Wednesday, 10 December 2008
Seanad Eireann Debate
I welcome the Minister to the House and I appreciate his presence. This is a Bill to refine the law of evidence. I preface my introduction of the Bill by stating that Fine Gael is fully committed to upholding respect for human rights and fundamental freedoms. That is one of the reasons we have been forceful in trying to ensure that the bodies and authorities in this country which are mandated to uphold human rights here are properly funded. We believe in a just society, an education system and social supports which give young people a chance in life and ensure that the preconditions exist which would prevent them from, or at least give no encouragement in, going down the route of a life of crime. We believe in a prison system that is fit for purpose and provides the necessary rehabilitation, drug treatment and educational programmes that give people a second chance and encourages them not to reoffend.
We also believe in effective policing, an effective prosecution system and a criminal justice system that guarantees a fair trial to the accused. This Bill is introduced in that context. It is grounded on considerations of the rights of the accused, the rights of the victims of crime, society’s interest in the effective prosecution of criminals and public confidence in the administration of justice. The Government’s programme provides for addressing this issue of the exclusionary rule.
As regards what is that rule, it is a judge-made rule which deems evidence that is obtained improperly or illegally, in particular where it is obtained contrary to some constitutional right, is automatically deemed inadmissible. Regardless of the seriousness of the crime, there is a rigidity in this rule, which means that prosecutions are impeded and, in many cases, cannot proceed. In simple terms, I would call it dismissal of a case on the grounds of a technicality because of this automatic exclusion, even where the breach is, in many cases, not intentional and not that serious.
The basis for this Bill is also grounded on the fact that we are out of line with other common law jurisdictions, including the United Kingdom, Canada, Australia, New Zealand and even the United States, which originally had a rigid rule regarding this issue of admissibility of illegally or improperly obtained evidence.
This issue has been aired in the courts and various issues have been raised about this rule. One is that it can be argued that the rule, in its current form, is contrary to the European Convention on Human Rights. In a recent High Court case, the judge considered that a rule providing for the automatic exclusion of evidence obtained in consequence of any mistake that infringes any constitutional right of an accused may be incompatible with Ireland’s obligations to provide, for both the accused and the community, a fair disposal of criminal charges. The rule is anachronistic. It is potentially incompatible with the European Convention on Human Rights and it is out of line with jurisprudence in other common law jurisdictions. Moreover, it is a rule that is not mandated by the Constitution.
The case law in our courts has varied over time but there is a view that the rigidity of that rule should apply. I attended a criminal law seminar on Saturday and conflicting views were expressed as to whether the exclusionary rule should be amended. It has been the subject of debate by the balance of the criminal law review group, which also expressed different views. The merit of changing the role was acknowledged but there is some dispute about how that is done. I will return to that point later.
A substantial volume of criminal cases are reduced to arguments of procedure and not substance. The focus in so many criminal indictments is an attempt by the accused to assert the rights arising from those breaches. They tend to get elevated to the status of a breach of constitutional right.
The textbook of Peter Charlton and Paul Anthony McDermott states: “In consequence, the rules of substantive criminal law have been either ignored or overlooked in favour of this process.” The right of the accused to have evidence excluded is elevated to an absolute right without other considerations. The same textbook points out that Article 40.3.1° of the Constitution refers to protecting the personal rights of the citizen, as far as practicable, and protecting those personal rights as best it may from unjust attack.
There is a reference to a judgment of the Supreme Court, which states that this implies circumstances in which the State may have to balance its protection of the rights as against other obligations arising, having regard to the common good. In a recent case the High Court made a point that is common jurisprudence, namely, that none of the personal rights of a citizen was unlimited. The decision of the Oireachtas on the reconciliation of the exercise of personal rights with the common good should prevail unless it was oppressive to some or all the citizens and unless there was no reasonable proportion between the benefit which the legislation would confer on the citizen, or a substantial body of them, and the interference with the personal rights of the citizen.
The justification for the rigid exclusionary rule is to prevent and minimise abuses by the police or to discipline or penalise it in some way for the breaches arising. The reality is that all we are doing is penalising society and the accused who may be the subject of the criminal offence in question. We have a Garda Ombudsman Commission and procedures are in place. We have learned a lot about how much Garda discipline and behaviour can deteriorate. However, lessons have been learned and we have established the procedures now in terms of the necessary oversight and discipline. It is no longer valid to use that as a reason to have this rigid rule.
It is beyond question that there is a constitutional right to a fair trial. It is part of our constitutional provisions and it is also part of the European Convention on Human Rights to which the State subscribes. There is no question that if there are flagrant violations of fundamental rights without any excusing circumstances that can undermine the administration of justice. However, it is also the case that if an accused is released without the hearing of the evidence, without the opportunity for a jury to consider the evidence or for the judge to give the necessary directions which can ensure there is a fair trial, that also brings into disrepute the administration of justice. That happens frequently and it is a deterrent, as shown by the examples we have of where that occurs and the cases where the Director of Public Prosecutions may be deterred from taking cases because of some procedural flaw in the collection and prosecution of a case. In the People (DPP) v. Joseph Dillon it emerged that during the arrest of a person involved in drug dealing a garda answered the accused’s mobile telephone when it rang and linked up with and subsequently arrested the person at the other end of the telephone for drug dealing. That was found to be a legal interception under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act. Those types of perverse results can arise from the application of this rule.
To deal with the elements that are necessary to ensure that this is correct, there needs to be a balancing rule and it should be put on a statutory basis as that would bring us into line with the law as is applicable in other jurisdictions and with the European Convention on Human Rights.
The question then is how we do it. It has been suggested that it may be done by referendum or in ordinary legislation. I believe it can be done by the latter method. The Supreme Court has not had the opportunity to deal with this type of legislation nor deemed it unconstitutional. The Oireachtas passes legislation with some regularity on the rules of evidence. It is not correct to say that where the Supreme Court deals with issues touching on the Constitution that always creates a constitutional rule which is immune from being the subject of legislation.
The Supreme Court would apply two tests to the legislation. Article 38.1 states: “No person shall be tried on any criminal charge save in due course of law” and Article 40.3.1° states: “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” I suggest that the safeguards in the Bill ensure that the legislation is compatible with those two provisions. If there is any doubt as to the constitutionality of the legislation it will be referred to the Supreme Court and to the President under Article 26 of the Constitution.
Senator Maurice Cummins: I second the Second Reading of the Bill. I pay tribute to my party colleague, Senator Regan, who drafted the Bill. It is in the best traditions of this House that Members submit Private Members’ Bills. This Bill is timely and relevant.
Senator Regan introduced the Bill to end the practice of criminals avoiding convictions due to a technicality arising from outdated rules of evidence. The Bill will end the practice whereby evidence obtained improperly or illegally by the Garda Síochána is automatically excluded from criminal trials. The purpose of the Bill is to abolish the rules of evidence otherwise known as the exclusionary rule. It provides that evidence obtained by some mistake or oversight by An Garda Síochána is automatically deemed inadmissible in trials. The Bill proposes that admissible or improperly or illegally obtained evidence is decided on the basis of balancing the interests and rights of the accused with the constitutional rights of the victims of crime, the public interest in the prosecution of crime and public confidence in the administration of justice. As it stands, the exclusionary rule stipulates that evidence obtained by a mistake of one kind or another by members of An Garda Síochána which may have the effect of infringing a constitutional right of an accused individual is automatically deemed inadmissible and excluded from court proceedings. Due to the automatic exclusion of such evidence, many cases, ranging from drink driving cases to more serious ones, are dismissed on what is generally termed “a technicality”. This prevents the effective prosecution of criminals and certainly destroys public confidence in the criminal law system. Public confidence is the key in that there must be public confidence in our laws and in their administration. Too often, cases involving drink driving and more serious cases have been deemed inadmissible on the basis of technicalities.
