Dermot Ahern (Louth, Fianna Fail)

This amendment inserts a new section to amend the provisions on the admissibility of character evidence of an accused person in the Criminal Justice Act 1924. I will briefly outline the existing law before addressing the amendment as it would aid Members in their understanding of the proposed changes. As the law currently stands, section 1(a) of the 1924 Act provides that an accused shall be a witness in his or her defence only if he or she consents to take the stand. An accused who takes the stand is liable to be cross-examined by the prosecution but exceptions arise to that general rule. Section 1(f) of the 1924 Act prohibits the cross-examination of an accused regarding previous convictions or bad character unless certain circumstances arise. The accused will lose the so-called shield under three conditions. The prosecution can cross-examine the accused about his or her commission of or conviction for another offence if it satisfies the similar fact evidence rule. The accused will also lose his or her shield if he or she has attacked the character of the prosecutor or witness for the prosecution, has given evidence of his or her own good character or has adduced some evidence from witnesses for the prosecution. This does not extend to defence witnesses. The accused can also be cross-examined if he or she has given evidence against a co-accused.

As the balance in the criminal review group noted, this gives rise to anomalies. Under the existing law, an accused person may retain the shield simply by refusing to take the stand. Deceased and, often, incapacitated victims are not available as witnesses for the prosecution, which means that an accused can avoid the consequences of an attack by him or her on the character of a person who in other circumstances would be a prosecution witness. Victims who cannot be witnesses are at present afforded no protection for their reputation or good name. This has the potential for intensifying the distress and suffering of their families. Such a situation amounts to an undeserved benefit to the accused from the degree of injury inflicted on the victim. The overall picture that emerges from the present situation is that an accused or his or her legal team can adduce evidence of the good character of an accused or conduct an attack on the character of other persons with a high level of impunity. Deceased or incapacitated victims are left with little or no opportunity to respond to claims by the accused.

It is against that background that the amendment to the 1924 Act is being proposed. The amendment implements the recommendations of the review group. Section 1(f) is being amended in two respects. Subparagraph (ii) is being amended to provide for the dropping of the shield where the accused has personally or through counsel asked questions of any witness designed to establish the good character of the accused or where the conduct of the defence is such as to impugn the character of the victim. The new subparagraph (iiia) extends the loss of the shield to include cases in which the accused or his or her legal team asks questions of any witness where the conduct of the defence is such as to involve imputations against the character of the deceased or incapacitated victim. This extends the circumstances where the shield is dropped to include non-witnesses.

A new section 1A is being added to the 1924 Act to provide that the defence must give seven days' notice of its intention either to make an imputation against a prosecution witness or a deceased or incapacitated victim or to establish the good character of the accused. In the absence of such notice, the leave of the court will be required by the defence to make such an imputation. This need for notice arises in cases where the witness is not present and able to defend himself or herself. It will often take time to check and examine details of allegations against persons who are not present and whose ability to assist even where he or she is alive is impaired. In cases where the defence uses this case the prosecution may ask questions of the accused or other witnesses as to the bad character of the accused. The accused may be called as a witness and the prosecution may ask the accused or any other witness questions about the accused's previous record of bad character or the good character of the victim. This is despite the rule in section 1(f) limiting the circumstances where the accused who is a witness can be asked about his previous record or character.

My amendment addresses anomalies that are open to abuse by an accused either to enhance his own standing or to question or impugn the character of others who are not able to defend themselves. I am not rewriting the rules of evidence. I am not attacking or reducing the established rights of defendants. I am merely addressing a particular situation that is especially important to the families of victims. I am respecting the position of the review group. It was careful in its approach, as was I. It is clear that it did not favour any general relaxation of the current rules. I am satisfied that the changes are necessary but careful. There is nothing in my amendment that would prevent an accused raising issues relating to the victim if he or she can demonstrate that they are true and are relevant to his or her defence. My amendment aims to prevent the abuse of the anomalies in the current rules and I am happy to commend these amendments to the 1924 Act.