Deputy Callely was in possession and had completed his contribution. I call on the Minister to respond to the constructive two hour debate yesterday.
Criminal Procedure Bill, 1993: Committee Stage (Resumed).
NEW SECTION.
Debate resumed on 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 being 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.
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 of 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 the 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 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 of admission made by a person before the Tribunal shall not be admissable 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.".
—(Deputy G. Mitchell.)
I listened carefully to the contributions yesterday. The message which seemed to come across, although I am sure it was not intended, was that if one wants justice the courts are not the place to go. That message is one with which I would profoundly disagree. It is dangerous and could help undermine the high level of public confidence in our courts. As there appears to be substantial disagreement on how best to deal with alleged miscarriages of justice, I intend to speak at some length on the amendments.
The Martin committee report is excellent and we should all be grateful for it. The report formed the basis of a thorough examination in the Department of Justice of the issues involved, during which we have consulted widely with eminent legal opinion. We came to the conclusion that the recommendations of the Martin committee were essentially sound and acceptable in principle; but in one respect, and one only, the Government decided on a different approach.
There were three main recommendations in the report of the Martin committee. First, it recommendated the setting up of a statutory inquiry body to examine cases of alleged miscarriage of justice. The Government has accepted that recommendation, but not that it should be a tribunal of first and only resort, as recommended by the committee, but rather that it be a tribunal of alternative resort when recource to the courts it impossible.
The second main recommendation of the report was to provide a statutory right of compensation to a person who has been wrongfully convicted. That recommendation has been fully accepted. The third recommendation was that statements made in Garda stations should be video recorded and that has also been accepted by the Government.
I mention those points to illustrate that some of the comments made on Second Stage were a little over the top; I will go no further than that. Much of the opposition on the Second Stage debate seemed to be based on the proposition that the Government had not fully accepted the recommendations of the Martin committee. There is nothing unusual in accepting in principle the recommendations of a committee and then examining them to see if they could be improved or made more relevant. I notice that one of the amendments to this section, that in the name of Deputy Mitchell, also diverges radically from the recommendations of the Martin committee and accepts the point that some persons would have a preference that their convictions be set aside and they should be given the opportunity to have this wherever possible.
I will explain again in detail the reasons for the main provision of the Bill, to which section 2 is central, and why I consider them the most appropriate way of dealing with alleged miscarriages of justice. The Court of Criminal Appeal was established in 1924 and for the first time gave a convicted person a right of appeal against the verdict of a jury. Leave to appeal can be granted by the court where there appears to it to be a sufficient ground of appeal. A decision of the Court of Criminal Appeal is final in every respect except where a point of law of exceptional public importance is involved, when an appeal can be made to the Supreme Court. In other words, it has been accepted since 1924 that the most appropriate way of dealing with unsatisfactory court decisions is by way of an appeal to the Court of Criminal Appeal.
I consider that, in principle, going back to the Court of Criminal Appeal where that is feasible is still the most appropriate way of dealing with alleged miscarriages of justice; but the present provisions are inadequate in that they only allow for one referral to that court. The Minister does not want to be the Minister who in legislation specifically deprives persons who can allege a miscarriage of justice from not alone having their names cleared but also from having the conviction set aside. Allowing appropriate cases back to the Court of Criminal Appeal in the circumstances outlined in the Bill is a fundamental point of principle.
Much has been said about the reasons given by the Martin committee for recommending a statutory inquiry body, and in so far as they go they are justified. The report gave some hypothetical examples of cases which could not be dealt with in our court structures and which therefore would justify the establishment of the inquiry body. Having read the examples, I fully agree that such cases, rare as they may be, would in all probability be unsuitable and perhaps impossible to refer back to the court and would be better dealt with by some alternative system. That is why provision is made in section 7 for petitions for the grant of a pardon.
The Minister will have the power either to commission someone such as a barrister or solicitor to make inquiries and to report to her on a case or, if it is a complicated case, she can recommend to the Government that a committee can be set up to make the necessary inquiries. That committee will have all the powers that are recommended in the Martin committee report for the statutory inquiry body and will not be inferior in any way.
I am strongly of the view that what we are providing in this Bill is the proper response to cases of alleged miscarriage of justice. Where a person alleges that a new or newly discovered fact shows a miscarriage of justice has occurred, he or she will be able to apply to the Court of Criminal Appeal to have the case heard again. The rehearing is on the basis of the new or newly discovered fact and therefore there is no question of the court having to go behind a jury verdict. The fact on which the court will be asked to adjudicate would not previously have been before the court.
Allegations that the court would not overturn a jury verdict or would have some vested interest in maintaining the status quo are well wide of the mark. In any case, as I have explained, they are irrelevant to the proposals in the Bill. A person who goes back to the court and who has the conviction overturned will be fully vindicated, not only in that he will be seen to be innocent but in that he will have the conviction set aside by a court of law. He will also be eligible to receive compensation.
There will be cases which are unsuitable to go back to the Court of Criminal Appeal. That has been used as an argument for not allowing anyone to return to that court. That is a false argument. In cases where the new evidence is for any reason inadmissible in a court, or it is clear to the Minister that the case is one of great complexity which would require major investigation and inquiry, or where it is a summary conviction which cannot be dealt with in the Court of Criminal Appeal, the alternative procedures provided in the Bill will become relevant.
I regard a pardon from the President as an important and crucial entitlement for persons who for whatever reason cannot go back to the Court of Criminal Appeal. For that reason it is vital to have such a provision. It is to an extent a second best solution as the conviction will not be set aside. However, in the circumstances I have outlined it as a good second best way of dealing with such a case. Any person who receives a presidential pardon will also be eligible for compensation.
It is obvious from what I have said that I cannot accept the amendments we are discussing. The strength and passion of arguments from all the Opposition spokesmen on Second Stage ensured the issues were again thoroughly examined. The arguments put forward in favour of an inquiry body as the only tribunal capable of examining alleged miscarriages of justice proved, on examination, not to make the case for such a one-track approach. They have strengthened our belief that the approach adopted in the Bill is the correct one.
The amendments of Deputies Gilmore and O'Donnell are intended to give effect to their argument in favour of a committee of inquiry as the only tribunal that could examine alleged miscarriages of justice. As they are being opposed in principle, there is little point in going into the details and looking at any possible drafting shortcomings.
There is one point in Deputy Gilmore's amendment that I would like to comment on in detail. He calls for the establishment of a standing committee. That would be intended to give effect to the Martin committee recommendation for a permanent body. Deputy Fitzgerald raised the point yesterday about whether the Martin committee recommended a permanent standing committee. I think it is unlikely that the Martin committee had such a committee in mind to examine cases of alleged miscarriages of justice. Such a committee would be expensive, inflexible and have little work to do. If I quote from the Martin committee's report it should be clear that that is the case:
Although we consider the cases in which the services of such an inquiry body would be called for must be rare, the circumstances may vary widely. To cater for such varying circumstances we believe that flexibility is of importance and in consequence we are of the view that, depending on the nature of the matter to be inquired into, the inquiry body might consist of one or more than one person sitting with or without an assessor or assessors.
What the committee probably had in mind was a statutory provision which would allow an inquiry body to be appointed by the Government every time its services were required to examine an alleged miscarriage of justice. It would have all the powers of a tribunal set up under the Tribunals of Inquiry (Evidence) Acts and it would be able to accept hearsay evidence.
This is exactly what section 8 of the Bill does. The Minister can advise the Government to establish a committee which would be a tribunal within the meaning of the Tribunals of Inquiry (Evidence) Acts. Section 8 (5) provides that the committee "may receive such evidence and other information as it sees fit, whether or not that evidence or information is or would be admissible in a court of law". That goes even further than the committee's recommendations in that it does not restrict the inadmissible evidence to hearsay evidence.
All I can say about Deputy O'Donnell's amendments is that if the Government had decided not to allow persons back to the Court of Criminal Appeal, they would be the closest to what would be acceptable. I know that sounds like a somewhat backhanded compliment, but it crystallises that the difference between us is one of principle and is not just a question of trying to add or subtract from the main part of the Bill in bits and pieces.
I would now like to comment on Deputy Mitchell's amendment. This is an interesting amendment that clearly represents a genuine attempt at a compromise solution. By diverging from the recommendations of the Martin committee report, Deputy Mitchell shows that he is not necessarily hung up on those recommendations. The amendment deserves a detailed response.
I have already explained in some detail why, when a miscarriage of justice is alleged, recourse to the courts where the conviction could be set aside should be the preferred option. The Deputy now seems to agree with my contention that a person should not be deprived of the right where possible to have a conviction set aside when a miscarriage is done. The purpose of this amendment is to enable a convicted person who alleges that a miscarriage of justice has occurred to apply to a committee, which in turn can recommend to the Court of Criminal Appeal that the conviction should be quashed or the sentence reviewed. In fact the amendment does not achieve its objective, but we want to keep this on a level of principle. I take Deputy Mitchell's point yesterday, and I fully agree with him, about the lack of resources available to backbenchers and to people who are not in Government. As somebody who was a backbencher of long and honourable standing I know the difficulties, so we will just deal with the principle.
Clearly, a recommendation by a committee of the type envisaged by this amendment could not be binding in the court of appeal. The court could not be obliged to automatically accept and endorse such a recommendation. Any such provision would clearly infringe on the independence of the courts and would be unconstitutional. We must take it therefore that the amendment envisages that the recommendation will constitute mere advice to the court which may or may not be accepted. In hearing an appeal against conviction or sentence, however, the court could not simply accept the recommendation but would have to form its own conclusion on the evidence supporting the recommendation. The discretion of the courts in evaluating evidence was upheld as being an integral part of the courts' exclusive competence to administer justice in the Supreme Court's decision in the case of Maher v. Attorney General, 1973, Irish Reports, page 140.
