DPP and the Garda to be more active in providing information to victims because when somebody has suffered a traumatic crime, he or she is not necessarily in a position to seek information.

Another issue that arose was the DPP's prosecution policy and the giving of reasons. The ICCL made a submission to the DPP on this when he conducted his consultation in March. In accordance with the European Convention on Human Rights the ICCL recommended that there should be a presumption in favour of the giving of reasons unless there are compelling reasons not to do so. Those reasons would be a threat to the presumption of innocence or the right to a good name.

The report made very practical recommendations on the right to information, such as dispersal of information and the Crime Victims Helpline, which is a national referral helpline. There are posters in most Garda stations about this but it would be very helpful if the information could get to a wider audience. Another recommendation was that various platforms of communication should be developed so that victims know their rights and that vulnerable groups should be targeted. Connected to that is knowledge of court procedures and complexes. One person described it to me as first day at the office syndrome. Victims going to court do not necessarily know where the toilet is or how to get a cup of coffee.

This is connected to the next two rights I will examine, namely, the right to privacy and protection from harm. Both these rights are protected under the international standards, particularly the European Convention on Human Rights which, under Article 8, places a positive obligation on the State to protect people's private lives. Article 8 of the European framework decision focuses on privacy and protection from harm together, showing how interrelated they are. For the sake of expediency I am willing to give more information on this if necessary. The practical measures that would arise from implementing Article 8 fully include separate and safe access to the court house, a separate and safe waiting room and the availability of screens when giving evidence.

There is a statutory right for under-17s to give evidence by video link and for adults to do so at the discretion of the judge. However our information from the victim support groups is that this does not always take place because the facilities are not there or they are in another courthouse and have to be brought across. These are real, practical measures. If a victim is intimidated or in fear of intimidation a Garda escort might be available to them or they could get a personal alarm. This demonstrates clearly that victims want very practical and readily achievable measures to protect their rights to safety and privacy.

Some interesting general themes came from the research. There is a clear understanding and appreciation among victims' groups that they do not want fair trial rights diminished. They do not want defendants' rights subjugated in any way for the victims' benefit. They were very clear that they want the rights of victims to privacy and an effective remedy. They are not interested in evidential rules. There was a very high level of recognition for individual gardaí and prosecutors but every non-statutory body I spoke to reported that it was not streamlined. This is one of the crucial issues. One might be very lucky and meet a fantastic garda or prosecutor, as I am sure the vast majority of them are, but if one is unlucky it changes the entire experience and one suffers from secondary victimisation whereby a victim of a crime becomes a victim again through the process. There needs to be some co-ordination of victim services to enforce these rights.

The report discovered that Ireland has yet to fulfil its international obligations, particularly under the European framework decision but also under the UN guidelines and the committee of Ministers' recommendation. On a positive note, the map is very clear and is readily available to us. There are many instruments out there that Ireland could use to put in place practices to protect the rights of victims.

Vice Chairman

I thank Ms Duffy for her contribution. I am obliged to absent myself from the meeting for approximately ten minutes. I propose that Deputy Connick take the Chair in my absence. Is that agreed? Agreed.

Acting Chairman (Deputy Seán Connick)

I thank Mr. Kelly and Ms Duffy for their presentations and I call Deputy Charles Flanagan.

Deputy Charles Flanagan

I, too, welcome the witnesses and thank them for their presentation and their interaction with us on legislation and our business. It is important that we have channels of communication open and that we meet regularly to discuss the important issues of the day. The briefing documentation we received was unsatisfactory. This is no reflection on the Chair or the hardworking clerks to the committee. We were furnished with a number of documents by the Minister for Justice, Equality and Law Reform by way of information and briefing. However this is a parliamentary committee involving members of all parties. It is extraordinary that we always receive ministerial or Government documentation. It underlines my belief that this and other committees have become puppets and tools of Government. That was not envisaged when the committee structure was established as a forum for Deputies. This type of propaganda we receive time and again dressed up as a briefing note for members tells us only what the Government is doing. It makes no reference to what this committee or anybody else might have done. It is no reflection on anybody associated with the committee, but I again ask whether this committee is independent of Government or under the thumb and heavy hand of the Minister for Justice, Equality and Law Reform at all times in terms of the flow of information and debate.

