Committee Reports > List of Committees > Joint > 2004 > Committee on Justice, Equality, Defence and Women's Rights > Report No. 03 - Report on a Review of the Criminal Justice System

Tithe an Oireachtais

An Comhchoiste um Dhlí agus Ceart, Comhionannas, Cosaint agus Cearta na mBan

Tuarascáil maidir le hAthbhreithniú ar an gCóras Ceartais Choiriúil

Iúil 2004

Houses of the Oireachtas

Joint Committee on Justice, Equality, Defence and Women’s Rights

Report on a Review of the Criminal Justice System

July 2004

TABLE OF CONTENTS

1. Chairperson’s Preface

2. Other Members of the Joint Committee

3. Chapters:

A)Introduction.

B)The Nature of the Problem.

C)Witness Intimidation.

D)Speeding up Criminal Trials.

E)Structural, Resourcing and Operational Issues.

F)The Right to Jury Trial.

G)Criminal Law Offences directly related to Gangland Activity.

H)Prosecution Appeals.

I)The Criminal Justice Bill 2004.

J)Other Matters.

APPENDICES

Appendix 1: List of Members of the Joint Committee

Appendix 2: The Orders of Reference of the Joint Committee

Appendix 3: Details of Hearings

Chairperson’s Preface

The Joint Committee on Justice, Equality, Defence and Women’s Rights identified in November 2003 a number of issues concerning the criminal justice system in Ireland which needed to be reviewed in some detail. In particular, the questions of witness intimidation; victim support; how organized and gangland crime (drug-related or other wise) is dealt with; procedural and operational aspects of bringing criminal cases to trial; the right to jury trial; prosecution appeals and various other matters were brought to the attention of the Committee.

While it fully acknowledges that a large proportion of the system currently in place and the current application of the law of evidence works perfectly well, the Committee is of the view that where considerable public concern has been raised concerning aspects of that system, it is necessary to undertake a review process involving examination of the adequacy of legislative provisions, resource allocations and administrative practice to see whether and what changes are required and to consult with all appropriate persons and organisations working in, associated with, or being affected by, the criminal justice system.

The decision to hold hearings was timely in view of an announcement by the Minister for Justice, Equality and Law Reform that he intended to conduct a review of aspects of the criminal justice system and his encouragement to all members of the Oireachtas to actively participate in such a process.

By bringing together in a public forum most of the key players in the area of criminal justice and experts in the field, including academics, legal practitioners and members of the general public, the Committee helped focus attention on the most important aspects of the system requiring legislative, procedural or operational change. In this regard, the Committee would like to thank TG4 for televising the whole hearings process.

The Joint Committee also wishes to thank all those who responded to the invitation to lodge submissions on foot of newspaper advertisement and direct invitation and all those who were in subsequent contact with the Committee, including bereaved families. Thanks are also due to Mr. Paul Anthony McDermott B.L. for his assistance in researching and finalising this report.

In adopting this report, the Joint Committee intends to return to the issues raised therein and will continue to engage actively in working towards reforming those areas which have been identified as requiring modernisation, additional resources, and expansion. The Committee also continues to be aware of the need to balance rights and responsibilities in guaranteeing adequate support for the victims of crime and their families, while ensuring that accused and convicted persons are treated in an appropriate manner.

Signed

__________________________________

Mr. Sean Ardagh T.D.,

Chairman of the Joint Committee on Justice, Equality, Defence and Women’s Rights.

21 July 2004

OTHER MEMBERS OF THE JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS

Deputies:

Senators:

A) Introduction

1)The Joint Committee on Justice, Equality, Defence and Woman’s Rights has engaged on a consideration of the question as to whether there is a need for reform of certain areas of the criminal justice system arising out of public concern surrounding some recent events. In particular there was a public concern as to the ability of the criminal justice system to address the question of witness intimidation.

2)Written submissions were received from a large number of persons and organisations. A full list of the names of the persons and bodies who lodged substantive written submissions is to be found appended to this report. The text of those submissions is available on the Oireachtas website. Many of these submissions were extremely detailed and well thought out and the Joint Committee would like to sincerely thank all those persons who contributed by way of submission. The Joint Committee has carefully considered each of the written submissions that it received.

3)In addition to receiving the written submissions, the Joint Committee also heard from some of their authors. Public hearings were conducted on six days as follows:

The transcript of the public hearings is available on the Oireachtas website.

B) The Nature of the Problem.

4)The Joint Committee first wishes to point out that the current exercise was not intended to be a knee-jerk reaction to a particular criminal case or to particular persons who are suspected of criminal activity. The criminal justice system deals successfully on a daily basis with a huge number of cases, including those involving serious and organised crime, and it would be disproportionate because of difficulties in particular cases to suggest that the system has suddenly collapsed or otherwise been discredited. As the Bar Council pointed out:

“The vast majority of cases in which prosecutions are directed on indictment are successful as a result of pleas of guilty being forthcoming or convictions following a contested trial. It hardly needs to be said that the fact that a proportion of prosecutions will fail is in no sense a system weakness. To state the obvious, if all prosecutions succeeded then the initiation of prosecution by the DPP would be tantamount to a certification of guilt.”¹

The Joint Committee concurs with those comments.

5)A measured response rather than a quick fix solution is the preferred option. Indeed none of the submissions received suggested otherwise. It also appears that most people have confidence in the basic structure of our criminal justice system. For example Gerard Hogan S.C. stated that “it does not seem that the fundamentals of our criminal justice system need to be overhauled.”² In a similar vein the DPP submitted that “It is simply not the case that the entire criminal justice system is in crisis, although this is no reason to be complacent about the problems that we do face in tackling organised crime.”³ Almost all of the submissions focused on particular and specific changes that could be made within the existing system. However it is only right to record that not every submission agreed that the system is fundamentally sound. For example, Barry Galvin stated that “I believe that important factors that make up the system have survived from a different era and are no longer acceptable.”⁴ He submitted that “It is not an exaggeration to say that the existing odds are 80:20 against the prosecution. The current criminal justice system involves trial by ambush...”.⁵ If correct, this would certainly be a situation of some concern.

6)It is important to constantly review the criminal justice system and in particular to review how it is dealing with the particular challenges posed by criminal gangs who are mainly engaged in drugs related activities. These gangs are ruthless and will stop at nothing in order to avoid detection and apprehension. They are prepared to try to interfere with the justice system, for example by stopping other persons giving evidence against them. They need to be stopped.

