I am opposed to section 1 because it is consistent with my opposition to section 2. Similarly my opposition to other sections is related to my opposition to section 2. I will deal with section 2 when we come to it.
SECTION 1.
Question proposed: "That section 1 stand part of the Bill."
If section 2 is amended on Report Stage a number of other sections would also need to be amended. Therefore I will leave the substance of what I want to say until we reach section 2.
Question put and agreed to.
NEW SECTION.
Amendments Nos. 1, 2, 3, 17 and 30 are related. We will take them together. Is that agreed? Agreed. Acceptance of amendment No. 1 involves deletion of section 2.
I move amendment No. 1:
In page 3, before section 2, to insert the following new section:
"2.—(1) The Minister for Justice is hereby authorised to set up an independent body of inquiry to be known as the Tribunal to Review Alleged Miscarriages of Justice and which shall have power to—
(a) enforce the attendance of witnesses, and their examination on oath, affirmation or otherwise;
(b) compel the production of documents;
(c) issue a commission or request to examine witnesses outside the jurisdiction;
(d) hold in contempt, similar to contempt of the High Court, a person who
(i) on behing duly summoned as a witness, without just cause or excuse disobeys the summons, or
(ii) being in attendance as a witness refuses to testify when legally obliged to do so, or without just cause fails to produce documents, or
(iii) wilfully gives material evidence which he knows to be false or does not believe to be true, or
(iv) by act or omission obstructs or hinders the inquiry in the performance of its functions, or
(v) fails, neglects or refuses to comply with the provisions of an order made by the Committee, or
(vi) does or omits to do something which, if the Tribunal had been the High Court, would have constituted a contempt of that Court.
(2) The Tribunal shall be constituted and shall have the same powers as if it were a tribunal established under the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979.
(3) A person—
(a) who has been convicted of an offence either —
(i) on indictment, or
(ii) after signing a plea of guilty and being sent forward for sentence under section 13 (2) (b) of the Criminal Procedure Act, 1967, and
who, after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and
(b) who alleges that a new or newly-discovered fact shows that there has been a miscarriage of justice in relation to the conviction or that the sentence imposed is excessive,
may, if no further proceedings are pending in relation to the appeal, apply to the Tribunal for a recommendation that the Court should make an order quashing the conviction or reviewing the sentence.
(4) Subsection (3) shall not apply to a person who has entered a plea of guilty to an offence unless he also alleges that if the new or newly-discovered fact had been known to him at the time he entered the plea he would not have entered it.
(5) An application under subsection (3) shall be treated for all purposes as an appeal against the conviction or sentence.
(6) The reference in subsection (3) (b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings or a fact the importance of which was known to a party to the proceedings who declined to bring it before the Court.
(7) Where —
(a) after an application by a convicted person under subsection (3) and any subsequent re-trial the person stands convicted of an offence, and
(b) the person alleges that a fact discovered by him or coming to his notice after hearing of the application and any subsequent re-trial or a fact the significance of which was not appreciated by him or his advisers during the hearing of the application and any subsequent re-trial or a fact the importance of which was known to a party to the proceedings who declined to bring it before the Court shows that there has been a miscarriage of justice in relation to the conviction, or that the sentence was excessive,
he may apply to the Tribunal for a recommendation that the Court should make an order quashing the conviction or reviewing the sentence and his application shall be treated as if it were an application under that subsection.
(8) A statement or admission made by a person before the Tribunal shall not be admissible as evidence against that person in any criminal proceedings other than those of the Court under subsection (3) or (7).
(9) Evidence taken by the Tribunal shall not be excluded by the Tribunal solely on the ground that it is hearsay.
(10) A recommendation and any report of the Tribunal under this section shall be admissible in the Court as evidence for the purposes of proceedings of the Court under subsection (3) or (7) to quash a conviction or to review a sentence".
This is a detailed amendment and may have many imperfections. I do not mean to be grudging when I point out the Minister, the Chairman and a convenor are all from the Government side and are provided with resources.
Will the Deputy tell me what they are?
The Minister is able to work it out himself.
It is difficult for me, speaking on behalf of 62 Members of the Oireachtas and not having any resources. Deputy Harney and I made this point on the last occasion. The amendment may have shortcomings but it sets out to provide what the Martin committee recommended.
One school of thought says a tribunal of inquiry should not be able to overrule a court. A separate school says it is possible for a tribunal or independent body to quash a court decision if it is provided for in law and if that tribunal is set up in the proper way. In order to keep my measure within both arguments, the amendment says a recommendation and any report of the tribunal under this proposed section shall be admissible in the court as evidence for the purposes of proceedings of the court under subsections (3) and (7) of the proposed section to quash a conviction or review a sentence. My point is that the Martin committee says it should not be a court. It states specially: "We doubt however whether references to the court system would necessarily prove effective in establishing the truth." The Martin committee comes down in favour of an inquiry under the Tribunal of Inquiry (Evidence) Acts as the appeals body.
It gives that for two reasons. The committee believes that a court is not the proper body to which to appeal what may have been travesties of justice or the place in which to have cases reheard. There have been incidents in the past, which have since been proved travesties, which were upheld by the courts. The difference is that courts are not out to seek the truth; they are out to see if the charge is proven. That is the difference. The court has to operate under rules of evidence, one of which is that it shall not take hearsay evidence into account. The Martin committee recommend that in these circumstances it should be possible to go outside the parameters of the normal rules of evidence and take hearsay evidence into account. In fact it goes on to suggest that a similar provision in the Civil Evidence (Scotland) Act, 1988, which allows hearsay evidence to be taken into account, should be included which would allow such evidence, which a court cannot hear, to be used and heard by the tribunal of inquiry.
This is a fundamental difference and I will have to strongly press this section. We set up an independent committee, under a judge, which looked at independent appeals procedure where new evidence comes to light to clear somebody's name. The judge and the committee said that courts are not the places in which to hear such appeals because of the way they operate and specifically because courts are not there to find out the truth. They are there to find if the case is proven. Furthermore the court is restricted in the type of evidence it can take.
If I told Deputy O'Keeffe that I murdered Deputy Power, Deputy O'Keeffe could not go to the court and say that I told him because it would be hearsay evidence. However, there was a tribunal of inquiry, an independent body, it could take such evidence, particularly if we take up the Martin committee's second recommendation which is to make a provision along the lines of the Civil Evidence (Scotland) Act, 1988.
The Bill is fundamentally flawed in that regard. I am proposing that we set up a tribunal and this could be done in a number of ways. The tribunal could comprise people nominated by a panel, made up of the Chief Justice, the Ombudsman and the DPP — any sound group of people could be put together to nominate that independent tribunal. The tribunal would seek the truth and not whether the charge stands up. It should be empowered to hear whatever evidence it feels is necessary. That is what Judge Martin and his committee recommended. They recommend completely against reference to the court system. I repeat the quote: "We doubt however whether reference to the court system would necessarily prove effective in establishing the truth." Note the words "the truth".
If somebody claims, having gone through the court of procedure, that he or she is not guilty of the crime — it has happened in recent times and may have happened a number of times we do not know about — it should not be only possible for him or her to have the case reheard based on facts, it should be possible for him or her to ask an independent tribunal to seek out the truth without being confined by the traditional court procedures or rules of evidence. The tribunal should pursue the truth, and that is what the Martin committee recommended. It should be able to take a broader spectrum of evidence than is possible under the court system.
That is why I believe section 2 needs to be replaced by my amendment or a similar amendment. My amendment provides for the establishment of a body of inquiry, to be known as the Tribunal to Review Alleged Miscarriage of Justice. That tribunal would have the right to enforce the attendance of witnesses, to compel the production of documents, to issue a commission or request to examine witnesses outside the jurisdiction, to hold in contempt, similar to the High Court, a person who fails to comply with a summons, and various other matters I have set out in my amendment. I state that the tribunal shall be established and shall have the same powers as if it were a tribunal established under the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979, and I set out what I believe should be the powers of that tribunal.
