Monday, 26 April 2021
Criminal Procedure Bill 2021: Committee Stage
I welcome the Minister of State to the House and express my appreciation for the amendment made to the Order of Business today in respect of this Bill.
I will make a few points in respect of the Bill. First, I think this Bill needs to be more carefully considered than perhaps it was in Dáil Éireann. They had a debate there and a number of amendments were put down by the Sinn Féin Party, in particular, and Deputy Pringle, but there are other things we have to think carefully about before we wave it through and say we have given it due consideration.
Jury trial is hugely important and a point I made in the limited time I had when the very short Second Stage debate took place here was that we have over the last 30 years made the process of jury trial more and more lengthy. I was not exaggerating when I said I remember both prosecuting and defending criminal cases before juries in Dublin and around the country in which a jury would be empanelled at, say, 10.30 a.m. and deliver its verdict at, say, 7.30 p.m. that evening, very frequently in some cases. That was the way the world worked. Perhaps they would go to two or three cases. This is not so long ago. I am not speaking about the 18th century or something like that. I remember looking at the memoirs or a unionist judge called Day in the 18th century. He kept a diary of his trips out on assizes and it was extraordinary. Having noted what happened at lunch and what kind of food he was given, he would say there were three capital cases in the morning, of which two were convicted and one recommended to mercy. My God, this all took place before lunch in those days.
I do not suggest we go back to a distant age. The spirit of this Bill is important, that is, once a jury trial starts, it comes to a fairly rapid conclusion. The scandal of having jurors sitting in a room wondering what the hell is happening down in a court for two and a half days while lawyers make lengthy submissions to a trial judge is completely wrong.One has only to look at the George Floyd trial to see how even a murder trial in the US proceeded so fast, although I accept that was probably contributed to by the failure of the accused to give evidence.
The Bill is very well intentioned, but I worry it will have the unexpected and unwanted effect of lengthening even further the process of getting cases on for trial. Legal aid lawyers - I am not saying anything bad about them - will think it is almost their bound and duty to have an outing before a trial judge to try to have bits of evidence excluded and the like. In the nature of things, that will take time.
The next issue will be worth remembering when we debate later sections. Senator Ward has commented on this. The provision that juries should be supplied with transcripts of prosecuting counsel's opening and closing speeches seems to suggest there will never again be a case where a jury goes out, having just heard the judge's charge, and that is it. It seems to suggest we are floating down the river towards a situation where it will take a further three or four days to get together all the transcripts, and compare them to see whether they are correct and everyone is happy with them and whether the judge is happy with the transcript of his or her charge to the jury and so on. I am ringing an alarm bell that this process could become more complicated rather than more expeditious if we are not careful. Nobody ever suggests that a barrister, whether prosecuting or defending, making his or her opening case to the jury should have to provide a copy of that speech. That does not happen too often but it will happen if provision is made for it to be given to the jury. There will be long speeches, and who is going to say something? Will a trial judge say to Mr. Ward or Mr. McDowell, after two or three hours, that the jury has heard enough? That worries me. Once we start introducing documents of proceedings before a jury, we will make the process more complicated. That is a preliminary point on section 1.
Section 11 will make provisions for the rules of court to accommodate all these new changes. Will the Minister of State indicate whether the rules of court are yet even in draft form? Has the rules of court committee for the Circuit Court and the Central Criminal Court been alerted and asked to get weaving about this, or will we pass this legislation rapidly and without giving it enough thought, and then find ourselves waiting for a rules committee, in the fullness of time, to come up with its views as to how it should be implemented? The Minister of State might comment on whether that has been done.
In respect of the early commencement of this legislation, the Minister will be given extensive power among indictable offences to specify offences to which the legislation will or will not apply. Will the Minister of State indicate whether the Department has considered, even at this stage, what offences this will apply to? There is the concept of relevant offences, which is flexible and ultimately depends, in many respects, on ministerial orders being made. I would like to have a notion as to the intended scope of this legislation and some indication as to what the Department has in mind for the extent of its application. I fully appreciate that the manner in which the legislation was drafted gives flexibility in this regard but, in the context of it starting early, it is a bit like when holding a referendum on something, it is a good idea to publish the ensuring legislation at the same time so that the people know what is likely to happen. Given how long it will be before this legislation is commenced by orders made by the Minister, I would like to have a clear idea at this stage of the extent to which the Bill is intended to apply to what are described as relevant offences and also whether the process for the rules of court being drafted has already commenced or whether that will be six, nine or 12 months after the legislation is drafted.
In response to what Senator McDowell said, I must point out that this is very important legislation which provides a vehicle for all practitioners but probably principally defence practitioners to explore evidential issues before getting to the trial stage. Many of these issues are now resolved at the beginning of a trial after the jury has been empanelled and very often while they are sitting in a windowless room in the Criminal Courts of Justice or in a courtroom somewhere throughout the country. The Bill envisages that instead of doing it then, the process would be refined so that when we get to trial, we actually know what the issues are.
Contrary to what Senator McDowell said, the very last place I would look for guidance on how to properly exercise the criminal justice system is 19th century judges or the United States of America because I think we actually do this quite well in this country. We have a very fair and functional system.
Concerns have been expressed about the commencement. I do not think the commencement provisions outlined in the section 1 are, in any way, extraordinary because they are the same kinds of provisions that we put into most Bills that go through these Houses. I do not know whether it was on Second Stage, but certainly the Minister has indicated publicly that she is already planning discussions with the Courts Service over how this will be implemented. It is anticipated it will be operational either by the end of this legal year or early in the next legal year, certainly by October at the latest.