¹ at page 1 of its written submission

² At paragraph 3 of his written submission

³ At paragraph 6 of his written submission

⁴ At paragraph 1.1.1 of his written submission

⁵ At paragraph 3.1.1 of his written submission

“Ireland was among the very first States who permitted individuals to bring individual petitions to the European Court of Human Rights, but in the intervening fifty years the fact that one Irish criminal case has come before the Court may be thought to provide its own tribute to the inherent quality and robustness of our system of criminal justice.”6

8)The purpose of the Joint Committee was to initiate serious public debate on what reforms are needed in certain areas. The hearings also tied in with the lead up to the publication of a new Criminal Justice Bill. The issues considered included:

9)It will be appreciated that the Joint Committee has certain limitations on what it can say. This is because of the need not to prejudice ongoing criminal cases or Garda investigations. Therefore the comments made have, by necessity, to be kept at a certain level of generality. Thus, nothing in this Report is intended to be, nor should be taken as, a comment on any particular person or case.

10)The Joint Committee has now heard from and read the submissions of a wide variety of persons, including key players in the area of criminal justice, criminal practitioners and academics and members of the general public. One thing that is clear is that there is no shortage of ideas out there or persons who have used their experience to come up with suggestions for reform. It is a sign of hope that there are so many persons out there who are engaged in serious and thoughtful reflection on how to improve the criminal justice system and who are prepared to give of their time so as to share those views with the legislature.

11)The Joint Committee agrees with the Law Society that “A responsible legal system is one that seeks to strike a balance between the rights of the accused, victims and witnesses. It is a hallmark of a civilised society and should be valued as such.”⁷ In drafting this report the Joint Committee has attempted to retain that sense of balance.

⁶ At paragraph 4 of his written submission

12)The European Convention on Human Rights was incorporated into Irish law by the European Convention on Human Rights Act 2003. The 2003 Act was passed on the 30 June 2003 and was commenced at the start of 2004. In its deliberations, the Joint Committee has borne in mind the rights of accused persons under the Convention. As the Irish Council for Civil Liberties pointed out, “It is a mistake to believe that the most effective measures to combat crime or protect vulnerable witnesses require a diminishing of the rights of suspects. On the contrary if the rights of suspects — who face the prospect of a criminal conviction — are not safeguarded only injustice can result.”8 However, it should not be forgotten that the victims of crime also enjoy human rights under the Convention. In fact the Convention sometimes requires positive measures to be taken. For example in X and Y v Netherlands⁹a 16-year old mentally handicapped girl was sexually assaulted by an adult male of sound mind. Due to a loophole in Dutch law he could not be prosecuted. This was because under Dutch law only the victim of the crime could register a criminal complaint, a rule that applied even where the victim was incapable of doing so due to her handicap. The European Court found that the absence of an effective criminal procedure was a violation by the Netherlands of its duty to secure respect for the victim’s private life under Article 8. The Court stated that Article 8:

“...does not merely compel the State to abstain from ... interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.”¹⁰ (footnotes omitted)

13)The Joint Committee also notes that the right to life under Article 2 of the Convention obliges the State to protect the general public from criminal attacks on their person. Sometimes the focus of human rights arguments is on the rights of the accused. There is nothing wrong with this. However the Joint Committee has also borne in mind the human rights of victims and witnesses.

14)Some submissions expressed the view that the current balance was too much in favour of the accused at the expense of the prosecution. For example the DPP stated that there are “... a number of areas of criminal law which I believe should be reformed and where in my opinion the balance has shifted too far in favour of accused persons and where the people, society as a whole, are not treated on a basis of equality with the defence. Most of these areas relate to procedural issues which have not received as much attention from law reformers in recent years as has the substantive law.”¹¹ In a similar vein Barry Galvin stated that:

⁷ At page 1 of its written submission

⁸ At para 1.5 of its written submission

⁹ (1986) 8 EHRR 235

¹⁰ (1986) 8 EHRR 235, para 23

“I have long been of the view that the Irish Criminal Justice System has failed to keep pace with changing trends in criminal activity to the great detriment of the public. At the outset, I wish to make it clear that I am firmly of the view that there is no quick fix for the problems which now exist. I believe that the level of criminal activity that exists here is unacceptable high, having regard to the socio-economic background of Ireland, that is to say, a relatively small and law abiding population residing on a small island with only one large cosmopolitan area. There is a serious culture of substance addiction to both drink and drugs, there has been a long-festering environment in which criminals have been allowed to flourish. There has been too much dependence on a drink/pub culture at the expense of effective programmes to foster education, sporting and social activity in young people. There has been an overwhelming failure in the area of young offenders and juvenile crime.”12

Finally, the submission from the Association of Garda Sergeants and Inspectors suggested that “the scales of justice are now firmly down on the side of the offender to the detriment of victims, witnesses and jurors.”¹³

15)The Joint Committee takes such comments seriously and has borne them in mind when reaching its recommendations.

16)Other valuable work has been done in this area. In particular the Joint Committee notes the report of the Working Group on the Jurisdiction of the Courts which reported last year, making certain recommendations in relation to the allocation and distribution of serious criminal cases between the Circuit Court and the Central Criminal Court. There is a useful summary of recommendations of the Working Group that are relevant to the Joint Committee’s deliberations to be found as appendix 1 to the written submission of the Courts Service. The Joint Committee also recognises the valuable contribution that the Law Reform Commission has made to some of the areas under discussion.

