Jim Walsh (Fianna Fail)

Cuirim fáilte roimh an Aire Stáit go dtí an Teach um thráthnóna chun an Bille tábhachtach seo a phlé. I listened with interest to the debate and, in particular, to the contribution of the Minister, Deputy Dermot Ahern, on the legislation which is before the House.

I note that the Kenny judgment has had a fairly profound impact on the administration of the justice system but the Minister's quotation from Mr. Justice Charlton was fairly pertinent. It states,"the entire focus is on the accused and his rights; the rights of the community to live safely has receded out of view". Many of us in this House would share those sentiments. Over the years we have had many debates on the criminal justice system and there is a strong sense, which I would certainly have detected among Members and which is also evident among the public, that there is a need for rebalancing in terms of where we have gone with the criminal justice system.

Obviously, nobody wants to encounter situations where there has been a travesty within the system where innocent people are found guilty and are incarcerated. Therefore, the rights of those who come before the courts must be vindicated. However, the public, and indeed victims, often feel their human rights are not up in lights, not to mention getting equal recognition within the legal system.

We have seen many examples of people being released from prosecution on technicalities, which is neither desirable nor acceptable. In this instance, there is a clear distinction between constitutional rights which are enshrined by the people in the document which governs all of our laws and to which all laws are subject, and that is appropriate and as it should be. However, if we roll back where we stand with criminality, there is a real need to ensure that people who engage in such activity must face the rigours of the law and must, where they have been heavily involved in serious crime, pay due recompense to society for those crimes.

Even in minor areas of law I have seen solicitors who can cleverly and intelligently use mechanisms, and perhaps contradictions, within the law to have clients exonerated or released from facing sentences or fines. From speaking to many in the legal profession, I am aware that there are certain judges who indulge this. I can understand, if one is on the bench for a number of hours hearing all these hard cases, that when somebody engages one's intellect on different points of law it must be tempting to engage in the process. However, doing so has sometimes given rise to public confidence in the system being put at risk. It can also be soul-destroying to gardaí who perhaps have put much time, effort and energy into preparing and compiling evidence and presenting their cases to find that on a technicality they are thrown out, despite all of their hard work. To some extent, that makes a mockery of the system.

This Bill seeks to abolish the exclusionary rule of evidence in criminal proceedings, and particularly where that would be obtained in contravention of an accused's constitutional right. I think it is accepted by all that such is not feasible and is not desirable without looking to a change in the Constitution, and the people deciding on that.

I have met people, even in recent times, who have been engaged as witnesses in serious criminal cases who subsequently said to me that they came away totally disillusioned, having spent a number of days listening to the cases in the Circuit Court. They said it was like a game being played out between lawyers and had nothing to do with the administration of justice. Senior members of the legal profession have also said to me that if one wants justice, one should not go to court — that is not what it is about. It is about the interpretation of the law and that is all one will get. Perhaps we need to examine that.

The Minister of State, Deputy Barry Andrews, who is a eminent member of the legal profession, would probably have a more educated view on the matter than I have. I wonder whether our common law system, with its adversarial approach, is as good as the French model which is based on a more inquisitorial approach.

I have been a long-time critic of the exorbitant and unjustified legal fees, which do much to bring the entire system into disrepute. I am amazed the issue has not been tackled by some Government and, more vigorously, by the Competition Authority. I know there is a report on competition within the legal profession which has not been acted on yet by Government but there is a need to do that.

There is also a need for a judicial council, although I know work is being done in that area. Nobody in a Republic should be above the law. In other jurisdictions there is peer accountability. It is essential that the separation of powers of the Judiciary from the Executive be maintained and undiluted, but that does not mean people should not be accountable to a body of their own peers, and that needs to be done.

Members of this House spent long hours over weeks and months on the Judge Curtin case. That case involved a judge charged with an offence which was not pursued on the basis of a technicality — a wrong date on a warrant. That is the kind of technicality which we should be trying to eradicate from the system.

On the Kenny judgment, this comes back again to judges' interpretation of the Supreme Court decision. The strict interpretation does not seem to distinguish between genuine errors in the collection of evidence and the state of mind of the Garda in question. These distinguishing issues should be part of the adjudication of a lower court. While I agree with the report of the review group that any legislation introduced to overcome or abolish the Kenny judgment would be unconstitutional, it is essential for the sake of public confidence in the effective and fair administration of justice that the exploitation of legal technicalities is prevented. The spirit of the Bill proceeds in that direction and we should attempt to resolve the problem either through a constitutional referendum or in legislation.