To the extent that the evidence considered by the committee would be admissible in court it could in any event be heard in the ordinary way on appeal; but some or all of the evidence, as the amendment clearly anticipates and provides for, could be inadmissible evidence such as hearsay. The effect of the amendment therefore would be to introduce inadmissible evidence into the Court of Criminal Appeal, through the back door as it were. Any proposals to change the rules of evidence to allow hearsay or other evidence that is presently inadmissible to be heard in courts could only be considered after detailed consideration and public debate. The amendment would put the court in the impossible position of being unable to test or examine evidence itself in order to come to its own conclusion. The court would in effect be asked to accept on trust, without question, evidence considered by the committee and to decide guilt or innocence or the severity of punishment on that basis. I cannot see any court agreeing to set a conviction aside on such a basis.
It is in recognition of the difficulties created by inadmissible evidence that the Bill proposes a comprehensive statutory scheme for the consideration of pardons in such cases, including where necessary the establishment of a committee to report its opinion on whether the Government ought to advise the President to grant a pardon. That is the way to proceed. Therefore, while I welcome the Deputy's recognition of the central role of the courts in deciding cases of alleged miscarriages of justice, I regret that I cannot accept this amendment.
In the discussion yesterday a number of Deputies raised various points to which I want a reply. I made a note of them yesterday. Deputy O'Keeffe wanted to know who was consulted by the Government in relation to the Martin report, if judges were consulted and, if so, who. I will not be specific on that. All I can say to Deputy O'Keeffe is that a wide range of eminent people were consulted, both legal and non-legal.
Deputy Gilmore raised the question that the Martin committee raised on page 11 of their report, regarding whether a case, having been appealed to the Supreme Court, can constitutionally go back to the Court of Criminal Appeal. We are dealing with that, and that point will no longer be relevant as a result of section 11 of this legislation. We are abolishing appeals to the Supreme Court, as we are constitutionally entitled to do.
Deputy Gilmore also made the allegation from an article in The Irish Times,the reference to which I did not write down, that judges had been delaying the implementation of the Martin report behind the scenes. That is certainly news to me and I make the point that it is unusual for legislation to appear so quickly after the publication of a report, less than three years later. We have reports on various matters of great importance, such as the report on charities on which I was involved in a discussion in the media recently. That is of longer vintage than the report on miscarriages of justice and we have not yet got around to preparing the legislation, although we recognise that it is very urgent.
Deputy Fitzgerald asked about the standing committee. The Martin commitee did not say one way or the other. I do not think that is specifically what they had in mind. I take the Deputy's point of criticism about it and I would agree with him.
Deputy O'Donnell asked what perjurer will give evidence to the court if he does not get immunity from prosecution. That is a reasonable point. But the position, as I understand it, is that the DPP can give somebody immunity from prosecution, but in many cases the DPP will not do that. We cannot guarantee in any case that the DPP will give immunity. Take the example used by the Martin report. What happens in the case of somebody who comes in five years later and says "I perjured myself. I was the main witness for the prosecution. I was believed. I perjured myself, but I am unwilling to give evidence again because you cannot guarantee that the DPP will give me immunity from prosecution." That would be a case which under section 7 would be appropriate for the Minister to refer to a tribunal, because a tribunal is a tribunal under the 1979 Act. One of the features of a tribunal under the Tribunals of Inquiry (Evidence) Act, 1979, is that evidence given in a case like that cannot be used again in court against the person who gave it. If one can think of a case that would be appropriate for referral to a tribunal that is almost a textbook example.
Deputy O'Donnell also raised the question of finality. We could have finality here if we said that one could only go back to the Court of Criminal Appeal once. Suppose somebody discovers a new fact and goes back to the Court of Criminal Appeal. The court adjudicates in the matter and says no, sorry, the conviction still stands. If another new fact emerges some time later, would it be right or fair not to allow them to go back again? When one is talking about finality the problem is that once one puts the mechanism in place for people to come back after the appeal procedure has been exhausted, one undermines finality anyway, regrettable though that may be. That is the downside. Once the mechanism is in place people know there is something they can come back to. That is the reality of the situation.
I note that there is one other matter that has not been specifically dealt with in the Bill and I spoke to my officials this morning about it. This is the question of finality in relation to the Minister's decision. On reading section 7, it seems that one can look for a pardon from the Minister on a new fact. He or she may say no and the person is left in prison, but if another new fact emerges a year later, it seems that section 7 is broad enough to cover that. It appears that one can keep going back to the Minister if he or she is so minded.
Deputies O'Donnell and McDowell referred to a flood of applications. If one looks at section 2, one will notice that the only people that can go back to the Court of Criminal Appeal are those who were initially before it. A person who was convicted in the Central Criminal Court or the Circuit Criminal Court cannot go back before the Court of Criminal appeal. That person can only return if he or she has exhausted all the appeal procedures, if he has gone to the Court of Criminal Appeal in the first instance. I am advised that the number of people who appeal to the Court of Criminal Appeal is only a small proportion of those who are convicted either by the Circuit Criminal Court or the Central Criminal Court. This considerably reduces the pool of potential applicants under section 2.
On looking at the legislation this morning, it occurred to me that a great many people who appeal initially to the Court of Criminal Appeal do so on the grounds of sentence rather than conviction. I notice that section 2 allows back those who have previously appealed and I would read that as to say appeal against sentence as well. I do not know if it would be feasible or fair to exclude those who only appealed against their sentence so as to further reduce the pool of those who appealed against conviction. I will consider this further but it may not be fair to do this because there is a provision for new facts, thereby allowing the court to reduce a sentence. It may be unfair that only a fact tending to raise doubts about the conviction should be used to reduce the sentence. I may not be explaining that very well.
Deputy Costello suggested that the Martin report was jettisoned. I emphatically reject that statement. Deputy Costello said he was unhappy about the legislation. Life is not perfect, we are all unhappy about certain matters and if Deputy Costello is unhappy, so be it. Deputy Costello referred also to the confusion of options under sections 7 and 8. It comes down to plain understanding of the English language. We will debate sections 7 and 8 when we come to them, but on reading them as objectively as I can, the options under them seem to be perfectly clear. Deputy Kemmy asked if the legislation would have any effect on extradition and the answer is no. It will not intersect or impinge on extradition in any way.
Deputy Barrett said that if a person was dissatisfied with a decision of the Court of Criminal Appeal, he would then be sent back to the court that upheld his conviction. That is true, but we are sending him back, not on the original grounds but with new evidence, which the Court of Criminal Appeal will adjudicate upon. It is not a question of a person, convicted on grounds A, B or C, going back to the Court of Criminal Appeal five years later on the same grounds.
In his incisive contribution Deputy McDowell recognised that there are certain cases which are appropriate for the courts, which they can easily deal with, with no danger of a miscarriage of justice. Developments in forensic science that cast doubt on earlier forensic evidence on the basis of which the accused was first convicted was one example. He also referred to where there may be a new witness, who may have had a perfectly valid and believable reason for not coming forward on the first day. He said there were cases that were not appropriate — we are allowing such cases to go to a tribunal in the legislation.
Deputy McDowell also asked if the Minister for Justice was bringing a lot of unnecessary trouble on herself and he referred to the Attorney General. The Martin committee recommended that the Attorney General be the person to examine the matter to see if it should be referred to a committee. We are saying that it should be the Minister for Justice. If there is to be controversy — inevitably there will be some at times — it will attack equally, whether it is the Attorney General or the Minister for Justice who is doing the referring to the committee. The Department of Justice is more appropriate; we have the resources. It will increase the workload on the Department but we are big enough to handle it. The Office of the Attorney General only has a small number of staff and is extremely overworked. Points were made about public confidence. I do not see why any one would say there is more public confidence in the Attorney General than in the Minister for Justice.
Deputy Shatter's contribution was unworthy of him. I can only describe it as crass and unworthy. He referred to a case under section 5 when one goes to the Court of Criminal Appeal on a miscarriage case and the registrar refers it to one of the judges on the basis that it may be vexatious or frivolous and the judge may describe it as a try on. Deputy Shatter knows that in ordinary appeal procedures under rules of court which we are replacing in section 5, there is a filtering system. If the registrar draws the attention of the court to the fact that there may be no merit in the appeal, the court, without looking for the stenographer's report of the original trial, will decide the issue amongst themselves. We are providing an alternative procedure, not only for section 2 cases but for all appeals. The registrar will refer to a single judge of the Court of Criminal Appeal and if he decides a case is frivolous or vexatious, the appellant has a right of appeal to the full Court of Criminal Appeal. We are trying to improve the position of the appellant. Perhaps we are not doing so effectively. If anyone has a more effective suggestion in mind, I am willing to listen to it.
Deputy Shatter asked if in the case of an appellant whose case was thrown out because it was deemed frivolous or vexatious by the Court of Criminal Appeal and then went to the Minister, he or she would simply say that this was a matter for that court. A game of table tennis would ensue and the matter would go back and forth to the court of Criminal Appeal. The court will see him coming back on the same grounds and will refer it again to the Minister. When the case goes to the Court of Criminal Appeal, as I understand it, only admissible evidence can be heard. The person may have a perfectly valid case but it may be frivolous on the basis of the evidence that can be admitted. If the appellant goes back to the Minister and says he or she went to the Court of Criminal Appeal who threw out the appeal because they could not accept the massive hearsay evidence, the Minister will consider that case and possibly refer it to a committee if an inquiry is to take place. If there is not admissible evidence and the appeal looks frivolous to the Court of Criminal Appeal, the person can return to the Minister. The chances of getting past the Minister, if the Court of Criminal Appeal consider an appeal frivolous or vexatious, are slim. In the instance Deputy Shatter was postulating, where the Minister does not consider the case frivolous or vexatious but appropriate for the Court of Criminal Appeal, no sane Minister for Justice would refer it back to the Court of Criminal Appeal because the petition procedure is fairly flexible. The Minister will know — it should be stated in the petition — that the court would not accept it and the applicant is appealing to him or her. Ministers now live to a certain extent in a fishbowl. Every action they take is subject to the most minute public scrutiny and the day is long gone when any Minister for Justice — I know this Minister would not do it — could engage in that sort of practice and expect to get away with it. It would be a great media story and would do no credit to the Minister or the Government of which he or she was a member.