To formulate a rule of exclusion based on a mere accident deprives the jury of the ability to decide the guilt or innocence of the accused fairly on the basis of all the relevant evidence. The Bill places the rule of the admissibility of evidence improperly or illegally obtained on a statutory basis and brings it into line with that applicable in other common law jurisdictions, as outlined by Senator Regan. It is not the function of the criminal courts to discipline police officers by the exclusion of evidence. As was pointed out, there are mechanisms for dealing with this that involve other agencies, including the Garda Ombudsman Commission, and the Minister for Justice, Equality and Law Reform.
Crime is rife in Ireland today and the sophistication of crime lords is making it increasingly difficult to ensure the effective prosecution of crime. The enactment of Senator Regan’s Bill will go some way towards ensuring the effective prosecution of criminals while, at the same time, balancing the interests of the accused with those of the victim and society in general.
The aim of the Bill before us is to revise the law of evidence in criminal proceedings. Its particular target is the exclusionary rule of evidence as enunciated by the Supreme Court in its 1990 judgment in the People v. Kenny. There is no doubt but that the impact of the Kenny judgment on criminal trials has been profound. While it is not appropriate for me as a member of the Executive to make any comment on the decisions of the Judiciary, I note that Mr. Justice Charleton said in respect of the Cash case of 27 March 2007 that “the entire focus is on the accused and his rights; the right of the community to live safely has receded out of view.”
The operation of the rule affects not only the ability of the State to sustain prosecutions but also decisions to prosecute in the first instance. I agree that some relaxation of the rule needs to be considered and, therefore, I have some sympathy for the sentiments in this Bill. As Senator Regan stated, this view is reflected in An Agreed Programme for Government. I refer to the relaxation of the rule because I do not believe anyone would argue that all evidence should be admissible irrespective of how it was obtained. An exclusionary rule of evidence is now a feature of most common law countries and many civil law countries, and public debate centres on the scope of the rule rather than on the need for it. It is in this context that I welcome this Bill as a contribution to the ongoing debate on this issue. However, agreeing that the rule requires change is the easy part; it is a little more difficult to determine how that change is to be brought about.
Before commenting on the course of action proposed by this Bill or its detail, it would be useful to set out briefly how the current state of the law has come about. The origin of the rule has a direct bearing on how it might be changed. The rule in its current form was set out by the Supreme Court in the case of the People v. O’Brien in 1965. The facts of that case, a larceny case, are well known. The evidence against the two accused was obtained on foot of a search warrant which contained an error in respect of the address to be searched. The warrant referred to “118 Cashel Road, Crumlin” rather than “118 Captain’s Road, Crumlin”, a minor error that appeared to go unnoticed by the gardaí executing the warrant. The rule applied by the Supreme Court in concluding that the evidence obtained on foot of the warrant had been properly admitted was that evidence obtained as a result of the conscious and deliberate violation of the accused’s constitutional rights is not admissible as evidence, unless there are extraordinary excusing circumstances. This remains the case today.
The Kenny case in 1990 gave us the present interpretation of the words “conscious and deliberate”. That interpretation is at the core of the debate on this rule. This case, like the O’Brien case, also concerned the lawfulness of a search conducted on the basis of an invalid warrant. The error in this case was on the part of a peace commissioner. In the Kenny case, the Supreme Court held that the words “conscious and deliberate” qualified the actions of the garda rather than his state of mind in respect of the lawfulness of the search.
The court based its interpretation of the rule on the constitutional obligation on the State to defend and, as far as practicable, vindicate the personal rights of citizens and on the constitutional right to a trial in due course of law. Therefore, the rule in its current form appears to be constitutionally based.
The Bill before us this evening seeks to abolish this rule and replace it with a statutory rule. Sections 3, 4 and 5 of the Bill, in particular, appear to be premised on the proposition that it is possible to modify by statute the principle enunciated by the Supreme Court in the Kenny case. I am advised that such a course of action is constitutionally very doubtful. We must bear in mind that the provisions of the Constitution may be amended only by means of a decision of the people in a referendum.
As the House will be aware, this issue was very helpfully examined by the Balance in the Criminal Law Review Group established by my predecessor and chaired by Dr. Gerard Hogan, senior counsel. Its report was probably the first document I read when I took office in this Ministry. The chairman dissented on the question of amending the rule in any way but the remainder of the group took a cautious view in regard to how the issue should be addressed. The majority indicated they would wish to see circumstances in which “the court would have a discretion to admit unconstitutionally obtained evidence or not, having regard to the totality of the circumstances and in particular the rights of the victim.” Essentially, the group recommended that, initially at least, the powers vested in the Director of Public Prosecutions under the Criminal Justice Act 2006 should be utilised, where appropriate, to refer the question back to the Supreme Court. Prior to the coming into force of section 21 of the 2006 Act on 1 August 2006, the director did not have any legal avenue to have the issue revisited by the Supreme Court. That section inserts a new section 34 in the Criminal Procedure Act 1967, which now provides such an avenue. A decision of a trial judge to exclude evidence on the basis of the decision in the Kenny case may now, in the event of an acquittal, be the subject of a reference to the Supreme Court. The decision as to whether such a referral should be made is a matter solely for the Director of Public Prosecutions.
I understand the sense of frustration that prompted this Bill. However, it is my firm view that, before this House embarks on a constitutionally suspect course of action, other options should be exhausted. In particular, time should be allowed for the counter arguments to the Kenny case to be ventilated before the Supreme Court in a suitable case. I believe there are strong arguments in favour of a recalibration of the exclusionary rule, including the failure of the rule to allow the trial judge to weigh the public interest in ensuring that constitutional rights are protected by the agents of the State as against the public interest, in ensuring that crime is detected and punished and that the constitutional rights of victims are vindicated by the courts. This is a compelling argument for a relaxation of the rule, as is the failure of the rule to take into account whether the defect that occurred was caused by factors outside the control of the Garda Síochána and whether its members acted in good faith. A further argument is that the consequences flowing from the application of the rule, the unjust acquittal of the accused, is often out of all proportion to the trivial nature of the breach of the accused’s rights in the first instance.
In setting out these arguments against the rule as interpreted in the Kenny case, it is not my intention to diminish the principles underpinning the rule. Clearly, breaches of the constitutional rights of the accused must be treated seriously and sloppy police practices must not be tolerated. It is my view however, that a modified rule which would encompass a “good faith” exception or which would allow the trial judge to weigh the rights of the community at large and that of the victim against the rights of the accused, would continue to ensure that the guaranteed rights of the accused are treated seriously. It must also be recalled that changes in the operational practices of the Garda Síochána such as the video-recording of interviews with suspects and, of course, as Senator Regan said, the establishment of the Garda Síochána Ombudsman Commission, make the strict exclusionary rule less relevant as a protection against sloppy police work. As I said, my preference is that time be allowed for these arguments to be ventilated before the Supreme Court in a suitable case. I made my views in this regard known, in July this year, to the Attorney General who, I understand, in the context of the statutory consultations which take place from time to time between the Attorney General and the Director of Public Prosecutions, DPP, and permitted by section 2(6) of the Prosecution of Offences Act 1974, raised this matter in September.
I understand that the DPP is very conscious of the benefits of identifying cases in which the scope of the decision in the Kenny case can be argued so as to clarify the circumstances in which the rule applies. While the lodging of an appeal in any individual case is, of course, solely a matter for the DPP and appeals can take some time to be heard and adjudicated on, I believe this course of action should be allowed time to come to fruition. In the event that the arguments are put to the Supreme Court and it takes the opportunity to reaffirm the court’s analysis in the Kenny case, we will need to think again and look at other options.
I have focused thus far on the overall aim of the Bill which, as I said, is constitutionally doubtful. There are, however, numerous defects in the drafting of the Bill which, were it not for this fundamental flaw, would make it unacceptable.