¹¹ At paragraph 8 of his written submission

¹² At paragraph 1.1 of his written submission

¹³ At page 3 of their written submission

20)Many of the submissions before the Joint Committee suggest that whilst witness intimidation is not a widespread problem, it does cause huge public concern where it is suspected to have occurred. For example the Garda Commissioner stated that “It is my experience that witness and juror intimidation is not widespread in this jurisdiction. There are many thousands of successful prosecutions taken before our courts each year without any suggestion of witness intimidation. Unfortunately the problem does arise on occasions.”14 Not every submission agreed that intimidation was not widespread. For example, Victim Support stated that “While there is little empirical evidence for the Irish experience, figures for the U.K. suggest that around 10% of cases fail because witnesses do not show up. In certain areas such as Manchester, more than half of all recorded murder cases fail to secure a conviction because of widespread witness intimidation and coercion.”¹⁵ The Joint Committee is not in a position to express any firm view on the extent of witness intimidation that occurs in Ireland. However given the small size of the population and the amount of public concern about it, the Committee believes that it would be rational to see if the law can be altered to try to address the issue. Indeed the State is obliged to protect witnesses. As the Irish Council for Civil Liberties observed:

“It is important to acknowledge that protection of witnesses must begin right at the beginning of the investigative process and not focus simply at the trial stage. The government does have a duty under the ECHR to put in place a system to safeguard the life, liberty or security of witnesses, and there is an obligation on the government to organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled.”¹⁶

The Joint Committee recommends that, in accordance with the Government’s duty under the European Convention for Human Rights to safeguard the life, liberty and security of witnesses, the protection of witnesses must begin right at the beginning of the investigative process.

Addressing the problem

21)The Irish Council for Civil Liberties suggested that protecting witnesses requires having in place practices which will be able to identify the possibility of witness intimidation at an early stage. There should be clear protocols for witness liaison and support. Witnesses exposed to intimidation should be provided with clear information of what to do if they do feel intimidated, and should have a clear and accessible point of contact in the event of intimidation. These appear to be sensible and practical suggestions.

¹⁴ At page 2 of his written submission

¹⁵ At page 3 of its written submission

¹⁶ At paragraph 3.5 of its written submission

24)It is clearly impossible to eradicate all of these sorts of witness intimidation through law reform. There are social and cultural issues which have to be addressed, especially in the case of witnesses to criminal activity refusing to come forward to make statements to enable proceedings to commence. The submission of the Probation and Welfare Service was particularly valuable in identifying some of the social problems that have led to the current strength of criminal gangs. These include the existence of second generation criminal families in certain urban areas, the arrival of drugs and the existence of young males who leave school early and who are unemployed and disadvantaged. They also pointed out that there is an environment of exclusion and a climate of fear generated within the drug culture. Dr. Paul O’Mahony made useful the point that “It is also worth remembering that most of the intimidation in this country occurs within the context of a community where the intimidated and the intimidators are known to each other. The most widespread experience of intimidation is related to low level criminal activity and vandalism.”17 He suggested a strategy of “energetic, constructive and sympathetic community policing is essential to long-term success in maintaining the rule of law and respect for the law in the case of both immigrant groups and the socially excluded and deprived sectors of the Irish populace.”¹⁸ Deputy Finian McGrath suggested that the most disadvantaged schools in Dublin, Cork, Limerick and Galway should be targeted with extra resources particularly counselling and family therapy sessions. In his oral presentation on behalf of the Human Rights Commission Michael Farrell stated that there are some areas “where there appears to be a code of conduct within the criminal fraternity of not vindicating their grievances in court.”¹⁹ The Joint Committee acknowledges and accepts that any solution to public disquiet about crime must address the relevant cultural and social issues in addition to addressing law reform. The Irish Council for Civil Liberties furnished the Joint Committee with a Report from the Center for Court Innovation on Community Court Principles. The Joint Committee notes the apparent success that such a court has had in New York and would be interested to see if such a model would be suitable for Ireland.

¹⁷ At paragraph 4 of his written submission

¹⁸ At paragraph 5 of his written submission

25)As the Bar Council pointed out there are a number of reasons why a witness might fail to swear up or might resile from a statement:20

On behalf of the Bar Council Shane Murphy S.C. made the valuable point that one of the problems is that in many cases witnesses who are subject to intimidation will not admit this fact. Therefore one does not have a complaint of intimidation. What one does have is a witness who, without warning, begins to change his or her direction. He stated that:

“It is where the Garda has a concern that witnesses may be subject to intimidation that we think it is important that this pre-trial facility of deposition should be available to ensure the witness cannot resile from his or her appearance, whether he or she was on drugs at the time, in bad health, or under pressure. All of these are often very subtle influences brought to bear with the result that in many cases, contrary to what one might expect, intimidated witnesses make no complaint because they do not dare. In the circumstances it is really a question of seeing whether the legislation can be provided in a format which will enable the prosecuting authorities to investigate and deploy it at an early stage.” ²¹

¹⁹ Transcript, 2^nd December 2003, page 16

²⁰ At page 2 of its written submission

²¹ Transcript, 2^nd December 2003, page 40

26)To date it has been a fundamental principle of the law of evidence that out of court statements made by witnesses are not admissible in court as evidence of the truth of the facts stated in those statements. The main exception to this from the prosecution’s point of view is where an un co-operative prosecution witness is declared by the Court to be a hostile witness. Such a witness may be cross-examined about statements that they may have made prior to the case. However such cross-examination only goes to the credibility of the witness; the out of court statements do not become evidence in their own right. This was established in the leading Irish case on the topic, The People (AG) v Taylor22 where Mr. Justice Walsh stated that:

“It must at all times be made clear to the jury that what the witness said in the written statement is not evidence of the fact referred to but is only evidence on the question of whether or not she has said something else — it is evidence going only to her credibility.”

27)Thus, the bottom line in such a case is that the credibility of the hostile witness may be destroyed by pointing to prior inconsistent statements but the truth of the facts in those prior inconsistent statements are not admitted as evidence against the accused. The hostile witness procedure is therefore of little practical use to the prosecution which may be left in a position where it has little or no evidence against the accused and so must collapse the trial. This is even more so in a case where numerous witnesses turn hostile.

28)The Bar Council submission explained the rationale for the traditional common law approach:

29)Notwithstanding the strength of this rationale a number of submissions suggested that the current rule should be altered.

