Criminal Procedure Bill 2021: Second Stage

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

Minister for Justice (Deputy Helen McEntee)

I am pleased to bring the Criminal Procedure Bill 2021 before the Seanad today. This is a relatively short Bill whose primary purpose is the introduction of preliminary trial hearings. The need for these hearings has been agreed for many years and is a priority action in the programme for Government and my Department's justice plan. A number of reports have highlighted the benefits of such hearings, including the report of the expert group on Article 13 of the European Convention on Human Rights, or the McDermott report, from 2013; the report on efficiencies in the criminal justice system, or the Fennelly report, from 2012; the review of protections for vulnerable witnesses in the investigation and prosecution of sexual offences, or the O'Malley report, from 2020; and, most recently, the review of structures and strategies to prevent, investigate and penalise economic crime and corruption, or the Hamilton report of 2020.

Victims have spoken very clearly about the impact on them when they have mentally prepared for a trial and it does not, unfortunately, go ahead, or when something unexpected arises during the trial that results in interruptions while difficulties or arguments are dealt with by the court. We cannot take away the fact that a trial is an adversarial process, that an accused person is entitled to defend himself or herself robustly and that events can unfold in unexpected ways. However, preliminary trial hearings should make trials more predictable for participants and help them to run more smoothly.

From the point of view of an accused person, if a trial is going to fail because of the inadmissibility of certain evidence, for example, this should be uncovered as early as possible to avoid the person being put through a full trial unnecessarily in a case that was inevitably going to fail. It is also in the interest of juries that the information presented to them during a trial should flow more smoothly and without interruption, insofar as possible. Preliminary hearings have great potential to reduce delays and increase efficiency in how our criminal trials are run. They should reduce the length of trials, which we know can be considerable, in part owing to repeated adjournments. They will not, however, deal with matters which currently must be dealt with when the jury is present.

In practical terms, preliminary hearings will mean that it is less likely that the jury will be sent away immediately after being sworn in, or sent away multiple times during the trial, which often happens. There will be a reduced impact on the victim because the trial is more likely to be ready to proceed on the appointed day, with the necessary practical arrangements in place and at least some of the contentious issues decided in advance. The trial is also less likely to be interrupted, potentially multiple times, which would drag out the experience and make it more difficult, especially for victims. There will be significant resource efficiencies where trials are ready on the day they are due to start, and more likely to proceed smoothly to a conclusion. Finally, matters which would ultimately prevent a case being submitted to a jury will now be more likely to be identified in advance, thus avoiding the empanelling of a jury and the subjection of a person to an unnecessary trial. These are important benefits which I believe will be supported by all sides in this House, and which will result in significant efficiencies in the criminal justice system.

I now turn to the Bill itself and outline the main points. Part 2 is the main Part of the Bill and deals with preliminary trial hearings. A judge can order a preliminary trial hearing for any indictable offence where he or she thinks it is needed. A preliminary hearing can be also requested by the prosecution or the defence where the trial is for a relevant offence as set out the Bill. These relevant offences are offences which carry a maximum sentence of ten years or more, including a life sentence, and offences which the Minister has specified by order. When specifying an offence as a relevant offence, the Bill sets out what the Minister must consider, including the nature of the offence concerned and the relevant complexities that generally arise in the prosecution of such offences. The court must agree to at least one preliminary hearing for a relevant offence where either the prosecution or the defence has requested it.

The Bill specifies the timing for a preliminary trial hearing, which must take place before the jury is sworn in or, in the case of trials in the Special Criminal Court, before the trial has commenced. It provides that if it is in the interests of justice, an accused may be arraigned at a preliminary trial hearing. The Bill also specifies the types of orders or decisions which may be made at a preliminary trial hearing. At the preliminary hearing, the court can assess various case management matters and make orders or rulings to ensure the just, expeditious and efficient conduct of the trial. Such matters include the availability of witnesses, whether any particular practical measures or technology may be needed, the extent to which the trial is ready to proceed, including any long-standing issues with regard to disclosure, and how long the trial is likely to be.

The Bill also provides that the court can make a decision or order at a preliminary hearing in regard to: whether a number of persons charged in the same proceedings can be tried separately; amending an indictment under section 6 of the Criminal Justice (Administration) Act 1924, for example, to allow offences to be tried separately; under section 15A of the Juries Act 1976, to provide for additional jurors where the trial is likely to be long; allowing for evidence by written statement, or proof by formal admission under sections 21 and 22 of the Criminal Justice Act 1984; an application to question the victim in a rape offence about their prior sexual history in accordance with section 3 of the Criminal Law (Rape) Act 1981; decisions around how evidence may be given from behind a screen, via television link, including from outside the State, or via an intermediary under various sections of the Criminal Evidence Act 1992, as well as whether cross-examination by the accused in person will be permitted, and determination of issues around disclosure of the victim's counselling records in a sexual offences case under section 19A of that Act; under section 39 of the Criminal Justice Act 1999, whether a witness who is in fear or subject to intimidation may give evidence through live video link; under section 67 of the Criminal Justice (Mutual Assistance) Act 2008, whether a witness outside the State may give evidence by live television link; leave to call an expert witness, under section 34 of the Criminal Procedure Act 2010; under section 21 of the Criminal Justice (Victims of Crime) Act 2017, where a victim needs to be protected from secondary or repeat victimisation, intimidation or retaliation, whether to permit questioning or evidence about the private life of that victim; and, finally, to allow for evidence via video link under section 25 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020. In addition to this list, at a preliminary hearing, the court may also make a "relevant order", which is an order relating to the admissibility of evidence.

Finally, in this part of the Bill, there is a general power for the court to make any other order that could be made in the absence of the jury, or any order relating to the conduct of the trial as appears necessary to the court to ensure due process and the interests of justice are observed. As Members can see, there is a wide range of important orders provided for in the Bill which will now be able to be dealt with at a much earlier stage in the proceedings, which will be to the benefit of all parties involved.

