Wednesday, 2 December 2009
Seanad Eireann Debate
Senator Ivana Bacik: I will press an amendment on this matter on Report Stage. I am grateful to Senator Regan for his words of support. The debate was adjourned on this amendment as the Senator was indicating the reasons he agreed with me on it. I hope the Minister will consider changing the wording of the section in the way I propose in the amendment but, if not, that he delete the words “the Attorney General or the Director”. I would not have a problem with the court certifying that the determination involves a point of law. Senator Regan and I had spoken to the amendment but I do not believe the Minister responded to it.
Senator Eugene Regan: When I was speaking to the amendment, the Cathaoirleach intervened to advise that the sitting was to be suspended. I had indicated that the Minister had referred to the separation of powers and I suggested the court, the Attorney General and the Director of Public Prosecutions were in the same frame in this section. It should be a matter for the court to decide. If we are directing that an appeal would only lie to the court on a point of law of exceptional public importance, or is desirable in the public interest, that is something only the court should determine. Needless to say, it would be determining it on foot of submissions from the applicant, the Attorney General or the Director of Public Prosecutions, as the case may be. Senator Bacik has raised an important issue. This provision merits revision. That is the point at which we adjourned the debate before lunch.
Deputy Dermot Ahern: There is a time-honoured filtering mechanism, whereby matters are only referred to the Supreme Court on a point of law of exceptional public importance and where it would be in the public interest that an appeal be taken to it. That filtering mechanism has worked well since 1924. I accept what Senators Bacik and Regan have said about this being a new move in that it will abolish the rule against double jeopardy but, equally, I do not believe we should remove the time-honoured filtering mechanism to ensure only matters involving a point of law of major public importance are referred to the Supreme Court. As we have seen and as I have often said, 60% of all judicial reviews concern immigration, of which quite a substantial number end up in the Supreme Court. I am not saying this is wrong but they get through the filtering mechanism. When I started to practise law in the mid-1970s, a judicial review was the exception rather than the rule, but now it is the rule. That is one of the reasons we have a very skewed systems of matters being referred to the Supreme Court; hence the request by the Judiciary for the establishment of a court of civil appeal to make sure only cases involving a substantial point of law would be referred to the Supreme Court. That is the reason I would be reluctant to look at this issue again. A person going forward for retrial has the normal appeal mechanisms open to him or her, if he or she were found guilty in the retrial.
I will consider the matter again before Report Stage. We again asked the Office of the Attorney General about this and it did not see any reason the long-standing filtering mechanism in this respect should be changed.
Senator Ivana Bacik: I do not want to labour the point but my position changed slightly as I was replying to the Minister’s first response to the amendment. I indicated that I would change the wording of the amendment and will do so before Report Stage. Rather than deleting all of the words from and including “if”, I will propose the deletion of the words “the Attorney General or the Director”. I accept what the Minister said about the need for a filtering mechanism to ensure only cases involving a point of law of exceptional public importance are referred to the Supreme Court. My difficulty is with the lopsided nature of the certifying mechanism, whereby one of the parties, the Director of Public Prosecutions, has the power to certify and the other party, the acquitted person, does not. Given that section 10 decisions are always in favour of the Director of Public Prosecutions, because of the retrial order being made, it is pointless to suggest he might want to appeal. The appeal will be made by the acquitted person; it is wrong, therefore, that only the Director of Public Prosecutions should have power to certify. It should be the court alone which has that power.
The long-standing filtering mechanism, to which the Minster referred, applies to somebody who has been convicted. This relates to a new procedure where a person has been acquitted and a retrial order is made but the retrial has not yet taken place. He or she has to wait for the completion of a second trial and a conviction before being entitled to appeal. Given that there has already been one trial, in which the person concerned has been acquitted, it would be fair to have a more neutral appeals mechanism to the Supreme Court. I accept the existence of a filter but I do not accept a lopsided or unequal filter and I am grateful for the Minister’s intention to consider the matter. I call on him not only to consider my original amendment but also to consider the more limited amendment I have proposed, that is, to delete the reference to the Attorney General as a director. I do not understand why he should have the power to certify in this particular instance.
Senator Eugene Regan: That is the issue. It is appropriate that the screening to which the Minister refers should be used only in these cases. It is a matter for the court to decide and it would be better if the court decided on foot of submissions made rather than the phraseology used in the legislation.
