Michael McDowell (Dublin South East, Progressive Democrats)

I move amendment No. 49:

In page 27, between lines 9 and 10, to insert the following:

""statutory declaration" includes a statutory declaration made under section 17 or 18;".

On Committee Stage on 19 April 2006, I indicated that I would give further consideration to a number of issues that arose in the context of Part 3. I cannot remember whether it was Deputy Jim O'Keeffe or Deputy Howlin who stated that there was a lack of joined-up cross-referencing in the section. Amendment No. 49 aims to deal with this.

In respect of amendment No 52, I indicated on Committee Stage that I would consider further amendments to section 76, which was put forward in Deputy Howlin's name. Deputy Howlin proposed that section 16 should explicitly state at the outset that prior witness statements can only be admitted by leave of the court. While section 16 does not explicitly state that the leave of the court is required, it is clear that the section could not operate in any other manner, particularly when section 16(2)(b) and section 16(4) are considered. These provisions refer to the court being satisfied with and having regard to certain matters. Notwithstanding that, I am proposing that the words "with the leave of the court" be inserted in section 16(1) for added clarity and to satisfy Deputy Howlin on the matter.

In respect of amendment No. 54, I raised a concern on Committee Stage with regard to the meaning of the phrase "any fact" as it appeared in section 16(2)(b)(i). This provides that before admitting prior witness statement, the court must be satisfied that direct oral evidence of any fact mentioned in it would be admissible in the proceedings. It emerged during the debate that the phrase "any fact" could have three possible meanings. It could mean every fact, any single fact or the facts sought to be relied on by the prosecution. There is an ambiguity in the current text. I am, therefore, proposing to amend section 54 to substitute the phrase "any fact mentioned in it" with "the fact concerned" so that subsection 2(b)(i) would read "that direct oral evidence of the fact concerned would be admissible in the proceedings". Deputies will appreciate that at one stage, three different meanings emerged quite reasonably in respect of the same proposition and that it is worthwhile introducing this amendment.

These matters may be the subject of judicial consideration at a later stage. The phrase "the fact concerned", which, having regard to the Interpretation Act, includes the plural, must be read in the light of subsection (1), which states that a statement which includes part of a statement, as defined in subsection (16), may be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination, refuses, among other things, to give evidence. Reading subsections (1) and (2) when revised as proposed together, it is clear that only those facts contained in the statement or part of a statement of which direct oral evidence would be admissible may be admitted with the leave of the court, subject to the fulfilment of the other criteria in the section. These amendments bring additional clarity to this part and I commend them to the House.

Amendment No. 51 would limit the scope of the new provisions to witness statements that are contained in the book of evidence. I do not propose to accept this amendment because not all statements are contained in the book of evidence. On some occasions, only an edited version of a statement is included in the book of evidence. Additional documents, including further witness statements, may be served on the accused or his or her solicitor after the serving of the book of evidence. Specific provision is made for this procedure in Part 1A of the Criminal Procedure Act 1967, which is inserted by section 9 of the Criminal Justice Act 1999. Therefore, to insert a qualification as proposed would have the effect of narrowing that section unduly. It is also sometimes the case that the prosecution may, in the course of a trial, decide not to call certain witnesses. However, it is worth adding that nothing in this section in any way changes the existing requirements for full disclosure of all relevant evidence by the prosecution to the defence.

Amendment No. 50 seeks to delete section 16 in its entirety. Section 16, which is at the heart of this Bill, provides for the admission of previous admission in evidence of previous witness statements and is an essential element of our response to a worrying recent development. We are all aware that proceedings in significant cases were grossly hindered by the withdrawal by some witnesses of statements made in the course of the investigation. It is not an exaggeration to say that there was a sense of public outrage about this development. It is essential that the Oireachtas is seen to respond in an effective but measured and constitutional way to this issue. Part 3, with the drafting amendments I have brought forward, meets this requirement in a moderate and reasonable way.