I very much welcome the witnesses' contributions, particularly on victims. We debated this matter in the plenary session of the Dáil earlier this year when Fine Gael introduced a comprehensive Victims' Rights Bill. It addressed many of the specific issues Ms Duffy mentioned. On behalf of my colleague, Deputy Shatter, and myself I thank the ICCL for its contribution to the debate we had leading up to the publication of the Bill. Its input, counsel and advice was important and was reflected in the completed document which, unfortunately, did not get much of a hearing. This was because the Government decided it was the only body from which primary legislation was to originate.

It is important the victim impact statement be extended and that the provision of information and assistance be mandatory rather than optional, preferable or at the discretion of a sitting judge. It would impose specific obligations on the Garda, Courts Service, Department of Health and Children, HSE and Department of Justice, Equality and Law Reform. That would involve considerable changes to the regime which, I regret, are not envisaged in any of the documentation or commitments the Minister furnished. The four concerns Ms Duffy outlined are valid in some respects. The victim must be given the protection of law or a role in the criminal justice system that it does not enjoy currently.

Ms Duffy mentioned giving evidence from behind screens and video link evidence. Although I agree with these, many of our courthouses do not have these facilities, including those on the Circuit Court. The problem is even more stark in Garda stations, as the provision for taping audio evidence — before video linking — is still not in some stations. That is important not only for the person from whom a transcript is being taken but also for the protection of gardaí. It is a record which protects a suspect or witness, as well as the gardaí, which is often forgotten.

Given the current state of organised crime, it is unsurprising that people refuse to participate in identity parades if their own identity is to be revealed before several people who may be the subject of an identity parade. These issues are important in the context of current debates on legislation.

I have some more specific points. Mr. Kelly stated his organisation was independent and did not receive much Government grant aid. Will the witness refer to the council's funding? The right to silence has been the source of some debate in recent days. The right was being abused and I continue to welcome the changes to it. I note the caution of the council in terms of the specific requirement on the part of the Garda to engage in the provision of an explanation. Coincidentally, the evening before this meeting, the Supreme Court considered for the first time the changes in the right to silence in the context of the 2006 Act, with particular reference to the assembly of evidence.

I would have thought that in all cases, although there is not a regulation signed off by the Minister, witnesses or suspects would be cautioned and warned that certain inferences would be drawn from remaining mute. I would be surprised if it was anything less. It would also be reasonable that if a person is to remain silent, the consequences of doing so when being questioned about a serious crime would be such that juries would be informed they could draw certain inferences from a failure to answer specific questions about movements at any particular time. There should be an explanation of the seriousness of remaining mute.

My final point relates to the recent DPP announcement, which I will not elaborate on. I understand this committee will have an opportunity to engage with the DPP on it. I indicate, without a tinge of cynicism, that it is in the autumn of the DPP's tenure that he came out with the initiative. This is regrettable if it was his belief and considered opinion and I would have liked to have heard from him earlier in the matter. I will pursue that with him. I welcome his announcement as it is important in the context of building up a body of rights for victims and improving the position in life of crime victims.

I will finish as I started, by welcoming members of the council and acknowledging their important role in the context of rights in debate. It is all the more important now as we see statutory rights bodies like the Irish Human Rights Commission and the Equality Authority suffering such savage cuts that they may not be in a position to operate. The importance of the ICCL may become even greater. I welcome the comment and contribution of its representatives.

Deputy Pat Rabbitte

I do not want to retrace the ground covered by Deputy Flanagan but I welcome Mr. Kelly and Ms Duffy to the meeting and acknowledge the very valuable work they do. I also acknowledge the extent to which they are available to Members of the Oireachtas and the quality of the work they do.