²² [1974] IR 97 at 100

30)The Canadians have developed the law in this area in an instructive way. In R v B (KG)23 the Supreme Court of Canada held that earlier statements which had been recorded in a police station could be admitted into evidence when the witnesses subsequently recanted their earlier statements. The governing principles for the admission of such a statement are to be the reliability of the evidence and its necessity. As a threshold, the prior inconsistent statement will only be admissible if it would have been admissible as the witness’s sole testimony. This is determined in a preliminary hearing in the absence of the jury. The Supreme Court of Canada held that sufficient circumstantial guarantees of reliability might include:

31)Many of the submissions received by the Joint Committee were in favour of greater reliance, where appropriate, of video evidence as a means of addressing the problem of witness intimidation. The Bar Council suggested that a video of a witness statement made in Garda custody could be used in the case of a witness who is subsequently claiming to have no memory of the statement, subject to the proviso that the witness would be made available for cross-examination by the defence. Alternatively a pre-trial video-taped deposition on oath could be taken from a witness in the District Court. Whilst a mechanism for taking depositions currently exists under the Criminal Justice Act 1999, it can only be done after the return for trial and can only be done on video in very limited circumstances. The Bar Council have suggested that it should be possible to take such a deposition before the return for trial and indeed possibly prior to the stage when an accused has even been charged. Victim Support stated of video evidence that “It is an interesting and valuable tool that should be used in Ireland, but must only be allowed in certain circumstances, particularly when ‘witness amnesia’ is widespread throughout [a] case. If the current delays in a trial reaching court are adequately addressed, however, the need for video tape evidence may also diminish.”²⁴ Gerard Hogan S.C. showed that in the USA and Canada the law has moved towards admitting into evidence out of court statements in certain circumstances. He also pointed out that it is sometimes overlooked that confessions of the accused which are made out of court are already admissible in Irish law. He concluded:

²³ [1993] 1 SCR 740

²⁴ At page 6 of its written submission

“... it seems to me that there are sound reasons for amending [the rule against admitting out of court statements in evidence] provided that the Oireachtas moves cautiously in changing the rule. The rigid rule of exclusion was never justified on principle and, such justification as it had, has been eroded by technological and other developments. If, for example, the declarants were video-taped when making their statements implicating the accused, it would provide a potentially important safeguard. If the rule is to be changed, I suggest that the Oireachtas should provide that the trial judge must warn the jury of the dangers of acting on the evidence of a witness who has made inconsistent statements.”25

32)The DPP’s view of the Canadian position was in the following terms:

“Although I think that this might be a desirable reform, and one I would support, I think it is important to emphasise that it would be likely to be of value in only a limited class of cases, those where a witness makes a statement and subsequently retracts it. It would do nothing to address the problem of the witness who refuses to make a statement at all, or who will deal with the police only on the basis of confidentiality, that is, who will make a statement to the police for their information only but not for use in court proceedings. However, the fact that the number of cases where it would be useful is small is not a reason not to adopt it.”²⁶

In his oral submission the DPP estimated that if we had a Canadian type rule here “we would perhaps run one or two cases we would not otherwise run each year.”²⁷ It is important to bear this in mind when considering the impact that any change in the law in this area might realistically be expected to have.

33)The Law Society stated that it “believes that all interviews with accused persons should be videotaped and preserved for trial, without exception.”²⁸ The Joint Committee encourages the use of video tapes in interviews with accused persons. Whether or not it should be compulsory is a matter which requires further analysis.

34)Some submissions urged caution in any use of video evidence. Dr. Paul O’Mahony stated that “There is, I believe, no scope for giving police witness statements —even those made under oath or videotaped — precedence over current contradictory statements made in court and open to cross-examination.”²⁹ Ivana Bacik B.L. stated that “Unless there is a pressing need for change in the law, which cannot be met through other changes in the system to provide greater supports to witnesses, it is argued that changing Irish evidential rules to allow in such statements is unnecessary.”³⁰ The Human Rights Commission commented that:

²⁵ At para 18 of his written submission

²⁶ At paragraph 22 of his written submission

²⁷ Transcript, 8 December 2003, page 13

²⁸ At page 4 of their written submission

²⁹ At paragraph 2 of his written submission

“We would urge caution before making such a radical change in our law. Firstly, we must bear in mind that the retraction may be genuine and secondly, there is already provision in our law for taking depositions before trial from witnesses whom it is feared may not give evidence. This procedure is not ideal, but it preserves more of the traditional safeguards, like live cross-examination, than the Canadian model. It should be thoroughly tested before taking more drastic measures.”31

35)The Garda Commissioner questioned why the Gardai still have to take a long-hand note of an interview that is being video-taped. He also suggested that provision should be made to permit the swearing of witnesses in another jurisdiction and the taking of their evidence by way of video link. This could be done in serious criminal cases where a witness is unwilling to travel from abroad due to fear of intimidation.

36)The Minister for Justice, Equality and Law Reform, Michael McDowell T.D. stated in his written submission that he was carefully studying the Canadian approach and if he was satisfied that it would offer a solution to the problem at issue he would bring forward legislative proposals in this respect. The Joint Committee notes that Part 3 of the recently published Criminal Justice Bill 2004 provides for the admissibility of prior inconsistent statements by witnesses based on the principles applied by the Canadian Supreme Court. The Bill provides that where a person is sent forward for trial in relation to an arrestable offence, a relevant statement made by the witness may be admitted as evidence of any fact contained in it if the witness is available for cross-examination but refuses to give evidence, denies making the statement or gives evidence which is inconsistent with it. The Court must consider various factors when deciding on the admissibility of the statement such as if the witness confirms it or it is proved that they made it, satisfaction by the court that direct oral evidence of the facts in the statement would have been admissible in court as evidence, that it is voluntary, reliable, and that it was given on oath or affirmation or contains a statutory declaration by the witness as to its truth or the court is satisfied that the person understood the requirement to tell the truth. The Joint Committee recommends that we continue to analyse this area closely.

Codifying the law on contempt and perjury

37)It is useful to commence by briefly summarising some of the existing offences that might be relevant in the area of giving evidence. Making a false statement to the Gardaí is already an offence under s 12 of the Criminal Law Act 1976. Contempt of court and perjury are common law offences. Section 7 of the Criminal Law Act 1997 created an offence of impeding the apprehension or prosecution of a person who has committed an arrestable offence. Section 9 of the Offences Against the State (Amendment) Act 1998 makes it an offence to withhold information in certain circumstances.