Section 2 defines “improperly or illegally obtained evidence” as evidence which is obtained by the Garda or other law enforcement agency in a manner which breaches an accused’s rights which exist under or derive from common law, statutory criminal law or the Constitution. The section fails to distinguish between illegally obtained evidence and unconstitutionally obtained evidence. The strict exclusionary rule as enunciated in the Kenny case applies only to unconstitutionally obtained evidence — if unlawfully obtained evidence does not fall to be excluded under the Kenny test, the court has the discretion whether to allow the evidence to be admitted.
Section 3seeks to abolish the exclusionary rule “whereby improperly or illegally obtained evidence, which may amount to a breach of the constitutional rights of the accused, is automatically excluded from criminal proceedings”. This is not an accurate reflection of the exclusionary rule as enunciated in the Kenny case and applied by the courts. As I stated, unlawfully obtained evidence is admitted at the discretion of the courts. In circumstances where the court finds that evidence has been obtained in breach of the constitutional rights of the accused, the evidence may be admitted if the court considers that extraordinary excusing circumstances exist. While it is the case, as I have outlined, that the rule as set out by our courts is strict, it is not so strict as to require the automatic exclusion of evidence.
Section 4 requires the court, when determining the admissibility of improperly or illegally obtained evidence in criminal proceedings, to conduct a balancing exercise as between the rights of the accused, the constitutional rights of the victim of crime, including the right to life, bodily integrity and property, the public interest in the prosecution of crime and the public interest in the administration of justice. The section specifically provides for the constitutional rights of the victim but does not specify similar rights for the accused. This is a serious omission. Any attempt to modify the exclusionary rule must recognise the constitutional rights of the accused.
Section 5presents a number of difficulties. For example, paragraph (c) suggests that the seriousness of the crime with which the accused is charged is an appropriate factor to be taken into account by the court in determining the admissibility of evidence obtained illegally or improperly. In differentiating between crimes of varying severity, this paragraph appears to conflict with Article 40.1 of the Constitution which guarantees that “All citizens shall, as human persons, be held equal before the law.” Indeed, such a provision could arguably encourage double standards by the Garda in gathering evidence.
Section 6 provides that where it has been found that evidence was improperly or illegally obtained by a member of the Garda Síochána, a court may, where it is appropriate, refer the matter for investigation to the Garda Síochána Ombudsman Commission. I am doubtful about the usefulness of this proposal. The Ombudsman Commission already has, under section 102(4) of the Garda Síochána Act 2005, a discretionary power to investigate any matter that appears to indicate that a garda may have either committed an offence or behaved in a manner that would justify disciplinary proceedings. A complaint is not needed. Second, the Minister of the day can also refer any such matter to the commission.
These are just some of the difficulties with the Bill as drafted. They by no means constitute a complete list. To sum up, this Bill is based on a very shaky premise, that legislation can abolish a rule derived from the Constitution. My strong advice is that this is constitutionally suspect. In view of this, I am inclined to wait to see whether the new legal avenue opened up by the Criminal Justice Act 2006 will allow the counter arguments to the Kenny judgment to be ventilated before the Supreme Court.
First, as a practising criminal barrister who has argued some of these issues before the courts, I declare my interest in this. I welcome the opportunity to argue in this debate and I welcome the Minister. While the Bill may appear somewhat technical in terms of its subject matter, this is a very important issue, as other speakers said. Indeed, there is an ongoing debate, as Senator Regan said, among criminal practitioners in particular and among those with an interest in the criminal justice system, about the nature of the exclusionary rule. I spoke at conferences on this issue. A seminar was held at the weekend in Trinity College Law School on the criminal justice system and recent developments, at which the exclusionary rule was discussed — Senator Regan referred to the fact that I was one of its organisers.
The balance in the criminal law review group in March 2007, to which the Minister and Senator Regan referred, took a comprehensive look at the working of the rule. I am grateful to Senator Regan for raising the issue, but I cannot support his Bill. I share the Minister’s views on the flaws in drafting of the Bill. However, there are a number of other fundamental points and I will make those.
As the Minister said and the balance in the criminal law review group made clear, this Bill would be unconstitutional. Not alone did the chair of the review group, Dr. Gerard Hogan, dissent from the majority on the exclusionary rule and take the view that any legislative approach to change it would be unconstitutional, the majority of the group took the view that a “full frontal” assault through legislation on the exclusionary rule “would be likely to be held to be unconstitutional”. I am quoting from page 162 of the report.
The Supreme Court is due to revisit this issue in the appeal of the Cash case, already referred to. That is the judgment in DPP (Walsh) v. Cash, a High Court judgment given by Mr. Justice Charlton on 28 March 2007. A Supreme Court appeal is due in that regard. To go to the substance of the Bill, it is too absolutist in its tone and mistakes the current rule. This is an exclusionary rule, as set out in The People v. O’Brien, as modified in The People v. Kenny, but not, as the Bill states, a rule that operates automatically to exclude in all circumstances. The Kenny case, although it has been construed as being utterly strict, allows for modification.  I am indebted to Dr. Yvonne Daly of Dublin City University, who delivered a very useful paper on this at the weekend seminar. As she pointed out and as the Minister said in his speech, the discretionary rule as adopted in the O’Brien case and later in the Kenny case allows a judge, where evidence has been obtained illegally, to take into account varying issues when determining its admissibility. A different and stricter rule applies to unconstitutionally obtained evidence. Any evidence obtained in breach of constitutional rights must be excluded, unless it can be shown there were extraordinary excusing circumstances in existence. Even in its stricter sense, therefore, it is not an absolute rule.
The courts have modified the rules somewhat over the years. Both the case of DPP v. Buck in 2002 and the case this year of DPP v. A.D., in which Mr. Justice Finnegan made a judgment in the Court of Criminal Appeal, show that where there has been a breach — in both cases a solicitor had not been obtained for an accused under detention and being interviewed in a Garda station — there must be a causative link between the breach of constitutional rights and the making of the incriminating statement for the statement to be excluded. Therefore, there are modifications to the rule.
The case of Dillon, which is usually cited by those seeking to overturn or abolish the exclusionary rule, has been widely misinterpreted. I reread the judgment made by Mr. Justice Hardiman of 20 December 2002 again today. Senator Regan gave the facts of this case already. The Dillon case turned on the fact that gardaí in intercepting a phone call — as found by the Court of Criminal Appeal — were carrying out the offence of interception as defined in section 98 of the Postal and Telecommunications Act 1983. Gardaí were carrying out an illegal action in intercepting the phone call. The Court of Criminal Appeal therefore found the evidence obtained through that interception could only be admissible if there were extraordinary excusing circumstances because not alone was it an illegal interception, it also amounted to a breach of the constitutional right of privacy.
However, the Court of Criminal Appeal said it could not decide the issue whether there were extraordinary excusing circumstances because the trial judge had found that the act of the garda taking the phone call had not amounted to interception under the 1983 Act. That may sound highly technical, but it was not as clear cut a case as the court simply saying this was unconstitutionally obtained evidence and therefore could not be admitted. There were a number of steps that could have been taken and the evidence could have been admitted at trial had the trial judge found that the evidence was obtained either through illegal or unconstitutional means. The other issue to note about the Dillon case is that the sentence had already been served by the accused. The Court of Criminal Appeal mentioned this at the end.
With regard to the proposed Bill, one would be very wary of taking on a Bill that is constitutionally suspect or that purports to abolish outright a rule that has been developed and refined by the courts and that is more nuanced than is often understood. Also, while much has been said about the way in which the rule operates here — it is more absolute than in other common law jurisdictions — it must be said that in Ireland we have a much more absolute position on the other side of the scale also, in that we allow people to be convicted on the basis of secret evidence, the evidence of informers and the opinions of chief superintendents, particularly in the Special Criminal Court.
