Michael McDowell (Dublin South East, Progressive Democrats)

I will repeat what I said in the Dáil on this proposed amendment. It is outside the scope of the Bill as it was originally intended and it raises some interesting questions. There was a notion that a person could not be subjected to what is termed double jeopardy regarding a charge which had ended in acquittal. My view is in accordance with that of Senator Cummins. I believe that if new evidence comes to light, it should be possible in principle to reopen a case if that evidence could not reasonably have been available to a diligent prosecutor at the time of the original case.

In a different but related way, there are grounds for having the capacity to reopen a case when there has been interference with a jury. In that case, there is much to be said for allowing the acquittal to be quashed without prejudice to a retrial. The appropriate place to deal with the matter is in the context of the Criminal Justice (Miscellaneous Provisions) Bill. A number of things must be done. We have to face up to better protections for our juries and deal with the issue of with prejudice appeals or re-openings of cases, not simply in the narrow case with which we are dealing here, which is when new evidence becomes available, but also where intimidation is used to prevent evidence being put before a court or to procure a miscarriage of justice by intimidating the jury.

I would go one stage further as part of the reforms the Hogan committee have examined. I believe strongly in jury trial, proof beyond reasonable doubt and the presumption of innocence. These concepts would not be in any way prejudiced if we were to have a system for every jury trial that at the beginning of the case the nature and substance of the defence must be outlined to the jury at first instance in order that the jury sitting in panel to hear a case knows exactly what are the issues in the case. To take the simple example of a rape case, if the issue in the case is not that the girl was raped but that the accused states he was not the person who did it, this should be stated to the jury at the beginning of the case, in other words, that it was a case of mis-identification or the accused was not the assailant. Likewise, in a rape case, if the issue is that there was consent, the jury should know from the get-go of the trial that this is the issue in the case. Therefore, without in any way prejudicing the concepts of jury trial, truth beyond reasonable doubt, the presumption of innocence and adversarial justice, in which I also believe, we could and should introduce into in our criminal justice system a balancing mechanism that in jury trials the accused, having had the benefit of lawyers, must pin himself to some approach to the case the jury can understand.

What are the consequences of not having such a mechanism at present? They are that in some cases 50, 80 or hundreds of witnesses are brought to court to prove a whole series of facts, only a minority of which may become relevant to the jury's determination of guilt or innocence. For instance, witnesses may or may not be brought to establish that the scene of the body in a murder case was or was not preserved and it may transpire at the end of the case that the issue is that it was manslaughter rather than murder or provocation. In such circumstances, the state of the body is utterly irrelevant and the state of mind of the accused is the only issue the jury has to consider.

This approach was described by an eminent senior counsel in a seminar in Dublin Castle as trial by ambush. The Director of Public Prosecutions has also adopted this phrase. The prosecution has no idea when it sets off on its case where the battleground will be eventually and, in bringing its evidence before the court, has no idea what witnesses are likely to be challenged and to what extent they will be challenged. All witnesses are put forward, even though most of the evidence they give may be irrelevant to the actual narrow battleground on which the accused is proposing to decide the case.

I would go further than the Hogan committee and introduce a system of formal defence and require an accused person, if he or she is going before a jury and asking 12 adult citizens to spend a week considering a case, to do them the common courtesy of establishing at the beginning of the case what the issues are and to have it clear that, in the event that the issue in a rape case, for instance, is one of consent, the jury can state that it does not have to bother too much about issues such as the photographer's evidence and other matters related to the locus in quo. It can say these matters are not material because the accused will state he was in the woman's bedroom for the purpose of consensual sexual relations and it does not, therefore, matter that the crime scene is laid out this way or that or that people were or were not seen entering the house because his defence is radically different. The Bill also contains provisions for drawing inferences from failing to mention facts when one is under interrogation. These are largely based on equivalent provisions in UK law which have been in place since 1994 without any controversy of significance, so far as I know.

The same Act that in 1994 introduced the provisions with which we are dealing here also changed UK law with regard to criminal trials by introducing a procedure whereby, at the end of the prosecution case, in the full plain sight of the jury, the accused is asked to state, through his lawyers, if he has lawyers, whether he will give evidence. He is warned that if he does not give evidence the jury may draw inferences from that fact, as appropriate in the case. We have not included that provision in the Bill but it is an issue to which we should return if we intend to carry out a more radical re-balancing of the criminal justice system.

The nature of our criminal trials has altered over the years. The UK approach to this issue is not unfair or unreasonable. A jury is entitled to decide, for example, that it has heard a woman say many things about her assailant. However, if the assailant does not give evidence in court, no comment whatsoever is made on the matter and the jury is left to wonder as to the significance of this. The members of the jury are not even entitled to draw an inference from the exercise of the right to silence.

I mention all of this because I believe there are many further steps that can be taken and that there were many issues developed in the Hogan report, and some which were not in the Hogan report, which we should take further and explore. The Bill is part of a package which I adumbrated last December in response to the upsurge in gangland crime. It was not my intention to have a radical reform of the entire criminal law in the Bill. Instead, I intended to introduce particular focused measures which would assist the gardaí in their fight against gangland crime. Doubtless what Senator Cummins refers to could, in certain circumstances, be useful in that context also.

I sympathise with the purport of the Senator's amendment but, having brought the Bill before the House in its present form, and having narrowed its focus, I do not believe it would be appropriate at this stage to widen the focus of the Bill to other issues. We would all be accused of acting without adequate consultation if we began to introduce new departures in the reform of the criminal law in this legislation.

The criminal law is not fixed in stone. Some of its fundamental principles are fixed principles which should not be departed from but many of its attributes, and the criminal justice system's attributes, have evolved dramatically over time. For example, until the 1890s in England and the 1920s in Ireland the accused was not a competent witness for the defence, nor was his wife. In 1924 we changed our law to its present state but some people think what we have has been in place since the dawn of time, which it has not given that we have changed many aspects of it.

In 1984, when we introduced detention for the purpose of questioning, we left the judges' rules unchanged, although this legislation will deal with that issue. We must keep the criminal law up to date and in keeping with modern developments and the threat of modern crime. I cannot say to this House, hand on heart, that everything I would like to do with regard to the criminal justice system is contained in the Bill. It is a narrow, focused set of measures. Extraneous matters, such as that those referred to in Senator Cummins' proposal and his further amendments regarding the exclusionary rule, are very serious, and I dealt with them in extenso in Dáil Éireann. We should focus on what is in the Bill rather than introducing new material to it. I do not propose to widen the scope of the Bill at this point.