³⁰ At page 7 of her written submission

³¹ At point 2 of their written submission

38)One suggestion made by the Law Society is that the common law offences of contempt of court and perjury be codified in legislation. The Bar Council has also suggested that contempt of court and is “in need of legislative attention”.32 In its written submission Victim Support stated that “laws governing perjury and contempt (now on a common law footing) must be written into statute with potentially severe penalties attached.”³³ Not everyone agrees with the use of such offences as a means of dealing with witness intimidation. Dr. Paul O’Mahony made the point that “The State should be slow to charge a threatened person with perjury or making false statements under oath, when it is unable to guarantee that person’s freedom and safety.”³⁴ Ivana Bacik B.L. examined the Canadian position and came down against any change to the substantive law, stating that “It would be greatly preferable to introduce practical supports for witnesses facing potential intimidation, such as courtroom screens or restrictions on media reporting, and to develop protocols to ensure that witnesses are kept informed of the prosecution process by gardaí, in liaison with prosecution lawyers. This support-based approach would also be more in keeping with the principles expressed in the Council of Europe Recommendation No R(97)13 on the Intimidation of Witnesses and the Rights of Defendants.”³⁵

39)The Joint Committee notes that the Expert Group on the Codification of the Criminal Law, which was established by the Minister for Justice, Equality and Law Reform, is currently considering the possibility of codifying the criminal law.

40)The Joint Committee recommends the codification of the law on contempt and perjury.

41)In addition the Joint Committee also recommends that the scattered provisions that currently exist in relation to the giving of evidence should be consolidated into a single statute.

Other measures

42)The Bar Council has suggested in its written submission that the Oireachtas consider the following:

³² At page D of its written submission

³³ At page 4 of its written submission

³⁴ At paragraph 1 of his written submission

³⁵ At page 4 of her written submission

“Victims are the forgotten people in society. Our system of justice relies on victims reporting crime, and many victims expect to see justice done in some way. A summons puts the fear of God in people, especially those from a rural background. When people receive a summons, that does not exactly convey confidence to the victim who must appear as a witness. Victims look to the criminal justice system for fairness and they do not always get fairness or justice.”36 Victim Support called for “an established, organised and dedicated family Liaison Officer scheme for victims of crime, particularly for families of murder victims and victims of serious sexual assault.”³⁷ Victim Support also called for steps to be taken to reduce witness/victim anxiety about court appearances and suggested:

44)Victim Support stated that it was its experience that witnesses and victims are currently not given sufficient escort facilities to the Central Criminal Court. It records that its volunteers have had to physically separate victims from hostile defendants outside of the Four Courts. Victim Support emphasised that Garda escorts are particularly important when witnesses are travelling by train from other parts of the country and stated that it was their experience “that the victim, his or her family, the defence witnesses, and the witnesses for the State may all be travelling on the same train together day after day of the trial.”³⁸ Victim Support gave the following account of one witness’ story:

“Victim Support recently helped a key witness (the mother of a murder victim) who was elderly, disabled, and mentally fragile. She was left to her own devices procuring transport to and accommodation in Dublin. The defendant pleaded, and she was left with no transportation back home in a distant county and did not have the financial resources to take public transportation. Our Victim Support volunteer eventually drove her the two hours to take her home. This is but one of the many, many instances where victims/witnesses feel they are abandoned by the system.”³⁹

³⁶ Transcript, 28^th November 2003, page 11

³⁷ At page 7 of its written submission

³⁸ At page 4 of its written submission

45)Victim Support added that “Each accusation of intimidation must be taken seriously and efforts must be made to prosecute for intimidation, including a systematic processing and recording of any instance of intimidation reported to the Gardaí. It is Victim Support’s experience that this is often not the practice.”40

46)On behalf of the Bar Council Shane Murphy S.C. made the innovative suggestion that thought be given to extending the power of the subpoena served on every witness in a criminal trial to direct the person not only to come to court, but to follow the directions of the judge to sit in a particular witness room, to come to court in the way directed by the court and to avail of transport to be provided to and from the court. This removal of choice in respect of those matters would actually protect witnesses who would not then be seen by their community to isolate themselves but would be able to say that they were simply obeying the order of the court by, for example, taking secure transport to the court each day. In other words, it would enable witnesses to avail of the protection offered by the State without being seen by their community to have voluntarily relied on the authorities. The Joint Committee considers this a very interesting proposal and one which merits further investigation.

47)The Irish Prisons Service set out the efforts that it makes to segregate and protect prisoners where this proves necessary. It stated that it thought that there was little benefit to be gained from putting in place elaborate prisoner security categorisation systems such as are used in the U.K. It considered that the current informal system is more appropriate in a small jurisdiction such as this, whereby with close collaboration between the various agencies high and lower security prisoners are identified and transferred appropriately.

48)The Association of Garda Sergeants and Inspectors made the interesting suggestion that where a witness turns hostile a trial should be adjourned rather than aborted, as frequently happens at present, so that the intimidator is not rewarded and the Gardaí have an opportunity to investigate the circumstances surrounding the change of evidence by the witness.

49)The Bar Council pointed out that in the U.K. legislation has been introduced giving rise to the possibility of having an acquittal quashed when it seems that it has been the product of intimidation.⁴¹ Given our constitutional framework this is an area which would have to be approached with considerable care.

³⁹ At page 8 of its written submission

⁴⁰ At page 4 of its written submission

⁴¹ See s 54 of the Criminal Procedure and Investigation Act 1996

“Victim Support recently supported a family whose son was murdered. It took five years for his trial to reach the Four Courts due to three previous delays (no courtroom available, no judge available). By the time the trial got underway, a shared refrain by all testifying witnesses — both State and defence witnesses alike — was that five years is a long time and memories had faded.”42

In its oral presentation Victim Support graphically explained that from a victim’s perspective “one has the sword of Damocles hanging over one’s head if one is waiting for a trial to take place.”⁴³ On behalf of the Bar Council Shane Murphy SC emphasised the invidious nature of delay in getting a trial started:

“Part of the problem is that the current system seems to have frailties with regard to how individual witnesses are isolated and feel isolated from the process after they have made their witness statement. The biggest single contribution to that isolation is the delay between making the statement and arriving in court to give evidence. In some cases it can be more that two years. That is a long time for somebody to have to sit quietly, day after day, thinking about the evidence and the consequences of giving evidence. To accelerate that process would be the single biggest contribution to reducing the fear factor that might otherwise apply.”⁴⁴

55)Obviously some delay is unavoidable. As pointed out by the Bar Council in its written submission, there has to be a thorough investigation of offences and there must also be time for pre-trial legal procedures which have to be undertaken before the trial is ready to proceed. However any delay over and above what is reasonably necessary is clearly a matter of concern to the Joint Committee.

