Oireachtas Joint and Select Committees
Tuesday, 2 March 2021
Select Committee on Justice and Equality
Criminal Procedure Bill 2021: Committee Stage
I welcome the Minister for Justice, Deputy Helen McEntee, to our meeting. I will allow her to contribute as amendments arise but if she wants to make concluding remarks at the end, she is welcome to do so.
I move amendment No. 1:
In page 8, lines 29 and 30, to delete ", where" in line 29 down to and including line 30 and substitute "direct that he or she shall be arraigned at the commencement of such a hearing, provided the trial court is satisfied to do so is in the interests of justice.".
The O'Malley review recognises that certain crimes can render victims and witnesses vulnerable. In the other jurisdiction, north of the Border, there is a type of preliminary hearing called a committal hearing. Interestingly enough, there were reviews of this recently. With the speeding up of justice in mind, it was recommended that such hearings be abolished. The reports on this side of the Border, however, have recommended that we introduce such hearings to speed up justice. The main issue in the North concerned the cross-examination of victims at a hearing. It was not considered appropriate for this to happen at a committal hearing or preliminary hearing.
What we want to do is ensure that whatever wording we have relaxes the arrangement and that, where possible, people will not be tested in a preliminary hearing, particularly victims or witnesses. We want it to be done in an appropriate way. That is the reason for the wording in our amendment. Deputy Daly may have more to add in respect of that. It is a very small amendment. It is just to try to ensure that victims of crime, in particular, will not find themselves in circumstances in which a preliminary hearing becomes like one part of a double trial in which they must give evidence twice.
There seems to have been a slight amendment. Pretrial hearings are, in general, a good idea because they will make sense in sorting out a lot of issues so juries will not be hanging around, especially in long cases. There is a reference in the legislation to arraigning the accused person if it is felt to be appropriate. We feel that should be tightened up a little. An issue could arise over the chain of custody or there could be a technical issue in respect of which the accused should be able to make a guilty plea as early as possible and be given credit for that. Thus, a minor technical issue could be sorted out and the accused would not have to be arraigned beforehand. That was a concern I had about the section.
We have examined this matter. We are all trying to achieve the same thing. Perhaps I am incorrect but my understanding of the amendment, as it is being set out, is that its effect would be to require a higher test for arraigning a person at the preliminary trial hearing. I do not believe that is necessary in this instance. It is being left up to the court, and it is appropriate that the court can decide whether an individual can be arraigned at the pretrial hearing. If it is just an issue of case management, where somebody does need to be brought forward, a court can decide on that without having to show whether is in the interest of justice.Therefore, the amendment is possibly setting the bar too high.
Regarding the O'Malley review, a key recommendation is to try to deal with some of the challenges and issues that arise in a trial. Regarding Northern Ireland, we have done something different.The procedure in question is to be before the trial so there will be no need for an arraignment in every case. Maybe I am not responding fully to what the Deputies are saying but my reading of the amendment, as it stands, is that it would just be setting a higher bar. It is still very much up to the court to decide what is appropriate. This is a key recommendation in the O'Malley report, among many others.
The wording in subsection (6) "where it considers it appropriate" is very loose. The experience in the other jurisdiction where wording in legislation has been loose is that it has been open to abuse or certainly what victims of crime in some cases have considered to be abuse. We tabled this small amendment to tighten the language. The Minister said it is setting the bar a little higher but in those particular circumstances it would be appropriate at least to warn the Judiciary that this is a scenario that could arise.
As no other members are offering, I will make an observation. With regard to the pretrial hearings that are proposed, normally directions would be given by a judge at a call-over of cases prior to the sessions commencing and legal applications would be made before a jury is empanelled. Is it envisaged that the pretrial hearings will replace the current procedure?
Subsection (6) contains the wording "where it considers it appropriate", while subsection (7) contains the wording "as it considers appropriate in the interests of justice”. Perhaps subsection (6) could also include the wording "where it is in the interests of justice”.
The difference is between where someone is being arraigned and where other types of matters are being assessed, which is the second part. It is not only arraigning a person but considering matters such as case management, the availability of witnesses and the length of the trail. We would be going into a different type of list. This is simply focusing on arraignment. It would be more appropriate that the court would be able to decide that without having to have a test or that a certain bar would have to be reached. The test that is provided for is adequate. It strikes the right balance between something that is workable and practical in reality in the courtroom. We are setting a very high bar whereby the court can decide whether it feels it is appropriate. Adding the words “in the interests of justice” would set a higher bar.
I move amendment No. 2:
In page 9, to delete line 15.