Deputy Dermot Ahern: Senator Bacik remarked that she changed her view as she spoke. Equally, I acknowledged to my officials that we would consider restricting it to the court. The amendment is better than the proposal made earlier. We will consider the matter and revert to the Attorney General’s office in respect of the more recent proposal.
Senator Ivana Bacik: I spoke about this section while discussing section 8. I was pleased to hear the Minister’s remarks on a person in respect of whom an application for a retrial order is being made under section 8. Presumably, this applies also to a person in respect of whom a section 9 application is being made. It is my understanding and that of the Minister that such a person would be at liberty. This is why I was surprised on Second Stage to find in section 16 a rather open-ended arrest and detention power in respect of a person whose only qualification is that he or she has been acquitted.
This is not about a person in respect of whom a retrial order has been made under sections 8 or 9 or a with prejudice appeal order. It is simply a person who has been acquitted. Under section 16(2) a Garda superintendent or higher ranking officer may approach a District Court judge and inform him or her that he or she has certain knowledge and that something has come to his or her attention since the person was acquitted which is likely to reveal the existence of new and compelling evidence and, therefore, seek an arrest.
This flies in the face of established common law and constitutional protections of innocent persons. No application has been made to the Court of Criminal Appeal at that stage in the process. It seems there is no requirement for the Director of Public Prosecutions to have formed a view that an acquittal has been tainted or that new and there is compelling evidence. The superintendent alone may seek this arrest warrant or authorisation and the District Court judge may then arrest the person. Once such a person is arrested under subsection (3), he or she will be taken forthwith to a Garda station and detained there for a period as authorised under section 4 of the Act of 1984 and, subject to the section, shall be dealt with as though he or she had been detained under that section. This is very murky because the section 4 detention procedure has been litigated extensively and custody regulations are used with the procedure and so on.
Generally, the section 4 procedure is used to detain a person the Garda seeks to interview. Interviews may be conducted according to certain rules, but it seems extraordinary that section 16 confers power on a garda to seek the arrest and detention of someone who has been acquitted and that such a person may then be questioned. I am unclear as to the purpose of the measure. Is it to bring such people before the courts for a section 8 or section 9 application?  Is it to gather the new and compelling evidence? This would be very wrong. There is a lack of clarity because a garda may have knowledge of something that might confirm the existence of new and compelling evidence. Is the garda then entitled to go on a fishing exercise and detain someone to get information through interview and interrogation with a view to building a section 8 case against such a person? I am unclear about this matter. I oppose the section because the lack of clarity raises constitutional difficulties about the detention of someone under the section.
I refer to the ending of the detention. The legislation states detention may be ended if there are no longer reasonable grounds for suspecting a person has committed the offence in respect of which they were arrested. However, such a person would not have been arrested in respect of committing an offence but for the fact that a Garda superintendent informed a District Court judge that he or she had knowledge of new and potentially compelling evidence. The person has already been acquitted in respect of the original offence. Section 16(5)(a)(ii) suggests detention may be ended where there are no longer reasonable grounds for believing detention is necessary for the proper investigation of the relevant offence.
It seems detention is for the purpose of investigation but there must have been an investigation prior to that point for an application to be made in the first place because a garda must have some knowledge of the existence of new and compelling evidence. I am puzzled by the section. It may be the case that it is intended to be as wide as I have suggested. How else is such a detention to be terminated? A person may be held for up to 24 hours under the 1984 Act, as amended, but normally there is a requirement that such a person is charged. If someone is held under a section 4 detention, he or she is released when grounds no longer exist for detention or he or she is released and then charged. However, in this case there is no indication of what happens next. The legislation states “the detention shall be terminated forthwith”. If nothing else happens under section 16(5) once the section 4 period expires, which is 24 hours at present, the detention is terminated and a person should be released. What happens next? One presumes the Garda furnishes the Director of Public Prosecutions with any new information and the Director of Public Prosecutions makes an application to the Court of Criminal Appeal under section 8.
However, it strikes me that section 16 rides roughshod over the safeguards in section 8 if a person may be arrested and detained to gather evidence or to show there is new and compelling evidence against him or her for a section 8 application. What is to prevent the Garda seeking this procedure for every acquitted person or to test whether such a person would make a confession having been acquitted? The Garda could arrest, detain, determine if it can extract a confession and then it would have a second bite at the cherry. I am not impugning the Garda or suggesting the Garda would behave in this way at random. However, as legislators we must ensure there are safeguards against abuse by ill-intentioned individuals and I see no such safeguards here. Section 16 as currently drafted is too broad. Unless I have missed something I see no reason for this requirement or for such very extensive powers of arrest and detention of a person previously acquitted and in respect of whom there has been no section 8 or section 9 procedure at that stage.
