Tuesday, 30 November 1993
Dáil Éireann Debate
“1. —(1) Where in pursuance of Article 13.6, the President, on the advice of the Government, grants a pardon expressed to be a “free pardon”, then unless a contrary intention is expressed in such pardon, the person to whom such pardon is granted shall be deemed thereafter never to have committed the offence in respect of which it was granted.
In this amendment the Progressive Democrats are attempting for the first time to enact into law the legal effect of a pardon, in particular a presidential pardon. During the Second and Committee Stages debates my party voiced vigorous opposition to the two routes which the Minister proposes to take to deal with alleged miscarriage of justice cases. Opposition to those routes is shared by Deputies from all sides of the House. In fact, it was difficult to find a Deputy on the Government side to support the routes the Minister has adopted.
We tried to tease out the reasons the Government opted for the dual route, referral of the case back to the Court of Criminal Appeal and the establishment by a Minister of a tribunal with inquisitorial powers as recommended by the Martin Commission leading to a presidential pardon. If one reads the Official Report of the debate on Committee Stage one will see that there was a lack of confidence on the part of the Minister of State at the Department of Justice. Deputy O'Dea, in the legal effect of a presidential pardon. We are moving this amendment in the hope that it will buttress the legal effect of the alternative route in sections 7 and 8 of the Bill.
To highlight the lack of confidence on the part of the Minister of State in a presidential pardon let me quote what he said on Committee Stage at column 829 of the Official Report of Wednesday, 10 November 1993:
I regard a pardon from the President as an important and crucial entitlement for persons who for whatever reason cannot go back to the Court of Criminal Appeal. For that reason it is vital to have such a provision. It is to an extent a second best solution as the conviction will not be set aside. However, in the circumstances I have outlined it is a good second best way  of dealing with such a case. We should not include in legislation a second best solution for those who have been found by a tribunal to be the victims of a miscarriage of justice.
When I raised the matter of the legal effect of a pardon and asked the Minister of State if he thought a pardon cleared the conviction he replied at column 866: “My advice is that it does not”. I then went on to raise the recent case of Nicky Kelly. Indeed, on the issue of a presidential pardon there are only three cases to be dealt with because there has not been a judicial decision as to the legal effect of a pardon. For that reason we need to clarify in this legislation what the ultimate remedy of a pardon will mean for the person who opts for this route. The Minister of State indicated he was of the opinion that the conviction in the Nicky Kelly case had not been set aside by the presidential pardon.
Now I, Mary Robinson, President of Ireland, do hereby, on the advice of the Government, pardon the said Edward Noel Kelly in respect of the said convictions and wholly remit the said punishments of twelve years' penal servitude to which the said Edward Noel Kelly was sentenced as aforesaid to the intent that he shall henceforth stand released and discharged from all penalties, forfeitures and disqualifications incident to or consequent on the said convictions as if he had not been so charged or convicted.
In the exchanges between the Minister of State and me he indicated, as I said, that his advice from the Department of Justice was that the pardon did not clear the conviction. He went on to say at column 866 of the Official Report:
Whether Nicky Kelly is happy is not  my problem. I am talking about the law. The Deputy asked me a legal question and the advice I have is that the conviction still stands and only a court of law can set aside a conviction.
On the question of presidential pardons in the United Kingdom the court decided in the case R. v. Foster that because the British law relating to pardons was founded on the royal prerogative of mercy a pardon did not reach the conviction. Needless to say they also refer cases back to the Court of Appeal. In the United States, Canada and New Zealand all the courts have held — this is laid down in statute — that a pardon reaches the conviction. Indeed, it removes the infamy and blots out the blame and guilt. When the Martin Commission examined the law relating to pardons in Ireland — there were two cases in the 1940s, the Quinn and Brady cases — it concluded that a presidential pardon removes infamy.
There is disagreement as to the legal effect of a pardon and because of this it is appropriate and timely to clarify the effect in this legislation. If we have to live with this dual system — referral of ordinary cases back to the Court of Criminal Appeal while in exceptional cases involving miscarrige of justice, similar to the Guildford Four and the Birmingham Six where there was conspiracy, lies, perjury and, perhaps, policy malpractice, the persons concerned may take the alternative route, the second best solution as described by the Minister of State — there has to be equality for those who opt for the alternative route. It would be unworthy to pass legislation under which the person who opts for the alternative route of a presidential pardon dealt with in sections 7 and 8 of the Bill would end up with a lesser remedy where the conviction would still stand.
We oppose the concept of a dual route because, if this House clarified the legal effect of a presidential pardon, there would be no need to refer a case back to the courts. For the first time in Irish law this amendment would clarify the legal effect of a pardon. I am interested in  hearing the response of the Minister of State as it is important to get the legislation right. As I said, there was vocal and vigorous opposition on all sides of the House; Members were bewildered as to why the recommendations of the Martin Commission were not being followed. The reason is that the Minister of State believes that only a court can overturn or quash a conviction. That is the reason a second best solution is being offered in those cases involving a miscarriage of justice. If a person, by virtue of the circumstances of his case, has to opt for the alternative route of a pardon there must be a fair, generous and unequivocal remedy. What we would be saying to people like Nicky Kelly is that they are being pardoned but they are still guilty and we are giving them a certain amount in compensation. The infamy would not be removed and their guilt would not be blotted out. It is clear from the text of the presidential pardon granted to Nicky Kelly that the conviction was reached “as if he had not been so charged or convicted”. In other words, it was as if he had never been arrested and no one had ever suspected him. However, this is not consistent with the views expressed by the Minister of State on Committee Stage. Therefore, the matter has to be clarified and the only way to remove the doubt is to clarify the legal effect of a pardon in this legislation.
Mr. G. Mitchell: While I am not opposed to the amendment I would like to tease out one or two points in relation to it. I support its general thrust as long as it includes other circumstances. Indeed, there should be two types of pardon, the first should say that a person is innocent while the other should say that because of some other act the person is being pardoned and forgiven.
Let us suppose that somebody driving away from a bank heist knocks down a child and stops. The court would, presumably, have to find the person guilty, but in the circumstances the Government might wish to recommend a pardon. In those circumstances it simply could not be said that the person had not committed  any offence and was innocent. These are different circumstances from those outlined by Deputy O'Donnell. I would certainly support this amendment, but there should be circumstances where the presidential prerogative, on the recommendation of the Government, should be allowed to apply if the Government, in the interests of public policy and natural justice, feels that that should be the case.
I would not like this to be exclusive. There may come a time when there is a need to pardon people who are actually guilty. This could well be the case in regard to people who have been involved in atrocities who might give up their violent campaign and come to the peace table. In those circumstances the Government may well wish to recommend a pardon, perhaps even a blanket pardon, but one could never say such people were innocent.
I would certainly support this amendment in the case of people governed by the circumstances outlined by Deputy O'Donnell. However, I would not like it to be the case that the President can only pardon people on the recommendation of the Government where it is proven that they were innocent in the first instance. There should be two strings to this, and it should be clear on the granting of a pardon what the circumstances are. I have no difficulty with this amendment but I do not want it to give rise at some stage in the future to the Government being unable to pardon somebody who has been involved in a criminal activity on the basis of some other generous or peace-seeking act that they had done. The argument made by Deputy O'Donnell is a good one and if the two can be taken in tandem I am happy to support the amendment.
Mr. O'Dea: On Committee Stage Deputy O'Donnell raised the question of what is meant by the term “presidential pardon”. I looked up the law books in the meantime to see if there were any legal decisions on the ambit of a presidential pardon and I found that there  were not. Therefore Deputy O'Donnell is wrong to refer to Irish law relating to pardons. There is no such law. This amendment was not moved on Committee Stage. Yesterday was the first we heard of it. I say that not to criticise but to make the point that a suggested change such as this must be referred to the Attorney General for his views as to its constitutionality or otherwise. Although I am not closing my mind to the proposal yet, the initial reaction of the Attorney General has been quite negative. I will explain why.
Article 13.6 of the Constitution vests the power of pardon in the President. I am not aware of any decision of the High Court or Supreme Court which interprets this Article in terms of the basis for granting a pardon or the effects of a pardon. Certain Articles of the Constitution provide for their regulation by law — indeed section 11 of this Bill does that in relation to Article 34.4.3 — but Article 13.6 does not provide for this. It must surely be highly questionable as to whether the Legislature can, in these circumstances, legislate so as to define the meaning and effect of a constitutional provision. The saver in subsection (2) of the amendment does not in any way lessen the extent of this proposed legislative interpretation of the Constitution. All that subsection (2) says is that the power of the President to grant a pardon will not be affected by this amendment, but the effect of any such pardon would still be governed by subsection (1).
Another difficulty I have with the proposal is the use of the expression “free pardon”. This does not occur in Article 13.6, which simply provides for the grant of a pardon. Furthermore, the proposal to legislate on what would be called “free pardons” clearly envisages the granting of at least one other category of pardon, otherwise the amendment need only refer to the word “pardon”. What are these categories? To whom will they apply and on what basis will they be granted? These are reasonable questions to ask of legislation which purports to interpret the meaning and effect of pardons.