Deputy Walsh inquired as to the possibility of having some mechanism for bringing back those who, after having gone through the various appeal procedures and been acquitted, are later shown to be guilty because of the introduction of a new fact. The constitutionality of it would be questionable and, desirable though it may be — we can think of cases in our constituencies — it would not be feasible.
We have difficulties, like every democratic country, with the administration of justice. It is under pressure because of circumstances outside our control, such as high unemployment or a tendency towards crime. The last thing the Minister for Justice wants to do is to get the Oireachtas to pass a vote of no confidence in the Court of Criminal Appeal. It is the last thing needed by a criminal justice system which is under pressure and striving to deal with great difficulties. That is the reason for proceeding in this way. Anything would be an improvement on nothing and this is a vast improvement in this regard. I ask Deputies to accept this.
Thank you for that comprehensive reply to points raised by Deputies yesterday. A number of Deputies want to make further contributions.
I do not accept that Deputy Shatter's contribution was crass and unworthy. He is a good participant at these committees and he has expert knowledge in this regard. It would be improper of me not to defend him in his absence.
I refer to the Minister's response to my amendment. He began by saying that the message coming across is "If you want justice done, come to the courts". That is not what we are saying. Furthermore, the Martin committee said do not go to the courts. The committee said there is good reason for taking a different route and that is the essence of my amendment.
As a mature assembly and as a committee of a mature assembly, we must be able to speak the truth without any connotations being attached to it. Judges and the court system must be mature enough to take reasonable and fair criticisms of shortcomings, particularly when offered in a non-party political and non-personal way. That is the objective of this Legislature and nobody can take that away. No judge will allow his or her right to be infringed by legislators and we as legislators must take the same road. There is a separation of powers in this regard.
This question was examined by Judge Martin, a worthy and notable member of the Judiciary, and a committee of independent individuals. They suggested that the courts were not the place to deal with appeals of this kind. Courts are concerned with law. They decide whether a case can be proven on the evidence available. Courts are not concerned with the truth, and that was said by the British Lord Chief Justice on a recent television programme. I note, in passing, the changes taking place in Britain, where the Lord Chief Justice will appear on television to debate such matters. It seems things are done behind closed doors here. Judge Martin dealt with this matter. It may work in favour of the defendant in some cases, because the court may be unable to prove he did it on the evidence available; but it may work against people in other circumstances. That is why Judge Martin said a court is not the best place to deal with this.
If, for example, the Beef Tribunal or any other tribunal make certain findings, their findings carry weight in any subsequent action by the courts, the DPP, the Minister for Justice, the Garda or any other State agency. I do not believe I made a party political comment, a personal comment or that I have slighted anybody in relation to this Bill. My contribution has been balanced, fair and reasoned. The Martin committee also said that the rules of evidence do not equip the courts adequately to be the proper body of review in these cases because the person concerned has already been through that course.
We have examples of cases in this country — let us call a spade a spade — where people who went through that course were subsequently found innocent. The Martin committee said that under the rules of evidence it is on balance undesirable for the courts to review the situation and that an independent body of review should do so. The report specifically mentions the Civil Evidence (Scotland) Act, 1989, which allows for hearsay evidence to be considered in certain circumstances. This distinction was made by a committee of eminent people chaired by a judge. However, that is not possible under existing rules of court. It is for that reason, and the need to pursue the truth rather than the continuance of the adversarial system of examining evidence in certain ways, that the Martin committee supports the establishment of an independent body. This section is fundamental to the Bill and Fine Gael must take a stand on this section.
Judges have been consulted on this Bill. Their comments and views have been given greater credence than those of the Legislature, and that is wrong. We do not run the courts and judges do not run the Legislature. It is enough that they should adjudicate the laws we pass and in some cases interpret them so they may make case law. It is unacceptable that they are allowed to write legislation behind closed doors and to block a fundamental recommendation made by an independent committee.
The Bill is flawed because it provides for a further submission to the courts. The Minister for Justice in her Second Stage speech said that section 2 provides for a second or subsequent application to the Court of Criminal Appeal where it is alleged 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 is excessive. That is unacceptable and that was evident yesterday on all sides. I note the Minister's comments on Deputy Costello's contribution. There is cross party support on this matter. Yet the Minister for Justice after consultation with a number of people, including judges, has taken their advice rather than that of the legislators whose job it is to legislate.
There is a consensus on how we should approach this. My amendment seeks to let the court make the ultimate decision and to allow hearsay evidence and evidence unavailable in court to be submitted to an independent body. That body should have its report taken into account by the courts. Judges, courts and rules of evidence are central to this problem and that is why the Martin committee said the courts are not the place to hear a re-submission in such a situation. The Minister said the last thing we must do is to pass a vote of no confidence in the Court of Criminal Appeal. In taking the advice of an independent committee, we are not passing any such vote. I have confidence in the courts. Although reform is needed, they are not beyond criticism. They are people of independence and integrity. But the Martin report said that the system is incapable of dealing with this matter efficiently. I have no doubt about that. What we are saying, and the Martin committee's report is saying, is that the system is simply not capable of dealing with this matter as efficiently and as justly as is desirable. The committee recommends a way around that which is not a slight or a vote of no confidence, and if judges are putting that about then I think it is time we got more of them into the debates so that we could liven them up a little bit. Unless we can find some way of looking at this matter again on Report Stage we will have to press this to a vote.
First, I want to thank the Minister for his detailed elaboration on various aspects of the Bill and his replies to various queries that were raised yesterday. I raised a number of queries and I am glad they were responded to in great detail. Deputy Gay Mitchell, as I heard him, purports it to be a fact that the Judiciary is dictating the pace of this Bill. I do not think that we as a Committee should leave that on the record as a fact. Nobody here has proven to me that it is a fact that the Judiciary has dictated the pace. My recollection of what the Minister said, when he was asked, was that a wide range of professional and legal opinion was sought. There would appear to me to be no concession. I would be concerned if the Judiciary was dictating legislation and I would agree with Deputy Mitchell in that. However, I do not think we should leave it on the record as a fact that the Judiciary is dictating the legislation in this case. I certainly have not heard any facts to prove that point, so I would like to challenge that in as nice a way as I can.
There was concern yesterday that the type of cases that would be coming before the Minister, the Department, the Attorney General or whoever would be the recipient of such cases, would be cases that the courts could not deal with. I read the report and, naturally, not being as au fait with the legal system and rules of court as the Minister and others here would be, I was concerned that the Minister’s duality of approach might funnel certain cases that are not suitable back into the court system again. I was anxious, therefore, that he should elaborate further on that. I am delighted to hear him say that he readily acknowledges that there are basically two anticipated categories of case. There is a whole range of categories but they can broadly be defined in two ways: some that would be suitably and appropriately referred back to the courts, and others — which I am delighted to hear the Minister acknowledge — that are not.
I listened carefully when he was talking about cases that could suitably be referred back to the courts. I was even more attentive when he referred to the two cases cited in the committee's report, because it was quite clear from the report that those two cases would be totally inappropriate for referral back to the courts. I am glad that the Minister seems to have given us an unequivocal assurance that in no circumstances would those cases be referred by his Department back to the courts. That greatly reassured me.
Another aspect of concern raised yesterday and with which I was not au faitwas raised by Deputies Gay Mitchell, Jim O’Keeffe, O’Donnell, Gilmore and others. That was the case of the person who perjures himself or herself in an earlier court appearance. The question raised was, “How could a case like that be dealt with because they would be afraid to come to court?” There was a feeling both on the Government and Opposition sides of the committee that such a case might readily be referred to the courts. From what the Minister said, he seems to have given an assurance that this is a classic case for reference to the tribunal or committee. If that is the case, then I am prepared to accept it.
That would seem to address that area of serious concern. I did ask the Minister for how long did the Martin report recommend that this tribunal should exist. I read the report again last night and I see that it refers to very few cases coming forward. I am quite happy to accept the Minister's elaboration of that as defined in sections 7 and 8, particularly in section 8.
There was a concern running through the debate on Second Stage about how one could ask judges to overturn their original judgments or, in other words, to give themselves a slap on the wrist. My layman's interpretation was that that is what the Minister would be seeking. However, I see the point he is making. He is, in fact, saying that the Bill will not be asking them to do that. As I can see from the Bill, he is quite adamant that it is only on the basis of new or additional evidence that judges would be asked to look at a particular case. So, they would not be asked to slap themselves on the wrist. If that is the case and I have no reason to doubt what the Minister has said, then that matter is resolved more satisfactorily for me than when I read the Bill and the report of the Second Stage debate which seemed to raise all these serious issues. However, I would still ask the Minister to have a further look at it before Report Stage, but I would not be as forceful as I was yesterday having listened to the Minister's elaboration.
(Carlow-Kilkenny): First of all, I have to express disappointment that the Minister used the word “crass”. I thought for a second he was going to use another word that was used some time ago and caused consternation, but he did not.
I did not use that word.
