Thursday, 30 July 2020
Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020: Second Stage
Ar dtús, déanaim comhghairdeas arís leis an Aire, Teachta McEntee. Níl aon dabht agam ach go n-oibreoidh sí go crua agus go dícheallach sna blianta amach romhainn. I start by commending the Minister, Deputy McEntee, and wishing her well in the years ahead. I wish her every success as Minister for Justice and Equality.
There are many provisions in the Bill we are discussing which are urgent and necessary in light of the Covid pandemic. I am thinking in particular of the repeal of section 33 of the Prisons Act 2007. That Act provides and requires that a prisoner, when he or she is being arraigned or sentenced, must be physically present in the court. In the context of the Covid pandemic that is an unnecessary requirement but it was not a requirement that could be got around because of the law as it existed. As such, I welcome that this section is being repealed. I also welcome the new provisions being put in place for criminal trials and the decision to do away with the necessity of persons having to be in court in certain scenarios. It is preferable that people be in court but in the context of a pandemic it is important that we preserve and protect the safety of our prisons in particular. They have done very well during the course of the pandemic.
There are, however, other provisions in the Bill which are not urgent and merit further discussion, debate and hearings of the Joint Committee on Justice and Equality, as was the practice on previous occasions. I refer in particular to the provision in respect of the admissibility of business documents, which I will address presently. I will refer first to the provisions in the Bill which are particularly urgent, save those I have already mentioned.
Chapter 2 of Part 3 deals with remote hearings of civil proceedings and I am pleased to say that the courts have already been having remote hearings of cases. That has been happening with the Supreme Court, the Court of Appeal and the High Court. I assume it is also happening with the courts of local and limited jurisdiction. It is important to point out, however, that simply because there was not a statutory provision in place at the time those remote hearings were taking place, that does not mean there is any question mark over them. The High Court is a court of full original jurisdiction. It is entitled to govern its own affairs and to have its own rules on how it will conduct its hearings. Very properly, that court determined that the justice system in this country could not simply stop because of a pandemic and for this reason the hearings of the High Court, the Court of Appeal and the Supreme Court continued during the pandemic. I commend the Presidents of the Courts and the Chief Justice on ensuring that business continued at a very difficult time for all concerned.
The next provision I will refer to is in chapter 3 of Part 3, which deals with business records in documents which are presumed to be admissible in hearings. A number of Deputies have spoken of how this a provision put in place to benefit what are referred to as "vulture funds". It is unquestionably the case that the provenance of this provision derives from a number of judgments of the High Court, the Court of Appeal and the superior courts, which have ruled on a number of occasions that evidence which has been put before them by certain financial institutions is not admissible because it violates the hearsay rule. In particular, that happens where financial institutions come before the courts, having had loans assigned to them, and try to put forward evidence on the basis that this is first-hand evidence.
However, it clearly is not because it is information they have learned as a result of the assignment of the loan. It is important to note, however, that the issue of the inadmissibility of certain documents in these proceedings has been dealt with by the courts for a number of years. It was referred to by Mr. Justice O'Donnell in the case of Bank of Scotland PLC v.Beades. It was referred to by Mr. Justice Barniville in the case of Promontoria (Arrow) Limited v.Burke and others. Very recently, it was identified by Ms Justice Baker and Mr. Justice Collins in the case of Promontoria (Aran) Limited v.Burns.
It is instructive to note, however that the decision in the Burns case, to which the Minister referred, was only given by the Court of Appeal in April this year. It was a decision given remotely because of the pandemic. At the end of it, Mr. Justice Collins referred to the fact that at some stage, when circumstances permit, it is clearly an issue that deserves the attention of the Legislature. I have to say that even he, I suspect, would be surprised that the Legislature was planning to completely change the law in this area within a period of four months. I do not think we can simply state there is an urgency to this that requires it to be dealt with this evening. It was referred to in the 2017 report of the Law Reform Commission but that was an enormous report that dealt with reforming the laws of evidence in general. Just to pick out selectively one provision in the report and state we have to run with it now does a disservice to the excellent work done by the Law Reform Commission.
I would have thought it would have been preferable if this significant change to our law could have been examined, appraised and discussed at a lengthy hearing of the justice committee. It is important to point out to other Deputies that although they keep talking about how this is for the benefit of what is referred to as vulture funds, it is a provision in the law that will have a significant impact and it will apply to a variety of business disputes. The core of the provision is contained in section 13, which states that in civil proceedings any record in document form compiled in the ordinary course of business shall be presumed to be admissible as evidence of the truth of the fact or facts asserted in such a document. This is a significant change to the law. Generally, when a document is produced in a court of law the document is only evidence or proven if an individual comes before the court and states he or she generated that document or that it is a document he or she received. It is never the case that the information contained within the document is regarded as proof of the facts contained within the document. That is a presumption that the section is now inserting into our law. Like all presumptions it is a rebuttable presumption, and subsequent provisions provide for this, but I would have thought the provision would have benefited from it expressly stating it is a rebuttable presumption. I would have thought we need to be careful in how we enact legislation such as this, which could have consequences beyond which all of us intend.
I will vote for the Bill as I am a member of the Government but I would have thought a provision such as this, which is not urgent and which clearly is something that has been discussed in the courts and has been the subject of a Law Reform Commission report, would benefit from more consideration, particularly by the justice committee.
There are further provisions dealing with this matter in the Bill. This then take us to Part 4, which deals with the criminal procedure. I have mentioned this briefly already and it is of benefit that we are repealing section 33 of the Prisons Act 2007.
We also have miscellaneous provisions, and one in particular that stood out is the issue in respect of statements of truth. It is unfair that for many years people who do not have a religious belief felt they were compelled to swear on a Bible that the evidence they were about to give was truthful. I know it was the case that individuals always had the option of affirming but at present the affirmation process is more complicated than people believe it to be. We need to recognise that we need to accommodate individuals who do not share the beliefs many of us do but who want to be able to be part of the justice process.
In respect of the provisions referred to in Chapter 3 of Part 3, the explanatory memorandum refers to the fact this admissibility of business documents is something that will apply in criminal proceedings also. The Bill does not apply for this. It is only in respect of civil proceedings. However, it is the case that in our criminal law, as the courts have recognised, we have relaxed the rules in respect of the admissibility of certain documentation to enable those documents to be admitted as evidence and not to fall foul of the hearsay rule.
It is also important to note, and we can be comforted by this, that no matter what is in legislation that we enact here, when these issues get to be dealt with in a court we will have an independent judge who will appraise the evidence. Just because a document is admissible in evidence does not mean it will be accepted by the court as being proof of what is contained within it or that the court will accept the veracity of the person putting forward that document. Courts will always continue to assess cases in the civil field on the basis of the evidence that is given and no statutory provision that we create this evening will undermine that.