Ivana Bacik (Independent) | Oireachtas source

I thank the Senator. I am conscious the amendment speaks to a similar issue to Government amendment No. 18 and amendment No. 19, which has been tabled by Senator Ruane and her colleagues.I believe all of these stem from the same impetus or motivation. I have raised this point on previous Stages of the Bill. Our purpose in drafting amendment No. 17 was to ensure a specific role for the judicial studies committee in providing judges with guidance on the conduct of criminal trials. Our amendment suggests the insertion of a provision into section 17 to change it somewhat. While section 17(3) already enables the judicial studies committee to prepare and distribute relevant materials to judges, we believe this should specifically include materials relevant to the exercise by judges of their functions in conducting criminal trials with a jury, including but not limited to the functions of trial management, jury management and directing the jury. We have been specific because of concerns that have arisen recently around comments made by judges, as well as judges controlling prejudicial comments made to jury by counsel. I have in mind specifically sex offence trials where issues have been raised in the public domain about aspects relating to the complainant's clothing in a sex offence trial. The recent controversies have illustrated the need for guidance to be provided to judges in how to conduct criminal trials where such prejudicial comment is made. Having been a practitioner I am conscious of the way so many appeals have come forward through the criminal courts relating to aspects of what a judge has said in summing up to a jury or in seeking to sum up evidence or give the jury instruction on procedure and criminal law.

It would be helpful to prescribe that the judicial studies committee should give guidance of this specific nature to those conducting criminal trials. I am conscious that the Government amendment, amendment No. 18, seeks to do something similar by inserting a line referring to the conduct of trials by jury in criminal proceedings. If either of the amendments come through I will not push mine to a vote. The Government amendment seeks to do something similar.

Senator Ruane's amendment seeks to address something different, that is to say, the issue of unconscious bias, although that is what I am trying to get at in my amendment as well. I hope that would be got at through the guidance provided by the judicial studies committee to judges in the conduct of criminal trials more generally.

I know there are judges' bench books in the Four Courts. Yet, despite their central importance they are private and unregulated documents. The overall tenor of this legislation is to seek to provide a structure to judges within which they may exercise discretion without being unduly prescriptive and without fettering judges in their discretion.

That is also an important point to make and it is similar to the point I have already made in respect of the sentencing guidelines. There has been considerable criticism over the years of the fact that our sentencing practice is largely reliant on an instinctive synthesis, as the Law Reform Commission has said. Over many years Tom O'Malley and other experts have called for a structure to be provided to judges within which they may exercise discretion. The Joint Committee on Justice and Equality has recommended a particular approach to sentencing that would minimise the use of short sentences of imprisonment for minor non-violent offences and instead place greater reliance on community-based sanction. We are moving in that direction anyway with greater emphasis on rehabilitation - I very much welcome that - and this Bill is an important part of that process. Just as we provide guidance to judges in the exercise of sentencing discretion so too should we specifically provide a structure and framework within which judges conduct criminal trials, direct the jury and exercise control and management of the trial process, including control over comments made in the course of a trial by counsel or others.