(Carlow-Kilkenny): No. Well, I think that the word “crass” is not applicable just to Deputy Shatter. In fairness to him, yesterday he outlined what would happen if someone appealed and a judge decided it was frivoulous, the case went to the Minister and was then referred back. His case came across to me as being sensible. I am not being belittling in the slightest, but I think the defence made of the situation did not come across as well at all. The Minister is still depending on the good faith of Ministers and the integrity of everybody else. While I can accept that, Deputy Shatter’s contribution outlined a situation that could not be accepted. The Minister happens to be one of my favourite Ministers when it comes to dealing with Bills, so I hope that when he has thought it over he may criticise but will not use that particular word.
I am not convinced that his argument, so far, justifies not accepting the Martin report. He has shown all the signs of there being a good debate in his college days; he has used attack as the best form of defence. He said that everyone on this side who spoke yesterday are really criminals trying to belittle the courts, etc.
I did not say that.
(Carlow-Kilkenny): The Minister said: “You are on the wrong footing, boys”. We are not belittling the impact of the courts. That never arose. I would not for one minute pretend that I know anything about courts but I read out here yesterday what Judge Martin said. He is the man who is in court, he must know what is happening there, and he said that a court is not the suitable place. He said that there should be an inquisitorial system That was his recommendation. I cannot for the life of me see how the Minister can suggest that we in any way belittle the effect of the courts or their importance by supporting what one of their own members has actually said.
The Minister tries to defend the fact that he has not refused to accept the Martin report by saying that he took certain aspects of it, for example, the matter of compensation. Is any committee report needed to accept that a person who is wrongfully jailed for half a day — not to mention five years, ten years, or, God help us, 15 years — should not be compensated? That kind of thing does not justify saying "We took so much". There are certain things the Minister would have to accept even if he had no Martin report. This includes the point the judge made, that from his experience as a judge, courts were not the suitable place. That cannot be glossed over by the Minister saying that he accepted so many other aspects of it, having consulted eminent people.
Deputy Liam Fitzgerald mentioned judges not being named. I am quite sure that when the Minister discusses legal matters and talks about eminent people, he must surely be talking about judges, he is hardly talking about shoemakers, no matter how expert they may be, or teachers, or TDs.
Judges are the only eminent people?
(Carlow-Kilkenny): No, but I would say they figured very much in this if the Minister is talking about eminent people and is discussing legal matters where one of their own suggests that the courts are not suitable. I would say that they would play a very leading role in it and if the Minister denies that he had discussions with judges and were not advised by judges then I will accept that “eminent people” does not include judges. I will wait for that denial but I will not allow the Minister to use his debating skills to fob me off as a Joe Soap.
In reply to the Minister, it should be clarified that the committee is in no way expressing lack of confidence in the Judiciary. We are saying very clearly, and repeat today, we agree with the Martin committee that the court is not the appropriate forum in which to deal with the review of alleged miscarriages of justice. Under sections 7 and 8 the Minister is setting up a review body, in line with the recommendations of the Martin committee. In those sections he is providing for the classification of miscarriages of justice into two categories. One route would be for extraordinary and unusual cases which would not be suitable for a court and another route would be for ordinary miscarriages of justice.
There has never been any call for an open-ended appellate jurisdiction in the Court of Criminal Appeal. There has only been a call, based on celebrated cases, for a mechanism by which cases, the facts of which show them to be extraordinary, can be reconsidered. In my view there is no such thing as an ordinary miscarriage of justice case. Such cases are all extraordinary by virtue of the fact that they have a panorama of confusion, perjury, conspiracies of silence and very unusual circumstances.
Providing this open-ended referral to the Court of Criminal Appeal, which would be open to all cases in which an accused person can find a new fact, is interfering with the basic principle of finality in criminal cases. If someone is convicted of, say, rape in the Central Criminal Court and appeals to the Court of Criminal Appeal in the usual way, that rapist can keep on finding new facts and reasons why he can, in an open-ended way, keep going back to the Court of Criminal Appeal. There was never a demand for such a situation at any level, political or judicial. I cannot see why the Minister is providing two categories when there is only a need for one. Sections 7 and 8 could cover all miscarriages of justice cases.
The thinking in the Department — the Minister did not respond to this — is that a presidential pardon is not as good because it cannot quash a conviction. The Minister said only a court can quash a conviction. There are only two presidential pardons of which we have a record. One was in the 1940s and the other was the recent pardon of Nicky Kelly. It is clear from the case in the 1940s, and there is a clear body of jurisprudence which supports this, that such a pardon not only commutes a sentence or shows forgiveness or clemency but reaches back to the conviction. The Minister has lost the opportunity to look at the legal effect of a pardon. This Bill could have provided the opportunity to provide that pardons granted by the President could remove all blame and say the person was wrongly convicted.
In the United States a pardon affects the conviction as well as the punishment. Article 2 (2) of the US constitution provides for this. In New Zealand, section 4 (7) of the Crime Act deems a person who is pardoned to have been wrongly convicted. The situation in England is different. Their pardon law comes from the royal prerogative of clemency which is about forgiveness but not quashing the conviction or putting the party who has been convicted in the situation as if he had never committed the crime. In Canada a pardon removes the guilt.
This is fundamental to the reasoning of the Minister in opting for the dual system. He and the Department do not think a Presidential pardon can remove the guilt. Otherwise there would be no need for the dual route. The Minister should reconsider this and his officials should examine the legal effect. The Martin committee looked at the issues of pardons and was firmly of the view that:
It would appear, therefore, that Presidential Pardons in our jurisdiction can negative guilt and blame. It seems to us that the effect of a pardon in such terms is to clear the person from all infamy.
If that is the case the route proposed in sections 7 and 8 should be sufficient to deal with all miscarriage of justice cases. There is no need for a referral to the court.
The Minister's explanation is unsatisfactory. It is clear the Minister, and the Government, are effectively proposing that in cases of alleged miscarriages of justice not alone will the Martin report be ignored but the judicial system will be bypassed entirely. There is a danger in this option in that the whole procedure is moved into the political arena. If people feel they are innocent and have been wrongly convicted, what prodedure will they follow in the years ahead? They have the option under section 2, to which we object, of going back to the Court of Criminal Appeal without any assistance other than a direction that the Garda Commissioner can be directed to carry out inquiries. Who is going to unearth the new evidence? Who is going to obtain the necessary corroboration and proof they need?
This route will not be followed. The Minister knows this. He should be open on this issue. They will apply to the Minister, under section 7, for a pardon. The granting of a pardon to a person who is innocent will not clear his or her name. That person should be entitled to have the conviction quashed. The Minister and the Government are making it easier for somebody who is applying for a pardon rather than somebody who is applying to have a conviction quashed. The Minister is also moving this area, to a dangerous degree in my view, into the political arena. The original petition will go to the Minister. The Minister then has the power to decide whether to set up a committee of inquiry. Under section 9 he also has the power to decide whether to pay compensation. Furthermore, he has the power to determine the amount of the compensation.
With all due respect to the Department of Justice — it is understandable that every Department likes to look after its own powers — I am not sure this is the proper way to handle this issue. There are dangers in doing so. If the Minister justifies this on the basis that those who question his approach are effectively voting no confidence in the judicial system, he is turning logic on its head. He is arranging to ensure the route followed by any persons who believe they are innocent, and that miscarriages of justice have taken place, must be through the Minister. To some extent the cat has been let out of the bag by the side note to section 8. I direct your attention to it, Chairman. It sets out what is to be established which is a committee to inquire into alleged miscarriages of justice. Not to inquire into whether a pardon should be granted, is to inquire into alleged miscarriages of justice, having first applied to the Minister for Justice to decide whether to set up such a committee.
If a person is innocent they are entitled to have their name cleared, which merely getting a pardon does not do. This is the fundamental distinction which must be faced up to by this Government. It is a back door route to having an inquiry which will force virtually everybody to go to the Minister of the day to seek to have an inquiry set up for a pardon. It is not the approach recommended by the Martin report or the approach that yesterday people on all sides of the House felt should be followed. No clear explanation has been given by the Minister of State why it is in order to have a committee of inquiry when a person is seeking a pardon but it is not in order to have one if a person is seeking to have a conviction quashed to totally clear their name.
The point which was raised about the powers of inquiry is borne out in section 8, which states that the committee of inquiry set up to advise on a pardon "may receive such evidence and other information as it sees fit, whether or not that evidence or information is or would be admissible in a court of law." This is the point made by Judge Martin in his report. Why then if a person is innocent can the same procedure not apply if that person wants to have the conviction quashed? That is the question which has not been answered by the Minister of State. What will happen if somebody is left languishing in jail for perhaps up to 14 or 16 years, as happened across the water, in a situation where they have protested their innocence but cannot get the necessary proof together? There may not be a Chris Mullin to sift over the facts and unearth fresh evidence in every case. There may not be somebody outside who can assist them. What can that person do to produce new facts which will stand up in court? They will do the best they can from inside their cell and must then go the route of applying for a pardon. They will have to go that route because it is the only way they can get an inquisitorial system going. They will apply for a pardon and seek to have a committee of inquiry set up.
If there has been a miscarriage of justice that person will get a pardon and, under section 9, will receive compensation. However, they will still have a conviction attached to their name. I do not believe that is a fair response to somebody who has spent perhaps years of their life in jail because they were wrongly convicted. They are still, as far as the record is concerned, convicted felons. Their name has not been cleared. We return to the fundamental question of why if the Government is prepared to allow a committee of inquiry for somebody looking for a pardon, it cannot allow the same for a person looking to clear the record and get the conviction quashed.