⁴² At page 5 of its written submission

⁴³ Transcript, 28^th November 2003, page 14

⁴⁴ Transcript, 2^nd December 2003, page 44

“The average waiting time for a trial in the Central Criminal Court was up to 18 months at the end of 2002. In order to reduce this delay, extra sittings of the Central Criminal Court were held during September 2003. Up to 5 High Court Judges sat each day and 24 murder and rape trials were disposed of in that month. As a result, the waiting time for a trial in the Central Criminal Court is now 12 months.”45

57)Whatever the average position may be there are clearly huge problems in particular cases. As the DPP pointed out “There are cases which have been in the list for 4 or 5 years.”⁴⁶ In his oral submission he estimated that “between one quarter and one fifth of all cases that are listed are not reached and are delayed once more.”⁴⁷ This is a most sobering figure. The Irish Council for Civil Liberties considered the possible legal consequences of this situation:

“It should be recalled that on 30 July 2003 the European Court of Human Rights in the case of Doran v Ireland found Ireland to be in violation of Article 6 for a delay in the length of civil proceedings. In the case of criminal law, a speedy trial is more urgent and is an integral element to the right to fair trial. Under the ECHR the State is responsible for organising its system for the administration of justice to ensure that there are not unjust delays, and lack of resources will not be considered a sufficient defence.”⁴⁸

58)The Minister for Justice, Equality and Law Reform stated in his written submission that the time scale involved in criminal cases remains of concern to him and that he would welcome any views that the Joint Committee would have in this respect.

59)A number of factors can be identified as causing this delay and these will now be considered.

Insufficient judicial resources

60)There appears to be an in-built break in the current system in that there are not enough judges to deal with all of the criminal cases that are waiting to be heard. It is not uncommon for a case which is listed for hearing for a particular day not to begin simply because there is no judge available to hear the case. This seems to be a particular problem in the Central Criminal Court, which is the venue where the most serious crimes are currently tried. The Law Society noted that as of November 2003 there were eight High Court and Circuit Court judges serving on Tribunals of Enquiry and Commissions. It presented the startling statistic that:

⁴⁵ At page 3 of its written submission

⁴⁶ At paragraph 23 of his written submission

⁴⁷ Transcript, 8 December 2003, page 8

⁴⁸ At paragraph 2.14 of its written submission

“No later than last Tuesday, 25^th November, 2003, some 350 criminal cases were adjourned to March, 2004 in Wexford District Court because there was a backlog of some 66 family law cases due to be heard.”49

61)The Law Society concluded that “... the appointment of more judges and crucially, a commensurate number of support staff to deal with the increased workload, would have a significant impact on the delays which the system is so often prey to at present.”⁵⁰

62)The Bar Council also drew attention to the problem of delay in its written submission and stated that it was necessary to ensure “that there are a sufficient number of available judges with sufficient criminal expertise to deal with the numerous serious criminal trials that are awaiting a trial date.”⁵¹ The need to avoid delay was also referred to in the written submission of the Probation and Welfare Service and Ivana Bacik B.L. referred to “the appointment of enough judges”.⁵² The DPP stated that “The deployment of three additional judges to the Central Criminal Court would immediately reduce the average waiting time substantially and would clear the backlog altogether within a couple of years.”⁵³

63)In September 2003 five to six High Court judges sat during what would be the normal court vacation to help clear the backlog. The Joint Committee wishes to take this opportunity to acknowledge the efforts of those judges. However a longer term solution to the problem is necessary.

64)In terms of the cost of appointing extra High Court judges the DPP observed that “... the present delays are a source of unnecessary financial expense to the State since counsel have to be paid for cases listed which do not get on, and this in an average year could amount to 250,000 in fees to the prosecution and in payments to the defence on legal aid....”⁵⁴

65)The Joint Committee does recommend that more judges and support staff be appointed specifically to clear up the current back-log of criminal cases. We welcome the fact that the Civil Liability and Courts Bill 2004 provides for the appointment of more judges to the courts. We also welcome the fact that the submissions on this issue made to the Joint Committee have fed into the legislative process and are reflected in the Bill.

⁴⁹ Page 5 of Law Society Submission

⁵⁰ At page 4 of their written submission

⁵¹ At pages 5-6 of its written submission

⁵² At page 5 of her written submission

⁵³ At paragraph 26 of his written submission

⁵⁴ At paragraph 26 of his written submission

69)The Law Society of Ireland suggested that delays could be reduced if a form of case management were introduced for criminal trials as happens in some other countries.55 It gave the example of a “Plea and Directions Hearing” in the U.K. the purpose of which is to identify the issues between the parties, establish the pleas of the defendants, assess the likely duration of the trial and the likely time-scale for the case to come to trial readiness. It provides a forum for parties to indicate legal issues which may arise at the trial, establish what expert or unusual evidence will be called by either side, make provision for the television/video facilities necessary for the trial and generally aims to have the business of the Court as well organised as possible.

70)Victim Support stated that “As in the UK, a deadline should be statutorily set for the trial to begin once a defendant is charged and the prosecution is ready to proceed. This should be no more than six to eight months.”⁵⁶

71)The Joint Committee notes that the Working Group on the Jurisdiction of the Courts has recommended that a preliminary hearing should be introduced in all cases on arraignment.⁵⁷ The object of this procedure would be to both reduce trial time lengths by facilitating agreement on non-controversial evidence, minimise the interruptions to trials caused by motions on legal issues and facilitate the making of pleas at an earlier stage than at present, thus freeing up judicial resources for trial work. The preliminary hearing would have the following functions:

⁵⁵ At page 4 of their written submission

⁵⁶ At page 5 of its written submission

⁵⁷ The Criminal Jurisdiction of the Courts (May 2003), pp 203-206

80)The Irish Prisons Service set out the practical problems that the physical layout of Irish courts pose for them in terms of the transfer of detainees to and from court. It stated that “With regard to the Four Courts complex in Dublin, it is difficult to transfer prisoners from the various holding cell locations to the relevant criminal courts given the locations of the criminal courts within the complex and the nature of the building itself. In addition, there is no adjacent ‘drive in’ area for prison vehicles to deposit prisoners.”58

81)The Law Society drew the Joint Committee’s attention to the Laganside Courts Complex which has recently been completed in Belfast. This highly successful building comprises sixteen courtrooms with facilities offering high flexibility and also houses offices for the DPP, witness support and victim support, together with child and vulnerable and special witness areas. The design of the building has succeeded in keeping key players such as judges, jury, defendants, victims and witnesses apart as far as possible. As the Law Society pointed out, this “compares very favourably to the current system in the Four Courts, and indeed many court buildings around the country, where judges, jury members, defendants, witnesses and victims often circulate in the same areas, by virtue of the design of elderly court buildings.”⁵⁹ Indeed, the DPP put the matter even more starkly when he suggested that it is not an overstatement to say that the layout of the courts in Dublin actually facilitates the intimidation of witnesses. ⁶⁰

82)Other benefits of a dedicated criminal court complex include:

83)The Joint Committee noted with interest the Report of the U.K. Comptroller and Auditor General on the Laganside Courts dated 4^th June 2003 which was appended to the written submission of the Law Society.