If it is possible to confer that authority on a tribunal by law, and I understand it may be, I will have no objection to a tribunal overruling a court, but I am not sure if that can be done. In order to get over that particular problem, if it exists, I suggest that a recommendation and any report of a tribunal shall be taken in the courts as evidence for the purpose of proceedings of the court under subsections (3) or (7) to quash a conviction or to review a sentence. Whereas the court would not have heard the hearsay evidence itself, or any other evidence which it could not hear, it could take as evidence the report of the tribunal. It would be a tidier operation if the tribunal was empowered to overrule a court.
We should not be too concerned with face-saving or observing technicalities. We should be concerned with pursuing the truth and allowing whatever evidence is considered necessary to do that. The Martin committee came out strongly against the route the Bill takes and strongly in favour of an independent body of inquiry. I ask the Minister to accept this amendment and to go all the way along the lines of the Martin report.
We are at the core of the Bill when we are talking about this amendment. On the one hand we have from the Minister in section 2 of the Bill a procedure whereby somebody who feels that there has been a miscarriage of justice may apply again to the Court of Criminal Appeal for an order to review the sentence or to quash the conviction. It seems that this procedure does not meet the recommendations in the independent report of Judge Martin. The centrepiece of this report is the recommendation of an independent tribunal and essentially the Fine Gael amendment calls for the implementation of the report. That is the difference between ourselves and the Government and it needs to be teased out in this Committee.
The background is simple. We are talking about how miscarriages of justice should be dealt with in this country. Over the years, when there was a lot of controversy about supporting a review of the convictions in the Guildford Four, the Birmingham Six and other cases in the UK, it was odd that senior politicians here could stand up with a straight face, whether within the House or outside, and heap odium and contempt on the UK authorities for their failure to move on certain miscarriages of justice while we did not have any procedure here. It was ridiculous that we did not move to at least give us some standing and ensure that there was a proper system in place.
Now, apparently, we are moving towards that goal, but what did we do? The Government of the day — the Fianna Fail-PD Coalition — set up an independent inquiry under Judge Martin — one of our most experienced judges, who was chairman of the committee — which included people from different walks of life, including Henry Abbot, Barrister at Law, a former colleague of the Minister in the House, solicitors and people from the Department of Justice. It seemed to be a balanced committee. However, we find it difficult to understand why the Government have not taken the central recommendation of that committee and put it before the House for approval.
Essentially, and Deputy Gay Mitchell referred to this point, the Committee carefully examined the possibility of the approach now adopted by the Government and concluded that it was the wrong approach. It set out cogent reasons that an independent tribunal was necessary. It pointed out the circumstances in which miscarriages of justice could arise — mistakes in identification, problems with forensic tests — this was central in the case of the Birmingham Six — advances in technology, etc. It also showed that we did not have a procedure — despite any analogy here to the power of the Home Secretary in the UK — to refer a case to the Court of Criminal Appeal. It then examined what should be done in the event of new evidence becoming available which might give rise to the suggestion of a miscarriage of justice when all legal avenues had been explored. It categorically says that unless a court were to relax the rules of evidence in such cases, but not in others, it would not appear to be most suitable forum in which to pursue what must essentially be a matter of inquiry. The amendment tabled by Deputy G. Mitchell seeks to have a form of inquiry set up, whereas it is fair to say that the approach adopted by the Minister is principally a reference back to the Court of Appeal.
In the light of the amendment tabled, there is a huge onus on the Minister to justify his approach here. Judge Martin categorically said that in such circumstances further recourse to the court system is like to prove highly inappropriate, as must recourse to any system, other than one which is essentially inquisitorial in nature — which our courts are not. That is the problem. Deputy G. Mitchell is proposing that we set up a statutory inquiry body which would search for the facts — he mentioned the truth — and would not be constrained to the same degree as our courts, from the point of view of hearsay evidence and giving immunity from prosecution to those willing to come forward and testify before the tribunal. There are clear and categorical recommendations to establish, by statute, an independent inquiry body. Essentially, what Fine Gael suggest is that the recommendations made in that regard should be complied with.
Finally — other Deputies will want to contribute, hopefully in favour of the independent tribunal and the Martin report — Judge Martin strongly highlighted the old saying that not only must justice be done, but it must be seen to be done. He wanted a body of inquiry sitting in public, consisting of one or more persons sitting with or without an assessor and most importantly, the chairman of the body must have considerable experience of criminal law. He proposed that there would be a preliminary procedure of approaching the Attorney General, but the core consisted of a body that would be inquisitorial in nature rather than based on our normal court set-up which is based on the adversarial system. I have heard nothing, in a public debate or otherwise, which would cast doubt on the approach recommended by Judge Martin. I heard some concern expressed in judicial circles. I have no knowledge of what those may have been, and maybe the Minister can enlighten us. However, the onus is on the Minister to justify the approach he is following which largely runs counter to that recommended by Judge Martin. The House should follow the report and on the basis, support the amendment.
Before I call the next speaker, since we are on Committee Stage, I would remind Deputies that you may remain seated when making your contributions.
It appears to me, listening to the Second Stage debate and the contributions on Committee Stage that, with regard to section 2, it seems to come down to a choice between a committee-type tribunal of inquiry or recourse back to the Court of Criminal Appeal with powers which have not been referred to by the two previous speakers, in section 7, enabling a Minister to set up a committee with terms defined in section 8. I know we must confine ourselves to the amendment, but you will appreciate, Sir, that if I cannot refer to the facility in section 7, which is defined and spelt out clearly in section 8, I am limited as to how I can respond to the two previous Deputies.
Not being familiar with court procedure or procedure for appeals to higher courts, I must inform myself what the real choices are and what their implications would be. Looking at the Martin report, I have to sympathise with much of what Deputies G. Mitchell and O'Keeffe said. Page 11 of the report says that justice would appear to require that such matters, which are the subject matter of his Bill, be inquired into and given the fullest consideration.
The report states "unless a court were to relax the rules of evidence" there are many Deputies here who would be more familiar with the rules of evidence and what they mean than I. This morning I read a simple explanation of the rules of evidence and it appears the Martin committee was unfavourably disposed to allowing a relaxation of the rules of evidence in certain selected cases. This was ruled out as one could not relax the rules of evidence in a selected number of cases. The report ruled that out in the interests of uniformity, which is another approach to fairness. The report favoured the establishment of a statutory body of inquiry to which Deputies referred. It stated that further recourse to the court system is likely to prove inappropriate. As Deputy J. O'Keeffe said, this is true of any system which is not inquisitorial by nature, and the courts are not. We are talking about hearsay evidence and the need to make inquiries and to take on board information and evidence which the rules of court do not allow. If one opts for this, one rules out section 2 as proposed by the Minister.
Why has the Minister proposed a dual system? On the one hand, section 2 provides for recourse back to the Court of Criminal Appeal, while on the other, section 7 empowers the Minister to set up a committee of inquiry with, I understand, the full powers of a tribunal as defined by Deputy G. Mitchell's amendment and section 8 of the Bill. Is her concern that it would be inappropriate to deal with the matter outside the court system? Would it be better to leave it to a dual system where one form of recourse would be to the Court of Criminal Appeal and the other would be the establishment of a committee at the discretion of a Minister? What are the merits of a dual system vis-�-vis the system recommended by the Martin committee? Perhaps the Minister will enlighten me whether the Martin report recommended that a tribunal of inquiry be established on a permanent basis. As part of the dual system, the Minister recommends that a committee of inquiry be appointed on an ad hoc basis.