It is also interesting to read the section in conjunction with section 15 which outlines the safeguards and the proviso that powers may be used only in accordance with this Bill. It lists what the Garda is not permitted to do without the consent of a person, where such a person has participated in a relevant offence in respect of which he or she has been acquitted. Quite properly, the section lists the requirement for such procedures as arrest, detention, interview and so on. However, section 16 undermines all that with the provision that such a person may be arrested as if under section 4, but without the usual stipulations of a section 4 detention, such as when a detention comes to an end a person must be charged or released. There is no provision here that such a person would be charged at that stage. He or she is simply released but the case may have been built against him or her during a detention and he or she may be subject to a section 8 or section 9 application then. Will the Minister clarify the purpose of the section and how he intends to ensure safeguards against abuse?
Deputy Dermot Ahern: If one were to extend the logic of Senator Bacik’s argument regarding the arrest of people under this section, no one could be arrested prior to being charged, leaving aside the procedure for a retrial under this legislation. Obviously, the Garda is entitled to arrest someone in accordance with the law to question him or her, or else it would not have the ability to solve crime.
Senator Bacik, when referring to section 15, answered her own question on the rationale behind section 16. As she stated, the section contains safeguards in respect of what can be done. It must also be pointed out that following the arrest of a person, it will be necessary for a superintendent to apply for a judicial imprimatur. There cannot be a subsequent charge unless the court so directs. This is not something that might be used willy-nilly and in every circumstance in order to allow the Garda to have another bite at the cherry.
Section 16 is central to the procedure governing the reopening of acquittals on the basis of new and compelling evidence. It allows for the arrest of a person where his or her detention is necessary for the investigation of information that points to the existence of new and compelling evidence. It is important to note that the arrest follows judicial authorisation. The maximum period for which a person may be detained is 24 hours, the maximum permitted under section 4 of the Criminal Justice Act 1984.
In combination with section 15, section 16 represents a safeguard for acquitted persons. Without the prohibition in section 15, an acquitted person would be subject to Garda arrest and detention in the normal way for the offence in respect of which he or she has been acquitted. Once the law provides for the retrial of acquitted persons in certain circumstances, it follows that, unless some special provision is made in law, such persons would be subject to normal Garda powers as part of a proper investigation of new evidence. The offences to which the new and compelling evidence procedure applies are all arrestable offences. This means that any such person, on the basis of reasonable suspicion, would be liable to be arrested and detained without the need for a judge-assisted warrant.
In recognition of the status of the acquitted person and the need to remove any potential for harassment of that person, section 15 prohibits the exercise of a range of standard Garda investigation powers, including those of arrest, detention, fingerprinting, the taking of forensic samples etc., except in accordance with the special provisions in section 16 to 18, inclusive.
Section 17 makes similar provision in respect of the arrest of an acquitted person who is in prison or a child detention school with regard to his or her suspected involvement in an offence for which he or she has been acquitted. The section also makes special provision for search warrants.
As stated, section 16 provides for judicial authorisation of an arrest. Before issuing an arrest warrant, a judge must be satisfied that the senior member of the Garda Síochána seeking it is in possession of information on the relevant offence in respect of which a person was acquitted which has come to the attention of the Garda since that person’s acquittal and which is likely to reveal or confirm the existence of new or compelling evidence in connection with his or her suspected participation in the offence for which his or her arrest is being sought. This test requires the judge to have regard to the exacting threshold which must be met in order to ground an application for a retrial on the basis of new and compelling evidence.
Senators may be interested to note that other jurisdictions that have modified the rule against double jeopardy in order to provide for retrials where new evidence emerges post-trial all allow the exercise of police powers in respect of the acquitted person subject to special safeguards. In general, such safeguards come in the form of prior approval from the prosecution services. Having regard to the independence of the Director of Public Prosecutions in the State, I do not wish to go down that road. I have instead opted for judicial oversight which provides a strong safeguard to protect the acquitted person from potential harassment.