It will not generally be necessary for the same judge who presides over a preliminary trial hearing to preside over any subsequent hearings or the trial of the offence. An exception to this is a preliminary trial hearing dealing with the admissibility of evidence where, other than in exceptional circumstances, the same judge must preside over the hearing and the trial. There is also a general power in the Bill for the court to decide that the same judge must preside over subsequent preliminary trial hearings and the trial of the offence, if that is in the interests of justice.

Orders made during a preliminary hearing will be binding and may not generally be appealed until the conclusion of the trial. An application may be made to vary an order only if there has been a material change in circumstances since the time at which the order was made. The only appeals permitted between a preliminary trial hearing and the trial of the offence relate to significant decisions excluding evidence as inadmissible. If such a decision results in the case against the accused being very significantly weakened, then it is in nobody's interest for the trial to have to proceed to a conclusion before the related appeal can be determined.

Participants who would be entitled to legal representation and legal aid for the trial will have the same entitlements for any associated preliminary trial hearings. In general, preliminary trial hearings will be conducted in public. However, there is a power for the judge to exclude the public from any portion of, or all of, a preliminary trial hearing where that is necessary, and to prohibit the publishing or broadcasting of certain details until the trial is complete. This may be necessary to protect the accused person's right to a fair trial, particularly given that the jury will not yet have been sworn in and material may be discussed at the hearing which should not be presented to the jury, for example evidence that is later ruled inadmissible.

Part 3 deals with the provision of information to juries. This arises from a recommendation of the Law Reform Commission in its 2013 report on jury service that the types of information available to juries in complex financial trials should be extended to juries in trials for all indictable offences. This part of the Bill implements that recommendation.

Part 4 makes various small amendments to criminal procedure legislation. The changes regarding evidence by written statement will allow the court to require a person objecting to the admission of written evidence, rather than oral testimony, to give his or her reasons for doing so and, having considered those reasons, to admit the evidence in written format where this is not contrary to the interests of justice. The other amendments are technical in nature or adjustments to existing provisions that are necessary to reflect the introduction of preliminary hearings.

The Criminal Procedure Bill 2021 contains important provisions which will enhance the powers of our courts in conducting efficient criminal trials. A better trial process is in the interests of everyone concerned: the accused, the victim, the courts and members of our juries. I look forward to hearing Senators' contributions.

Senator Barry Ward

Cuirim fáilte roimh an Aire ar ais go dtí an Teach. I congratulate the Minister at the outset. There are some really good common-sense, progressive measures in this Bill, stuff that will actually make it easier to run criminal trials.

It will make it easier for jurors, complainants and people who are accused. I welcome the provisions of the Bill, which are common-sense measures that will help the flow of the criminal justice system.

I will speak on the primary function of the Bill being the establishment of preliminary trial hearings. In Dublin, there has been for a long time a trial in respect of what are called pre-trial hearings but they have been hampered very substantially by the points the Minister has raised, insofar as they cannot deal with certain issues because there is no provision in law, essentially, for evidential or other pre-trial issues to be dealt with in a conclusive way before a jury is sworn in and the accused is put into the hands of the jury. I welcome that we have a clear legislative statement that there is a way we can do this that makes sense and avoids the necessity for a drawn-out trial process which results in very little efficiency.

In acknowledging that, under the current system, when a trial starts it is open to either side to raise an issue of procedure, admissibility of evidence or whatever it might be with the trial judge at that time. Only when that judge has been put in situ and the accused has been put into the hands of the jury can those processes properly be adjudicated. The result of that is damaging in many ways. It prolongs the process for the defendant or accused person in the first instance. The accused is a seldom-considered party in these proceedings, for obvious reasons. However, people are innocent until proven guilty when they go before the court and are entitled to be treated with respect and efficiency.

Perhaps more important, as we have acknowledged in this House on a number of occasions, are the difficulties faced by complainants who come before the courts. It is a tremendously stressful and difficult experience for somebody who is accusing another person of a crime, particularly where that is a violation, a sexual crime or something like that, to come before the court as a witness. Until now, victims or complainants who come to court often do not know when the case will be heard. They know it is listed for a certain day and might get on that day. Even if it gets on, there might be days of wrangling and legal argument over particular issues. That happens only after the trial starts so complainants might come to court on the first day of the trial ready to give evidence, make their claim and say what happened, only to find there are two or three days of legal argument where they sit in the victim suite in the Criminal Courts of Justice or in a room in a court elsewhere in the country waiting for that legal argument to subside and be resolved. The effect on such persons is that they are sitting around for days waiting for the real process to start, as far as they are concerned. In that scenario, it is unfair that complainants who come to court and the accused person should have to wait around.

Another party that is perhaps sometimes forgotten when we discuss criminal justice matters is jurors. In every case, 12 ordinary citizens have given up their time and life experience to come and pass judgment on the facts in a case and decide about the guilt or innocence of an individual. The system does not work without those citizens who come and give their time. They are an incredibly valuable part of it. Invariably, people who have been involved in jury service will express frustration that they must be excluded from discussion about evidential issues. One cannot ask a juror to unhear a piece of evidence that has been ruled inadmissible, for example. They must be removed from the courtroom and they sit in the jury room awaiting the conclusion of that legal argument before they are told whatever it is they might be told. I know from many friends and colleagues who have done jury service that they find it incredibly frustrating. They are told the trial starts on a certain day and will take X number of days. However, the first three days may be spent sitting in the jury room, waiting for legal argument to be completed. It is the wrong signal to send out to people about our criminal justice system, which can be more efficient. This Bill will make it more efficient. It will avoid the necessity for juries to be discommoded and avoid the stress for complainants or other persons who are parties to the trial, including witnesses. It circumvents much of that and makes perfect sense that we resolve these issues by way of a preliminary trial hearing before the process gets going.