Although I have said I will not retrace what Deputy Flanagan has covered, I will deal with the point he made concerning the role of the ICCL now in the context of undermining the Irish Human Rights Commission and the virtual destruction of the Equality Authority. It is all the more important as a result. In this morning's Irish Independent there is an unbelievable claim by the Minister for Justice, Equality and Law Reform that the reason he has engaged in the destruction of the Equality Authority and constrained the functioning of the Irish Human Rights Commission is that he wanted to divert resources to the front line battle against crime.

It is very difficult to stomach this given that the decision goes back to last year. Earlier this year the Government published its intention to merge the two bodies, although one would be in Roscrea. Last September the entire board was removed and a new one put in place. When the merger fell apart, a 43% reduction on finance was imposed on the Equality Authority. This is not a cut, and taken together with the bi-location in Roscrea, it amounts essentially to the destruction of the Equality Authority as we have known it and the undermining of its core competencies.

For the Minister to discover, after the terrible events in Limerick, that the reason he did this was to divert moneys to the fight against crime beggars belief. Apart from this, no money worth talking about is being saved because the staff concerned must be assimilated elsewhere in the public service. I agree with Deputy Flanagan in that the role of the ICCL is all the more important in that context.

I will confine myself to a couple of questions. Will Mr. Kelly or his colleague elaborate on the view they have given about the DPP's public pronouncement in respect of offering explanations in certain cases for his decisions? The DPP is due to come before the committee shortly and I am interested in the ICCL view of what is a difficult, complex and far-reaching decision. Has the council a view on the question of the admissibility of evidence garnered through electronic surveillance? Is the council of the view that provided there are adequate safeguards, such evidence could play a positive role in preventing a crime in the first place and, second, in prosecuting crime? Does the council acknowledge that the nature of crime in Ireland has changed and therefore more modern techniques need to be utilised to combat serious crime in particular? This can be a difficult question in terms of the balance between the rights of victims and human rights and civil liberties generally.

Deputy Dinny McGinley took the Chair.

Mr. Mark Kelly

I thank the Deputies for their positive remarks and appreciation of our work. They are both absolutely right to place the issue of the ICCL's independence and continued existence in the context of the savage cuts that are being proposed to the Equality Authority and the Irish Human Rights Commission. To respond to the question about funding, the ICCL is a membership organisation which has been around for 32 years — it was set up by Mary Robinson and others in 1976 — and we are funded from a mix of private money and members' contributions. Members contribute to us annually and we attract funding from trusts and foundations because we go to them with proposals to do work that they think of value.

We are also, increasingly, reaching out to different types of fundraising. For example, last night we hosted a dinner for legal practitioners at which we invited them to donate to our work if they see it as being of value and assistance to them. Additional donations, of course, are always welcome. I add, however, that a strong, independently funded ICCL is absolutely no substitute for effective statutory bodies in the area of human rights and equality and there is no way an independent non-governmental organisation of our sort can, should or ever would seek to replace the statutory functions of those agencies which, at present, we understand are not viable. I thank the Deputies for raising what is for us also a very serious concern about damage to our human rights and equality infrastructure.

On the more specific points that were raised, such as the right to silence and, in particular, the inference-drawing provisions introduced in the Criminal Justice Act 2007, our concern is that the consequences of bringing in that change have not been fully drawn. In particular, at the time the change was brought in, the Minister gave an undertaking that the Garda caution would be changed, but that has not happened. At the moment gardaí are placed in an unreasonable situation. They have not been issued with guidance as to what they should do, but the law has changed. At best, we can expect that they are perhaps using the previous form of caution, which is no longer accurate, or perhaps individual gardaí are taking their own initiatives to try to explain the current law. That would mean that practice would vary across the country and that the experience of a person being charged with a crime may be different from Garda station to Garda station. That is simply not acceptable and it is not fair to the Garda either.

