Wednesday, 10 February 2021
Criminal Procedure Bill 2021: Second Stage
I move: "That the Bill be now read a Second Time."
I am pleased to bring the Criminal Procedure Bill 2021 before the House. It is a relatively short Bill the primary purpose of which is the introduction of preliminary trial hearings. The need for these hearings has been agreed and their implementation has been called for over many years. The programme for government highlights the introduction of legislation to provide for preliminary trial hearings as a priority, and a number of reports have highlighted their potential benefits. This includes the expert group on Article 13 of the European Convention on Human Rights, or the McDermott report, from 2013; the report on efficiencies in the criminal justice system, or the Fennelly report, from 2012; the more recent review of protections for vulnerable witnesses in the investigation and prosecution of sexual offences, or the O'Malley report, from 2020; and most recently, the review of structures and strategies to prevent, investigate and penalise economic crime and corruption, or the Hamilton report.
Victims, in particular, have spoken about how difficult it is for them when they have mentally prepared for a trial and it does not go ahead, or how upsetting it is if something unexpected is brought up during the trial that results in interruptions while difficulties or arguments are dealt with by the court. While we cannot take away the fact that a trial is an adversarial process, that an accused person is entitled to defend himself or herself robustly and that events can unfold in unexpected ways, the introduction of preliminary trial hearings should make trials more predictable and help them to run more smoothly.
From the point of view of an accused person, if a trial is going to fail because of the inadmissibility of certain evidence, for example, this should be uncovered as early as possible to avoid the person being put through a full trial unnecessarily. Uncovering such difficulties at the preliminary hearing stage should mean the accused will not have to go through the trial process for a case that was inevitably going to fail.
It is also in the interest of the jury that the information presented to them during a trial should flow more smoothly and without interruption, insofar as that is possible. These hearings should also reduce the length of trials which, as we know, can be considerable, sometimes in part owing to repeated adjournments.
Preliminary hearings will reduce delays and increase efficiency in how our criminal trials are run. They will allow the court to deal with many of the issues that currently arise during a trial which require the jury to be excused. The judge can also use a preliminary hearing to deal with issues that might currently prevent a trial from going ahead on the day it is supposed to, for example, problems with disclosure or a need for specific practical measures or technology. Preliminary hearings will not deal with matters which currently must be dealt with when the jury is present.
In practical terms, the introduction of preliminary hearings will mean the following. First, it is less likely that the jury will be sent away immediately after being sworn in, or sent away multiple times during the trial, which often happens. Second, there will be a reduced impact on the victim, who is likely to find the trial very stressful and will have prepared himself or herself mentally, only for the trial not to start on the designated day, or to be interrupted, potentially multiple times, dragging out the experience and making it more difficult. Third, there will be significant resource efficiencies where trials are ready on the day they are due to start, and more likely to proceed smoothly to a conclusion. Fourth, matters which would ultimately prevent a case being submitted to a jury will now be more likely to be identified in advance, thus avoiding the empanelling of a jury and subjection of a person to an unnecessary trial. These are important benefits which, I hope, will be supported by all sides in this House, and which will result in significant efficiencies in the criminal justice system.
Let me turn to the Bill and outline what is proposed. Part 1 is a standard part which gives the Title, provides definitions for some important terms used later throughout the Bill, and repeals some provisions in legislation which are being replaced by updated provisions later in this Bill.
Part 2 is the main part of the Bill and deals with preliminary trial hearings. As I have outlined, the principal purpose of these hearings is to deal with certain matters ahead of the beginning of the trial so as to ensure the parties are ready to proceed on the day of the trial, and to minimise interruptions to the trial while it is in train. The judge can order a preliminary trial hearing for any indictable offence where he or she thinks it is needed. A preliminary hearing can be also requested by the prosecution or the defence where the trial is for a "relevant offence" as set out the Bill. These relevant offences are, first, offences which carry a maximum sentence of ten years or more, including a life sentence, and, second, offences which the Minister has specified by order. When specifying an offence as a relevant offence, the Bill sets out what the Minister must consider, including the nature of the offence concerned and the relevant complexities that generally arise in the prosecution of such offences. The court must agree to at least one preliminary hearing for a relevant offence where either the prosecution or the defence has requested it.