 That latter point is a technical one which could possibly be overcome. The main difficulty is a constitutional one. The term “pardon” appears in Article 13.6 of the Constitution to which we are all subject. There are certain articles in the Constitution which state that the Oireachtas can regulate those provisions by law — it can state what they mean, limit them, expand them etc. That does not apply in Article 13.6. Because it appears only in a constitutional provision, there is only one way we can ever find out what the term “pardon” in Article 13.6 of the Constitution means, and that is if the courts have to adjudicate on it. We are not in a position to interpret it, to say it means this or that, that it means more or less than we think it means or that it means something if the President expresses herself in a certain way. Another point strikes me in regard to the text of the Deputy's amendment in which it is stated: “unless a contrary intention is expressed in such pardon”.
The Deputy will probably make the point that pardons are usually expressed in clear and unambiguous language. However, if this were to be amended so that the President could use the term “free pardon” but the rest of the terminology was somewhat ambiguous, we would have a ridiculous situation where the person who has got the pardon would not know what the effect of the pardon was, despite the fact that we had taken a constitutional risk by putting this into the legislation. That is just a minor point. The major difficulty is that this is one of the terms in the Constitution which we are not entitled to interpret in any way by legislation. The court is the only institution that can give us a clear exposition of what that term means.
I intend to do some further research and have further talks with the Attorney General on the subject between now and the Bill coming before the Seanad. However initial indications are that there would be a constitutional difficulty in accepting this amendment as drafted.
Ms O'Donnell: I note the Minister has not had much time to look at this. It  was only during exchanges between the Minister, myself and other Deputies that the legal effect of a pardon was disclosed, so my only opportunity was to put down an amendment on Report Stage. There is a distinction in the wording of Article 13.6 where it stated that the right of pardon and the power to commute or remit punishment by any court exercising criminal jurisdiction are thereby vested in the President. It is obvious that there is a distinction between the right to pardon and the power to commute or remit punishment, otherwise the word “and” would not be there. That Article expressly allows a non-judicial organ of the State to exercise a judicial function which is to set aside a sentence or grant a pardon. I do not think the constitutional fears are valid. However, I accept the Minister's assurance that he will look into it further.
The point has been made that we are not competent to legislate on this matter. In relation to miscarriage of justice cases for which we are legislating at present, since a pardon is being offered as an alternative route to the full remedy which the courts would give, namely, quashing the conviction, we cannot legislate fairly by giving a lesser option than the dual route. In other words we are saying that anyone who does not make it back to the Court of Criminal Appeal by virtue of the circumstances of his or her case — for example, in regard to case evidence, perjury and so on which we discussed — will be offered a second best solution. That is not acceptable and that position must be considered. We may have to wait for the courts to deliberate on the legal effect of a pardon.
The two cases to which I referred in the forties were called the two pardon cases by the Martin Commission because a presidential pardon was granted in those cases. The document executed under seal by the President in the 1940 Thomas Quinn case stated that the Government was satisfied that the convict had not committed the crime. In the 1943 Brady case the document executed under seal by the President stated that  the Government was of the opinion that the convict had been mistakenly found guilty. Those are the only two cases which relate directly or indirectly to the pardon.
Compensation was paid in both cases, but there was a reluctance generally to typify the Government's action of a pardon as distinct from a full remission of punishment. I accept that the law is not clear in this regard and that is why there is a need to legislate in this case. It may happen that Nicky Kelly may take a case seeking a declaratory action to see whether his pardon removed the guilt and quashed his conviction. He may be interested to take such a case. He is under the impression that under the terms of his pardon his guilt has been removed and he would be unhappy if the position were otherwise. The first person in a miscarriage of justice case who must use the route under the proposed legislation will  have to go to court to seek a declaratory action as to the legal effect of the pardon. That is a long procedure and at this stage we could stitch into the legislation what is meant by a presidential pardon. We should not look foolishly to the UK system.
If we look to the UK system, which gave us the appalling vista of the Birmingham Six and the Guildford Four, we will be looking in the wrong direction. We are an independent Republic with our own Constitution and should be able to enact legislation to fit our set of circumstances. I hastily prepared this amendment, but the reasoning behind the Minister's dual route only came to light on Committee Stage. I hope the Minister will consider this matter further and seek the advice of the Attorney General in that regard.
Gallagher, Pat the Cope.
Higgins, Michael D.
Hilliard, Colm M.
Morley, P. J.
Ó Cuív, Éamon.
De Rossa, Proinsias.
O'Malley, Desmond J.
Tellers: Tá, Deputies Dempsey and Ferris; Níl, Deputies O'Donnell and Keogh.
Question declared carried.
Amendment declared lost.
An Ceann Comhairle: We now come to amendment No. 2. Amendments Nos. 2 and 3 form a composite proposal; amendment No. 4 is an alternative. Amendments Nos. 5, 9, 12, 13, 14 and 16 form an alternative composite proposal. Amendments Nos. 6, 7 and 8 cannot be moved if amendments Nos. 4 and 5 are negatived. Amendments Nos. 10 and 11 cannot be moved if amendment No. 9 is negatived. Amendments Nos. 17, 21 and 22 are related to amendment No. 7. Accordingly, I propose that we discuss amendments Nos. 2 to 14, inclusive, 16, 17, 21 and 22 together, by agreement.
Mr. G. Mitchell: On a point of order, if all these amendments are taken together does that mean that those of us who sponsor a number of these amendments will not have an opportunity to move them and have them replied to individually?
An Ceann Comhairle: Separate decisions can be made but it may transpire that Deputies do not have the right of reply. It should be noted that Deputy Mitchell's amendment No. 4 proposes the replacement of section 2 while amendments Nos. 2 and 3 in the name of Deputy Éamon Gilmore merely propose to insert new sections before section 2 and, therefore, must be taken first. Amendments must be dealt with in order as, on Report Stage, the Bill must be dealt with line by line. Whereas the amendments tabled by Deputy Gilmore propose to insert new sections between lines 30 and 31 on page 3, Deputy Mitchell's amendments seek to delete lines 31 to 33 in page 3 and lines 1 to 39 on page 4. As I indicated earlier, if certain amendments are accepted other amendments will be negatived, and that may well transpire in this case. I cannot anticipate what will happen.
Mr. G. Mitchell: Is it possible to have the list circulated?
An Ceann Comhairle: It is complicated and my staff will circulate what I stated to the Deputies concerned as quickly as possible.
Mr. G. Mitchell: As you rightly pointed out, a Cheann Comhairle, Deputy Gilmore's amendments come before mine. However, more than half these amendments are in my name. If we proceed in the manner proposed, am I expected to refer to all my amendments in my initial remarks and respond to them all——
An Ceann Comhairle: That would be very desirable — the Deputy may address all the amendments in his initial remarks. I take it Deputy Proinsias De Rossa will move amendment No. 2 in the name of Deputy Éamon Gilmore.
Proinsias De Rossa: I move amendment No. 2:
In page 3, between lines 30 and 31, to insert the following:
“2. —(1) The Government shall establish a Standing Committee of Inquiry (hereinafter referred to as ‘the Committee’) to investigate all available  facts and circumstances surrounding any conviction imposed by a court in the State and referred to it in accordance with section 3.
(2) The Committee shall be a tribunal within the meaning of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979.
(3) The Committee shall consist of at least three persons, one of whom shall be a practising barrister or solicitor of at least ten years standing.
(4) The Committee may receive such evidence and other information as it sees fit, whether or not that evidence or information is or would be admissible in a court of law.
(5) Having considered all the relevant facts the Committee shall submit a report to the Government for the purpose of enabling it to decide whether or not to advise the President to exercise the right of pardon conferred by Article 13.6 of the Constitution or to take such other action as it may consider appropriate.
(6) A report submitted to the Government by the Committee shall be published.”.
I am standing in for Deputy Gilmore who is involved with the debate on the Local Government (Dublin) Bill, 1993, which also comes within his remit. This is one of the curses of having four Deputies only to cover all matters.
These amendments deal with the heart of the Martin report — how a person or persons who have been convicted can seek to have their cases reopened having gone through all the legal procedures. This Bill arose initially from concerns expressed in Ireland about the Birmingham Six, Guildford Four and, to an extent, the Nicky Kelly and Tallaght Two cases. I missed the Second and Committee Stage debates, but I find it extraordinary that the Government in 1990 should have decided to go completely against the recommendations in the Martin report although it accepted them  in principle. Yet three years later a Bill published by the Government goes completely against the heart of the Martin report which recommended a committee system of appeal in circumstances where information indicated there had been a miscarriage of justice.
The Martin report specifically argued against the idea of going back to the court itself. Having referred to the power of the Home Secretary in England to refer a case to the Court of Appeal, the committee stated:
No analogous power exists in our jurisdiction. We doubt, however, whether in circumstances such as those mentioned reference to the Court system would necessarily prove effective in establishing the truth. We propose to set out a number of reasons which have led us to take such a view...Courts reach their decisions on legally admissible evidence, not on hearsay, not on rumour. Any departure from the strict rules of evidence in the conduct of Court proceedings would in our view be entirely undesirable.
