Tithe an Oireachtais
An Comhchoiste um Dhlí agus Ceart, Comhionannas,
Cosaint agus Cearta na mBan
Tuarascáil maidir le hAthbhreithniú ar an gCóras Ceartais
Choiriúil
Iúil 2004
_______________________________
Houses of the Oireachtas
Joint Committee on Justice, Equality, Defence and Women’s
Rights
Report on a Review of the Criminal Justice System
July 2004
__________________________
1
TABLE OF CONTENTS
1. Chairperson’s Preface
2. Other Members of the Joint Committee
3. Chapters:
A)
B)
C)
D)
E)
F)
G)
H)
I)
J)
Introduction.
The Nature of the Problem.
Witness Intimidation.
Speeding up Criminal Trials.
Structural, Resourcing and Operational Issues.
The Right to Jury Trial.
Criminal Law Offences directly related to Gangland Activity.
Prosecution Appeals.
The Criminal Justice Bill 2004.
Other Matters.
APPENDICES
Appendix 1: List of Members of the Joint Committee
Appendix 2: The Orders of Reference of the Joint Committee
Appendix 3: Details of Hearings
2
Chairperson’s Preface
The Joint Committee on Justice, Equality, Defence and Women’s Rights identified in
November 2003 a number of issues concerning the criminal justice system in Ireland
which needed to be reviewed in some detail. In particular, the questions of witness
intimidation; victim support; how organized and gangland crime (drug-related or
other wise) is dealt with; procedural and operational aspects of bringing criminal
cases to trial; the right to jury trial; prosecution appeals and various other matters
were brought to the attention of the Committee.
While it fully acknowledges that a large proportion of the system currently in place
and the current application of the law of evidence works perfectly well, the
Committee is of the view that where considerable public concern has been raised
concerning aspects of that system, it is necessary to undertake a review process
involving examination of the adequacy of legislative provisions, resource allocations
and administrative practice to see whether and what changes are required and to
consult with all appropriate persons and organisations working in, associated with, or
being affected by, the criminal justice system.
The decision to hold hearings was timely in view of an announcement by the Minister
for Justice, Equality and Law Reform that he intended to conduct a review of aspects
of the criminal justice system and his encouragement to all members of the Oireachtas
to actively participate in such a process.
By bringing together in a public forum most of the key players in the area of criminal
justice and experts in the field, including academics, legal practitioners and members
of the general public, the Committee helped focus attention on the most important
aspects of the system requiring legislative, procedural or operational change. In this
regard, the Committee would like to thank TG4 for televising the whole hearings
process.
The Joint Committee also wishes to thank all those who responded to the invitation to
lodge submissions on foot of newspaper advertisement and direct invitation and all
those who were in subsequent contact with the Committee, including bereaved
families. Thanks are also due to Mr. Paul Anthony McDermott B.L. for his assistance
in researching and finalising this report.
In adopting this report, the Joint Committee intends to return to the issues raised
therein and will continue to engage actively in working towards reforming those areas
which have been identified as requiring modernisation, additional resources, and
expansion. The Committee also continues to be aware of the need to balance rights
and responsibilities in guaranteeing adequate support for the victims of crime and
3
their families, while ensuring that accused and convicted persons are treated in an
appropriate manner.
Signed
__________________________________
Mr. Sean Ardagh T.D.,
Chairman of the Joint Committee on Justice, Equality, Defence
and Women's Rights.
21 July 2004
4
OTHER MEMBERS OF THE JOINT COMMITTEE ON JUSTICE,
EQUALITY, DEFENCE AND WOMEN’S RIGHTS
Deputies:
J. Costello T.D.
(Lab)
M. Hoctor T.D
(FF)
D. McGinley T.D.
(FG)
F. McGrath T.D
(Techn.Grp)
P. McGrath T.D.
(FG)
B. Moynihan-Cronin
(Lab)
S. O Fearghaíl T.D.
(FF)
C. O’Connor T.D
(FF)
D. O’Donovan T.D.
(FF)
P. Power
(FF)
Senators:
T. Kett
(FF)
S. Terry
(FG)
J. Tuffy
(Lab)
J. Walsh
(FF)
5
A) Introduction
1) The Joint Committee on Justice, Equality, Defence and Woman’s Rights
has engaged on a consideration of the question as to whether there is a
need for reform of certain areas of the criminal justice system arising out
of public concern surrounding some recent events. In particular there was a
public concern as to the ability of the criminal justice system to address the
question of witness intimidation.
2) Written submissions were received from a large number of persons and
organisations. A full list of the names of the persons and bodies who
lodged substantive written submissions is to be found appended to this
report. The text of those submissions is available on the Oireachtas
website. Many of these submissions were extremely detailed and well
thought out and the Joint Committee would like to sincerely thank all those
persons who contributed by way of submission. The Joint Committee has
carefully considered each of the written submissions that it received.
3) In addition to receiving the written submissions, the Joint Committee also
heard from some of their authors. Public hearings were conducted on six
days as follows:
November 28th 2003:
Victim Support
Probation and Welfare Service
Mr Gerard Hogan S.C.
December 1st 2003:
Irish Prison Service
The Law Society of Ireland.
Dr. Paul O’Mahony
December 2nd 2003:
Human Rights Commission
The Bar Council
December 5th 2003:
Irish Council for Civil Liberties
The Courts Service
Ms. Ivana Bacik B.L.
December 8th 2003:
Association of Garda Sergeants and
Inspectors
The Director of Public Prosecutions, Mr.
James Hamilton
Mr. Barry Galvin, Solicitor
December 9th 2003:
The Minister for Justice, Equality and
Law Reform, Michael McDowell, T.D.
The Commissioner of An Garda
Síochána, Mr. Noel Conroy.
The transcript of the public hearings is available on the Oireachtas website.
6
B) The Nature of the Problem.
4) The Joint Committee first wishes to point out that the current exercise was
not intended to be a knee-jerk reaction to a particular criminal case or to
particular persons who are suspected of criminal activity. The criminal
justice system deals successfully on a daily basis with a huge number of
cases, including those involving serious and organised crime, and it would
be disproportionate because of difficulties in particular cases to suggest
that the system has suddenly collapsed or otherwise been discredited. As
the Bar Council pointed out:
“The vast majority of cases in which prosecutions are directed on
indictment are successful as a result of pleas of guilty being
forthcoming or convictions following a contested trial. It hardly needs
to be said that the fact that a proportion of prosecutions will fail is in
no sense a system weakness. To state the obvious, if all prosecutions
succeeded then the initiation of prosecution by the DPP would be
tantamount to a certification of guilt.”1
The Joint Committee concurs with those comments.
5) A measured response rather than a quick fix solution is the preferred
option. Indeed none of the submissions received suggested otherwise. It
also appears that most people have confidence in the basic structure of our
criminal justice system. For example Gerard Hogan S.C. stated that “it
does not seem that the fundamentals of our criminal justice system need to
be overhauled.”2 In a similar vein the DPP submitted that “It is simply not
the case that the entire criminal justice system is in crisis, although this is
no reason to be complacent about the problems that we do face in tackling
organised crime.”3 Almost all of the submissions focused on particular
and specific changes that could be made within the existing system.
However it is only right to record that not every submission agreed that the
system is fundamentally sound. For example, Barry Galvin stated that “I
believe that important factors that make up the system have survived from
a different era and are no longer acceptable.”4 He submitted that “It is not
an exaggeration to say that the existing odds are 80:20 against the
prosecution. The current criminal justice system involves trial by
ambush…”.5 If correct, this would certainly be a situation of some
concern.
6) It is important to constantly review the criminal justice system and in
particular to review how it is dealing with the particular challenges posed
by criminal gangs who are mainly engaged in drugs related activities.
These gangs are ruthless and will stop at nothing in order to avoid
detection and apprehension. They are prepared to try to interfere with the
1
at page 1 of its written submission
At paragraph 3 of his written submission
3
At paragraph 6 of his written submission
4
At paragraph 1.1.1 of his written submission
5
At paragraph 3.1.1 of his written submission
2
7
justice system, for example by stopping other persons giving evidence
against them. They need to be stopped.
7) The criminal justice system has to strike a balance between the
constitutional right of the individual to a fair trial in due course of law
under the Constitution on the one hand and the right of society to an
effective criminal justice and law enforcement system on the other. To
date that balance appears to have been properly struck for the most part.
As Gerard Hogan pointed out:
“Ireland was among the very first States who permitted individuals to
bring individual petitions to the European Court of Human Rights, but
in the intervening fifty years the fact that one Irish criminal case has
come before the Court may be thought to provide its own tribute to the
inherent quality and robustness of our system of criminal justice.”6
8) The purpose of the Joint Committee was to initiate serious public debate
on what reforms are needed in certain areas. The hearings also tied in with
the lead up to the publication of a new Criminal Justice Bill. The issues
considered included:
(i)
(ii)
(iii)
(iv)
(v)
the possible creation of a offence of membership of a criminal
gang;
the powers available to the authorities for investigating crime;
the question of the protection of witnesses and how to deal with
un co-operative witnesses.
the state of criminal procedure.
the treatment of witnesses.
9) It will be appreciated that the Joint Committee has certain limitations on
what it can say. This is because of the need not to prejudice ongoing
criminal cases or Garda investigations. Therefore the comments made have,
by necessity, to be kept at a certain level of generality. Thus, nothing in this
Report is intended to be, nor should be taken as, a comment on any
particular person or case.
10) The Joint Committee has now heard from and read the submissions of a
wide variety of persons, including key players in the area of criminal
justice, criminal practitioners and academics and members of the general
public. One thing that is clear is that there is no shortage of ideas out there
or persons who have used their experience to come up with suggestions for
reform. It is a sign of hope that there are so many persons out there who
are engaged in serious and thoughtful reflection on how to improve the
criminal justice system and who are prepared to give of their time so as to
share those views with the legislature.