The Bill specifies the timing for a preliminary trial hearing, which must take place before the jury is sworn in, or in the case of trials in the Special Criminal Court, before the trial has commenced. It provides that if it is in the interests of justice, an accused may be arraigned at a preliminary trial hearing. The Bill also specifies the types of orders or decisions which may be made at a preliminary trial hearing.
With regard to the matters the court can deal with at the preliminary hearing, the court can assess various case management matters and make orders or rulings to ensure the just, expeditious and efficient conduct of the trial, including in regard to the following: the availability of witnesses; whether any particular practical measures or technology may be needed; the extent to which the trial is ready to proceed, including any long-standing issues with regard to disclosure; and how long the trial is likely to be. The Bill also provides that the court can also make a decision or order at a preliminary hearing in regard to: whether a number of persons charged in the same proceedings can be tried separately; amending an indictment under section 6 of the Criminal Justice (Administration) Act 1924, for example, to allow offences to be tried separately; under section 15A of the Juries Act 1976, to provide for additional jurors where the trial is likely to be long; allowing for evidence by written statement, or proof by formal admission under sections 21 and 22 of the Criminal Justice Act 1984; an application to question the victim in a rape offence about their prior sexual history in accordance with section 3 of the Criminal Law (Rape) Act 1981; decisions around how evidence may be given from behind a screen, via television link, including from outside the State, or via an intermediary under various sections of the Criminal Evidence Act 1992, as well as whether cross-examination by the accused in person will be permitted, and determination of issues around disclosure of the victim's counselling records in a sexual offence case under section 19A of that Act; under section 39 of the Criminal Justice Act 1999, whether a witness who is in fear or subject to intimidation may give evidence through live video link; under section 67 of the Criminal Justice (Mutual Assistance) Act 2008, whether a witness outside the State may give evidence by live television link; leave to call an expert witness, under section 34 of the Criminal Procedure Act 2010; under section 21 of the Criminal Justice (Victims of Crime) Act 2017, where a victim needs to be protected from secondary or repeat victimisation, intimidation or retaliation, whether to permit questioning or evidence about the private life of that victim; and to allow for evidence via video link under section 25 of the Civil Law and Criminal Law Miscellaneous Provisions Act 2020. In addition to this list, at a preliminary hearing, the court may also make a "relevant order" which is an order relating to the admissibility of evidence.
Finally, in this Part of the Bill, there is a general power for the court to make any other order that could be made in the absence of the jury, or any order relating to the conduct of the trial as appears necessary to the court to ensure due process and the interests of justice are observed.
As Members can see, there is a wide range of important orders provided for in the Bill which will now be able to be dealt with at a much earlier stage in the proceedings, which will be to the benefit of all parties involved.
It will not generally be necessary for the same judge who presides over a preliminary trial hearing to preside over any subsequent hearings or the trial of the offence. An exception to this is a preliminary trial hearing dealing with the admissibility of evidence, where, other than in exceptional circumstances, the same judge must preside over the hearing and the trial. There is also a general power in the Bill for the court to decide that the same judge must preside over subsequent preliminary trial hearings and the trial of the offence, if that is in the interests of justice.
Orders made during a preliminary hearing will be binding and may not generally be appealed until the conclusion of the trial. An application may be made to vary an order only if there has been a material change in circumstances since the time at which the order was made. The only appeals permitted between a preliminary trial hearing and the trial of the offence relate to significant decisions excluding evidence as inadmissible. If such a decision results in the case against the accused being very significantly weakened, then it is in nobody's interest for the trial to have to proceed to a conclusion before the related appeal can be determined.