I welcome the process. I think it is progressive. I note what the Minister said about the provision of information to juries, which is addressed in Part 3 of the Bill and arose from the report of the Law Reform Commission. I have referred a number of times in the House to the importance of the good work done by the Law Reform Commission. In that regard, I welcome that its work is being taken on board in the Bill.

I might just raise a few technical issues in respect of the Bill. Section 6(2), which falls under the preliminary trial hearing heading, states:

(2) Without prejudice to the generality of subsection (1), the trial court shall, where—

(a) an accused is charged with a relevant offence,

(b) the prosecution or the accused makes an application to the court for a preliminary trial hearing to be held, and

hold such a preliminary trial hearing.

The fact that section 6(2)(c) states that "no preliminary trial hearing has previously been held" appears to suggest that there can only ever be one preliminary trial hearing in respect of an offence. Perhaps I am misreading that. However, I wonder if we are unnecessarily restricting the ability of the courts to deal with an issue that might arise, for example, between the preliminary trial hearing and the start of the trial itself. As I said, maybe I have misread that. I am quite happy to be corrected if that is the case.

In respect of Part 3, which deals with the provision of information to juries, it is a progressive measure that I welcome. In many trials, particularly trials that go on for a period of time, it is most important that juries have access to certain documentation. I note the list provided in section 12(2). It is fairly normal at the moment for juries to get access to maps, reports and other documentary pieces of evidence that come before the court. However, they do not get opening and closing statements from counsel or the judge's charge. The judge's charge is an important document because it allows juries to see what the judge said about the trial and the decision he or she has to make.

I have some concerns about the provision of opening and closing statements made by barristers in the course of a trial, because they are not evidence. They are merely the manner in which a particular barrister is setting out the facts in the trial as he or she sees it. I have some concerns about juries having access to those documents because they are not evidential documents; they are merely the expressions of a point of view of one party to the case. I have a small concern, particularly in respect of the opening statement, that it might colour the judgment of the jury inappropriately in circumstances where the opening statement is usually only made by the prosecution.

I also wish to address two other matters. In respect of sections 13 to 15, inclusive, which amend the Criminal Procedure Act 1967, I wonder if there has been a missed opportunity there for us to perhaps fix other things that exist, particularly amendments that were inserted into the 1967 Act from section 4(a) onwards.

Finally, under section 18 a change is made to the period that is allowed for the defence to provide expert reports, extending that period. Currently, the defence must disclose expert reports to the prosecution at least ten days before the start of the trial. This period is extended to 28 days under the Bill. I wonder if that is a necessary provision, given all of the resources that are available to the prosecution in any given case. Does it make sense to further hamper the defence in bringing an expert report? I wonder if consideration has been given as to what effect this will have on the defence.

I welcome the Bill. It is a huge step forward in eliminating unnecessary red tape. It will make the trial process much smoother.

Senator Rónán Mullen

Cuirim fáilte roimh an Aire. I also support this Bill and I agree with much of what Senator Ward just said. This Bill implements one of the many welcome recommendations of the O'Malley report published last August. However, I question why this one issue has been carved out of the report and introduced in a stand-alone Bill, and whether it would not have been better for more of the O'Malley proposals to be introduced in a more comprehensive Bill rather than in piecemeal fashion. Given the extremely constrained amount of Dáil and Seanad time we have at present, there might have been an argument for that. However, that is not to cavil at the welcome that this Bill deserves.

Pre-trial hearings are important. There is a certain irony here that the concept of pre-trial hearings is of great day-to-day familiarity to ordinary citizens, even if it is not the practice in our own courts. Pre-trial hearings feature in courtroom scenes in legal dramas such as "The Good Fight". They have entered Irish popular culture long before they have arrived in our legal system.

Of course, a courtroom drama is no way to judge the effectiveness of any set of procedures or reform, but it gives an accurate, even if simplistic, indication of how such hearings operate. The hearings can be used to weed out legal issues which might arise in a full trial, or in some cases prevent a trial from proceeding at all in a case which the process shows to be without merit, either for legal reasons or for want of evidence.

Like so many good changes that have simplified our legal system, the proposal being dealt with today has been in the ether for a long time, at least 20 years at this point. Listening to Senator Ward I found myself wondering why it takes so long to do things that make such obvious sense.

The O'Malley report refers to two previous studies on the issue, namely the working group on the jurisdiction of the courts chaired by Mr. Justice Niall Fennelly in 2003, and the McDermott report in 2013. However, I also recall that there was another report by the Law Reform Commission in 2006, then chaired by Mr. Justice Hugh Geoghegan, which dealt with prosecution appeals and pre-trial hearings. This report contained an interesting examination of the pros and cons of pre-trial hearings and looked at the experience in England and Wales. Ultimately, the Fennelly report found that the evidence in favour of pre-trial hearings was, in its words, "inconclusive" but it did recommend a study into the impact that voir dire has in practice on the ability of juries to appreciate fully the evidence before them. These are the proceedings that take place in trials conducted in the absence of the jury to determine matters that henceforth will be dealt with in pre-trial hearings. It is important that the concerns and caveats flagged by Mr. Justice Fennelly in 2006 are borne in mind when implementing pre-trial hearings.

The proposal is a win-win for everybody who will be involved. It will reduce the stress on victims and complainants by shortening trials and allowing difficult issues, such as questioning on sexual history, to be dealt with before the start of the trial proper. This reform will also be good for future jurors, because it will shorten trials and cut down on the amount of disruption in their lives through endless suspension of trials for voir dire discussion.

I might say as an aside that jury selection is another area that needs to be addressed seriously in the years to come. The jury selection system is messy and chaotic, and that is putting it charitably. I would recommend, if she has not already done so, that the Minister read any of several interesting opinion pieces written by the barrister James McDermott on the topic. The Irish jury selection process and juror experience is stuck in the 19th century, often resembling something out of Dickens. It badly needs to be modernised.