11) The Joint Committee agrees with the Law Society that “A responsible
legal system is one that seeks to strike a balance between the rights of the
6
At paragraph 4 of his written submission
8
accused, victims and witnesses. It is a hallmark of a civilised society and
should be valued as such.”7 In drafting this report the Joint Committee has
attempted to retain that sense of balance.
12) The European Convention on Human Rights was incorporated into Irish
law by the European Convention on Human Rights Act 2003. The 2003
Act was passed on the 30 June 2003 and was commenced at the start of
2004. In its deliberations, the Joint Committee has borne in mind the rights
of accused persons under the Convention. As the Irish Council for Civil
Liberties pointed out, “It is a mistake to believe that the most effective
measures to combat crime or protect vulnerable witnesses require a
diminishing of the rights of suspects. On the contrary if the rights of
suspects – who face the prospect of a criminal conviction – are not
safeguarded only injustice can result.”8 However, it should not be
forgotten that the victims of crime also enjoy human rights under the
Convention. In fact the Convention sometimes requires positive measures
to be taken. For example in X and Y v Netherlands9 a 16-year old mentally
handicapped girl was sexually assaulted by an adult male of sound mind.
Due to a loophole in Dutch law he could not be prosecuted. This was
because under Dutch law only the victim of the crime could register a
criminal complaint, a rule that applied even where the victim was
incapable of doing so due to her handicap. The European Court found that
the absence of an effective criminal procedure was a violation by the
Netherlands of its duty to secure respect for the victim’s private life under
Article 8. The Court stated that Article 8:
“…does not merely compel the State to abstain from … interference: in
addition to this primarily negative undertaking, there may be positive
obligations inherent in an effective respect for private or family life.
These obligations may involve the adoption of measures designed to
secure respect for private life even in the sphere of the relations of
individuals between themselves.”10 (footnotes omitted)
13) The Joint Committee also notes that the right to life under Article 2 of the
Convention obliges the State to protect the general public from criminal
attacks on their person. Sometimes the focus of human rights arguments is
on the rights of the accused. There is nothing wrong with this. However
the Joint Committee has also borne in mind the human rights of victims
and witnesses.
14) Some submissions expressed the view that the current balance was too
much in favour of the accused at the expense of the prosecution. For
example the DPP stated that there are “… a number of areas of criminal
law which I believe should be reformed and where in my opinion the
balance has shifted too far in favour of accused persons and where the
people, society as a whole, are not treated on a basis of equality with the
7
At page 1 of its written submission
At para 1.5 of its written submission
9
(1986) 8 EHRR 235
10
(1986) 8 EHRR 235, para 23
8
9
defence. Most of these areas relate to procedural issues which have not
received as much attention from law reformers in recent years as has the
substantive law.”11 In a similar vein Barry Galvin stated that:
“I have long been of the view that the Irish Criminal Justice System
has failed to keep pace with changing trends in criminal activity to the
great detriment of the public. At the outset, I wish to make it clear that
I am firmly of the view that there is no quick fix for the problems which
now exist. I believe that the level of criminal activity that exists here is
unacceptable high, having regard to the socio-economic background
of Ireland, that is to say, a relatively small and law abiding population
residing on a small island with only one large cosmopolitan area.
There is a serious culture of substance addiction to both drink and
drugs, there has been a long-festering environment in which criminals
have been allowed to flourish. There has been too much dependence on
a drink/pub culture at the expense of effective programmes to foster
education, sporting and social activity in young people. There has been
an overwhelming failure in the area of young offenders and juvenile
crime.”12
Finally, the submission from the Association of Garda Sergeants and
Inspectors suggested that “the scales of justice are now firmly down on
the side of the offender to the detriment of victims, witnesses and
jurors.”13
15) The Joint Committee takes such comments seriously and has borne them
in mind when reaching its recommendations.
16) Other valuable work has been done in this area. In particular the Joint
Committee notes the report of the Working Group on the Jurisdiction of
the Courts which reported last year, making certain recommendations in
relation to the allocation and distribution of serious criminal cases between
the Circuit Court and the Central Criminal Court. There is a useful
summary of recommendations of the Working Group that are relevant to
the Joint Committee’s deliberations to be found as appendix 1 to the
written submission of the Courts Service. The Joint Committee also
recognises the valuable contribution that the Law Reform Commission has
made to some of the areas under discussion.
11
At paragraph 8 of his written submission
At paragraph 1.1 of his written submission
13
At page 3 of their written submission
12
10
C) Witness Intimidation.
Introduction
17) The Joint Committee cannot overstate the importance of witnesses in the
criminal justice system. It is fair to say that without witnesses there could
be no prosecutions. Without prosecutions there could be no justice. Thus
our society is dependent on the continued willingness of witnesses to come
forward and to give evidence as to what they saw or what they heard. All
of the submissions received acknowledged the central role played by
witnesses in the criminal justice system.
18) The Garda Commissioner explained the role that the Gardaí currently play
in respect of witnesses. Where a serious crime occurs potential witnesses
are identified, interviewed and invited to make statements. Witnesses will
be interviewed in an environment where they feel comfortable and at ease.
If the DPP subsequently directs a prosecution the Gardaí will serve a
witness order for the trial on the witness. As the trial date approaches the
senior investigating officer appoints a member of his or her team to deal
with the necessary requirements to facilitate the witnesses’ attendance.
Witnesses who have no previous experience are briefed on the processes
involved. In some cases the victim may request the assistance of Victim
Support. The Garda Commissioner suggested that the UK Working Group
Report on Witnesses in the Criminal Justice System published in May
2003 identified many issues that would also be relevant to this jurisdiction
in relation to improving the manner in which witnesses are dealt with by
the criminal justice system.
19) As the Department of Justice, Equality and Law Reform pointed out in its
submission, there are provisions in the Criminal Justice Act 1999 aimed at
facilitating the participation in criminal proceedings of witnesses who may
be in fear of, or subject to, intimidation. Section 9 of the Act provides for
the taking of sworn depositions by a judge of the District Court where the
judge is satisfied that it would be in the interests of justice to do so. Such
an application can be made either by the prosecution or the defence. These
depositions may be admitted in evidence in certain circumstances. One
circumstance is where the deponent does not give evidence at the trial
through fear or intimidation. The deposition is taken in the presence of the
judge and the witness may be cross-examined and re-examined on behalf
of the accused. In addition, s 39 of the Act permits any person in criminal
proceedings on indictment (other than the accused), who is in fear or
subject to intimidation, to give evidence through a live television link, with
the leave of the court. This also applies in the case of the sworn deposition
procedure. Section 40 of the Act makes it an offence for any person,
without lawful authority, to try to identify, or disclose information about,
the whereabouts or any new identity of a witness who has been relocated
under a Garda Witness Protection Scheme. Section 41 of the Act makes it
an offence for a person to harm or threaten, menace or in any way
intimidate or put in fear another person who is assisting in the
investigation by the Garda Síochána of an offence or is a witness or
11
potential witness or a juror or potential juror in proceedings for an offence,
or a member of his or her family, with the intention thereby of causing the
investigation or the course of justice to be obstructed, perverted or
interfered with. On indictment the offence carries up to ten years
imprisonment.
The scope of the problem
20) Many of the submissions before the Joint Committee suggest that whilst
witness intimidation is not a widespread problem, it does cause huge
public concern where it is suspected to have occurred. For example the
Garda Commissioner stated that “It is my experience that witness and
juror intimidation is not widespread in this jurisdiction. There are many
thousands of successful prosecutions taken before our courts each year
without any suggestion of witness intimidation. Unfortunately the problem
does arise on occasions.”14 Not every submission agreed that intimidation
was not widespread. For example, Victim Support stated that “While there
is little empirical evidence for the Irish experience, figures for the U.K.
suggest that around 10% of cases fail because witnesses do not show up.
In certain areas such as Manchester, more than half of all recorded
murder cases fail to secure a conviction because of widespread witness
intimidation and coercion.”15 The Joint Committee is not in a position to
express any firm view on the extent of witness intimidation that occurs in
Ireland. However given the small size of the population and the amount of
public concern about it, the Committee believes that it would be rational to
see if the law can be altered to try to address the issue. Indeed the State is
obliged to protect witnesses. As the Irish Council for Civil Liberties
observed:
“It is important to acknowledge that protection of witnesses must
begin right at the beginning of the investigative process and not focus
simply at the trial stage. The government does have a duty under the
ECHR to put in place a system to safeguard the life, liberty or security
of witnesses, and there is an obligation on the government to organise
their criminal proceedings in such a way that those interests are not
unjustifiably imperilled.”16
The Joint Committee recommends that, in accordance with the
Government’s duty under the European Convention for Human Rights to
safeguard the life, liberty and security of witnesses, the protection of
witnesses must begin right at the beginning of the investigative process.
Addressing the problem
21) The Irish Council for Civil Liberties suggested that protecting witnesses
requires having in place practices which will be able to identify the
possibility of witness intimidation at an early stage. There should be clear
14
At page 2 of his written submission
At page 3 of its written submission
16
At paragraph 3.5 of its written submission
15
12
protocols for witness liaison and support. Witnesses exposed to
intimidation should be provided with clear information of what to do if
they do feel intimidated, and should have a clear and accessible point of
contact in the event of intimidation. These appear to be sensible and
practical suggestions.
22) The Joint Committee recommends the development of clear protocols for
witness liaison and support, including clear information as to what
witnesses should do if they are exposed to intimidation, a clear and
accessible point of contact in the event of intimidation, as well as the
development of practical courtroom supports.
23) The submissions received identified the fact that witness intimidation can
become manifest at a number of different stages of the criminal process:
(i)
(ii)
(iii)
(iv)
Witnesses refusing to come forward to make statements to
enable proceedings to commence.
Witnesses who having made statements refuse to attend the
trial or refuse to stand over their statements in the trial.
Witnesses who conspire together to change their statements or
to refuse to confirm the contents thereof.
Witnesses who having made statements give contrary evidence
during the trial.