Participants who would be entitled to legal representation and legal aid for the trial will have the same entitlements for any associated preliminary trial hearings.
In general, preliminary trial hearings will be conducted in public. However, there is a power for the judge to exclude the public from any portion of, or all of, a preliminary trial hearing where that is necessary, and to prohibit the publishing or broadcasting of certain details until the trial is complete. This may be necessary to protect the accused person's right to a fair trial, particularly given that the jury will not yet have been sworn in and material may be discussed at the hearing which should not be presented to the jury, for example, evidence that is later ruled inadmissible.
Part 3 deals with the provision of information to juries. This arises from a recommendation of the Law Reform Commission in its 2013 report on jury service that the types of information available to juries in complex financial trials should be extended to juries in trials for all indictable offences. This Part of the Bill implements that recommendation.
Part 4 makes various small amendments to criminal procedure legislation. The changes in relation to evidence by written statement will allow the court to require a person objecting to the admission of written evidence, rather than oral testimony, to give his or her reasons for doing so and, having considered those reasons, to admit the evidence in written form where this is not contrary to the interests of justice. The other amendments are technical in nature or adjustments to existing provisions that are necessary to reflect the introduction of preliminary hearings.
The Criminal Procedure Bill 2021 contains important provisions which will enhance the powers of our courts in conducting efficient criminal trials. A better trial process is in the interests of everyone concerned, the accused, the victim, the courts and members of our juries. The provisions of the Bill have been carefully designed to strike the right balance and to improve the criminal trial process in a way that has been sought after by experts for many years. I look forward to the debate.
I thank the Minister for her statement. Many of the features of the Bill are good and we will support its passage to Committee Stage. Some trials are becoming increasingly complex and lengthy due to technological advances and legal innovation. An informed, non-frustrated jury is an important part of the justice system. The provision to allow some arguments to take place pre-trial, thereby avoiding the need to have a jury in another room for perhaps a week or two, is welcome. If I am to be a little picky, I remember that when the Criminal Procedure Act was first amended about 20 years ago, the power of judges to review the evidence prior to sending it forward was removed. I thought that was unnecessary at the time. Perhaps that power could be reintroduced.
Section 6(6) states that where an accused has not been arraigned, the judge, if he or she considers it appropriate, may direct that the accused be arraigned at the commencement of a pre-trial hearing. If we are serious about the presumption of innocence, that provision should be tightened up a little. In the public interest, the accused should be arraigned at that stage only in exceptional circumstances. We may deal with that issue on Committee Stage.
If the prosecution is to seek a pre-trial hearing, it seems only fair that all disclosures should be provided to the defence before that takes place. Anyone who has worked in the courts will know it is quite common for a notice of additional evidence to be provided on the morning of the trial or the night before. If the prosecution is seeking something like this, all cards should be on the table.
The Bill also provides for hearings on matters such as the availability of witnesses and issues related to discovery. The discovery aspect is especially important due to developments in technology, complex books of evidence, etc. The report on the future of policing envisions better Garda resources in cybercrime. Complex discovery and admissibility matters are well suited to pre-trial hearings.
It is important to maintain a balance between prosecution and defence at all times and the Bill will give a right to request a hearing, amends the existing laws on books of evidence to ensure information is shared and seen and provides an obligation to notify where expert witnesses or evidence are to be used.
The availability of witnesses and their suitability or otherwise to take the stand is also key. We see generally in the community a disturbing and unfortunate trend whereby young people under the age of 18 years are witnesses or the accused in high profile criminal trials, often in quite violent circumstances. While reportage of crime and discussion of crime is another issue, it is often dominated by the who, what and where. Until we reach the issue of the why, we will not be able to explain some of these acts. Often there is a performative ignorance at play with regard to these developments but there has been a neglect of urban centres, including the north inner city of Dublin. Addressing the causes of crime with early interventions, targeted resources and community policing, education, housing, social care and community-led initiatives is important.
