Michael McDowell (Dublin South East, Progressive Democrats)

I acknowledge that the Senator raises an interesting and important issue, namely, whether the decision of the Director of Public Prosecutions to refer a case to the Special Criminal Court should be one with reasons attached to it. The purpose of giving reasons is obviously with a view in some way to testing the decision to find if it was proper or to challenge the reasoning given.

This raises several collateral issues. For example, it may be decided to send me to the Special Criminal Court because the Director of Public Prosecutions believes I will tamper with a jury. If that reason is made public, is this prejudicial to my innocence? If a debate takes place, in court or elsewhere, as to whether I am likely to interfere with a jury, who my associates are and what I do in my spare time other than in regard to the offence with which I am charged, does it improve matters that a justiciable controversy is created, prior to the commencement of a case, as to my character, past actions or otherwise? For example, if the Director of Public Prosecutions is strongly and for good reason of the view that I am likely to tamper with the jury, is it right that he must make public his evidence to support that view?

I assume the amendment's reference to "special counsel" is to a counsel who could be made privy to the reasoning without revealing the matter to his or her client.

That carries with it certain implications, including, for example, that I could be represented in a court case by counsel who would know why I won the case, or what was held against me if I lost it. However, I would not know what my own counsel knew was being alleged against me in court proceedings. That carries with it many complex issues as to whether it is appropriate for me to go to court and know that a hearing or trial of some kind took place at which I was represented, but about which the grounds for the decision were never revealed to me.

I do not know whether that is a huge advance on the current situation. I am not saying this dismissively because I have spent some time contemplating all of these issues. I am not persuaded that the solution proposed by the Senator is the most attractive one.

When I was Attorney General, this matter was raised before the United Nations committee in Geneva by a number of participants who were ably assisted by NGOs in Ireland in identifying this issue in Irish law. This was an occasion prior to the more recent committee decision on this issue. I found it odd that countries whose representatives said that jury trial was neither attractive nor necessary, and would not guarantee it to their own citizens, were saying that the mechanism whereby the Special Criminal Court's jurisdiction was invoked was, in their opinion, in breach of the convention. It would seem to me that in order to have a reasoned view on that issue, one would, first, have to understand the common law system and, second, share the view that a jury trial is, in our order of things, superior to a judge only trial. One would also have to come up with some kind of mechanism, which would stand up to scrutiny, for making this decision in a way that would give greater rights to an accused person. That is the issue. Are we going to have some mechanism for a hearing at which the accused person is represented but is not entitled to attend and know the reason, and the public is not entitled to know the reasons because it could prejudice a trial?

I will provide a straight example. Somebody might be charged with murder and the issue would be whether he or she should go to the Special Criminal Court. A hearing may be held as to the accused's propensity to interfere with witnesses or intimidate jurors. At that hearing, much evidence could be put on the table tending to suggest that the accused was likely to interfere with jurors and intimidate witnesses. The hearing may decide that, on balance, the accused should go before a jury trial but if all that pre-trial hearing evidence was made public it could be massively prejudicial to a jury trial. If there was a law that such evidence must remain unpublished and, in certain cases, that not even the basis of the opinion could be revealed to the accused, it would be hard to say that was a major advance on the current situation.

To cut a long story short, I concede that this is a serious issue but it is not one about which I am in a position to offer a serious, thought-out solution at this point. I am not confident that the solution offered by the Senator's amendment would be a significant improvement on the existing situation.