This legislation has been welcomed by practitioners, victims' groups and people who are engaging on a regular basis with the criminal justice system. It seems eminently sensible to me. I am surprised that, based on section 5(1), the legislation is essentially restricted to those offences that lie at the higher end of the spectrum of indictable offences being those which carry a sentence of imprisonment for life or a maximum term of imprisonment of years or more. That is where it is pitched. That would exclude, for example, common assault, which is the kind of offence where this preliminary trial procedure would be enormously beneficial. I welcome that the section allows the Minister to make regulations to expand that to include more indictable offences which would make sense. I hope and presume she will do that.
However, I am saying that the whole process of jury trial has become much more complicated. I agree with Senator Ward that many aspects of the current system are protective of the accused and the rights of the accused. In the context of what is the most liberal bail law of all the common law jurisdictions and the delays that exist, from the point of view of the victim of crime, the period between the commission of an alleged offence and it being tried before a jury has become very elongated.Senator Ward referred to the George Floyd reference that I had made. I merely said that the process was very quick compared to what would happen here. On the last occasion, I pointed out that Bernie Madoff would still be on a second judicial review and nowhere near a criminal trial had he been arrested in Ireland.
One does not have to be the victim of a sexual offence. One could be the victim of an ordinary mugging or a brutalised raid on one's house. The idea that a person has to live with the accused being out on bail while wondering at what stage in the future a criminal trial is likely to happen, and being told it could be anytime in the next two years, is very debilitating for victims of crime. Senator Ward said that we do not have to ape everything that goes on in America. Maybe not, but the British, who are much closer to home, manage to have trials much faster than we do. They also lock people up pending trial much more freely than we do, so I accept that it is a balance between those two things. Justice delayed is justice denied to victims substantially. It may suit the legal profession, of which I am a member, to have a reasonably relaxed pace of things and to prepare over time for a trial but there are other interests, such as victim interests, which must be taken into account.
The other thing which must be mentioned is that in the case of many categories of crime, there are people who avail of delay to commit further crime. The law there in relation to sentencing and consecutive sentences does not seem to be imposed, or adequately imposed, so as to constitute a deterrent. I take what Senator Ward said about the Minister saying they were in touch with the Courts Service but these rules of court will have to be made. The Courts Service can indicate to the Department the existing delays we are dealing with. I am glad this Bill applies to cases pending before the courts, as well as cases which will come into existence after it is commenced.
I apologise to my colleagues, the Leas-Chathaoirleach and the Minister of State for arriving late to this Stage of the Bill. On a procedural point, am I correct in saying that Senators are speaking on section 1 of the Bill, as opposed to any of Senator Ward's specific amendments?
I welcome the Minister of State to the House. Given that we are speaking on section 1, and that I understand the timeframe within which the Bill is to be brought into effect, which is hugely important, I want to reiterate my support and that of my party for the principle of preliminary trial hearings. This mechanism will be very important in the interests justice and in the interests of victims. During my time in practice, I saw many trials in which the trial before the jury was delayed for hours some days, but often for consecutive days at a time, while legal argument went on in the absence of the jury. In many of those cases, the issues being discussed in the absence of the jury were issues that could have been dealt with by way of a preliminary trial hearing. That is the crucial principle of this Bill.
Earlier today, I raised the case that was referred to in The Irish Times on Saturday. The article, by Sarah-Jane Murphy, was about a case which she described as Zoe's case concerning a child who had made an allegation of sexual abuse. What was particularly harrowing to read was the experience of the family of the victim going through that experience and the lack of regard to the rights and interest of the child.A number of practical issues around delay, lack of communication and physical facilities for the hearing of trials were expressed in that article. It is timely that we are debating this Bill. The concept of a preliminary trial hearing is to try to resolve some of the issues that would otherwise delay the conduct of a trial once up and running and that is very much in the interests of justice and in the interest of victims.
With the indulgence of the Leas-Chathaoirleach, I would like to mention a point that is not covered in the Bill. Audio recordings of counsel are a possibility now to be served up to juries. For the day that is in it, the voice of Seamus McKenna, SC, was played on the radio this morning as part of "GunPlot". I have always been an advocate for the recording of trials as vital nuggets of history that can be released 30 years later such that there is no playing up to juries or juries being engaged in any play-acting by counsel, although I am not suggesting that would happen. Perhaps the Minister of State would take that on board. If trials were audio recorded, with files stored safely, it would be a wonderful bank of information for students of law. We could replay some of the brilliant trials of yesteryear. Ideally, a visual recording should also be made. This is well within the ability of the Courts Service and it could release them at a later stage.
In respect of section 1, I accept that anything that speeds up trials and stops a jury being sent out for a day and half or dismissed sporadically is to be welcomed. When a jury is sent home for a day and a half or a couple of days, jurors are told not to discuss the evidence with anyone and to not Google the case. This puts jurors under prolonged temptation. Expedited trials would be all well and good, but I would like to reflect on what Senator McDowell said. Last week, the Senator and I agreed to disagree on a suggestion he had put forward in respect of the personal insolvency legislation. He might recall that I said I was not convinced that works in practice or that it was necessary or practical, although it might work in theory in respect of it being a further hoop that lenders had to jump through. However, in respect of this Bill, it is the opposite in that Senator McDowell may have flagged something important. This Bill works in theory, but will it work in practice and what will be the reality in the courts? Might it be that a junior counsel is not regarded as being five-star if he or she does not have a need to go into court to tick this box in the interests of doing everything possible for, in particular, the accused, and or having these preliminary hearings before the trials? I am conscious of that. Despite Senator McDowell's concerns, I would still proceed with this, but with a health warning and very vigilant judges.