It is not impossible to conceive of cases in which, years after conviction, with all legal avenues explored and all appeal procedures exhausted, there might come to light a mass of cogent information [it makes a clear distinction between information and evidence] and documentation inadmissible as evidence in Court proceedings, but of such a nature and emanating from such sources as to cause fair-minded persons to have grave doubts as to the propriety of the conviction. Justice would appear to require that such matters be inquired into and given the fullest consideration. Unless a court were to relax the rules of evidence in such cases but not in others, a court would not appear the most suitable forum in which to pursue what must essentially be a matter of inquiry.
It will no doubt be present in the minds of many that the recent release of wrongfully convicted persons in
 England some 15 years after the event, came about thanks to painstaking investigation and inquiry by police officers.
In the circumstances which we envisage as existing in those rare cases in which matters come to light casting substantial doubt on the correctness of a conviction, we feel that further recourse to the Court system is likely to prove inappropriate, as must recourse to any system other than one which is essentially inquisitorial in nature — which our Courts are not.
We have given this aspect of the matter the fullest consideration and have taken into account the many submissions received. As a result, we are of the view that in the circumstances envisaged, where substantial doubt may arise as to the propriety of the conviction, the setting up of an independent body with statutory powers of inquiry is by far the most effective manner of dealing with the situation.
I have quoted from that part of the report in detail because it is the heart of the issue with which the Bill is attempting to deal. I find it incomprehensible that after setting up a committee to look at how alleged miscarriages of justice may be dealt with and enabling that committee to look at the issues in detail, the Government — it should be borne in mind that the major component of this Government is the same as that in the last Government which accepted the Martin report in principle — should turn around and reject the key recommendation in that report.
I recognise that the Minister has introduced a type of committee appeal system whereby a person may appeal to the President for a pardon and that a committee of inquiry will be established in those circumstances. However, it seems that any such appeal to the President would seek to establish that the person was not guilty in any sense. Of course, miscarriages of justice do not necessarily always apply to cases where there is no fault involved. That is why we retabled on Report Stage an amendment which  seeks to establish a standing committee of inquiry. Amendment No. 2 sets out in detail the type of committee which should be established, taking into account the recommendation of the Martin Committee on how it should be established, while amendment No. 3 sets out who may apply to such a committee to have a case heard.
It is not a good idea to propose that people seeking to have a miscarriage of justice overturned should have to return to the Court of Criminal Appeal, which will already have decided that they are guilty. It seems to me that there would be an in-built disincentive to reverse a decision already made by the same court, as referred to by the Martin report, particularly in view of the fact that such a court would not be enabled to deal with information which could not stand up as evidence. Therefore, information which may well weigh with a committee of inquiry into these matters could probably not even be considered by the Court of Criminal Appeal since it must inevitably comply with the rules of evidence.
Witnesses who may wish to come forward in a case where a convicted person is seeking to overturn a conviction may be reluctant to go to court for fear of the consequences for themselves in legal terms in that they may have been involved in some way in the original crime. A court of inquiry would have greater latitude to enable such people to come before it. It is for those reasons that I believe it would be far better that this Bill adopt the recommendations of the Martin report and I urge the Minister to accept amendments Nos. 2 and 3 in the name of Deputy Éamon Gilmore.
Mr. G. Mitchell: My amendment No. 4 is a replica of an amendment I moved on Committee Stage when I asked the Minister to take full cognisance of the argument I made at that time and bring before this House in full measure the recommendations of the Martin Committee or to accept the amendment proposed by me.
The Minister's approach is fundamentally different from the approach  recommended by the Martin Committee. Judge Martin is a lawyer of considerable experience and standing. Before he was appointed to the Bench he had to be at least ten years at the Bar. He chaired a committee comprised of a widely drawn group of people, including officials from the Department and many others. A number of eminent people made submissions to that committee. Indeed, a number of Members of this House, some of them now in Cabinet, some of them former Ministers——
Proinsias De Rossa: Some of them ex-TDs.
Mr. G. Mitchell: —— made submissions to that committee. The committee deliberated and made recommendations. Its fundamental recommendation was that the current appeal procedure is not satisfactory because it entails going back to the courts. The committee, which was chaired by a judge, stated that the courts in these circumstances were not the appropriate place to review alleged in justices of this kind, for a number of reasons but particularly because a court is bound, by judges' rules to the sort of evidence it can accept. The committee stated that a Scottish Act, to which it referred, gave a good example where hearsay evidence could be used in certain circumstances. The committee felt that in certain circumstances, in reviewing a conviction, hearsay evidence might be necessary.
If, for instance, one person told another person that it was they who had murdered somebody and not the person who was convicted, as I understand it that evidence would not be admissible in a court of law because it would be regarded as hearsay evidence. However, if there were reasonable grounds to hear such evidence, a tribunal of inquiry could hear it, particularly if we brought forward similar legislation to that set out in the Scottish Act.
I do not understand why the Minister has not chosen to do this. I can only presume it is because of certain recommendations  made by members of the Judiciary who perhaps may feel that it will be a reflection on them if this House decides to follow to the letter the recommendations made by the Martin report. The courts have a difficult job to do. I would be critical of them in another context; I believe they badly need to be reformed. However, in suggesting that we adopt the recommendations of the Martin report I am not casting aspersions on the integrity of our courts. I am simply saying that the Martin report stated that the courts were not equipped to carry out this particular function and it recommended the establishment of a statutory inquiry body under the Tribunal of Inquiries Act. It specifically recommended against a reference appeal to the Court of Criminal Appeal. The report states: “We doubt, however, whether references to the court system would necessarily prove effective in establishing the truth”.
In making this point I do not wish to offend anybody, but I believe the courts are too involved in administering law rather than justice. Perhaps that has to be the way, because there must be established rules that everyone can understand and on all occasions the courts must adhere to those rules. However, they are not necessarily the best rules for establishing the truth and in most cases judges will give offenders the benefit of the doubt, if there is a reasonable doubt. They do not set out necessarily to establish the truth; they set out to establish what can be proven by the law, and the two are not always the same thing. That is why I believe the Martin Committee recommended the establishment of a tribunal of inquiry rather than referring back to the courts to resolve an issue.
The Bill proposes that such reviews shall be brought by way of an application to the Court of Criminal Appeal. Appeals from the Special Criminal Court, the Central Criminal Court or the Circuit Criminal Court can be directly referred to the Court of Criminal Appeal. The Minister proposes a second appeal to the Court of Criminal Appeal, which I understand, is covered by one Supreme  Court and two High Court judges but with different judges hearing the appeal. That goes completely against the recommendations of the Martin report. There are a small number of Supreme Court and High Court judges and if the Court of Criminal Appeal, consisting of three eminent judges, confirms a person's guilt on appeal but some other facts arise from that appeal, the effect of this Bill will be that three additional judges will then be required to second guess the original views of their colleagues. That is not satisfactory and I see no grounds whatsoever to go against the recommendations of an independent committee, chaired by a judge. It held the view that the courts were not the appropriate place for these appeals to be heard because the rules of evidence were not sufficient to establish the truth.
My amendment, or a similar one, would at least facilitate the gathering of evidence to establish the truth and not just what the law allows us to establish in terms of the rules of court. I would have no objection to a tribunal of inquiry exonerating a person who was found to be innocent. In order to keep within some framework I have worded my amendment in such a way that they would make a recommendation to a court which then would have to take evidence, including hearsay evidence, into account.
As I complained on the Order of Business today, my amendment No. 4 is simply one worded by me in that I do not have the type of facilities available to the Minister. I would be happy if the Minister would apply the principle of my amendment, but if not I shall have to press it.
My amendment No. 6 reads:
In page 4, line 3, to delete “and” and substitute the following:
(iii) on summary conviction and has received a custodial sentence of at least six months, and”.
I made the case for this amendment on Committee Stage. Perhaps we are too inclined to deal with cases on indictment.  Where there is a summary conviction, in circumstances in which a person can establish that there is a newly established fact, such a person should be free to pursue his or her innocence in the same manner. The Minister had heard me make the case on Committee Stage. At this stage I would ask the Minister to give that point serious consideration.
Amendments Nos. 7 and 8 in my name are related so I shall comment on both together. My amendment No. 7 reads:
In page 4, line 25, after “proceedings” to insert “or a fact the importance of which was known to a party to the proceedings who declined to bring it before the Court”.
My amendment No. 8 reads:
In page 4, line 25, after “proceedings” to insert the following:
“or a fact, the importance of which was known to a person (including the convicted person) who failed, neglected or refused to bring such fact to the notice of the Trial Court, or the Appeal Court, because of a reasonable fear for that person's safety or another person's safety, or because of the imposition of duress on the person”.
I made the case largely for these amendments on Committee Stage. Where a party to the proceedings knew and had available to him or her information which affected the proceedings and did not bring it to the notice of the court, that is a fact which should be allowed under the provisions of section 2 (4) as constituting grounds for reconsideration of such a case. Amendment No. 8 deals with the case of a person who knew of a fact that was relevant but, because it was likely they would have their head blown off, their children shot, or some other imposition of duress, they were unable to bring that fact to the notice of the court. If that threat has passed and they wish to bring the information to the attention of the court and their bona fides can be established, then the courts should allow such information to be taken into account and form part of an appeal.