There is a more fundamental point here. In some of Ireland's neighbouring jurisdictions in which inference-drawing provisions have been introduced, that has happened in a climate in which another fundamental right is already present, namely, the right of a lawyer or legal counsel to be there during police questioning so that, as the line of questioning evolves, it is possible for a lawyer to give proper and effective counsel to his or her client about the likely consequences of remaining silent and the inference that might be drawn from statements he or she makes or silence he or she maintains. That has not happened in Ireland and that is a matter of serious concern for us. In our regular talks with practitioners — some members of the committee have backgrounds as practitioners — they are clear with us that they cannot properly advise their clients. That is not in the interests of justice.

Deputy Rabbitte raised a couple of other points. I will deal with electronic surveillance first. The ICCL recognises that the nature and the reality of crime in Ireland and in countries across Europe has changed. We are very much in favour of intelligence-led policing, which is much preferable to the introduction of draconian restrictions on fair trial rights as proposed in the report of the Hogan group. We can envisage circumstances in which electronic surveillance ought to be part of the armoury of crime prevention mechanisms available to the Garda. The difficulty is that to date, there has been no proper lawful basis in Ireland for the use of electronic surveillance.

Deputy Rabbitte alluded to safeguards. Clearly, the cardinal safeguard is that surveillance only be conducted in accordance with law. That cannot happen if there is no law on the subject, as is the case for most forms of surveillance, with the exception of telecommunications. However, there must be additional safeguards. The European Convention on Human Rights has been partially incorporated in Ireland by virtue of the 2003 Act and the European Court of Human Rights has been crystal clear about this issue. If surveillance is used it must be in accordance with the law and it must be possible to show and document that it is necessary in a democratic society. It must be proportionate to the legitimate aim that is being pursued and it must be subject to some accountability or supervision. To allude again to one of our neighbouring jurisdictions, the UK, the Regulation of Investigatory Powers Act provides not only a lawful basis but a form of oversight mechanism, with judicial supervision, for a decision to put in place or maintain surveillance. We have absolutely nothing against the notion of electronic surveillance in principle, provided it is done in a way that is compatible with Ireland's international obligations under the European Convention on Human Rights, particularly Article 8 of the convention, which deals with the right to privacy.

The issue of the Director of Public Prosecutions was mentioned. Again, flowing from the European Convention on Human Rights, there is a clear obligation on the DPP to provide more information than is currently provided in certain types of case. That is based on Articles 2 and 3 of the convention, the right to life and the right to be free from ill-treatment, and partially on Article 8, the right to privacy. What the Strasbourg court has been saying, of which the Irish courts are now obliged to take note, is that the next-of-kin of a victim or a victim himself or herself has a legitimate interest, up to a point, in knowing the nature and progress of an investigation. There is a so-called procedural obligation on the Government to make sure that is the case. It is particularly acute in cases of death. The examples that come to our attention might be, for example, deaths in Garda custody where family members may legitimately be very concerned about the reasons for bringing or not bringing a prosecution in particular circumstances. The ICCL's stance has been set out in some detail in a policy paper we forwarded to the DPP as part of the consultation. I will be happy to make that available to members of the committee in advance of its own hearing with the DPP.

Our stance on the issue is that we favour giving reasons provided that reasons can be given in a manner that does not conflict with other rights. A balance of rights is involved, in particular the right to a good name. This is an established constitutional right that must not be interfered with. We broadly welcome the pilot project announced by the DPP but, as ever where these things are concerned, the devil will be in the detail and we will look very closely at the outcome of that pilot project. If it is helpful to members, I will be more than happy to make that policy paper available in advance of the committee's specific hearing on that theme.

Senator Eugene Regan

I concur with what Deputy Flanagan said about the materials presented at committee meetings and wish to comment on one particular issue, namely, the exclusionary rule, the third of Mr. Kelly's four points. Fine Gael produced a Bill on this matter and perhaps it might have been helpful to the committee to have had a copy of it for consideration.

The work of the ICCL is very important because it is an independent body and does not depend on the State for its resources. One can see that the Government is using budgetary and economic circumstances to justify an undermining of the two bodies, the Irish Commission for Human Rights and the Equality Authority.