I also have concerns in regard to documentation provision to juries. On Second Stage, it was agreed that this issue was a matter for another day. We need a fundamental overhaul of the jury selection service. My concern is that we have to be so circumspect with respect to what is given to juries. I recall being in court and a diligent jury foreman returned - in terms of the gender aspect, our legislative requirement to use of the word "foreman" has yet to be replaced by "foreperson" - with a special request to a very well-known trial judge, the late Mr. Justice Paul Carney, which was that the jury be sent 12 copies of a particular page related to the final interaction in a cross-examination of a witness. I am sure similar requests were made of other judges.He was worried about that so, instead, he read out the exchange of dialogue they had requested rather than give them physical possession of it.
In respect of sharing documentation with juries, there is also the question of timing. This might come down to the judge. However, should we not release the opening and the closing speeches at the exact same time if it is a long trial, or does the opening speech lie there permanently on a jury table for several weeks before they get sight of the closing speech?
The Bill refers to audio recordings or written transcripts. There is a level of discretion here that might have to be narrowed down. If it is going to be audio for the opening, ought it not be audio for the closing? I want a radical overhaul of the courts, as I said, including video and audio recording for the purposes of student law research. Despite that, I would prefer the cold print to go to the jury rather than tape recordings of the voices of counsel, because the print stands up whereas different styles and tones may be used by barristers - I am thinking of Seán MacBride and how he might sound against someone else. I am conscious that it will all come down to the inherent jurisdiction of the trial judge. I just want to flag those issues.
I flagged at the outset that I would be taking liberties. I will quit while I am ahead, given the Leas-Chathaoirleach has brought me into order. I thank him for his indulgence. I have another point that I will leave for later in our consideration and examination of the Bill.
I am always conscious during debates like this that I am in a room full of legal practitioners or former legal practitioners. I am not nor have I ever been a legal practitioner, so I always listen with great interest and great intent to what colleagues have to say.
In regard to section 1, I addressed this at the earlier Stage of the Bill in the House. I agree with colleagues around the importance of pre-trial hearings and making that as accessible, as convenient and as rigorous as can be for juries, taking into consideration all of what has been said. I want to reiterate my earlier points on this, without having to rehearse them again today. Nonetheless, I think it is a very important aspect of this legislation and I agree with colleagues in that regard.
The issues around opening and closing will be revisited when the amendments to section 12 are discussed and I will address them at that point. It is similar with section 11 around court rules.
In regard to the issue of the Minister being given powers to decide which offences are included, the Bill goes into detail on section 5 as to what the requirements are for the Minister to decide what will and will not be included. I expect there will be consistency in terms of approach when we look at the details under section 5. The Bill sets out in section 5 exactly what the Minister must consider when specifying what the offences will be for the purposes of the Bill and, under section 5(3), specifies other things that must be taken into account. Under section 5(4), such orders will be laid before the Houses and, of course, may be annulled within 21 days by either House, so there is that protection mechanism and it will be for the Houses to look at.
In regard to the broader point on the Bill itself, this has been called for over numerous years by different working groups, practitioners, victims groups and all sorts of other groups, for understandable reasons. I practised as a criminal barrister for a while and was involved in a number of criminal trials, including some quite lengthy ones where there was significant and ongoing disruption. I was always conscious in those trials that not only is it a significant inconvenience for the jury to be brought in and brought out, but it can also be very difficult for either the prosecution or the defence to build up a narrative around that evidence when there are constant interruptions.The jury should have an opportunity to focus on the evidence in a trial, so the overall point of this Bill is very worthy.
I think the Bill will work. It is not going to solve every procedural aspect or issue. I hope and believe that there are enough protections within the Bill. The judges also have their own powers to ensure it is not abused by practitioners for delaying tactics or extensive applications for preliminary trial hearings. I would expect anybody taking a preliminary application would put their best foot forward and deal with as many contentious issues on an application for a preliminary trial hearing so that when the matter did come before trial, it would be ready to be considered by the jury without disruption in so far as possible, although there will always be things that pop up during a trial. I believe the Bill will work but we will keep it under review and serious consideration. There will always be criminal procedure legislation in the future and I understand there will be a criminal procedures (amendment) Bill next year as well. We will certainly keep a close eye on this legislation.
In terms of commencement, the Minister has leeway. She will not commence the legislation until such time as she is satisfied the courts have all of the practicalities in place, including the Judges' rules. She will tick-tack with the Courts Service and the Director of Public Prosecutions, DPP, in that respect so that everything is ready to go when the legislation is commenced.
Section 5 is a provision stating what a relevant offence is, and as is clearly provided for in subsection (1), it means:
(a) an offence specified in an order made under subsection (2),
(b) an offence for which a person of full capacity and not previously convicted may, under, or by virtue of, any enactment or the common law, be sentenced to— (i) imprisonment for life, or
(ii) a maximum term of ... 10 years or more, (c) an offence consisting of aiding, abetting, counselling or procuring the commission of an offence specified in an order made under subsection (2) or an offence to which paragraph (b)applies, or
(d) an offence consisting of conspiring to commit, or inciting the commission of, an offence specified in an order made under subsection (2) or an offence to which paragraph (b) applies.
I wanted to draw this matter to the attention of the Minister of State. Where do we stand with being an accessory after the fact to such an offence? It seems to me that aiding, abetting, counselling or procuring does not automatically include being an accessory after the fact. This may sound slightly arcane but there are cases now, especially when you are dealing with gangland criminality, murders and the like, where you would want to be very clear whether people who are accessories after the fact come within the ambit of subsection (1)(c). Should we consider tweaking the provision to make it clear it includes the offence of being an accessory after the fact?
I accept that it may be the case that abetting involves being an accessory, although I am not sure about it as it has been years since I have studied the law in that regard. I am not sure about it.