Apart from the fact that, in combination with section 15, it provides a safeguard for acquitted persons, section 16 is also critical from an operational perspective. It goes without saying that before the Director of Public Prosecutions initiates, under section 8, an application to have an acquittal quashed and a person retried, the new and compelling evidence on which that application is based must have been properly verified by the Garda in order to ensure its reliability and substance. To ensure such verification, the Garda must have the possibility of using standard investigative powers to question the person, take his or her fingerprints, gather forensic samples, etc. These powers all arise in the context of Garda detention. It might not be necessary for the Garda to seek the arrest of and detain a person in every case. However, the power to do so must be available as an option.
The purpose of the arrest under this section relates to the investigation of possible new and compelling evidence. It will arise before a decision is taken by the Director of Public Prosecutions to initiate an application for a retrial order. In no way does section 16 allow the acquitted person to be detained in custody pending the determination of the application for a retrial order. As stated, while other jurisdictions permit an acquitted person to be remanded in custody or placed on bail pending the determination of the application for a retrial, I have decided not to go down that route.
Having regard to an acquitted person’s entitlement to the presumption of innocence, he or she will be at liberty, without the possibility of restrictions being imposed, pending the determination by the Court of Criminal Appeal of the retrial order. I am aware that this gives rise to the risk of an acquitted person absconding but I am advised that this is unavoidable. In order to address that fact, section 8(6) provides that if an acquitted person fails to appear, the court may, subject to the requirements of the interests of justice, allow the hearing to proceed in his or her absence.
I am satisfied that section 16 strikes the appropriate balance between the rights of the acquitted person and the needs of the investigation into the existence of new and compelling evidence. In such circumstances, I urge Senators to support it.
Senator Ivana Bacik: I thank the Minister for clarifying that the person will be at liberty pending the hearing of an application under section 8. I understood him to state that prior to section 16 being brought into operation, the Director of Public Prosecutions must have already formed a view on the existence of new and compelling evidence. However, that is not clear from the wording of the section.
I do not accept the Minister’s contention that I am making a much more general point regarding arrests and so forth, far from it. I am stating this is an exception to the normal procedures under which gardaí form reasonable suspicions, arrest people, etc. That will already have been done in this instance in respect of persons who have been tried and acquitted. We are, therefore, dealing with a very different situation in respect of people who previously were not capable of being rearrested.
It is clear from what the Minister said that a section 16 application would be made prior to those made under either section 8 or 9. I reiterate my contention that this matter is too broadly defined in section 16, particularly in the light of the fact that there is a difficulty in the context of an investigation being carried out by the Garda and the omission of a reference to the Director of Public Prosecutions having already formed a view. There is no provision to the effect that the Director of Public Prosecutions should, prior to a senior member of the Garda making an application to the District Court, have formed a view or that a section 8 application is contemplated. Perhaps it might be useful to table an amendment in this regard and I reserve the right to introduce such an amendment on Report Stage.
I could not frame an amendment to section 16 for discussion on Committee Stage because I was not able to identify the stage at which the application should be made. Now that the Minister has clarified the position, I believe I see a way in which the section might be amended in order to make it somewhat more specific. I will, therefore, reserve my position on the matter until Report Stage.
It is clear that, under section 16(9), there is also a power of arrest in instances where retrial orders are made under section 10. When I first read the Bill, I was not sure whether it was envisaged that this would also apply following the making of a retrial order under section 10. However, section 10(1) includes a power for the court to make conditions or give directions. In such circumstances, the court can provide a warrant for arrest. Section 16 is, therefore, only relevant where somebody has been acquitted and where a retrial order has not been sought or granted. Owing to the fact that the Minister has confirmed this fact, it is all the more important that we ensure there are stringent safeguards in place in respect of the detention period, what is permissible and the necessary mechanisms which must be triggered before a person can be detained by a judge of the District Court under this section.
Deputy Dermot Ahern: My previous remarks may perhaps have clarified the purpose of the section which the Senator proposes to oppose. If we were to agree to delete it, we would be faced with a ludicrous situation where the Garda would not be able to put new and compelling evidence discovered by its members to the acquitted person against whom, subject to judicial authorisation, it might wish to bring a charge. That would be complete nonsense because gardaí would have to be able to confront and question a potential defendant in regard to this new and compelling evidence.