I take the point about the position of the courts under the Constitution, but that point has been neatly dealt with both in the report and in the proposal framed by my colleague, Deputy Gay Mitchell. The issue here is that the recommendation of the committee is that it could in one instance go to the Minister and in the other could go to the court. That is the nub of the issue. Why will the Government allow a situation where a recommendation from a committee of inquiry can go to the Minister for Justice but not go to the court from the point of view of having a conviction quashed?
If there is a celebrated case how will a court react where there has been an application to the Minister, there has been a committee of inquiry and a recommendation to the President for a pardon, a pardon has been granted, compensation has been paid; but, because it may have been based on hearsay evidence or other facts acquired by the tribunal, it would not stand up in court? What is going to happen when that person goes to the court? Can they go to the court? Could the ludicrous situation emerge that they may have gone through the committee of inquiry system, where evidence and other information which would not be admissible in a court of law resulted in them getting a pardon and compensation, yet because the kind of evidence which came before the committee of inquiry was not admissible in a court of law they could go back to the Court of Criminal Appeal and find that the conviction still stands? That is ludicrous. I will press the Minister of State on this. He is bringing the law and the whole system of justice into contempt by providing for such a scenario.
I will not go back on the question of the eminent people who have advised the Government on this issue. It appears to me that the Government set up an independent group who sought submissions and produced a report giving a recommendation. Eminent people — a judge, a former Member of this House, people from the Department of Justice and from the Attorney General's office — openly and transparently produced a report. Is that not the way to do business rather than having back door advice which we know nothing about? I urge the Minister that if there is such compelling advice available, let us be transparent about it and put it in front of us. Perhaps the Minister of State might be able to convince us, but I am not convinced by what he has said so far.
Finally, I am worried by the approach adopted by this Government. It seems that it may be doing it for all the wrong reasons. I cannot quite understand why the Government has decided to follow this approach. It does not make sense. I strongly urge the Government, even at this late stage, to call a halt and accept the combined advice of all sides of this House and to allow the kind of approach which is suggested by Fine Gael.
The Minister of State gave a comprehensive reply to the discussion which we had yesterday, for which he is to be complimented. However, the content of the reply is quite contradictory. First, the justification he is giving for taking this approach to the problem is that the person who is alleging a miscarriage of justice should have the right to have the conviction set aside and that that is essentially the principle reason why there should be a reference back to the——
Do not put words into my mouth. I did not say that. I said it is part of the reason.
That was the first reason the Minister of State gave the reference back to the courts and it was the reason which the Minister for Justice herself gave on Second Stage when she was introducing the Bill. So that features largely. The Minister of State has acknowledged that not all cases can take that route and he acknowledges that the examples given in the report of the Martin committee would not be appropriate for reference back to the court. Therefore, there must be another mechanism to deal with those. The mechanism provided is that established in sections 7 and 8 — the establishment of a committee to examine whether a presidential pardon is warranted. In other words, the essential means is the reference to the court and then there is this safety net of the presidential pardon as a kind of political convenience if the first method does not work out.
In practice when the legislation is eventually passed in whatever form, it is likely, notwithstanding what Deputy O'Donnell states about miscarriages of justice being exceptional, that there will be a considerable number of applications for pardons, reference to the court of whatever, allegations of miscarriage of justice. When I took responsibility for this area in my party, I was struck by the number of letters I received from prisoners claiming they had been wrongly convicted and that there had been a miscarriage of justice.
The first difficulty with the reference back to the court is at the filtering stage. There has to be some method by which one filters allegations of miscarriages of justice. One has to sift out cases which are, as is stated, frivolous or vexatious or those involving an individual chancing his or her arm or who has an enterprising team of lawyers who, having failed at all court stages, want to move on to the next stage, the allegation that there has been a miscarriage of justice. Therefore there has to be a filtering system.
The filtering system proposed in the legislation is the very court which may have confirmed the conviction on appeal — the Court of Criminal Appeal. The method provided is that a judge of the Court of Criminal Appeal will assess whether or not the case is admissible. The Minister stated that we must have confidence in the Court of Criminal Appeal and I agree we must.
The first people who are going to be concerned about confidence in the Court of Criminal Appeal are the judges of that court. There will be an understandable inclination on the part of judges of the Court of Criminal Appeal not to admit to the possibility of a miscarriage of justice. When cases are presented, there will be a tendency on the part of the Court of Criminal Appeal to say that could not have happened and dismiss the application at the initial stage.
The Court of Criminal Appeal differs from the mechanism advocated on this side of the House in that it does not have any investigative powers to enable it to ascertain if there is a case to answer. It simply weeds it out. If a case gets through the filtering system and into the Court of Criminal Appeal, it has to be heard on the basis of evidence. As the Martin report pointed out, the courts have to follow the rules of evidence. They do not have the power to investigate.
The example in the Martin report is of a person who commits perjury when giving evidence first time around and subsequently has a qualm of conscience and wants to do someting about it but is afraid that if they go back and give new evidence, they may leave themselves open to prosecution. A person in that situation might want immunity from prosecution.
It may be the case that a witness does not attend but it becomes known that there is a witness who may have been afraid to do so. There is concern at the moment about witness intimidation either by people being charged with offences or people who, for one reason or another, want to put pressure on witnesses. There are also witnesses who feel that if they present as a witness, a skeleton in their cupboard may slip out in the course of cross-examination and leave them exposed. The court does not have any power to deal with that whereas a committee of inquiry would. It could summon these witnesses to appear before it, examine them and, as the Martin committee pointed out, try to establish the evidence.
The Minister acknowledges that not all cases can be dealt with by way of reference to the court in sections 7 and 8. If a case cannot be dealt with by the courts, there is a fail safe mechanism under section 7, where a person who is convicted can apply for a presidential pardon. The Minister will set up a committee of inquiry and may or not make a recommendation for a presidential pardon.
I agree with Deputy O'Keeffe that there probably will be many applications made for presidential pardons. Many miscarriages of justice may not warrant a presidential pardon or it may not be appropriate. By definition a presidential pardon is clearing somebody of all guilt and blame. The term "all infamy" was the term used in the report.
One can take the case of a woman who has been subjected to physical abuse in her marriage and who, having suffered much abuse, kills her husband and is convicted of murder. It may be felt by whoever is looking at the case subsequently that due to provocation or whatever, a lesser charge would have been appropriate. There may be a miscarriage of justice in relation to the conviction but it would not warrrant a presidential pardon because the woman was clearly guilty of something having killed her husband. It would be difficult to see how one could grant a presidential pardon in such a case.
The establishment of committees to recommend presidential pardons can, by definition, only deal with cases where there has been no guilt of any kind. In practice many applications for presidential pardons will be getting a fairly standard reply that a presidential pardon is not appropriate in the case. There is a second and more worrying dimension and it relates to the presidency. It is quite wrong to use the presidency in this case and to use the presidential pardon as a political convenience for dealing wth cases that cannot be dealt with because the wrong mechanism is provided in this legislation. We now have an acknowledgment that the reference back to the court cannot deal with all problems and, if all fruit fails, one can use the presidential pardon. That is an abuse of the presidential pardon and demeans the concept of it. It is a worrying development and the presidential pardon was never intended for use in this way.
The argument we were making yesterday that there is a necessity for an inquiry body still holds. We have a number of amendments. The Minister acknowledged that he was not going to get into the small print of the amendments but they all deal with the same issue. Broadly they are going in the same direction though there may be some differences in detail. The Minister should agree to re-examine the arguments advanced before Report Stage. If he does not agree to do so the committee will be faced with no choice but to divide on this issue.
There was virtual unanimity yesterday on this issue and I appreciate the difficulty of Government Deputies who know in their heart and soul that the case being made is valid but they obviously have to vote with the Government on the issue. The Minister should take on board the virtually unanimous case that was being made as to whether there should be a committee of inquiry or a referral back to the court. He should do that before Report Stage and prevent the absurd situation where those of us in the Opposition parties will have to force the issue and those on the Government side, including Members who have argued the case we are arguing, will have to vote for a position they do not support.
I wish to refer to the Minister's contribution on the point I raised yesterday, although it goes against the main discussion this morning. I raised the question of a person who is acquitted of a crime where new evidence is brought forward which causes widespread concern among the public. The Minister discussed the difficulties in dealing with such cases. Without going into the matter in great detail, I wish to make a couple of points to see if they can somehow be addressed here. There will not be an opportunity like this again to discuss this issue which will affect the criminals who are now behaving in such a serious way in our community.
Everybody understands that a miscarriage of justice occurs when a person who is innocent is found guilty by a court and is incarcerated in prison. We abhor that. The most horrible thing that could happen to a person is to be deprived of their freedom. However, we know that there are cases where intimidation of juries and witnesses and other serious activities disrupt the course of justice in a trial and prevent the correct decision being made. We are not addressing the issue that arises when a person is found innocent of a crime when we know from new facts that emerge that the person is or appears to be guilty and that there should at least be another examination of that case. I am concerned that there seems to be no mechanism to deal with this. There is widespread concern that when certain people are acquitted by the courts for various reasons, there is no way of bringing them to court again on the same issue when serious crime is involved.
Admittedly, there may be a constitutional problem because the person has already been dealt with by the courts. The public does not understand the niceties of that and I would like the Minister to discuss whether there are other ways of dealing with this question. A jury may be intimidated in cases where there is serious crime against the stability of the State or involving subversive organisations. In some court cases in that area insufficient evidence was produced or was available for people to be convicted correctly of a crime.
There should be some recognition given to the fact that a miscarriage of justice occurs not only when a person is locked up for a crime they did not commit but also when a person brought before the court is allowed to go free. Despite new evidence and despite intimidation of jurors and witnesses. Recognition should be given to this problem and something should be done about it, if not in this Bill then in some other other way.