We do not have a dedicated youth justice agency. Although the transfer of youth justice functions from the former Department of Children and Youth Affairs to the Department of Justice may yet deliver improvements, it carries a risk. That risk is that young adults and children might be treated with the same resources and processes as adults, which would be inappropriate. I have heard from people in the justice system that the situation has been a crisis point, particularly over the last few years, with younger and younger individuals in a greater state of crisis. A stand-alone youth justice agency, properly resourced, is important. It should include professionals from the medical, social work and justice fields. Young adults who are violent and a danger to themselves have no real place to recover when they are arrested by gardaí. Although a new national forensics facility in Portrane is welcome, we lack a dedicated centre for minors, and this might be increasingly necessary. There was a proposal to establish a facility for young people with psychological difficulties in Cork but that was one of the first things to be abandoned when the last crash happened.
The Bill before us will be one part of a solution but wider policy and societal issues must also be addressed. The Bill contains a welcome provision to extend legal aid services to cover costs incurred during preliminary trial hearings. Some judges can be difficult about extending legal aid certificates. The legal aid thresholds should be raised because the working poor are sometimes unable to fund and raise a defence.
Section 9 gives the power to exclude members of the public from preliminary trial hearings where some specific offences are being tried, including crimes of a sexual nature and where section 20 of the Criminal Justice Act applies. We welcome this provision. We will see what happens on Committee Stage.
I add my voice to that of Deputy Daly. Sinn Féin supports the Bill proceeding to Committee Stage. Anything relating to the streamlining and speeding up of court operations must be welcomed, and that is also true of anything that allows for issues to be dealt with at pre-trial hearings. Deputy Daly mentioned technological advances, some of which are helpful, while others in the realm of cybercrime are not and create serious difficulties. There have also been legal innovations. If we can deal with some of these issues at pre-trial hearings before encumbering a jury with them, that would be incredibly helpful.
I spoke last week of the need to ensure we have in place the legal infrastructure required to deal with the problem of cybercrime and protect our communications infrastructure. We also need to ensure we have a legal framework that can protect and also prosecute. I reiterate that point. I understand that there will be international jurisdictional issues that will need to be worked out. Legislation before the House this week deals with specific issues and that is welcome. However, we must also ensure that we have the capacity and specific skill sets that are required, particularly within An Garda Síochána.
Nobody will complain if we are able to speed up court operations. We will need to follow up with resourcing. While we accept that Covid has created specific issues that are holding up certain court proceedings, there was a logjam long before Covid. When I spoke with the National Transport Authority and Transport Infrastructure Ireland recently, they raised the difficulties around planning and how they were being impacted by logjams in the courts.
The major issue I brought up previously with the Minister and with the Minister of State, Deputy James Browne, is the fact that even when we had huge Garda operations against serious drug dealers and organised crime figures that were successful, in some cases the hold up was at the courts level. That is one aspect we need to fix. I have said many times previously that we need a full multidepartmental response. Somebody has to lead that. If that is the Minister at Cabinet level that would be sound. We just need to ensure that it happens and that nothing gets dropped, as has happened over the years.
This is a pandemic that is not disappearing. We need to get a date or a general idea on when we will be able to have a citizens’ assembly to deal with the wider issue of the drugs pandemic. I realise I am taking a liberty in terms of where I am going on this but if the Minister was able to come back to me on one or two of these issues I would very much appreciate it.
I will mention two specific issues that came up at the joint policing committee, JPC, in Drogheda and in Dundalk. The Ardee JPC is under way at present. In fairness, the Minister was on the local radio station, LMFM, speaking about the proceeds of crime and said there is great support for delivering some sort of natural justice scheme whereby proceeds of crime that specifically relate to drug dealing could be put aside and issued to groups operating front-line addiction services and other necessary services. In terms of Dundalk and Drogheda, the likes of the Red Door Project, Turas and the family addiction support network will say that they need multi-annual funding that cannot be dependent on the money taken from drug dealers. This could be some of the pot, so to speak, and that needs to happen. It is very important. I welcome the fact that the Minister said she supports this and is talking to the Minister, Deputy Michael McGrath, with regard to delivery.