 My amendment No. 10 reads:
In page 5, line 20, to delete “Commissioner of the Garda Síochána” and substitute “Attorney General”.
Section 3 (3) (a) in the Bill as amended in Select Committee reads:
(a) where the appeal is based on new or additional evidence, direct the Commissioner of the Garda Síochána to have such inquiries carried out as the Court considers necessary or expedient for the purpose of determining whether further evidence ought to be adduced;
This function should be that of the Attorney General because it is possible that the matter which is the cause of concern could well be the actions of the Garda Síochána themselves. Since time would have elapsed before such an appeal was heard, the Commissioner of the Garda Síochána could well have been substituted by an acting member of the force, a Chief Superintendent or an Assistant Commissioner, but the Commissioner himself may well have been involved in the original case, however peripherally. If Garda behaviour itself is the cause of complaint, should the Commissioner of the Garda Síochána be the person who carries out these directions on behalf of the courts? The task could be entrusted to the Attorney General or the Director of Public Prosecutions. Similarly, the Director of Public Prosecutions or his office could be the subject of a complaint, for example, if they had not brought evidence to the attention of the court or something of that kind. It is hypothetical but these sorts of cases can arise. It appears to me that the Attorney General would be the correct State law officer to be directed by the court in such cases.
Probably the Attorney General himself could not carry out these investigations. He might require the Commissioner of the Garda Síochána to undertake these investigations on his behalf, but at least they would be carried out under his supervision in the knowledge that he would be accountable to the  courts. The Commissioner of the Garda Síochána, or any other garda, of whatever rank, working for the Attorney General in such circumstances would be aware of that fact. The Attorney General is a law officer of such seniority that any garda officer, of whatever rank, coming before him would have to explain what investigations had been carried out, to the satisfaction of the Attorney General. The rules of court would not apply. It would be a very simple, straightforward matter, explaining exactly how the officer concerned had carried out those investigations.
I believe the Attorney General should be the officer designated, not the Commissioner of the Garda Síochána. I say that without wishing to cast any aspersions on either the Commissioner of the Garda Síochána or the Director of Public Prosecutions. Since we are setting up an independent review structure we should place it as far as possible beyond any suggestion of interference by persons who may themselves be involved in part of the procedures being investigated.
My amendment No. 11 reads:
In page 5, to delete lines 45 to 48 and substitute the following:
“(7) A legal aid certificate which was granted in relation to the trial of an accused person shall have effect as if it had been granted also in relation to an application under section 2 and, if the Court has ordered a re-trial under this section, in relation to his re-trial.”.
This entails the deletion of section 3 (7) and the substitution of the words contained in the amendment. That does not require any further explanation. I made the point on Committee Stage and I hope the Minister has had an opportunity to consider it.
My amendment No. 17 reads:
In page 8, line 3, after “proceedings” to insert “or a fact the importance of which was known to a party to the proceedings who declined to bring it before the Court”.
 This seeks to add to section 7 (4) of the Bill the words contained in my amendment. This is a point which could reasonably be made in a petition for a grant of pardon. I have already made the point as to how these types of circumstances can arise and could recur in a petition for grant of pardon. My amendments Nos. 21 and 22 seek to amend the provisions of section 9 dealing with compensation for miscarriage of justice. I note that amendment No. 22 has been printed twice on the sheet of amendments before me. Perhaps that could be checked.
My amendment No. 22 reads:
In page 9, line 25, after “trial” to insert “or a fact the importance of which was known to a party to the proceedings who declined to bring it before the Court”.
My amendment No. 21, on a separate sheet, drawing attention to a printing error, reads:
In page 9, line 19, before “, and”, to insert “or a fact the importance of which was known to a party to the proceedings who declined to bring it before the Court”.
Amendment No. 22 has been printed twice.
An Leas-Cheann Comhairle: Yes, there appears to be a printer's error.
Mr. G. Mitchell: Amendment No. 22 makes the same point. That is the essential point I have been making right through, which I want to apply to section 9 of the Bill also. I have taken together nine of my amendments, as requested, which are a substantial part of the 17 amendments before us. I hope the Minister, having heard the reasoned debate on Committee Stage and again on Report Stage, will not simply tell us why he cannot accept any of these amendments. I am concerned about this Bill and I hope the Minister will take into account the fundamental concern which this House is expressing about the committee of inquiry rather than a court, the other concerns expressed and my particular  suggestion regarding the Attorney General as opposed to the Garda Commissioner.
Mr. M. McDowell: These amendments touch the very heart of this Bill and, as the two previous speakers said, call into question the exact reasons this Bill has been tendered in its present form and why the report of the Martin Committee has been effectively dumped. There must be a number of reasons for that. First, no explanation has ever been tendered to this House as to why the principle of the Martin Committee has been effectively side-tracked. Second, nobody has ever explained to this House from where precisely the legal thinking that lies behind this Bill comes. It was denied by the Minister of State on Committee Stage that members of the Judiciary lobbied against this Bill and we must accept his denial. Therefore, it means that Judge Martin is the only judge with criminal experience who expressed any view on this issue. His views are diametrically opposite to those now being put before this House. Apparently no other judge has been consulted and no process of consultation has ever been mentioned by the Minister as an excuse for such a departure from the terms of the Martin Committee report. No reason has ever been tendered for this U-turn. Of course, that calls into question the reason such a U-turn should have been made. That is a mystery which lies within the intestines of the bureaucracy and we may never find out the truth. I strongly believe that some members of the Judiciary have had an influence, perhaps through the Attorney General's Office, on the Government's thinking on this issue. I do not believe that such an unexplained U-turn could be presented to us with no supporting justification and without an adequate indication as to why Judge Martin's report should be effectively discarded.
Whatever change of mind is responsible, the reality is that the Government is now putting before this House appallingly incompetent legislation which is badly thought out and underpinned by no real rational thought, the Department  of Justice, unfortunately, on this occasion is making a pig's ear out of this issue. It is disastrous and the Minister should be warned that he will have to take responsibility for the mess that will emanate from this legislation. First, in the course of his remarks this afternoon the Minister of State betrayed what I can only suggest is a fundamental misunderstanding of the law relating to pardon.
There is nothing in our Constitution which states that a pardon cannot touch the question of guilt as well as punishment. In common law jurisdictions, such as the United States, Canada and New Zealand, the law provides that a free pardon eradicates conviction, guilt and punishment. The law in the neighbouring jurisdiction in Britain is that a pardon does not remove the conviction. The reason advanced in the leading case on that issue for that viewpoint is that it is part of the Royal prerogative of mercy and since it is not part of the Royal prerogative of justice, which is extinct, it can only be a mercy measure and, therefore, cannot deal with the conviction itself. In many of the other self-respecting common law countries where this issue has been addressed, there has been no difficulty in saying that a pardon should affect both guilt and punishment.
The logic of what the Minister said today on this issue is disturbing. It means that Nicky Kelly who has received between £600,000 and £800,000 of tax-payers' money in compensation and a presidential pardon in the terms read to this House by Deputy O'Donnell earlier still stands guilty in the eyes of the law if what the Minister has said is true. It is evidently untrue — and he is evidently wrong on this issue — that Nicky Kelly's pardon exculpates him and that he stands in the eyes of the law, on the exercise of the President's pardon, without the taint of guilt on his record. That is what I believe is the case. It is terrible that the Minister has come in here, on the basis of a misunderstanding and a mishmash view of English legal authorities and said that Nicky Kelly still stands guilty in the eyes of the Irish law although he received  £600,000 or £800,000 as compensation for what was done to him and a pardon which, on the face of it, seeks to exculpate him.
This is not something which will go away. By his remarks today the Minister of State had better get one thing straight. He will face a declaratory action by Nicky Kelly and others who are mistreated in this way, who are given money and told to go away and given a pardon which purports to exculpate them. When they read the Official Report they find that the Minister thinks they are still guilty in the eyes of the law. It is a disgrace that the Minister of State has said these things here today and that the public at large were misled in this way. It is about time that the Minister, instead of coming in here saying he does not know the effect of a pardon, did some research on the issue and came back with a view on what a pardon is. If he is in doubt as to whether, as a matter of pre-existing common law, a pardon touches the issue of guilt he should come to this House with a measure to declare it does. He apparently said to Deputy O'Donnell earlier that he had received some kind of informal advice that the Legislature was not competent to define the effects of a free pardon. If that is so, it is strange that we are the only country that I know of which is competent to define the effect of a free pardon. Perhaps the Minister would like to research the distinctions between various classes of pardons, for example, conditional pardons and free pardons — all of which are well known in common law. If the Minister is saying that those categories do not exist in Ireland or that the Legislature is not competent to define the effects of each, without prejudice to the wider powers of the President under the Constitution, the informal advice from the Attorney General's Office is grossly defective.
