Michael McDowell (Dublin South East, Progressive Democrats)

I regard this as a very important issue. The conduct of identification parades is of pivotal importance, first, as regards their fairness. That jocose remark of mine a moment ago is significant in the sense that identification parades have to be fair. There is no point in having one that is unfair in its composition. Also, they have to be effective as I know from my practice as a barrister. I recall one incident where the Provisional IRA was intimidating a family in Monaghan. Eventually, the only method of identification available to the Garda was to put the identifying witnesses into a vehicle on a street where they knew the individual concerned walked up and down among hundreds of others. In those circumstances they were given an opportunity to identify the culprit at a distance. That type of arrangement has its problems because of concerns over what might be happening in the van as regards the possible prompting of the identifying witnesses, for example. That is an inherent difficulty. The same argument applies if the person who later ends up as the accused is in a room and is aware that he or she is facing a mirror, without knowing what is happening behind it. In the event, he or she may make the allegation that while in the company of others there was no way of knowing what the identifying witness was actually doing at the time. The question of the identifying witness's demeanour or whether he or she hesitated etc. are all potential matters of difficulty afterwards. At least the face to face arrangement had the dubious advantage that the accused could see whether the witness was being prompted, hesitating or whatever.

We correctly identified the proposition on Committee Stage that sometimes it is really frightening, particularly for the victim of a violent or sexual crime, to be asked to confront the alleged perpetrator in a face to face manner. There is a way around this, but it involves allowing the alleged perpetrator the right to have someone behind the screen to ensure all is well or else having some video record of what is happening behind the screen and the like. Best practice in an identification parade should usually involve the taking of a picture so that the jury may work out what value to attach to it. In a situation, for instance, where there might be numerous people of one race with one person of another race or whatever, such information should be brought to a jury's attention if it is to attach any weight to the evidence.

As I said on the last occasion, I am very positive about the notion of providing one-way screens. How it is to be done, practically, I do not know. One way of dealing with the issue would be to have a witness procedure behind it or an independent monitor to ensure that there is no abuse. It might well be, in such cases, that the accused has the benefit of a lawyer at this stage, who can stand behind the scene to see what is happening. There are ways of getting around that issue. However, I want to emphasise that it is not necessary for me to have regulatory power in this regard. For me or my successor to make a regulation does not make the situation fairer or less fair. Prescribing rules on a ministerial basis does not really address the issue. As I understand the issue, there is unanimity in this House that there should be a facility for victims of violent and sexual crime to not necessarily have to confront their perpetrators. In those circumstances I do not need a regulatory power to bring this about. I need to find a good way to do it and must have the will to do it. Those are the issues involved. I do not need a statutory instrument. The making of a statutory instrument would only complicate the issue, as far as I am concerned. It is really a matter of bringing in a memorandum or circular for the Garda. It does not require a statutory instrument which will be pored over by defence lawyers to determine whether this or that paragraph is totally complied with. I prefer to deal with this in a non-statutory instrument or non-legislative way by introducing some type of Garda circular that might be capable of being amended or improved on, as the case may be. Legislation is not required to achieve what everybody in the House agrees, namely, that there should be facilities for people to make an identification in trustworthy circumstances, without making eye to eye contact with the alleged perpetrator, where there is an issue of intimidation or where the victim might have genuine problems by reason of the violence or sexual nature of the crime.

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