The Senator is entitled to table an amendment on Report Stage and we will deal with it but this is the right way to go. As I said, we did not go down the route of other jurisdictions which have changed the rule in this respect. We are making it subject to judicial authorisation and the detention is only in respect of new and compelling evidence and is subject to a very strict regime and time limit.
Senator Ivana Bacik: I said the reason I opposed the section was that I was not clear about the purpose. The Minister clarified that and I will table an amendment on Report Stage. I am grateful to him.
Senator Ivana Bacik: There might well be a situation in which the Director of Public Prosecutions makes a section 8 application without a section 16 application having been made first. Section 16 is not a necessary prerequisite for section 8. I am trying to assist the Minister in clarifying this.
Deputy Dermot Ahern: Amendments Nos. 38 and 39 are technical amendments. Amendment No. 38 substitutes subsection (10) for section 17(10). The effect of the substitution is that paragraph (b) of subsection (10) is deleted. Paragraph (b) provides that nothing in this section shall effect any power conferred by law apart from this section in regard to the arrest, detention or transfer of persons in prisons or children in detention schools.
Section 17 sets out the circumstances in which a District Court judge may issue a warrant for the arrest of a person who is in prison or in a children’s detention school in connection with the person’s suspected involvement in an offence for which he or she has already been acquitted. The arrest is for the purpose of confirming or revealing the existence of new and compelling evidence.
Subsection (10)(b) was inserted as a safeguard to ensure that section 17 did not restrict other arrests, detentions or transfer powers in respect of prisoners or children in detention — for example, the power to arrest such persons in connection with an offence other than the offence for which the person was acquitted. However, on reflection, the Parliamentary Counsel advised that it serves no practical purpose.
Amendment No. 39 is similar to amendment No. 38. It also arises following further consideration of section 18(8) by the Parliamentary Counsel. The amendment substitutes section 18(8). In effect, it deletes subparagraph (b) of subsection (8) which provides that nothing in section 18 shall affect the operation of any power conferred by law apart from this section in regard to the search of any place or person. Subsection (8)(b) was inserted as a safeguard to ensure that section 18 did not have unintended consequences for other search powers such as the power to apply for a search warrant in regard to property owned by an acquitted person in connection with an investigation into his or her involvement in another offence. On reflection again, the Parliamentary Counsel advised that it serves no practical purpose.
Government amendment No. 39:
Amendment agreed to.
Section 18, as amended, agreed to.
An Leas-Chathaoirleach: Amendments Nos. 40 to 43, inclusive, are related and may be discussed together. Is that agreed? Agreed.
Senator Eugene Regan: I move amendment No. 40:
Evidence in Criminal Proceedings
These amendments relate to improperly or illegally obtained evidence. This was the subject of debate in this House when I put forward a Bill to this effect, that is, in regard to the exclusionary rule. In the context of the separation of powers, I do not propose to press these amendments. There is a case before the Supreme Court which was heard approximately ten days ago and these issues are the subject of this court case.
This relates to the constitutional aspect. The Minister had reservations about the Bill proposed and some of which strengthened this Bill in regard to the exclusionary rule. I do not propose to press these amendments in light of the fact the issue is live before the Supreme Court.
Deputy Dermot Ahern: I thank the Senator. That concurs with my view.
Amendment, by leave, withdrawn.
Amendments Nos. 41 to 43, inclusive, not moved.
Sections 19 to 22, inclusive, agreed to.
Senator Ivana Bacik: I move amendment No. 44:
This amendment proposes to insert new words into section 23(1) relating to with prejudice prosecution appeals. The amendment seeks to specify what type of errors of law can be the subject of an application under section 23, again being mindful of the change in the law section 23 represents and recognising that the expert group on the balance in criminal law said that a trial that flounders of an error of law made by a trial judge cannot reasonably be described as a trial in due course of law. It argued in favour of a with prejudice right of appeal. However, it stated that the jury decision on the merits, following reception of all admissible evidence, is totally impregnable under its proposal. I agree with that because this should be an exceptional power capable of being exercised only in exceptional circumstances.
The expert group said in the summary of its report that only where the jury is directed as to its verdict, or wrongly prevented from considering admissible evidence, could the jury verdict be impugned. Using the language of the expert group report, we simply specified what type of question could be appealed under section 23, in other words, the decision in favour of the accused and only in a question of law which gives rise to a directed verdict or which prevents the jury from considering evidence which was properly admissible or a misdirection of law to the jury. We have broadened it somewhat from the balance report. I have spotted a typographical error in the amendment and apologise for that. It should state “gives rise to a directed verdict or which prevented the jury from considering evidence which was properly admissible or a misdirection of law to the jury”. It simply specifies in order to ensure that this is more watertight and that this will only be exercised in exceptional circumstances.