I suggest that the Department of Justice had better justify why it is acting on such poor advice and on fundamental errors of criminal law in the way it is approaching this issue? I say this with a degree of regret because I accept it is  desirable that a Bill should be brought before this House to remedy the problem and that it has been brought forward fairly smartly. However, the Minister of State, Deputy O'Dea, has not consulted widely during the preparation of this Bill. As far as I know, he never consulted any sizeable number involved in the administration of the criminal law, neither, as far as I know, did he sound out those who would be seen as international experts on what is open to the Government. In particular, I believe the Department received a letter yesterday — somewhat belatedly perhaps — from the Bar Council pointing out that they were deeply disturbed by the line the Minister of State is taking in this Bill. Will the Minister of State confirm if that is the case and why he has not consulted with anybody when such a letter was sent and nothing has been done about it? Why has there been no consultation with anybody who knows anything about this subject? Why has the Minister of State ploughed his own furrow? Why have we got this Bill, which I believe will cause far more mischief than it will remedy in terms of public satisfaction with the law?
The amendments tabled by Deputy O'Donnell and I, which are grouped together in this discussion, effectively to delete the whole panoply of references of appeal of these cases to the Court of Criminal Appeal. The reason we have taken this view, which we set out previously, on Second and Committee Stages, is that we are fundamentally of the view that more and more injustice will be created by clogging up the courts with futile stupid appeals by people who have a vested interest in fabricating evidence for the purpose of trying to exonerate themselves.
That is what we believe the effect of this Bill will be. People who are serving 15 years know they have nothing better to do but to stare at the ceiling of their cell or send out a message that they would like an alibi witness who was undiscoverable at the time of the original offence. They would have nothing better to do than to think up newly discovered facts as to why they are not guilty. The  damage that that will do to the system of criminal jury verdicts in this country will be massive. Also for some unknown reason — it is twice as foolish as the general proposition on which the Bill is based — the proposal that if some newly discovered fact comes to the knowledge of a person in Mountjoy Prison concerning his sentence, he should bring it back to the Court of Criminal Appeal and have them reassess his sentence in the light of the new information. What is this? That he was not as bad as everybody made out, or that some witness of his character exaggerated his character to his detriment, or that his victim staged a quicker recovery than the judge had envisaged? For instance, in a rape case, if a victim was not as badly damaged psychologically as the court was led to believe, that therefore, this newly discovered fact should be brought to the court's attention in order that it may change its sentence.
What type of nonsense will that lead to in the courts? In relation to sentences, would it not be far easier for the Department of Justice, if it was satisfied that newly discovered facts came to light — a concept hard to grasp in this context — to commute the sentence accordingly. The Minister has a power under the 1951 Act to slash any sentence on a discretionary basis and I cannot imagine what possible purpose would be served by having a court hearing which would entail the Garda having to chase around trying to discover whether there are newly discovered facts which deal only with mitigation of penalty.
I think this shows a crass ignorance — I regret being too harsh in my words — on the part of the draftsman that we should now have rehearings of trials based on newly discovered facts when there is no demand for it. Nobody has ever demanded that that should be done. I have never heard a single politician in this House ever request a change in the law so that the Court of Criminal Appeal can vary sentences on the basis that some newly discovered fact relating only to the sentence has now become available. It is a futile, silly proposal, dreamt up by  people with no practical experience of its likely consequences.
The fundamental issue in this matter is whether the Court of Criminal Appeal is going to function as a fact finding body in the case of suspected miscarriages of justice. It is clear from what has happened thus far that the Government is working on the assumption that it cannot have the equivalent of the English system; which would probably be unconstitutional. That is a method of filtration of allegations, such as suggested by Democratic Left. If there is a right of access to the Court of Criminal Appeal, then a reference system by the Home Secretary, which translates into a reference system by the Minister for Justice, the Attorney General or whoever, is probably unconstitutional. We are left in a position that if any remedy is made available in the Court of Criminal Appeal, then unless it is frivolous and vexatious — that is dealt with in the Bill — it must be open to everybody who has been convicted to apply to the Court of Criminal Appeal.
I believe this is based on a foolish misunderstanding of the nature of pardon and on the only way to effectively cancel a conviction: an order by the Court of Criminal Appeal quashing a conviction is the only way a conviction can effectively be put aside. The Department of Justice officials who drafted this Bill have been advised by someone — we know not whom — that a pardon cannot do the same thing. I regard that as a fundamental error that ought to be exposed. I believe its consequences will be manifold and far-reaching.
If the Court of Criminal Appeal is now to start hearing witnesses in respect of newly discovered evidence, the question that arises immediately for answer is: what are the Court of Criminal Appeal to do with such evidence when it becomes available to them? We have to look back to the Birmingham Six case in England to see the same conundrum and how it caused absolute mayhem when it was not properly addressed in the Court of Criminal Appeal.
 Let me remind the Minister of State at the Department of Justice of the case of one Ms Joyce Lynass. Ms Joyce Lynass was a woman police constable who was stationed in a police station where people suspected of bombing offences were interrogated. She gave evidence at their trial but never mentioned alleged abuses and brutality which she later said she saw. She changed her mind at some stage in the ensuing years and came to the Court of Criminal Appeal with no motive whatsoever, unless she was a publicity seeker of the grossest kind, and admitted that her evidence on the first occasion was perjury and stated that she had in fact seen major abuse of the people who had made confessions in the station to which she was attached. Hers was very significant evidence. Presumably, if it had been heard by the original jury it would have had to go into the weighing scales in their determination of what was to happen. Her case was flung out of court and obloquy was heaped on her. She was told she was a perjurer and the proof of her dishonest character, according to their Lordships in the Court of Appeal, was that she was admitting to be a perjurer since her first evidence never mentioned any of these things, even though she had been sworn on the occasion of that trial to tell the truth.
Therefore, somebody who comes before a group of three judges who are not good judges of fact in criminal matters, as experience has shown, faces the horrific prospect of not only having his or her evidence rejected but of being disbelieved and branded a perjurer by three people who of themselves have no right or status under our Constitution to determine matters of fact in criminal matters.
The right to trial by jury is in place under the Constitution. If the Court of Criminal Appeal here and the Court of Appeal in England consider factual evidence and decide on it, that is a departure from trial by jury and people will be kept in jail because three judges have decided that new evidence tendered which was not available on the last occasion is faulty or incredible. Will the Minister of State  tell me what it is about this pathetic set of proposals which will save us from the same fate when the next scandal or suspected miscarriage of justice comes before the courts? There is nothing different in this Bill.
The provisions relating to the Court of Criminal Appeal and its powers do not clearly set out what happens when evidence which it is believed would have an effect is put before it. Is the Court of Criminal Appeal to assess its credibility or decide to have a jury re-empanelled to go over the whole trial again? The Bill does not say which must be done and that is of crucial importance. It does not specify that the court must, if it discovers evidence which if true would sway the jury's mind, order a second trial. In many cases there are good reasons why a second trial could not be ordered. If a person comes back with a crucial witness five or seven years on, half of the primary witnesses originally available to the prosecution may have died or emigrated or have completely forgotten all the relevant evidence and the possibility of reconvening them for a trial would be practically zero. Under this Bill we are asking three men who are not suitable judges of fact to decide on new evidence which was not available at the original trial, to decide on whether or not the original jury might have been affected by this evidence and grant a retrial because the prosecution's case might have disintegrated. Alternatively if they decide that the evidence could have tipped the balance, they will quash the conviction because they are no longer satisfied that a jury could have been satisfied beyond a reasonable doubt if it had heard this evidence. That involves coming to a view on the credibility of evidence put before the court.
This proposal is a recipe for disaster. It means that every criminal jury verdict in murder and serious rape cases will be the first step in a long legal battle when every convicted person realises that there is an open door through which he can come back again and again with new witnesses, as long as he does not fall into the “frivolous and vexatious” category.
 In a celebrated case recently decided in the court the defence was that the man did not know how he had come to be in a particular place when a public house blew up around him. If his memory is jogged in five or ten years time will we see him back in the Court of Criminal Appeal saying that he can now produce somebody who saw him being dragged into the premises? Is this the kind of nonsense this legislation is inviting?
Mr. G. Mitchell: What is worse is that he said it without having a barrister to represent him.
Mr. M. McDowell: He had plenty of barristers to represent him. Another farce which could arise from what is being proposed is that everybody in Mountjoy who does not have a frivolous or vexatious case and can come up with a new witness or new facts which could have been put to the court will be given legal aid to fight his case, the prosecution will have to be represented by a team of counsel, and the gardaí will have to investigate the matters.
Mr. G. Mitchell: There will be plenty of lolly in this for the barristers.
Mr. M. McDowell: There will be a huge amount of money for barristers, most of which will be wasted. This could be avoided if we took on board what the Martin Committee suggested. It will be a vast waste of public resources and the Court of Criminal Appeal will be bogged down in these kinds of cases. The court will find that witnesses will be produced who require to be investigated by the police and typically the police will find that they are people without character who have previous convictions and so on. All these matters will be rehearsed before the Court of Criminal Appeal.