The criteria set out in sections 5(2)(a), (b) and (c) seem perfectly reasonable. In respect of section 5(3), is it envisaged that the Minister will take a generous view of this and extend the provision as widely as possible or it thought that this will only be done in the case of particularly difficult or complicated offences? Senator Ward made the point that a simple assault can be tried on indictment. Even in cases of that nature, it might make sense to sort out the preliminaries. That is probably the lowest grade of trial for an indictable offence that could be imagined - somebody swinging a punch at somebody else or whatever. What is the intention of the Minister and the Department? Is this power to specify offences to applied liberally or will it be only used in cases of exceptional importance? Section 5(3)(b) refers to "any relevant complexities that generally arise in the prosecution of such an offence." I know that is only one of two factors, the other being the nature of the offence concerned. Is there to be an inclusive approach which involves extending this wherever possible or is it be applied narrowly and only in the case of offences which people might see as more difficult to prove?
I am in something of a difficult position in that this is the Minister's Bill and I cannot step into her mind. I certainly cannot step into the mind of any future Minister. As I understand it, this is to be used only where there has been considerable consultation. I reiterate that if an order is to be made, it must be laid before the Houses under section 5(4). Any Minister, whether it is the current Minister or one of her successors, will have to lay any such order before the Houses, regardless of his or her intentions. It is to be expected that the Minister will have to explain the rationale behind the decision at that time. That is the protection measure that exists.
I move amendment No. 1:
In page 8, to delete lines 1 to 7 and substitute the following: “(2) Without prejudice to the generality of subsection (1), the trial court shall, where—
(a) an accused is charged with a relevant offence, and
(b) the prosecution or the accused makes an application to the court for a preliminary trial hearing to be held,
hold such a preliminary trial hearing.”.
This amendment is essentially technical in nature. I do not know whether the Minister of State is minded to accept it. The question behind the amendment was, to a great extent, answered by the Minister on Second Stage. I was concerned that the provisions of section 6(2)(c) would prevent the holding of a second preliminary hearing. That was addressed by the Minister on Second Stage and I am happy to withdraw the amendment on that basis.
I agree with Senator Ward. The Minister was correct. This is the only obligatory requirement for such a thing to happen. The way it is phrased is clever enough. It prevents repeat applications being made with a view to obstruction. It gives the court the discretion to navigate its way around that issue while, at the same, giving both the prosecution and the defence one bite of the cherry.The judicial policy will be to put all one's cards on the table on day one and not to keep coming back with more objections in sequence.
I move amendment No. 2:
In page 8, to delete lines 28 to 30.
The amendment relates to section 6(6), which states:
Where an accused has not been arraigned prior to a preliminary trial hearing in the proceedings concerned, the trial court may, where it considers it appropriate, direct that he or she shall be arraigned at the commencement of such a hearing.
The amendment proposes the deletion of that subsection. The simple reason for that is that it seems to me that a preliminary trial hearing should be allowed to take place before the accused person makes a decision on how to plead. That would be the form in respect of, for example, a section 4E application under the Criminal Evidence Act 1967. Although I note the subsection couches it very much within the power of the judge to make a decision in this regard, I have a small concern about giving the power to the court to essentially demand that an accused person nail his or her colours to the mast one way or the other before proceeding with the preliminary hearing. I wonder whether it is necessary to afford the court that opportunity or whether the subsection should be removed.
I am in disagreement with Senator Ward. I think the accused should be required to nail his or her colours to the mast as early as possible in a criminal process and not have a kind of each-way bet on seeing how the process will go and then seeing whether it would be a good idea to plead guilty. I emphasise that I am not being opportunistic in using this example but in the case, for instance, of a sexual offence against a woman, surely before the accused is given the right to start making preliminary applications in respect of what will happen at a trial, he or she should be asked at the very outset whether he or she is pleading guilty to the offence. Senator Ward states that asking accused persons to do so at an early stage is asking them to make a decision, effectively, against a contingency that their situation might improve if certain evidence were to be excluded. However, the corollary to that is that, for example, an accused could decide to have a go at trying out an application relating to previous sexual history before a judge before deciding whether to plead guilty. The woman would be put through the process of defending her right not to be interrogated on this issue and her legal aid lawyer would make submissions on it and then the accused could decide whether to plead guilty. In my respectful submission, this would be a retrograde step. If accused persons come into court with a legal aid lawyer, have read the book of evidence and know the prosecution case at its height, it would be counterproductive to allow them to keep their powder dry and then get involved in preliminary litigation about the nature of that case without ever having to say whether they are, in fact, accepting their guilt. I am against the acceptance of the amendment.
To be clear, the reality as it stands is that a person is not required to indicate that he or she is pleading not guilty until he or she is put in charge of the jury at the beginning of the trial. While Senator McDowell has perhaps selected the example that would cause me to change my mind and I would not want a situation where a person was allowed to essentially pillory another person to ascertain what the evidence is, I also fall back on first principles in respect of our system, which state that a person is entitled to know the case against him or her before facing it.There is something in saying that the accused should be entitled to know the entirety of the evidence that will be adduced at trial before making a decision about whether he or she wishes to plead guilty or not guilty. This is the basis of the amendment. Again, I would not push it very hard but it is unusual, given other aspects of certain pretrial measures. I have cited the example of section 4E of the 1967 Act. I say this in the context of other things that were said during the discussion on section 1. There might be a feeling with regard to legal aid lawyers - I balk somewhat at that term given that pretty much every criminal law practitioner in the State is a legal aid lawyer - that there would be a practice whereby they would automatically seek a preliminary hearing in order to prove their worth or to show they were committed to the defence or that they were doing everything they could. There are lots of other preliminary trial applications that can be made. In Dublin, for example, we already have pretrial hearings or there was, for a long number of years. It was a trial period or a probationary period as to whether pretrial periods would work. They did not. However, there are applications, for example under section 4E, that allow an accused person to challenge whether or not a prima faciecase has been made in the evidence that has been provided as part of the book of evidence, as supplied under section 4B of the 1967 Act. Those applications are unusual, even though there is the right for any defence practitioner to bring that application at any stage before the trial process. They do not do it because judges are not fools. Judges know when one is playing for time or putting on a show, or whatever it is. I would have no fear that this would happen in preliminary trial hearings either. Is there something to be said for allowing an accused person to have a full understanding of the evidence that will be called against him or her at trial, before declaring before the court whether he or she is pleading guilty or not guilty?
