Michael McDowell (Dublin South East, Progressive Democrats)

I will outline the Government's position on the Hederman committee report. The provision in the Constitution for special criminal courts is not an emergency provision. It comes into play when the ordinary courts are inadequate for the administration of justice. While it is part of the Constitution, it is not an emergency extra-constitutional arrangement. We have an obligation to ensure that the ordinary courts are capable of discharging criminal justice as far as possible.

I emphasise that I am a great fan of jury trials. I will never be shaken from my belief that they are superior to judge-only criminal trials. When criminal justice verdicts are given by juries, the population accepts that the scales of justice have been evenly held, the ordinary person's perspective of the relevant events has been considered and the evidence before the court has been taken into account. One does not usually hear people saying a jury's decision was a travesty of justice. Unfortunately, people find it entirely possible to say this of judge-only trials, irrespective of the form of those trials or whether they are held north or south of the Border. Judge-only trials are always the focus of an immediate and bitter onslaught by those who dispute the verdict.

Another problem with judge-only verdicts is that all the reasons therefor must be stated and elaborated upon at great length. If a jury has a doubt about the evidence of a particular prosecution witness, it encapsulates all that doubt in a not guilty verdict. It does not dismember in public the evidence of an individual or set out in written form precisely why it preferred one person's evidence to that of another. However, in a judge-only process, a judge is faced with the necessity of giving a reason for preferring one person's evidence to that of another. We have had cases in which witnesses' credibility and integrity were the subject of judicial comment. There is nothing wrong with this if it is central to a verdict in a judge-only forum, but it always strikes me that it can create difficulties if two different courts do not share the same view of a particular witness's credibility. One must ask whether public confidence in the system of justice is enhanced if three judges say on occasion A that a particular witness is not credible and, on occasion B, accept key evidence given by that witness. A witness could be credible on one occasion and incredible on another, but it does not do very much for public confidence if the credibility of a witness who testifies repeatedly before the courts is itself the subject of constant written evaluations. I believe in the issuing of a guilty or not guilty verdict, as appropriate.

Sometimes we are inclined to test everything in the legal system to the point of destruction. The jury system, although it has evolved over centuries and is not the same now as when it started, has a great amount of common sense attached to it and therefore we should be very careful before we depart from it. I say this only to emphasise that we should do everything in our power to strengthen the jury trial process. I have a fairly heavy caseload of legislation in this regard. I am conscious that we do not have a very sophisticated method of protecting, assisting or sequestering jurors.

It is true that a reasonably lengthy trial would represent an economic disaster for a self-employed person summoned for jury service. A self-employed electrician called to Athlone Circuit Court to preside as a juror in a trial that lasts for two weeks is not given a cheque or thanked for his service to justice. It is just assumed that his time is given freely. This may be reasonable in respect of short cases. In one-day cases it may be an obligation of citizenship. It is strange that employees are in a wholly different position from that of the self-employed. This should be examined. I imagine that the Department of Finance will have a view on it. If everybody who comes to court as a witness gets his or her expenses paid and the jurors are unpaid, it will skew the cross-sectional nature of jury selection against those who simply cannot afford to become involved in a lengthy case.

On Senator Tuffy's remarks on jury trial, I hear people say on occasion that some cases, such as lengthy fraud cases, are too complicated for juries to follow. In response, I always ask whether there is justice in the putting of a person into jail under circumstances in which 12 jurors, who take an oath to follow the proceedings of the trial, cannot understand why that person is put in jail. It is not right to put somebody in jail if 12 people cannot follow the reasoning behind the decision to put that person in jail.

In the case of complex financial transactions, the answer is not to say that jurors cannot be expected to follow them. Rather, the answer may be to say that jurors should have access to expert evidence and that both the prosecution and defence should be able to convey their cases to the jury without simply relating direct evidence of a multiplicity of transactions.

I have great faith in jury trial and believe we should do all we can to sustain it. I hope political developments in this island will be such that I will be able to address the Hederman report before the end of this term. The care with which both the majority and minority made their carefully thought-out arguments in the report is such that they deserve some form of response. The report should not be put on the shelf indefinitely.