24) It is clearly impossible to eradicate all of these sorts of witness
intimidation through law reform. There are social and cultural issues
which have to be addressed, especially in the case of witnesses to criminal
activity refusing to come forward to make statements to enable
proceedings to commence. The submission of the Probation and Welfare
Service was particularly valuable in identifying some of the social
problems that have led to the current strength of criminal gangs. These
include the existence of second generation criminal families in certain
urban areas, the arrival of drugs and the existence of young males who
leave school early and who are unemployed and disadvantaged. They also
pointed out that there is an environment of exclusion and a climate of fear
generated within the drug culture. Dr. Paul O’Mahony made useful the
point that “It is also worth remembering that most of the intimidation in
this country occurs within the context of a community where the
intimidated and the intimidators are known to each other. The most
widespread experience of intimidation is related to low level criminal
activity and vandalism.”17 He suggested a strategy of “energetic,
constructive and sympathetic community policing is essential to long-term
success in maintaining the rule of law and respect for the law in the case
of both immigrant groups and the socially excluded and deprived sectors
of the Irish populace.”18 Deputy Finian McGrath suggested that the most
disadvantaged schools in Dublin, Cork, Limerick and Galway should be
targeted with extra resources particularly counselling and family therapy
sessions. In his oral presentation on behalf of the Human Rights
17
18
At paragraph 4 of his written submission
At paragraph 5 of his written submission
13
Commission Michael Farrell stated that there are some areas “where there
appears to be a code of conduct within the criminal fraternity of not
vindicating their grievances in court.”19 The Joint Committee
acknowledges and accepts that any solution to public disquiet about crime
must address the relevant cultural and social issues in addition to
addressing law reform. The Irish Council for Civil Liberties furnished the
Joint Committee with a Report from the Center for Court Innovation on
Community Court Principles. The Joint Committee notes the apparent
success that such a court has had in New York and would be interested to
see if such a model would be suitable for Ireland.
25) As the Bar Council pointed out there are a number of reasons why a
witness might fail to swear up or might resile from a statement:20
(i)
(ii)
(iii)
(iv)
(v)
because the witness is a friend or relative of the accused;
because the witness has had unfavourable experiences with the
Gardaí and criminal justice system in the past and has no wish
to co-operate;
because the community in which the witness lives or the
persons with whom he associates do not generally enjoy a
satisfactory and co-operative relationship with the police and
criminal justice system;
because the witness has been actually intimidated or threatened
by or on behalf of the accused or by a third party;
because the witness is fearful of reprisals although no actual
threat or intimidation has actually been employed.
On behalf of the Bar Council Shane Murphy S.C. made the valuable point
that one of the problems is that in many cases witnesses who are subject to
intimidation will not admit this fact. Therefore one does not have a
complaint of intimidation. What one does have is a witness who, without
warning, begins to change his or her direction. He stated that:
“It is where the Garda has a concern that witnesses may be subject to
intimidation that we think it is important that this pre-trial facility of
deposition should be available to ensure the witness cannot resile from
his or her appearance, whether he or she was on drugs at the time, in
bad health, or under pressure. All of these are often very subtle
influences brought to bear with the result that in many cases, contrary
to what one might expect, intimidated witnesses make no complaint
because they do not dare. In the circumstances it is really a question of
seeing whether the legislation can be provided in a format which will
enable the prosecuting authorities to investigate and deploy it at an
early stage.” 21
19
Transcript, 2nd December 2003, page 16
At page 2 of its written submission
21
Transcript, 2nd December 2003, page 40
20
14
The current law in Ireland
26) To date it has been a fundamental principle of the law of evidence that out
of court statements made by witnesses are not admissible in court as
evidence of the truth of the facts stated in those statements. The main
exception to this from the prosecution’s point of view is where an un cooperative prosecution witness is declared by the Court to be a hostile
witness. Such a witness may be cross-examined about statements that they
may have made prior to the case. However such cross-examination only
goes to the credibility of the witness; the out of court statements do not
become evidence in their own right. This was established in the leading
Irish case on the topic, The People (AG) v Taylor22 where Mr. Justice
Walsh stated that:
“It must at all times be made clear to the jury that what the witness
said in the written statement is not evidence of the fact referred to but
is only evidence on the question of whether or not she has said
something else – it is evidence going only to her credibility.”
27) Thus, the bottom line in such a case is that the credibility of the hostile
witness may be destroyed by pointing to prior inconsistent statements but
the truth of the facts in those prior inconsistent statements are not admitted
as evidence against the accused. The hostile witness procedure is therefore
of little practical use to the prosecution which may be left in a position
where it has little or no evidence against the accused and so must collapse
the trial. This is even more so in a case where numerous witnesses turn
hostile.
28) The Bar Council submission explained the rationale for the traditional
common law approach:
(i)
(ii)
(iii)
(iv)
the strong preference of the common law system for sworn as
against unsworn testimony;
the need to provide the defence with an opportunity to crossexamine a witness about any account which is relied on by the
prosecution as being proof of the truth of facts essential to the
prosecution case;
the need for the jury to be in a position to observe the
demeanour of the witness giving an account which is relied
upon by the prosecution as part of its proofs, as compared with
a written account taken down by a Garda of what a witness has
said;
the formality of the occasion of a criminal trial as against the
relative informality of the taking of a statement in a Garda
station.
29) Notwithstanding the strength of this rationale a number of submissions
suggested that the current rule should be altered.
22
[1974] IR 97 at 100
15
The Canadian position
30) The Canadians have developed the law in this area in an instructive way.
In R v B (KG)23 the Supreme Court of Canada held that earlier statements
which had been recorded in a police station could be admitted into
evidence when the witnesses subsequently recanted their earlier
statements. The governing principles for the admission of such a statement
are to be the reliability of the evidence and its necessity. As a threshold,
the prior inconsistent statement will only be admissible if it would have
been admissible as the witness’s sole testimony. This is determined in a
preliminary hearing in the absence of the jury. The Supreme Court of
Canada held that sufficient circumstantial guarantees of reliability might
include:
(i)
(ii)
(iii)
That the statement is made under oath, solemn affirmation or
solemn declaration following an explicit warning to the witness
as to the existence of severe criminal sanctions for the making
of a false statement.
That the statement is videotaped in its entirety.
That the opposing party has a full opportunity to cross-examine
the witness at the trial respecting the statement.
31) Many of the submissions received by the Joint Committee were in favour
of greater reliance, where appropriate, of video evidence as a means of
addressing the problem of witness intimidation. The Bar Council
suggested that a video of a witness statement made in Garda custody could
be used in the case of a witness who is subsequently claiming to have no
memory of the statement, subject to the proviso that the witness would be
made available for cross-examination by the defence. Alternatively a pretrial video-taped deposition on oath could be taken from a witness in the
District Court. Whilst a mechanism for taking depositions currently exists
under the Criminal Justice Act 1999, it can only be done after the return
for trial and can only be done on video in very limited circumstances. The
Bar Council have suggested that it should be possible to take such a
deposition before the return for trial and indeed possibly prior to the stage
when an accused has even been charged. Victim Support stated of video
evidence that “It is an interesting and valuable tool that should be used in
Ireland, but must only be allowed in certain circumstances, particularly
when ‘witness amnesia’ is widespread throughout [a] case. If the current
delays in a trial reaching court are adequately addressed, however, the
need for video tape evidence may also diminish.”24 Gerard Hogan S.C.
showed that in the USA and Canada the law has moved towards admitting
into evidence out of court statements in certain circumstances. He also
pointed out that it is sometimes overlooked that confessions of the accused
which are made out of court are already admissible in Irish law. He
concluded:
23
24
[1993] 1 SCR 740
At page 6 of its written submission
16
“… it seems to me that there are sound reasons for amending [the rule
against admitting out of court statements in evidence] provided that
the Oireachtas moves cautiously in changing the rule. The rigid rule of
exclusion was never justified on principle and, such justification as it
had, has been eroded by technological and other developments. If, for
example, the declarants were video-taped when making their
statements implicating the accused, it would provide a potentially
important safeguard. If the rule is to be changed, I suggest that the
Oireachtas should provide that the trial judge must warn the jury of
the dangers of acting on the evidence of a witness who has made
inconsistent statements.”25
32) The DPP’s view of the Canadian position was in the following terms:
“Although I think that this might be a desirable reform, and one I
would support, I think it is important to emphasise that it would be
likely to be of value in only a limited class of cases, those where a
witness makes a statement and subsequently retracts it. It would do
nothing to address the problem of the witness who refuses to make a
statement at all, or who will deal with the police only on the basis of
confidentiality, that is, who will make a statement to the police for their
information only but not for use in court proceedings. However, the
fact that the number of cases where it would be useful is small is not a
reason not to adopt it.”26
In his oral submission the DPP estimated that if we had a Canadian type
rule here “we would perhaps run one or two cases we would not
otherwise run each year.”27 It is important to bear this in mind when
considering the impact that any change in the law in this area might
realistically be expected to have.
33) The Law Society stated that it “believes that all interviews with accused
persons should be videotaped and preserved for trial, without
exception.”28 The Joint Committee encourages the use of video tapes in
interviews with accused persons. Whether or not it should be compulsory
is a matter which requires further analysis.
34) Some submissions urged caution in any use of video evidence. Dr. Paul
O’Mahony stated that “There is, I believe, no scope for giving police
witness statements –even those made under oath or videotaped –
precedence over current contradictory statements made in court and open
to cross-examination.”29 Ivana Bacik B.L. stated that “Unless there is a
pressing need for change in the law, which cannot be met through other
changes in the system to provide greater supports to witnesses, it is argued
25
At para 18 of his written submission
At paragraph 22 of his written submission
27
Transcript, 8 December 2003, page 13
28
At page 4 of their written submission
29
At paragraph 2 of his written submission
26
17
that changing Irish evidential rules to allow in such statements is
unnecessary.”30 The Human Rights Commission commented that:
“We would urge caution before making such a radical change in our
law. Firstly, we must bear in mind that the retraction may be genuine
and secondly, there is already provision in our law for taking
depositions before trial from witnesses whom it is feared may not give
evidence. This procedure is not ideal, but it preserves more of the
traditional safeguards, like live cross-examination, than the Canadian
model. It should be thoroughly tested before taking more drastic
measures.”31
35) The Garda Commissioner questioned why the Gardai still have to take a
long-hand note of an interview that is being video-taped. He also
suggested that provision should be made to permit the swearing of
witnesses in another jurisdiction and the taking of their evidence by way of
video link. This could be done in serious criminal cases where a witness is
unwilling to travel from abroad due to fear of intimidation.