The amendment is fairly clear. It provides for the removal from the Bill of the line that includes section 21 of the Criminal Justice (Victims of Crime) Act 2017. That section provides for the past sexual history or private life of a victim to be assessed. That should not be a requirement and should not be included in the Bill.
To give some context, section 21 of that Act, as the Deputy outlined, states:
In any proceedings relating to an offence, where a court is satisfied that— (a) the nature or circumstances of the case are such that there is a need to protect a victim of the offence from secondary and repeat victimisation, intimidation or retaliation, and
(b) it would not be contrary to the interests of justice in the case, the court may give such directions as it considers just and proper regarding any evidence adduced or sought to be adduced and any question asked in cross-examination at the trial, which relates to the private life of a victim and is unrelated to the offence.
It is really important that a decision can be made on that particular section in the preliminary trail hearing as to whether a victim can or cannot be questioned on his or her private life for the two reasons outlined. It does not prevent a matter from potentially being addressed later in a trial, for example, if new evidence arises or there is a reason a defence may seek to raise questions under section 21 of the Criminal Justice (Victims of Crime) Act. Removing the provision, as the amendment proposes, would mean a decision on whether to include this type of questioning could not be taken at the preliminary trial hearings. The reason we are introducing this provision is to remove this type of decision from the subsequent trial where it might cause a delay. That is not to say the matter cannot be addressed in the trial. It is important that this question can be asked and a judge can decide whether it is appropriate in the preliminary trial hearing. I suggest, therefore, that we keep this provision.
It is provided for in the Criminal Justice (Victims of Crime) Act. It sets out that where a person will be victimised, where there will be intimidation or where it is contrary to the interests of justice, a question about a person's private life is not acceptable. It is not for me or the Deputy to decide whether that is appropriate in the context of a case. It is very much up to a judge to decide that. It is important to have an opportunity to resolve this type of issue before a trial where a victim will have obviously prepared. We want the trial to go as smoothly as possible without being stopped and started again on issues like this. There is a view that people should not be asked about their private life if it is felt it has nothing to do with the case but there may be some instances where they are related. I do not have an example of that but a judge may decide it is important that somebody be questioned on his or her private life. As I said, it is important that judges be allowed to make such decisions. It is also important that we can get the matter out of the way in the preliminary trial hearing.
I move amendment No. 3:
In page 9, to delete line 18.
The amendment relates to subsection (8)(c), which provides that "Without prejudice to the generality of subsection (7), the trial court may, at a preliminary trial hearing, make any one or more" of a number of orders, including "a relevant order". What is a relevant order or what is envisaged by that?
It is explained in the Bill that a relevant order relates to the admissibility of evidence. This is a significant part of the legislation. One of the reasons we are introducing pretrial hearings is to allow a decision to be made on whether evidence is relevant. The Bill sets out that a relevant order "means an order as to the admissibility of evidence”. I am not sure we would want to remove that.
I move amendment No. 4:
In page 9, between lines 25 and 26, to insert the following: “(9) In respect of relevant offences to which this Act applies, where an application under section 3 of the Criminal Law (Rape) Act 1981 is made during a trial, having not previously been requested or notified at a preliminary trial hearing, the trial court must be satisfied granting any application is likely to—(a) facilitate the expeditious and efficient conduct of the proceedings, and
(b) result in the least disruption to the jury and witnesses in the trial of the offence.”.
We consider that the language is not strong enough. During trials requests could be made for information on victims' sexual history, which could increase disruption and leave them trying to find legal representation quickly. They would have to go into a pretrial hearing without knowing whether it would delve into their sexual history. The language in the section does not deal with that in a manner we consider appropriate. For this reason, we propose the amendment.
I understand where the Deputy is coming from. There is an onus on the prosecution and defence to highlight particular issues they want to raise at the pretrial hearing. It is important that these are not put off and it is claimed later that something has arisen and needs to be raised. Section 6(17) provides that there is an obligation on the prosecution and accused to inform the trial court of any orders. That would apply, irrespective of whether they be sexual offence cases, where they intend to seek that at the first available opportunity. These issues need to be raised at preliminary trial hearings. This also takes into account that issues can arise, for example, new evidence, witnesses and other matters can arise throughout a trial. We need to make sure we do not prevent these types of orders from being raised later on in a trial as opposed to at the preliminary trial hearing.
On the language, we are talking about efficiency and disruption and later on where something "may" arise limits the scope under which a decision by a judge can be made as to whether something is admissible. It narrows that provision.
