Michael McDowell (Independent) | Oireachtas source

I welcome the principle behind the Bill, but I want to sound a few warnings. Senator Conway has just spoken about the speeding up of trials. That is illusory at the moment on two fronts. Ireland has a very poor record on the timing between the detection of an offence and the trial relating to that offence. A cynic told me recently that Bernie Madoff would probably be on his second preliminary judicial review had he been arrested in Ireland. Mr. Madoff was convicted and in prison in the United States of America, and unfortunately, is now deceased. This also goes to the trial of Derek Chauvin for the killing of George Floyd, which is happening now in America. In Ireland, that case could probably take place some two years or 18 months hence. It took place roughly within ten months of the offence happening and very shortly after the decision to prosecute took place.Second, I welcome the idea that juries should not be sent out, time after time, for every point to be argued in their absence. I did a fair amount of criminal prosecution in my time and I can tell Members the situation has worsened very considerably compared with what it was when I was both a prosecutor and a defender. In my time, it was possible to have burglary trials and, indeed, sexual assault trials completed in two days. That was the norm. A three or four-day case was considered very substantial. However, everything has become much more complicated, fought over and disputed. That is why the preliminary determination of issues is important.

We got rid of the preliminary investigation in the District Court to see if there was a prima facie case and we pushed the matter on to circumvent that in order to speed up the hearing of cases. It may have had a beneficial effect, but we must also bear in mind that we are incredibly slow in the prosecution of offences, even compared with the United Kingdom. For people in rape cases and the many types of victim crime, it is a harrowing experience. It is also so from the point of view of the accused if the accused is, in fact, innocent. The fact that it takes years for an adjudication is very wrong. I am a great fan of jury trial, and I believe that the constitutional guarantee of jury trial, other than in minor cases, should be upheld. However, I must make the point that one of our problems is delay. The Minister might not like me saying this, but one of the side benefits of the massive delay in our system is that the prison system is able to cope with a much more elongated criminal justice system than would be the case if we had speedier trials of criminal offences.

I wish to raise a point. Senator Ward pointed out in his speech, which lasted eight minutes, some things which should be considered. The time he had was obviously inadequate, and the time I have is inadequate too. I would love to say many other things about this legislation. I do not believe, for example, it would be great for opening speeches to be made available to juries. That would probably confuse juries because, as Senator Ward said, there is a major difference between evidence and what an articulate advocate might make of the prosecution case or the defence case or the claims that may be made in such a speech.

The second point I wish to make relates to when there is a voir dire, a preliminary decision on the admissibility of evidence, which is what this is all about. If the issue is, for example, whether a member of An Garda Síochána said to the person outside the interview room that if he or she does not confess inside, his wife or her husband is going to be arrested and their children will be taken from them or, alternatively, the member says "I have given you a thump and I will give you another thump", that issue, if it is determined in advance by a judge, is currently determined on the criminal standard, or is supposed to be. In many respects, that is questionable philosophically. I will finish shortly, Acting Chairperson. If a judge is confronted with a conflict of evidence, such as "He did say that to me" and "No, he did not say that to me", can a judge reasonably say he or she is satisfied beyond reasonable doubt that he did not say that, if it is just one person's word against the word of another? There are cases where issues such as that should go directly to the jury for it to decide. Some admissibility issues are better left to the jury to decide, such as whether a threat was made before the confession was made. Public satisfaction with the outcome of trials could be severely impaired if admissibility is determined by a judge purportedly on the standard of proof beyond reasonable doubt in circumstances where he or she, effectively, has to brand the accused a liar before the evidence goes in.