Brendan Howlin (Wexford, Labour) | Oireachtas source

Again, I am glad to have the opportunity to speak on yet another justice Bill. I should say by way of introductory comment that it is interesting that we are now dealing with a succession of single issue justice Bills, some of which have been around for a while. I have just been to a justice briefing in advance of this debate on another Bill which is on its way which deals with a Supreme Court decision. The Bill has been in preparation since last May. It seems that many justice Bills are being taken off the shelf and presented to us, many of which I believe could be amalgamated in a miscellaneous provisions justice Bill, which would have been the way in the past. I only say that by way of introduction because I am concerned that there is a lot of other important legislation that is not coming our way as we are dealing with backlog stuff that can be brought in now. That is not in any way to undermine or diminish the importance of the individual legislative measures. I am just saying that they can be dealt with in a more amalgamated way than the train of individual Bills being presented now.

This particular Bill, the Criminal Procedure Bill, provides for preliminary trial hearings in respect of trials of certain criminal offences. The particular offences have been set out in the presentation from the Minister and I believe everybody would be strongly in agreement that these legal arguments, to use that phrase, should be determined in advance of a trial proper being commenced and a jury being sworn in.

It is an enormous imposition on anybody to be called for jury service but to be called for jury service and then be corralled in a room for hours if not days on end while legal argument is carried on outside is an unacceptable feature of our legal system. Putting an end to that via the proposed provisions is important.

The issues have been outlined by the Minister, including admissibility of evidence and what is admissible. That should be determined before anything is presented to the jury. That is quite right. Identification of matters that might lead to a trial collapse is also important as it is quite traumatic to be called for jury service anyway, even before being spoken to and selected. A trial may collapse after weeks because of a technical matter. I am not saying that this procedure will be foolproof in ensuring that this will never happen, but it is a reasonable stab at ensuring that whatever legal challenges or disputes might arise could be dealt with before the proper beginning of the trial.

I will not go through the detail of the Bill, which has been rehearsed and presented well by the Minister. I have no objection to the details, although we will have scrutiny of the Bill on Committee Stage. It is right that in these pre-trial hearings, the power will be available to a judge to ensure they are not broadcast or published until the conclusion of the trial proper. It is a proper provision to be made because some elements may be argued that could have an impact on an individual if a trial collapses or evidence is found inadmissible and should never have been placed in the public domain. That is quite right and proper.

I welcome this as an important modernisation of the law because there is so much legal argument now at the heart of serious criminal matters that should be argued and determined in advance of the final presentation of evidence before a jury of laypersons who are not legal experts. That is right and proper and we will see how it pans out. There is no doubt that in future we will return to the criminal procedural legislation to amend it as technology and other developments dictate.

I will make some general points on the conduct of trials. Other Members referred to the fact that we now have a major problem regarding the backlog of serious trials. These are trials under the determination of the Courts Service that cannot commence during a period of level 5 restrictions. We have a serious backlog and we do not know how long either level 5 or analogous restrictions will apply, although it is clear that will be well beyond this month and probably next month. The old adage is "justice delayed is justice denied" and it is a fact. Witnesses become less clear in their recollections or they may well pass away. It really is a point that we need to have a structured approach to deal with. I am interested in the Minister's response to how this will be dealt with over the next couple of months and in her post-Covid plan. What additional resources and so on can be deployed to ensure we have an immediate capacity to deal with the backlog building up daily right now? This is not only in criminal trials, of course, but in a variety of other legal cases where important commercial decisions are being delayed, sometimes to fatal detriment as the commercial decision goes beyond being made because of the delay.

I am also concerned about the development plan for the built infrastructure of our courts system. When we had no money in my time in the Department of Public Expenditure, I still tried to address this. I set up a public private partnership system, as well as a direct-build system, to provide for both courthouses and Garda stations. It is entirely unacceptable that in a variety of courthouses across the country, family law matters are not afforded the privacy or even the unimposing structure that a modern family law system requires in contrast to some of our older court buildings. What are the Minister's plans in this regard? We were able to have substantial programmes of investment of hundreds of millions of euro at a time when the State had no money.

I really hope that the capital investment can be made in order to ensure that the infrastructure available to those who practice law and avail of legal services - that is all of us ultimately - is fit for purpose in modern times. There should be facilities for taking video evidence and evidence from individuals who may still be in custody and who may not need to be dragged around the country, particularly for perfunctory hearings such as those for further committal. People are dragged in vans around the country to present for those. We must deal with that in a modern way. Not all courts have the facility to do that. In particular, I am concerned about the matter of family law privacy and it should always be the case that the most informal of structures should be used. I know there have been enormous advances in that area in the past short while.