36) The Minister for Justice, Equality and Law Reform, Michael McDowell
T.D. stated in his written submission that he was carefully studying the
Canadian approach and if he was satisfied that it would offer a solution to
the problem at issue he would bring forward legislative proposals in this
respect. The Joint Committee notes that Part 3 of the recently published
Criminal Justice Bill 2004 provides for the admissibility of prior
inconsistent statements by witnesses based on the principles applied by the
Canadian Supreme Court. The Bill provides that where a person is sent
forward for trial in relation to an arrestable offence, a relevant statement
made by the witness may be admitted as evidence of any fact contained in
it if the witness is available for cross-examination but refuses to give
evidence, denies making the statement or gives evidence which is
inconsistent with it. The Court must consider various factors when
deciding on the admissibility of the statement such as if the witness
confirms it or it is proved that they made it, satisfaction by the court that
direct oral evidence of the facts in the statement would have been
admissible in court as evidence, that it is voluntary, reliable, and that it was
given on oath or affirmation or contains a statutory declaration by the
witness as to its truth or the court is satisfied that the person understood the
requirement to tell the truth. The Joint Committee recommends that we
continue to analyse this area closely.
Codifying the law on contempt and perjury
37) It is useful to commence by briefly summarising some of the existing
offences that might be relevant in the area of giving evidence. Making a
false statement to the Gardaí is already an offence under s 12 of the
Criminal Law Act 1976. Contempt of court and perjury are common law
30
31
At page 7 of her written submission
At point 2 of their written submission
18
offences. Section 7 of the Criminal Law Act 1997 created an offence of
impeding the apprehension or prosecution of a person who has committed
an arrestable offence. Section 9 of the Offences Against the State
(Amendment) Act 1998 makes it an offence to withhold information in
certain circumstances.
38) One suggestion made by the Law Society is that the common law offences
of contempt of court and perjury be codified in legislation. The Bar
Council has also suggested that contempt of court and is “in need of
legislative attention”.32 In its written submission Victim Support stated
that “laws governing perjury and contempt (now on a common law
footing) must be written into statute with potentially severe penalties
attached.”33 Not everyone agrees with the use of such offences as a means
of dealing with witness intimidation. Dr. Paul O’Mahony made the point
that “The State should be slow to charge a threatened person with perjury
or making false statements under oath, when it is unable to guarantee that
person’s freedom and safety.”34 Ivana Bacik B.L. examined the Canadian
position and came down against any change to the substantive law, stating
that “It would be greatly preferable to introduce practical supports for
witnesses facing potential intimidation, such as courtroom screens or
restrictions on media reporting, and to develop protocols to ensure that
witnesses are kept informed of the prosecution process by gardaí, in
liaison with prosecution lawyers. This support-based approach would also
be more in keeping with the principles expressed in the Council of Europe
Recommendation No R(97)13 on the Intimidation of Witnesses and the
Rights of Defendants.”35
39) The Joint Committee notes that the Expert Group on the Codification of
the Criminal Law, which was established by the Minister for Justice,
Equality and Law Reform, is currently considering the possibility of
codifying the criminal law.
40) The Joint Committee recommends the codification of the law on contempt
and perjury.
41) In addition the Joint Committee also recommends that the scattered
provisions that currently exist in relation to the giving of evidence should
be consolidated into a single statute.
Other measures
42) The Bar Council has suggested in its written submission that the
Oireachtas consider the following:
(i)
placing the witness protection programme on a formal statutory
footing;
32
At para D of its written submission
At page 4 of its written submission
34
At paragraph 1 of his written submission
35
At page 4 of her written submission
33
19
(ii)
(iii)
enacting legislation which would stipulate the circumstances in
which screens could be deployed in court to protect a witness
from the full glare of usual courtroom attention;
to consider legislating for exceptional cases where it might be
thought necessary that a witness in a criminal case could have
his or her identity concealed even from the person crossexamining him or her. The Bar Council noted that this would
give rise to grave problems in respect of the fairness of the trial
but that it would not necessarily breach the Convention.
43) In its oral presentation Victim Support submitted that:
“Victims are the forgotten people in society. Our system of justice
relies on victims reporting crime, and many victims expect to see
justice done in some way. A summons puts the fear of God in people,
especially those from a rural background. When people receive a
summons, that does not exactly convey confidence to the victim who
must appear as a witness. Victims look to the criminal justice system
for fairness and they do not always get fairness or justice.”36 Victim
Support called for “an established, organised and dedicated family
Liaison Officer scheme for victims of crime, particularly for families of
murder victims and victims of serious sexual assault.”37 Victim
Support also called for steps to be taken to reduce witness/victim
anxiety about court appearances and suggested:
(i)
(ii)
(iii)
education to demystify the courtroom;
stress reduction; and
emotional support.
44) Victim Support stated that it was its experience that witnesses and victims
are currently not given sufficient escort facilities to the Central Criminal
Court. It records that its volunteers have had to physically separate victims
from hostile defendants outside of the Four Courts. Victim Support
emphasised that Garda escorts are particularly important when witnesses
are travelling by train from other parts of the country and stated that it was
their experience “that the victim, his or her family, the defence witnesses,
and the witnesses for the State may all be travelling on the same train
together day after day of the trial.”38 Victim Support gave the following
account of one witness’ story:
“Victim Support recently helped a key witness (the mother of a murder
victim) who was elderly, disabled, and mentally fragile. She was left to
her own devices procuring transport to and accommodation in Dublin.
The defendant pleaded, and she was left with no transportation back
home in a distant county and did not have the financial resources to
take public transportation. Our Victim Support volunteer eventually
drove her the two hours to take her home. This is but one of the many,
36
Transcript, 28th November 2003, page 11
At page 7 of its written submission
38
At page 4 of its written submission
37
20
many instances where victims/witnesses feel they are abandoned by the
system.”39
45) Victim Support added that “Each accusation of intimidation must be taken
seriously and efforts must be made to prosecute for intimidation, including
a systematic processing and recording of any instance of intimidation
reported to the Gardaí. It is Victim Support’s experience that this is often
not the practice.”40
46) On behalf of the Bar Council Shane Murphy S.C. made the innovative
suggestion that thought be given to extending the power of the subpoena
served on every witness in a criminal trial to direct the person not only to
come to court, but to follow the directions of the judge to sit in a particular
witness room, to come to court in the way directed by the court and to
avail of transport to be provided to and from the court. This removal of
choice in respect of those matters would actually protect witnesses who
would not then be seen by their community to isolate themselves but
would be able to say that they were simply obeying the order of the court
by, for example, taking secure transport to the court each day. In other
words, it would enable witnesses to avail of the protection offered by the
State without being seen by their community to have voluntarily relied on
the authorities. The Joint Committee considers this a very interesting
proposal and one which merits further investigation.
47) The Irish Prisons Service set out the efforts that it makes to segregate and
protect prisoners where this proves necessary. It stated that it thought that
there was little benefit to be gained from putting in place elaborate
prisoner security categorisation systems such as are used in the U.K. It
considered that the current informal system is more appropriate in a small
jurisdiction such as this, whereby with close collaboration between the
various agencies high and lower security prisoners are identified and
transferred appropriately.
48) The Association of Garda Sergeants and Inspectors made the interesting
suggestion that where a witness turns hostile a trial should be adjourned
rather than aborted, as frequently happens at present, so that the
intimidator is not rewarded and the Gardaí have an opportunity to
investigate the circumstances surrounding the change of evidence by the
witness.
49) The Bar Council pointed out that in the U.K. legislation has been
introduced giving rise to the possibility of having an acquittal quashed
when it seems that it has been the product of intimidation.41 Given our
constitutional framework this is an area which would have to be
approached with considerable care.
39
At page 8 of its written submission
At page 4 of its written submission
41
See s 54 of the Criminal Procedure and Investigation Act 1996
40
21
50) The Joint Committee recognises the central role that the Probation and
Welfare Service plays in attempting to tackle some of the underlying
social and cultural problems that lie behind crime. We recommend that the
Service receive sufficient funding and resources to enable it to carry out its
task.
51) The Joint Committee agrees with Victim Support that each accusation of
intimidation must be taken seriously and efforts must be made to prosecute
for intimidation, including a systematic processing and recording of any
instance of intimidation reported to the Gardaí.
52) The Joint Committee recommends the establishment of a dedicated
witness, victim and family liaison officer scheme for witnesses, victims
and families of victims of serious crime including murder and sexual
assault, which should include a programme to reduce witness/victim
anxiety about court appearances and an effective witness escort and travel
subsidy.
22
D) Speeding up Criminal Trials.
Introduction
53) The Joint Committee was particularly interested to note that most of the
submissions received identified delay as one of the most invidious aspects
of the current criminal justice system. It was pointed out that reducing the
time that trials take to begin would have the collateral effect of reducing
the opportunity for intimidation of witnesses. In addition the Joint
Committee notes that delays in trials and in particular cancelled trials,
results in a waste of resources of police, prison officers, professional
witnesses etc… This does not take account of the social cost for injured
parties, witnesses and the accused who may be in custody without bail. In
addition delay is unacceptable in the light of our obligations under the
European Convention on Human Rights.
54) Victim Support provided the following stark example of the effect of delay
on the criminal process:
“Victim Support recently supported a family whose son was murdered.