I reiterate what has been said by my colleague, Deputy Pa Daly, in respect of a fit-for-purpose youth justice system. I refer to the report with which the University of Limerick was involved on the possibility of up to 1,000 children being involved in criminal gangs or in danger of being involved in criminal gangs. We all know of situations and stories of drug dealers using children because it is more difficult for the Garda to take action and there are some legal protections. We need to deal with all of that to protect the children and put these drug dealers and criminals out of action.
The other issue that I brought up at the joint policing committee is the idea of these cross-border fines. Sinn Féin has strongly stated that we need to get on with the job of hotel quarantining and ensuring that anybody who is travelling into the country not only needs to have a pre-departure test but that there must be polymerase chain reaction, PCR, tests post arrival. Whether that is five days, ten days or whatever is the determinant factor, that needs to happen.
It must be put on the record that we need everybody to not engage in anything other than essential travel. The members of the Garda at the JPC informed me that they will be operating the same discretion for cross-border travellers as they operate for people who are travelling from mid-Louth to Dundalk, that is, anybody who is operating on the basis of essential travel, whether it is for childcare, work or necessary food shopping, will not have any difficulties. We need to ensure that this is the case. I put it to the Minister again that we need the Government to operate and engage with the Northern Ireland Executive and with the British Government on that because we need to ensure, if at all possible, that we can deliver an all-Ireland response. That means that travel information needs to be transferred North-South and South-North. It also means that, if necessary, we will deal with the British Government from a point of view of delivering a two-island response because it is far too important an issue not to deal with these specific areas. Were the Minister good enough to come back to me on that, I would very much appreciate it.
I, too, thank the Minister for her presentation. I welcome the opportunity to speak on this important but quite technical Bill. The main purpose of the Criminal Procedure Bill 2021 is to provide for the introduction of preliminary trial hearings. These hearings deal with certain matters before a trial begins to ensure that the parties are ready to proceed on the day of the trial and to minimise interruptions while in progress.
Part 3 of the Bill deals with the provision of information to juries to assist them with their deliberations. This section arises from a recommendation of the Law Reform Commission in its 2013 report on jury service. There are a number of other recommendations in that report which we need to consider with a view to implementation. The commission recommends that the register of electors should continue to be the source from which jury panels are drawn and calls for the establishment of the electoral commission to ensure the accuracy of the register. That needs to be a priority to ensure that we can have confidence in our electoral process.
We also need to simplify the process of getting onto the register. The need for a stamp from a Garda station is an unnecessary burden on people. In small towns like Monasterevin, where I come from, residents have to try several times a week to get a garda in our Garda station which, to be fair, is very unfortunate. I may be taking liberties here but I ask that the Minister might look at that also. If they cannot get a Garda member in that station they have to travel to Kildare, which is not too bad if one has a car but is a bit of an ordeal if one does not. A simple fix for this would be to have scheduled public office opening hours where people can call in to have various forms dealt with like we used to do in the past. If we could allow librarians and peace commissioners a wider role in validating the various forms that currently require a visit to the Garda station that would be very helpful.
The commission also recommends the introduction of a modest flat rate daily payment to cover the cost of transport and other incidental expenses involved in jury service. That is very important, particularly for our older people, many of whom have the State pension as their only income. Along with that it recommends that consideration be given by the Government to other means that could be used to alleviate the financial burden that jury service imposes on small businesses and self-employed persons, including the use of tax credits and insurance.
The commission also recommends that the Disability Act 2005 should include express recognition for the provision of physical accessibility such as wheelchair ramps and other reasonable accommodation such as induction loops that make participation by persons with different abilities in a jury practicable and achievable. In a year when we have a 24% decrease in capital spending Estimates for the Courts Service, we need to do more for those who have different abilities.