Although I empathise with what Deputy G. Mitchell and Deputy O'Keeffe said, I would be concerned about the establishment of a permanent tribunal of inquiry. Recent experience should have taught us that we should be concerned about the establishment of a permanent tribunal of inquiry. I would be concerned about the extent to which controls could be exercised on such a tribunal and whether there would be sufficient work for a permanent tribunal. Perhaps the Martin report did not recommend the establishment of a permanent tribunal. I would like to know what it recommended in that regard. Why are the Government and the Minister opposed to a single tribunal of inquiry system to facilitate cases which have not been resolved through court appeal procedures? I look forward to the Minister's reply in this regard. Based on what he has to say, I might be tempted to ask him to further consider the establishment of a tribunal on Report Stage.
I tabled amendments Nos. 2 and 3 which are similar in intent to that of Deputy G. Mitchell's. Both amendments address the same point — whether alleged miscarriages of justice should be addressed by way of a committee of inquiry or by reference back to the courts. We are dealing with the core issue in this legislation. The way it is being dealt with is a good example of how business is done in this country; perhaps business should not be done in this way.
This problem was identified in the 1980s. Despite the fulminations about miscarriages of justice in Britain, there was an inadequate mechanism to deal with them, but we did not have such a mechanism. We had examples of miscarriages of justice, such as the Nicky Kelly case and the Sallins mail train case. This showed that miscarriages of justice can and do occur in our jurisdiction and something must be done in this regard. The Government did what governments usually do when faced with a problem, they set up a committee. The committee included a judge, a number of eminent lawyers and the Assistant Secretary at the Department of Justice. The committee was set up at the end of 1989. It dealt with business quickly and it produced a report at the beginning of 1990. Invariably the Government ignores such reports but in this case it has gone one step further and introduced legislation which flies in the face of the core recommendation of the Martin report.
Deputy L. Fitzgerald mentioned the two ways to approach an alleged miscarriage of justice as addressed by the Martin report. The report examined the case of a straight reference back to the court. It recommended against this and gave a number of specific reasons alleged miscarriages of justice should not be addressed by the courts. The report pointed out that the courts rely on the rules of evidence and the examination of alleged miscarriages of justice would require a degree of inquiry and investigation which is not the way the courts do business. Furthermore, the report raised a constitutional question. It stated that the court of final appeal is the Supreme Court and that the Constitution provides that the decision of the Supreme Court shall in all cases be final and conclusive. Before a citizen who had unsuccessfully exercised his legal option of appeal to the Supreme Court from a conviction by the Central Criminal Court could further litigate within the court system, a referendum to amend the Constitution would be necessary. Unless the court can relax the rules of evidence, a court would not appear to be the most suitable forum in which to pursue what is a matter of inquiry.
As its central recommendation, the report stated that alleged miscarriages of justice should be dealt with by the establishment of a committee of inquiry. Nothing could be more clear. The report looked at the options of going back to the court and the establishment of a committee of inquiry. The committee decided, and gave reasons for their decision, it should not go back to the court but should be dealt with by a committee of inquiry.
Three years after the publication of the report, the Government has introduced legislation which proposes to do what the Martin committee said should not be done. It proposes that alleged miscarriages of justice should be dealt with by the courts. Deputy L. Fitzgerald drew our attention to section 7 of the Bill where a committee is established by the Government for the exercise of a presidential pardon. That does not deal with the case. The Martin committee dealt with the question of presidential pardons and pointed out that in cases of presidential pardons one is dealing with a situation where the person concerned is cleared of "all infamy". The Bill acknowledges that there may be miscarriages of justice which do not necessarily involve clearing the accused and convicted person of all infamy. A miscarriage of justice may occur where a lesser charge should have been pursued because the person convicted may not have been guilty of the more serious offence for which that person has been convicted. Having a committee of inquiry just to deal with cases which would lead to a presidential pardon does not address the entirety of the cases at all.
There is a question that has to be addressed here — I adverted to it on Second Stage when it was not answered — and that is: why has the Government abandoned the Martin committee's recommendations? Some clue to that might be found in a report which appeared in The Irish Times of 17 February 1992 dealing with possible reasons why nothing had happened following the publication of the Martin committee’s report. The article said:
The day the Martin report was published — March 30th, 1990 — the Government announced that it accepted its recommendations "in principle". But nothing happened. It is now an open secret in legal circles that behind-the-scenes but nonetheless vehement judicial opposition did much to ensure that the committee's proposals have not yet been implemented.
Could it possibly be that the reason the Government has done a complete volte face on the Martin committee’s recommendations is that there were judicial representations behind the scenes to delay action on the implementation of legislation based on those recommendations and that the judges were not going to wear what was contained in the Martin committee’s report? If that is the case — and I have not heard any other reason why the Government should have done a volte face on the Martin report — then it raises here the spectre of Lord Denning, who, when faced with the prospect that the judicial system in Britain might have to eat humble pie and recognise that it had made a mistake, could not take it. The “appalling vista” that has now become part of folklore was too much for the British judicial system.
Could it be that the Irish Judiciary cannot take the appalling vista that miscarriages of justice can occur within the Irish judicial system? Further, could it be that the Irish judiciary, or at least sections of it, cannot take the appalling vista that a body could be established outside the courts to investigate allegations of miscarriages of justice? That is an important point, because when we are talking about referring allegations of miscarriages of justice to the courts, we are effectively asking the courts to re-examine their own record. We know from experience that, whatever the courts may be good at, they are not very good at acknowledging that they have made a mistake. We have seen examples of that both in this country and in the neighbouring jurisdiction.
If we have a situation where from all evidence available to us the courts are reluctant to acknowledge a mistake, then it seems to me that, as the Martin committee concluded, that is not the appropriate place to which to refer back an alleged miscarriage of justice. The appropriate way of dealing with it is by way of establishing a committee of inquiry. The two amendments I have tabled, which are in similar vein to Deputy G. Mitchell's are aiming at the establishment of a committee of inquiry. I am not pushed as to which formula the Minister might wish to accept or adapt, because, as Deputy Mitchell said, unfortunately on the Opposition side of the House we have to table these amendments from the point of view of principle rather than from their technical correctness. There may be technical faults in the amendments that have been tabled but the principle that has to be resolved is whether or not the Legislature is actually going to do what Martin recommended or whether, as the Government is now proposing, it is going to do the very thing that Martin recommended should not be done.
The ordinary people of Ireland would not have a great knowledge of criminal procedure in this country, but many people were surprised when during the 1980s it became obvious that we had no mechanism in place to deal with miscarriages of justice. We were critical of our near neighbours in the way that their system operated and it became embarrassing for us when we realised what the situation really was in Ireland. With that in mind the Government decided to tackle it and set up the committee under Judge Martin. In fairness to them, it was different to many other committees in that they were set up in November 1989 and within four months their report had been produced.
I find myself agreeing with much of what the other speakers have said. I would have to ask a couple of questions in relation to the Bill before us. If one looks through the Martin report and sees the number of written and oral submissions that were made from a cross-section of the community, including many people who were involved in the day to day running of the criminal justice system, it is obvious that the Martin report strongly recommended that the courts system is not the appropriate body to deal with miscarriage of justice cases. Judge Martin said that further recourse to the courts system is likely to prove inappropriate. That is the core of the report, but we are going against it in this Bill. I would like to ask the Minister what additional information caused him to ignore this recommendation from Judge Martin's report. If that question could be answered I would be much happier and it would make life much easier for the rest of us.
We have to look at why the Martin committee was set up. It was set up so that we could learn from the lessons of celebrated miscarriages of justice in the United Kingdom. It was set up to look into whether there was a need to have a procedure here whereby such miscarriages of justice cases could be reopened. Having looked at the whole area, including pardons and their effects, the committee came down firmly against the judicial referral back to the court and in favour of an independent statutory tribunal.
