Thursday, 30 July 2020
Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020: Second Stage
Gabhaim buíochas le Seirbhís Leabharlainne agus Taighde an Oireachtais as an report a rinne sí agus as a neamhspleáchas.
I want to speak on certain applications in section 23 regarding criminal proceedings to be heard via live video link. This section was obviously prepared a long time ago, probably pre-Covid. I know from having worked in the criminal courts for some years that there are many cases where it is unnecessary to bring a prisoner to court. Sometimes a prisoner would agree that he or she will not have to be put into a tiny cage in the back of a van and travel for hours to a court hearing.
I have particular concerns about what will happen in indictable cases. There are cases for case management, call-overs, preliminary applications and the like, perhaps even in appellate courts sitting during Covid. I would have less of a problem with this if it was done by consent of a prisoner. If the Bill had been developed in consultation with the Bar Council or the criminal lawyers committee of the Law Society, I may have fewer concerns.
Some 80% of what are perhaps unnecessary journeys could have been made by consent. I fear, however, that the real reason behind the Bill is to reduce the €17 million bill for transporting prisoners to court. It is a triumph of expediency over fairness.
I agree with the summary of the report from the Library and Research Service. Fundamentally, as we know justice has to be seen to be done. There are personal freedoms in the Constitution but on a practical level in indictable cases, every case apart from murder, rape, or, perhaps, treason, can be dealt with in the Circuit Court. There are cases where people could potentially face life imprisonment, and under the provisions in the Bill they could be heard remotely or via video link without accused persons having their legal teams beside them or members of their family in court. That is fundamentally unfair. I do not know how it could be in the interests of justice or how any judge could see that it would be in the interests of justice, to allow such a thing to proceed.
The report from is very good. It states, quite fairly, that the general consensus is that such hearings are better suited to civil matters and less suited to use in the Circuit and District Courts and more suited to civil courts. It goes on to state that legal professionals on the criminal side are generally resistant to engaging in this type of technology on a substantive day-to-day manner.
The report deals in quite a fair way with some of the ways the courts in England operate. The UK Civil Justice Council said that the majority of respondents felt that remote hearings were worse, half of the hearings were affected by technical difficulties and 12.9% had serious technical difficulties. That is what we are dealing with. We all remember when the Department of Justice purchased a video system for Garda stations. When everything was going digital, it purchased a CD system for the recording of interviews in Garda stations. I fear the technology will not be sufficient. Professor Anne Wallace has noted there is often a difficulty in receiving and giving non-verbal cues from other participants in the proceedings and difficulty in hearing or seeing some of the respondents.
Surveys have been carried out in England which show that 67% of respondents felt there was a negative impact on the ability of defendants and their lawyers to communicate. This measure will creep into the system. It is likely to become the norm. That cannot be in the interests of justice. I submit that it is not something that Declan Costello would have agreed with or that Eamon de Valera would have introduced.
The Bill is rushed, flawed and dangerous. I do not think the necessary technology is in place. It will reduce the ability of defendants to communicate in confidence with lawyers. There is a provision for ex parteapplications. That should be removed from the Bill. The proposal to use video links is a cost-saving exercise and we should consider it very seriously before introducing it.