This scenario does not even deal with the man who wants to change his evidence, who wants to say that he told lies. As Deputy De Rossa pointed out and as the Martin Committee made clear, if one perjured somebody into jail or if one is a policeman who beat somebody up to get  a confession and had a change of heart ten years later and the accused is still rotting in Portlaoise, one could easily go before the committee system proposed by the Martin Committee and could confess in private and refuse to give the evidence in public so as not to expose oneself to an action by the accused for falsely putting him into jail. What kind of remedy is provided in the Bill for such a person? None. The Minister has not thought about how this will work in practice. It is great for the Minister to come in here and say that he is implementing legislation to deal with miscarriages of justice, but it defies belief that the Minister is creating more and more problems without having consulted with anybody who knows anything about the issue and has come up with a group of futile proposals as the answer to the problem. He does not realise that he will magnify all the problems already associated with criminal law. It defies belief that this process could have led to this Bill being put before the House in these circumstances and that this is the Minister's best effort at dealing with these issues.
Some of the provisions which were taken out on Committee Stage in relation to compensation shows how futile the whole thing is. If the onus of proof was beyond reasonable doubt, as the Department of Justice officials who drafted this Bill originally proposed, Edward Noel Kelly would not have got any money because it was never decided beyond a reasonable doubt that he was entitled to compensation. This is the kind of nonsense that we have to face. That man has £800,000 compensation and is now being told by the Minister that he has not even got an exculpation of guilt. If there is a High Court case which declares that this pardon given to Edward Noel Kelly touches his guilt as well as his penalties, it will be a very expensive lesson in law for the Department of Justice and they will then realise that there was no point in having all these return trips to the Court of Criminal Appeal because there was a very simple method of arriving at the same result which was free of all the  legal doubts they are rehearsing in the context of this Bill.
The principle of this Bill is wrong but it is never too late for the Government to say that it has got it wrong. The Government has rushed this through without consulting anybody. This matter has been before the House over a period of a month but the Government has achieved nothing in terms of addressing the fundamental principle. Even today the Minister has said he is not satisfied as to the effect of a pardon. If he seriously thinks that the effect of a pardon is not to touch guilt, he will have litigation in the High Court in the case of Nicky Kelly because what the Minister has said today is that in the eyes of the law that man stands guilty. What chance would Edward Noel Kelly have of going back to the Court of Criminal Appeal and availing of this ridiculous procedure so many years later if the Minister is right about the fact that his guilt still stands?
What chance would he have of availing of this ridiculous procedure? Would he bring his new evidence to the Court of Criminal Appeal and say he has discovered several discreditable facts about those who may or may not have interrogated him? What would the Court of Criminal Appeal do then? It would grant him free legal aid, the DPP would have to brief counsel and, under the provisions of this Bill, the matter would have to be investigated by the Garda Síochána. They would have to again investigate the Edward Noel Kelly case. What is the point of this provision? Does the Minister not realise it would not even satisfactorily address a case such as the Tallaght Two or be of assistance to the Birmingham Six because this type of provision got them into the mess in the first place. Constables Lynass and Clarke had their reputations destroyed by this type of nonsense.
Neither would this provision be of any assistance to Edward Noel Kelly. Who will it assist? With what type of injustices is it supposed to deal? It will not affect genuine cases which a committee of inquiry or a pardon procedure would cover. It will summon, like summoning spirits from a graveyard, every type of  lunatic application. Everybody serving a life sentence in our prison system at present will see a chink of light and try to establish new facts.
I will give the Minister an example of what will happen as a result of this provision. Let us suppose ten to 20 people are sent to jail on the evidence of two gardaí who took their confessions even though many protests were made before juries and so on that they had abused their interviewees. If it is proven that those gardaí assaulted a person in one of the cases, will that be a newly discovered fact which, if the original jury had discovered, would have caused them to take a different view of the gardaí? If one of those gardaí, while drunk in a pub, admits to beating up a number of people in the past, does it mean everybody convicted by him will have a newly discovered fact to bring before the Court of Criminal Appeal?
When one examines the details of the legislation one begins to see what is radically wrong with it. This is not fantasy on my part. It was discovered that the West Midlands Crime Squad was riddled with corruption. Does it mean that everybody convicted on the evidence of a member of the West Midlands Crime Squad can say they have a newly discovered fact that the people who gave evidence against them, although posturing as credible witnesses, were brazen liars? Would this provision open the doors for such cases? In such circumstances, how would one distinguish between those who made genuine confessions and those who did not? Would it mean letting them all go if the Court of Criminal Appeal takes a single view in a number of cases? Each case will set a precedent. If it is proven that a garda is not a credible witness in one case, he or she cannot be deemed a credible witness in any other case. If judges disbelieve the gardaí, or believe them and disbelieve others, we are departing completely from the notion of a jury verdict.
Section 3 (1) (d) of the legislation states that the Court of Criminal Appeal may quash a conviction in certain cases and, if it appears to the court that the appellant  could have been found guilty of some other offence and that the jury must have been satisfied of facts which proved him guilty, it could substitute for the verdict a verdict of guilty of the other offence. I do not usually come in here and state that something is unconstitutional but I suspect that provision is unconstitutional. For example, if a person found in a premises says he did not intend to commit a murder but to commit a burglary and brings witnesses along to prove he was there to commit a burglary and did not commit the murder, is it open to the Court of Criminal Appeal to say he is not guilty of murder but, if any of the evidence is true, he must be guilty of committing a burglary and impose sentence accordignly?
Is the Department of Justice aware that in the People v. Davis case in the past year a judge of the High Court and the Central Criminal Court directed a jury to find a person guilty of murder, asked them not to leave the jury box and said that on the basis of the evidence presented no jury could reasonably withhold a verdict of murder. The jury insisted on retiring and came back with a verdict of manslaughter. Although, under the provisions of this legislation, the Supreme Court will not decide such cases in the future, it stated in such cases a judge is not competent to direct a jury as to what they should be satisfied with. If that is the position in a murder case, does not the same principle apply where judges of the Court of Criminal Appeal state that on the evidence the jury would have been satisfied in respect of a matter?
The Court of Criminal Appeal is not a fact finding body and this section of the Bill purports to give it jurisdiction to convict people of offences with which they were not even charged, which is remarkable. Who devised that idea, where was it tested or what consultation was held among constitutional criminal lawyers? I do not bleieve any effort was made in that regard. This is lazy minded nonsense from the Department of Justice and it should not be allowed to be enacted in its present form.
I make no apology for taking up the  time of the House on this matter. I believe passionately that I am correct, that I will be proven right and have the ultimate satisfaction, wherever I am in a few years' time, of indicating to the Minister the foolishness of this legislation, if it is enacted. I have never seen a Minister, on a Bill as important as this and based on a report conducted by experts, doing a U-turn on the expert advice received and literally tearing up the principles of the experts who were asked by the Government to consider the report. It is not as if a group of self-interested barristers, a group of foolish laypeople with no idea about the law or a group of people whose judgment is defective, regardless of status, arrived at the conclusions of the report of the Martin Committee. A number of senior civil servants and a senior member of the Garda Síochána were on the board and it was chaired by an experienced judge. The Attorney General's Office was also represented.
They all considered these issues and come to the view that what the Minister proposes is fundamentally wrong, they had the guts to point out the futility of the course the Minister is undertaking. He has not answered their arguments or dealt with the faults they identified in the course he is pursuing. Instead he has adopted a weak-minded approach, that we will try the system which has been tried and failed in Britain and add to it a little ingredient of a committee of inquiry to assist the Government.
I strongly counsel the Minister of State to abandon the principle of this Bill and adopt what his experts told him was the right approach to this problem. If he fails to do this he will do more damage in one Bill to the idea that a jury's verdict is final and that the sentence imposed by a court is final than the terrorists and subversives have done to the rule of law. Everybody who is in jail for 15 to 20 years is going to regard this Bill as their potential passport to freedom. It contains nothing to protect the legal system from all the scandals which befell the British system when judges began to substitute  their own determinations as to the credibility of witnesses instead of allowing juries to do so. That is what is at stake here.
Even at this stage I implore the Minister of State to go to the Law Society, the Bar Council, the Irish association of law teachers and the criminal lawyers association for their observations on this Bill. I genuinely assure him that he would have room for thought and hesitation and would say that perhaps now is not the time to proceed with this measure but rather to look again at the principle of the Martin report to see whether it is the right way around the problem.
The Minister of State has said that somebody who cannot prove in a court of law that they are innocent because evidence is not available — for instance, the person who can prove they are innocent will not stand up in a court of law — can be given a pardon but, because the Minister of State misunderstands the term “pardon”, they would still be guilty. He has said, effectively, that Edward Noel Kelly has been given £800,000 and a pardon which on the face of it exculpates him but he still stands guilty in the eyes of the law. A Minister of State who comes before the House that misinformed and badly advised as to produce a Bill of this kind should at least do us the courtesy of hesitating before proceeding any further with the legislation. There are many opinions and plenty of expertise available on this matter but none of it is apparent in this Bill; quite the reverse, this Bill is a charter for chaos in the administration of the criminal law and the responsibility of this will lie firmly with the Minister of State if he proceeds any further with this measure.
