Pat Rabbitte (Dublin South West, Labour)
Link to this: Individually | In context

Question 497: To ask the Minister for Justice, Equality and Law Reform the progress made in regard to the commitment given in the Programme for Government to introduce means to ensure that criminal trials can no longer be collapsed because of legal technicalities and that this will include legislation and if necessary appropriate amendment to the Constitution. [19325/08]

Pat Rabbitte (Dublin South West, Labour)
Link to this: Individually | In context

Question 498: To ask the Minister for Justice, Equality and Law Reform the progress made in regard to the commitment given in the Programme for Government to introduce new pre-trial procedures to deal with admissibility of evidence to save overtime, and the time of jurors and the court. [19326/08]

Pat Rabbitte (Dublin South West, Labour)
Link to this: Individually | In context

Question 499: To ask the Minister for Justice, Equality and Law Reform the progress made in regard to the commitment given in the Programme for Government to introduce procedures in order that the defence should provide the prosecution with a list of intended witnesses and put structures in place to ensure that the prosecution is on notice of the points of defence to be raised by the defence in advance. [19327/08]

Dermot Ahern (Louth, Fianna Fail)
Link to this: Individually | In context

I propose to take Questions Nos. 497 to 499, inclusive, together.

The Deputy's Questions refer to Government commitments regarding the conduct of and procedures relating to criminal trials. The issues raised by these commitments were considered by the Balance in the Criminal Law Review Group, chaired by Dr. Gerard Hogan SC, which reported in March 2007 to the then Minister for Justice, Equality and Law Reform. In considering the disposal of admissibility issues pre-trial, the Review Group recommended that legislation be introduced to provide that admissibility issues may be determined prior to the swearing in of a jury on the first day of the trial. The Group considered that the present arrangement whereby a jury is sworn in before any admissibility issue is determined is illogical and inconvenient on a number of levels and is based on historical considerations which no longer apply.

The Deputy will be aware that a considerable disparity exists between the advance disclosure obligations of the defence and prosecution counsel in criminal cases. The prosecution is required to set out the precise details of the case they will seek to present and the conclusions which it will attempt to prove. The defence, in contrast, is not required to furnish any such information, with certain exceptions such as alibi evidence under Section 20 of the Criminal Justice Act 1984, witness information required under the Offences Against the State (Amendment) Act 1998 and evidence regarding the mental state of the accused under Section 19 of the Criminal Law (Insanity) Act 2006. The Review Group considered a range of options regarding defence statements, including models based on UK law. The Group concluded that, having regard to the difficulties of moving to a defence statement regime, the obligation on additional disclosure should be limited to expert and technical reports and witness statements of experts on which the defendant intends to rely.

The Government commitment to introduce measures to ensure that criminal trials can no longer be collapsed encompasses the majority recommendation of the Review Group concerning the exclusionary rule of evidence. The majority of the Group recommended that the strict exclusionary rule as articulated by the Supreme Court in 1990 in DPP v. Kenny should be recalibrated so that the court would have the discretion to admit unconstitutionally obtained evidence or not, having regard to the totality of the circumstances and in particular the rights of victims. The majority suggested, in the first instance, the approach of seeing whether a change in jurisprudence emerges following use of the more extensive opportunities for prosecution right of appeal which was provided by means of the Criminal Justice Act 2006. If such an approach does not bear fruit, the majority suggested various legislative options or possibly constitutional change. The majority recognised the legislative options examined would give rise to important constitutional issues. The Chair of the Group submitted a minority report. In it, he argues that change is unnecessary and, perhaps, undesirable.

In my view, the procedures mentioned by the Deputy are important and could have a significant impact on the conduct of criminal trials. As with all long established procedures relating to the criminal law, it is important that we consider the issues and implications very carefully before undertaking radical changes. However, that is not to say we should shy away from change where it is necessary. These matters are being examined in my Department at present in the context of the commitments made in the Programme for Government. We are fortunate in having the considered opinions of the Balance in the Criminal Law Review Group on the issues as a starting point for the examination.

The recommendations made by the Review Group are being examined by my Department. In the course of that examination, the views of the Office of the Attorney General and of the Office of the Director of Public Prosecutions will be sought. I am not in a position at this stage to say when the examination will be completed.