It took five years for his trial to reach the Four Courts due to three
previous delays (no courtroom available, no judge available). By the
time the trial got underway, a shared refrain by all testifying witnesses
– both State and defence witnesses alike – was that five years is a long
time and memories had faded.”42
In its oral presentation Victim Support graphically explained that from a
victim’s perspective “one has the sword of Damocles hanging over one’s
head if one is waiting for a trial to take place.”43 On behalf of the Bar
Council Shane Murphy SC emphasised the invidious nature of delay in
getting a trial started:
“Part of the problem is that the current system seems to have frailties
with regard to how individual witnesses are isolated and feel isolated
from the process after they have made their witness statement. The
biggest single contribution to that isolation is the delay between
making the statement and arriving in court to give evidence. In some
cases it can be more that two years. That is a long time for somebody
to have to sit quietly, day after day, thinking about the evidence and
the consequences of giving evidence. To accelerate that process would
be the single biggest contribution to reducing the fear factor that might
otherwise apply.”44
55) Obviously some delay is unavoidable. As pointed out by the Bar Council
in its written submission, there has to be a thorough investigation of
offences and there must also be time for pre-trial legal procedures which
have to be undertaken before the trial is ready to proceed. However any
42
At page 5 of its written submission
Transcript, 28th November 2003, page 14
44
Transcript, 2nd December 2003, page 44
43
23
delay over and above what is reasonably necessary is clearly a matter of
concern to the Joint Committee.
56) The Courts Service set out the following position in respect of the Central
Criminal Court:
“The average waiting time for a trial in the Central Criminal Court
was up to 18 months at the end of 2002. In order to reduce this delay,
extra sittings of the Central Criminal Court were held during
September 2003. Up to 5 High Court Judges sat each day and 24
murder and rape trials were disposed of in that month. As a result, the
waiting time for a trial in the Central Criminal Court is now 12
months.”45
57) Whatever the average position may be there are clearly huge problems in
particular cases. As the DPP pointed out “There are cases which have
been in the list for 4 or 5 years.”46 In his oral submission he estimated that
“between one quarter and one fifth of all cases that are listed are not
reached and are delayed once more.”47 This is a most sobering figure. The
Irish Council for Civil Liberties considered the possible legal
consequences of this situation:
“It should be recalled that on 30 July 2003 the European Court of
Human Rights in the case of Doran v Ireland found Ireland to be in
violation of Article 6 for a delay in the length of civil proceedings. In
the case of criminal law, a speedy trial is more urgent and is an
integral element to the right to fair trial. Under the ECHR the State is
responsible for organising its system for the administration of justice
to ensure that there are not unjust delays, and lack of resources will
not be considered a sufficient defence.”48
58) The Minister for Justice, Equality and Law Reform stated in his written
submission that the time scale involved in criminal cases remains of
concern to him and that he would welcome any views that the Joint
Committee would have in this respect.
59) A number of factors can be identified as causing this delay and these will
now be considered.
Insufficient judicial resources
60) There appears to be an in-built break in the current system in that there are
not enough judges to deal with all of the criminal cases that are waiting to
be heard. It is not uncommon for a case which is listed for hearing for a
particular day not to begin simply because there is no judge available to
hear the case. This seems to be a particular problem in the Central
45
At page 3 of its written submission
At paragraph 23 of his written submission
47
Transcript, 8 December 2003, page 8
48
At paragraph 2.14 of its written submission
46
24
Criminal Court, which is the venue where the most serious crimes are
currently tried. The Law Society noted that as of November 2003 there
were eight High Court and Circuit Court judges serving on Tribunals of
Enquiry and Commissions. It presented the startling statistic that:
“No later than last Tuesday, 25th November, 2003, some 350 criminal
cases were adjourned to March, 2004 in Wexford District Court
because there was a backlog of some 66 family law cases due to be
heard.”49
61) The Law Society concluded that “… the appointment of more judges and
crucially, a commensurate number of support staff to deal with the
increased workload, would have a significant impact on the delays which
the system is so often prey to at present.”50
62) The Bar Council also drew attention to the problem of delay in its written
submission and stated that it was necessary to ensure “that there are a
sufficient number of available judges with sufficient criminal expertise to
deal with the numerous serious criminal trials that are awaiting a trial
date.”51 The need to avoid delay was also referred to in the written
submission of the Probation and Welfare Service and Ivana Bacik B.L.
referred to “the appointment of enough judges”.52 The DPP stated that
“The deployment of three additional judges to the Central Criminal Court
would immediately reduce the average waiting time substantially and
would clear the backlog altogether within a couple of years.”53
63) In September 2003 five to six High Court judges sat during what would be
the normal court vacation to help clear the backlog. The Joint Committee
wishes to take this opportunity to acknowledge the efforts of those judges.
However a longer term solution to the problem is necessary.
64) In terms of the cost of appointing extra High Court judges the DPP
observed that “... the present delays are a source of unnecessary financial
expense to the State since counsel have to be paid for cases listed which do
not get on, and this in an average year could amount to 250,000 in fees to
the prosecution and in payments to the defence on legal aid....”54
65) The Joint Committee does recommend that more judges and support staff
be appointed specifically to clear up the current back-log of criminal cases.
We welcome the fact that the Civil Liability and Courts Bill 2004 provides
for the appointment of more judges to the courts. We also welcome the
fact that the submissions on this issue made to the Joint Committee have
fed into the legislative process and are reflected in the Bill.
49
Page 5 of Law Society Submission
At page 4 of their written submission
51
At pages 5-6 of its written submission
52
At page 5 of her written submission
53
At paragraph 26 of his written submission
54
At paragraph 26 of his written submission
50
25
Insufficient physical resources
66) Further delays are caused by insufficient physical resources. For example,
the Law Society of Ireland pointed out that cases requiring a video link
frequently do not get on for hearing because of an absence of court room
with the necessary facilities.
67) The Joint Committee recommends that more courts be fitted with video
link facilities. The question of a dedicated criminal courts complex is
addressed elsewhere in this report.
Speeding up the trial process
68) A large number of submissions were of the view that better case
management of criminal cases could prove to be a valuable tool in
addressing delay.
69) The Law Society of Ireland suggested that delays could be reduced if a
form of case management were introduced for criminal trials as happens in
some other countries.55 It gave the example of a “Plea and Directions
Hearing” in the U.K. the purpose of which is to identify the issues between
the parties, establish the pleas of the defendants, assess the likely duration
of the trial and the likely time-scale for the case to come to trial readiness.
It provides a forum for parties to indicate legal issues which may arise at
the trial, establish what expert or unusual evidence will be called by either
side, make provision for the television/video facilities necessary for the
trial and generally aims to have the business of the Court as well organised
as possible.
70) Victim Support stated that “As in the UK, a deadline should be statutorily
set for the trial to begin once a defendant is charged and the prosecution is
ready to proceed. This should be no more than six to eight months.”56
71) The Joint Committee notes that the Working Group on the Jurisdiction of
the Courts has recommended that a preliminary hearing should be
introduced in all cases on arraignment.57 The object of this procedure
would be to both reduce trial time lengths by facilitating agreement on
non-controversial evidence, minimise the interruptions to trials caused by
motions on legal issues and facilitate the making of pleas at an earlier
stage than at present, thus freeing up judicial resources for trial work. The
preliminary hearing would have the following functions:
(i)
(ii)
to identify and determine whether the prosecution has made full
disclosure in conformity with its current obligations;
to identify areas in which evidence should be agreed or
admitted under the Criminal Justice Act, 1984, sections 21 and
22 including admission of expert reports;
55
At page 4 of their written submission
At page 5 of its written submission
57
The Criminal Jurisdiction of the Courts (May 2003), pp 203-206
56
26
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
to identify any evidence which might require to be taken by
video link, and to make arrangements for the taking of such
evidence;
to ascertain any other arrangements which may have to be
made regarding information technology, use of interpreters or
other facilities;
to enable the determination of those types of issue of
admissibility of evidence which by their nature are capable of
being dealt with prior to trial;
to receive and deal with a plea or fix a hearing for sentencing;
to identify any issue of insanity or fitness to plead which may
arise; and
to enable the court to establish the likely length of the trial.
72) The DPP suggested that there is an urgent need to introduce a pre-trial
procedure which would determine certain issues in advance of the jury
trial. He stated that the most compelling reason for adopting such a system
is the effect that it would have on a juror’s experience during a trial. At the
moment jurors who are carrying out a public service are frequently
inconvenienced for days or even weeks on end while legal issues such as
those regarding admissibility of evidence are thrashed out in their absence.
The Garda Commissioner was also in favour of a preliminary hearing
mechanism.
73) The Association of Garda Sergeants and Inspectors suggested that it is
time to officially recognise the fact that plea-bargaining takes place, to put
it on an official footing and to recognise its place in reducing trial times
and expense.
74) The Joint Committee recommends that consideration should be given to
the introduction of a Plea and Directions Hearing consistent with the
constitutional rights of an accused.
75) The Joint Committee also recommends that there should be more
transparency in respect of the efficiency at which the prosecuting
authorities conduct their work as they are sometimes also responsible for
delays in certain instances.
Other issues
76) Victim Support indicated that it supports the proposition of the Central
Criminal Court sitting in major regional centres to alleviate the current
backlog in Dublin. However it cautioned that care must be taken to ensure
that the regional centres contain a large enough population so that the
anonymity of victims of sexual crimes is protected.
77) The Association of Garda Sergeants and Inspectors suggested that District
Courts should commence their business at 9 am and finish as 5 pm, using
different shifts of judges if necessary. It also suggested that there should be
more court rooms, longer sitting hours and longer legal term times.
27
78) The Joint Committee recommends that consideration should be given to
these suggestions.
28
E) Structural, Resourcing and Operational Issues
79) As pointed out above, one way to reduce wasted resources is to remove the
delays currently inherent in the criminal justice process.