Deputy Dermot Ahern: I thank the Senator for what she said. I had intended to bring forward amendments on Report Stage to refine the scope of this section. Section 23 represents a radical departure in our prosecution appeal system. It is intended to capture the recommendations of the balance in the criminal law group that with prejudice prosecution and right of appeal against acquittals following trial on indictment should be permitted in certain circumstances.
The group recommended that the right should be available in the case of an erroneous ruling by a trial judge which resulted in a judge directing acquittal or weakened the prosecution case which was put to a jury. The report of review group emphasised that a jury acquittal, following receipt of all the admissible evidence, should be totally impregnable under the regime, as the Senator said. The group also recommended that a prejudice prosecution appeal should be available against a decision by the Court of Criminal Appeal to quash an acquittal but not order a retrial.
I am concerned that section 23 does not capture with sufficient precision the recommendations of the review group and for this reason I intend to bring forward amendments on Report Stage which will seek to ensure the threshold for appeal is sufficiently high to protect jury decisions following receipt of all admissible evidence while at the same time not setting the bar so high that the section is inoperable.
While I appreciate the intention behind the Senator’s amendment, I ask her to withdraw it because I am advised by the Parliamentary Counsel that the amendment as drafted does not require a sufficient link between the jury decision to acquit and the erroneous ruling by a judge. Having regard to the constitutional right to a jury trial, we must be careful when making provision for overturning a jury that a verdict, following receipt of all admissible evidence, is left untouched irrespective of whether it might be considered perverse. This point is not adequately captured in the section as currently worded which provides that the appeal will solely be on a question of law and does not require a link between such a question and the adverse effect on the jury’s consideration of the evidence from the prosecution’s perspective.
Senator Ivana Bacik: I am grateful that the Minister has indicated his acceptance of the principle of my amendment. I was concerned about the lack of specificity in section 23 as it stands and I welcome that he plans to insert further qualifications or restrictions. He was probably more critical than I of the current wording of the section. This kind of with-prejudice appeal represents a radical departure, especially in the context of jury verdicts. Jury trials have long been a vital part of our criminal justice system and it is important that we minimise any impacts that would undermine them. I withdraw my amendment in light of the Minister’s acceptance that the section as it stands does not strike the correct balance.
Amendment, by leave, withdrawn.
Amendment No. 45 not moved.
Section 23 agreed to.
Sections 24 to 26, inclusive, agreed to.
Government amendment No. 46:
Deputy Dermot Ahern: This amendment inserts a new section to ensure a freezing order imposed by the High Court under section 24 of the Criminal Justice Act 1994 on dealings in property pending the outcome of a trial will in the event of an acquittal remain in place pending the outcome of a with-prejudice prosecution appeal under section 23 of the Bill and any retrial ordered. At present where a person is convicted, freezing orders remain in place until the conviction is set aside on appeal where no retrial or confiscation is ordered or satisfied. It is sensible to provide a corresponding provision in favour of a prosecution in the case of a with-prejudice prosecution appeal under section 23 because otherwise the Director of Public Prosecutions would lose one of the benefits of the appeal in that the defendant would have the opportunity to dispose of or hide his or her assets in the period between the acquittal and the conclusion of the appeal or retrial. The interpretation of the words “proceedings for an offence are concluded” contained in section 3(16)(f) of the 1994 Act is being amended to provide that it means, inter alia:
This approach replicates the situation that applies in the case of defence appeals and is necessary to ensure the property concerned is not dissipated.
Amendment agreed to.
Sections 27 to 32, inclusive, agreed to.