Balance in the criminal law does not always go the one way. I am of the view that the rights of victims should be given greater priority within our criminal justice system and there has been a move towards that generally, but in the context of the exclusionary rule, I would have to agree with Dr. Gerard Hogan, the chair of the balance in the criminal law review group, when he points out that the rule was developed not just to discipline gardaí or stop them from abusing their powers, but to protect the constitutional rights of individuals. He points out that the development of the exclusionary rule has been the logical corollary of a series of interlocking constitutional provisions. If we value the fundamental protections in our Constitution, we cannot seek to abolish or undermine so thoroughly this rule.
Senator David Norris: I welcome the Minister and welcome the introduction of this Bill. It is important the Seanad plays its role in introducing legislation. When I introduced a Bill some four years ago, that was very unusual, but we have had a flurry of Bills introduced in the House and this shows political energy. While I compliment Senator Regan on introducing the Bill, the Minister was persuasive when he listed five principle sections of the legislation he felt did not meet the strict requirements of legislation because they were flawed in one way or another, either because of legal technicalities or constitutional matters.
The reason I asked for a minute of Senator Bacik’s time was because I am concerned about this. First, it is a question of professional standards. I do not believe an amendment to the legislation should be used to excuse a lack of professional standards on the part of gardaí. If they made a mistake, that is fine and they must live with it. It is important to establish professionalism, and not just in this country. For example, in the OJ Simpson case, the chain of custody of the evidence was impugned. That was a mistake and it was quite right it was highlighted.
I feel the old saw — I am not sure whether this saw comes from European, American, British, European or Irish law —“The fruit of the rotten tree is always suspect” is right. If it is a rotten tree, its fruit should be suspect, subject to the kind of considerations that were put on the record so ably by Senator Bacik.
One of the issues that would concern me in particular is not telephone bugging. My telephone has been bugged, but it was impossible to do anything about it at that stage. I asked Mary Robinson to get involved, but I lived with it. There is something much worse than telephone bugging. It should be remembered we collaborated with the Americans during the rendition period. They, our democratic allies, extracted information from people under torture. The information obtained was found to be so rotten and lousy, it was unusable in most instances. The obtaining of it was a violation of decency. Evidence extracted under torture should never be allowed. Although the British claimed they did not participate actively in this practice, they were perfectly happy to use the fruit of the rotten tree. I never want to see that happen in this jurisdiction.
Senator Denis O’Donovan: I welcome the Minister to the House and welcome the introduction of the Bill by Senator Regan. Before I move from the analogy of Senator Norris concerning the fruit of the rotten tree, I wish to say that from my limited knowledge of horticulture, rotten trees bear no fruit and should be avoided.
Senator David Norris: On a point of information, from my extensive arboricultural and horticultural experience, I had a lemon tree in Cyprus that was rotten. My vine is rotten also, but they both produced fruit.
Senator Denis O’Donovan: I compliment Senator Regan on the personal effort he has put into this Bill. The Minister was complimentary in acknowledging the thrust of what the Senator is endeavouring to achieve through the Bill and I am glad he will now have a close look at the issue to see what can be achieved. I accept the point made by the Minister and by the committee chaired by Dr. Gerard Hogan who is probably the main constitutional lawyer in the country.  It appears that among the legal eagles there is a doubt whether legislation per se can overturn or uproot a constitutional rule of evidence that has evolved since approximately 1965.
I commend Members of the Opposition, such as Senator Regan, who introduce Bills in the House. Back in 1996 when the current Ceann Comhairle, Deputy John O’Donoghue, was in Opposition, he produced a Bill that was not accepted by the Minister of the time, Nora Owen. However, within 12 months or less, the coalition Government revisited the issue and the upshot was the creation of the Criminal Assets Bureau. Deputy O’Donoghue would probably claim his prints are on that particular legislation. I have no doubt, therefore, that when this issue is revisited, that Senator Regan will be able to claim he, by bringing this Bill before the House, introduced a springboard or catalyst to move the issue forward. This must be acknowledged and appreciated.
However, if one considers this rule’s history, and I am inclined to bow to the strong knowledge evinced in this regard by my colleague, Senator Bacik, it is certain that legislation introduced by the Oireachtas on a rule that has evolved through the courts all the way to the Supreme Court cannot of itself reverse the Supreme Court’s thinking. As the Minister noted, my fear is that were such a Bill simply passed in the Oireachtas, the constitutionality of which inevitably would be tested in the courts, it might simply be thrown back in Members’ faces, which would put back by another decade the work Senator Regan and others are trying to do.
Senator Denis O’Donovan: I thank the Senator. My understanding of the judge’s remarks, when put in layperson’s terms, is that he was deeply concerned that a balance on this rule was not being achieved. In other words, he expressed a strong view in this case and regardless of whether one can call it obiter dictum, any view of an eminent judge in this regard must be taken on board.
I also was interested to note the Director of Public Prosecutions and Attorney General are putting their heads together and may be considering possible other test cases that could be taken before the courts. While I do not believe the Kenny judgment will be completely reversed, it certainly can be ameliorated —“watered down” would be the wrong term — and the legislation subsequently could be applied. I believe that Members are treading on difficult ground in that the Oireachtas is being asked by simple legislation to overturn and reverse the Kenny decision which has evolved and has been supported.
Nevertheless, the thrust of what Senator Regan is doing under this Bill appears to be going in the right direction. Undoubtedly, in many serious cases, including some involving murder or drugs trafficking, for whatever constitutional or other reason, when evidence sometimes is stumbled upon, such cases are being thrown out by way of a technicality. I have been a practising solicitor for many years and when I started out in the late 1970s and early 1980s, if a defendant was up for an offence such as drunk driving, which now is a serious offence, or for having bald tyres and the incorrect townland name was put on the summons, the case would be thrown out. However, matters have changed arising from jurisprudence, thinking by lawyers and changes in laws, including the famous case of Duggan v. Evans. Thereafter, if the townland in which the defendant lived was spelled incorrectly or his or her car registration was spelled as HIN 242 instead of HIN 224, this was deemed to be technical. In other words, the Duggan v. Evans case had huge positive repercussions in the operation of the District Courts because simple frivolous mistakes could be amended. A superintendent or the prosecution in the form of the State solicitor could ask the court to make such an amendment. Apparently this cannot be done in this case.
Given my position in the House as Government spokesman, I will oppose and vote against the Second Reading of the Bill. Nevertheless, I record my admiration for what Senator Regan has done. This issue cannot be ignored and Members do so at their peril. This matter must be seriously considered, whether through constitutional means, better jurisprudence or better laws.
Senator Dominic Hannigan: I welcome the Minister to the House. I commend the Fine Gael Senators on introducing this Bill to the House. It shows their concern for the criminal justice system and their knowledge that it is facing incredible pressures at every level. The Labour Party supports their well-intentioned motives which are firmly directed at improving the lot of the innocent in society and the victims of crime. While I wish to address specific aspects of the Bill in the broader context of crime and safety in our communities, I wish to discuss the Bill’s contents first.
Elements of this Bill are indisputable. For example, it is indisputable that Members’ responsibility as legislators centres firmly on the victims of crime and not the criminal. This Bill rightly addresses the potential for a public crisis of confidence in our judicial system should criminals and those who prey on innocent members of society continue to exploit the system through technicalities and bureaucratic red tape. There is much Members can debate in this Bill. For instance, while the Labour Party Members commend the well-intentioned motives of the Bill, they suggest there may be other more appropriate ways that could be used to ameliorate the current position.
