Paul Coghlan (Fine Gael)

I welcome the Minister of State, Deputy Barry Andrews, to the House. Senator Regan deserves great credit from all of us for having drafted this legislation. As a layman I know nothing of the niceties of criminal law but as legislators all of us are concerned with the greater good and protection of society. It is our prime duty.

Given our spiralling crime rate and increasing gun culture, as evidenced by too many appalling and tragic happenings, particularly in our cities, this Bill must be welcomed. The Bill, as the memorandum makes clear, proposes to abolish the rule of evidence which has become known as the exclusionary rule. That is a judge-made rule, as Senator Regan has already told us, which has the effect of ruling out evidence offered in a criminal trial which may have been obtained by a mistake of one kind or another by members of An Garda Síochána or other law enforcement agencies. It may have the effect of infringing a constitutional right of an accused. I hasten to add that nobody wants to infringe anybody's constitutional rights.

Any breach of procedure by the gardaí or an investigatory agency is regarded as an infringement of the accused's constitutional rights. As a result of this many serious cases are dismissed on what can best be described as a technicality. Unfortunately this prevents the effective prosecution of crime and is destroying public confidence in our criminal law system. How often do we hear complaints from members of the public of cases that fail or fall for what is often correctly seen as a frivolous reason?

We should not consider the rights of the accused as being absolute to the detriment of the rights of the victims of crime. We must redress this imbalance, as the Bill does, and there should be a general welcome for this Bill. It is timely if not greatly overdue. It is interesting to note that our rule excluding some evidence is not in line with that of other common law jurisdictions, including Britain, Canada, Australia, New Zealand and perhaps some others, such as some American states.

The European Convention on Human Rights does not require the exclusion of such evidence. What is required is that an accused is assured of a fair trial. It could be argued that the exclusionary rule is incompatible with our obligations under the European Convention on Human Rights, which include that the right to life should be protected by law, as well as the right to liberty and the security of the person. As a result of the Supreme Court decision in the People v. Kenny 1990, it was decided that all or any evidence improperly or illegally obtained should be excluded.

That was my belief but I found it interesting to hear the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and Senator Ivana Bacik, as well as the Minister of State present — all notable legal brains — arguing about exceptions. As a layman I was not aware of these. Perhaps there is some further tweaking that could make this perfect if it is not quite there yet. They welcomed this debate, as Senator Walsh and others have.

We are concerned about fundamental rights and human freedom and nobody wants to see them infringed. We must insist on an effective prosecution system for the good of our society. Public confidence in the administration of justice must be paramount and a judge and jury should be allowed to hear evidence. We need a balancing rule, as this Bill would provide for. We must not tie the hands of the State or a judge, although this is what we are currently doing.

Good faith exceptions should be allowed, although the Minister stressed that we do not want sloppy police work. Senator Norris spoke on that and we heartily agree. The evidence should be tested, following the direction of the judge to the jury. This would be the right course. How this should be addressed and tied up in the correct legal terms is something to which I do not have the answer.

I found it interesting to listen to many of the contributions. There is a general welcome on both sides of the House for the Bill, although I know the Minister of State is arguing that it cannot be accepted just now. An appeal case awaiting hearing before the Supreme Court could have a bearing in this respect, and hopefully that is not too far distant. Perhaps following that case, the matter could be re-addressed, if it cannot go beyond this evening's debate. Some of the Government side's quibbling is understandable and I do not want to rule it out because I am a layman. However, perhaps we could allow the Bill to go to Committee Stage with the Government's position being reserved. While the timing could be left to the Government, appropriate changes could be made by way of Government amendments on Committee Stage. I strongly recommend that course because, as legislators, we are concerned by the greater good and the protection of society. That is our primary duty.