Recommendations in a report carried out nine years ago could slash the workload of two committees examining criminal law procedures
AT THE annual prosecutors’ conference last July, the then director of public prosecutions, James Hamilton, said the Garda overtime bill in cases that did not go on when scheduled was €17 million. This was more than the €15 million spent last year on the 158 counsel briefed by his office, he said.
This figure sharply illustrates the inefficiency in the criminal justice system, where cases can take too long to get to trial and some trials are interrupted by lengthy subtrials, known as voir dires, where the admissibility of certain evidence is debated in the absence of the jury.
One recent case lasted for almost three weeks, but the jury was present for only five days of it. Yet the jurors’ lives were disrupted for the entire time, because they had to be available to be called back into court.
These will be among the issues discussed by two committees considering criminal law procedures in the District and Circuit Courts, which will report to the Chief Justice and the Minister for Justice on ways to improve the system.
It will not be operating on a blank canvas.
Almost nine years ago, a comprehensive report was prepared on the criminal jurisdiction of the courts by a working group chaired by Mr Justice Nial Fennelly of the Supreme Court.
Its recommendations would go a long way towards improving the efficiency of the criminal courts.
One of its main recommendations was that all trials on indictment (before a judge and jury) should first have a preliminary hearing. The purpose of such a hearing would be to resolve as many issues as possible in advance of the trial and it should take place within two weeks of the arraignment, the group said.
This would identify whether the prosecution had made full disclosure of its evidence to the defence; identify areas in which evidence should be agreed, including the admission of expert reports; identify evidence which could be taken by video link; deal with admissibility of evidence issues; receive and deal with a plea or fix a hearing for sentencing; identify any issue of fitness to plead that may arise and enable the court to establish the likely length of a trial.
The working group also recommended that evidence should be taken by video link where possible, including from witnesses. This would reduce the need for witnesses to travel and would reduce expense and time taken up, particularly valuable Garda time. It would also reduce the cost of expert witnesses, who are sometimes brought from abroad at great expense.
The group recommended that both the High Court (as the Central Criminal Court) and the Circuit Criminal Court should have jurisdiction to try most offences, including rape and murder, which at the moment can be tried only in the Central Criminal Court.
There should be an initial hearing at which the judge would decide the appropriate court, it said, taking into account the nature of the case; its degree of gravity or complexity; the views of the complainant (or relatives in cases of murder); the convenience of parties and witnesses; the need to preserve anonymity of complainant or accused; the risk of prejudicial publicity; the risk of intimidation of witnesses or jurors and the objective of expeditious trial.
The only cases that should remain the exclusive preserve of the Central Criminal Court, it said, were treason and offences under the Geneva Convention Acts and the Genocide Act (none of which has ever arisen).
It also recommended that offences against competition law, which was newly enacted at the time, should be tried in the High Court because of their novelty and complexity.
The working group examined the question of whether reasons for imposing custodial sentences at the District Court should be recorded in writing. The majority decided that while this was desirable, it would impose too much of an administrative burden on the judges and Courts Service staff, while a large minority of the group felt that, because of the need for public confidence in the criminal justice system, the public’s need to know the reasons for sentences and our obligations under the European Convention on Human Rights, such reasons should be recorded.
The group pointed out that at the time, there was no recording technology in the courts which would have facilitated the recording of decisions. However, by 2012 there will be digital audio recording in all courts, with a mobile unit for those courts which are little used, so it will be possible to record the reasoning behind all sentences.
The work of the current committees could be greatly eased by the adoption of the main recommendations of this report, which can be found in full on the Courts Service website, courts.ie.