Wednesday, 2 December 2009
Criminal Procedure Bill 2009: Committee Stage (Resumed)
(2) Where the prosecution proposes to dispose of property that is to be entered in evidence or return it to its owner before the scheduled date of the start of the trial, the prosecution shall serve a notice under this section (the "prosecution notice") on the accused at any time that is at least 23 days prior to that date.
(6) Where a defence report of evidence is served on the prosecution under subsection (5), the prosecution shall, not later than 3 days prior to the scheduled date of the start of the trial, provide to the defence and the court a notice stating whether it accepts or rejects that notice (the "prosecution notice of reply").
This amendment addresses a difficult issue, namely, the requirement of the Garda not only to seek out but also to retain evidence. While being mindful of the inconvenience and loss being suffered by at least some owners of the property involved, I do not claim that this amendment will address all the concerns in this issue but it will bring a measure of relief as well as a degree of certainty to the law. There is considerable jurisprudence on this issue from the Supreme Court. In its judgment in the 2001 case of Braddish v. DPP, Mr. Justice Hardiman stated:
It is well established that evidence relevant to guilt or innocence must, so far as is necessary and practical, be kept until the conclusion of the trial. This principle also applies to the preservation of articles that give rise to a reasonable possibility of securing relevant evidence.
In her judgment in a more recent Supreme Court case, Savage v. DPP, Ms Justice Denham outlined a best practice suggestion for the Garda to follow when deciding on whether to return or retain the property. This amendment is an attempt to transpose this best practice suggestion into statute, or at least aspects of it.
The approach taken in the amendment is based on section 21 of the Criminal Justice Act 1984, as amended by the 1999 Act. Section 21 establishes a procedure for proof by written statement. The current proposal develops that procedure. It provides a mechanism whereby exhibits may be presented by way of a written statement which contains all relevant analysis to the satisfaction of both parties. The procedure entails the prosecution, at its discretion, presenting a statement or report to the defence. The defence then has the opportunity to agree to or accept the report presented to it by the prosecution, in which case the property is returned or disposed of. The defence may commission its own report, or may require that the item be retained or presented at trial. Although it is a limited procedure, the arrangement refers to the prosecution making its approach to the defence at least 23 days prior to the scheduled start of the trial. The Police Property Act 1897 is available to deal with claims for the return of property after the conclusion of proceedings. Therefore, I recommend this amendment to the Seanad.
I am very conscious that there has been a long body of case law on the issue of presentation of evidence, and I declare an interest as I acted in one case that went to the High Court on this. I welcome the attempt to put certainty in the law, but this may be difficult to operate in practice.
I wish to make suggestions to improve the procedure outlined by the Minister in the new section 35. The time of seven days outlined in the new section 35(4) for the defence to serve this notice in writing on the prosecution, indicating what they propose to do with the property, is simply too short. I do not think it will work in practice. The prosecution can serve the prosecution notice about the property at any time at least 23 days prior to the start of the trial. That could occur right at the beginning of the criminal proceedings. In my experience, this arises where somebody reports a crime to the Garda Síochána, gardaí investigate and find stolen property, they arrest an accused and the owner then seeks the return of his or her property. This might happen at a very early date, possibly even prior to the accused's first appearance before the District Court if that person is on bail. It may be that the accused will not even have instructed a solicitor or been granted legal aid. Where the owner is seeking the return of the goods in that sort of case and the gardaí wish to dispose of the property having taken their photographs, they can serve the prosecution notice on the accused because that is allowed in the new section 35(2), but the defence — just the accused person at this stage — will only have seven days to respond.
The new section 35(5) provides that the defence shall, not later than seven days after service of that notice, serve the defence report of evidence on the prosecution. That seems to be too tight to be workable in a situation where an accused person may not have been assigned legal aid. It would be better to have longer time limits in those particular subsections. I do not want to overstate this and I can table amendments on Report Stage. However, I have been involved in cases like this and I know in practice that it may be very difficult for the defence to comply with this. I do not see a proviso saying that all this could be done over a longer period. The real risk is that the gardaí involved will dispose of the property if they have not heard from the defence. We then have the whole Braddish v. DPP and Dunne v. DPP scenario all over again where the defence may apply to the courts claiming that the Garda Síochána should have retained the property. I just seek to make the provision more workable.
We can look at the dates for which the defence must make a response. There is an onus on the prosecution to stick to the 23-day notice, which is pretty stringent. We will look at it on Report Stage.
I do not think the 23 days is stringent. The prosecution must do it at least 23 days before the trial, but at any point in the months preceding the trial. It is a tight onus on the defence or the defence solicitors who are increasingly being given these time limits for the disclosure of evidence. In that context we need to look at extending the period for the service of the defence notices.
This amendment amends the Schedule to the Criminal Justice Act 1951 by inserting a new paragraph that refers to the common law offence of breach of the peace. The Schedule in the 1951 Act lists offences which may be tried either as summary or indictable offences. Section 2 of the 1951 Act sets out the procedure on whether to proceed on indictment or by way of a summary case. The decision is one for the DPP or the District Court when it considers that the offence in question does not fall within its jurisdiction, or for the accused who may elect for trial on indictment.
In the 2006 case of Thorpe v. DPP, a case stated from the District Court to the High Court, the status of the offence of breach of the peace was examined. The High Court confirmed that it was an offence known to law, although not having a statutory basis, and ruled that the offence could be prosecuted as a summary offence. Having regard to its origins, this ruling effectively classified it as an either-way offence. Nevertheless, doubts remain about the law on this offence. It has its origins as a common law misdemeanour and, as such, was regarded as an indictable offence. Despite that, the offence has been tried summarily. Although the High Court decision clarifies the law for the moment, a different view might be taken in another case or by the Supreme Court. In any event, there is no statutory basis for regarding an offence as an either-way offence. The solution I propose clarifies the matter and provides a statutory basis for treating it as an either-way offence to be tried either on a summary basis or on indictment depending on the circumstances of the case.
The purpose of this amendment is to add three offences of a terrorist nature to the Schedule. The Schedule lists the offences in respect of which the DPP may seek to quash an acquittal and seek a retrial on the basis of new and compelling evidence. The threshold for the inclusion of offences in the Schedule is that a maximum sentence of life imprisonment applies on conviction with the exception of the offences under section 7 and section 8 of the International Criminal Court Act 2006 — genocide, crimes against humanity, war crimes and ancillary crimes. In some limited circumstances, a person convicted of an offence under section 7 or section 8 is liable to imprisonment for a term not exceeding 30 years rather than life imprisonment. The three offences I propose to add to the Schedule attract maximum sentences of life imprisonment. I believe their inclusion is appropriate.
"APPEAL IN CRIMINAL PROCEEDINGS; TO AMEND THE CRIMINAL JUSTICE (EVIDENCE) ACT 1924 AND TO AMEND AND EXTEND THE LAW RELATING TO EVIDENCE IN OTHER RESPECTS; TO AMEND THE CRIMINAL JUSTICE ACT 1994, THE CRIMINAL PROCEDURE ACT 1967, THE CRIMINAL JUSTICE (LEGAL AID) ACT 1962, THE CRIMINAL JUSTICE ACT 1951, THE OFFENCES AGAINST THE STATE ACT 1939 AND THE COURTS OF JUSTICE ACT 1924; AND TO PROVIDE FOR RELATED MATTERS.".