The concerns Mr. Kelly expressed in respect of these four issues are well taken. However, I disagree with him about the exclusionary rule. Mr. Kelly refers to Dr. Hogan's dissenting view as chairman of the committee which reviewed this and other issues in the preparation of the report. The report states that the rule is an important way in which to encourage the Garda and others to carry out their investigations in a lawful and respected way. Mr. Kelly concurs with that view and therefore does not believe that there should be a change in the exclusionary rule.

It is important to understand what is involved in that rule and to know that it is a judge-made rule which really changed case law in 1990. Up to that time there was a balancing of the interests not only of the accused but of the victims of crime and of society's interest in the prosecution of crime and its confidence in the system of administration of justice. When people escape justice because of a technical flaw in the manner in which evidence has been obtained by the Garda or by any other enforcement authority, all evidence flowing from that and subsequently obtained is invalid and cannot be put before a jury. Invariably, therefore, the case collapses.

I offer two examples. The case of the DPP v. Elizabeth Yamanoha, 1994, was a drugs case in which the person in question was found in a hotel room in Dublin with drugs. The warrant was deemed invalid because the peace commissioner could not have had reasonable grounds for suspecting that an offence was being committed. In the case of the DPP v. Joseph Dillon, two people were arrested and their mobile telephone was confiscated. When it rang, a Garda answered and made contact with the person on the other end of the telephone, who was subsequently arrested for a drugs offence. That was deemed to be an illegal interception of a telephone message within the meaning of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. Dismissal of a case on grounds of such technicalities undermines confidence in the system.

My other point is that the law in Ireland is out of line with that of other common law jurisdictions in this regard. It is not a requirement of the European Convention on Human Rights or the European Court of Human Rights to emphasise the importance of fair trial as distinct from automatic exclusion of evidence if there is a flaw in the manner in which it is obtained. There is also a question of constitutional law here. The Constitution states that people's personal rights as citizens are to be vindicated as far as practical and as best it can. The Supreme Court ruled that that calls for a balancing of the protection of rights against other obligations of the State, such as the protection of life and liberty. If we take the Limerick situation, for example, innocent people are being murdered on the streets. It is a balancing of those rights.

This report was presented before the Garda Ombudsman Commission was established. If the main reason for the maintenance of this rule is to ensure that gardaí behave themselves when procuring evidence, that protection is now supplied by the presence of the Garda Ombudsman. Therefore, there is no raison d’être for not changing this rule which leads to injustices and undermines the ability of the State to prosecute. We recently saw cases of the most serious form of crime, including drug driving, where a mere technicality resulted in the accused having the case dismissed.

There are grounds for changing this rule and applying a balancing exercise in determining whether evidence should not be admitted to the jury. I fundamentally disagree with Mr. Kelly's assessment on this point and I hope I have given him some reasons on which he might reflect or offer comment.

Chairman

Before I invite a response from Mr. Kelly I ask Senator Bacik for her questions or comments.

Senator Ivana Bacik

I apologise for my lateness and I thank the ICCL for two excellent publications, both of which are very useful. It is important to see a focus on the human rights of the victims in the criminal justice system and to have a criticial review of the balance offered by Dr. Hogan in the criminal law review group report. Both documents serve a very useful function in appraising critically the way the criminal justice system treats victim and accused. I am grateful for that.

I have some brief comments. Following what Senator Regan said, Supreme Court jurisprudence on the exclusionary rule has clearly evolved in the circumstances of individual cases. However, there is a clear underlying theme, which is, as Dr. Hogan stated in the report, the need to ensure that gardaí observe reasonable standards in investigating and prosecuting cases. Similarly, concerning cases of preservation of evidence, in recent years and months the Supreme Court has set standards for the gardaí in terms of how they must treat evidence obtained against accused persons and how they must preserve it pending trial if, for instance, there is a need for the defence to examine it. Equally, the Supreme Court has been realistic about the limits and constraints that can operate upon gardaí and victims. The jurisprudence evolves in response to particular facts.