I will focus for a few minutes on juries. One of the elements of this legislation is making the life of jurors easier. As I said, they should not have to sit in private rooms together while legal argument is conducted outside of their hearing. Looking at who is eligible to act as a juror, there is a long list of people who can be taken from the register of electors. There is also a list of ineligible categories of people, mostly to do with the law, which is understandable. There is also a long list of people who, as of right, can be excluded, including ourselves as Members of the Oireachtas. Virtually any civil servant who can be certified by a head of Department as being important may similarly be excluded. The list reads as if these people are too important to be jurors, leaving another category of people who are not vital and who can be jurors. It is an odd approach to jury service and I make that general point.

There was an interesting article in The Irish Timesin March last year under the headline "Serving on an Irish jury: 'It's very daunting'". The opening sentence of the article states, "Type 'jury duty' into a search engine and the list of related search terms includes 'excuse letter template', 'holiday booked' and 'payment' - suggesting that the first thought of many when receiving a jury summons is not civic-minded.". It is thought-provoking. It continues, "Last year, roughly one in five people called for jury duty attended court". That was in 2019 and it means 80% of people called did not attend court. The article continues, "Of the 42,840 people asked to serve on a jury, 29,682 were excused, while 4,248 were no shows.".

Some 4,248 did not show up at all. A major report published in 2020 found that judges were understanding of this reluctance to serve. Indeed, some of the concerns expressed by judges in the analysis that was done in respect of their understanding of people's reluctance, the giving of excuses, and the releasing of people from jury duty, included the emotional toll of listening to harrowing evidence, and the fact that jurors are often out of pocket for parking, public transport and childcare costs. Really, it is something we must be ceased of. We need to have the broadest possible spectrum of people available to do jury work. If people cannot do jury service because they cannot afford it and because of childcare and transport costs, these are surely things we can address.

The study was called Judges and Juries in Ireland: An Empirical Study, and was published by UCD's Sutherland School of Law. It was launched by the Chief Justice, Frank Clarke. It was based on interviews with 22 judges and 11 barristers. The report focused on the experience of judges in criminal trials and the role played by juries. It is a most important piece of work. As instanced by another Deputy, in terms of expenses, there is no reimbursement for loss of earnings for the self-employed. One judge said that he frequently exempted self-employed people from serving because of the prohibitive cost. If we exclude another whole category of people - the self-employed, and that is a big category - simply because it is prohibitive for them to serve, we have a problem, and a problem we must address.

I invite the Minister to look at the way we construct juries. In the Netherlands, jurors are professional. It is suggested that a banking trial there, for example, would be decided by a panel of cost accountants.

I know it has been dealt with in other legislation, but we must also consider the issue of the intimidation of jurors. Thankfully, it is not hugely prevalent here, but it is something to which we should be alert, and we must put support in place for this. I am aware that we have professional minders for jurors. In fact, in the analysis done, many jurors commented positively about the jury minders that were provided. One juror described them as, "...great, terrific. Always good humoured and reassuring. They were like the hospital porters or the people who wheel patients in and out of the operating theatre making jokes." That poor juror obviously felt that being marched into court to hear a case was like being marched into an operating theatre.

What I am trying to say is that we need to look fundamentally at how the the panel of jurors is constituted and how they are selected. We have a very reduced panel of people available to be called, and of those called, 80% are excused or do not show, according to the analysis I have just given. Whole categories of people, like the self-employed, in the mind of at least one judge, are excluded if they ask to be excluded, because he is mindful of the impact on their livelihood of them serving as jurors.

There is also the issue of the complication of cases nowadays. I am very strongly of the view that cases should be heard by a jury of one's peers. However, there are very complicated financial cases and so on now. Perhaps we need to look at different models for different cases. Obviously, in purely commercial issues, there are purely commercial judges that will determine the outcome of cases, and it is not a matter for jurors. However, there can be criminal cases which involve serious financial issues like fraud. We dealt with fraud legislation here last week in respect of defrauding the funds of the EU. These are things we need to look at.

I put these matters to the Minister. Obviously, we need to reform the process of the law, so that people's experience of it is as positive as it can be. It is daunting for anybody to walk into a courthouse. It is like being stopped by a garda. One can be as innocent as they day is long, but one still feels guilty as soon as one is stopped by a garda for any reason. Many people are intimidated by the mere entrance into a court building. We have tried to improve that by having different styles of court building than in the past. However, we now need to move on to the next phase of that, which involves humanising the experience of people as best we can, and recognising the imposition we put on those who are called to act as jurors in this State. It is a most important role. It is a fundamental role for the operation of a fair society.

There are some who say that getting a wedding invitation now is like getting an invoice. Getting a jury summons in the post is certainly like getting an invoice, because the recipients feel like it will cost them money and knock them out of their normal routine. They wonder who will provide childcare and what they will do. We must grapple with that. We should not say it is a societal responsibility that people must take on and it is part of citizenship. That is all well and good, and right and proper, but we need to provide the supports that are required, so that everybody can feel that serving on a jury is a good, positive and welcoming thing, and an act of solidarity with the State. We must to do that with our eyes open, as we simplify and modify the procedures in our court system.

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