Seán Power (Kildare South, Fianna Fail)

On behalf of the Minister for Justice, Equality and Law Reform, on my own behalf and on that of everyone in this House, I offer condolences to the family of the victim in this sad case.

I understand how a protracted delay in returning personal property would cause personal distress. Following the inquest into the death of the person concerned in February 2008, contact was made with the person's family and arrangements were made for the return of property which was still in the possession of the Garda, following the investigation into the death of the person in 1994.

At the time that contact was made, an issue arose regarding one item of property and further inquiries are ongoing. It is understood that a trained family liaison officer has been appointed to this case and every effort is being made to ensure that outstanding issues can be brought to a speedy conclusion.

As a general rule, property is returned to its rightful owner when it is no longer required for the purpose of the investigation of a crime, or where a court so directs. A claimant of property is currently entitled to apply to the District Court under the Police Property Act 1897 for the return of property in the possession of the Garda, and the court may make an order as to the proper disposal of the property concerned.

A fundamental principle underlies the requirement to retain evidence, which is that the defendant must have an opportunity to examine and test any evidence that forms part of the case against him or her. Article 38.1 of the Constitution provides that no person shall be tried on any criminal charge save in due course of law, while Article 40.3.1 provides that the State guarantees in its laws to respect and in so far as is practicable by its laws to defend and vindicate the personal rights of the citizen. In addition, Article 6.1 of the European Convention on Human Rights guarantees a defendant a right to "equality of arms". These guarantees impose a burden on the prosecution in criminal cases to preserve and disclose evidence to the defence. Evidence must therefore be retained if it can be expected to have a bearing on the guilt or innocence of the defendant. The possibility of examining the evidence is necessary if the defendant feels it is going to assist him or her in rebutting the prosecution's case. The retention and availability of articles forming part of the evidence in a case is therefore a very important element of the concept of due process.

Arising from those constitutional and ECHR guarantees, the Supreme Court has determined in a number of cases that there is an onus on the Garda Síochána to seek out, retain and preserve evidence and to disclose it to the defence where it is reasonable and practicable to do so. Braddish v. the DPP in 2001 was the first and most notable in a series of Supreme Court judgments on the issue. The position as set out by that court is that "evidence relevant to guilt or innocence must so far as is necessary and practicable be kept until the conclusion of the trial".

The Supreme Court returned to the subject in July last year and while upholding the position in Braddish, it offered some possibilities of finding a means whereby the property could be returned at an earlier stage. In Savage v. DPP, the court listed several principles and a best practice approach that could be employed in determining whether the property is to be retained, or whether it might be possible to return it while still ensuring the defendant would have sufficient information to enable him or her to query the relevance of the evidence connected to, or gathered from the property. The Department of Justice, Equality and Law Reform is examining that judgment carefully, but is not yet in a position to say how the principles and best practice ideas mentioned in Savage v. DPP can be given effect.

It is recognised that the retention of property which is part of the evidence in a criminal case can result in serious inconvenience and distress for the owner, and the issue has been raised on many occasions and has been the subject of litigation between property owners and the State. The Minister announced in December that the Criminal Procedure Bill 2009 will make provision in this regard. Under Part 5 of the general scheme of the Bill, it is envisaged that a procedure whereby the prosecution and defence will agree statements on the evidential value of the object will assist the prompt return, where appropriate, of evidence to victims, where that evidence is their own property. It is recognised that this is a first, limited step and it applies only where a person has been charged. However, it is hoped the Savage judgment will also help in finding a solution in cases where property is held for many years pending a charge being laid.

While all this might be of small comfort to the family of the victim in this case, it is hoped that these measures will help prevent such issues arising in the future. Having listened to the Senator, I know that the reply I have given him does not supply him with the answer to some of the issues he raised, especially the issue about the wristwatch. It was most unfortunate that a mistake was made in presenting the wrong watch.

As a public representative, I acknowledge the tremendous assistance he has been to a person who has been dealing with a very difficult situation and who might not have had the will to pursue it without such assistance. I will make further inquiries within the Department to see if we can make progress on it, and I apologise for what has happened in the past.