Pre-trial hearings will also, hopefully, benefit the taxpayer, by shortening the length of trials, shortening court lists, and reducing costs. This reform will also vindicate and strengthen the rights of accused persons, by allowing issues to be ironed out at an early stage in a way that will not contaminate or prejudice the jury. In a society that values the rule of law we should never be ashamed of any measure that would vindicate the rights of an accused who, as Senator Ward has just said, is innocent until proved guilty. We should never apologise for being scrupulous about ensuring due process for the accused. Not all those put on trial for criminal offences are guilty. We should think of this especially in the fraught context of sexual offences, which frequently come up for discussion. It is for this reason that our Constitution guarantees a presumption of innocence and a right to silence. I was very glad that the O'Malley report rejected calls from various quarters that would effectively have eroded the presumption of innocence in trials of sexual offences.

I hope it goes without saying that the O'Malley report should not be the end of our review of the effectiveness of the criminal courts. We should constant look for new ways to streamline the system and make it fairer for all those involved. The nature of criminal trials in Ireland, and indeed in any common law system, is that trials are adversarial in nature. This is in contrast to the Continent, for example, where the civil law system has led countries to adopt a different, less adversarial and more probative style of conducting trials.

I recently read some detail on the criminal process in operation in Belgium, where the trial process seems to be somewhat more free-flowing than the rigid and almost formulaic structure of criminal trials here. The thought struck me that perhaps there are some aspects of the continental system which we could learn from and adopt here, perhaps in a limited way. Within the confines of the constitutional framework for the trial of offences and the rights of the accused, there are surely reforms we could introduce nonetheless that would make the process of criminal trials more probative and less adversarial.

A discussion of that would go well beyond the scope of this Bill, whose introduction I welcome and whose passage I intend to support.

Senator Robbie Gallagher

Cuirim fáilte roimh an Aire.

We in Fianna Fáil are happy to support this Bill, which puts in place practical reforms to improve the operation of criminal trials and has been called for for some time. It provides for pretrial hearings, which will significantly enhance the trial process for sexual offences, white-collar crimes, organised crime and other complex offences. These fundamental changes will make the process easier and reduce the likelihood of juries being sent away during trials, making the court process faster and more effective. Most importantly, it will make it less likely that victims who have to prepare mentally for a trial will be subject to stressful delays. We tend to overlook the stress and annoyance felt by victims, and the trauma that goes with it, when they are built up for a trial process. Even the experience of walking into a courtroom for the first time can be stressful. Some of our learned colleagues in the Chamber do it almost daily, but for the ordinary citizen and his or her family, it is a stressful experience. This legislation, when enacted, will go a long way towards minimising that, which is to be welcomed.

The Bill will provide for preliminary trial hearings in Irish law for the first time. These hearings will enhance the operation of criminal trials, benefiting victims, the courts, defendants, witnesses and jury members. There is often too much delay or disruption in trials because issues that should have been dealt with in advance, for example the admissibility of evidence, are subject to legal argument in the absence of the jury. A practical arrangement to determine the availability of witnesses would help to speed up that process. The Bill will reduce the prospect of a jury being sent away immediately after being sworn in to allow for legal argument or being sent away numerous times during the trial, which can be frustrating for all concerned. The Covid-19 restrictions have had a negative impact on criminal trials, but this Bill will support case management and help to ensure that parties are ready to proceed on the day of the trial. It will also deliver efficiencies, given that certain criminal trials will now have fewer delays.

Several reports over the years, some of which have been mentioned by my colleagues, on making the criminal trial system more efficient, tackling white-collar crime and corruption, and increasing protections for vulnerable witnesses in sexual offences cases have recommended the introduction of pretrial hearings. Delays, postponements and suspensions of the start of a trial and multiple adjournments have considerable negative impacts. The trial process can be a stressful experience and victims may have prepared themselves mentally for the trial to start on a designated day. When a trial is postponed at the last minute or interrupted multiple times for legal argument, it can make a victim's experience all the more difficult. Importantly, the Bill will reduce the impact of numerous delays on victims of serious sexual offences.

Pretrial hearings will also mean that matters that could ultimately lead to the collapse of a trial can be identified before a jury is sworn in, preventing lengthy legal argument mid-trial and helping to ensure that trials start when they are supposed to, thereby delivering significant efficiencies and savings for the court.

The Bill's provisions have been developed in close consultation with the Courts Service and the Director of Public Prosecutions to ensure that they will be workable in practice and achieve the desired outcome. Senator Mullen lamented that it had taken us a long time to reach this point, but I hope that having had all stakeholders involved in the process will help going forward.

The principal purpose of the Criminal Procedure Bill is to provide for the introduction of preliminary trial hearings. Part 2 is its main part and deals with preliminary trial hearings, the principal purpose of which is to deal with certain matters ahead of a trial so as to ensure that all parties are ready to proceed on the day of the trial and to minimise interruptions of an untimely nature while the trial is in train.

Part 3 of the Bill deals with the provision of information to juries to assist them with their deliberations. This arises from recommendations of the Law Reform Commission in its report of 2013 on jury service to the effect that section 57 of the Criminal Justice (Theft and Fraud Offences) Act 2001, which concerns the provision of specified documentation to jurors, should be extended to all trials on indictment. Part 4 of the Bill makes various amendments to criminal justice legislation.

As I have said, I very much welcome this legislation and I thank the Minister for bringing it to the House this afternoon. It may be difficult for the Minister to give a definitive answer but when does she hope this legislation will be up and running for the benefit of everybody?

Senator Niall Ó Donnghaile

Gabhaim buíochas leis an Aire as ucht teacht isteach chun labhairt ar an Chéim seo den Bhille. The Acting Chairperson might forgive me if I smile the whole way through the course of this contribution because I have just been able to book my vaccine for tomorrow in the North. The process has just opened for my age bracket, although I will not say which bracket it is. Nevertheless, it is good and I am happy.

