Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I am pleased to bring the Criminal Procedure Bill 2021 before the Seanad today. This is a relatively short Bill whose primary purpose is the introduction of preliminary trial hearings. The need for these hearings has been agreed for many years and is a priority action in the programme for Government and my Department's justice plan. A number of reports have highlighted the benefits of such hearings, including the report of the expert group on Article 13 of the European Convention on Human Rights, or the McDermott report, from 2013; the report on efficiencies in the criminal justice system, or the Fennelly report, from 2012; the review of protections for vulnerable witnesses in the investigation and prosecution of sexual offences, or the O'Malley report, from 2020; and, most recently, the review of structures and strategies to prevent, investigate and penalise economic crime and corruption, or the Hamilton report of 2020.

Victims have spoken very clearly about the impact on them when they have mentally prepared for a trial and it does not, unfortunately, go ahead, or when something unexpected arises during the trial that results in interruptions while difficulties or arguments are dealt with by the court. We cannot take away the fact that a trial is an adversarial process, that an accused person is entitled to defend himself or herself robustly and that events can unfold in unexpected ways. However, preliminary trial hearings should make trials more predictable for participants and help them to run more smoothly.

From the point of view of an accused person, if a trial is going to fail because of the inadmissibility of certain evidence, for example, this should be uncovered as early as possible to avoid the person being put through a full trial unnecessarily in a case that was inevitably going to fail. It is also in the interest of juries that the information presented to them during a trial should flow more smoothly and without interruption, insofar as possible. Preliminary hearings have great potential to reduce delays and increase efficiency in how our criminal trials are run. They should reduce the length of trials which we know can be considerable, in part owing to repeated adjournments. They will not, however, deal with matters which currently must be dealt with when the jury is present.

In practical terms, preliminary hearings will mean that it is less likely that the jury will be sent away immediately after being sworn in, or sent away multiple times during the trial, which often happens. There will be a reduced impact on the victim because the trial is more likely to be ready to proceed on the appointed day, with the necessary practical arrangements in place and at least some of the contentious issues decided in advance. The trial is also less likely to be interrupted, potentially multiple times, which would drag out the experience and make it more difficult, especially for victims. There will be significant resource efficiencies where trials are ready on the day they are due to start, and more likely to proceed smoothly to a conclusion. Finally, matters which would ultimately prevent a case being submitted to a jury will now be more likely to be identified in advance, thus avoiding the empanelling of a jury and the subjection of a person to an unnecessary trial. These are important benefits which I believe will be supported by all sides in this House, and which will result in significant efficiencies in the criminal justice system.

I now turn to the Bill itself and outline the main points. Part 2 is the main Part of the Bill and deals with preliminary trial hearings. A judge can order a preliminary trial hearing for any indictable offence where he or she thinks it is needed. A preliminary hearing can be also requested by the prosecution or the defence where the trial is for a relevant offence as set out the Bill. These relevant offences are offences which carry a maximum sentence of ten years or more, including a life sentence and offences which the Minister has specified by order. When specifying an offence as a relevant offence, the Bill sets out what the Minister must consider, including the nature of the offence concerned and the relevant complexities that generally arise in the prosecution of such offences. The court must agree to at least one preliminary hearing for a relevant offence where either the prosecution or the defence has requested it.

The Bill specifies the timing for a preliminary trial hearing, which must take place before the jury is sworn in or, in the case of trials in the Special Criminal Court, before the trial has commenced. It provides that if it is in the interests of justice, an accused may be arraigned at a preliminary trial hearing. The Bill also specifies the types of orders or decisions which may be made at a preliminary trial hearing. At the preliminary hearing, the court can assess various case management matters and make orders or rulings to ensure the just, expeditious and efficient conduct of the trial. Such matters include the availability of witnesses, whether any particular practical measures or technology may be needed, the extent to which the trial is ready to proceed, including any long-standing issues with regard to disclosure, and how long the trial is likely to be.