Undoubtedly, the exclusionary rule can hurt victims, marginalise the innocent and embolden criminals. Undoubtedly, it is undesirable that Irish law is out of step with so many other countries. It is at the root of this discord that I find cause to have concern for the direction in which this Bill would take us. The exclusionary rule came about from a judicial ruling which has since caused or contributed to the collapse of numerous trials that might otherwise have been able to continue, some of which have been mentioned by other Members during the debate. However, there is a danger that this Bill simply will swap one form of judicial activism for another by bestowing discretionary powers on a judge who may or may not deem evidence admissible in court.
The Bill sets out a number of criteria for the examination of evidence that previously might have fallen under the exclusionary rule. These include whether the obtaining of the evidence was a mere mistake as opposed to a deliberate violation of rights; whether the breach was serious or merely technical in nature; the seriousness of the alleged crime committed; and the effect on the administration of justice of including or excluding the evidence. While there are other criteria, those four examples provide a clear picture of the kind of territory to which this Bill would take us. While it is inexcusable that important trials are being hamstrung and are in danger of collapse by virtue of the exclusionary rule, the criteria for the inclusion of evidence, as outlined in this Bill, are not the answer.
Although I agree that this aspect of the criminal law mechanism requires reform, outsourcing discretionary powers of interpretation, literally on a case by case basis, is not an appropriate response. If enacted, such a Bill doubtless would present a brand new set of challenges and delays. Who is to say these criteria for inclusion could not be challenged, thereby setting back countless trials and leaving us with an equally flawed variation of the same system? If the criteria cannot be challenged, should Members not be at least slightly uncomfortable with the provision of such broad discretionary powers?
It is questionable whether a top-down approach as outlined in this Bill will redress the fundamental problem of crime in our society. While we must address imbalance in the judicial scales in our courts, first it is essential to get the balance right on the streets. The Bill implies the Garda is under pressure, the victim of too much bureaucracy, and struggles to do its job, and I absolutely agree. While judicial reform is vital, the way to redress the broader issues of making our country safer is not by tinkering at the top but by investing on the ground. Resources must be refocused at street level. In recent weeks Members have seen the spectacle of members of the Garda assaulted and badly beaten on the streets of towns such as Clonmel as well as the capital city. How can one expect optimal performance from those on the ground while the Government resolutely fails to provide the necessary investment in front-line police services?
At local level, the Garda must be supported and facilitated in its efforts to reassert its affinity and connection with regional communities. However, any local newspaper from anywhere will contain stories of petty crime, vandalism, violence and intimidation. These are not the horrific stories that are published in the Sunday newspapers or that are reported on RTE’s “Six One News”. However, they occur in every town and village and such incidents cause enormous concern and unease among local residents.
Rectifying the absence of sufficient numbers of gardaí surely is a first step towards addressing such issues and the provision of proper facilities for gardaí within their local community also is vital. That is why previous commitments on Garda stations need to be honoured. For instance, the failure of the Minister to provide new accommodation in places like Laytown, where premises have been promised on numerous occasions in the past, will not help policing in that area. Neither will the policy of opening Garda stations for only short periods during the day, particularly in commuter towns such as Dunboyne, from where people work in the capital for most of the day and, as a result, rarely get the chance to visit the Garda station. We need to start from the bottom up, rather than from the top down.
The Bill before the House rightly points out that Ireland is out of step with other countries on the issue of admissible evidence. However, Ireland is also at odds with international best practice in other areas where my party thinks reform is needed sooner, such as specialist drugs courts to tackle the resurgent illegal drug crisis and legislation on joy-riding which affects many communities, not only across Dublin but across other cities and towns also. We need such legislation sooner than perhaps legislation such as that outlined in this Bill.
If we invest in the front line, we will rebalance the burden of fear from the innocent law-abiding member of society to the drug-pusher, the joy-rider, the gang and the murderer. We must push forward a rational and coherent system of justice and policing in order that those who display a disregard for the innocent in society can be dealt with quickly, efficiently and to the full extent of the law.
I commend Fine Gael’s commitment to solution-based politics. Fianna Fáil promised us zero tolerance, but what we got was zero action and zero competence. It is incumbent on us all to work together to put forward a coherent and strategic set of proposals, fit for purpose and fit for a modern Ireland. We welcome the opportunity today to have this debate, although we regret we cannot support the Bill.
Senator Jim Walsh: Cuirim fáilte roimh an Aire Stáit go dtí an Teach um thráthnóna chun an Bille tábhachtach seo a phlé. I listened with interest to the debate and, in particular, to the contribution of the Minister, Deputy Dermot Ahern, on the legislation which is before the House.
I note that the Kenny judgment has had a fairly profound impact on the administration of the justice system but the Minister’s quotation from Mr. Justice Charlton was fairly pertinent. It states,“the entire focus is on the accused and his rights; the rights of the community to live safely has receded out of view”. Many of us in this House would share those sentiments. Over the years we have had many debates on the criminal justice system and there is a strong sense, which I would certainly have detected among Members and which is also evident among the public, that there is a need for rebalancing in terms of where we have gone with the criminal justice system.
Obviously, nobody wants to encounter situations where there has been a travesty within the system where innocent people are found guilty and are incarcerated. Therefore, the rights of those who come before the courts must be vindicated. However, the public, and indeed victims, often feel their human rights are not up in lights, not to mention getting equal recognition within the legal system.
We have seen many examples of people being released from prosecution on technicalities, which is neither desirable nor acceptable. In this instance, there is a clear distinction between constitutional rights which are enshrined by the people in the document which governs all of our laws and to which all laws are subject, and that is appropriate and as it should be. However, if we roll back where we stand with criminality, there is a real need to ensure that people who engage in such activity must face the rigours of the law and must, where they have been heavily involved in serious crime, pay due recompense to society for those crimes.
Even in minor areas of law I have seen solicitors who can cleverly and intelligently use mechanisms, and perhaps contradictions, within the law to have clients exonerated or released from facing sentences or fines. From speaking to many in the legal profession, I am aware that there are certain judges who indulge this. I can understand, if one is on the bench for a number of hours hearing all these hard cases, that when somebody engages one’s intellect on different points of law it must be tempting to engage in the process. However, doing so has sometimes given rise to public confidence in the system being put at risk. It can also be soul-destroying to gardaí who perhaps have put much time, effort and energy into preparing and compiling evidence and presenting their cases to find that on a technicality they are thrown out, despite all of their hard work. To some extent, that makes a mockery of the system.
This Bill seeks to abolish the exclusionary rule of evidence in criminal proceedings, and particularly where that would be obtained in contravention of an accused’s constitutional right. I think it is accepted by all that such is not feasible and is not desirable without looking to a change in the Constitution, and the people deciding on that.
I have met people, even in recent times, who have been engaged as witnesses in serious criminal cases who subsequently said to me that they came away totally disillusioned, having spent a number of days listening to the cases in the Circuit Court. They said it was like a game being played out between lawyers and had nothing to do with the administration of justice. Senior members of the legal profession have also said to me that if one wants justice, one should not go to court — that is not what it is about. It is about the interpretation of the law and that is all one will get. Perhaps we need to examine that.
The Minister of State, Deputy Barry Andrews, who is a eminent member of the legal profession, would probably have a more educated view on the matter than I have. I wonder whether our common law system, with its adversarial approach, is as good as the French model which is based on a more inquisitorial approach.
I have been a long-time critic of the exorbitant and unjustified legal fees, which do much to bring the entire system into disrepute. I am amazed the issue has not been tackled by some Government and, more vigorously, by the Competition Authority. I know there is a report on competition within the legal profession which has not been acted on yet by Government but there is a need to do that.
There is also a need for a judicial council, although I know work is being done in that area. Nobody in a Republic should be above the law. In other jurisdictions there is peer accountability. It is essential that the separation of powers of the Judiciary from the Executive be maintained and undiluted, but that does not mean people should not be accountable to a body of their own peers, and that needs to be done.
Members of this House spent long hours over weeks and months on the Judge Curtin case. That case involved a judge charged with an offence which was not pursued on the basis of a technicality — a wrong date on a warrant. That is the kind of technicality which we should be trying to eradicate from the system.