If the Government persists in flying in the face of the Martin recommendations, then we are refusing to learn the lessons of what happened in the Guildford Four and Birmingham Six cases, because in those cases the courts were part of the problem. That is the fundamental finding of the Martin report, having learned the lessons and having looked at the tendency of judges to be conservative and to be hostile to reversing their own decisions on appeal. Judges have a vested interest in upholding their own precedents and their colleagues' decisions. They also tend to support the status quo and the police. That is the whole reason the Martin committee recommended that we should take the procedure out of the trial and appeal system and bring it under the cold eye of a formal, statutory body of inquiry, which would be able to deal with it appropriately.
The amendment tabled by Fine Gael is basically what the Martin committee recommended. I oppose this section, and my party opposed it on Second Stage, because it sets up a system whereby the procedure is back to the courts in a very open way. It means that people can keep referring back and finding new facts. As was pointed out on Second Stage, there are people who sit in jails trying to find new facts on which to base a miscarriage of justice case. It is essential that we have a system which will allow cases involving miscarriages of justice to be re-opened is essential but it is far preferable to set up a statutory inquiry which will have the flexibility to take hearsay evidence and grant immunity from prosecution to a perjurer who comes forward to say he perjured himself in the first trial. What perjurer will volunteer to give evidence if he feels he is going to be open to criminal prosecution as a result? A tribunal would be empowered to give him that immunity whereas a court would not.
It is essential, even if we spend all of Committee Stage discussing section 2, to get an explanation from the Department and the Minister as to why he has not accepted the clear recommendation of the Martin Committee. This has not been justified in any sense.
The courts are bound by the rules of evidence and cannot make decisions based on rumour and public or media hype. They do not have powers to inquire in the same way as tribunals because they operate an adversarial system. The beef tribunal provides an example of the powers of tribunals to examine issues of urgent public importance. The purpose of the inquiry body now being proposed is to allow those who sincerely believe they are victims of miscarriages of justice, and are unable to obtain the support necessary for a joint resolution of the Houses of the Oireachtas to establish a public inquiry, to have their cases reopened.
I cannot understand why the Minister is offering a duality of options. I considered this issue over the weekend and listened to the contributions of the officals today. The Minister is offering the options of referring the case to the court of appeal and the setting up of a committee in relation to pardons. In opposing section 2, I am not proposing an alternative section because sections 7 and 8 deal with the issue. The arrangements provided in these sections would be sufficient to deal with all miscarriage of justice cases. I do not see the need for these two options. The Minister is half implementing the recommendations of the Martin committee. This is satisfying nobody and confusing everybody.
It is also opening the floodgates to a series of applications under section 2 to have cases re-opened again and again. The dangers of this have been pointed out. People will have nothing to lose. They will be able to produce new facts. I understand from the legislation that defendants will not suffer as a result of errors by their barristers. I accept this should be the case because they do not have legal address against their legal advisers. However, this will also contribute to a flood of cases of various importance involving miscarriages of justice being referred back, under this Bill, to the Court of Criminal Appeal.
My big fear is the justice system will be brought into disrepute by a series of such cases, or evidence presented in them, being rejected by the Court of Criminal Appeal on the basis that they are vexatious. This would not be desirable. It is important to have thresholds and vetting procedures but it is far better to have a system which does not involve the courts. An independent tribunal should be free to set up its own arrangements. This would serve the cause of justice very well.
In celebrated cases in England the judges dismissed the evidence of police officers, who were supporting the claims of people who had been abused in prison, as unreliable and perjury. This will happen again if section 2 is agreed because the intransigence of some judges will lead them to refuse that such an appalling thing could have happened and that our police force could possibly have been involved in such actions.
It is vitally important there is a finality in respect of jury trials. In the Court of Criminal Appeal only one judgment is issued. There is no option of dissenting judgments. It is very important in the development of jurisprudence that there be room for a dissenting judgment to be made. Courts which have judges but no juries have been shown over the years to be inferior to jury courts. It is very undesirable that cases could be opened up time and again.
The Minister should explain whether he considers a pardon is not sufficient and does not affect the conviction, that it suggests clemency and forgiveness rather than lack of guilt. This is one of the reasons the Minister is offering the option of referring cases back to the Court of Criminal Appeal. He does not feel a pardon is sufficient. We have to look at the legal effect of a pardon. There is a body of jurisprudence which says a pardon does affect the conviction, it restores the position of the person that existed prior to conviction, as if he had not been convicted. It is important for us to examine this. It is not examined in this Bill. It could have provided the opportunity for the legal effect of a pardon to be stated in law. It is dealt with in section 7 but not sufficiently.
I would be very worried if pressure had been put on the Minister or the Department by the Judiciary because they were afraid their powers were being infringed on, or their right to make judicial decisions on such matters would be usurped by a non-judicial body. The Minister should explain his reasons for not adopting the recommendations of the Martin committee. Is it the lack of belief in the legal effect of a pardon or was pressure put on the Department by the Judiciary, after the report was published by the Martin committee, on the basis that a non-judicial body should not change their decisions and they should retain control of this area?
I strongly urge the Minister to remember and learn the lessons from the Guildford Four and Birmingham Six cases that judges were part of the problem in those cases. We are giving this responsibility back to judges. It would be a bad day's work if we agree to section 2.
(Carlow-Kilkenny): It appears from what has been said that we should appoint another committee to inquire into why the commission’s report was not accepted. When I look at some of the comments and recommendations in the report I, like other speakers, am amazed that it is ignored. On page 11, which deals with courts, it is stated:
Courts reach their decisions on legally admissible evidence, not on hearsay, not on rumour. Any departure from the strict rules of evidence in the conduct of Court proceedings would in our view be entirely undesirable.
This is saying that there can be no interference with the courts, they have to abide strictly by the rules. But the report continues:
It is not impossible to conceive of cases in which, years after conviction, with all legal avenues explored and all appeal procedures exhausted, there might come to light a mass of cogent information and documentation inadmissible as evidence in Court proceedings, but of such a nature and emanating from such sources as to cause fair minded persons to have grave doubts as to the propriety of the conviction. Justice would appear to require that such matters be inquired into and given the fullest consideration. Unless a court were to relax the rules of evidence in such cases but not in others, a court would not appear the most suitable forum in which to pursue what must essentially be a matter of inquiry.
The report goes on to say — this has already be quoted —". . . we feel that further recourse to the Court system is likely to prove inappropriate as must recourse to any system other than one which is essentially inquisitorial in nature, which our courts are not".
Judge Martin was appointed because of his legal expertise. He is not an ordinary Joe Soap like myself talking about courts with little background knowledge. He recommended that the courts were not the suitable place for this inquiry and appeal and he said it should be inquisitorial. As a result of his expertise and the evidence given to him he made these recommendations. The Minister of State must now try to avoid the issue that the Government completely ignored Judge Martin and proceeded with its own system. It shows that setting up inquiries and asking experts to make recommendations is a waste of time.
Sometimes people are overcome in court and sometimes judges are more arrogant than they should be. People can even make mistakes with identification parades, as is being shown on television at the moment. At times it is important for people to be able to get away from the whole court system and feel more relaxed. I join with the many speakers before me in expressing amazement that Judge Martin's recommendation has been stood on its head. It is hard to understand and perhaps the Minister of State might be able to explain it.
Thank you for your brevity, Deputy.
I wish to congratulate the Minister of State on bringing forward the legislation so promptly. However, I am concerned that he has brought forward legislation which I did not envisage and which I do not think was envisaged either in the Programme for a Partnership Government or in the terms of reference which were given to Judge Martin to deal with this serious matter. We have been waiting a long time for this legislation in the sense that it has not been dealt with by previous Governments. However, this Government has been prompt.