As colleagues have acknowledged across the House, the purpose of this Bill is to introduce preliminary trial hearings. Many of the features of the Bill are good and positive and Sinn Féin supports them. They are needed for a number of reasons. As people have said, some trials are becoming increasingly complex and lengthy due to technological advances and legal innovation. An informed and relaxed jury is an important part of the justice system. Part 3 of the Bill deals with the provision of information to juries to assist them in their deliberations. This arises from the Law Reform Commission and its 2013 report on jury service. It made a number of recommendations, including that the source from which jury panels would be drawn would be broad and efficient, that jurors would be funded for their service and to make it easier for disabled people to serve on juries through making court buildings accessible and disabled-friendly.

A provision to allow some arguments to take place before a trial is also welcome. Section 6(6) states that where an accused has not been arraigned, the judge may direct the accused to be arraigned at the start of a pretrial hearing. If we are serious about the presumption of innocence, that provision should be tightened up. Also, if the prosecution seeks a pretrial hearing, it seems only fair that all disclosures should be provided to the defence before that takes place.

The Bill also provides for hearings on matters such as the availability of witnesses and issues related to discovery. The discovery aspect is particularly important due to developments in technology and complex books of evidence. The report on the future of policing envisions better Garda resources in cybercrime. Complex discovery and admissibility matters are well suited to pretrial hearings and it is important to maintain a balance between prosecution and defence at all times. The Bill will give a right to request a hearing, the sharing of information and notification of the use of expert witnesses.

The availability of witnesses and their suitability or otherwise to take the stand is also key. There is unfortunately a disturbing trend where young people under the age of 18 are witnesses to high-profile violent crimes. In those circumstances the causes of crime are rarely addressed, nor is the need for early interventions and targeted resources, as well as other matters like community policing, education, housing, social care and community-led initiatives such as restorative justice practices.

A fit-for-purpose youth justice system is badly needed and we do not have one at present. In a report involving the University of Limerick it was stated that 1,000 children were involved in or in danger of being involved in criminal gangs. Although the transfer of youth justice functions from the Department of Children, Equality, Disability, Integration and Youth to the Department of Justice may deliver developments, it carries a risk. That risk is that young adults and children might be treated within the same resources and processes as adults, which would be entirely inappropriate. A stand-alone youth agency, properly resourced, is crucial.

The Bill before Members will be one part of a solution but wider policy and societal issues must be also be considered and addressed as we move forward. The Bill contains a welcome provision to extend legal aid services to cover costs incurred during pretrial hearings.

Some judges can be difficult about extending legal aid certificates, as some of our learned colleagues across the House will probably recognise. The legal aid threshold should be raised because the working poor are sometimes unable to fund and raise defences for themselves.

I welcome section 9, which relates to the power to exclude members of the public from preliminary hearings in, for example, high-profile sex crime trials. This is to be welcomed.

It is important we have an efficient justice system which can protect and prosecute. The Bill will help to streamline and speed up court proceedings. Backlogs and delays, as the Minister well knows, help criminal gangs and often delay justice for those who have been wronged. That aspect of the Bill, if delivered effectively and efficiently, which we all hope will be the case, is to be very much welcomed.

Senator Ivana Bacik

I welcome the Minister back to the House and apologise for being late to the session. I was actually speaking to Alicia O'Sullivan and Jennifer O'Connell about the issue I raised in the House earlier today about Coco's Law. I wish first to speak on Second Stage of the Criminal Procedure Bill before us but also, briefly, if I may, to refer again to some comments on Coco's Law and other relevant legal reforms.

First, on behalf of the Labour Party, I very much welcome the Criminal Procedure Bill and the provision it makes, indeed its principal purpose, to legislate for preliminary trial hearings. These have been recommended over many years by many different reports and reviews of the criminal justice system. As long ago as 1998, in an EU-funded study I conducted with colleagues in Trinity College Dublin on the legal process and victims of rape, we recommended that pretrial hearings be brought in to ensure that issues with the conduct of the trial would be dealt with in a way that would least impact the victims and indeed the jurors. It is very welcome then to see that that is what is proposed in this legislation. It is welcome also to see in section 6 that the interests of the victims as well as jurors are recognised. I note also that this will make trial processes more efficient.

My colleague, Deputy Howlin, in the other House, also welcoming this Bill, referred to an important study into judges and juries in Ireland conducted last year by Mark Coen, Niamh Howlin, Colette Barry and John Lynch for the UCD school of law. It was the first empirical study in which judges were interviewed. On the issue of pretrial hearings, which they also recommended, the authors noted the frustrations judges expressed about lack of progress on the introduction of pre-trial hearings, one judge saying they believed it was very disrespectful of a jury to be sworn in and then sent away for long periods while issues were resolved in the absence of a jury, as is currently the case. I recall several trials when I was in practice in which the juries were sworn in and then the voir dires were held and legal argument took place in the absence of the jury, often for days at a time. The juries would then be left in a state of suspension. Clearly, that is not ideal for jurors or victims, who are also often left wondering what is going on. I therefore very much welcome the provision for pretrial hearings in this legislation.

I also wish again to commend the Minister for her work with Deputy Howlin on Coco's Law. I ask again, however, that we look again, in the light of the experience of a young UCC law student, Alicia O'Sullivan, as recounted at the weekend, at how gardaí who take complaints, particularly complaints relating to sexual abuse, including image-based sexual abuse, are trained to respond in an empathetic manner and then to refer to the divisional protective services unit. I pay tribute to Chief Superintendent Declan Daly, who has overseen the important roll-out of specialist units within An Garda Síochána across the country to take statements where gender-based violence or sexual crimes are reported. I think what is lacking still, however, is sufficient training of gardaí on the front line in Garda stations who take these complaints in the first place. They should be able to refer them swiftly onwards to gardaí who are specialised in taking statements. This will facilitate, I think, more efficient prosecution and investigation of such offences.