Giving somebody a full understanding of the nature of the evidence that the prosecution intends to bring is one thing, and I fully agree with Senator Ward about that, but giving somebody the right to start testing the evidence on a preliminary basis goes one stage further. With regard to striking out the whole proceeding on the basis that there is not a prima faciecase disclosed, the standard of proof is that one assumes that all the evidence in the book of evidence is heard. One does not start putting pencils through bits of it based on a different notion that it could be dodgy evidence. Perhaps if it was clearly hearsay then this would not apply. The courts try to give a discount to people who plead guilty at the earliest available opportunity. This is not simply to aid the victims, it is also an aid to the whole system. An acknowledgement of guilt and a sparing of the time of the court and of the court listing system by an early plea is generally given a judicial pat on the back when it comes to the imposition of any sentence.
If we were to do what is proposed in amendment No. 1 we are certainly going to do what I warned against during the general discussion on section 1. We would introduce a new three-month or six-month delay, almost by definition in every case. People who do not want to go to Mountjoy Prison will say "Let us have a legal debate about the admissibility of my confession" or they may want a legal debate about the history of the injured parties, such as sexual history, and they may even go off to the Court of Appeal at the end of it all. I genuinely think it would be an error.
If this is about shortening trials, they are trials that are already about to happen. It is not about shortening the whole process in respect of trials that may or may not be about to happen. The policy should be to put one's cards on the table and ask "Are you accepting guilt or innocence?", before we start debating tests to the evidence and matters such as what evidence might or might not be brought, or whether an alleged sexual crime victim could be cross-examined as to previous sexual history.Those are the kinds of things you really do not want to bring forward to somebody who will not even acknowledge his or her guilt to start with.
It is a well-intended amendment. Like the previous speaker, I would be concerned that the outcome of this would be fewer people entering pleas, thereby clogging up the system and victims suffering in a more prolonged way, all because they will not nail their colours. If this Bill is enacted with Senator Ward's amendment, why would many people not take their chances without nailing their colours? Until now and until this Bill is enacted, the only time you can do that is during the jury trial of the action. You would be giving the right to an accused which would only ever have been given heretofore, until this Bill is enacted, in the trial of an action. Instead, people could try to dismantle parts of a case. The bigger the challenge, cometh the hour, cometh the person. There would be huge issue around admissibility and the accused just hanging back to see how the ball breaks, so to speak. In the interest of public policy and the interests of the complainant or victims, and while I can understand the other argument as well that an accused should see all the documents and know exactly the case he must answer, the advantages outweigh the disadvantages and therefore I hope the Minister of State does not accede to Senator Ward's urgings.
Senator McDowell gave a very good example of where I would expect a judge would require somebody to be arraigned when he or she is going to challenge that type of evidence in sexual cases. I made a section 4E application once in a manslaughter by omission case. At that time there was no precedent and there was a question as to whether it was even an offence here. Sometimes, there are challenges around the book of evidence and admissibility. There are occasions when a court will decide that somebody should be arraigned before getting into the preliminary hearing. Another example that I was involved in, and it might be argued it could fall either way, was an application to transfer a case because of adverse local publicity and whether someone should be arraigned before a preliminary hearing was heard.
This section effectively leaves it up to the judge to make the call on when the preliminary hearing will be heard, the type of evidence that will be questioned, and the type of evidence that will have to be given as to whether somebody should be arraigned at that point. In those circumstances, we are putting our trust in the judges to make the right call. Therefore, unfortunately, I will not accept the amendment. I understand Senator Ward's intention but we will leave it up to the courts to make the call at the time.
I move amendment No. 3:
In page 8, line 31, after “matters” to insert “inter alia”.
The two amendments are linked in terms of the amending of section 2(7). This section sets down what the trial court may assess at a preliminary trial hearing. I have a small concern that it is unduly fettering the discretion of a judge. Amendment No. 3 inserts the words "inter alia" to show that the list provided for in section 2(7) is not exhaustive and to allow the judge to consider other factors he or she thinks might be appropriate.I have taken a belt-and-braces view of matters in adding a paragraph to state that a judge in such a case might consider such other matters as he or she deems appropriate. I am saying that there is a whole range of issues that could be considered at a preliminary trial hearing. It does not seem to make sense in section 6(7) to reduce that to a definitive and exhaustive list of measures. We should, once again, be trusting in the Judiciary to identify what issues should and can be decided at a preliminary trial hearing and that is why I am suggesting this amendment to subsection (7).
Both amendments expand the number of matters that could be considered at pre-trial hearings. I want to speak briefly to the experience in the Six Counties where arraignment hearings have expanded in scope and have been used as a means to test witnesses, including in one high profile and well-known trial. The stated reasons for holding pre-trial hearings should be kept as they are in the view of Sinn Féin and it would be on that basis that we would be opposed to these amendments, depending on what Senator Ward intends to do.
I did not agree with Senator Ward's previous amendment so I am glad he withdrew it. I do, however, think there is some merit in these two amendments, particularly as section 6(4) refers to the interests of the victim as one of the criteria that a trial court shall look at in determining whether a preliminary trial hearing should be held. It is interesting that particular consideration is not included in the range of issues set out in subsection (7) for the trial court to consider at a preliminary trial hearing. It seems to me there is some merit in this suggestion. I will, obviously, be interested to hear what the Minister of State has to say.
