Michael McDowell (Independent) | Oireachtas source

I join other Members in welcoming the Minister, Deputy McEntee, and congratulating her on a very challenging but, I believe, very rewarding appointment.It is much deserved. She did our country proud when she was spokesperson for the Irish State on Brexit. I was glad to acknowledge that in the previous Seanad and I reiterate my best hopes for her tenure as Minister for Justice.

I am one of the great fans of jury trials, and I am not saying that just as a cliché. The fundamental requirement that the people should have confidence in the system of justice requires jury trials. Some members of the Judiciary believe that jury trials are anachronistic but my own experience of prosecuting and defending for many years convinced me that jury trials are superior in commanding public confidence compared with judge-only trials. In any instances where judge-only trials have been implemented, controversy follows, while there is very little argument with the decision of a jury by anybody in Ireland.

Second, there was a time when the Minister's Department sought to limit jury trials for petty theft. I happened to be in the Attorney General's office at the time and I took the very strong view that if any of us were accused and convicted of stealing a box of eggs from a supermarket, it would be the end of our career. If that applies to Members of the Oireachtas and people in important positions, it equally applies to a child of 18 or 19 years of age who is accused of such an offence. There are probably 150 statutes on the Statute Book which disqualify people from holding particular positions, such as an officer of a credit union, if they have a conviction for dishonesty. I strongly believe in jury trial and that however inconvenient it may be for some, it is a real guarantee that justice is done.

I welcome and congratulate Senator Ward on his election to the Seanad. This place is now becoming well-stocked with barristers. It is amazing how many barristers have suddenly emerged this time around. Senator Bacik and myself were once the sole barristers but now I think there are five of us in this House, as well as solicitors. That is a good thing. Senator Ward said a few things with which I have some sympathy, one being that we have to be very jealous of jury trial. Senator Bacik quoted Article 38.3 of the Constitution and the "ordinary courts". The word "ordinary" means something in this context. The ordinary system must be jury trial. Only extraordinary cases can attract non-jury trial, in accordance with that Article.

The Article also refers to the determination, in accordance with law, that the ordinary courts are inadequate to deal with certain cases. While I may not have done anything about this when I was Minister for Justice, I have always thought in the back of my mind that to decide that a category of offences is automatically going to the Special Criminal Court, unless it is hauled back, is not consistent with Article 38.3. It must be case-specific. I doubt the efficacy of a system which would entail one judge determining whether a case should or should not go to the Special Criminal Court. Massive trials would have to be done in secret because if they went to a jury and all the dirty linen about a particular person accused of an offence, and the State's suspicions of his or her propensity to interfere with a jury, had to be laid out in public, God only knows how the principle of innocent until proven guilty would be interfered with.

There is a slight difference in emphasis between me and Senator Bacik on this next point, on which I agree with Senator Conway. I do not believe it really matters how often an offence is actually prosecuted. I will take the example with which we are dealing, namely, directing a criminal organisation. While it may be extremely difficult to prove, the fact that an offence or inferences relating to that type of offence exist does not mean we should look at it askance on the basis that it does not happen very often. That is only because it is very hard to prove. We know there are people directing a whole load of criminal organisations in this State. It is getting the evidence that is the crucial difference.

Some of the provisions in the Criminal Justice Act 2007 attracted some degree of controversy and I took a fair amount of flack as Minister for Justice in respect of some of them. However, one thing that Act achieved was to allow for apparently credible statements that had been withdrawn or abandoned by witnesses to nonetheless be used as evidence in both jury and non-jury cases. The reason we did that, and I want to say this now because it attracted a fair amount of criticism at the time, was that we believed that as an antidote to intimidation and a situation where the Special Criminal Court would be the court of first instance, we had to deal practically with people being intimidated out of statements they had already made. A colleague of mine in the Law Library wrote an article at the time describing the section which made such statements admissible in very controlled circumstances. He attacked it in the very strongest terms. I will not use the terms he used in that article because I do not want to misquote him, but the Canadian Supreme Court had held that to make those statements inadmissible was so unreasonable as to be unconstitutional in Canadian law. It actually changed the common law to make them admissible without any legislative Act whatsoever. I know this is a bit of an arcane point but it has to be made.

The last thing I will say is this: by all means have a review but do not make it an impractical one. It is very easy to throw obstacles in the way of prosecution but we have to prosecute. If we do not prosecute because we erect more reasons not to or more obstacles to prosecution, we will throw out the baby with the bath water of jury trial and lose public support. The Minister should have her review. Her predecessor, who is a great man, has promised this review and I presume the Minister is committed to it as well. She should have the review, by all means. Senator Higgins said that nothing should be presumed about the extension of these provisions next year and that some of them could be modified. Anyone who believes that we will not need the Special Criminal Court in a year's time should take a look at what is happening. I saw an allegation today, though I do not know whether it is true, that a particular individual had been sourcing arms in Lithuania to bring into Ireland to kill Irish people. One only has to think of what happened to Lyra McKee and ask oneself whether it is naive or sensible to think we will not need a Special Criminal Court in a year's time.I dearly wish we did not. However, I, for one, live in the land of reality and, unfortunately, whatever reforms or safeguards are introduced as a result of a review, it would be very dangerous to presume that these emergency provisions can be dispensed with a year hence. I see no sign of that.