⁵⁸ At page 4 of their written submission

⁵⁹ At page 6 of their written submission

⁶⁰ At paragraph 28 of his written submission

“The Service proposes to develop a Criminal Court Complex in Dublin in the vicinity of the Four Courts which would cater for all Criminal District, Circuit and Central Criminal Court business. It is hoped to develop this complex by way of a Public Private Partnership and a business case is being prepared at present. It is envisaged that this would be a 16 courtroom facility with all the ancillary facilities necessary to conduct criminal business e.g. separate circulation areas for the judiciary, staff and the public with dedicated holding cell area with separate private access to and from courts for prisoners. Adequate consultation rooms and accommodation for legal practitioners will be provided. Victim Support facilities will also be provided and there will be a dedicated jury assembly area with dining facilities. The building will be fitted with the latest technology and a number of the courtrooms will have Video Conferencing facilities and all courtrooms will have Digital Audio Recording.”61

85)The Joint Committee recommends that current plans to build a Criminal Courts Complex be implemented at the earliest possible opportunity. We note that when the Minister for Justice, Equality and Law Reform appeared before us on the 16^th June 2004 in respect of the Estimates for Public Services for 2004 he stated that “Planning is commencing on a new criminal courts complex for the Dublin area which will house all criminal courts in one single courts complex. I understand it is likely to be located on a new site at the junction of King’s Bridge and Parkgate Street, this side of the Phoenix Park. It is a very exciting PPP project which looks as if it will be a great success.” The Joint Committee welcomes this development and urges a speedy implementation of it.

⁶¹ At page 7 of their written submission

88)The submissions received revealed little enthusiasm for greater use to the Special Criminal Court . The Minister for Justice, Equality and Law Reform stated that “It is difficult to see how any change in the already extensive power of referral of the Director of Public Prosecutions to the Special Criminal Court could serve any purpose.”62 The Law Society stated that it “is opposed to any measure which would detract from the right to jury trial, would widen the use of non jury courts, or would create specific offences triable other than before a judge and jury”. ⁶³

89)The Bar Council also urged caution in this regard:

“any changes in evidential law rendering the prosecution burden of proof easier to discharge in a criminal trial should be viewed with extreme caution. From the point of view of the Irish Constitution and the European Convention, such provisions potentially breach fundamental guarantees such as the presumption of innocence, the right to silence and the requirement of proof beyond all reasonable doubt and will be carefully scrutinised by the Courts for compatibility with the Constitution and the European Convention.” ⁶⁴

90)The Human Rights Commission stated that:

“Jury trial is laid down in the Constitution and is a corner stone of our justice system. If there is a significant problem of jury intimidation — which has not been established — there are many measures which could be taken to protect juries without doing away with jury trial. These range from simply assembling the jury at a location other than the courts and transporting them to and from the court so as to prevent them being followed. Other measures would be anonymity when the jury is being selected or in extreme cases shielding them from the public in court. Such measures have been used in other countries and should certainly be tried here before abandoning a core value of our justice system.”⁶⁵

⁶² At page 3 of his written submission

⁶³ At page 5 of their written submission

⁶⁴ At pages 14-15 of its written submission

“The sending of organised crime cases to the Special Criminal Court would avoid jury intimidation where this is or is likely to be a problem, but sending a case to the Special Criminal Court will not supply evidence where this is lacking. Nor is such a reference likely to avoid the possibility of witnesses refusing to give evidence because of fear or intimidation.”66

92)The Joint Committee also notes that there is a discussion on the use of the Special Criminal Court to deal with organised crime in the Report of the Hederman Committee to review The Offences Against the State Acts, 1939-1998 and related matters⁶⁷.

93)The Joint Committee recommends that the central position that a right to trial by jury has in this jurisdiction be maintained. It does, however, recognise that there are occasions when a trial by a non-jury court may be necessary in order to protect the integrity of the criminal justice system.

⁶⁵ At point 4 of their written submission

⁶⁶ At paragraph 14 of his written submission

⁶⁷ (Dublin, May 2002); see pages 224-226. A majority of that Committee was of the view that the threat posed by organised crime alone is sufficient to justify the maintenance of the Special Criminal Court.

96)Several submissions considered the introduction of criminal law offences directly related to gangland activity. Ireland already has sophisticated and stringent laws to deal with terrorist groups. Whilst the Offences Against the State Acts 1939 to 1998 are sometimes criticised as being draconian or in the nature of emergency legislation, Gerard Hogan S.C. has pointed out that such legislation “does no more than give the Gardaí the type of powers to deal with serious crime which is standard in other European countries.”68

97)It is fair to say that, whilst not being dismissive of the idea, many of the submissions received identified real difficulties in creating such an offence.

98)The Bar Council submission doubted whether the terrorist analogy could be extended to criminal gangs:

“The organisations involved [in terrorism] are paramilitary groups, oath bound, operating under a Constitution and Standing Orders. In contrast those involved in organised crime or gangland activity would usually be much more informal, much more unstructured and much more unregulated in nature. The obstacles to creating an offence such as being the member of a criminal gang are very considerable and probably insurmountable. Even if such an offence was to be legislated for it is far from clear how it would add to the armory of the State. If there is sufficient evidence available to justify a conviction beyond reasonable doubt for the offence of membership of a criminal gang then we would imagine that the same evidence would provide scope for prosecuting for substantive offences or at the very least inchoate offences such as conspiracy.”

