Dominic Hannigan (Labour)
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I welcome the Minister of State. I wish to raise the issue of the failure of the Garda Síochána to return the personal effects of a gentleman who was murdered in Gorey in 1994. I supplied the name of the gentleman to the Seanad Office. In the years since the murder, the Garda held on to the personal effects of the victim, specifically items of clothing and a wristwatch. The investigation into the murder was exhausted a number of years ago, and a situation was reached whereby the Garda and the DPP agreed to close the investigation.

Since that decision was made, the victim's widow has been trying to get her husband's personal effects returned. However, she has met with delays and inaction on the part of the Garda. I have been working on this case with the widow since early 2007. In December 2007, we were delighted to get the news that the Garda had managed to locate the victim's clothing, and the victim's widow went to Gorey in February 2008 to take possession of her husband's clothes. However, his wristwatch was still missing. We continued to press the Garda to locate this watch, as it was taken from the victim as a key piece of evidence during the murder investigation. We were convinced that it must be somewhere and that due process had been followed by the Garda.

Following numerous letters and phone calls that went all the way to the Garda Commissioner, we were eventually told in September 2008 that the watch had been located. The widow returned to Gorey to collect the watch, but it was not the right one. The Minister of State might have been briefed to state the widow might be mistaken and that time dulls the memory, but that watch was a wedding present from the widow to the victim, and there is a distinctive mark on the watch of which the widow is aware but the gardaí are not. She is absolutely sure that watch was not the watch she gave to her husband on their wedding day.

I do not know who really owns the watch presented to her by the gardaí, or whether it was in their possession for a day, a week, a month or ten years, but the clear fact is that it was the wrong watch. When we pointed this out to the Garda Síochána, a liaison officer was appointed last December, and there has been one meeting since then with the widow, but no resolution.

At this stage, it looks like the watch has been mislaid, lost or removed for one reason or another. A mistake has been made, so in order to allow the widow some kind of resolution to this sad affair, all we are asking is for some sort of apology to be made, and for the Garda to own up to the fact that a mistake has been made. There is a number of precedents for this in the past. An apology should be offered in the interests of fairness and so that justice is finally served.

Seán Power (Kildare South, Fianna Fail)
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On behalf of the Minister for Justice, Equality and Law Reform, on my own behalf and on that of everyone in this House, I offer condolences to the family of the victim in this sad case.

I understand how a protracted delay in returning personal property would cause personal distress. Following the inquest into the death of the person concerned in February 2008, contact was made with the person's family and arrangements were made for the return of property which was still in the possession of the Garda, following the investigation into the death of the person in 1994.

At the time that contact was made, an issue arose regarding one item of property and further inquiries are ongoing. It is understood that a trained family liaison officer has been appointed to this case and every effort is being made to ensure that outstanding issues can be brought to a speedy conclusion.

As a general rule, property is returned to its rightful owner when it is no longer required for the purpose of the investigation of a crime, or where a court so directs. A claimant of property is currently entitled to apply to the District Court under the Police Property Act 1897 for the return of property in the possession of the Garda, and the court may make an order as to the proper disposal of the property concerned.

A fundamental principle underlies the requirement to retain evidence, which is that the defendant must have an opportunity to examine and test any evidence that forms part of the case against him or her. Article 38.1 of the Constitution provides that no person shall be tried on any criminal charge save in due course of law, while Article 40.3.1 provides that the State guarantees in its laws to respect and in so far as is practicable by its laws to defend and vindicate the personal rights of the citizen. In addition, Article 6.1 of the European Convention on Human Rights guarantees a defendant a right to "equality of arms". These guarantees impose a burden on the prosecution in criminal cases to preserve and disclose evidence to the defence. Evidence must therefore be retained if it can be expected to have a bearing on the guilt or innocence of the defendant. The possibility of examining the evidence is necessary if the defendant feels it is going to assist him or her in rebutting the prosecution's case. The retention and availability of articles forming part of the evidence in a case is therefore a very important element of the concept of due process.

Arising from those constitutional and ECHR guarantees, the Supreme Court has determined in a number of cases that there is an onus on the Garda Síochána to seek out, retain and preserve evidence and to disclose it to the defence where it is reasonable and practicable to do so. Braddish v. the DPP in 2001 was the first and most notable in a series of Supreme Court judgments on the issue. The position as set out by that court is that "evidence relevant to guilt or innocence must so far as is necessary and practicable be kept until the conclusion of the trial".

The Supreme Court returned to the subject in July last year and while upholding the position in Braddish, it offered some possibilities of finding a means whereby the property could be returned at an earlier stage. In Savage v. DPP, the court listed several principles and a best practice approach that could be employed in determining whether the property is to be retained, or whether it might be possible to return it while still ensuring the defendant would have sufficient information to enable him or her to query the relevance of the evidence connected to, or gathered from the property. The Department of Justice, Equality and Law Reform is examining that judgment carefully, but is not yet in a position to say how the principles and best practice ideas mentioned in Savage v. DPP can be given effect.

It is recognised that the retention of property which is part of the evidence in a criminal case can result in serious inconvenience and distress for the owner, and the issue has been raised on many occasions and has been the subject of litigation between property owners and the State. The Minister announced in December that the Criminal Procedure Bill 2009 will make provision in this regard. Under Part 5 of the general scheme of the Bill, it is envisaged that a procedure whereby the prosecution and defence will agree statements on the evidential value of the object will assist the prompt return, where appropriate, of evidence to victims, where that evidence is their own property. It is recognised that this is a first, limited step and it applies only where a person has been charged. However, it is hoped the Savage judgment will also help in finding a solution in cases where property is held for many years pending a charge being laid.

While all this might be of small comfort to the family of the victim in this case, it is hoped that these measures will help prevent such issues arising in the future. Having listened to the Senator, I know that the reply I have given him does not supply him with the answer to some of the issues he raised, especially the issue about the wristwatch. It was most unfortunate that a mistake was made in presenting the wrong watch.

As a public representative, I acknowledge the tremendous assistance he has been to a person who has been dealing with a very difficult situation and who might not have had the will to pursue it without such assistance. I will make further inquiries within the Department to see if we can make progress on it, and I apologise for what has happened in the past.

Dominic Hannigan (Labour)
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I appreciate the Minister of State's response, including his offering of condolences. I think he said at the end that an apology will be made for the mistakes that were made in this case. That would go a long way. I would like to clarify one aspect of the response. I agree totally that evidence needs to be retained when a murder investigation is under way. In this instance, however, the murder investigation has been completed. That is why the victim's clothing has been returned. There is no investigation any more. The issue boils down to where the hell the watch has gone. That is what we want an apology for. I appreciate what the Minister of State has said and I was glad to hear it. Could he bring back to his office a request for the Garda Commissioner to be contacted and asked to make an apology on behalf of the force? An apology to the widow in this case would go a huge way towards resolving this issue for everybody. I thank the Minister of State for his time.

Seán Power (Kildare South, Fianna Fail)
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I will be happy to do that.