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.
This practical Bill is most important in helping to speed up criminal trials, by ensuring that any preliminary matters are dealt with before the trial starts in front of a jury. Measures proposed to make it less likely that jurors are sent away during trials are most welcome. Jurors often make preparations to undertake their civic duty, and are most disturbed to have the trial they are sitting on extended beyond the date they expect because of trial delays caused by issues such as the admissibility of evidence. Often, procedure can delay things. Many cases can take years, leaving victims in a vacuum, struggling to move on with their lives. Anything which can assist in this not being the case is most welcome. Victims must extensively prepare themselves mentally for the start of a trial on a designated day, and it is often delayed because of procedural issues. This legislation will be a welcome fix to that issue.
This legislation will also help victims who can find the criminal trial process very challenging, because the process will be more streamlined. It is very important that we streamline the process. In reality, however, we should be trying to change the law, so that the trial process is less challenging for victims. I accept that this legislation is a good start. We need to start somewhere. We should look at ways to discuss the impact of crime on everyone involved, and how to repair the harm that is caused.
I welcome this legislation and how it will improve things, but much more needs to be done in this area. I know the Minister and her team are committed to doing this work. I look forward to supporting further law reform legislation in future.
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.
I do not know whether Deputies have been taken unawares but I do not see any speakers from the Government parties, Sinn Féin, People Before Profit or the Regional Group. I am simply mentioning this in the interests of transparency. The next group with a Member present is the Rural Independent Group. I call Deputy O'Donoghue.
As a member of the Rural Independent Group, I find it very interesting to talk about this matter. Any Bill that can provide for the introduction of hearings to reduce interruptions to and delays in criminal trials must be welcomed. I am sure we have all served at some time on juries and we must realise the amount of time that can be wasted twiddling one's thumbs waiting for the legalities. Other Deputies have mentioned that self-employed people can be left waiting for a week or two. Therefore, I welcome any measure that will address this.
All victims can be spared stressful and painful delays in waiting for court proceedings. Accommodations can be made for victims in advance of trials. If this leads to the improved operation of criminal trials and benefits systems for victims, witnesses, juries and gardaí, it has to be appreciated.
I welcome the efficient administration of justice but I am concerned that there are almost 1,000 bench warrants outstanding for Limerick. This is only the tip of the iceberg. Throughout the Twenty-six Counties, there are many more warrants outstanding. I have asked the Minister a parliamentary question on this with a view to highlighting the bench warrants issue that arises throughout the country.
Previous speakers mentioned the Garda. There are investigations into the Garda in various areas. Are some of these investigations related to the system and the training gardaí received over the years? A garda of my age - I am 50 - received training in a different era. At the time, one would have heard people using terms like "square" and "L7". Many times when gardaí were doing their job, they had to work on their own initiative based on the training they were given. While the legal system is changing for the better, we must acknowledge that part of the training of gardaí over many years was carried out in a way that was different from today. It was in different times. We have to be cognisant of this. We all want a fair and transparent Garda service and a fair and transparent Courts Service, and we want to make sure criminals are brought to justice quickly and on time and that the cases of people who have suffered at the hands of criminals are dealt with efficiently, but we must also examine the mistakes that were made over the years in the training of gardaí. I ask the Minister to look back and talk to high-ranking serving and retired gardaí between the ages of 50 and 70. I ask her to examine the various training regimes so we can improve. It is getting better but it is a work in progress.
I welcome this Bill and what it will do. It is another step forward in dealing with criminals in this country. It will send a clear message to people involved in criminal activity that we will be able to deal with them quickly and efficiently but we need to put the resources in place to make sure this can happen. What I am asking for is that in current investigations, we account for the errors made in training in the past. We are aware that there are live and ongoing investigations in An Garda Síochána but we must be realistic and ask whether the actions of gardaí were based on the training they received and whether that was the way particular matters were dealt with at the time.