80) The Irish Prisons Service set out the practical problems that the physical
layout of Irish courts pose for them in terms of the transfer of detainees to
and from court. It stated that “With regard to the Four Courts complex in
Dublin, it is difficult to transfer prisoners from the various holding cell
locations to the relevant criminal courts given the locations of the criminal
courts within the complex and the nature of the building itself. In addition,
there is no adjacent ‘drive in’ area for prison vehicles to deposit
prisoners.”58
81) The Law Society drew the Joint Committee’s attention to the Laganside
Courts Complex which has recently been completed in Belfast. This highly
successful building comprises sixteen courtrooms with facilities offering
high flexibility and also houses offices for the DPP, witness support and
victim support, together with child and vulnerable and special witness
areas. The design of the building has succeeded in keeping key players
such as judges, jury, defendants, victims and witnesses apart as far as
possible. As the Law Society pointed out, this “compares very favourably
to the current system in the Four Courts, and indeed many court buildings
around the country, where judges, jury members, defendants, witnesses
and victims often circulate in the same areas, by virtue of the design of
elderly court buildings.”59 Indeed, the DPP put the matter even more
starkly when he suggested that it is not an overstatement to say that the
layout of the courts in Dublin actually facilitates the intimidation of
witnesses. 60
82) Other benefits of a dedicated criminal court complex include:
(i)
(ii)
(iii)
it can reduce the possibility of witness intimidation by
physically separating witnesses from those persons who would
seek to interfere with them.
it would allow larger panels of juries to be sworn in at a single
secure site.
The efficiencies involved would allow for a greater number of
court sittings to take place.
83) The Joint Committee noted with interest the Report of the U.K.
Comptroller and Auditor General on the Laganside Courts dated 4th June
2003 which was appended to the written submission of the Law Society.
58
At page 4 of their written submission
At page 6 of their written submission
60
At paragraph 28 of his written submission
59
29
84) The Courts Service stated that:
“The Service proposes to develop a Criminal Court Complex in Dublin
in the vicinity of the Four Courts which would cater for all Criminal
District, Circuit and Central Criminal Court business. It is hoped to
develop this complex by way of a Public Private Partnership and a
business case is being prepared at present. It is envisaged that this
would be a 16 courtroom facility with all the ancillary facilities
necessary to conduct criminal business e.g. separate circulation areas
for the judiciary, staff and the public with dedicated holding cell area
with separate private access to and from courts for prisoners.
Adequate consultation rooms and accommodation for legal
practitioners will be provided. Victim Support facilities will also be
provided and there will be a dedicated jury assembly area with dining
facilities. The building will be fitted with the latest technology and a
number of the courtrooms will have Video Conferencing facilities and
all courtrooms will have Digital Audio Recording.”61
85) The Joint Committee recommends that current plans to build a Criminal
Courts Complex be implemented at the earliest possible opportunity. We
note that when the Minister for Justice, Equality and Law Reform
appeared before us on the 16th June 2004 in respect of the Estimates for
Public Services for 2004 he stated that “Planning is commencing on a new
criminal courts complex for the Dublin area which will house all criminal
courts in one single courts complex. I understand it is likely to be located
on a new site at the junction of King’s Bridge and Parkgate Street, this
side of the Phoenix Park. It is a very exciting PPP project which looks as if
it will be a great success.” The Joint Committee welcomes this
development and urges a speedy implementation of it.
61
At page 7 of their written submission
30
F) The Right to Jury Trial
The Special Criminal Court
86) It is well known that terrorist cases in this jurisdiction have been dealt with
by the Special Criminal Court. As the law stands the DPP has the power
under s 46 of the Offences Against the State Act, 1939, to send a trial to
the Special Criminal Court whenever he is of the opinion that the ordinary
courts are inadequate to secure the effective administration of justice and
the preservation of public peace and order in relation to that particular
trial. The power has been used on a small number of occasions in recent
years in relation to offences which were carried out by organised criminal
gangs rather than terrorists.
87) The Bar Council pointed out that, contrary to popular belief, the
jurisdiction of Special Criminal Court is not confined to offences of a
subversive or terrorist nature. Indeed a number of ordinary crimes of a
serious character have been prosecuted in the Special Criminal Court at the
behest of the DPP.
88) The submissions received revealed little enthusiasm for greater use to the
Special Criminal Court . The Minister for Justice, Equality and Law
Reform stated that “It is difficult to see how any change in the already
extensive power of referral of the Director of Public Prosecutions to the
Special Criminal Court could serve any purpose.”62 The Law Society
stated that it “is opposed to any measure which would detract from the
right to jury trial, would widen the use of non jury courts, or would create
specific offences triable other than before a judge and jury”. 63
89) The Bar Council also urged caution in this regard:
“any changes in evidential law rendering the prosecution burden of
proof easier to discharge in a criminal trial should be viewed with
extreme caution. From the point of view of the Irish Constitution and
the European Convention, such provisions potentially breach
fundamental guarantees such as the presumption of innocence, the
right to silence and the requirement of proof beyond all reasonable
doubt and will be carefully scrutinised by the Courts for compatibility
with the Constitution and the European Convention.” 64
90) The Human Rights Commission stated that:
“Jury trial is laid down in the Constitution and is a corner stone of our
justice system. If there is a significant problem of jury intimidation –
which has not been established – there are many measures which
could be taken to protect juries without doing away with jury trial.
62
At page 3 of his written submission
At page 5 of their written submission
64
At pages 14-15 of its written submission
63
31
These range from simply assembling the jury at a location other than
the courts and transporting them to and from the court so as to prevent
them being followed. Other measures would be anonymity when the
jury is being selected or in extreme cases shielding them from the
public in court. Such measures have been used in other countries and
should certainly be tried here before abandoning a core value of our
justice system.”65
The Irish Council for Civil Liberties was also against any extension of the
Special Criminal Court.
91) The DPP pointed out the limitations that greater use of the Special
Criminal Court would have in addressing the problems adverted to in this
Report:
“The sending of organised crime cases to the Special Criminal Court
would avoid jury intimidation where this is or is likely to be a problem,
but sending a case to the Special Criminal Court will not supply
evidence where this is lacking. Nor is such a reference likely to avoid
the possibility of witnesses refusing to give evidence because of fear or
intimidation.”66
92) The Joint Committee also notes that there is a discussion on the use of the
Special Criminal Court to deal with organised crime in the Report of the
Hederman Committee to review The Offences Against the State Acts,
1939-1998 and related matters67.
93) The Joint Committee recommends that the central position that a right to
trial by jury has in this jurisdiction be maintained. It does, however,
recognise that there are occasions when a trial by a non-jury court may be
necessary in order to protect the integrity of the criminal justice system.
65
At point 4 of their written submission
At paragraph 14 of his written submission
67
(Dublin, May 2002); see pages 224-226. A majority of that Committee was of the view that the threat
posed by organised crime alone is sufficient to justify the maintenance of the Special Criminal Court.
66
32
G) Criminal Law Offences directly related to Gangland Activity
94) There have been some calls in recent times for the creation of a new
offence of membership of a criminal gang similar to IRA membership.
There have also been calls to make a Chief Superintendent’s opinion
evidence of such membership. Such provisions already exist in the
Offences Against the States Acts in respect of terrorist groups.
95) There are also international developments in this area. In particular the
Joint Committee notes the European Union Joint Action on Participation in
a Criminal Organisation and the UN Convention on Transnational
Organised Crime. The Joint Committee understands that the Minister for
Justice, Equality and Law Reform is currently examining the definitions in
these instruments with a view to brining forward whatever legislation is
necessary to give effect to them.
Criminalising membership of a criminal gang
96) Several submissions considered the introduction of criminal law offences
directly related to gangland activity. Ireland already has sophisticated and
stringent laws to deal with terrorist groups. Whilst the Offences Against
the State Acts 1939 to 1998 are sometimes criticised as being draconian or
in the nature of emergency legislation, Gerard Hogan S.C. has pointed out
that such legislation “does no more than give the Gardaí the type of
powers to deal with serious crime which is standard in other European
countries.”68
97) It is fair to say that, whilst not being dismissive of the idea, many of the
submissions received identified real difficulties in creating such an
offence.
98) The Bar Council submission doubted whether the terrorist analogy could
be extended to criminal gangs:
“The organisations involved [in terrorism] are paramilitary groups,
oath bound, operating under a Constitution and Standing Orders. In
contrast those involved in organised crime or gangland activity would
usually be much more informal, much more unstructured and much
more unregulated in nature. The obstacles to creating an offence such
as being the member of a criminal gang are very considerable and
probably insurmountable. Even if such an offence was to be legislated
for it is far from clear how it would add to the armory of the State. If
there is sufficient evidence available to justify a conviction beyond
reasonable doubt for the offence of membership of a criminal gang
then we would imagine that the same evidence would provide scope for
prosecuting for substantive offences or at the very least inchoate
offences such as conspiracy.”
68
At paragraph 6 of his written submission
33
99) Ivana Bacik B.L. examined in detail the Canadian provision which was
enacted in 1997 in the wake of violent events around a turf war between
two gangs in the province of Quebec.69 This section introduced the
concepts of “criminal organisation”, “criminal organisation offence” and
“participation in a criminal organisation offence”. It expanded
investigative powers for the police, by, for example, facilitating the use of
electronic surveillance. It also reversed the onus of proof for persons
charged with a criminal organisation offence in seeking bail. A criminal
organisation is defined as a group that is composed of three or more
persons, and that has as one of its main purposes or activities the
facilitation or commission of a serious offence. Participation in a criminal
organisation offence is an indictable offence punishable by up to five years
in prison. Commission of an offence for a criminal organisation is
punishable by up to 14 years in prison. Instructing the commission of an
offence for a criminal organisation is subject to a maximum penalty of life
imprisonment. Ms Bacik noted that there have been some criticisms of this
provision in Canada and suggested that “Further consideration of the
critiques, and of the actual effectiveness of this measure, would clearly be
necessary before any similar provision could be considered here.”70 She
also noted that the Report of the Committee to Review the Offences
Against the State Acts in 2002 recommended the narrowing of the
definition of conduct of an unlawful organisation to confine it to the
subversive context. She was against the introduction of any new “criminal
organisation” offence in this jurisdiction.