On the Kenny judgment, this comes back again to judges’ interpretation of the Supreme Court decision. The strict interpretation does not seem to distinguish between genuine errors in the collection of evidence and the state of mind of the Garda in question. These distinguishing issues should be part of the adjudication of a lower court. While I agree with the report of the review group that any legislation introduced to overcome or abolish the Kenny judgment would be unconstitutional, it is essential for the sake of public confidence in the effective and fair administration of justice that the exploitation of legal technicalities is prevented. The spirit of the Bill proceeds in that direction and we should attempt to resolve the problem either through a constitutional referendum or in legislation.
Senator Liam Twomey: As someone with no legal training, I will have to stick with the plain English school of thought. I was fascinated by the arguments made by Senators who have expertise in this area. The problem remains, however, that people are not satisfied the courts are acting properly. I would have liked solutions from the Minister but he seems to prefer doing nothing until the Kenny judgment is tested in the Supreme Court. If a constitutional issue arises, we will already be holding one referendum at some stage in 2009 and could hold a second referendum on the same day.
When members of the medical profession are presented with a problem, we do not go into a room to argue about it or say we have an idea what could happen but the patient will die. We try to get to the nub of the problem. I do not see that attitude from the Government in terms of presenting legislation to this House. In recent years, a number of changes have been made in the area of criminal law. The former Minister for Justice, Equality and Law Reform, Michael McDowell, was constantly bringing legislation before the Dáil. It was almost impossible to keep up with him because he rammed Bills through at an unbelievable rate. Has the Minister plans to bring legislation before the Seanad to address some of the problems he identified earlier? Can we amend legislation or is a referendum necessary? It is important we get this right.
We could discuss these matters for hours on end but our voters are being driven crazy by the low level harassment they are experiencing in their communities. People are creating trouble in housing estates throughout the country. I have experienced incidents in which people have driven up to my house only to turn around as soon as they saw me. Organised crime has gone completely out of control over the past decade. All the people want are solutions to their concerns. They do not want us to waffle about judgments and constitutional issues. That should be the basis of our discussion.
Does the Minister intend to introduce legislation in this area? He identified the mistakes but has he plans to address them? Is he prepared to act on constitutional issues? The law reform group which considered this issue has not stated that matters should be left as they are. It acknowledged that something can be done. I would like to learn whether a solution is possible because this debate seems to concern the process rather than the facts. Court cases often contain a certain element of pantomime and grandstanding. Perhaps the process is emphasised because the facts are not crystal clear. Spurious arguments can be made to sow doubt and win cases.
This legislation was introduced in the spirit of protecting citizens. Ordinary citizens and victims are not getting a fair deal in our courts at present and the criminals are making a mockery of the justice system. It is believed that those who have no interest in society are able to manipulate the law to their own ends. We should not be complacent when we hear people speak of vigilantism or taking the law into their own hands because I can see their frustration.
We should decide whether changes can be made to legislation to address these problems and weigh up the pros and cons of making constitutional changes. We do not need another review group. I ask the Minister of State to indicate whether he is prepared to act.
Senator Dan Boyle: I compliment Senator Regan on producing this Bill. As someone who has introduced Bills in both Houses, I recognise that legislation should come from Members on all sides. It is regrettable that the majority of legislation we pass comes from the Government. In drafting this Bill, the Senator has made the case for investigating this area. The Minister indicated the issues arising are being considered on an ongoing basis and he hopes to test the current legislation in this regard. He is prepared also to introduce amending legislation if it becomes necessary to do so.
I would diverge from Senator Regan on the text of the Bill, however. It appears to come from the perspective that if only everyone was on our side, we would get everything right. We took a similar approach with the Lisbon treaty by believing that if we had changed the rules on how the people should have been informed, we would have got the right answer.
Crime is obviously a cause of concern for the public. It is important to address the issue of jurisprudence to ensure society and the rights of the accused are protected. One of the central problems of the Bill is the impression it gives that evidence is proof. Evidence can become proof if it is accepted by a judge and jury, but it is only part of the background story and extenuating circumstances that may be used to prove a point. If a conviction ensues, the evidence is genuine but if the evidence is flawed in terms of how it is obtained or its constitutionality, it undermines the process. There is a need to be careful in how we proceed down this road. We must ensure public concerns are addressed and that the justice system is fair to all our citizens. One of the possible consequences of rushing into legislation like this — although not necessarily this Bill — is to condone sloppy practices in judicial and legal enforcement. That point has been already made by Senator Norris in this debate. On those grounds we must move very slowly.
The idea of common and constitutional law is that it is not created in an instant; it is not reactive. The examples cited relating to our last Minister for Justice, Equality and Law Reform show that we should not legislate on such a basis. I was a Member of a Dáil that saw significant pieces of legislation being presented in draft form which were dissimilar in form and content from what was eventually agreed by both Houses of the Oireachtas. It was legislation on the hoof that we could be coming back to time and again.
Senator Dan Boyle: It was more like a machete taken to legislation going through the House. That is another argument. This is the reason we must be slow, careful and cautious about legislation of this type. Public concern about serious crime must be addressed and we should have confidence in our system of law enforcement and judicial behaviour.
Unfortunately, there have been incidents where there has been a propensity to take shortcuts, although they have been small in scale and have been responded to by the formation of bodies such as the Office of the Garda Ombudsman. There has been a willingness to create what is being presented as evidence to secure particular convictions that have not been evidenced and are certainly not in proof. They have been unfortunate in compromising people in being convicted for crimes with which they probably were not involved.
It is not enough to have a suspicion or vague hope in that regard. In a democratic system we need both a constitutional and legal basis which allows people to go through our legal system and be sure they are being judged on the basis of properly obtained proof that would secure a sound conviction.
That is not what Senator Regan is trying to achieve in his Bill. He speaks of technicalities, different interpretation and looking at some of the more obvious issues coming through the system such as wrong dates or addresses. There may be some classes of case, such as drink-driving, that are relevant because of badly drafted legislation. That last instance is one of the reasons we should move very slowly in this area.
The Bill has been produced with the best intentions but I am most concerned about having the Bill challenged by the President through the Council of State to test its constitutionality. To even suggest this in a debate in the Houses of the Oireachtas is constitutionally unsound in itself. It is a decision for the President to convene the Council of State and such a call would be made as appropriate. To suggest an issue might be open to a debate on constitutionality is not for any debate in this House or any piece of legislation presented to the House.
I welcome the tabling of the Bill and accept its good intentions. I accept much of what it is trying to achieve will be addressed in future legislation. This Bill, as it is framed, is not the vehicle to do so and the contribution made by the Minister this evening gave us sufficient grounds for us not to allow the Bill proceed to Committee Stage.
Senator Paul Coghlan: I welcome the Minister of State, Deputy Barry Andrews, to the House. Senator Regan deserves great credit from all of us for having drafted this legislation. As a layman I know nothing of the niceties of criminal law but as legislators all of us are concerned with the greater good and protection of society. It is our prime duty.
Given our spiralling crime rate and increasing gun culture, as evidenced by too many appalling and tragic happenings, particularly in our cities, this Bill must be welcomed. The Bill, as the memorandum makes clear, proposes to abolish the rule of evidence which has become known as the exclusionary rule. That is a judge-made rule, as Senator Regan has already told us, which has the effect of ruling out evidence offered in a criminal trial which may have been obtained by a mistake of one kind or another by members of An Garda Síochána or other law enforcement agencies. It may have the effect of infringing a constitutional right of an accused. I hasten to add that nobody wants to infringe anybody’s constitutional rights.