I fully accept we must ensure that as much as possible is addressed in the preliminary trial hearing and that is where we try to deal with it later in section 6(17), where there is an obligation on the prosecution and the accused to inform the trial of any orders they intend to seek at the first available opportunity. It places the onus on all the parties to make any application specifically under this section 3 of the Criminal Law (Rape) Act 1981 at the preliminary trial hearing. It also provides protection for later in a case where it may not have been possible to raise these matters in advance.
As I have said, the potential unintended consequence is where there are very specific reasons for acceptance relating to efficiency and disruption, it limits the scope for the judge to deal with the matter. We have dealt with this in section 6(17) but we must pre-empt that there can be unintended issues arising and we need to allow the court to be able to deal with them.
I move amendment No. 5:
In page 18, after line 37, to insert the following: “Review of operation of Act
19.The Minister shall, not later than 3 years after the commencement of this Act, carry out a review of the operation of this Act.".
The amendment is self-explanatory and sets out that not later than three years after commencement of the Act, the Minister will review it and report on its performance and that of its relevant sections. It is a common amendment in all Acts and it is important to have an established form of review for legislation after it is passed. The provision should be included in the Bill.
I thank the Deputy for his amendment. It is important we review all legislation. Deputies are aware that there is an existing provision within Standing Orders for post-enactment reports. It is Standing Order 197. It must be prepared by the Government or the Minister responsible for the legislation 12 months following the enactment. It provides for a review of the functioning of the Act and this is laid before the Houses in the parliamentary library.
We have engaged with a number of people from the courts, the Director of Public Prosecutions and beyond on this legislation, which has been discussed for some time. There is a concern that if we wait for a review in three years, the progression on implementation and function may be paused because people might be waiting for that review. There is an existing provision for this to be looked at after a year and this will enable us to ensure the provisions can be implemented as quickly as possible. Any changes could be made before that three-year period is up and they could happen in the next year or so.
This legislation is a long time in the making so it would be better to implement required changes sooner. I agree with the Deputy but if we could have a review after one year, it would serve the implementation of the legislation better.
It is good procedure to have a review and we had much debate about it. I remember the debate on the Standing Order. The issue was whether we should review all legislation after 12 months because as much legislation is complicated, it could not be assessed after 12 months. The debate was whether we should have a two-year horizon on legislation.
On foot of this discussion, I will bring before the committee dealing with Dáil reform the issue arising from the reviews just going to the library without anybody seeing them. Newer Members may not be aware this is happening in any event. We need a different procedure whereby the legislation, once reviewed, would be somehow notified to the Dáil or, more properly, one of the standing committees. There might be a requirement to review the review, see how the legislation is being implemented and whether further amendment or tweaking of the legislation is required. It is an important part of procedures that is probably not followed through with sufficient vigour. It often transpires that legislation we enact does not do what we want it do or does something we do not expect it to do. It is useful to have a review. Note may be taken in a Department but it might be a decade before amending legislation comes in a normal cycle. That is instead of addressing issues where it might be appropriate for them to be reviewed by committees. It is a good amendment.
I only became aware of the Standing Order in question in the past couple of days and have asked the Oireachtas Library and Research Service how many reviews are submitted. It might be interesting to see that number.
If the review happens after a year, that is fair enough, but this amendment would not have an impact on the review. The review could happen and we could look at it again in three years. I do not see what is the problem. If it is the case that the legislation is working well after a year, it should work well after three years. It may work okay after a year but a problem might arise that could be picked up at a later stage. It is important to have a review mechanism.
I do not know if it could happen before a change to the particular Standing Order but I am happy, unless otherwise recommended, to have a discussion with the committee or have something presented to the Dáil on the legislation, whether it happens at the request of the committee or automatically. Perhaps that is something that should be discussed by the committee dealing with changes to Standing Orders. I am very happy for that to happen.
The period of 24 months is probably a good idea as some legislation is more complex and takes longer to bed in and even understand. In this case, the legislation has been requested for a long time and some concerns have been raised with us by those who have engaged with us on the matter. My concern is that by waiting and including in primary legislation a requirement to have a review after three years, the legislation may not progress or be implemented in the way we want because people will wait for the review to happen.
If the review could happen more quickly, which is within the 12 months set out under the standing order, then if any further changes, requirements or updates are necessary, that would be done quickly in order that this can become embedded as quickly as possible and we are not waiting for the three years. It is simply not to delay that review. That it would happen more quickly would be my preference.