It also strikes me, on a more general note, that Senator Ward has proposed a whole array of amendments to this Bill through which we will be going, although I know we are due to suspend at 4 o'clock. The Senator is a Government Senator and I wonder whether his Government colleagues will vote with him, should he choose to press any of his amendments, if the amendment is opposed by the Minister of State. I ask that rhetorically because some of us in the Opposition may seek to back some of those amendments and not to back others. It is, clearly, an unusual position that the only amendments to a Government Bill are being proposed by a Government Senator.
It is, in fairness, helpful when Government Senators put down amendments, especially when the Government has a massive majority in this House, which was recently increased yet again. There is no harm at all in Government Senators with a point of a view on a Bill coming forward with proposals. If an amendment is moved, it is a matter of agreement that they are not put to a vote and if anybody wants them put to a vote, they can be. Amendments cannot be withdrawn without the agreement of the House.
I am just making that point. The timing of this legislation was such as to preclude me from putting down amendments because I was getting jabbed and other things last week. I am happy that we are taking it at a pace which will allow us to look carefully at each section, rather than rushing the whole thing through.
Senator Ó Donnghaile said that, in Northern Ireland, expanding the matters that can be dealt with at a preliminary trial has not been the happiest in effect. We should be careful because the whole idea is, in one sense, to keep the range of things that can be dealt with at a preliminary hearing reasonably under control so that mini-trials are not happening before a jury ever comes near the matter. However, I favour Senator Ward's amendment. Something like "inter alia" could be put in. I do not think one needs both amendments Nos. 3 and 4. It would be belt and braces to insert both. However, the matters a trial court should asses should not be absolutely limited to those listed at sections 7(a) to (d), inclusive.It should be slightly more flexible than that. One does not want either the accused or the State saying the judge's order was made without statutory power or outside the judge's statutory power in every case. If we included wording like "inter alia" or "including the following", the Judiciary would probably interpret paragraphs (a) to (d) as indicating the likely scope of issues but would be given a little flexibility. If the matters in paragraphs (a) to (d) were the only grounds, some unintended consequence could follow such that a judge might say that while he or she would love to make the order, he or she could not. The proposal makes common sense. Everyone might want the order to be made in the trial, including the prosecution and accused, but it might not be possible, for whatever reason. Therefore, I favour this amendment.
In respect to what Senator Bacik said, I am not a Government Senator; I may be a member of a Government party but I have no more power over the Government in this House than Senator Bacik or any other Senator. Much is the pity, in my view, but that is the reality of the situation. It would be a real shame if we adopted the position that Government Senators should not table amendments. We are all legislators in this House and we all have a role in scrutinising legislation, raising issues and identifying them for the Government that runs the country as opposed to those of us who are Members of the Legislature. I see my role as doing exactly that, and that is why I have tabled amendments. As to whether I will press them, I will wait to hear what the Minister of State says on each one. I will not make a decision at the outset as to whether I am going to press them. It would be a real shame if a view were taken that Government Senators should not table amendments, which I realise is not what Senator Bacik was saying, and that if they did, they might find themselves embarrassing their party. That is not necessary at all. What we should be doing is stating what we think about the legislation, making proposals, listening to what people think about them and then deciding whether they should be accepted. That is the reason the amendments have been tabled.
I am delighted to hear the response from Senator Ward. I should stress it is a great idea for Senators from Government parties — I apologise as I should have used that more accurate description — to table amendments. It is very good and emphasises the strength of the Seanad as a legislature, and it emphasises the role each of us plays as a legislator. I speak as someone whose party was in government and who was, to use shorthand, a "Government Senator", that is, a Senator from a Government party. Indeed, I was Deputy Leader of the House at one time. Tabling amendments as a Senator from a Government party is very positive. Seeing it is very welcome but it is unusual. Colleagues will agree that it is not usual, in considering a Bill, for all the amendments to have been tabled by a Senator in a Government party. That was my comment on the matter. I am glad to hear Senator Ward's response to the effect that he will wait to hear the Minister of State's response on each amendment, as he should, before making a decision one way or the other. That is very helpful for us in opposition to know. Those of us from Opposition parties or no party will also be making decisions on individual amendments, and I do not expect that the Opposition will be speaking with one voice on this either. Clearly, Senator Ó Donnghaile has a particular view. It is interesting to hear the experience from the North on the merits of this amendment and the sorts of matters that should be considered by a trial court during a preliminary trial hearing.
This is an important Bill. It will make some significant changes to criminal procedures so it is very welcome that we are going to spend a bit of time debating it. I am glad. Again, it is perhaps a little unfortunate that we did not separate Committee and Report Stages but I believe I am correct that although the Bill is down for Committee and Remaining Stages, our consideration is only adjourning at 4 p.m. rather than concluding. Therefore, we can continue on another date.
A point has occurred to me. Section 6(6) states: "Where an accused has not been arraigned prior to a preliminary trial hearing in the proceedings concerned, the trial court may, where it considers it appropriate, direct that he or she shall be arraigned at the commencement of such a hearing."It occurred to me that it would be better to substitute the words "the accused" for "he or she", not because I am worried about gender fluidity but I am worried about bodies corporate which may or may not be prosecuted also. It would be better to use "the accused".
I, too, welcome the fact that Government Senators are tabling amendments more frequently than they would have done previously. I commend my colleague, Senator Ward, on tabling the amendments, going to the trouble of analysing the legislation and giving his views, which will better the legislation. By debating these matters we are doing what we are constitutionally supposed to do, which is enhance and improve legislation. Amendments need not necessarily always be right but it is healthy and good that when Senators have a viewpoint, they would feel free to table amendments, where appropriate. It is important that we would support Senators who do that because it is positive. Senator Ward has played his role in enhancing legislation.
One worry I have is that because of the time constraints due to Covid-19 we are not debating legislation, on Committee Stage in particular, to the level we should be doing. That is an issue the House might examine because legislation is passing through the House which we need to spend more time teasing out.
