Barry Ward (Fine Gael) | Oireachtas source

I move amendment No. 21:

In page 30, between lines 2 and 3, to insert the following: “Power for Minister to amend the Judges’ Rules by regulation

50.(1) The Minister may, where he or she feels it is in the interests of justice and efficiency, make regulations under this section, to amend Rule 9 of the Judges’ Rules to allow for the taking of statements from a person, otherwise than to require such a statement to be immediately recorded in writing, provided the statement is recorded in another form.

(2) In this section— “the Judges’ Rules” refers to nine common law rules of guidance set out by the Supreme Court in its decision in the case of People (AG) v. Cummins reported at [1972] IR 312 at pages 317 and 318;

“Minister” means the Minister for Justice.”.

To be perfectly frank, I lifted this from section 2 of my Criminal Procedure and Related Matters Bill 2021. I will outline what this amendment is trying to do. I do not know whether it is likely to be accepted.

The Judges' rules are a series of principles that have been laid down in common law over time. They were defined in my Bill for that purpose. They are rules that essentially must be exercised with regard to persons in custody, and they are reasonable rules. Rule No. 9 is something from a bygone era. It essentially requires a written note to be taken by the Garda in the course of an interview with a suspect. It essentially means that a garda - usually there would be two gardaí with one questioning and one writing - takes a written note of what a person is saying, both questions and answers, but mostly what the accused person or witness or interviewee is saying in the course of an interview. That is something that harks back to a time when there were no recording devices, for example, and that was the definitive account of what was said in the interview. Of course, at the end of the interview, in almost all cases, the person will be invited to read what the garda has written down, or it can be read back to him or her, and the interviewee has an opportunity to confirm what he or she said has been correctly recorded and whether he or she is happy with what he or she said to the gardaí.

Nowadays, I do not believe there is a Garda station in the country that does not have proper audiovisual recording facilities. When I started the Bar, we were watching video tapes. That is no longer the case. Everything is now digitally recorded. The sound quality is excellent. The video of what is happening is excellent. That is the go-to version of what was actually said. If there is any dispute about what was said, there is a provision under section 56 for that video to be provided to the defence and they can look at it and clarify what is there. I also suspect that when the memorandum of the interview that is ultimately used in books of evidence or in whatever evidential article is being prepared, it is checked against that video as well.The point I am making with this amendment is that we do not need to write it down any more live in the room with the interviewee and the garda. The worst thing about that required process is that the interview can only move at the pace at which the junior garda - the senior garda never does the writing - can actually write it down. This means that interviews are painfully slow. That is frustrating for barristers watching the videos after the fact. We will not mind that, however, because it is not my primary gripe. Where a garda wants to get a rhythm in an interview, ask quick-fire or slow questions or vary the tone, in the same way that a barrister might do so in cross-examination, he or she cannot do that. Judges' Rules No. 9 actually hampers the ability of garda interviewers to get what they need from an interviewee. It is an old style, is out of date and completely unnecessary now.

Obviously, if there was a power cut or a video or audio recording was not available for some reason, the rule would be required. The reality is that this no longer happens or if it does, it is in a minute number of cases. We still have a situation where gardaí are writing down these interviews. It is slow and laborious. It is a waste of their time and is hampering their ability to get the job they need to do done. What I am suggesting in amendment No. 21 is not that we throw out the Judges' Rules - the definition is in subsection 2 - because I think they are really important. I include in that rule No. 9, which has a place. Instead, we should give the Minister the power to make regulations providing that they do not always have to write down the interview live and that this will not compromise the validity of any evidence that arises from the interview.

This is a very restricted amendment. It is not changing the law of evidence or anything like that. All it is doing is giving the Minister the power to change it in a way that allows the investigative process to work more swiftly, the gardaí to do their jobs properly and the matter to come before the courts in a more expeditious manner than it is currently the case. In my submission, this is a perfectly reasonable, understated amendment that would have a huge effect on the criminal justice system and the Criminal Evidence Acts by allowing for evidence to be brought in a much more modern, effective, quicker and easier fashion. That is why I have tabled it.