I also wish to raise with the Minister a related issue regarding criminal justice reform raised earlier on "Morning Ireland" by two very brave young women, Una Ring and Eve McDowell, who, like Alicia O'Sullivan, have gone public about their experience, in their case experience of very serious and life-threatening stalking.

Their concern is that our current legislation does not adequately deal with stalking of this sort of violent nature. They suggested that section 10 of the Non-Fatal Offences Against the Person Act, which provides for the offence of harassment, does not adequately deal with the sort of physical violence that they experienced in stalking, and it appears more reflective perhaps of persistent communication through non-physical means. While we did increase the penalty to ten years in section 10 of Coco's Law for the offence of harassment, I wonder if it is time for us to look at creating an offence of aggravated harassment that would more directly encompass this sort of stalking, where people are followed at their workplace or to their home, or their property is broken into, and where there is a physical threatening presence that causes them to fear for their lives, as recounted by the two women who spoke.

Perhaps we need to look more generally at how our criminal laws reflect the experience of victims. This Criminal Procedure Bill goes a substantial way towards recognising the needs of victims and trying to make the trial processes more efficient, but we also need to look at our language more generally. Why do we not have an offence known as stalking? Why do we not have an offence of domestic violence? Why do we use language that does not necessarily reflect the experience of victims by talking about harassment, which does not seem to encompass the more serious type of behaviour? We need to name these experiences. Back in 2018, when we passed the Domestic Violence Act, pioneered so ably by the Minister's predecessor, the former Minister, Frances Fitzgerald, through our work in the Seanad and the Dáil we created a new offence of coercive control. That language more accurately reflects the experience of those who go through what we now know to be coercive control. Similarly, while I am very glad we have a Domestic Violence Act, we still do not have an offence of domestic violence, just as we do not have an offence called child sexual abuse. I have spoken before about the myriad of different sexual offences and the piecemeal nature of reforming legislation brought through the House. I should say I acted for the State years ago in cases defending some aspects of those pieces of legislation. It is a real source of frustration to anyone involved in supporting victims of sexual crime or gender-based violence that the legislation and the law does not seem to quite match the experience of victims. It is about looking at our language. It is a little bit like our outdated criminal law still talking about a defence of insanity, when insanity is now seen as a deeply problematic and outdated expression in mental health and psychiatry practice. It is about looking at our language and about ensuring that the offences we create are reflective of the experience of victims. I know the Minister is very sympathetic to these views. I wonder, then, whether we should be looking at that offence of harassment and how we can align it more with the experiences of those who have suffered the sort of very severe, physically threatening stalking behaviours that have been recounted.

Like others on today's Order of Business, I want to finish by saying again that gender-based violence is very much in all of our minds today, with the news of the tragic killing at the weekend of Jennifer Poole. I want to extend my own sympathy and the sympathies of my Labour Party colleagues to her family and friends and all who knew her.

I welcome the Bill and welcome the way in which it is framed so as to create a more responsive criminal justice and trial system. However, there are other reforms that we also need to look at.

Senator Vincent P. Martin

The Minister is welcome to the Chamber, as always. The Green Party welcomes this Bill. It is a step in the right direction. Of course, we would like more but, because there has been, relatively speaking, such poor progress over many years in the administration of justice in the criminal courts, this is a significant step in the right direction.

Justice delayed is justice denied. That is more than a legal adage; it is a maxim that goes to the very heart of our Constitution and of the common law jurisdiction. It protects both the accused and the complainant, as well as the people, who need a system that is efficient and in which they have confidence.

This Bill, when enacted, will make the system more efficient.

It seems that the criminal law has some catching up to do on the civil law. They are very different but in recent years the civil law has made good inroads. I am thinking of the retired judge, Mr. Justice Peter Kelly. The Commercial Court was a positive step in the right direction in terms of pre-court issues being determined. Case management of disputes is very important. In a sense, this is the first tangible progress we have seen where the criminal courts are catching up on the civil courts, although there is still a long way to go in terms of both courts.

I refer to voir dire, which is an essential part of a criminal trial. If any of those matters can be dealt with before a jury is impanelled it would be very welcome. A jury is impanelled sometimes on a Wednesday and within minutes the members could be told that they are not needed until the following Monday or to come back on Friday at 12 noon and they will see where they are at that time. The jury turn up on the Friday and are told that it might be the following Monday or Tuesday. That is not just a delay in justice or suspending the role of a jury; it is in a sense putting on hold their thought process. The jury should not deliberate and make a decision until they hear all the evidence but if any of those big delays can be resolved at a pre-hearing stage it would be fantastic and a win-win for everyone. If an issue emerges during a trial latitude will be shown because people's liberty is at stake.

The order of a judge in a pre-hearing application under section 6(a) is binding. That is very welcome but I hope there is sufficient latitude in section 6(b) because occasionally, and I do not want it to be the norm, something may arise and there is so much at stake that it would not make sense to go through a long, drawn-out trial. That is very hard on the victim. I refer to an indictable offence when one knows there is a clear ground for an appeal in a matter which a trial judge makes an order on at a preliminary trial hearing. Section 6(14)(ii) should cover it where it states "where the court considers it appropriate and so directs, have effect as though it had been made in the course of the trial". If we look at that in reverse, the judge may have sufficient latitude because there could be other trials backed up when this novel point arises and it might well be in the interests of everyone, from the taxpayer to the victims, to have it settled rather than going through a long case. I believe there is just about enough latitude in the Bill for the judge to operate his or her inherent jurisdiction, which he or she should be free to do in a criminal matter.