The Birmingham Six spent 16 years in prison, the Guildford Four spent many years in prison and there is a huge amount of evidence that there were substantial miscarriages of justice in Britain in the 1970s and 1980s. Here we had the Sallins case, where Nicky Kelly spent 16 years in prison before he received a presidential pardon and had to wait a further 18 months before compensation was agreed. An incredible amount of haggling took place over that and the other co-defendants in that case had similar experiences — for example, Osgur Breathnach. This committee was set up in 1989 in recognition of the fact that some serious miscarriages of justice had occurred in this and our neighbouring jurisdiction. The terms of reference given to the committee show clearly that what was intended was not a strict legal procedure for dealing with the matter but a review mechanism which would be able to get to the bottom of the problem.
The first part of the terms of reference state that the committee is to examine where there is need for a procedure whereby persons who have exhausted the normal appeals procedure — that is the court procedures — can have their cases further reviewed and, if so, to make recommendations as to what procedure would be provided and in what circumstances it would apply. It would seem that we were looking to get a mechanism, a review procedure, which was different from the strict legality, rules of evidence, presentation and so on which existed in the court procedure. That was Judge Martin's approach in coming up with a comprehensive solution.
It has already been indicated why Judge Martin rejected the appeal mechanism to the Court of Criminal Appeal, as is suggested in the Bill. He stated categorically that he did not think it was suitable and referred to the lack of inquisitorial nature in our system to examine, review and look into matters which were constrained by the strict rule of law. He stated that the law had already been found wanting in that a miscarriage of justice had occurred, despite all the constraints of the law and the due process having been followed. For that reason he decided that the appropriate body to deal with the matter was an independent body with statutory powers of inquiry. He said it was by far the most effective manner of dealing with the situation. He did not say that on balance it was the most effective manner and that he wanted to weigh up the option in relation to the Court of Criminal Appeal. He and his committee were in no doubt that this was the one, strong, effective method of dealing with the problem of miscarriage of justice.
Judge Martin then went on to state the procedures. Aggrieved parties who felt that a miscarriage of justice had occurred, whether it was the next of kin or the individuals themselves through their solicitors or another mechanism, would make a submission to the Attorney General. He stated that he regarded the Attorney General as the appropriate person to whom application would be made in the first instance because of the universal trust and respect which the office of Attorney Geneal enjoys, despite the fact that it is a Government office. Therefore, it was not going to be made in an entirely independent forum: the person who would make the first decision in relation to the admissibility or the referring of a case of alleged miscarriage of justice would be the Attorney General. That was the second stage in his procedures.
The third stage was the terms of reference. He stated that he would consider it undesirable for the inquiry body to go further than the expression of an opinion; it was not to go down the road of a judicial decision. It was to express an opinion, having reviewed, explored and examined the case. He stated that it should not go further than that because, if it were to do so, the view might be taken that it was a trespass into the judicial domain. What have the courts to fear in this procedure? What have the judges to fear? What was proposed was a new procedure for cases where, for example, new information had become available, or because of a strategy a solicitor or barrister might have operated in the circumstances, such as plea bargaining or uncorroborated evidence, but which would not interfere with the judicial domain.
The next stage of the procedure was that the statutory inquiry body would give its opinion to the Government and that it was up to the Government to then make its decision as to what appropriate action might be taken. It might, for example, commute punishment or refer the matter to the President for pardon. The procedures are carefully laid out by the Martin committee and are non-judicial in the strict sense. No other option is given.
I have strong reservations about this legislation because it has avoided those recommendations. I would have seen this as additional to the Court of Criminal Appeal rather than that the Court of Criminal Appeal might be the substitute for what Judge Martin has proposed. If we look at the details of how the Court of Criminal Appeal would examine the new facts — I will not go into it now because it comes up under other amendments — I am not sure that it would be possible to deal with it comprehensively in a judicial context.
I wish to refer to the other area which has been referred to here, sections 7 and 8. I see these as rather cumbersome sections in dealing with this matter. A whole bevy of options are presented which would all have been encompassed by the Martin proposal, which is, first and foremost, that the Minister shall make or cause to be made such inquiries as he considers necessary in relation to an allegation. Who is going to make those inquiries? Is it going to be the Attorney General? The Minister is not going to make them. Is it going to be an official in the Department? What will be the procedure when making those inquiries? How are they going to be made? Nothing is clear in relation to that matter.
There is a range of possible actions with which the Minister may proceed. He or she can refer the matter to the Court of Criminal Appeal, recommend it to the Government for a pardon or set up a committee to examine the matter. It would seem that recommendation of a pardon would come after a substantial review had taken place and not the other way around.
There is a rather confused collection of options which may result in a variety of inquiries, including initial inquiries set up by the Minister, a further committee of inquiry to be set up late in certain circumstances, the possibility of a hearing by the Court of Criminal Appeal which is referred to in the earlier section, or the Minister advising the Government to pardon without any inquiry. How can we imagine the Minister being able to do that if all the court procedures had been followed in the first instance? Section 7 confuses the situation rather than making it more lucid.
We should get a full explanation from the Minister why the Martin proposals have been jettisoned. We are, after all, parliamentarians and we are going to pass this legislation or whatever legislation we consider appropriate. If not, the Minister should go back to the drawing board and re-examine the Martin proposals as being by far the most effective way of dealing with allegations of miscarriage of justice.
This Bill is long overdue and I welcome it. My colleague, Deputy Costello, and other speakers mentioned Judge Martin's report and its recommendations. I hope that as many of those recommendations as possible would be incorporated into this Bill. I hoped that not only the proposals but also the philosophy behind Judge Martin's report would be the embodiment of this legislation. Perhaps the Minister will reply to this point.
As Deputies have said, this Bill is an attempt to bring our legislation into line with British legislation. It is good to admit that in this House. For too long we had smug, complacent commentators adopting a holier than thou attitude to British law and British police as if the malpractice and abuses witnessed there would never take place in Ireland and as if we never had any miscarriages of justice in this country. The reality is that one finds miscarriages of justice in every country in the world. They are caused by various forms of abuse and sometimes through ignorance, an incorrect interpretation of the law or a corrupt police force framing people for crimes they have not committed. There are also other reasons, such as genuine mistakes. In other cases, people deliberately pervert the course of justice.
We should admit that one can find miscarriages of justice anywhere and this Bill is an attempt to do that. I am not concerned about names or descriptions of bodies. I am more concerned about the effectiveness of the structures. Names and descriptions are not important. Some people referred to it as a review mechanism and that is good enough for what I have in mind. If it is effective, that is all we need. A rose by any other name smells just as sweet. Effective structures are more important than their titles. We must guard against frivolous or vexatious appeals, as that would be an attempt to frustrate and delay the true course of justice. In light of how cumbersome and convoluted the legal process is, I would like to see that being avoided as far as possible.
I compliment the Government on bringing this Bill before the House. I hope the Minister and the Minister of State will continue with the crusading zeal they have shown and reform all aspects of Irish courts and Irish justice. That is something of which I would approve because one should not just stop here. Injustice does not stop at miscarriages of justice. It occurs through other means such as delays, frustration and expense.
Will this measure affect legislation concerning extradition procedures? I do not know if that is possible. We heard much today about the Birmingham Six and Guildford Four and it was right that we should refer to those cases. This legislation should concern extradition procedures. Maybe the Minister would answer that question.
We have a selective morality in terms of extradition. Down through the years, people, including many members of the legal profession, have worked themselves into a frenzy about the question of extradition, mainly of paramilitaries. As the Minister knows well, because I have put down many questions in the Dáil about this, the reality is that every month criminals are extradited from Ireland to Britain. Some hundreds have been extradited since the system was set up. Nobody gives a tinker's curse about those people and whether they get involved in miscarriages of justice in Britain or get a fair trial. That does not seem to enter anybody's mind. I would not make any distinction between criminals. If somebody plants a bomb or murders somebody, he is not a superior criminal to someone who steals, as has been the attitude of many people in our society.
