Eugene Regan (Fine Gael)

I move: "That the Bill be now read a Second Time."

I welcome the Minister to the House and I appreciate his presence. This is a Bill to refine the law of evidence. I preface my introduction of the Bill by stating that Fine Gael is fully committed to upholding respect for human rights and fundamental freedoms. That is one of the reasons we have been forceful in trying to ensure that the bodies and authorities in this country which are mandated to uphold human rights here are properly funded. We believe in a just society, an education system and social supports which give young people a chance in life and ensure that the preconditions exist which would prevent them from, or at least give no encouragement in, going down the route of a life of crime. We believe in a prison system that is fit for purpose and provides the necessary rehabilitation, drug treatment and educational programmes that give people a second chance and encourages them not to reoffend.

We also believe in effective policing, an effective prosecution system and a criminal justice system that guarantees a fair trial to the accused. This Bill is introduced in that context. It is grounded on considerations of the rights of the accused, the rights of the victims of crime, society's interest in the effective prosecution of criminals and public confidence in the administration of justice. The Government's programme provides for addressing this issue of the exclusionary rule.

As regards what is that rule, it is a judge-made rule which deems evidence that is obtained improperly or illegally, in particular where it is obtained contrary to some constitutional right, is automatically deemed inadmissible. Regardless of the seriousness of the crime, there is a rigidity in this rule, which means that prosecutions are impeded and, in many cases, cannot proceed. In simple terms, I would call it dismissal of a case on the grounds of a technicality because of this automatic exclusion, even where the breach is, in many cases, not intentional and not that serious.

The basis for this Bill is also grounded on the fact that we are out of line with other common law jurisdictions, including the United Kingdom, Canada, Australia, New Zealand and even the United States, which originally had a rigid rule regarding this issue of admissibility of illegally or improperly obtained evidence.

This issue has been aired in the courts and various issues have been raised about this rule. One is that it can be argued that the rule, in its current form, is contrary to the European Convention on Human Rights. In a recent High Court case, the judge considered that a rule providing for the automatic exclusion of evidence obtained in consequence of any mistake that infringes any constitutional right of an accused may be incompatible with Ireland's obligations to provide, for both the accused and the community, a fair disposal of criminal charges. The rule is anachronistic. It is potentially incompatible with the European Convention on Human Rights and it is out of line with jurisprudence in other common law jurisdictions. Moreover, it is a rule that is not mandated by the Constitution.

The case law in our courts has varied over time but there is a view that the rigidity of that rule should apply. I attended a criminal law seminar on Saturday and conflicting views were expressed as to whether the exclusionary rule should be amended. It has been the subject of debate by the balance of the criminal law review group, which also expressed different views. The merit of changing the role was acknowledged but there is some dispute about how that is done. I will return to that point later.

A substantial volume of criminal cases are reduced to arguments of procedure and not substance. The focus in so many criminal indictments is an attempt by the accused to assert the rights arising from those breaches. They tend to get elevated to the status of a breach of constitutional right.

The textbook of Peter Charlton and Paul Anthony McDermott states: "In consequence, the rules of substantive criminal law have been either ignored or overlooked in favour of this process." The right of the accused to have evidence excluded is elevated to an absolute right without other considerations. The same textbook points out that Article 40.3.1° of the Constitution refers to protecting the personal rights of the citizen, as far as practicable, and protecting those personal rights as best it may from unjust attack.

There is a reference to a judgment of the Supreme Court, which states that this implies circumstances in which the State may have to balance its protection of the rights as against other obligations arising, having regard to the common good. In a recent case the High Court made a point that is common jurisprudence, namely, that none of the personal rights of a citizen was unlimited. The decision of the Oireachtas on the reconciliation of the exercise of personal rights with the common good should prevail unless it was oppressive to some or all the citizens and unless there was no reasonable proportion between the benefit which the legislation would confer on the citizen, or a substantial body of them, and the interference with the personal rights of the citizen.

The justification for the rigid exclusionary rule is to prevent and minimise abuses by the police or to discipline or penalise it in some way for the breaches arising. The reality is that all we are doing is penalising society and the accused who may be the subject of the criminal offence in question. We have a Garda Ombudsman Commission and procedures are in place. We have learned a lot about how much Garda discipline and behaviour can deteriorate. However, lessons have been learned and we have established the procedures now in terms of the necessary oversight and discipline. It is no longer valid to use that as a reason to have this rigid rule.

It is beyond question that there is a constitutional right to a fair trial. It is part of our constitutional provisions and it is also part of the European Convention on Human Rights to which the State subscribes. There is no question that if there are flagrant violations of fundamental rights without any excusing circumstances that can undermine the administration of justice. However, it is also the case that if an accused is released without the hearing of the evidence, without the opportunity for a jury to consider the evidence or for the judge to give the necessary directions which can ensure there is a fair trial, that also brings into disrepute the administration of justice. That happens frequently and it is a deterrent, as shown by the examples we have of where that occurs and the cases where the Director of Public Prosecutions may be deterred from taking cases because of some procedural flaw in the collection and prosecution of a case. In the People (DPP) v. Joseph Dillon it emerged that during the arrest of a person involved in drug dealing a garda answered the accused's mobile telephone when it rang and linked up with and subsequently arrested the person at the other end of the telephone for drug dealing. That was found to be a legal interception under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act. Those types of perverse results can arise from the application of this rule.

To deal with the elements that are necessary to ensure that this is correct, there needs to be a balancing rule and it should be put on a statutory basis as that would bring us into line with the law as is applicable in other jurisdictions and with the European Convention on Human Rights.

The question then is how we do it. It has been suggested that it may be done by referendum or in ordinary legislation. I believe it can be done by the latter method. The Supreme Court has not had the opportunity to deal with this type of legislation nor deemed it unconstitutional. The Oireachtas passes legislation with some regularity on the rules of evidence. It is not correct to say that where the Supreme Court deals with issues touching on the Constitution that always creates a constitutional rule which is immune from being the subject of legislation.

The Supreme Court would apply two tests to the legislation. Article 38.1 states: "No person shall be tried on any criminal charge save in due course of law" and Article 40.3.1° states: "The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen." I suggest that the safeguards in the Bill ensure that the legislation is compatible with those two provisions. If there is any doubt as to the constitutionality of the legislation it will be referred to the Supreme Court and to the President under Article 26 of the Constitution.