100) The DPP also set out the technical difficulties with regard to any such
offence. He questioned whether criminal gangs have the necessary
characteristics to be regarded as organisations. For example, they are
unlikely to have formal rules or procedures and may be somewhat
amorphous bodies. They may come together for only one crime. They may
not even have a name other than the name of their leader and may be
difficult to describe or define. They will generally have no objective other
than to make money.
101) The Minister for Justice, Equality and Law Reform also drew the
Committee’s attention to the difficulties presented by any attempt to
outlaw membership of a criminal gang. Organisations such as the IRA are
well known, have a clear agenda with a certain fixity of organisation and
structure. In reality it is a matter of fact whether a person is a member of
such an organisation or not. A criminal gang is not likely to have any such
permanency or organisation or specificity of agenda attached to it.
102) The Joint Committee recognises that the question of the creation of a
new offence of membership of a criminal gang and related offences is a
complex one. Membership of a criminal gang is clearly an activity which
cannot be tolerated. The question is whether making it a criminal offence
of itself will improve he effectiveness of the criminal law. The Minister
indicated that at present he is examining the definitions contained in the
69
70
Section 467 of the Canadian Code
At page 2 of her written submission
34
EU and UN instruments with a view to bringing forward legislation to give
effect to these instruments and we welcome this fact.
35
H) Prosecution Appeals
103) The Working Group on the Jurisdiction of the Courts has recommended
that it is unsatisfactory that no mechanism exists at present for the
prosecution to contest by way of appeal what it views as an incorrect
ruling on a point of law in the course of a trial.71 It concluded that the
range of situations in which the prosecution should be entitled to appeal on
a point of law should be extended, but not so as to prejudice a person who
has been acquitted. The DPP put forward a particularly strong case for the
creation of prosecution rights of appeal and noted that “There is no
equality of arms in the Irish criminal justice system between the
prosecution and the defence in relation to rights of appeal.”72 He noted
that the development in the law relating to the admissibility of statements
in Canada was judge-made law which could take place because the
prosecution in Canada could challenge long-established common law in an
appellate court. This could not easily happen here.
104) The Law Reform Commission issued a Consultation Paper on the
subject of prosecution appeals in cases brought on indictment in May
2002.73 The Commission stated in the Paper that it is of the view that Irish
law should move from a near token system of prosecution appeals to one
in which prosecution appeals would represent a real and substantial
element in the criminal process. The Joint Committee notes that the
Criminal Justice Bill 2004 contains a number of prosecution appeal
provisions which incorporate the specific proposal made by the DPP. The
provisions come within the narrow without prejudice model. The Joint
Committee notes that when the Law Reform Commission publishes its
final Report on the issue the Minister will examine it with a view to
ascertaining what, if any, further legislative provisions are required.
105) The Joint Committee recommends that prosecution appeals be extended
in a meaningful way. We welcome the fact that Part 4 of the Criminal
Justice Bill 2004 provides for appeals on points of law by the DPP on a
without prejudice basis (i.e. without prejudice to the acquittal).
71
The Criminal Jurisdiction of the Courts (May 2003) chapter 5.
At paragraph 29 of his written submission
73
LRC CP19-2002. See also the Consultation Paper on Prosecution Appeals from Unduly Lenient
Sentences in the District Court (LRC CP33-2004)
72
36
I) The Criminal Justice Bill 2004
106) The Joint Committee is already examining the published scheme of the
new Criminal Justice Bill 2004. Briefly, this provides for:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
a statutory basis for the designation of a place as a crime scene;
a general power to the District Court to issue a search warrant
in respect of all arrestable offences and also that in certain
circumstances a senior member of the Gardaí, not below the
rank of superintendent will be empowered to issue a search
warrant which would expire after 24 hours;
extended powers for the Gardaí to seize and retain evidence;
an amendment of the definition of an arrestable offence to
include common law offences punishable by five years
imprisonment or more;
for increased powers of detention;
amendments to the ability of the Gardaí to take and retain
forensic samples.
the admissibility in certain circumstances of previous witness
statements;
prosecution appeals on points of law on a without prejudice
basis;
a series of miscellaneous amendments to a variety of preexisting criminal statutes.
An explanation of the philosophy behind the Bill is to be found in the written
submission of the Minister for Justice, Equality and Law Reform to the Joint
Committee. Reference should also be made to the Explanatory Memorandum
which accompanies the Bill. It explains that:
“The Bill proposes a number of amendments to the criminal law, particularly
in the area of criminal investigations, which will enhance Garda powers in
tackling crime and will generally improve the efficiency and the effectiveness
of the criminal justice system. The Bill takes into account the
recommendations of the Expert Group appointed to consider changes in the
criminal law as recommended in the report of the Steering Group on the
efficiency and effectiveness of the Garda Siochana.”
37
J) Other Matters
107) A wide variety of other suggestions appeared in the submissions
received and the Joint Committee wishes to take this opportunity to draw
particular attention to some of them.
108) The Bar Council has suggested that a small working group consisting of
practitioners, members of the Office of the DPP, Chief State Solicitors
from around the country and the Gardaí be established to further examine
in detail some of the proposals for reform that have been suggested.
109) The DPP also suggested the establishment of a small expert group to
report on possible reform of the Juries Acts. In a strong critique of the
current system for selecting juries the DPP in particular questioned why
the present system excludes many people who have professional
qualifications and observed that “What one is left with is not in fact a
random group of 12 citizens, but a group which is likely to contain fewer
middle class or employed persons than the population as a whole.”74
110) The DPP noted that at present there are a number of serious offences
where the Garda Síochána have no power to arrest and detain on suspicion.
In particular, there are many offences where the maximum penalty is
greater than five years but where there is no power of arrest because the
penalty is fixed under common law and not by virtue of any enactment.
This matter is currently being addressed by the new Criminal Justice Bill.
111) Dr. Paul O’Mahony contended that there was an urgent need for the
collection of hard data and genuinely independent and critical evaluative
research on how the criminal justice system is operating.75
112) The Joint Committee notes the large number of practical reforms to the
system suggested by Mr. Barry Galvin, Solicitor. In particular his
suggestion that legislation to permit the efficient use of modern electronic
surveillance methods is long overdue seems particularly appropriate in the
“dial a deal” drug culture that is not amenable to traditional methods of
physical surveillance. In appendix 2 to his written submission he refers to
a case where the Gardaí came into possession of a mobile phone believed
to belong to someone involved in drug trafficking and used it to confront
another individual in possession of £28,000 in cash. The Court of Criminal
Appeal quashed the conviction on the basis that the conversation on the
mobile phone was an unauthorised interception.
113) The Joint Committee thinks that there is merit to many of these ideas
and that they merit further study.
114) In particular, the Joint Committee thinks that the whole area of jury
selection is something which merits careful review as we are concerned
that on a day to day basis juries are not representative of a true cross74
75
At page 13 of his submission
At paragraph 9 of his written submission
38
section of society. We urge that a method of ensuring that juries are more
representative of the population as a whole be examined.
115) The Joint Committee also recommends the resourcing on an urgent basis
of an effective system for data collection on the operation of the criminal
justice system.
116) The Joint Committee would also like to take this opportunity to refer to
the excellent work which has been done by the Nenagh Community
Reparation Project which made a presentation to the Joint Committee on
the 8th July 2003. This project was established in June 1999 and its main
aims are (a) to provide community reparation for adult offenders by use of
an alternative means to that of the present criminal justice system and (b)
to minimise repeat offending by confronting the offender with the impact
of their crimes on themselves or others. The main stakeholders in the
Project are the Community, the Probation and Welfare Service, and Gardaí
and the Criminal Justice (Court) System. The reparation process includes a
meeting between panel members, offender and victim, and agreeing a
contract of reparation which is fair to both offender and victim. The
contract is presented to the judge who agrees to adjourn the case for the
implementation of the contract. On the second return to court, the success
of the contract is outlined to the Judge when he or she will either dismiss
the charge or go on to deal with the matter as he or she would have on the
first day.
39
Appendix 1:
JOINT COMMITTEE ON JUSTICE, EQUALITY,
DEFENCE AND WOMEN'S RIGHTS
List of Members
Deputies
Seán Ardagh (FF) (Chairman)
Joe Costello (LAB)
Máire Hoctor (FF) (Government Convenor)
Dinny McGinley (FG)
Finian McGrath (Techn Group)(Ind)
Paul McGrath (FG) (Vice Chairman)
Breeda Moynihan-Cronin (LAB) (Opposition Convenor)
Seán O Fearghaíl (FF)
Charlie O’Connor (FF)
Denis O’Donovan (FF)
Peter Power (FF)
Senators
Tony Kett (FF)
Sheila Terry (FG)
Joanna Tuffy (LAB)
Jim Walsh (FF)
40
Appendix 2:
JOINT COMMITTEE ON JUSTICE, EQUALITY,
DEFENCE AND WOMEN’S RIGHTS.
ORDERS OF REFERENCE.
Dáil Éireann on 16 October 2002 ordered:
“(1)
(a)
That a Select Committee, which shall be called the Select Committee on Justice,
Equality, Defence and Women’s Rights, consisting of 11 Members of Dáil Éireann (of
whom 4 shall constitute a quorum), be appointed to consider (i)
such Bills the statute law in respect of which is dealt with by the Department of
Justice, Equality and Law Reform and the Department of Defence;
(ii)
such Estimates for Public Services within the aegis of the Department of
Justice, Equality and Law Reform and the Department of Defence; and
(iii)
such proposals contained in any motion, including any motion within the
meaning of Standing Order 157 concerning the approval by the Dáil of
international agreements involving a charge on public funds,
as shall be referred to it by Dáil Éireann from time to time.
(2)
(b)
For the purpose of its consideration of Bills and proposals under paragraphs (1)(a)(i)
and (iii), the Select Committee shall have the powers defined in Standing Order 81(1),
(2) and (3).