Government amendment No. 47:
Giving of Evidence
Deputy Dermot Ahern: This amendment inserts a new section to amend the provisions on the admissibility of character evidence of an accused person in the Criminal Justice Act 1924. I will briefly outline the existing law before addressing the amendment as it would aid Members in their understanding of the proposed changes. As the law stands, section 1(a) of the 1924 Act provides that an accused shall be a witness in his or her defence only if he or she consents to take the stand. An accused who takes the stand is liable to be cross-examined by the prosecution but exceptions arise to that general rule. Section 1(f) of the 1924 Act prohibits the cross-examination of an accused regarding previous convictions or bad character unless certain circumstances arise. The accused will lose the so-called shield under three conditions. The prosecution can cross-examine the accused about his or her commission of or conviction for another offence if it satisfies the similar fact evidence rule. The accused will also lose his or her shield if he or she has attacked the character of the prosecutor or witness for the prosecution, has given evidence of his or her own good character or has adduced some evidence from witnesses for the prosecution. This does not extend to defence witnesses. The accused can also be cross-examined if he or she has given evidence against a co-accused.
As the balance in the criminal review group noted, this gives rise to anomalies. Under the existing law, an accused person may retain the shield simply by refusing to take the stand. Deceased and, often, incapacitated victims are not available as witnesses for the prosecution, which means that an accused can avoid the consequences of an attack by him or her on the character of a person who in other circumstances would be a prosecution witness. Victims who cannot be witnesses are at present afforded no protection for their reputation or good name. This has the potential for intensifying the distress and suffering of their families. Such a situation amounts to an undeserved benefit to the accused from the degree of injury inflicted on the victim. The overall picture that emerges from the present situation is that an accused or his or her legal team can adduce evidence of the good character of an accused or conduct an attack on the character of other persons with a high level of impunity. Deceased or incapacitated victims are left with little or no opportunity to respond to claims by the accused.
It is against that background that the amendment to the 1924 Act is being proposed. The amendment implements the recommendations of the review group. Section 1(f) is being amended in two respects. Subparagraph (ii) is being amended to provide for the dropping of the shield where the accused has personally or through counsel asked questions of any witness designed to establish the good character of the accused or where the conduct of the defence is such as to impugn the character of the victim. The new subparagraph (iiia) extends the loss of the shield to include cases in which the accused or his or her legal team asks questions of any witness where the conduct of the defence is such as to involve imputations against the character of the deceased or incapacitated victim. This extends the circumstances where the shield is dropped to include non-witnesses.
A new section 1A is being added to the 1924 Act to provide that the defence must give seven days’ notice of its intention either to make an imputation against a prosecution witness or a deceased or incapacitated victim or to establish the good character of the accused. In the absence of such notice, the leave of the court will be required by the defence to make such an imputation. This need for notice arises in cases where the witness is not present and able to defend himself or herself. It will often take time to check and examine details of allegations against persons who are not present and whose ability to assist even where he or she is alive is impaired. In cases where the defence uses this case the prosecution may ask questions of the accused or other witnesses as to the bad character of the accused. The accused may be called as a witness and the prosecution may ask the accused or any other witness questions about the accused’s previous record of bad character or the good character of the victim. This is despite the rule in section 1(f) limiting the circumstances where the accused who is a witness can be asked about his previous record or character.
My amendment addresses anomalies that are open to abuse by an accused either to enhance his own standing or to question or impugn the character of others who are not able to defend themselves. I am not rewriting the rules of evidence. I am not attacking or reducing the established rights of defendants. I am merely addressing a particular situation that is especially important to the families of victims. I am respecting the position of the review group. It was careful in its approach, as was I. It is clear that it did not favour any general relaxation of the current rules. I am satisfied that the changes are necessary but careful. There is nothing in my amendment that would prevent an accused raising issues relating to the victim if he or she can demonstrate that they are true and are relevant to his or her defence. My amendment aims to prevent the abuse of the anomalies in the current rules and I am happy to commend these amendments to the 1924 Act.
Senator Ivana Bacik: I am happy to support the amendment in principle. I accept that it is a significant departure but it causes great distress to victims, and particularly to their families, when the accused raises provocation as a defence and the family feels that the character of their deceased relative has been impugned without any possibility of a response. Many years ago I spoke about this to Advocates for Victims of Homicide, AdVIC. It has called for such an amendment. It is also a recommendation of the expert group as the Minister said.
I want to raise two points, however, to improve the wording of the amendment. They are almost typographical errors. Subsection (b) states: “notwithstanding section 1(f), the person may be called as a witness and be asked, and the prosecution may ask any other witness,”. Should that not be “or” the prosecution or “and/or”? If the accused is not taking the stand the prosecution can ask any other witness, as an alternative. The same is true if the accused does take the stand. The present phrase suggests that the prosecution can ask another witness only where the accused has been called as a witness. Will the Minister please check that point?