⁶⁸ At paragraph 6 of his written submission

99)Ivana Bacik B.L. examined in detail the Canadian provision which was enacted in 1997 in the wake of violent events around a turf war between two gangs in the province of Quebec.69 This section introduced the concepts of “criminal organisation”, “criminal organisation offence” and “participation in a criminal organisation offence”. It expanded investigative powers for the police, by, for example, facilitating the use of electronic surveillance. It also reversed the onus of proof for persons charged with a criminal organisation offence in seeking bail. A criminal organisation is defined as a group that is composed of three or more persons, and that has as one of its main purposes or activities the facilitation or commission of a serious offence. Participation in a criminal organisation offence is an indictable offence punishable by up to five years in prison. Commission of an offence for a criminal organisation is punishable by up to 14 years in prison. Instructing the commission of an offence for a criminal organisation is subject to a maximum penalty of life imprisonment. Ms Bacik noted that there have been some criticisms of this provision in Canada and suggested that “Further consideration of the critiques, and of the actual effectiveness of this measure, would clearly be necessary before any similar provision could be considered here.”⁷⁰ She also noted that the Report of the Committee to Review the Offences Against the State Acts in 2002 recommended the narrowing of the definition of conduct of an unlawful organisation to confine it to the subversive context. She was against the introduction of any new “criminal organisation” offence in this jurisdiction.

100)The DPP also set out the technical difficulties with regard to any such offence. He questioned whether criminal gangs have the necessary characteristics to be regarded as organisations. For example, they are unlikely to have formal rules or procedures and may be somewhat amorphous bodies. They may come together for only one crime. They may not even have a name other than the name of their leader and may be difficult to describe or define. They will generally have no objective other than to make money.

101)The Minister for Justice, Equality and Law Reform also drew the Committee’s attention to the difficulties presented by any attempt to outlaw membership of a criminal gang. Organisations such as the IRA are well known, have a clear agenda with a certain fixity of organisation and structure. In reality it is a matter of fact whether a person is a member of such an organisation or not. A criminal gang is not likely to have any such permanency or organisation or specificity of agenda attached to it.

102)The Joint Committee recognises that the question of the creation of a new offence of membership of a criminal gang and related offences is a complex one. Membership of a criminal gang is clearly an activity which cannot be tolerated. The question is whether making it a criminal offence of itself will improve he effectiveness of the criminal law. The Minister indicated that at present he is examining the definitions contained in the EU and UN instruments with a view to bringing forward legislation to give effect to these instruments and we welcome this fact.

⁶⁹ Section 467 of the Canadian Code

⁷⁰ At page 2 of her written submission

103)The Working Group on the Jurisdiction of the Courts has recommended that it is unsatisfactory that no mechanism exists at present for the prosecution to contest by way of appeal what it views as an incorrect ruling on a point of law in the course of a trial.71 It concluded that the range of situations in which the prosecution should be entitled to appeal on a point of law should be extended, but not so as to prejudice a person who has been acquitted. The DPP put forward a particularly strong case for the creation of prosecution rights of appeal and noted that “There is no equality of arms in the Irish criminal justice system between the prosecution and the defence in relation to rights of appeal.”⁷² He noted that the development in the law relating to the admissibility of statements in Canada was judge-made law which could take place because the prosecution in Canada could challenge long-established common law in an appellate court. This could not easily happen here.

104)The Law Reform Commission issued a Consultation Paper on the subject of prosecution appeals in cases brought on indictment in May 2002.⁷³ The Commission stated in the Paper that it is of the view that Irish law should move from a near token system of prosecution appeals to one in which prosecution appeals would represent a real and substantial element in the criminal process. The Joint Committee notes that the Criminal Justice Bill 2004 contains a number of prosecution appeal provisions which incorporate the specific proposal made by the DPP. The provisions come within the narrow without prejudice model. The Joint Committee notes that when the Law Reform Commission publishes its final Report on the issue the Minister will examine it with a view to ascertaining what, if any, further legislative provisions are required.

105)The Joint Committee recommends that prosecution appeals be extended in a meaningful way. We welcome the fact that Part 4 of the Criminal Justice Bill 2004 provides for appeals on points of law by the DPP on a without prejudice basis (i.e. without prejudice to the acquittal).

⁷¹ The Criminal Jurisdiction of the Courts (May 2003) chapter 5.

⁷² At paragraph 29 of his written submission

⁷³ LRC CP19-2002. See also the Consultation Paper on Prosecution Appeals from Unduly Lenient Sentences in the District Court (LRC CP33-2004)

109)The DPP also suggested the establishment of a small expert group to report on possible reform of the Juries Acts. In a strong critique of the current system for selecting juries the DPP in particular questioned why the present system excludes many people who have professional qualifications and observed that “What one is left with is not in fact a random group of 12 citizens, but a group which is likely to contain fewer middle class or employed persons than the population as a whole.”74

110)The DPP noted that at present there are a number of serious offences where the Garda Síochána have no power to arrest and detain on suspicion. In particular, there are many offences where the maximum penalty is greater than five years but where there is no power of arrest because the penalty is fixed under common law and not by virtue of any enactment. This matter is currently being addressed by the new Criminal Justice Bill.

111)Dr. Paul O’Mahony contended that there was an urgent need for the collection of hard data and genuinely independent and critical evaluative research on how the criminal justice system is operating.⁷⁵

112)The Joint Committee notes the large number of practical reforms to the system suggested by Mr. Barry Galvin, Solicitor. In particular his suggestion that legislation to permit the efficient use of modern electronic surveillance methods is long overdue seems particularly appropriate in the “dial a deal” drug culture that is not amenable to traditional methods of physical surveillance. In appendix 2 to his written submission he refers to a case where the Gardaí came into possession of a mobile phone believed to belong to someone involved in drug trafficking and used it to confront another individual in possession of £28,000 in cash. The Court of Criminal Appeal quashed the conviction on the basis that the conversation on the mobile phone was an unauthorised interception.

113)The Joint Committee thinks that there is merit to many of these ideas and that they merit further study.

114)In particular, the Joint Committee thinks that the whole area of jury selection is something which merits careful review as we are concerned that on a day to day basis juries are not representative of a true cross-section of society. We urge that a method of ensuring that juries are more representative of the population as a whole be examined.

⁷⁴ At page 13 of his submission

⁷⁵ At paragraph 9 of his written submission