(c)
For the avoidance of doubt, by virtue of his or her ex officio membership of the Select
Committee in accordance with Standing Order 90(1), the Minister for Justice, Equality
and Law Reform and the Minister for Defence (or a Minister or Minister of State
nominated in his or her stead) shall be entitled to vote.
(a)
The Select Committee shall be joined with a Select Committee to be appointed by
Seanad Éireann to form the Joint Committee on Justice, Equality, Defence and
Women’s Rights to consider(i)
such public affairs administered by the Department of Justice, Equality and
Law Reform and the Department of Defence as it may select, including, in
respect of Government policy, bodies under the aegis of those Departments;
41
(ii)
such matters of policy for which the Minister for Justice, Equality and Law
Reform and the Minister for Defence are officially responsible as it may
select;
(iii)
such related policy issues as it may select concerning bodies which are
partly or wholly funded by the State or which are established or appointed
by Members of the Government or by the Oireachtas;
(iv)
such Statutory Instruments made by the Minister for Justice, Equality and
Law Reform and the Minister for Defence and laid before both Houses of
the Oireachtas as it may select;
(v)
such proposals for EU legislation and related policy issues as may be
referred to it from time to time, in accordance with Standing Order 81(4);
(vi)
the strategy statement laid before each House of the Oireachtas by the
Minister for Justice, Equality and Law Reform and the Minister for Defence
pursuant to section 5(2) of the Public Service Management Act, 1997, and
the Joint Committee shall be authorised for the purposes of section 10 of
that Act;
(vii)
such annual reports or annual reports and accounts, required by law and laid
before both Houses of the Oireachtas, of bodies specified in paragraphs
2(a)(i) and (iii), and the overall operational results, statements of strategy
and corporate plans of these bodies, as it may select;
Provided that the Joint Committee shall not, at any time, consider
any matter relating to such a body which is, which has been, or which is, at
that time, proposed to be considered by the Committee of Public Accounts
pursuant to the Orders of Reference of that Committee and/or the
Comptroller and Auditor General (Amendment) Act, 1993;
Provided further that the Joint Committee shall refrain from
inquiring into in public session, or publishing confidential information
regarding, any such matter if so requested either by the body concerned or
by the Minister for Justice, Equality and Law Reform or the Minister for
Defence;
(viii)
such matters relating to women’s rights generally, as it may select, and in
this regard the Joint Committee shall be free to consider areas relating to
any Government Department; and
(ix)
such other matters as may be jointly referred to it from time to time by both
Houses of the Oireachtas,
and shall report thereon to both Houses of the Oireachtas.
42
(3)
(b)
The quorum of the Joint Committee shall be five, of whom at least one shall be a
Member of Dáil Éireann and one a Member of Seanad Éireann.
(c)
The Joint Committee shall have the powers defined in Standing Order 81(1) to (9)
inclusive.
The Chairman of the Joint Committee, who shall be a Member of Dáil Éireann, shall also be
Chairman of the Select Committee.”
43
Seanad Éireann on 17 October 2002 ordered:
“(1)
(a)
That a Select Committee consisting of 4 members of Seanad Éireann shall be
appointed to be joined with a Select Committee of Dáil Éireann to form the Joint
Committee on Justice, Equality, Defence and Women’s Rights to consider –
(i)
such public affairs administered by the Department of Justice, Equality
and Law Reform and the Department of Defence as it may select,
including, in respect of Government policy, bodies under the aegis of
those Departments;
(ii)
such matters of policy for which the Minister for Justice, Equality and
Law Reform and the Minister for Defence are officially responsible as it
may select;
(iii)
such related policy issues as it may select concerning bodies which are
partly or wholly funded by the State or which are established or
appointed by Members of the Government or by the Oireachtas;
(iv)
such Statutory Instruments made by the Minister for Justice, Equality
and Law Reform and the Minister for Defence and laid before both
Houses of the Oireachtas as it may select;
(v)
such proposals for EU legislation and related policy issues as may be
referred to it from time to time, in accordance with Standing Order
65(4);
(vi)
the strategy statement laid before each House of the Oireachtas by the
Minister for Justice, Equality and Law Reform and the Minister for
Defence pursuant to section 5(2) of the Public Service Management
Act, 1997, and the Joint Committee shall be so authorised for the
purposes of section 10 of that Act;
(vii)
such annual reports or annual reports and accounts, required by law and
laid before both Houses of the Oireachtas, of bodies specified in
paragraphs 1(a)(i) and (iii), and the overall operational results,
statements of strategy and corporate plans of these bodies, as it may
select;
Provided that the Joint Committee shall not, at any time, consider
any matter relating to such a body which is, which has been, or which is, at
that time, proposed to be considered by the Committee of Public Accounts
pursuant to the Orders of Reference of that Committee and/or the
Comptroller and Auditor General (Amendment) Act, 1993;
Provided further that the Joint Committee shall refrain from
inquiring into in public session, or publishing confidential information
regarding, any such matter if so requested either by the body concerned
or by the Minister for Justice, Equality and Law Reform or the Minister
44
for Defence;
(viii)
such matters relating to women’s rights generally, as it may select,
and in this regard the Joint Committee shall be free to consider areas
relating to any Government Department;
and
(ix)
such other matters as may be jointly referred to it from time to time by
both Houses of the Oireachtas.
and shall report thereon to both Houses of the Oireachtas.
(2)
(b)
The quorum of the Joint Committee shall be five, of whom at least one shall be a
member of Dáil Éireann and one a member of Seanad Éireann,
(c)
The Joint Committee shall have the powers defined in Standing Order 65(1) to
(9) inclusive,
The Chairman of the Joint Committee shall be a member of Dáil Éireann.”
45
Appendix 3:
Details of Hearings
List of persons who appeared before the Joint Committee at the
hearings held in November and December 2003.
The following persons attended hearings of the Joint Committee:
28th November 2003:
Victim Support:
Probation and Welfare
Service:
Moyross Probation Project
(Céim ar Céim):
Southill Outreach Project:
Ms Ann Meade, Administrator.
Ms Moe Reynolds, Co-Ordinator of Victim Support
Services.
Mr. Seán Lowry, Chief Probation and Welfare
Officer.
Mr. Terry Boyle, Assistant Principal.
Ms Elaine Slattery.
Mr. Barry Killeen.
Dr. Gerard Hogan , S.C., Law Lecturer, Trinity College Dublin.
1st December 2003:
Irish Prisons Service:
Mr. Seán Aylward, Director General.
Mr. Seán Lennon, Governor, St. Patrick's Institution.
Mr. Willie Kane, Governor, Cloverhill Remand Prison.
The Law Society of Ireland: Mr. Gerry Griffin, Solicitor, President of the Law
Society of Ireland.
Mr. Patrick McGonagle, Solicitor, Chairman of the
Criminal Law Committee of the Law Society.
Mr. Dara Robinson, Solicitor, Member of the Criminal
Law Committee.
Ms Collette Carey, Solicitor, Secretary to the Criminal
Law Committee
Dr. Paul O'Mahony, Head of the School of Occupational Therapy, Trinity College,
Dublin.
2nd December 2003:
Bar Council:
Mr. George Birmingham Senior Counsel.
Mr. Shane Murphy, Senior Counsel.
Ms Una Ní Raifeartaigh, B.L..
Mr. Gerry Carroll,Director, Bar Council
46
The Irish Human Rights
Commission:
Dr. Maurice Manning, President.
Members of the CommissionProfessor William Binchy.
Mr. Michael Farrell, Solicitor.
Ms Nuala Kelly.
5th December 2003:
Irish Council for Civil
Liberties:
The Courts Service:
Ms Ashling Reidy, Director.
Mr. Michael Finucane, Solicitor, Member of the
Executive Committee of the Council.
Mr. P. J. Fitzpatrick, Chief Executive.
Mr. Noel Rubotham, Head of the Reform Programme of
the Courts Service.
Mr. Diarmuid MacDiarmada, Director in charge of the
Circuit and District Courts.
Ms Nuala McLoughlin, Director in charge of the High
and Supreme Court offices.
Ms Ivana Bacik B.L.
8th December 2003:
Director of Public Prosecutions - Mr. James Hamilton.
The Association of Garda
Sergeants and Inspectors:
Mr. Joe Dirwan, President.
Mr. Paschal Feeney Vice-President.
Mr. Alan Dowley, Vice-President.
Mr. Pat Flynn, General Secretary.
Mr. Michael Connell, Executive Member of the
Association.
Mr. Barry Galvin, Solicitor (former Bureau Legal Officer of the Criminal Assets
Bureau).
Professor Finbarr McAuley, Jean Monnet Associate Professor of European Criminal
Justice, University College Dublin.
9th December 2003:
Minister for Justice, Equality and Law Reform, Michael McDowell,T.D.
The Commissioner of An Garda Síochána, Mr. Noel Conroy.
Deputy Commissioner, Mr. Fachtna Murphy
Assistant Commissioner, Mr. Joe Egan.
47
Persons and Bodies Lodging Substantive Submissions on foot of
Newspaper Advertisments and by Direct Invitation.
1.
The Association of Garda Sergeants and Inspectors
2.
Ms. Ivana Bacik B.L.
3.
The Bar Council
4.
The Commissioner of An Garda Síochána, Mr. Noel Conroy
5.
The Courts Service
6.
Director of Public Prosecutions, Mr. James Hamilton
7.
Mr Barry Galvin, Solicitor (former Bureau Legal Officer of the Criminal
Assets Bureau)
8.
Dr. Gerard Hogan, S.C. Law Lecturer, Trinity College Dublin
9.
Irish Council for Civil Liberties
10.
The Irish Human Rights Commission
11.
Irish Prisons Service
12.
The Law Society of Ireland
13.
Professor Finbar McAuley, Jean Monnet Association Professor of European
Criminal Justice, University College Dublin
14.
Minister for Justice, Equality and Law Reform, Mr. Michael McDowell
15.
Dr. Paul O’Mahony, Head of School of Occupational Therapy, Trinity
College, Dublin
16.
Victim Support
48