Barry Ward (Fine Gael) | Oireachtas source

As a practising barrister, I believe deeply in the value of juries. It is very important that people have an opportunity to go before a jury of their peers to put their case to people who are not jaded, who have not heard it all before and who are not preconditioned to have a particular view on it. I agree with what Senator McDowell has said about the difficulty that district judges face in this regard because they have to deal with things on their own and they are seeing the same offences, day in, day out, sometimes the same defences and, unfortunately, sometimes the same offenders before them. However, a district judge is not doing his or her job if he or she does not consider each case individually and decide whether there is sufficient evidence to overturn the presumption of innocence. I know Senator McDowell agrees with me on this. I also recognise how difficult it can be sometimes. However, no garda should ever think that the finding by a summary judge of a reasonable doubt necessarily constitutes disbelief in what the garda said. I know that I believe certain things that have subsequently been proven to be untrue. You see something happening and you believe it happened in a particular way but CCTV subsequently shows that it did not happen. That happens to everyone and everyone is fallible, and it is entirely appropriate that a judge would make that finding.

The beauty of a jury system is that 12 citizens are brought in, and they are 12 people who are not used to the court system and who have not seen it all before. They bring their own life experience and their own objective analysis of the situation to render a decision that is just. On the whole, we are lucky to have a system that is incredibly fair in that regard, and I say that of the Judiciary as well. We have a Judiciary that, on the whole, functions extremely well. We do not have a significant number of miscarriages of justice in this jurisdiction, and we compare very favourably to other common law jurisdictions in that regard, including our neighbouring jurisdiction and certainly the United States. I have high praise for our judges but also for the men and women who serve on juries in this State. They do an enormous service to us, as a country and as a polity, in doing that job. My experience in dealing with juries is that they do so incredibly conscientiously. When people take on the role of serving on a jury, they take it seriously. They expend time, effort and energy listening to the case and the evidence and applying their skills to it in the way the judge directs them to do in accordance with law. That is why the system works.

As has been said, however, those juries are vulnerable. It is very easy to identify who is on a jury, even in the Criminal Courts of Justice in Dublin, which are in a building that was expressly built to separate jurors, persons in custody and the Judiciary from each other. The building consists of different channels so they do not mix with each other in the corridors and there is not the embarrassing situation where a defendant or an accused person is bumping into somebody from the jury in the corridor, the toilet, the restaurant or whatever it might be. That does not happen in the Criminal Courts of Justice yet the jurors all must leave the building at the same time and they all go out the front door. Therefore, if somebody wants to nefariously interfere with a jury, it is easy for them to identify who is on that jury. Interference with a jury does not have to be at the end of a gun, and it can be as much as somebody sitting next to them in a café or on a bus and saying something intimidating. It is very easy to interfere with the jury process.

Thankfully, in the vast majority of cases, that does not happen. However, nobody in these Houses is in any doubt that there are elements out there that absolutely will do that if they get the chance, whether they are terrorists or terrorist organisations, or individuals involved in simple criminality but somehow self-justified through political or so-called political ideology. Whether it is those people, members of gangland or whoever it might be, I do not think anybody is in any doubt that there is an element out there that will use the vulnerability of the jury system to interrupt it and destroy the system of criminal justice if we allow them to do it. While I love juries and the jury system, and I think the system works, I also recognise there are times when there is a danger that it will not. Therefore, the necessary evil in solving that is the Special Criminal Court.

There are, of course, two ways to do it. One is to have what we have in the non-jury court.The other is to have some kind of secure sequestering system for jurors, where they get locked away and separated from people for the duration of the service. That is not a particularly practical solution. It certainly would be vastly more onerous than the current system for the people who agree to serve on a jury. It would be very unfair on jurors, particularly in a long Central Criminal Court trial that might last weeks or even months, not to be able to see their family and friends or socialise with anyone outside the jury. It is not a reasonable response to a situation that can be solved in a different way. As much as I dislike the Special Criminal Court system and am uncomfortable with non-jury courts, I recognise that, at least for the moment and probably for some time, the Special Criminal Court is a necessary evil in our system to safeguard the criminal justice system and fair trial process we value so much.

This week, there has been quite an amount of public criticism of the Judiciary in this country. As I said, our Judiciary is functional and serves the country incredibly well and incredibly fairly. That is also true of the judges of the High Court, Circuit Court and District Court who sit on the Special Criminal Court. Experience shows us they are discerning and critical in their analysis of cases. They recognise that they are taking the place of a jury. There have been instances, which were often very unpopular with the public and media, where the Special Criminal Court Bench has made a finding, probably akin to what a jury would have found, whereby it dismissed charges when, in the view of some people, there might be substantial evidence for a conviction. The judges approach cases with the critical starting point that the person is innocent until proven guilty and that the requirement for a conviction is that this presumption must be overturned beyond a reasonable doubt. The judges have done that and, in so doing, have demonstrated their ability, notwithstanding their extensive experience in the legal and court systems, not to be jaded and to see the matter before them as not just another case where a person has to be dealt with. They have shown their discerning ability to separate the case where there is sufficient evidence for conviction beyond reasonable doubt from the case where there is not such evidence. As I said, they have often been criticised publicly for their decision to find a person not guilty, exclude evidence or whatever. However, that is a crucial element of the protection of our system. If the Special Criminal Court worked in such a way that its judges did not apply the rule of law we expect of them, it would not work and it would not be an adequate safeguard for the jury system and the criminal justice system. It is a necessary evil. The reality is we have a system that is vulnerable. We must protect it and this is probably the most efficient and fairest way to do so, notwithstanding that it is far from perfect.

Unfortunately, my next point is one I make in every debate like this. I am still waiting for the Department of Justice to realise the wisdom of what I am saying. I might be waiting a long time. There is a conflict of interest for the Director of Public Prosecutions in being the sole decider as to which cases go to the Special Criminal Court. I have nothing but the height of respect for the DPP, as a prosecutor, and for the directing officers and the various highly professional staff within her office. However, in terms of the need for Caesar's wife to be seen to be clean, they are not a disinterested party in any criminal prosecution. The reality is that the DPP's office, as the prosecutor on behalf of the people of Ireland, has an interest in certain matters proceeding in a certain way. While I might trust its ability to discern which cases require the protection of the Special Criminal Court, that is not necessarily and transparently so for everyone in this country. I feel very strongly that the decision as to whether a case goes to the Special Criminal Court, and, thereby, whether a person accused of a serious crime is denied the opportunity to have a jury trial, should be made by an independent body. The decision should be made by way of an in cameraapplication on behalf of the DPP to a High Court judge. That would remove the possible suggestion, or even the fear, of a conflict of interest.

We are duty-bound to protect our jury system and criminal justice system. We are duty-bound to pass these motions today to ensure the continuation of the Special Criminal Court and its ability to do the job it does in bringing justice where that is required in a way that cannot simply be overdone by those who would seek to undermine a system that is so valuable and has had such an important role in delivering justice within our society. On behalf of the Fine Gael group, I support the motion. We are happy to vote to approve the continuation of the Special Criminal Court.