Listening to contributions, the impression would be given that the Court of Criminal Appeal had a vested interest in convicting people of offences. Statements have been made to the effect, for example, that the courts are not concerned with the truth but that they are wrapped up in rules of evidence. We should remind ourselves at his stage that the rules of evidence are not there with the intent of showing bias to any defendant but, as applied in the courts of this country and every other country, they are there to ensure fairness and to minimise, in so far as it is reasonably possible, a risk of injustice to any defendant.
It should also be recognised that the Court of Criminal Appeal, in a case referred to it under section 2, will be looking at not only a new or newly discovered fact but also a fact which shows that there has been a miscarriage of justice. That fact would have to be relevant to the root of the conviction in the first instance. In those circumstances it is grossly unfair to suggest that any judge of any integrity would, just because the court was found to have been wrong in the first instance, show bias against the defendant. Any such innuendo or suggestion — and those innuendos and suggestions have been made here today — should be withdrawn. The truth is that the court in that situation would exercise its judicial discretion, and experience in this country has shown that judges have bent over backwards to be as fair as they possibly can to defendants.
If one proceeds with the argument, which has been made by several speakers this morning, that the Court of Criminal Appeal should have nothng to do with cases where there is a new or newly discovered fact which shows that there has been a miscarriage of justice, then one must ask the question why not? If one accepts that argument it means that there must be something wrong with the court or with the rules of evidence. If the Court of Criminal Appeal should not be allowed to consider a case where there is a new or newly discovered fact which shows that there has been a miscarriage of justice, then the only conclusion that any reasonable person could reach is that the court should not have been trusted to hear the apppeal and, indeed, that the courts perhaps should not be trusted to hear the case in the first instance. That is a preposterous position for anybody to adopt.
I strongly believe that the Minister's proposals in section 2 are reasonable and are the right way to proceed. Deputy O'Keeffe seemed to suggest that under the petition procedure in section 7 the Government was making the position political by allowing the Minister for Justice to make a recommendation to the Government that a pardon should be granted or that a committee of inquiry should be established. The Minister for Justice would make a recommendation to the Government on foot of a new or newly discovered fact which shows that there has been a miscarriage of justice. In other words, the new or newly discovered fact would have to go to the root of the case. Even then the Cabinet would have to decide whether it would make a recommendation to the President to grant the pardon. In our open democracy is Deputy O'Keeffe seriously suggesting that the Government would, on the flimsiest basis, because X or Y happened to contribute to the party's national collection, grant X or Y a pardon? That is the conclusion one must read from the ridiculous nonsense which Deputy O'Keeffe put forward this morning.
The sections as they stand are reasonable and they will stand the test of time. They deal with the extraordinary cases which sometimes arise where there has been a miscarriage of justice and where a new or newly discovered fact which goes to the root of the case comes to light after the proceedings have concluded.
Various points have been made and I thank Deputies for their contributions, which were intended to be constructive. First, in relation to my comments on Deputy Shatter's contribution yesterday, in view of the remarks made by Deputy Mitchell and Deputy Browne, for both of whom I have the highest regard, I will withdraw the word "crass" and substitute the word "unworthy". The point I was making was that Deputy Shatter as a practising lawyer of long standing knows perfectly well that what he was saying was utter rubbish. That is the only conclusion I could draw. I cannot understand how Deputy Shatter can be such a successful lawyer if he did not know that he was talking nonsense yesterday.
Deputy Mitchell said that the Martin committee suggested there was a good reason for going a different route and that we were not in effect passing a vote of no confidence in the Judiciary, that we were only taking the recommendation of the Martin committee which itself suggested a vote of no confidence in the Judiciary. This matter is dealt with on pages 11-13 of the Martin report.
The report mentioned two types of case. It mentioned the type of case I dealt with involving perjury and to which Deputy O'Donnell adverted yesterday. It also dealt with the case of hearsay evidence. It made the point that those sort of cases are not suitable for referral to court. That is correct, because the court cannot hear hearsay evidence, and if there is hearsay evidence which tends to show that a person is not guilty, well then so be it, it must go to a tribunal. However, the Martin committee seems to conclude from those two hard cases which are appropriate to a tribunal that nobody should ever be allowed to go back to the Court of Criminal Appeal. They mentioned those two particular cases and they jump on, at page 12, to say:
We have given this aspect of the matter the fullest consideration and we have taken into account the many submissions received. As a result we are of the view that in the circumstances envisaged [I do not know what they mean by "the circumstances envisaged", whether they are just the two cases or whether they are talking generally about miscarriages of justice] where substantial doubt may arise as to the propriety of a conviction, the setting up of an independent body with statutory powers of enquiry is by far the most effective manner of dealing with the situation.
If I was involved in a public debate with Deputy Mitchell, who raised a point and I said I had taken submissions on that point and had information to suggest that he was wrong on that point, I do not think Deputy Mitchell would accept that too readily.
The reasoning in the Martin committee is flawed. I have to say that. The reasoning as I see it is that — this is my own interpretation of it and no aspersions are intended — they mentioned two hard cases which they say they would be more appropriate to a tribunal — those cases will, under the legislation I am proposing, go to a tribunal — and by an extraordinary jump of logic they arrive at the conclusion that no miscarriage of justice at all should be referred back to the Court of Criminal Appeal. What is their basis for that conclusion? Evidence and submissions received? If the Minister or I were to take that suggestion on board, the least we deserve is for the Martin committee to set out the basis of those submissions and their reasons.
Deputy O'Donoghue asked a very fundamental question. If we say that there are cases which can appropriately be dealt with by the Court of Criminal Appeal, in view of the record of our judges over the years, the question must be asked, why should they not be sent back to the Court of Criminal Appeal? The only reason I can think of is that we have no confidence in the Court of Criminal Appeal and the Minister for Justice or I or the Legislature should not say that at this time.
Deputy Mitchell went on to say the rules of evidence do not allow courts to consider the case properly. Deputy O'Donoghue again has dealt very well with that. The rules of evidence did not just suddenly appear out of the sky. They have been built up over a number of years. There is very good reason why the courts have ruled that certain things should be admissible and certain things should not. It is not a game. We are talking here about criminal law, about guilt or innocence, about something that goes right to the root of a person's constitutional rights. Somebody did not just make up the rules of evidence overnight. They have developed over the centuries and there are very good reasons why some things are admissible and other things are not and why certain rules apply differently in certain cases. It all has to go to the courts, independent of the Executive, independent of the Legislature. The protection of the liberty of the accused is the reason for the evolution of the rules of evidence to their present stage.
Deputy Mitchell also referred to the Scottish Act and unless I am misinterpreting him, he seems to feel that the Martin committee reference to the Scottish Act means that they have legislation in Scotland which will allow courts in certain circumstances to hear hearsay.
I did not mean that.
All right. The Scottish Act allows ony a tribunal to hear hearsay evidence and tribunals as constituted are tribunals under the 1979 legislation. A hearing tribunal can hear evidence that is not admissable in court, or can hear hearsay evidence. This will be extended under this legislation to allow a tribunal set up under section 7 to hear evidence that is not admissible at all, not just the hearsay evidence but any kind of evidence that might not, for one reason or another, be admissible in court.
Deputy Browne made the point that we are providing for compensation. Do we need a report to allow the Minister for Justice to give compensation to somebody who has been locked up in jail? The Minister has that discretion already but the Martin committee specifically recommended that compensation be put on a statutory basis. We have accepted that recommendation and that is exactly what we are doing and why we are stating it specifically in section 7.
In case there is some sort of suggestion that the Martin committee has a monopoly on wisdom, let me say that I do not have a monopoly of wisdom, the Deparment does not have it, the legislature does not have it, and the Martin committee does not have it either. Deputy Mitchell accepts that, because he departs in his amendment from the recommendation of the Martin committee. Deputy Gilmore also accepts it because in amendment No. 4 he has also taken the opposite line to the Martin committee. I will just make that point in passing.
Deputy O'Donnell said there was no public call for an open-ended referral back. The position is that we cannot have a situation where we have a law stating that if a new fact emerges which might tend to throw doubt on the conviction, a person can go back to the Court of Criminal appeal and at the same time say that he can only go back once, because after the first appeal has been disposed of, another new fact might emerge. Can we realistically say that if a year later another new fact emerges, an entirely new fact or a fact that gives credence to the original fact, it has to stop after one go? It is just not logical.
We are of the view that a presidential pardon cannot set aside a conviction. Deputy O'Donnell says there is a body of jurisprudence that suggests that it can. I will certainly take up her suggestion to have my officials look at that but I am not aware of any such jurisprudence. Since somebody's contribution at an earlier stage I have searched the law books high and low and I cannot find——
I thought Thomas Quinn was the case. Both cases were in the 1940s.
Are they the cases where pardons were given?
Yes.
No. The terms of the pardons given in those cases would not suggest that to me and if we are talking about jurisprudence, we are talking about a decision of the courts to the effect that somebody other than the courts can set aside a conviction.
They can recommend a presidential pardon.
Yes, but to my knowledge there are no judicial decisions of the High Court or Supreme Court recorded in those cases.
We have the record of the two 1940s cases.
The court hearings?
Yes.
Yes. Well, I will get my officials to check those and what the court said, but when we are talking——
But we could have legislated here for the legal effect of a pardon, that is what I am saying. The opportunity is being missed to clarify that.
My interpretation is that Article 34 of the Constitution keeps this matter exclusively within the preserve of the courts.
No, it does not, it specifically allows for that.
No, it does not.