Ms O'Donnell: It is necessary to repeat that we support the principle of this legislation which is to provide a remedy in cases alleging a miscarriage of justice. There is a need for such a remedy. Recent legal history, both here and in the United Kingdom in particular, shows that despite the fact there is a good track record in regard to our justice system through several appeals procedures on  rare occasions — we have to believe this — substantial doubts may exist in certain cases, as to the propriety of a conviction. Therefore there is a need to set up a review body.
While we agree that there is a need for a review body we believe that sections 7 and 8 buttressed by a clarity as to the legal effect of a pardon, are adequate to deal with the cases this legislation seeks to address. As my colleague said, there has never been a call to put in place an open-ended system whereby ordinary cases would be referred back to the courts when new evidence is presented. One point I would like to make about the committee system which has been put in place in this new Dáil is that on Committee Stage the Minister of State was accessible; perhaps he was too accessible in that we had a heated debate on the legal effect of a pardon and on the Nicky Kelly case. However, it proved useful because in that interchange of ideas we discovered that the rationale and the reason the Government is going against the advice of the Martin committee — this was a source of bewilderment for all Deputies — and pursuing instead the dual option. There was never any demand for the first option — referral back to the courts. This interferes with the principle of finality and res adjudicata in criminal cases. As Deputy McDowell said, it will also lead to chaos.
On Committee Stage the Minister of State admitted that the people concerned in cases involving lies, a conspiracy of silence, perjury and where prisoners are abused by the authorities will be able to avail of the second best solution of a pardon because there are some doubts as to the legal effect of a pardon, according to the Minister of State. We must remember that the purpose of the legislation is to provide a remedy in cases involving a miscarriage of justice — those odd and unusual cases. The Department, rather than attempting to solve the original problem and to provide a review system in cases involving an alleged miscarriage of justice, has confused the issue. What we have got instead is this needless referral to the courts for ordinary criminals  while the persons concerned in the cases that do not fit into that category will be able to opt for the alternative route of a pardon which is also unsatisfactory. In providing these two options the Minister of State is pleasing nobody and confusing everybody.
Deputies on all sides have nothing to gain politically in pointing out the errors in this legislation. It is not a political matter, it is a question of getting it right. There is widespread agreement arising from the lessons we learned in the Guildford Four and the Birmingham Six cases that there is a need for a review body. A special committee was set up to examine this matter but the Minister of State has turned his face against its recommendations and opted instead to implement in part the recommendations of the Martin committee. In the process cases will be needlessly referred back to the courts. However, this will cause untold problems. A practitioner such as Deputy McDowell is in the best position to be the judge of that. I am not happy with sections 7 and 8.
Even if we were to opt for the dual route I could live with it because it will be proved in the future that the proposal to refer cases back to the courts was a disaster. If I felt that the second option, the second best solution of a pardon for those who have been abused and been the victims of a miscarriage of justice was good enough I could live with the dual route but, given the confusion and the lack of clarity as to the legal effect of a pardon, this matter is in a mess. It should be clarified in legislation so that at least we would be able to say that we have learned the lessons from previous cases and that we have produced a system under which a real remedy will be provided to blot out the guilt of somebody who has been found by a tribunal to be the victim of a miscarriage of justice. I urge the Minister of State to think again.
When we discussed this matter on Committee Stage the Minister of State had no option but to be responsive given the vigorous opposition of Deputies. Indeed, it was difficult to find a Government Deputy, even in the Labour Party,  who supported this proposal. I urge the Minister to go back to the Attorney General, to consult more widely and to reconsider the matter. How he will do this before tomorrow is beyond me, but perhaps the other House will provide an opportunity.
Mr. G. Mitchell: Deputy O'Donnell should not anticipate the Minister's not accepting my amendment.
Ms O'Donnell: I just feel that the Minister's face is set against us, that she is not for turning on this one. That feeling is based on the deliberations both on Committee Stage and now. I live in hope.
Mr. O'Donoghue: I listened with interest to the previous contributors. Although one might have a certain sympathy with what Deputies McDowell and O'Donnell say, I fail to see the logic of their argument. The suggestion is that if the matter were referred to a tribunal the chaos and the constant referrals would end. There is no evidence to support that contention: a rose by any other name would smell as sweet. The court is the appropriate body to consider the matter.
It has been contended that anybody can newly discover a fact. That is true. But in the Bill it is stated that the newly-discovered fact must show that there has been a miscarriage of justice. To that extent it must go to the root of the case and is of fundamental importance to the administration of justice. That much must be said.
As to the Court of Criminal Appeal itself, I do not think a person of Deputy McDowell's standing in the legal world would suggest for one moment that the Court of Criminal Appeal would ignore a newly-discovered fact which showed that there had been a miscarriage of justice. That suggestion, if carried to its logical conclusion, would mean that perhaps the Court of Criminal Appeal which cannot be trusted to consider a new fact which shows there has been a miscarriage of justice should not have heard the case in the first instance. That  kind of logic will not wash with anybody in the Four Courts or with anybody out in the street listening to this debate. In short, the measure the Minister is introducing, although complex, appears to be just about the best way of dealing with these matters. The suggestion that there will be constant referrals and no finality is to say that a newly-discovered fact can be anything once it is some kind of fact. That is not the case. Neither is it the case that one would avoid constant referrals by having a tribunal.
In general terms the administration of criminal justice here has been of the highest standard. However, there are and have been cases where it is clear, prima facie at any rate, that an injustice was done. There is no self-respecting judge on the Court of Criminal Appeal who would ignore a new fact which showed that there had been a miscarriage of justice. To be fair, the Court of Criminal Appeal has no vested interest in convicting people of crimes. Deputy McDowell would accept that much. For that matter, no court has a vested interest in convicting people of crimes. Some balance is called for and I sincerely hope I have provided that.
Mr. O'Dea: First, I want to deal with the case of Edward Noel Kelly. On Committee Stage Deputy O'Donnell asked me if a pardon, as contained in Article 13.6 of the Constitution, touched guilt. I said I had taken advice and that I was of the view that it did not set aside the conviction. All I can have in relation to this is a view, because we will not know exactly what the term “pardon” in Article 13.6 of the Constitution means until the courts interpret that term. We cannot interpret, expand or delimit it. We cannot say it means a certain thing if a President or somebody else says something in a certain way. That is the only point I make. I am not saying definitely that the pardon granted to Mr. Kelly did not exculpate him. I am just saying what view I took and that the term has not been defined. I fully accept the terms of the pardon granted by President Robinson  which Deputy O'Donnell has read into the record.
Deputy McDowell said that whatever he or I may be in a few years' time, he will be able to say that he was proved right and I was proved wrong. Given Deputy McDowell's record of predictions to date, I am happy to tell the House that I will sleep well tonight.
I will not have time to deal with all the points made by Deputy McDowell between now and 7 o'clock. However, I can assure the Deputy that I will deal with each and every point he made, however long it takes. These amendments were discussed at some length on Committee Stage and revealed quite a clear difference between the approach of the Government and that of the Opposition on how best to review alleged miscarriages of justice. In keeping with the positive and constructive spirit of the debate on Committee Stage, I said that I would look again at the amendments to see if there was any way in which a compromise could be reached. I gave it a great deal of thought and a close reading of the Martin committee report does not convince me that I am wrong; nor does what I heard on Second Stage, on Committee Stage or here tonight convince me that I am wrong. I am still open to being convinced if somebody can put up a convincing argument.
Mr. M. McDowell: You may be the problem.
Mr. O'Dea: I will deal with each and every point the Deputy made. I do not want to go over all the points I made on Committee Stage, but I am anxious to give Deputies a clear and reasonable explanation of my position and that of the Minister. There is a strong and compelling argument in favour of enabling the Court of Criminal Appeal to re-examine a case where fresh evidence emerges. Our Constitution requires justice to be administered in courts established by law. The Court of Criminal Appeal was established by law for the precise purpose of hearing appeals against conviction or sentence. It is entirely reasonable, sensible  and proper to say that the court should hear further appeals based on fresh evidence. That is the type of work for which the court was created and in respect of which its powers are being improved in this Bill.
Much was made on Committee Stage of restrictions which apply to the court, such as rules of evidence and sanctions against people who commit perjury. In fact, these are not restrictions which prevent the court from getting at the truth, but protection for people accused of crimes, protection which centuries of judicial experience has found to be desirable. There are good reasons why evidence must generally be heard direct from a witness, and not second or third-hand; why people cannot with impunity change their evidence on oath from one hearing to the next; and why a defence witness who claims to be the real culprit should have to bear responsibility for that position. The argument that we should move away from the Court of Criminal Appeal in this Bill is an argument that we should move away from the essential safeguards and protections that are an intrinsic part of our system of criminal law. Of course the Bill anticipates and provides for cases which would not be suitable for the courts, but that is a very different matter from a complete abandonment of court appeals.
Perhaps the main argument I have heard against the inclusion of the court in this Bill is that the court will, in the teeth of fresh evidence, invariably hold to its previous affirmation of conviction or sentence. I do not accept that in any way and I reject what is, no matter how it is dressed up, a slight on the integrity of the court.