I acknowledge that Part 3 marks a significant departure from the common law rule that a previous statement made to the Garda cannot be admitted in evidence as proof of any facts contained in it. The effect of this rule is that the fact that a witness may have previously said something different can only be used to attack the credibility of the witness but that the assertions of any earlier statement can never constitute proof of these assertions. The basis of this approach is the constitutional right to trial and due process. Due process requires that the defence has the right to be presented with evidence in court by a witness who can be cross-examined and his or her demeanour and credibility assessed by the court. The requirement that the defence must at some point during the proceedings have the right to challenge and question a witness is guaranteed by the European Convention on Human Rights and reflected in the judgments of the European Court of Human Rights.

Aspects of the rule were previously changed by statute, for example, in respect of statements by witnesses who died or may have been intimidated. Part 3 further amends the law to provide for the admissibility under strict conditions of previous witness statements in criminal cases, taking account of precedents in other common law jurisdictions but drawing in particular on an approach adopted in Canada. In a majority judgment in the case of R v B, the Supreme Court of Canada ruled that a previous statement can be admitted if it would otherwise be admissible as the witness's oral evidence and if the judge is satisfied that indicia of reliability are present and genuine. They are that the witness must have been warned about the necessity to tell the truth and the consequences of not doing so and that his or her statement was made on oath or solemn affirmation and was video recorded or that other substitute indicia were established. The judge must also be satisfied that the statement was made voluntarily and that there are no factors which would tend to bring the administration of justice into disrepute.

In coming to this conclusion, the Supreme Court of Canada was very careful to ensure, in particular, that the witness could be subject to contemporaneous cross-examination from the defence, which is what we envisage here, and that the jury would have the opportunity to examine not just the words of the witness but his or her demeanour. The court was satisfied that any concerns could be adequately dealt with by the fact that the witness would be available for cross-examination in court in respect of the previous statement and that a video recording of the original statement would be available.

Part 3, in particular section 16, follows this approach, allowing for the admission of the previous statement, while at the same time providing safeguards against the dangers which necessitated the original exclusionary rule. I am satisfied that the safeguards which are included in this respect are the strongest possible safeguards to ensure that unreliable evidence is never admitted under this provision. Of particular importance in this respect is the requirement that the witness be available in court for cross-examination. In addition, in assessing the reliability of the evidence, the court must have regard to whether it has been video recorded and is obliged not to admit it if, in the interests of justice, it decides that it should not be admitted. Therefore, I do not propose to accept the proposal to delete the section.

Amendment No. 55 seeks the deletion of section 18. This section simply extends the power to receive statutory declarations to competent persons who are defined as the employees of a range of public authorities. The reason for the inclusion of this section is that section 16(2) refers to statements made on oath or affirmation containing a statutory declaration or made in circumstances where the witness understood the requirement to tell the truth and contains no limitation in so far as to whom the statement must be made. The extension of the power to receive statutory declarations to the Garda Síochána in section 17 and all public authorities in section 18 flows from section 16(2)(c). It means that there is a mechanism that can be used by public authorities, for example, the Revenue Commissioners, much of whose work is investigative, to show that those making statements to them understood or should have understood the requirement to tell the truth.

Having regard to the difficulties in identifying a comprehensive list of public bodies which take statements that could be relevant to criminal proceedings, the approach in section 18 is to define public authorities in broad terms. It will be a matter for each public authority to decide whether it will avail of this power.

I emphasise that section 18 only allows the employees of public authorities to receive statutory declarations. In the event that a statement contains a statutory declaration and is subsequently relevant to criminal proceedings and recanted, it will be a matter for the court to decide within the parameters set out in section 16 as to its admissibility. Amendment No. 49, which provides a definition of statutory declaration in section 16 to the effect that it includes a statutory declaration made under sections 17 and 18, clarifies the link to which Deputies Howlin and Jim O'Keeffe referred. For the reasons mentioned, I do not propose to withdraw the idea.

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