Some people have one attitude towards paramilitaries and subversives and another towards ordinary people. That is not good enough. Scores of people have been extradited from Ireland to Britain, so-called common criminals, and nobody bothers about their cases or whether they get a fair trial or justice in Britain. Let us have no more of this blinkered attitude to justice. We should view all people equally as they are all Irish citizens. Similarly, nobody cares how Irish people in Britain who are not subversives are treated in British courts.
I am not concerned about titles but I am concerned about the effectiveness of this legislation. The Minister might answer one question for me. I do not know if all the clauses in the amendments are relevant or whether they duplicate or overlap with the legislation. If they do, there is no need for them; they achieve nothing. Those who put them forward sounded impressive, as if the amendments are an integral part of the legislation proposed. If these amendments are relevant or can serve any useful purpose, I urge the Minister to accept as many of them as possible and facilitate consensus in this matter.
I support Deputy Mitchell's amendment. It is perfectly sensible and is in keeping with, as has already been stated, the provisions of the Judge Martin report. When I was spokesman for Justice, I received a number of letters from prisoners or their families claiming their innocence. It was extremely frustrating when one could do nothing other than say we were pressing for legislation and would table a parliamentary question to hasten the legislation. I was, therefore, pleased when I heard this legislation was being published but I was absolutely flabbergasted that, as usual, we had ignored the independent advice we were given.
I often wonder why there is such a resistance to the ordinary person's approach to dealing with problems. The language used in legislation and the language used in court prevents average individuals from going into court and defending themselves. They feel they need somebody with them. We insist on using language and procedures to protect the system. It strikes me that this is another example of the protection of the system. There would be something wrong if the Minister even dreamt of letting some independent group or other — who do not perhaps have the aura associated with judges, barristers or solicitors — deal with the law. I have always been flabbergasted by this conservative approach to dealing with the law.
It must be a horrific experience for a person who is innocent to be in prison. It must be horrific for members of their family who know that the imprisoned person is innocent. Every time I see one of the Birmingham Six or the Guildford Four, I wonder how I would have tolerated that situation and how I would have endured that for such a long time. Therefore, like Deputy Kemmy, I do not see this as a party political debate. This Bill will gain the confidence of the people we are supposed to represent.
The Minister does not seem to have any support here, except from himself and perhaps Minister Geoghegan-Quinn, for his way of dealing with this problem. Eveyone else feels the same as we feel. This is codology. The Minister is saying that if a person believes there has been a miscarriage of justice, the person must go back to the same system that put him in prison in the first place. What is wrong with having highly respected people in society examine new evidence in a cold, calculated way to establish whether there is a chance that the person may be innocent? I do not see anything wrong with that. Why were the courts set up in the first place? They were set up to protect society and to ensure that laws are implemented so that the majority of people are protected against those who work outside the system. The courts interpret those laws and make a decision. However, they are not infallible.
I often think that we have gone too far in the way we deal with law. We have taken it away from the people. If you handed a copy of this or any other legislation to people in the street, they would not be able to read it; it is in language that people do not understand. It must be a frightening experience for somebody who has not the benefit of a certain level of education to go into court. It is above their head, yet their future could be on the line. I appeal to the Minister to seriously consider and accept this amendment. According to this legislation, if a person believes that there has been a miscarriage of justice the person must go to court to see if it will agree to review the case. If a person has gone through all the normal procedures, surely someone else could have a look at it.
Judge Martin is a sensible, reasonable and pragmatic individual. He is a man of many years experience on the bench. If he says it is better to let someone outside the system have a fresh look at a case, we should take that advice. I cannot understand why the Government insists that it must go through the same establishment. We are not seeking a procedure for guilty people to get out of prison. We are trying to establish a procedure whereby some genuine person, who is wrongfully imprisoned, can have his or her case reviewed and can be released because they should not have been sent to prison in the first place.
In the event of a wrongful conviction, I want to see that there is a procedure outside the established system that will guarantee the person another fair hearing. Whatever happens after the tribunal has listened to the case, whether it should then go back to the court, where the evidence would be admissible, or go to the Government, could be a matter for debate. At least let people feel that they are being heard by an independent group who are not strapped by the antiquated and formalised system we have in our courts. For that reason I ask all Members to support my colleagues' amendment.
This legislation is very welcome. For too long we have been without a proper procedure to examine miscarriages of justice, or alleged miscarriages of justice, and I am pleased that the Department and the Minister have introduced such a Bill in the first year of this Government's term. It is worth spending a couple of minutes considering the circumstances in which people allege that they have been victims of miscarriages of justice, or where doubts arise as to whether somebody has been wrongly convicted the most obvious are the circumstances, dealt with by the Bill, when new evidence comes to light, when a fresh witness comes forward who had not previously made a statement. In such circumstances it is reasonable to say that it could be assessed and dealt with in a court of appeal. It is also fair to say that in circumstances where, for example, forensic evidence has improved, thereby allowing the courts to differently assess facts which were available at the time, the courts could probably assess the evidence and arrive at a reasonable conclusion.
There are also circumstances where that is not the case. There are circumstances where courts and judges simply make mistakes. There are circumstances where the new evidence that might come to light could not be properly tested either because counter witnesses are not available or for some other reason. There are circumstances, as acknowledged in the Martin report and in the Minister's speech on Second Stage, where the evidence would not meet the rules of evidence as provided for in the courts.
I am probably unique among the speakers so far in attempting to understand the Minister's and the Department's reasoning in their attempt to define a difference between the evidence that can reasonably be submitted to the courts and the evidence that cannot. The Minister's reasoning in her speech on Second Stage takes just a couple of paragraphs. She explicitly accepts that there are circumstances where she agrees with the Martin committee that there must be an alternative to the courts, and sections 7 and 8 are provided for in those circumstances. I understand the Department's reason for including the dual procedure in the Bill. However, I wonder about the wisdom of it. It puts the Minister for Justice in the position of having to decide whether it is appropriate to go back to the courts or to set up a committee or to simply recommend a pardon to the Government. This will presumably require the Department to set up an inquisitorial section and I am not sure that would be a positive decision.
I have previously expressed concern in this House about the petition system under the 1951 Criminal Justice Act and we could be extending that if we accept the Bill in its current form. If she goes with the dual system, the Minister may end up causing more trouble for herself than she envisages. That said, I appreciate the reasons for the provisions in the Bill. However, perhaps the Minister should consider that she may be causing more trouble than she might otherwise have done.
I am glad that we have this legislation before us. I must say, however, that it is badly drafted and confused legislation, which neither implements the recommendations of the Martin report nor the promise in the Programme for a Partnership Government. I have been interested to hear backbench Members of the Government parties talk about it, and the previous speaker and Deputy Costello were quite clear. People are surprised that the Bill, and in particular the section we are discussing, is drafted in this form. This legislation is extremely strange because it appears that a person can allege there has been a miscarriage of justice and attempt to take it to the courts. Of course, first that person has to get over the views of the court registrar who may decide that what has been submitted is not a bona fide application and may ask one judge from the Court of Criminal Appeal to look at it. If that judge looks at it and finds against the case, there is a very strange provision whereby the person who wishes to appeal may then appeal to the judge's colleagues and then, apparently, the entire Court of Criminal Appeal are to gather around and decide whether a prima facie case has been presented. The suggestion is that one judge who has turned it down will be overruled by his two colleagues. There is no reality in that.