The Bill also provides that the court can make a decision or order at a preliminary hearing in regard to: whether a number of persons charged in the same proceedings can be tried separately; amending an indictment under section 6 of the Criminal Justice (Administration) Act 1924, for example, to allow offences to be tried separately; under section 15A of the Juries Act 1976, to provide for additional jurors where the trial is likely to be long; allowing for evidence by written statement, or proof by formal admission under sections 21 and 22 of the Criminal Justice Act 1984; an application to question the victim in a rape offence about their prior sexual history in accordance with section 3 of the Criminal Law (Rape) Act 1981; decisions around how evidence may be given from behind a screen, via television link, including from outside the State, or via an intermediary under various sections of the Criminal Evidence Act 1992, as well as whether cross-examination by the accused in person will be permitted, and determination of issues around disclosure of the victim's counselling records in a sexual offences case under section 19A of that Act; under section 39 of the Criminal Justice Act 1999, whether a witness who is in fear or subject to intimidation may give evidence through live video link; under section 67 of the Criminal Justice (Mutual Assistance) Act 2008, whether a witness outside the State may give evidence by live television link; leave to call an expert witness, under section 34 of the Criminal Procedure Act 2010; under section 21 of the Criminal Justice (Victims of Crime) Act 2017, where a victim needs to be protected from secondary or repeat victimisation, intimidation or retaliation, whether to permit questioning or evidence about the private life of that victim; and finally, to allow for evidence via video link under section 25 of the Civil Law and Criminal Law Miscellaneous Provisions Act 2020. In addition to this list, at a preliminary hearing, the court may also make a "relevant order", which is an order relating to the admissibility of evidence.Finally, in this part of the Bill, there is a general power for the court to make any other order that could be made in the absence of the jury, or any order relating to the conduct of the trial as appears necessary to the court to ensure due process and the interests of justice are observed. As Members can see, there is a wide range of important orders provided for in the Bill which will now be able to be dealt with at a much earlier stage in the proceedings, which will be to the benefit of all parties involved.

It will not generally be necessary for the same judge who presides over a preliminary trial hearing to preside over any subsequent hearings or the trial of the offence. An exception to this is a preliminary trial hearing dealing with the admissibility of evidence where, other than in exceptional circumstances, the same judge must preside over the hearing and the trial. There is also a general power in the Bill for the court to decide that the same judge must preside over subsequent preliminary trial hearings and the trial of the offence, if that is in the interests of justice.

Orders made during a preliminary hearing will be binding and may not generally be appealed until the conclusion of the trial. An application may be made to vary an order only if there has been a material change in circumstances since the time at which the order was made. The only appeals permitted between a preliminary trial hearing and the trial of the offence relate to significant decisions excluding evidence as inadmissible. If such a decision results in the case against the accused being very significantly weakened, then it is in nobody's interest for the trial to have to proceed to a conclusion before the related appeal can be determined.

Participants who would be entitled to legal representation and legal aid for the trial will have the same entitlements for any associated preliminary trial hearings. In general, preliminary trial hearings will be conducted in public. However, there is a power for the judge to exclude the public from any portion of, or all of, a preliminary trial hearing where that is necessary, and to prohibit the publishing or broadcasting of certain details until the trial is complete. This may be necessary to protect the accused person's right to a fair trial, particularly given that the jury will not yet have been sworn in and material may be discussed at the hearing which should not be presented to the jury, for example, evidence that is later ruled inadmissible.

Part 3 deals with the provision of information to juries. This arises from a recommendation of the Law Reform Commission in its 2013 report on jury service that the types of information available to juries in complex financial trials should be extended to juries in trials for all indictable offences. This part of the Bill implements that recommendation.

Part 4 makes various small amendments to criminal procedure legislation. The changes regarding evidence by written statement will allow the court to require a person objecting to the admission of written evidence, rather than oral testimony, to give his or her reasons for doing so and, having considered those reasons, to admit the evidence in written format where this is not contrary to the interests of justice. The other amendments are technical in nature or adjustments to existing provisions that are necessary to reflect the introduction of preliminary hearings.

The Criminal Procedure Bill 2021 contains important provisions which will enhance the powers of our courts in conducting efficient criminal trials. A better trial process is in the interests of everyone concerned: the accused, the victim, the courts and members of our juries. I look forward to hearing Senators' contributions.