Such power of permutation or omission may, except in capital cases, also be conferred on the law by other authorities. The right of pardon and the power to commute or remit punishment imposed by the court are hereby vested in the President. But it can be——
My interpretation of the Article and the cases that have been decided under the Article, lead me to the conclusion that the courts have exclusive rights in this regard, but I certainly will look at the suggestion the Deputy has made and I will look at the jurisprudence referred to. Deputy O'Keeffe asked what route the applicant will follow. The applicant can follow whatever route he likes. If he follows the ministerial route and the Minister feels that in all the circumstances it is appropriate to refer the case back to the Court of Criminal Appeal, he or she will advise the applicant accordingly.
Deputy O'Keeffe was upset that it is the Minister who has to decide on compensation and on how much will be paid. The Martin report states:
Having received and considered the opinion of the Inquiry Body, [that is the inquiry body set up by the Martin report] it would then be a matter for the members of the Government and for them alone to decide whether the case called for action on their part and, in that event, the nature of such action.
The Martin report is saying that it is a matter for the Government so I do not know what Deputy O'Keeffe is so upset about. He obviously feels differently to Deputy O'Donnell in that he feels that the pardon does not clear the person's name.
What does the Minister of State think? Does he think that a pardon clears the conviction?
My advice is that it does not.
That is interesting. I do not think that Nicky Kelly would be happy if he only got a pardon which does not absolve him of guilt.
Whether Nicky Kelly is happy is not my problem. I am talking about the law. The Deputy asked me a legal question and the advice I have is that the conviction still stands and only a court of law can set aside a conviction.
I am sure that is unsatisfactory——
I am sorry if that does not suit the Deputy or any other Member. I am only giving the interpretation of the Constitution which I got.
I am sure it would not satisfy the petitioner.
I have no doubt that at this moment people are being told things by their solicitors and in solicitors' offices that do not suit them. That is hardly the solicitor's fault or mine.
Deputy Gilmore referred to the filtering system — I take the point he made and I know he made it genuinely — but as I explained we tried to improve the existing filtering system. If there are concrete suggestions as to how we can improve it further I will listen to them. Deputy Gilmore also said the tendering will be for the Court of Criminal Appeal to automatically dismiss cases. That is a slur on the Judiciary.
I did not say that.
I noted what the Deputy said. The reality is that we are talking about a person who has been convicted on certain grounds. We are providing for cases where new evidence emerges and we are asking the Court of Criminal Appeal to look at the new evidence. Deputy Gilmore may not be aware that as the law applies at present if somebody is convicted by the Circuit Criminal Court or the Central Criminal Court when they go to the Court of Criminal Appeal new evidence can be adduced at that stage. It often has been introduced and has been the basis on which a person was freed.
Deputy Gilmore made the point that the Court of Criminal Appeal will have no investigative powers. It will have investigative powers in all cases — not just in section 2 cases — as a result of section 3. It will have the right to ask the Garda Commissioner to investigate cases to see whether further evidence can be adduced. The Deputy was, I think, making the point that it has no investigative powers at the filtering stage. Is that right?
Yes.
I will consider that point. Deputy Gilmore also made the point that some cases going to the Minister, because they cannot get into court, might not warrant a presidential pardon. In other words, they might be guilty of some lesser offence and, therefore, would not warrant a pardon. In Deputy Gilmore's amendment he referred to setting up a committee. This is the procedure he recommends as the net result of the committee until it goes to the Government to recommend a presidential pardon. That is a wise recognition by the Deputy that this is a problem we just cannot solve. The Court of Criminal Appeal can, as the law stands, substitute a lesser conviction for another conviction and can substitute a sentence. We cannot get into the arena of the Government or the President substituting lesser offences. Under the procedure the Minister can on looking at a case generally — while she might not be disposed of granting a pardon — let somebody out of prison.
Deputy Walsh referred to people who were found innocent and may be guilty on new evidence. He asked should we bring those people back before the courts. We cannot do that as there would never be finality. Nobody who was ever before the courts would know when someone might put a hand on their shoulder again, so to speak, if that was the law. We have been advised that it is unconstitutional.
The Minister of State mentions finality yet he is introducing non-finality with this system.
Does the Deputy disagree that there should be some mechanism for dealing with miscarriages of justice?
Of course there should be.
If there is a mechanism where people can go back it undermines finality. We are doing so in the interests of justice but we are not going to get rid of finality whereby nobody could ever be sure whether they are guilty or innocent.
Some cases are more final than others.
Yes and we have to have it on balance in the interests of justice. To argue against getting rid of finality altogether is to argue against the legislation and to argue against the Martin recommendations. I have listened carefully to all the contributions and I will bear in mind what has been said. I cannot hold out any great hope that there will be change. However, where there is life there is hope and I will bear in mind what has been said.
Is the Minister of State saying he will look at the section again before Report Stage?
Yes, I cannot advance any great optimism that there will be a change but I will bear in mind what has been said.
In that event I will not press my amendment. I would like to thank those who contributed on the amendment and to thank the Minister of State for his comprehensive reply. The Minister of State said my amendment departs from the Martin committee recommendations. It does technically but this section departs from it substantially. I will not press my amendment given the Minister of State's response and I hope we will get a more favourable response on Report Stage.
Amendment, by leave, withdrawn.
Sitting suspended at 1.10 p.m. and resumed at 2.10 p.m.
Amendments Nos. 2 and 3 not moved.
NEW SECTION.
I move amendment No.4:
In page 3, before section 2, to insert the following new section:
"4.—The Minister shall make regulations under section 27 of the Criminal Justice Act, 1984, not later than 5th July, 1994.".
We spent much time discussing our differences in relation to Part I of the Martin report. This amendment relates to Part II and the terms of reference which required the committee to examine whether uncorroborated and exculpatory admissions made by an accused to the Garda Síochána can be sufficient evidence for a conviction.
It was asked also to examine whether additional safeguards are needed to ensure that such admissions are properly obtained and recorded and to make recommendations accordingly. This whole issue is addressing the prevention of miscarriages of justice occurring in the first place. Many of the notorious miscarriages of justice arose because of the way in which statements were allegedly made or admitted while people were in police custody. The Martin committee dealt with this in some detail.
The Martin committee went on to say that where somebody who had not been charged with the commission of an offence went voluntarily into a Garda station and made a statement — they may have written and signed it or it may have been given verbally — there was little doubt about the admissibility of that. However, in the majority of cases, statements taken from people in custody usually follow from what the committee kindly described as "question and answer sessions" in custody, where the gardaí summarise the question and answer exchange in a narrative form and then get the person in custody to sign the summary as their statement, or where in other cases, the gardaí draw up the statement and asked the person in custody to sign it. In those cases, much doubt can arise, first, as to whether there was any duress placed on the person in custody to give a certain statement.
Since the establishment of the Garda Complaints Board, there has not been the same number of complaints about the "leaning on" of suspects and the kind of reports we received, in the mid-1970s for example, about the activities of heavy gangs in the Garda who used unfair methods to try to extract statements from suspects in custody. Admittedly, we have not had many complaints of that type in recent times, but miscarriages of justice have arisen, in British cases, for example, from the mistreatment of suspects in custody. In the Nicky Kelly case there was precisely the same pattern, suspects were mistreated while in custody and the measures used to extract statements from them were clearly unfair. Forms of pressure that were not proper were used.
There is a danger of the police becoming too enthusiastic in interviewing a suspect but there is also the more common case where there may not be any force or unfair pressure, either of a physical or psychological nature, used on a suspect but when it comes to writing the statement, the way in which a garda will summarise what has been said and the emphasis put on it may not be as the suspect wishes. Of course, the member of the force writing the statement may know what will be admitted in court and how the way it is written will be interpreted by a court, whereas a suspect may not know that.
For all of those reasons the need to have the electronic recording of questioning in police stations has long been recognised. It is almost ten years since the Oireachtas enacted the Criminal Justice Act, 1984. Section 27 states that the Minister for Justice may by regulation provide for the recording by electronic or similar means of the questioning of persons by members of the Garda Síochána at Garda stations or elsewhere in connection with the investigation of offences. My amendment states that the Minister shall make regulations under section 27 of the Criminal Justice Act, 1984 not later than 5 July, 1994. The significance of that date is it will be the tenth anniversary of the passage of the 1984 Bill through the Dáil. It is not unreasonable that by the tenth anniversary of the passage of the Bill that these regulations be introduced.
On Second Stage the Minister said she was setting up a working group to examine this. Practical issues such as the sound-proofing of rooms were involved. She said the scheme might be introduced on a pilot basis which gives rise to many considerations. It is time we had a system for electronic recording of interviews in police stations. If we had the possible miscarriages of justice and allegations of miscarriages of justice might be greatly diminished. Indeed, it would be of considerable assistance to the Gardaí in the investigation of a crime if they had a recorded interview which they could subsequently replay. It could prompt further lines of investigation which might not occur to them in the immediate exchange in the interview.
I support the amendment. I intended raising the matter when discussing corroboration of evidence but Deputy Gilmore has raised it in a fitting place. As the Deputy said the Minister has power to provide for the video taping of interviews. It would be fair to suspect that major miscarriages of justice would arise or would have their genesis in the way people are questioned when they are initially arrested.
At the moment there are various safeguards; the right to remain silent, the Judges' Rules, the Criminal Justice Act, Treatment of Persons in Custody in Garda Stations Regulations, 1987 and the constitutional right to legal advice. This right which was recognised by the Supreme Court in The People (DPP) v.Paul Healy in 1989. However, the recommendation that interviews by gardaí of suspects should be video taped is radical and sensible. The Martin committee held that this safeguard was needed.
The Minister's response of accepting that in principle and introducing a pilot scheme was inadequate. Video taping of interviews should be introduced immediately. I await the Minister's response. I gather the Minister agrees in principle with the notion but feels we should await a report on the pilot scheme to see how the procedure should be introduced. Since it was such a strong and fundamental recommendation and since the Minister has the power to introduce it, the procedure should not be put on the long finger.