If a person fails to get over the hurdle, under section 7 he can petition the Minister. The Minister may decide she should not deal with it at all, that it should go to the Court of Criminal Appeal. The Court of Criminal Appeal may have already rejected it at the initial stage. So what happens if the Court of Criminal Appeal has, at the initial stage, decided there is not a prima facie case, and there is a petition to the Minister and the Minister decides it should go to the Court of Criminal Appeal? What happens to the application then? The Minister has an alternative. The Minister can, as we will see when we deal with section 7, form a committee to look at it. The committee, which is some form of a tribunal operation would then come back with recommendations. This is an important area in this legislation. I do not know how any person who believes he is the victim of a miscarriage of justice will, in the early days of the workings of this Bill, if it is enacted in its present form, judge how to proceed to seek to obtain a degree of justice. The Bill is badly drafted, is legally confused, is contradictory and shows no clear political or social policy approach. It is a bureaucratic recipe for legal confusion.
I find one aspect of this interesting. I read the Second Stage speech of the Minister for Justice. She presented what was in the Bill but never gave any coherent explanation as to why she was not implementing the Martin report. Now we come to Committee Stage in a week specially set aside for the purpose. The Dáil is not sitting this week. The Opposition parties agreed because there were important measures which the Government wanted dealt with. The Dáil would not sit so that senior Ministers would be free to come into these committees and debate the contents of these important Bills. What do we find? The senior Minister is not here. She has her week off, the Dáil Chamber is closed and we have the junior Minister——
(Interruptions.)
Deputy Fitzgerald, resume your seat.
I will if I am assured that the Deputy will withdraw that remark. It is totally uncalled for an unpardonable.
Deputy Shatter, that remark was unnecessary and it should be withdrawn. The Minister of State at the Department of Justice is here to take the Bill. You should withdraw that remark, it is totally unacceptable and unnecessary. Kindly withdraw the remark that the Minister has a week off.
In so far as I have said anything that distressed the Members——
I ask Deputy Shatter to please withdraw the remark.
——I withdraw the remark. It is quite legitimate for me to comment that, on a Bill which we were told was so important that it should be dealt with in a Special Committee and required the Dáil Chamber to be made available — this is the only matter of legislative importance being dealt with in this entire building today — we do not have the senior Minister present for the discussion. It is quite legitimate for me to mention that. I am saying that because the junior Minister, Deputy O'Dea, and I often agree on issues when we meet across the airwaves.
When I was the Fine Gael spokesperson on Justice he and I were on a chat show and we spoke about the need for legislation to deal with alleged miscarriages of justice. We both expressed support for the Martin report. It seemed to me at that time that the Government intended to implement that report. Deputy O'Dea at that time was a junior Minister. I take Deputy O'Dea at his word; it seemed to me at the time that his views were sincere and that it was his view, as it was my view, that the Martin report in the form in which it recommended we deal with these issues should be implemented.
What do we find today? Deputy O'Dea is sent in to defend a Bill which not only does not implement the Martin report, but is so poorly drafted and confused that it gives no clear direction about how we are to proceed to ensure a uniform approach within our criminmal justice system to deal with alleged miscarriages of justice. I was very interested to hear what Deputy O'Dea said in justifying the form within which the Government have presented this Bill. The Minister should have been here to justify that and offer an explanation. It is legitimate to say that.
What Deputy Mitchell proposes in his amendment is the same as the intention of Judge Martin and his committee — that there should be a clear procedure to be followed by those people who allege that they have been wrongly convicted of the commission of crimes and sent to prison. Human beings are fallible. No judge is infallible, nor is any Member of this House. I do not believe our criminal justice system is so unique that there have never been miscarriages of justice. We are all aware of cases where individuals who have alleged miscarriages of justice have been released from jail. In my time as Justice spokesperson, and still occasionally, I receive letters from people who are in our prisons, some of whom make very valid cases for suggesting they are being wrongly imprisoned. There are people who write to me making such cases who are frauds, who were properly convicted and who deserved to be convicted, but over the years I have received communications from people whose predicament has worried me. They have been through the criminal justice system, they have exhausted the appeals procedures, there is nothing left for them to do, and there is a genuine worry that something has gone wrong within the system and that they are wrongly in jail for a crime they have not committed.
People in that position should be able to get proper legal advice about how they should proceed to try and vindicate their good name and have a conviction set aside. This Bill, and in particular the section that Deputy Mitchell is seeking to have amended, does not do that. This Bill seeks to set up a procedure which has its own confusion sewn into it. It will not resolve the problems in this area. The Government should think again. We deserve a detailed explanation as to why the Government have produced such a flawed piece of legislation. The Minister for Justice should, to a far greater extent, have put on the Dáil record of the Second Stage debate what her own thinking was on the way this is being dealt with.
The explanatory memorandum is equally obtuse when it deals with how the relevant sections in the Bill, section 2 and sections 7 and 8, interact with each other. It says one can go to the court, so one might petition the Minister. It does not indicate how to actually make that choice. It is not fair in the circumstances that the Minister should make the choice as to whether something is sent to a committee or to the Court of Criminal Appeal. It would be interesting to hear what the Minister has to say about this.
I also wish to raise another issue. It is right that the Bill should contain a provision of a preliminary nature to deal with vexatious applications. On principal I do not disagree with that. There must be some preliminary sifting process because there is a danger that hundreds of people properly convicted could completely undermine the intent of this type of legislation if every time they raised an issue of wrongful conviction it had to be fully processed. There would be a genuine danger that truly innocent people who are seeking to re-open their cases would find their cases submerged in a sea of false claims. However, it can be extremely difficult to work out whether something is or is not vexatious. If within the judicial system there is a bias towards believing the judges are normally right. There is a danger that some cases will be ruled out as vexatious which should not be ruled out. I would prefer the Attorney General to sift cases initially in this area rather than a court registrar referring cases for review to a single judge of the Court of Criminal Appeal.
I have another concern which perhaps the Minister of State might comment on. Assuming we get this legislation right in the end, and even assuming that some cases raised will be obviously vexatious and can be ruled out, perhaps with a procedure different to that at present, if the Government is insistent on the Court of Criminal Appeal playing this role, what provisions does the Minister envisage inserting in the Bill — because they are not there now — to ensure that the Court of Criminal Appeal is not swamped with applications? This would be inimical to fully processing proper and valid claims and would undermine the normal business of the Court of Criminal Appeal in expeditiously hearing appeals brought from the Central Criminal Court. That is another issue we need to look at.
Deputy Gay Mitchell and my other colleagues and some of the Government backbenchers have eloquently made the case as to the inadequacies of this Bill. I am glad we finally have this Bill. However, I find it confusing that we have a Bill so poorly drafted being defended by a Minister who in times gone by, on programmes which he and I did together, expressed support for dealing with this type of problem in a different way to that which this measure envisages.
Listening to Deputy Shatter one would not think there ever has been a Bill introduced by this or the last Government which was well drafted. It is almost automatic that Deputy Shatter opens by saying that "This is a badly drafted Bill".
It is like Opposition amendments.
Perhaps a little. I was nodding my head in agreement with what Deputy Barrett said — we often agree on many things — about an innocent person being imprisoned. Everybody, be they in the Judiciary or not, is horrified or shocked that an innocent person might be locked away. One cannot give a person back his or her life. I am aware of a case, the details of which I will not mention in the House, where a pardon had been granted. However, the victim of the crime involved is living in Australia because his and his family's lives were threatened if they gave evidence during the course of a case that was going on. What happens to the victims in that case? How is it that although these people were innocent their lives were being threatened? While the issue of innocent people being locked away is highly emotive, we must also remember that there are victims who cannot be brought back to give evidence when an appeal is being heard.
I would be in favour of only people qualified in the law sitting on a tribunal. I had experience in 1970 of sitting on the Committee of Public Accounts during the famous arms queries — I was going to say "trial" and in a sense it was a trial —when as laymen we were given the role of being High Court judges. We could summon witnesses and documents, and if anyone questioned our right we could have them brought before the High Court and charged with contempt. I withdrew from that committee at the time when a witness alleged that his constitutional rights were not being respected. He brought a case to the High Court which subsequently found that the committee was behaving in accordance with the Constitution. However, when it was appealed to the Supreme Court it upheld the appeal and decided that we were behaving in an unconstitutional manner.
