Catherine Murphy (Kildare North, Social Democrats) | Oireachtas source

I would like to broadly welcome this Bill, which provides for the introduction of preliminary trial hearings and the provision of information to juries to assist with their deliberations.

Pre-trial hearings are a most efficient method of dealing with certain practical matters ahead of the beginning of a trial. Those hearings ensure that all parties are ready and able to proceed, and minimise interruptions to a trial once it has begun.

In 2019, the Director of Public Prosecutions stated that the waiting period for a criminal trial in the Dublin Circuit Court had reached one and a half years. Obviously, the Covid crisis is going to make matters worse, but delays are particularly due to exceptionally long trials. In recent times, the Anglo Irish Bank trial was one such example. Other speakers have drawn attention to other cases and the kinds of trials that can be exceptionally long. In each of those trials, juries were sworn in before legal arguments took place, without the presence of the jury, over important practical matters of the trial such as what evidence could be introduced and what materials needed to be disclosed to the defence. Such deliberations can take weeks and tie up juries, witnesses and victims.

A pretrial process has been proposed as a method of introducing some efficiency into criminal procedures and as a way of not unduly inconveniencing victims, juries and witnesses. Approximately 150 cases are dealt with by the Central Criminal Court every year and issues have frequently arisen in regard to trials not commencing on schedule. The late disclosure of evidence from third parties, such as reports from medical institutions, telephone evidence or evidence from social media companies, has often played a role in delaying trials. Many of those companies and institutions are based abroad and the process for acquiring evidence can drag on. The difficulties in disclosing material from third parties have a detrimental effect on the management of the Central Criminal Court and lead to cases being adjourned. Another frequent reason for the delayed start of trials relates to issues surrounding fitness to plead and cases of capacity. Pretrial hearings would allow the early identification of such issues by the court and allow them to be addressed at pretrial rather than derailing a trail once it is already in process.

Pretrial hearings will be an important tool for the protection of victims of crimes. There is a need to strengthen victim protection during the trial process and avoid putting people through unnecessary hardship and re-traumatisation. The Minister referred to this in her opening statement. The O'Malley report reviewed the protection of vulnerable witnesses in the investigation and prosecution of sexual offences. It recommended the introduction of pretrial hearings where defence lawyers would have to seek permission to cross-examine the victim's sexual history. The report also recommended the provision of legal representation for victims at hearings, which should, of course, be covered by legal aid.

Pretrial hearings have long been suggested by various organisations, such as the Irish Council for Civil Liberties, ICCL, as an appropriate method to address the significant delays in court proceedings. The most recent report by the Irish Human Rights and Equality Commission to the United Nations High Commissioner for Refugees highlighted that the State had yet to provide an effective remedy to individuals whose rights to a fair trail in criminal or civil proceedings without undue delay had been violated. The European Court of Human Rights has held the State to be in violation of Article 6.1, regarding excessive length of proceedings, and Article 13, concerning the lack of effective remedies, of the European Convention on Human Rights. In response to this, the Government proposed a statutory non-court compensatory scheme. However, the Joint Committee on Justice and Equality of the previous Dáil had a number of concerns regarding that proposal, including questions about access to legal advice and lawyers, the lack of clarity around appeals and the restrictions applicable to the awarding of compensation. In April of last year, the Irish courts, including the Supreme Court, were again criticised by the European Court of Human Rights for excessive delays in dealing with a civil case, Keaney v. Ireland, and the lack of an effective remedy.

Pretrial hearings, it is hoped, will make some impact in reducing the chronic delays in our courts system, but they are not the panacea for all our problems. More must be done to address the delays and provide an effective remedy for the people whose right it is to have a fair trial without undue delay where that right has been violated. We have signed up to the European Convention on Human Rights and we really need to stick to it. We cannot continue on a trend of brushing off these kinds of criticisms when our courts system has repeatedly been shown, for more than a decade, to violate human rights. These issues need to be taken seriously and addressed by the Department as a matter of urgency. I accept that there are a lot of issues queued up in the Department, but it will absorb a huge amount of time if the State has to keep on responding to the valid criticisms that come our way as a result of the ongoing delays in trials.

