Ms Aoife O'Leary:

I thank the Cathaoirleach and the members of the committee for hearing from us today. I hope members of the committee will have had an opportunity to read our submission. The Bill is obviously quite wide ranging so we have focused on a number of important aspects of the Bill, the first of which is the proposal to extend remote hearings to virtually all forms of criminal business, including jury trials. It goes without saying that a jury trial is concerned with a matter of fundamental importance: determining whether an accused person is guilty of a serious offence. Obviously, a conviction results in public opprobrium but can also result in a significant prison sentence being imposed, depending on what offence the person is convicted of.

A fundamental aspect of a criminal trial is the ability of the jury to assess the evidence that is given by witnesses from the witness box. That assessment includes assessing the demeanour of the witness giving the evidence in a controlled environment. A further fundamental aspect of a jury is the right of an accused person to be present, to engage fully in the trial and to consult and have adequate access to their legal advisers throughout the trial. We are of the view that a fully remote jury trial will seriously diminish the vindication of those aspects of the trial process.

In our submission, we have noted that certain cohorts of individuals may face particular difficulties in dealing with remote hearings, including those who may have cognitive difficulties, suffer from addiction issues or be neurodivergent. Those concerns relate not just to accused persons but also to the witnesses themselves and to victims. We also note concerns about lay witnesses giving evidence from a remote location, which is uncontrolled, not secure and where there may be other individuals present and where they may be subject to interference or intimidatory behaviour. We also note there are already provisions which permit a trial judge to allow a particular witness to give evidence remotely by live television link where there is some particular difficulty with that person attending court.

The other aspect we have discussed in our submission was the proposed amendment to section 19A of the Criminal Evidence Act to remove the facility whereby the complainant can waive the right to a section 19A hearing and consent to disclosure of their records. That provision will effectively require judicial determination in relation to disclosure in every case, requiring the judge to peruse the records and determine as to whether the record would be disclosed. That will have the effect of diverting judicial resources into conducting such hearings and away from the conduct of trials themselves. We suggest a potential alternative is to strengthen the provisions in relation to the provision of independent legal advice to complainants specifically in relation to the issue of disclosure of records to ensure that any consent to the disclosure is informed consent. We note the developments in the area, particularly the Supreme Court decision in DPP v. AM, which recognises both the requirement to vindicate a complainants right to privacy but also to ensure a fair trial and to ensure that any consent to disclosure is informed consent.

We suggest that strengthening the requirements for independent legal advice may have the desired effect rather than diverting judicial resources into conducting hearings which may not be necessary, where a complainant is satisfied to consent to the records being disclosed having had independent legal advice.