The decision was that the law was drafted unconstitutionally.
The point was that witnesses could come forward and without any legal training we were able to question them. It almost turned into a kangaroo court. One day perhaps somebody will be interested enough to ask me more about that part of our history. However, the point is that I would be against a tribunal being set up composed of people who were not qualified in the law. Deputy Gilmore's amendment calls for at least one of the tribunal to be barrister or a solicitor. I would want them all to be either one or the other.
We have a different system here to that in Britain. The grave miscarriages of justice that occurred in Britain would not have happened here because our system is different. Certain cases go to every court in the land before coming to the Court of Criminal Appeal, and every court from the District Court to the Supreme Court might find a person guilty. We must be careful that we do not give this committee over to a group of people who would find themselves part of a star chamber, and that temptation is always there for people who are not normally engaged in legal proceedings. Our legal profession are well qualified and good, despite any arguments there may be about fees and charges etc. People will use the law as best they can to get a person off a charge if possible and to find another person guilty if possible. Often my criticism of the law was that people were to interested in the law and not in Justice, and I want to see more justice.
I welcome this Bill because it states that even at a late stage if new evidence can be produced to show that someone was wrongly convicted, it can be brought before a tribunal. This is particularly important now when there is DNA testing. Once this tribunal is set up appeals should not be delayed too long. I know of a case pending before the Supreme Court which would have come before the court a long time ago if a medical report had been sent forward. Appeals should be heard promptly once new evidence is provided.
Justice delayed is justice denied, and if there is a backlog the system will have to be expanded so that more than one tribunal can sit at the same time. I would not be in favour of a tribunal having more power than the Supreme Court. A tribunal alone should not be able to find a person innocent. They should send their findings to the Supreme Court if necessary. There should be no higher court than the Supreme Court. If need be the law should be changed to give the Supreme Court the right of decision on the basis of the new evidence given by the tribunal. No law should outweigh the decision of the Supreme Court.
I am an amateur in this field, as are many other Members. We are not all lawyers, thank God. We have Members from many disciplines and our input is important along with those who are in the legal profession. I welcome the Bill, but anybody who is not qualified in the law should not be part of the tribunal.
I also welcome the Bill. I am not a lawyer and I have no knowledge of the law. However, I can understand the need for a Bill to address the problems of people who feel, when facts have come to light that need to be read-dressed, that they have not been properly treated. I would like to take up Deputy Briscoe's point about not having lay people on the tribunal. What I would like the committee and the Minister of State to consider is that one cannot mix people. One cannot give lay people the same status as legal people. We either have faith in the legal profession or we do not. Why is it proposed to put lay people on the tribunal? Is it that we need them to watch the lawyers and vice versa? Such a system will ensure that a difference of opinion emerges. There is also an implication that if lay people are put on the tribunal, there is no confidence in the people who make up the main body of the tribunal.
I am suspicious of the legal system because I do not know it, and it is natural to be suspicious of something one is not quite sure of. However, we must make up our minds as to whether we are for or against it. If we are for it, then it must be accepted that there is nothing else to put in its place. Sometimes decisions are made in the courts by juries, which are comprised of lay people. Quite often their decisions are unusual and go against much of the evidence presented by the legal profession, evidence which the observer would conclude as being realistic and of substance, justifying a different decision. Therefore I would be worried about mixing lay and legal people on tribunals.
Regarding the question of people in prison requiring recourse to the law in order to have their cases re-examined, as many opportunities as possible should be made available to people to redress their problems. Any obstacle to this is difficult for the lay person to understand.
I welcome the main content of the Bill. Naturally, there are details in the Bill which require consideration. I am not a lawyer, but a the same time I welcome the debate in this committee. I believe some interesting issues will emerge, as has been the case when previous Bills have been considered by committees of the House. I look forward to these discussions making a bit more clear for lay people exactly what is involved.
Finally, I draw the attention of the committee to the possible redress of one case. I have raised this outside the committee in order to obtain advice, but I now raise it for the consideration of Members. It is the case where a person is acquitted of a crime but where the evidence presented in court establishes clearly that such a crime took place. It appears that such a case may be excluded from the Bill, that once one is acquitted of a crime one cannot be dealt with again. I am worried about this. There are some occasions when, because of various reasons — the way facts are presented to a jury, the directions given to a jury, the way evidence is produced or the lack of it — people are acquitted of crimes when there is clear evidence from the court case that there is a contrary opinion and that there is a case to be made for having the situation examined again. I am aware that it is difficult to go back in law, to turn the clock back and say that people can be brought back before the courts, departing from the basis that once they are acquitted they are free. However, I believe there are some cases that need to be considered and I ask the Minister to consider those areas. There may be great difficulties about this. However, we must have confidence in the law. If there is anything in that area which cause concern for the public, then I would like to see this Bill, if not going the whole way, at least going some way to recognising these difficulties.
I welcome the fact that this committee has the opportunity to debate the Criminal Procedure Bill, 1993, and to address the difficulties that can arise from a miscarriage of justice. We are somewhat fortunate in this country because to date there have not been too many claims of miscarriage of justice. I appreciate the point made earlier by Deputy Gilmore regarding the Nicky Kelly and the Sallins train robbery case, a case which I followed closely and in which I participated at local authority level when calls were made to the then Government regarding a presidential pardon for Nicky Kelly. While I appreciate the record of the Irish judicial system, we can all make mistakes and we have seen that in the instance of the Nicky Kelly case.
I am somewhat concerned about the fact that little or no progress has been made today in relation to the 30 or so amendments before the committee. The committee is still deliberating over amendment No 1——
It is the most important amendment.
It is the most important amendment, along with the section in relation to the interpretation and the purpose of the Bill itself. The explanatory memorandum accompanying the Bill states:
The provisions of the Bill arise in part from recommendations made in Part I of the Report of the Committee to Enquire into Certain Aspects of Criminal Procedure, under the chairmanship of Judge Frank Martin, which was published in 1990.
What I find difficult to understand— and this echoes the sentiments of some of my colleagues — is that section 1 of the Bill does not go along the lines recommended by Judge Frank Martin. Perhaps the Minister can respond in detail as to why certain recommendations have been chosen and others have been seen not to be accommodated. This is the basic line for somebody like myself who does not hold any legal qualification. However, considering the position from the perspective of a lay person and listening to the debate here and to the information that is available to us, I have to ask the question: why are we not following the recommendations, which seemingly followed much work and effort, together with contributions to that report from those with the highest qualifications in the legal profession?
The other matter I wish to touch on is this. I believe it was regrettable that one Member took the opportunity today to comment on the absence of the Minister for Justice, who, I understand is on other business and otherwise would be attending this committee. However, I believe we have present a Minister of State, who is au fait with the area of criminal procedure, not alone because of his membership of this House but because of his qualification outside the House. In addition, we have the departmental staff in attendance. I appreciate, Chairman, that you ensured that that Member was made withdraw the remark he made.
The Member made no accusation. He said that the Minister was absent.
There was a slur involved.
Perhaps it is as well that the Minister is absent because she is referred to as "he" in section 7 of the Bill.
It was a slight on the Minister and I believe it was uncalled for, especially from a Member of the calibre of Deputy Shatter. One would expect that he would understand the duties of the Minister, the calls on the Minister and the fact that this Minister, of all Ministers, has given much time on Committee Stage of debates. I am sure that the Member appreciates that.
I ask, Chairman, if you could clarify at what time the committee will sit tomorrow?
The Select Committee has agreed to meet at 11.15 a.m. tomorrow morning until 5.30 p.m. tomorrow evening with a sos between 1 p.m. and 2 p.m.
The Select Committee adjourned at 4.30 p.m. until 11.15 a.m. on 10 November 1993.