Any breach of procedure by the gardaí or an investigatory agency is regarded as an infringement of the accused’s constitutional rights. As a result of this many serious cases are dismissed on what can best be described as a technicality. Unfortunately this prevents the effective prosecution of crime and is destroying public confidence in our criminal law system. How often do we hear complaints from members of the public of cases that fail or fall for what is often correctly seen as a frivolous reason?
We should not consider the rights of the accused as being absolute to the detriment of the rights of the victims of crime. We must redress this imbalance, as the Bill does, and there should be a general welcome for this Bill. It is timely if not greatly overdue. It is interesting to note that our rule excluding some evidence is not in line with that of other common law jurisdictions, including Britain, Canada, Australia, New Zealand and perhaps some others, such as some American states.
The European Convention on Human Rights does not require the exclusion of such evidence. What is required is that an accused is assured of a fair trial. It could be argued that the exclusionary rule is incompatible with our obligations under the European Convention on Human Rights, which include that the right to life should be protected by law, as well as the right to liberty and the security of the person. As a result of the Supreme Court decision in the People v. Kenny 1990, it was decided that all or any evidence improperly or illegally obtained should be excluded.
That was my belief but I found it interesting to hear the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and Senator Ivana Bacik, as well as the Minister of State present — all notable legal brains — arguing about exceptions. As a layman I was not aware of these. Perhaps there is some further tweaking that could make this perfect if it is not quite there yet. They welcomed this debate, as Senator Walsh and others have.
We are concerned about fundamental rights and human freedom and nobody wants to see them infringed. We must insist on an effective prosecution system for the good of our society. Public confidence in the administration of justice must be paramount and a judge and jury should be allowed to hear evidence. We need a balancing rule, as this Bill would provide for. We must not tie the hands of the State or a judge, although this is what we are currently doing.
Good faith exceptions should be allowed, although the Minister stressed that we do not want sloppy police work. Senator Norris spoke on that and we heartily agree. The evidence should be tested, following the direction of the judge to the jury. This would be the right course. How this should be addressed and tied up in the correct legal terms is something to which I do not have the answer.
I found it interesting to listen to many of the contributions. There is a general welcome on both sides of the House for the Bill, although I know the Minister of State is arguing that it cannot be accepted just now. An appeal case awaiting hearing before the Supreme Court could have a bearing in this respect, and hopefully that is not too far distant. Perhaps following that case, the matter could be re-addressed, if it cannot go beyond this evening’s debate. Some of the Government side’s quibbling is understandable and I do not want to rule it out because I am a layman. However, perhaps we could allow the Bill to go to Committee Stage with the Government’s position being reserved. While the timing could be left to the Government, appropriate changes could be made by way of Government amendments on Committee Stage. I strongly recommend that course because, as legislators, we are concerned by the greater good and the protection of society. That is our primary duty.
Senator Joe O’Toole: Like other speakers, I compliment Senator Regan on bringing forward this legislation, which touches a nerve that definitely needs to be addressed. I accept his point that there is a huge demand for this kind of legislation. I would not question his objectives for one moment, but I have significant difficulties with parts of it. I would like to see the Bill going to Committee Stage where it could be amended. That would meet the needs both of the Minister and Senator Regan in dealing with the relevant issues. I am uncomfortable with some aspects of the Bill. Perhaps in an old-fashioned way, I still believe it is better for 99 guilty people to go free rather than have one innocent person imprisoned. There is not much demand for that viewpoint at the moment and I can see why, given the significant levels of crime.  Nonetheless, issues have been raised by Senator Regan which do not cut across my idea of the basic principles of law and constitutional rights. One, for instance, is where the Garda — not improperly, but through properly established surveillance — comes across information or hears conversations, which would be useful if introduced as evidence afterwards. I think there would be no objection to the Bill dealing with that issue, but it does not do so. That is a matter of concern. I am talking in particular about a situation where the Garda properly obtains authority to intercept telephone or other communications and in the course of that comes across certain conversations which would be useful as evidence. In that situation, it should be allowed because it does not contravene the laws of hearsay. Those laws are complex but the problem arises when people use the evidence to back up something said by a third party who is not present. Using evidence which is put together in that way to convict somebody in court would not be a breach of the laws of evidence. It seems to be a sensible thing to do.
Senator Regan has touched on items where it would be reasonable for the courts to draw conclusions from certain actions or information being brought forth. I am uncomfortable with the idea of using what the Senator describes as improperly or illegally obtained evidence. In light of all we have seen in Donegal and elsewhere, I am uncomfortable with that, although I do not question the reasons given by the Senator for putting forward that proposition. I am worried about it nonetheless because, at the very least, it could allow for sloppy Garda behaviour. It could even support corrupt Garda activity, although Senator Regan would never have envisaged that.
I support his point about obtaining evidence as the result of a mere mistake or oversight, as opposed to a deliberate and conscious violation. The issue of a writ being 24 hours out of date, for example, should be dealt with in a sensible and practical way, as Senator Regan has outlined in section 5. I can see how it could be included in a Government Bill or could be accepted by the Government with minor amendments.
It is absolutely right for us to address these issues, but I would like to tease them out further on Committee Stage. I would like to see the Minister arguing over the Bill point by point. I would like to hear the various views involved and in that way we could strengthen the law. It is incontrovertible that the general population is uneasy with the way things are currently operating. We cannot blame the courts because they implement what we decide, although we often ignore that fact. We have regular debates during which Senators discuss the fact that judges do not hand down mandatory sentences for drug offences, despite the fact that we inserted three conditions in the legislation before the mandatory sentence can be applied. We do this all the time and, as politicians, we get away with it. Generally speaking, the Judiciary implements the law as they are given it. If we are not happy with the outcomes, we need to change the law. That is why Senator Regan’s proposal is an important step. It is an important part of the discussion which we must address. I would like the House to go through the Bill section by section. The Government side should be prepared to support this as far as Committee Stage and then let people put up or shut up. Senators can put forward their views and table amendments to make the desired changes, thus moving forward the legislation.
I compliment Senator Regan on the work he has put into this legislation. It was interesting to hear Senator Boyle bemoaning the fact that such a large percentage of legislation comes from the Government. I nearly fell off my chair with laughter when I heard that because, having been sitting here for almost 20 years, I know it is extraordinarily difficult to get legislation through the House which is proposed by the Opposition. Senator Boyle is right, however, in saying that Governments should examine legislation, such as the Bill before us, and ask whether there is a need to address the issues. Nobody would deny that. The Government should also decide whether it agrees with the points articulated in the legislation. It is unusual to find people 100% in agreement, but the logical next step is to take what is there and build on it, or alternatively reject it and start again. If a Senator has gone to the trouble of bringing a Private Members’ Bill before the House, which raises issues of public concern, we should deal with it. In that regard, I compliment Senator Regan. Although some work remains to be done on the Bill, this is, nevertheless, an important debate.
Senator Joe O’Reilly: I join with others in congratulating Senator Regan on bringing this legislation before the House. It is a good use of the Seanad and his role as a legislator. We are fortunate to have someone like him to handle this. As an eminent senior counsel, he has a particular knowledge of the area. As a practising public representative, he has an appreciation of the implications for the people of this legal anomaly. I congratulate him on this achievement.
While people may quibble about the detail, no one can dispute the merit of the Bill’s fundamental point or the quality of the legislation. Senator Regan would be the first to accept amendments and to consider the legislation on Committee Stage with other Senators. He has done well in introducing the Bill and deserves our warmest congratulations.
Under the Kenny judgment in the Supreme Court, the exclusionary rule effectively means that a minor mistake or technical error made by a garda in the presentation of a case will end the trial in question and discredit all of the evidence. It is important to state that Senator Regan is attempting to modify the exclusionary rule to allow for judicial discretion. As such, a judge could weigh up the prosecuting garda’s error and make a judgment. He or she would either accept the bona fides of the evidence and let it go to the jury or disallow it. Senator Regan is careful to enshrine in the legislation the fact that it would be a judicial function. It is a reasonable proposition because the judge would be in a position to weigh the community and public interests with the accused’s constitutional rights. While it is critical that those rights reign supreme, they must be balanced with the rights of the victims and everyone else concerned.