For my part I welcome amendments from both Government and non-Government Members. It helps to improve legislation, which is hugely welcome. It probably is a departure from times past but it is a welcome departure.
I am not minded to accept the amendment for the reason that what the Senators, with the exception of Sinn Féin, are trying to do is already done in the Bill. I refer to section 6(8)(f), which provides that at a preliminary hearing the court may make "any other order relating to the conduct of the trial of the offence concerned as appears necessary to the court to ensure that due process and the interests of justice are observed". Section 2 clarifies further that ""order", in relation to a court, means a decision that the court is empowered to make under or pursuant to an enactment or the common law, or otherwise". I am satisfied that the court has all the powers it needs to deal with these matters already. Although I agree in principle with the flexibility Senator Ward is attempting to put into the Bill it is already provided for in this Bill.
On the section, I want to make a couple of brief points. The provision in section 6(5) that "The trial court may, on the application of the prosecution or the accused, where it considers it appropriate having regard to the orders the making of which are to be considered at a preliminary hearing and, in particular, where the making of a relevant order is sought, direct that the preliminary trial hearing concerned be held as close in time to the date for which the trial is set down for hearing as the court considers appropriate and just in the circumstances." I apprehend that may be that if one is bringing back a witness from, say, America one does not want to have it extended over two trips to Ireland or something like that.In general terms, I would like the thinking behind that provision to be clarified to the House. Why would one want it as close "as the court considers appropriate and just in the circumstances"? Does that provision include the converse, that is, that the trial judge can have it as distant as he or she likes in order to separate the two issues fully? I am somewhat mystified as to why that particular subjection was included, what its intended purpose is, and why we are putting that particular provision there. As sure as night follows day, some lawyer is going to say that it means something to some judge and that it either supports some proposition or does not. I am left wondering what in fact is intended by it.
I have a further point to make on subsection (8)(c), but we can come back to that later.
I thank the Senator. This is probably just a matter of good practice. The Senator gives an example of the practical impact of a witness travelling a long distance. It may also be the case that there is an expert witness on the State's side of a case, perhaps a forensics expert, where he or she has appeared as a witness in a preliminary trial, and where if the trial was some distance away in time, that witness may be gone. One is then looking at getting somebody else to read back into the evidence. Generally, it would be a matter of good practice.
My understanding also is that in dealing with anything to do with admissibility, which is similar to the point I have been just making, that where one has the preliminary trial, evidence is given, and perhaps experts are called, will all of those witnesses still be available for the actual trial itself? The longer that gap and distance is there, the greater the risk that a person may be out of employment, no longer available or, God forbid, may have passed away, as unfortunately sometimes happens in criminal trials. This then is just a matter of good practice as to admissibility of evidence and keeping things moving.
On the other matter that I have just raised, subsection (8)(c) refers to "relevant order". When one goes back to the definition of that on page 6 of the Bill, it states: " "relevant order" means an order as to the admissibility of evidence, including an order under or pursuant to section 16 of the Act of 1992;". I understand that that reference to section 16 of the 1992 Act is to video evidence, in certain circumstances. This raises a question as to the admissibility of evidence which is a point I wanted to explore with the Minister of State. If, for example, a person's defence is as follows: that he or she made a confession but that it was made under duress, that the person was threatened that his or her spouse would be arrested, that the person's children would be taken into care, or that the person was threatened with physical violence or with this, that, or the other. Is it envisaged that that issue could properly go to the jury, where it is admitted that it is the person's signature at the bottom of the statement and that the person did in fact use those words but these were effectively cajoled out of the person who was forced or felt compelled to say that because of "X" or "Y"?If that is decided at a preliminary stage by a judge having heard the accused person and, say, the interviewing garda who is supposed to have made these remarks in the corridor outside the interview room, as I understand our jurisprudence at present, the standard of proof to get such a statement in is that it be beyond reasonable doubt. If a trial judge was left in a state of reasonable doubt as to whether those words were uttered to the accused, that judge would normally say the standard of proof requires him or her to deem it inadmissible. The corollary of a finding that it is admissible is a rejection beyond reasonable doubt of the evidence tendered at the voir dire, as it is now, or the preliminary stage of the trial, that a judge is saying beyond reasonable doubt that it did not happen. Then there is the situation that a judge has said beyond reasonable doubt the evidence against the reception of this confession is false and he or she so finds it. The situation then is that the matter comes before the jury, which looks at it again and says it has a doubt about it. The judge has ruled it admissible on the basis he or she does not believe a word of what the accused is saying about the confession but then there is a trial before a jury on exactly the same point. In effect, the accused is given two bites of the cherry: one to convince the judge that there could be a reasonable doubt about it, and then to bring the same matter before the jury a second time and he or she signed the confession but only in the following circumstances.
Is it logical, in a case where it is perfectly clear that is the only defence, that it should be the subject of a trial before the judge alone? It would be a preliminary trial, effectively, in which the judge, in order to let it go to the jury to decide, has to effectively say, "I reject that evidence as untrue beyond reasonable doubt." It may be a philosophical question but it is one which troubles me about these preliminary trials. I can imagine myself as a trial judge saying to let the jury decide whether sergeant so-and-so uttered those words. The accused tells the judge it is his signature and he did use those words but only for the following reason. Is it right or reasonable in those circumstances that a judge, in order to let the jury decide that, has to determine beyond reasonable doubt that, in the accused's version of events given in evidence on a preliminary issue, he is lying through his teeth, that there is no truth whatsoever in it and there is no doubt that it is untrue? This raises a fundamental question about preliminary trials. If it is evident to a judge that the jury in the last analysis before going out to consider its verdict will have to consider whether sergeant so-and-so made that inducement or threat to the accused, why should there be as of right an application where, in order for the jury to consider that legitimate point, a trial judge has to throw out the version given by the accused on the criminal standard of proof beyond reasonable doubt?I may be mistaking something but I ask the question.