The system has to change and is changing. I welcome that. In the context of the investigations to which I refer, I ask people to look at the era to which they relate. I support the Bill 100% and I will be voting in favour of it.
I thank all Deputies for their comments and their support for this Bill. It is clear that there is overwhelming support from all Members for the many reasons we have all touched on. The Bill will ensure that we have more streamlined, efficient and effective criminal proceedings. Particularly in the context of juries and jurors, it will enable us to create a system where they know that when they are called to jury duty they will have a start time and, potentially, a clearer outline of the work they have to do and that they will not be empanelled and sent away. When it comes to vulnerable persons, victims or those going through a particularly difficult time, this Bill will be a huge help in making sure they will know when their trial will start and that there will not be stopping and starting. There are many positives in this. I acknowledge the engagement and assistance of everyone who has contributed to this legislation, in particular the Director of Public Prosecutions and members of the legal profession who have given their insight into this over many years.
Deputy Howlin stated that this should have been a miscellaneous provisions Bill. There are many issues that will be included in miscellaneous provisions Bills we have coming down the line this year. I think we should have a miscellaneous provisions Bill for civil law and criminal law every year but there is an urgency with the legislation before us. It has been more than five years in the making and the requests that have come in date back as far as 2012. For the reasons I have outlined, there is an urgency to this legislation and I did not want to see it delayed any further by having to wait for a miscellaneous provisions Bill.
Deputies raised a number of issues to which they asked me to respond. Deputy Ó Murchú referred to the establishment of a citizens' assembly. Unfortunately, I am not able to give a date for that. Most of the citizens' assemblies have been delayed due to Covid but we hope to get them running as quickly as possible. Proceeds of crime is something I am committed to pursuing. I think money confiscated from criminals should go back into our communities so I would be supportive of that.
Deputy Howlin asked about a post-Covid plan. There is a huge amount of work under way already through the Courts Service to try and work through the backlog that has arisen and the challenges that are being faced because of Covid-19 with the implementation and use of digital technologies. Additional funding has been provided. People are being imaginative and forward-thinking in trying to address these concerns now. Looking beyond that, there is a significant plan within the Courts Service to digitalise it and move it into the 21st century. We fully support that and will provide financial support and other assistance as matters progress.
The family court Bill is a massive piece of work aimed at redesigning and restructuring not just the physical infrastructure of our courts system but the process of family law itself. It is not just looking at the physical structure but the ancillary supports that are required. That is being progressed. The Peter Kelly report, which makes recommendations as to how we can improve the overall civil legal aid system, will help to improve and speed up the process and make it more easily accessible for everybody. There is a massive amount of work under way, including reviews of the number of judges we have and whether it is something we need to expand again to address the workload that exists.
We are looking at the review of juries, how members of juries are picked and how that process happens, particularly in light of Covid. It is something that hopefully will be of benefit not just while we are in the midst of Covid but after Covid, as well.
Deputy Catherine Murphy touched on criminal legal aid. I have committed to reviewing the overall legal aid system this year. That is something that will progress and will involve not just looking at the amount of legal aid but the types of legal aid, those who can access it and when they can do so.
The Deputy also asked about the naming of child victims. Government time will be provided in the Seanad next Tuesday for Senator McDowell's Bill to be introduced. There will be Government amendments to the Bill as it goes through the relevant Stages. I hope it can be before the Dáil in a matter of weeks and implemented as soon as possible because I share the Deputy's and other people's concerns about what has happened since the ruling in the High Court and, subsequently, in the Court of Appeal.
Deputy O'Donoghue mentioned training. Garda training is constantly upgraded and changes over time. Of course, the training gardaí receive today is different to the training their predecessors received many years ago. I assure the Deputy that this matter is constantly under review.
I thank Deputies for their support for the Bill. I look forward to working with them in dealing with the different sections in more detail on Committee Stage.