As we talk about this we are all thinking of the shocking murder of Shane Geoghegan. We all agree, and the Garda Commissioner has stated, it is necessary to ensure that gardaí can gather evidence. A critical part of that process is the need to reassure potential witnesses that they can give evidence in safety without fear of repercussion or intimidation. This is the major difficulty with prosecuting so-called gangland crimes. I am pleased the emphasis is on victims in the report and very practical proposals are made — for example, to ensure victims have safe means of arrival to and departure from court rooms and to ensure there are metal detectors in courtrooms. These are very simple measures but may reassure witnesses and victims when they are giving evidence in a trial.

In the same vein I am glad of the emphasis on the need to extend the right to give evidence by video link, which is important. Practical experience indicates real difficulties where children have given evidence before the courts as witnesses or victims in cases of sex abuse. Even when the video link is operational, the child is put in the room with a stranger. By definition, he or she must be placed in the room with someone who will ensure the child is not coached or prompted to give evidence. However, the stranger should be a person trained in accompanying a child in such a situation. There is a concern to ensure the safety of the children, who can sometimes be very young, and to ensure they do not become distressed by the process. The use of video link has practical difficulties, but it is an important part of the protection of witnesses.

I will put a specific query regarding victims' rights. It relates to research I carried out some years ago with colleagues on the matter of separate legal representation for victims of rape. I note that on page 35 of the report the comment is made that separate legal representation for victims was not sought by the groups consulted and that there may be difficulties where a legal representative for the victim addresses the court on behalf of him or her. Following research carried out in 1998, a limited provision for separate legal representation was introduced in rape trials and has been operated in cases where the defence seeks to introduce evidence of prior sexual experience of the victim. It is operated in the absence of a jury. Has the delegation a view on that principle, namely, that a victim's representative can address the court in a criminal trial on a legal issue which arises in the absence of the jury?

Other colleagues mentioned the severe cutbacks imposed on the Human Rights Commission and the Equality Authority. The Irish Council for Civil Liberties, as an independently funded group, is clearly and happily immune from the direct effects of budget cuts. Does the delegation have observations on how, in a practical way, the cutbacks will affect its work? Deputy Rabbitte noted that the Equality Authority has effectively been destroyed by the severe cuts and the requirement to decentralise to Roscrea, County Tipperary. This will presumably lead to an increased workload for the ICCL as people who may have been discriminated against or who may have an issue of discrimination will approach other bodies such as NGOs in the absence of rights protection from State agencies. What is the view of the delegation on this matter?

Vice Chairman

Before the delegation responds, Deputy Connick has a comment.

Deputy Seán Connick

I will address a number of issues. While I agree with several of the comments made by my colleagues, I disagree in some respects because of the Government perspective. I refer to a number of items highlighted, namely, the right to silence, charter of evidence, the exclusionary rule and prejudice. I am not a lawyer, nor do I come from a legal background, but like many people, I have been the victim of a crime on several occasions, albeit on a smaller scale. The message I hear from the public and from those who visit my constituency office — this tallies with my first-hand experience — is contrary to the view of the delegation on the matter of character evidence. How often have there been cases, especially in recent times, where an individual may be guilty of the most heinous crimes, where he or she is shown to be a multiple repeat offender, yet evidence has not been admissible?

Senator Regan pointed to some interesting cases relating to the exclusionary rule and we are all aware of similar cases and cases dealing with the right to a retrial. I agree with all three issues being provided for in the new Bill, but I disagree with the position of the ICCL on these matters. I do not take this position to be argumentative, but rather because of what I have seen and especially in light of recent events. It is very well to talk of tackling crime and putting more gardaí in place, but considering what is happening in Limerick, the matter must be dealt with in a specific way. What we are dealing with is not the norm. There are very experienced criminals who are familiar with the law and who know if they stay silent very little can be done, and who laugh at the Garda and the law in its entirety. We have a duty to protect the community and the citizens. In specific cases we must think and act differently.