I suggest that already happens. It is already the case that when an accused goes to trial, it is open to him or her to challenge the evidence before the judge, in voir dire- in the absence of the jury - and to invite the judge to assess whether the evidence is appropriate to go before the jury. That two-step process, or the two bites of the cherry that Senator McDowell described, is a fundamental part of our system. We do not put evidence before a jury that is inappropriate, unsustainable in some way or prejudicial to a certain extent, given that any evidence the prosecution presents is likely to be prejudicial against the accused. That system is already in place.
We are trying to decouple the voir direhearing during a trial, which delays the trial in no uncertain times and discommodes all the actors involved, in order that we can do it in a much more time-efficient way in advance of the trial. Whether it is a month or a year in advance, it will mean that all those loose ends will have been tied up before getting to the trial. When the jury is empanelled and the accused is put into the charge of the jury, matters can then run smoothly and there will be much less disruption to the trial process once it has begun, meaning it will be less inconvenient to the jurors, the accused, the witnesses and the alleged injured parties.
I have no difficulty with that double bite at the cherry and the opportunity for the accused because that is exactly what happens already. We are just seeking to separate it in time.
Senator Ward is totally correct that that is the current practice, but I wonder about its correctness. If we are trying to speed up proceedings, we should not have mini-trials in advance of major trials where the jury will be asked to consider that exact point. That the Constitution guarantees a trial "in due course of law" is one thing, but it also guarantees trial by jury. It is very difficult for a person charged with a serious criminal offence to be in effect branded a liar at a preliminary stage in the trial by the trial judge who is going to deal with the case, and then to expect the trial judge to sit there impartially and stare at the ceiling when the same evidence is presented to the jury.
Furthermore, although this question may not be for resolution during this debate, how could a judge be satisfied beyond a reasonable doubt that a Sergeant McDowell did not say to a Mr. Ward that if he does not make a confession, the sergeant will do X or Y to the man's spouse or have his children brought into care that evening? How could a judge state, beyond a reasonable doubt one way or the other, whether that remark was made on the way into an interview room? If one person says that is exactly what the sergeant said, and the sergeant says he would never do anything of the sort, that he is an honourable member of An Garda Síochána and that that is an outrageous suggestion, what is the judge to do? Is he or she to say it is beyond a reasonable doubt that what he or she is being told did not occur, that there is no reasonable doubt and that he or she is satisfied it is an invention? Is he or she to say, because one person has stated A and the other person has stated B, and because there is no corroboration either way, that he or she will hold against the person making the allegation and say that, beyond a reasonable doubt, the person has invented that evidence? That is the standard, effectively, of allowing a statement to go in.
It may be that today is not the day to decide this, but perhaps the Bill should be amended to make clear that if a judge anticipates, on the basis of the evidence before him or her, that an issue is going to be decided by a jury one way or the other if the evidence is admitted, he or she may decide not to take that evidence away from the jury or put it before the jury by branding the accused a liar beyond a reasonable doubt.My view of this matter is that it is one for the jury proper. That is the proposition that has been worrying me. This Bill does not create that worry and it cannot address that issue unless there is some deeper philosophical thought about it. It seems to me that if, for instance, a statement is produced, which is signed by the accused and in the words of the accused, and they see the video of it and the only issue will be whether it was induced by a circumstance of this kind, it is not entirely unfanciful. I think Senator Ó Donnghaile will agree with me that such inducements can and would be made. They have been alleged to have been made frequently in the past, although it may be an easy allegation to make. I am uncomfortable with the notion that the implication of such a statement going to the jury is that the trial judge has already disbelieved the accused on his or her oath and has rejected the evidence, not simply as unlikely to be true on the balance of probability, but incapable of being true to the standard required of a reasonable doubt that nobody hearing it could believe it to be true. That, to me, is the wrong standard to apply to that kind of situation.
As Senator Ward rightly points out and Senator McDowell accepts, this already happens in court trials in regard to admissibility, probative value versus prejudicial value and a judge has to make those calls on the basis, sometimes, that if the evidence was allowed to go to the jury for it to decide, perhaps it may put the accused in a prejudicial position. Trial by jury is the cornerstone of our legal system. Its purpose is as a bulwark for the accused against a potential Government of tyranny. That is why we have a jury system. Senator McDowell speaks to a wider point that does merit discussion, although perhaps not in terms of this Bill, which is around whether we are trusting our juries less and less by getting into more technical preliminary hearings about what they should and should not hear. Nonetheless, the purpose of the preliminary hearings and allowing those applications is to ensure that the evidence that goes before the jury is the real evidence of the case and not evidence that may taint the jury in terms of its views and outlook. As the decades move on, we will get a better other understanding of psychology and how people think and the biases that people may.
I understand the Senator's argument and where he is coming from, but such hearings already happen. All we are doing in this Bill is facilitating these types of applications that happen in trials to be made in a more timely fashion and to allow trials to proceed in a more efficient manner.
The Special Criminal Court consists of three people. A member of that court - it may not be a member of the trial court, but that depends on the new rules of the Special Criminal Court - will have ruled a statement admissible. That judge is then going to sit with two other colleagues who are going to consider the same evidence, which is a starting position of one down. It is like an away goal in a soccer match. The court is one down before the trial starts if one judge has been the judge ruling in the preliminary hearing, especially in the case of a non-jury court.There is substance in what I am saying. I know it applies at the moment but at least the whole court decides it at the moment. People are now going to be in a position where they know that Mr. Justice Bloggs in the middle, or Ms Justice Bloggs in the middle, already rejected this evidence as a complete fabrication, and the two people on either side are being asked to effectively reverse that decision. It is a strange thing.