On the issue of the review, this is going to set up a court procedure and that will take time. The reality is that within a year, there will be very little to examine or on which to carry out a study. It will take a little time to see what the outworking of this legislation is. It will probably take two or perhaps three years before we will be able to have a review which would have any substance and would be able to examine a number of cases that would have passed through the preliminary process. If we do it within a year, all we would be doing is examining the legislation we have passed rather than examining its implementation. Deputy Pringle is probably correct. We need to push it out a little. While I understand that in normal situations one would pass legislation and examine it after a year, in this case it is the working of the legislation, its implications and how well it has worked or not that has to be examined. That will take a period of time. Perhaps the three years would be an appropriate time in that respect.
An argument could also be advanced that three years is not enough. Some legislation comes before the House every year for review. I do not want to put extra work on the public service, but there are other ways to do it as well. One could argue it up and down.
That concludes the discussion on the amendment. It has been a useful discussion. We have taken a few views on it, apart from everything else. How stands the amendment?
The general objective of this Bill is to try to ensure that when juries are called for court hearings they are not sitting in a room for two days while there is discussion on what is admissible and inadmissible and legal argument over various matters. That will all be dealt with in the preliminary hearing. The issues we focus on, and this has been raised today and in other forums, are issues relating to cases of rape or sexual abuse, in particular, where a person's character or a person's sexual history would come into it - the clothing a person was wearing on a night out was used in cases in the past - and how that can be dealt with in a preliminary hearing. We would all suggest, hopefully, that it should not be something that would be taken into a trial.
However, I wonder about other aspects of it. For example, we often see in trials where there is a great deal of evidence of what is called a person's good character, a character reference. For many people it is a type of suggestion that the accused person in a particular case may be from a particular class rather than from another class, and that is often used in proceedings of that nature. Most of us would suggest that this is not appropriate. Is that something that can be dealt with in preliminary hearings to ensure it cannot be brought up in cases, particularly where there are very serious assaults? The emphasis should be on the action that took place, how it happened, where it happened and whether the person is convicted of it, rather than whether the person was in good standing in the local GAA club or whatever. That is not the issue. The issue is the hurt or harm that was done to another individual or to society in general. Does the Minister have a view on that?
In addition, we are going into a situation where the emphasis of the legislation is on speeding up the judicial system to make it more efficient and work better. However, as I said earlier, the experience in the other jurisdiction north of the Border has been that it has not done that. In fact, it has created a system almost of double trial and delayed justice, rather than speeded-up justice. We need to be cognisant of that as we move forward with this and ensure we do not go down that path and that we learn from the lessons north of the Border. It is a different judicial system. That must be said. There are serious differences, and quite major differences in some places, but I believe lessons need to be learned at the same time.
To return briefly to section 7, I might reserve my position relating to that for Report Stage, if that is all right. I am slightly concerned about whether this is creating a general right of appeal in respect of the decision made in the preliminary hearing.
The legislation goes a certain distance to deal with what Deputy Martin Kenny has outlined as well. The Minister can set out under section 5(2) to section 5(4) the types of orders that can be set under this legislation that can be addressed in the preliminary trial hearing, the reasons for doing so, the nature of the offence concerned and the complexities that arise in particular offences. The provisions of the Criminal Justice (Victims of Crime) Act provide important protections to victims here, which is slightly different from the North. We have seen examples of particular cases where items of clothing were held up and certain things were supposedly brandished in courtrooms. There are protections here whereby that should not happen and is not allowed. One cannot always prevent something happening in a courtroom which should not happen, but there are protections under current legislation to prevent something like that happening. The fact that the Minister can specify orders that are relevant defence or that are indictable under this legislation allows some flexibility that is not specified in the legislation itself.
Overall, the implementation of the O'Malley report and the implementation plan supporting a victim's journey are important in that process as well. It is not just about the criminal procedures and the court process, but the type of supports that are being provided to victims, be it through legal aid or through other supports. It is important that all of these recommendations are implemented as a package. It is not just this legislation that will support victims who are going through very difficult scenarios and where difficult questions are being asked. There will sometimes be scenarios where difficult questions are asked and we cannot always prevent that from happening, but we can do everything we can to ensure the support is available and that victims have that support throughout, not just in the court but beyond that as well.
I would just like to thank colleagues for the speedy passage of this Stage of the Bill and their support. It was quite a technical Bill in terms of the amendments that are being put forward. It has been sought for some time. I was looking at not just the O'Malley report, but the Hamilton report, the Fennelly report of 2012 and the McDermott report of 2013. This will make a difference and if issues or problems arise we need to make sure we have a system in place that allows us to address and amend them where necessary.
I thank the Minister for coming to us today and engaging with us in the deliberations. I thank all members who submitted amendments, spoke on them and everything else. That concludes our deliberation for today.