Subparagraph (ii) of subsection (b) reads “would show that the person in respect of whom the offence was alleged to have been committed is of good character”. I would say “is or was of good character” because the person may be deceased. In my example the character of a deceased person has been impugned, for example, where the defence alleges provocation in a murder trial. In that case “the person in respect of whom the offence was alleged to have been committed” is deceased but his or her character is being attacked. That is the sort of case the Minister seeks to address here. The phrase “is of good character” implies that it refers only to someone who is alive but is incapacitated, which is the other circumstance covered by the legislation. Will the Minister consider these two small changes to improve the wording of this provision?
Senator Eugene Regan: The balance in the criminal law review group comprehensively covered the shield and the dropping of the shield in respect of character evidence. I welcome the fact that it has been taken up in this Bill. I fully support the Minister’s amendment.
Deputy Dermot Ahern: I thank the two Senators for their contributions. We will consider the two slight amendments proposed by Senator Bacik.
Amendment agreed to.
Government amendment No. 48:
Deputy Dermot Ahern: This amendment is based on the recommendations of the review group which examined the question of whether there should be a more general prior disclosure of defence evidence. It rejected the idea of general disclosure but recommended more limited requirement of disclosure of evidence of a technical and special nature. The Government accepted this recommendation and the amendment gives effect to it. It provides that the defence must give the prosecution notice of its intention to adduce evidence.
The notice must normally be given at least ten days in advance of the scheduled start of a criminal trial but the court retains discretion to allow for shorter notice, for example, where it feels it is necessary to respond to some fact that arises in the course of the trial from the evidence given while in the witness stand by an expert witness for the prosecution. The application from the defence must include the name and address of its expert witness as well as details of the evidence the expert proposes to give. The application is to be accompanied by reports and summary findings of any analysis carried out by the expert witness. When assessing the application the court will satisfy itself that the evidence it is proposed to give meets the requirements in statute or otherwise to the standard of evidence. This ensures the procedure is not used to introduce irrelevant or frivolous material or to otherwise waste the court’s time.
The procedures in this amendment are modelled on section 20 of the Criminal Justice Act 1984, notice of alibi in trials on indictment, which requires notice of the particulars of the alibi as well as details of witnesses to be called in support of the alibi. The wider picture is that generally a considerable disparity exists between the advanced disclosure required of prosecution and defence in criminal cases. The prosecution is required to set out details of the precise conclusions that it seeks to prove in the form of statement of particulars of the offence on indictment and to furnish not only copies of exhibits and statements of witnesses intended to call but also any other material which may be useful to the defence.
The defence, by contrast, with limited exceptions such as the alibi evidence to which I referred and information on witnesses required by the Offences Against the State (Amendment) Act 1998, or the intention to adduce evidence regarding the mental condition of an accused under section 19 of the Criminal Law (Insanity) Act 2006, is not required to furnish any such information.
Having viewed various options and having considered the position in the UK and elsewhere the review group felt the time was not right to undertake any wholesale changes but there is no doubt that a case can be made for prior disclosure in the case of expert evidence. Such evidence is often very complex. It can relate to a wide range of medical, scientific and mechanical issues, to mention some of the more common ones but it will often relate to matters such as the evaluation of DNA analysis methods, the interpretation of DNA results and pathology reports.
The analysis and subsequent reports are often prepared by specialists in agencies outside the State. It is reasonable that the prosecution should have some opportunity to consider and evaluate such evidence. The defence, after all, will have had details in advance of all of the evidence, including the expert evidence on which the prosecution relies. The amendment does not require disclosure of all of the defence evidence. It is limited to one area where the nature of the evidence is such that it very often cannot be evaluated instantaneously. I recommend this amendment.
Senator Ivana Bacik: In response to the Minister’s point about disparity between defence and State, it goes without saying that the might of the State is weighed against the defence. That has always been recognised in the jurisprudence of the European Court of Human Rights and in our Constitution and the due course of law guarantee. It is important to bear that in mind. This provision is not unduly onerous but I am glad to see there is a provision in the Minister’s amendment which will allow the defence to bring in evidence of this nature without the necessity to seek notice. In my experience the necessity for such evidence often arises in the course of the trial and therefore it would have been impossible to give the requisite notice.
Amendment agreed to.
Progress reported; Committee to sit again.
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