I welcome all the measures in respect of juries but they are only tinkering at the sides, so to speak. This country needs to get real and have a complete overhaul of jury selection. Only one in five attends. I think it was an English commentator who said many years ago that jurors are largely middle-aged, middle-minded and middle-class. Despite what the judge might communicate to prospective jurors before they are impanelled, they do not understand that a stipulative number of objections are made without cause shown. There could be more transparency in the process. For instance, there is a danger in terms of those objections on a specific matter before the jury for consideration and deliberation.

Could it be engineered, if it is inadvertent or whatever, that predominantly one sex sits on a jury? It is just the way the ball rolls and if there are a number of objections, one can tell the next 20 coming before it with the majority of a particular sex. It is just something to look out for but that is for another day.

I hope the Minister will give us a commitment that she is prepared to look at a radical overhaul of jury selection. It could be made more representative of our country. We need to look at an employer's grace which allows an employee to do jury service. Is there a possibility of some form of remuneration? Some people just cannot afford to be on a jury. It is part of our criminal justice system and I would like to see jury service and participation open to many more people.

This legislation is a step in the right direction. The Minister should be commended that within a year of taking office, we are seeing such progress. I look forward to the Bill going through its different Stages in the House. The Green Party supports these common-sense and progressive initiatives, which will be to the benefit of the victim, as well as the accused, who is presumed innocent until proved guilty. It will be easier on the judges when a set system is in place. They are doing their utmost but we need some ground rules. Now these will be on a primary legislative footing. It is important society always has trust and confidence in the jury system and knows it is beyond reproach. We must always protect the jury trial system. This legislation supports the criminal law system by expediting and progressing in a constructive way how one gets to the trial hearing. The Courts Service will say the waiting times are coming down. However, in certain cases there is still too big of a wait for some people to get their case on. All the other initiatives are to be welcomed.

Senator Martin Conway

I welcome the Minister, Deputy McEntee, to the House. The Criminal Procedure Bill 2021 is progressive legislation in terms of modernising our criminal justice procedures. It is very welcome that, within a year of being in office, the Minister has brought before Members recommendations made in numerous reports over the years, most recently in the O'Malley report. It is appropriate that we look at modernising the way we operate the jury system with legal argument. One could have a jury sworn in but then there is a delay, sometimes for days, while a legal argument takes place and the jury has to wait outside of the courtroom. This can create a negative impression and experience for those serving on a jury.

Jury service is something one does for one's country. People are and should be obliged to do it. I agree we need to fundamentally look at how we go about selecting people to serve on a jury. Between 70% and 80% of people initially selected to serve on a jury ultimately end up not doing so. There must be something wrong with a system in which that happens. People who are excused from serving on a jury for a whole myriad of reasons, many of them very valid, end up being reselected quickly again.

There are others who go through life and are never selected to serve on a jury. There is an inconsistency there, which needs to be looked at. I have no doubt that when we enact this Bill - I am very confident that it will be passed by the House - this is a job of work that should be done post implementation.

Having a pretrial engagement and a pretrial hearing in the absence of the jury to deal with obvious legal argument is a very common-sense approach that should, quite frankly, have been done years ago. Then the obvious hiccups, legal arguments and disagreements would have been ironed out. When a case proceeds to trial, there are unforeseen circumstances and unaccounted-for scenarios where legal argument is necessary. We live in a democracy and have a proper legal system where that must be facilitated and has to be permitted. It would be very worthwhile, however, if this type of thing could be ironed out as much as possible at a pretrial hearing.

I agree that the corporate and civil courts have certainly advanced significantly in modernisation. The criminal side is sadly lacking and has a lot of catching up to do. During the past 12 months, we have seen an intent, a determination and a focused energy to bring it into line with best international practice. I do not believe we should be striving to be on a par with international practice. Ireland should be leading in that regard.

I am glad also that there has been an improvement in the time delays with cases in the Four Courts. That remains a problem. Thankfully, we are seeing that things are being escalated and cases are being dealt with a little bit more quickly than previously. That is to be welcomed. We have, however, a large body of work to do in this House to modernise criminal legislation. There is a great deal that needs to be done. It has not at all been victim-centred until recently. It should always be victim-centred. It in no way compromises any justice system to ensure that the feelings and attitude towards victims are centred on them in all proceedings. I could talk and give examples and case studies of experiences that come through my office, but I will leave that for another day. This legislation is important and I hope it gets all-party support.

Senator Michael McDowell

I welcome the principle behind the Bill, but I want to sound a few warnings. Senator Conway has just spoken about the speeding up of trials. That is illusory at the moment on two fronts. Ireland has a very poor record on the timing between the detection of an offence and the trial relating to that offence. A cynic told me recently that Bernie Madoff would probably be on his second preliminary judicial review had he been arrested in Ireland. Mr. Madoff was convicted and in prison in the United States of America and, unfortunately, is now deceased. This also goes to the trial of Derek Chauvin for the killing of George Floyd, which is happening now in America. In Ireland, that case could probably take place some two years or 18 months hence. It took place roughly within ten months of the offence happening and very shortly after the decision to prosecute took place.

Second, I welcome the idea that juries should not be sent out, time after time, for every point to be argued in their absence. I did a fair amount of criminal prosecution in my time and I can tell Members the situation has worsened very considerably compared with what it was when I was both a prosecutor and a defender. In my time, it was possible to have burglary trials and, indeed, sexual assault trials completed in two days. That was the norm. A three- or four-day case was considered very substantial. However, everything has become much more complicated, fought over and disputed. That is why the preliminary determination of issues is important.

We got rid of the preliminary investigation in the District Court to see if there was a prima facie case and we pushed the matter on to circumvent that in order to speed up the hearing of cases. It may have had a beneficial effect, but we must also bear in mind that we are incredibly slow in the prosecution of offences, even compared with the United Kingdom. For people in rape cases and the many types of victim crime, it is a harrowing experience. It is also so from the point of view of the accused if the accused is, in fact, innocent. The fact that it takes years for an adjudication is very wrong. I am a great fan of jury trial, and I believe that the constitutional guarantee of jury trial, other than in minor cases, should be upheld. However, I must make the point that one of our problems is delay. The Minister might not like me saying this, but one of the side benefits of the massive delay in our system is that the prison system is able to cope with a much more elongated criminal justice system than would be the case if we had speedier trials of criminal offences.