Senator Regan would be at the vanguard of those who would say that evidence obtained by improper means, such as duress, brutality and so on, would not be admissible. If the mistake fell in that sphere, the evidence would not be admissible. The Bill is a bona fide attempt to remove a difficulty in the operation of the courts and the search for justice. In light of the People v. O’Brien, a case cited in the Bill’s explanatory memorandum, the acceptance that discretion should be exercised is clear. If a mistake is a technicality or a minor error, there is no logic in letting it stand before a prosecution.
I appeal to the Minister of State to see reason. What Senator Regan is attempting to achieve through the Bill is a noble and worthy objective, given the lawlessness that is sadly a feature of contemporary society. Given our acceptance of the fact that the legislation would achieve the objective and our preparedness to consider the Bill on Committee Stage, the Minister of State should be reasonable and allow it to pass Second Stage.
To take practical examples, we all read our local newspapers. The provincial press has a good tradition of reporting the courts with significant detail. Every Senator knows of someone who, after putting lives at risk through his or her drunken driving, has the case against him or her dismissed because a letter was missing from an address or some other incidental matter, the reason for which is normally the accused. In one of the cases cited in the explanatory memorandum, someone in possession of heroin, possibly for resale purposes, got off on a technicality because his mobile telephone call was intercepted by a garda.
We must protect against an abuse of the law and anything less than complete adherence to the constitutional rights of the accused should be out the window. However, we must create a situation in which courts can be efficient, justice can be done, the rights of victims and innocent bystanders can be preserved and community interest in the rule of law can be maintained. We need a functional court system that responds to society’s needs, allows victims to plea for justice and protects the constitutional rights of the accused.
This is precisely what the Private Members’ Bill seeks. Senator Regan seeks to abolish the exclusionary rule in its pure form and to replace it with judicial discretion, which would evaluate the reasons for errors and whether they are genuine or represent infringements of constitutional rights. Senator Regan would be the first to declare that evidence gained through a constitutional infringement should be thrown out. However, evidence affected by a garda’s technical error should be admitted. If there is a problem in Garda practices, it would be a matter for the relevant garda and his or her superiors or for the Garda Ombudsman. It is not sufficient reason to allow someone who is clearly guilty to walk out of a court, nor is it sufficient reason to send alleged victims out of courts frustrated by the law, disgruntled and under the belief that justice has not been done.
I commend Senator Regan on this groundbreaking legislation. He has done the House much service and has an acute awareness of what we should be doing, namely, implementing reformative legislation. If accepted, albeit with modifications, the Senator’s Bill would make the courts more efficient and help the rule of law and justice to be achieved. By any hierarchy of values, these objectives have a nobility that is beyond question.
I appeal to the Minister of State, who is a good listener, to accept the merit of the legislation and to rise above the narrow political concerns that occupy us at times, particularly in this Chamber. He should accept the worthiness of the Bill and allow it to pass on to Committee Stage.
Senator Eugene Regan: I welcome the Minister for Justice, Equality and Law Reform’s attendance and his acknowledgement of the problem. He stated that, “a modified rule which would encompass a ‘good faith’ exception or which would allow the trial judge to weigh the rights of the community at large and that of the victim against the rights of the accused, would continue to ensure that the guaranteed rights of the accused are treated seriously”. These are the Bill’s sentiments. It is well-grounded and many Senators have referred to the need for legislation.
I take on board the constructive criticism offered in respect of specific provisions of the Bill. However, I would not accept all of that criticism. The Minister proposed that we should wait until this matter is adjudicated upon on the basis of the appeal provisions of the Criminal Justice Act 2006. The report of the balance in the criminal law review group was published in March 2007 and, in that context, I am of the view that we should legislate in respect of this matter. If doubts arise in respect of such legislation, there is a mechanism by which these can be dealt with. However, there is a presumption that legislation passed by the Oireachtas is constitutional. Concerns arose in the past to the effect that legislation relating to the Criminal Assets Bureau might not be valid or that certain other legislative measures might not withstand a constitutional challenge in the Supreme Court. The Bill before the House is well drafted, provides the necessary safeguards and ultimately gives wide discretion to the courts in passing judgment on the admissibility of evidence of the type at issue. On that basis, I will conclude my remarks and propose that the debate on the legislation be adjourned.
Senator David Norris: The Cathaoirleach has the authority to suspend the House until this mess is cleared up. This is a farce. Tá Gaeilge mhaith agam agus blas álainn, dílis, Protastúnach agam. I can say that to the soldiers of destiny.
An Cathaoirleach: Members should speak through the Chair. The question is that the debate on Second Stage of the Criminal Law (Admissibility of Evidence) Bill 2008 be adjourned and on that question a division has been challenged.
|Bradford, Paul.||Burke, Paddy.|
|Buttimer, Jerry.||Coghlan, Paul.|
|Cummins, Maurice.||Donohoe, Paschal.|
|Fitzgerald, Frances.||Healy Eames, Fidelma.|
|McFadden, Nicky.||Norris, David.|
|O’Reilly, Joe.||Regan, Eugene.|
|Boyle, Dan.||Brady, Martin.|
|Butler, Larry.||Callanan, Peter.|
|Callely, Ivor.||Cannon, Ciaran.|
|Carty, John.||Cassidy, Donie.|
|Corrigan, Maria.||Daly, Mark.|
|de Búrca, Déirdre.||Doherty, Pearse.|
|Ellis, John.||Feeney, Geraldine.|
|Glynn, Camillus.||Hanafin, John.|
|Hannigan, Dominic.||Keaveney, Cecilia.|
|Kelly, Alan.||Leyden, Terry.|
|Ó Domhnaill, Brian.||Ó Murchú, Labhrás.|
|O’Brien, Francis.||O’Donovan, Denis.|
|O’Malley, Fiona.||O’Sullivan, Ned.|
|Ormonde, Ann.||Phelan, Kieran.|
|Ryan, Brendan.||Walsh, Jim.|
|White, Mary M.||Wilson, Diarmuid.|
Senator Eugene Regan: On a point of order, I take it two minutes remain of the time allocated for Second Stage and that I have two minutes to conclude. The taking of the Adjournment Matters has not been agreed.
|Bradford, Paul.||Burke, Paddy.|
|Buttimer, Jerry.||Coghlan, Paul.|
|Cummins, Maurice.||Donohoe, Paschal.|
|Fitzgerald, Frances.||Healy Eames, Fidelma.|
|McFadden, Nicky.||O’Reilly, Joe.|
|Regan, Eugene.||Twomey, Liam.|
|Boyle, Dan.||Brady, Martin.|
|Butler, Larry.||Callanan, Peter.|
|Callely, Ivor.||Cannon, Ciaran.|
|Carty, John.||Cassidy, Donie.|
|Corrigan, Maria.||Daly, Mark.|
|de Búrca, Déirdre.||Doherty, Pearse.|
|Ellis, John.||Feeney, Geraldine.|
|Glynn, Camillus.||Hanafin, John.|
|Hannigan, Dominic.||Keaveney, Cecilia.|
|Kelly, Alan.||Leyden, Terry.|
|Norris, David.||Ó Domhnaill, Brian.|
|Ó Murchú, Labhrás.||O’Brien, Francis.|
|O’Donovan, Denis.||O’Malley, Fiona.|
|O’Sullivan, Ned.||O’Toole, Joe.|
|Ormonde, Ann.||Phelan, Kieran.|
|Ryan, Brendan.||Walsh, Jim.|
|White, Mary M.||Wilson, Diarmuid.|
|Last Updated: 06/09/2010 18:41:46||Page of 12|