The statements in the Dáil will see much comment on how we propose to deal with such situations as those in Limerick. Overall, victims see themselves continually as victims and do not see the necessary supports in place. They see cases where a number of individuals are brought to the courts. Such people are supported by five or six barristers. The family of the victim is brought to court and they usually feel completely excluded and vulnerable. Whether we accept it, the public view the perpetrators as the people who gain from this situation and who receive all the support, while the victim remains alone.

Vice Chairman

I thank the Deputy. What is the delegation's response?

Mr. Mark Kelly

I emphasise that we have the greatest respect for legal learning and the knowledge of Senator Regan in this area, as in many others. It is sometimes said that when there are two lawyers in a room there will be four opinions at a minimum. In these circumstances what is happening may be more fundamental. Gerard Hogan added his voice on this subject and identified no less than three articles of the Constitution that are potentially at play. He alluded to Article 34.5, which requires each judge to uphold the Constitution, Article 38.1, which guarantees that the trial of a criminal offence will be carried out in due course of law, and Article 43.1 which provides that the State by its laws shall defend and vindicate the personal rights of the citizen as far as practicable.

When we consider the potential admissibility of evidence obtained in an unconstitutional way, it is right to underline the importance and the fundamental nature of those constitutional rights. It is inaccurate to qualify the gathering of evidence in an unconstitutional way as a technicality. It is a more fundamental issue. I previously referred to the doctrine of the fruit of the poisoned tree. It is necessary to do a good deal more than a body such as the Garda Síochána Ombudsman Commission could ever do. It is a post hoc commission which examines complaints and problems that have arisen and then determines the outcomes of those complaints. The reason for the existence of this rule is to provide a proactive, positive disincentive to improper conduct by police officers. We believe this is a cardinal and fundamental part of the justice system and it would not be in the interests of justice for it to be changed. I echo the comments of Senator Bacik in that regard.

I refer to Deputy Connick's comments. We fully appreciate the very legitimate concerns held by his constituents regarding the crime problem and the experience of victims. Even if he could respectfully disagree with our views on the implications of the Hogan report, I underline — this point came home to us with great clarity — even if one accepted that there was legal sense to some of these proposals, they would do nothing to help victims of crime. Therefore, if one was to take one idea away from the presentation today I hope it would be that to label the implementation of the recommendations of the Hogan report as an initiative for the victims of crime is inaccurate.

It mis-sells something as being favourable to victims when we believe that is not the case. A number of points raised by Senator Bacik also offer us the opportunity to move on to slightly more positive territory, which is where we would prefer to be, namely, on what can be done and how can adjustments and recalibrations be made in the area of how we currently treat victims in order to address the kinds of concerns Deputy Connick hears on a weekly basis. I would like to ask Ms. Duffy to pick up on those.

Ms Deirdre Duffy

There are two points on the exclusionary rule. It is important to point out that there is a difference between evidence obtained illegally and that obtained in breach of constitutional rights. If evidence is obtained illegally, such as a police officer straying outside his or her authority or committing a personal injury, that evidence can be admitted. The European Convention on Human Rights has found that evidence can be excluded if it has been in breach of a convention right. The case, which is mentioned in the report, where a person was issued an emetic to make them vomit, was a breach of Article 3, the right to protection from inhumane or degrading treatment.

On Deputy Flanagan's point, which is connected to Senator Bacik's point on protection, one of the recommendations in the report is for the provision of one-way glass screens in Garda stations so that people can identify possible suspects in safety. People's privacy and protection from harm were discussed and we agree with everything Senator Bacik said on the practical measures that must be put in place to protect people. We have listed a number of them in the report.

Regarding giving evidence by video link, the children's rights organisations that we spoke to, Barnardos and the Children's Rights Alliance, said that this is an area they are quite concerned about. Barnardos, in its document, advocated training for all lawyers and members of the Judiciary who deal with children's cases so they will know how to interact with children.