I wish to raise a point. Senator Ward pointed out in his speech, which lasted eight minutes, some things which should be considered. The time he had was obviously inadequate, and the time I have is inadequate too. I would love to say many other things about this legislation. I do not believe, for example, it would be great for opening speeches to be made available to juries. That would probably confuse juries because, as Senator Ward said, there is a major difference between evidence and what an articulate advocate might make of the prosecution case or the defence case or the claims that may be made in such a speech.

The second point I wish to make relates to when there is a voir dire, a preliminary decision on the admissibility of evidence, which is what this is all about. If the issue is, for example, whether a member of An Garda Síochána said to the person outside the interview room that if he or she does not confess inside, his wife or her husband is going to be arrested and their children will be taken from them or, alternatively, the member says "I have given you a thump and I will give you another thump", that issue, if it is determined in advance by a judge, is currently determined on the criminal standard, or is supposed to be. In many respects, that is questionable philosophically. I will finish shortly, Acting Chairperson. If a judge is confronted with a conflict of evidence, such as "He did say that to me" and "No, he did not say that to me", can a judge reasonably say he or she is satisfied beyond reasonable doubt that he did not say that, if it is just one person's word against the word of another? There are cases where issues such as that should go directly to the jury for it to decide. Some admissibility issues are better left to the jury to decide, such as whether a threat was made before the confession was made. Public satisfaction with the outcome of trials could be severely impaired if admissibility is determined by a judge purportedly on the standard of proof beyond reasonable doubt in circumstances where he or she, effectively, has to brand the accused a liar before the evidence goes in.

Minister for Justice (Deputy Helen McEntee)

I thank the Senators for their important contributions to this debate. I note some of the points made.

On the point Senator Ward made about the exact wording around no previous hearings, it is only to say that the prosecution or the defence is entitled to a preliminary trial hearing for a relevant offence if there has not been one but it does not preclude it from having a second one. Again, the court would have to decide whether that is suitable or not.

On the second point made by the Senator, and Senator McDowell raised the same point, about the opening statements, this is something we had looked at. Obviously, there was consideration by the Law Reform Commission. It is based on those recommendations that it is included now but I take the point made.

In terms of time for expert witnesses etc., there is a provision for ten to 28 days. It does not mean it has to be 28 days. There is flexibility for the court again and it is for the judge to decide that it can remain at the ten days.

Senators Mullen and Martin mentioned jury selection. There was quite a lengthy discussion in the Dáil when we discussed the Criminal Procedure Bill. There is a great deal that can be done and be of huge benefit in the jury selection system being modernised. That is something the Department is looking at and I take on board a number of different points raised. The fact that, as Senator Martin rightly pointed out, one in five people takes this up is a clear indication that we need to reform the system for some of the very reasons outlined, and that is something we are looking at.

On the specific point Senator Bacik made about Coco's Law and training, part of Supporting a Victim's Journey, which is the implementation of the O'Malley recommendations, is a clear focus on training not just for members of An Garda Síochána but for the legal profession, the Judiciary and any person who comes into contact with a vulnerable person. Training has been conducted and rolled out to all members of An Garda Síochána in the divisional service protective units. Work is currently under way with Detective Chief Superintendent Declan Daly and others to ensure training is rolled out to all members of An Garda Síochána. I expect that will be part of the overall training of this year.

As was said, it is about not just introducing and implementing legislation but also making sure the people who are actually enforcing the legislation understand it and know it is there, and that those who need to benefit from it can do so.

Senator Ó Donnghaile made a point about arraigning the accused. It is not always needed, perhaps, where there is an initial case management scenario but wherever the court thinks it is appropriate, then obviously this is something that is possible.

In terms of disclosure being complete before a preliminary trial hearing, one of the purposes of a hearing is to deal with disclosures, where needed, so this is not workable but, hopefully, this will be of great help in dealing with difficulties with disclosure.

I thank Senators for their positive responses to this Bill. Senator Mullen suggested we could have included this as part of other legislation, and that we would try to be more effective. This is something that has been discussed not only since the report in 2012 but before that in the 2006 report and for me it was really important that this legislation was introduced for all of the reasons we just outlined, to make sure we have a more efficient and a more effective criminal justice system and for those going through the system, be they defendants, those prosecuting or jurors, that it is a more efficient and a more effective system. While this Bill is technical, the changes in it are quite profound. Our courts and those who use and work in them deserve to encounter a system that is modern, efficient and fit for purpose in this day and age. I hope this legislation will go some way towards doing that.

I wish to acknowledge the engagement and assistance of everyone who has contributed to the legislation. In particular I thank the Director of Public Prosecutions, DPP, the members of the legal profession who have given their insights into this problem and the Attorney General, who has worked very closely with my Department to find solutions that are practicable and workable in the very complex arena of a criminal trial.

The reforms in the Criminal Procedure Bill are designed to streamline a trial process to ensure the legislation on our Statute Book supports the effect of an efficient running of criminal proceedings. This Bill presents and achieves that aim and I therefore commend the Bill to the House.

On the question as to when we hope this Bill will be enacted, we may have Committee and Remaining Stages in the Seanad next Monday but that needs to be fully agreed.

Obviously, once that happens, it will go to the President for signing. I will commence it as quickly as possible but it is important that we engage with the Courts Service to make sure the right practices, procedures and measures are put in place to ensure it can be enacted as quickly as possible. We are doing that.

Question put and agreed to.

Sitting suspended at 3.46 p.m. and resumed at 4.15 p.m.

Seanad Éireann díospóireacht -
Monday, 19 Apr 2021