It is welcome that any legal aid certificate covering an individual's trial will also apply to a pretrial hearing. Every person is entitled to legal representation and the State holds a responsibility to provide legal aid when individuals cannot afford it. Unfortunately, the current system of legal aid is inadequate, by admission of previous Governments. Reforms to the Criminal Justice (Legal Aid) Act 1962 have been promised since 2015 but have been the subject of repeated delays. Submissions to the Joint Committee on Justice and Equality discussion on access to justice and legal costs highlighted the impact that the under-resourcing of the criminal legal aid system has on individuals' access to justice. I urge the Minister to progress the planned legislation to reform the current system of criminal legal aid as a matter of urgency. Properly resourcing legal aid is an essential component of fulfilling our obligations to ensure every individual has equal access to justice.

The Bill also covers the provision of information to juries to assist them in their deliberations. This follows on from the recommendation of the Law Reform Commission in its 2013 report on jury service to extend the provision of specified documentation to juries in all trials, on indictment. Those reforms are broadly welcome, if overdue, in order to better facilitate a jury in making its decision.

On the subject of evidence admitted in trial, I draw attention to the ICCL's recent report, A Revolution in Principle, on the exclusionary rule. This rule, also known as the green Garda rule, allows evidence that has been obtained unconstitutionally to be admitted if the court believes the breach was accidental. The rule was introduced five years ago following a contentious Supreme Court decision. In practice, it means that the Garda can breach a citizen's fundamental rights, such as the right to privacy from the Government, without repercussions in regard to the evidence, as long as it is done inadvertently. Prior to the Supreme Court decision, Irish law mandated the exclusion of unconstitutionally obtained evidence unless there were extraordinary excusing circumstances. The new rule represented a substantial change. Throughout its report, the ICCL outlines the opinions of solicitors and barristers who expressed a great deal of concern that this rule is allowing the Garda to breach constitutional rights without any consequences. It is clear from the report that in the five years since the ruling, the courts have been operating on a presumption in favour of the admittance of evidence that has been obtained in a way that violates constitutional and human rights.

The statements given by lawyers display a very worrying chilling effect, with two thirds of practitioners offering advice to clients based on the view that they are not going to win. The report includes statements by lawyers to the effect that they have witnessed gardaí lying while presenting evidence, threatening to arrest close relatives, planting evidence and physically assaulting people. I am not making this up, I am taking it from the report. According to the DPP's most recent reports, the rate of guilty pleas stands at 92%, representing a steady increase from 86% in 2015.

There has been a very welcome drive towards professionalism in policing. I completely recognise that much has happened in recent years and that the vast majority of gardaí are absolutely beyond reproach. It is vital, however, that we hold gardaí to very high standards because they have an extraordinary role to play. In 2014, the Garda Síochána Inspectorate identified serious issues with Garda investigation procedures, including insufficient training for crime scene investigations and inadequate interview training for members of the force. Moreover, crime scene examination results were often not recorded on the PULSE system. There was an absence of effective supervision at all stages in some crime investigations, along with several issues relating to warrants and summonses. There were limited recordings of actions taken in the execution of warrants. Many of these issues were echoed in the 2018 report from the Commission on the Future of Policing in Ireland. Those who are charged with upholding the law and protecting the rights of Irish people should not be operating below the standards we expect from other citizens, who cannot stand before a judge and claim innocence on the basis of not knowing the law. Indeed, the opposite is the case; one is told ignorance of the law is no defence.

There are concerns regarding data retention and audio surveillance. Retired Chief Justice John Murray previously described the surveillance regime in Ireland as an illegal system of mass surveillance. The people of Ireland have fundamental rights afforded to them under the Constitution. Those rights should not be undermined by any of our institutions. There are significant issues here. I am sure they are on the Minister's desk or in the mix in terms of legislation we will see. Nonetheless, it is incredibly important to address them if we are to maintain trust in our criminal justice system.

When the Minister is wrapping up, she might indicate the position on legislation related to the naming of child victims. Just in the past couple of weeks, we heard about the tragic, high-profile murder of a young lad. Once the accused was charged, the child could not be named and the funeral happened without people being able to express themselves in a very public way, including through the media. A second case arose last week. The family not only wanted to have the child remembered as a victim but it also wanted people to know who the child was. The person whose name was anonymised was known very well because it was their child. What occurs is so hurtful. While the Minister is more than aware of this and has been working on it, when does she anticipate that we might see the legislation introduced and brought through the Dáil? I would sit here on a Saturday and Sunday if I believed it would overcome the issue. We would all feel like that. I do not believe the Minister will encounter any resistance. It is just a question of when it is going to happen. What is happening is particularly hurtful.

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