Mr. M. McDowell: Get off the stage.
Mr. G. Mitchell: On a point of order——
An Ceann Comhairle: There is no point of order. Let us hear the Minister of State.
Mr. G. Mitchell: On a point of order, what he said was completely out of order.
Ms O'Donnell: That is not the sense of what we said.
Mr. M. McDowell: It is not permissible to cast a slur on a Member of this House in the way the Minister did.
An Ceann Comhairle: What we have heard is merely a political charge.
Mr. M. McDowell: It is not a political charge. He has directly accused me of casting a slur on the Judiciary of this country——
An Ceann Comhairle: I do not think so.
Mr. M. McDowell: ——and I have never done anything of the sort and never will.
An Ceann Comhairle: Let us not be thin-skinned about this matter.
Mr. M. McDowell: If I accused the Minister of casting a slur on the Judiciary it would not be a political charge.
An Ceann Comhairle: I am sure if the Minister of State cast a slur on any Deputy present he would immediately withdraw it. I have heard no such imputation.
Mr. M. McDowell: It is wrong to accuse Deputies of casting a slur on the Judiciary when all they have said is that the Judiciary is——
An Ceann Comhairle: The Deputy may not make a speech. He raised a point of order.
Mr. M. McDowell: Will I get a ruling on it?
An Ceann Comhairle: Yes indeed. I  have ruled that what the Minister said can be regarded as a general charge.
Mr. G. Mitchell: On a point of order, as I said in my contribution, I want to make it clear that my comments on the Judiciary are not in any way a reflection on it. I paid tribute to the Judiciary. The Minister is misleading the House by suggesting that any Member of the Opposition——
An Ceann Comhairle: The Deputy is generalising.
Proinsias De Rossa: I was not generalising when I stated I thought there would be a reluctance on the part of the Criminal Court of Procedure to reverse a decision already made. I base that position not on any belief that persons who sit in such a court are unfair but on the experience of the Birmingham Six case where the Chief Justice declared that he could not reverse a decision because of the appalling vista it would open up. It would be a total misrepresentation of the position of those people to suggest that Deputies on this side of the House, who are arguing a valid case, are casting a slur on the Judiciary. I ask the Minister to withdraw his comment.
An Ceann Comhairle: I have heard enough in respect of that matter. I call on the Minister of State to continue.
Mr. O'Dea: If it makes Deputies opposite happier I withdraw my comment, no personal insult was intended by it. Deputy De Rossa's point refers to the former Master of the Rolls, Lord Denning, in the United Kingdom, but we are referring to the Irish courts. In saying that I am not casting any slur on the English courts and I will deal with that point.
I believe that the court will impartially assess any fresh evidence and base any decision on that and that alone. In any event, the argument that the court will  somehow be reluctant to change from its previous verdict in a case because of a natural human disinclination to admit a mistake is inherently flawed. Any new appeal will be based on fresh evidence, that is evidence which was not put to the court in the first place. A court can only decide a case on the evidence before it, so what possible reluctance could the court have in saying that if it had heard this evidence at the first appeal, it would not have affirmed the conviction?
Of course, the Martin committee was concerned to deal with the issue of alleged miscarriages of justice which are not suitable for assessment by a court. I acknowledge that there could be such cases and that provision must be made for them. In that regard the Bill faithfully follows the recommendations of the Martin committee and provides that cases not suitable for the Court of Criminal Appeal can be referred to a committee of inquiry which will give its opinion as to whether the President should be advised to grant a pardon. The precise effect of a pardon was raised by Deputy O'Donnell on Committee Stage. I do not believe there was much difference of substance between us on the issue. Having listened to the discussions tonight I may have to change that view and I will come back to that point.
What is beyond doubt is that a Presidential pardon cannot be granted where a person remains guilty of an offence. This point was well made by Deputy Gilmore on Committee Stage when he said that the establishment of committees to recommend Presidential pardons can, by definition, only deal with cases where there has been no guilt of any kind.
The technicality matter is a different one and I will come back to that point. Deputy Gilmore's point is correct and it highlights the importance of providing a procedure whereby convicted persons may, on the basis of new evidence, seek to have a lesser conviction imposed or to have a sentence reduced. Section 2 provides that procedure. Only the Court of Criminal Appeal can substitute a lesser conviction or reduce a sentence in these  cases. To oppose a referral back to the court would be to leave persons in such a situation without a remedy.
The reference in Deputy Gilmore's amendment No. 3 to the Government taking such other action as it considers appropriate does not meet this crucial point. I presume the Deputy is referring to the power to commute or remit a punishment, forfeiture or disqualification imposed by a court. However, this would leave in place the conviction affirmed on appeal and the convicted person liable to any consequences which flow from that. Commutation or remission of sentence is a valuable constitutional option, but it would not be an answer to many of the types of cases which could arise under this Bill.
The essence of this Bill is a balanced approach to cases of alleged miscarriage of justice. The Bill recognises that not every case can be dealt with by the courts and not every case can be dealt with by committees of inquiry. I would ask Deputies themselves to recognise this and to support the proposals in the Bill.
The purpose of amendment No. 6 is to apply to summary convictions the new provision of returning to a court of appeal with fresh evidence. On Committee Stage, I explained why that would not be a practical proposal and, for the same reasons, it is still not practical.
The first point that strikes me about this amendment is that it proposes that the Court of Criminal Appeal should hear second or subsequent appeals against summary convictions. That is a completely unrealistic proposal. If the principle is to be accepted of permitting persons who have unsuccessfully appealed against summary convictions to appeal once again on the basis of fresh evidence, then the only possible court would be the Circuit Criminal Court.
It is, however, difficult to see how the Circuit Criminal Court could deal with such a further appeal because of the way in which summary offences are tried and the way in which appeals are heard. Proceedings in the District Court are not recorded nor is any appeal to the Circuit Criminal Court. Unlike the Court of  Criminal Appeal, which can consider an appeal or order a retrial, appeals to the Circuit Criminal Court are by way of a complete rehearing before the judge sitting without a jury. Such a judge, hearing a further appeal, would have no transcript of the trial or the appeal. The only option open to the judge would be to conduct a rehearing, but the judge would have nothing against which to assess the significance of the fresh evidence to even decide whether there ought to be a rehearing. The new statutory procedures for the consideration of a pardon will apply to persons convicted of summary offences where fresh evidence comes to light. This seems to me to be the only practical remedy in such cases.
Regarding amendments Nos. 7, 8, 17, 21 and 22, concern was expressed on Second Stage that a convicted person who holds back exculpatory evidence for a genuine reason, for example out of fear or a desire to protect another person, should not be prevented from adducing evidence of this on an application under section 2 or in a petition for a pardon. The circumstances where this might happen would be exceptionally rare, but I accepted that the possibility should be provided for and, accordingly, appropriate Committee Stage amendments in the Minister's name made clear that a convicted person may apply to the court under section 2, or have a petition for a pardon considered under the new procedure in section 7, even where the fresh evidence had been withheld by himself or herself. Of course, there would have to be a reasonable explanation as to why the evidence had not previously been adduced and the court or the Minister for Justice, as the case might be, would have to be satisfied of this. The amendments I tabled on Committee Stage so provided and dealt with the substance of amendments Nos. 7 and 8 now proposed by Deputy Mitchell.
The amendments now being debated are the same as those tabled by the Deputy and debated on Committee Stage. I explained then, and I will now explain again, that these amendments  provide for a circumstance already provided for in the Bill — provided even before the Minister's Committee Stage amendments. The reason is that if a person other than the accused declines to bring relevant evidence before the court, and if this subsequently comes to the attention of the accused, then that will constitute a newly discovered fact. The definition of newly discovered fact clearly covers that position. The only issue of concern, therefore, is a situation where the accused himself or herself holds back exculpatory evidence. This situation is explicitly provided for in the Bill as a result of the Committee Stage amendments.
Having explained why I cannot accept the first three amendments in this grouping, I want to set out the reason I cannot accept the remaining two amendments. Essentially, the position is that any situation whereby a person other than the accused withholds evidence is already covered by the definition of newly-discovered fact. This applies to section 9 as much as to sections 2 and 7. However, while I believe that an accused who deliberately withholds exculpatory evidence should always be enabled to establish his or her innocence, I do not accept that such a person should be entitled to compensation. That would be the effect of the fourth and fifth of these amendments to section 9 and I must oppose them albeit for a slightly different reason from that which applies to the first three amendments.
Regarding amendment No. 10, I undertook on Committee Stage to have another look at this amendment to see if, in light of the arguments put forward on Committee Stage, I could accept it. In relation to the precise details of the amendment, I will refer briefly to the purpose of the provision. In section 3 (3) (a) the Court of Criminal Appeal is being given an important new power to order the Garda Commissioner to carry out inquiries to see if further evidence ought to be adduced. The court's role will be to adjudicate on the evidence presented to it and not to carry out an inquiry itself.
 There may be cases where issues raised by the appellant or prosecution cannot be resolved on the facts available and which the court may wish to have investigated further.
|Last Updated: 22/05/2011 05:00:37||Page of 176|