On separate legal representation, I spoke briefly to the Rape Crisis Network on the issue and we have no objection to that in principle. The jury would not be present, it would be in very specific cases of sexual crime. In the report we singled out two areas where we feel the victims of sexual crime may need extra support, namely, that gardaí are trained in the investigation of sexual offences and in dealing with victims of sexual crime. There is a unit in Harcourt Street but that is not dispersed throughout the country. As has been seen in the press, there are difficulties in victims of crime accessing the necessary services within a reasonable time.

Deputy Connick commented on what victims said to him and I heard similar stories. He mentioned the victim entering the courthouse and seeing the defendant with many lawyers, and he or she feels left out. That was very apparent in the research. Victims feel a sense of ownership over the case and they cannot understand their case being taken away from them when the State takes over the prosecution. One recommendation in the report, which I touched on briefly, was on information. All the research I looked at showed that if victims are provided with sufficient, clear information, particularly from decision makers or people connected to the procedure, it makes the experience much better and they feel much more a part of it if things are explained to then. Another issue is support. We recommend the establishment of a victim liaison service in the new criminal court complex. A voluntary group operates at the moment and it does a great job, but it is limited in what it can do. They are the practical measures we suggest to help victims in their experience through the courts.

Mr. Mark Kelly

To respond to the point raised by Senator Bacik on the impact on a body like the ICCL of the proposed cutbacks to the Equality Authority and the Irish Human Rights Commission, she is right, in a direct sense, it adds enormously to our workload already because we are playing a leading role in a new grouping called the Equality and Rights Alliance, which brings together 63 different organisations, ranging from trade unions to disability groups to other forms of equality groupings which are resolutely opposed to what is happening.

People come to us daily to say they are fearful of how, in the future, their rights will be protected so it is having a direct and immediate impact on our workload now. Were the cuts to go ahead, it is inevitable that bodies such as the ICCL would have unrealistic expectations of what they could achieve for people whose rights are potentially being violated.

The Human Rights Commission was set up by the Good Friday Agreement and there is a requirement for parity of esteem in the protection of rights in both jurisdictions in Ireland. The Equality Authority has shown itself to be effective in assisting people to vindicate their rights and it appears that its reward for that is to have its viability undermined. These are serious times for human rights protection in Ireland.

Vice Chairman

I thank Mr. Kelly. Are there any other observations or questions?

Senator Eugene Regan

I would like to make one further point. The points made are very interesting. On the exclusionary rule, the consequences of it were the automatic exclusion of evidence, whether obtained illegally or unconstitutionally. It elevates the rights of the accused to absolute rights and that is where the delegation might accept injustice can be created.

Allowing an accused to automatically go free by virtue of evidence being excluded is an indirect way to control police behaviour. I underline that we are out of line with the practice and jurisprudence which has evolved in other jurisdictions. There is a case for some modification of this rule.

It is not suggested by me or anyone here or by case law that if there is intentional and blatant breach of the constitutional rights of an accused the case should not be dismissed, but where there are breaches such as the wrong address on a search warrant or a wrong date, that is a technicality, and it is those technicalities which undermine the effective prosecution of crime. Where it arises in some very serious cases the Oireachtas will want to act on this matter.

Mr. Mark Kelly

I will respond briefly because I do not want to burden the committee with a legal debate on a fine point of law. I highlight that Dr. Hogan, in his dissent, indicated that because of the fundamental nature of the constitutional protection of these rights, it is his firm and settled view that the law on this point cannot be changed by statute alone. The only way in which it could properly be changed is by a Supreme Court review. I would question in that context the Bill to which the Senator referred which is currently in the Seanad, even if his view, sincerely held as it is, were to prevail. I would be doubtful as to whether the means through which reform is currently being sought is one that would be constitutionally proper or upheld.

Chairman

As there are no more questions or observations, I thank both the witnesses for their attendance and informative presentations. The discussion has been of major assistance to the joint committee in considering the important issues that are at play. I thank them again for their contributions.

The joint committee adjourned at 12.51 p.m. until 3.30 p.m. on Wednesday, 19 November 2008.