There is tremendous merit in Deputy Gilmore's amendment. There is no reason in the modern age why modern technology should not be used to ensure justice is done. It would be to the advantage of the dependent and, indeed, of the Garda Síochána, against whom hostile and spurious allegations are made in this kind of case. The only caution I would sound is that if one is going to introduce a regulation to provide for the video taping of interviews by gardaí it will have to provide that all such interviews in the conduct of the investigation be recorded. Otherwise if there were no video tape available the jury would draw the conclusion that the allegation was correct. That might or might not be true.
Various points have been made. Deputy Gilmore rightly says 5 July 1994 will be the tenth anniversary of the passage of the Criminal Justice Act, 1984. I was involved in the Committee Stage debates on that legislation and I think Deputy Gay Mitchell participated also. He will recall that one proposal was to video tape interrogations as a counter balance to the new powers given to the Gardaí in that legislation. I agree with Deputy Gilmore it is not unreasonable to expect this mechanism to be in place ten years after the passage of the Act. Unfortunately, nothing has been done by successive Governments, which includes Deputy O'Donnell's party and indeed all parties except Deputy Gilmore's. There have been no attempts to put this into place. We are now only eight months from 5 July 1994 and I do not think it reasonable to have it in place in that time.
Deputy Gilmore also said that after the "heavy gang" period allegations of abuse diminished. That is no small measure due to the regulations for the treatment of persons in custody that were introduced. They have worked well.
We accept in principle the recommendation of the Martin committee. Indeed, before the committee said anything we accepted this mechanism was needed. The purpose of the amendment is to bring it into operation by means of regulations on or before 5 July 1994. The Minister spoke at some length at the conclusion of the Second Stage debate on this Bill. She explained why, in accordance with the recommendations of the Martin committee, it was so important that properly conducted pilot schemes take place in selected Garda stations.
Only when the pilot schemes have concluded and been evaluated will we know precisely what regulations will be necessary for the introduction and operation of the recording of Garda questioning of suspects in Garda stations on a widespread basis. In other words we have to see what comes out of the pilot schemes to enable us to frame the regulations. Any impression that the electronic recording of statements made in Garda stations will be simple and straight-forward would be erroneous. In practice and independently of regulations, this must be done properly first time. There will be no room for mistakes. We cannot allow a situation to develop where the courts would refuse to accept video evidence of confessions because a tiny point of procedure had been overlooked.
The equipment used is crucial to the success of electronic recording. It is not as simple as going into a shop, purchasing a supply of video and audio recorders, putting them into an interview room in Garda stations, switching them on and proceeding from there. The equipment has to be custom made. It is bulky and includes numerous features which would not be included in equipment sold to the public. For example, it has to be tamper proof so that if the recorded statements are used in evidence their authenticity, etc. would be beyond reproach. Therefore the way to proceed is through pilot schemes. When they have been evaluated the question of what regulations will be necessary before recording in Garda stations becomes the norm can be decided.
I have two points to make in conclusion. The Martin committee who suggested this pointed out the difficulties involved and recommended that the regulation only be drafted as a result of a pilot scheme. The second point is that the Minister for Justice has already given the instructions on the pilot schemes. The first scheme will be in operation by the end of the year. If I accept the amendment we will be obliged to have this place by 5 July 1994 and I am advised that technically it is not possible. I do not know what position we would be in legally if we had something written into the law that we cannot possibly undertake. Would we have to stop all questioning of suspects until such time as we had the equipment installed and the regulations in place?
I acknowledge there has been a delay of ten years. I fully appreciate what Deputy Gilmore said, that it is reasonable to expect that the equipment would be in place within ten years of the passing of legislation which gave extra powers to the police. However, as we are only starting now it simply will not be possible to have the regulations and the equipment in place in eight months.
I accept what the Minister said regarding the history of inactivity in relation to section 27 of the 1984 Act. I acknowlege that the first steps are now being taken to put in place electronic equipment for the recording of interviews. My reason for suggesting 5 July 1994 was that it will be the tenth birthday of the passing of the Bill and it seemed a good idea to remind the House that in the ten years nothing has been done about the matter. If more time is needed for practical reasons, I have no problem in extending the date. Given the fact that it is ten years since the legislation was passed and nothing has been done until now, it would be helpful if we had some date by which the Minister will introduce the regulations to make electronic recording of interviews a regular feature of work undertaken by the Garda Síochána. Will the Minister give the committee some indication as to when he expects this procedure to be in place? I do not want to hold out on the eight month time limit if it is an impracticable proposition.
Regarding the pilot schemes, I am aware that the Minister has given some explanation as to what needs to be assessed during the period of the scheme but, with respect, it is not that complicated. The equipment we are talking about is in use in other jurisdictions. Surely it is possible to establish, as the Minister would appear to have, the equipment that is required; the features needed in such equipment to prevent tampering and the physical installation of such equipment. That is hardly a complicated matter.
An aspect which worries me about the idea of a protracted pilot scheme, where one would have electronic equipment in some garda stations and not in others, is the temptation that if a garda wants to interview a suspect without having the electronic equipment in use all he or she has to do is take the suspect to a garda station where there is no such equipment. It would help me in relation to the amendment if I could get some indication from the Minister as to the extent of the pilot scheme. The Minister said that the equipment will be in the first station by Christmas which is good news and I welcome that. How many stations does he expect to be part of this pilot scheme? What kind of a spread is there going to be? How long does he expect the pilot scheme will have to last before the regulations can be introduced? Could he, for example, give us an assurance — if the eight months is too short — that perhaps by the end of 1994 he would expect to be in a position to introduce the regulations? If he were to do that it would certainly help me.
I am pleased to hear the Minister is fully in agreement with the recommendation that taped interviews should become the order of the day. The dangers of fabricated evidence have been a feature of all of the great miscarriage of justice cases. In this context the verbals need to be considered.These are the kind of initial admission by an accused which constitutes either a partial or full confession and which is subsequently contested by the accused when the case goes to trial. That was the crux of the evidence against Paul Hill and others in the Guilford Four case. It is vital to the deliberations of this select committee that we set in place procedures to ensure that such fabricated evidence does not arise in our jurisdiction.
Section 10 provides that the judge can warn the jury about the dangers of accepting as conclusive uncorroborated statements. That is to be welcomed and it is a good point, but it would be desirable if there were a time frame for its introduction, for example if the Minister could indicate that it would be introduced definitely by December 1994. It is unfortunate that this Bill will come into effect as soon as it passes all Stages while this fundamental point of the lessons to be learned from the Guilford Four case and of the recommendations made by the Martin committee are being put off to a later date. I accept that the Minister is doing what he can to implement this procedure and that previous Governments did not do anything. However, it would be good to receive an assurance from the Minister that the Department will proceed with all possible speed to put the scheme into operation.
My comments on this were put on the record on Second Stage so I will not delay the meeting. I realise there are complicated provisions here. For the record, my understanding is that the guidelines in Britain all allow the videos to be turned off once it becomes obvious that the person who is being questioned is suspected of being involved in an act of terrorism. That would not help in some of the more celebrated cases. The principle that has been raised today, and the principle I raised on Second Stage, is important and I hope the Minister will press ahead with the procedure as soon as possible.
On Deputy Mitchell's final point in relation to the interviewing of suspects in terrorist cases, the Martin committee adverted to that and we are conscious of the situation. We might need different rules in that type of situation. It will be up to the steering committee to decide on that when the regulations are being drafted.
I will answer Deputy Gilmore's questions as closely as I can. I do not want to be put into a position of giving a definite date by which it will be introduced. The best advice I can get is that it will be closer to July 1995 rather than July 1994. In other words, it is estimated that it could take about 18 months or so from now, which will be some ten or 12 months longer than the date proposed in the amendment. The pilot scheme will cover about four or five Garda stations and my understanding is that even before that pilot scheme is completed there will be nothing to stop a second pilot scheme running partially concurrently with that.
The reason we are organising pilot schemes is because different types of equipment can be used. We will be looking at and trying out different types of equipment to see which is the best. There will also be the question, of course, of sound-proofing the rooms in which the equipment is to be located and so on.
Deputy Gilmore made the point about police moving people to a station where there would be no such equipment. First, while the pilot scheme is operating nobody will be asked — nobody will certainly be forced — to give evidence on camera without written consent which will be obtained in advance. I know that that does not meet the point the Deputy made. All I can say in relation to that point is that this will inevitably come up at the trial. One can imagine the line of questioning of the garda by the defence counsel: "In what station did you question the suspect? Why did you not question him in your station? Is there audio visual equipment in your station? Were you trying to avoid the use of that and have you something to hide?" It would not be advisable for any garda, who thinks he has a good case or wants to get a conviction, to leave himself open to that line of questioning.
In so far as the suspect is concerned, no suspect will be questioned before a camera on the basis of a pilot scheme unless he gives written consent. A problem can arise if nobody or few people are prepared to give written consent. In such a situation we will have to consider having ad hoc regulations. However, we do not anticipate that because the members of the Martin committee, and officials from the Department of Justice, have been looking at how this operated elsewhere and the feedback is that people are only delighted to go before the cameras. People love to be on camera for some reason, perhaps for the obvious reason that they feel their rights are better protected. That is the reason we are going to introduce this mechanism retrospectively into the Criminal Justice Act, 1984. I cannot be asked to set a definite date when the regulations will be in place. My advice is that it will be closer to July 1995 than July 1994.
I am satisfied the Minister has given a target date by which it will be done. There are many means open to us to pursue the matter further.
Amendment, by leave, withdrawn.