Barry Andrews (Dún Laoghaire, Fianna Fail)

The Minister made the point that for a lot of the time, this is about striking a balance to ensure fairness to the suspect but also to ensure that this does not go overly in favour of the accused. That is a common debate which takes place and we are always concerned to strike the right balance, which is delicate.

I will comment on Part 3 of the Bill but, in passing, I am glad to see that the Garda Síochána Bill is taking shape in the context of full consultation. Many elements of the Bill have attracted a lot of support from the Opposition and on that basis, the powers conferred by Part 2 of the Bill are timely. I would not be concerned about them and would be pleased to see the powers of the Ombudsman commission going hand in hand with increased powers for the Garda.

However, Part 3 gives me some cause for concern. The Minister makes the point that this comes from a Canadian Supreme Court decision and as such is part of Canadian common law. It makes me wonder why it is never before the Irish Supreme Court or why, for example, a similar case was not taken after the Keane trial, perhaps by the DPP, to see if there were a possibility that the Supreme Court might admit pre-trial statements. It is worth making that distinction. We are putting it into law by statute, and it is always welcome that the Legislature takes the bull by the horns rather than waiting for the Judiciary to do its job for it. However, the question must be asked why it has never come through the Irish common law system. That is the basis of my concerns. The Irish courts, while identifying what Mr. Justice Carney lamented as collective amnesia, have never seen the need to make such amendments.

The legislation came about as a result of the collapse of that trial. That happened on 30 October 2003, and it concerns me that the Minister declared that he would introduce this legislation only four days later. Given that the rules of evidence have developed over a century, that we should decide after four days' deliberation to turn some basic rules on their head is worrying. In 1980, the Law Reform Commission conducted a detailed analysis of the area and recommended extremely strongly against the types of reforms considered here. There is a danger of changing law quickly in reaction to public disquiet for political reasons. It is not good to be patriarchal and tell people what is best for them. At the same time, one must also caution against laws that are dreamt up or decided within such a short time of a public outcry or the identification of a problem. We can see that in the health legislation passed by the Dáil before Christmas. When one is too quick in one's response, one can cause problems.

I will give an example of what I see as a problem in these provisions. If someone makes a statement in a Garda station and then goes to court and resiles from it or says nothing — there are certain categories where that can happen — it gives a witness an opportunity to stitch up a defendant. There is a possibility of a double bluff. We are trying to deal with people who are ruthless and prepared to intimidate witnesses. Equally, I would imagine that if I wanted to stitch up an accused, I could make a statement in the Garda station knowing that I would not be cross-examined on it. I would then go to court and resile from it or say nothing whatsoever on it. There is a very strong chance under the new legislation that the trial judge would admit that statement and that the witness would know that he or she would not be cross-examined. That is a very serious concern, and I hope that the Minister will address it.

I know that there is a whole raft of safety measures to ensure that the statement is reliable and given under oath. Fundamentally, however, the accused is not there, and there is no cross-examination. There is a whole new category of evidence being introduced into Irish trials that we have not had before, and we should not take such a step lightly. Nothing much has changed. Criminals have not become more ruthless. The gardaí are not less able to protect witnesses. For example, the Criminal Justice Act 1999 allowed evidence to be given by deposition, on oath, in the presence of the accused or by television link. Stronger sentencing powers were granted to courts regarding offences of intimidation. We have seen improvements in the court system and how the Courts Service conducts trials. We have seen improvements in bringing the High Court to Limerick in the case of the problems there to avoid intimidation.

Those changes must be bedded down. We must see if there is another example of the problems that emerged at the Keane trial. We should not change our law of evidence and the basic rule against hearsay on the basis of one case. Would the statements from which witnesses in the Keane trial resiled be admissible under this legislation if that trial were held after this legislation becomes law? I am not sure since most of the statements from which people shrank back were caution statements and not under oath. I am not a criminal lawyer and am not sure whether there may be a distinction between the two. However, the new legislation requires that the evidence must have been given under oath. As far as I know, the Keane trial statements were caution statements and therefore would not have qualified for admittance. That must be examined.

We must also consider the danger of evidence given in the Garda station or, as the Minister said in his speech, statements given to the Revenue Commissioners. Very often people have axes to grind. We are talking about the heat of the moment, and people sometimes want to change their minds about that sort of evidence because whatever grievance they had at the time of giving evidence has disappeared. They go into court and make what they say is a true and honest statement, but that can be overlooked by the trial judge. That is also dangerous, and I hope that the Minister will reconsider that and decide whether it is appropriate.

The basic common law system in Ireland, where a witness turns hostile, allows counsel to bring him or her back to the proof. Alternatively, counsel can attempt to discredit the witness by cross-examination, pointing to his or her inconsistencies. Ultimately, however, that evidence is no longer acceptable. The pre-trial witness statements are never admitted. Cross-examination is the great power of our adversarial system. It has been relied on by the criminal justice system for centuries, and I see serious danger in permitting this legislation on to the Statute Book. The rule against hearsay prevents the situation where one is at one remove from a court, in a Garda station, and not in the presence of the accused. If the Criminal Justice Act 1999 required the presence of an accused and a sworn statement, those requirements should also be here. We do not have such a major problem that it requires draconian measures at this stage.

We should take great care in deciding whether this change is appropriate for the reasons that I have pointed out. A much longer gestation period should be allowed before we commit ourselves to making fundamental changes to the rules of evidence. The Minister might have considered submitting this proposal to the Law Reform Commission for its consideration; that is the more common route. I am not sure what the attitude of the Human Rights Commission is to all this, how it fits in with the principles of natural justice and audi alterem partem, whereby one is entitled to have one's statement cross-examined, or whether it is constitutional. These are concerns I hope the Minister will have an opportunity to consider.

See this speech in context