The Tánaiste and Minister for Justice, Michael McDowell, in a speech in Limerick last night on the topic "Rebalancing Criminal Justice", said the way criminal trials were conducted in this country may favour criminals. He announced a review of the system to see if changes were appropriate.
The following is an edited version of the Tánaiste's speech:
Criminal justice issues: Changes to society and civilisation generally have been immense in recent years. Even over the past 10 years, the changes that have taken place in Irish society and the move to a multicultural society are of such a scale that few of us can have foreseen 20 years ago. How much more changed then is our society from what were the norms and values compared to 50 years ago? And where does that leave the scale of change between our society and that of our grandparents? Almost too vast to be able to comprehend.
Many of the legal principles and values have become cornerstones of our law and are almost sacrosanct in how we perceive and interact with them. And this is where our dilemma lies. Those same principles have originated and developed from a different era, when many defendants could not read or write and it was necessary for the legal system to devise means and ways to ensure that protections and safeguards were available. Those values, concepts and principles have been honed, shaped and developed over a long period and generally have served us very well.
In broad terms, they have ensured justice was done and seen to be done for those who came into contact with the law.
However, along the way a consequence of that development and reform of the law may have been that the needs, concerns and rights of victims of crime may have unintentionally become secondary to the rights and protections for the criminal.
Somehow it seems that we may now have arrived at a situation where on occasions the scales of justice are tilted too heavily to one side.
Unfortunately, when that occurs, that imbalance is likely to favour the criminal rather than the innocent victim all too often.
Right to Silence: The right to silence and the associated privilege against self-incrimination are common law rules which derive from the fundamental principle that an accused is innocent until proven guilty and that his or her guilt must be proved by the prosecution beyond a reasonable doubt.
In this jurisdiction, a number of statutory measures have re-interpreted the right to silence to provide for adverse inferences to be drawn against a suspect who declines to answer questions while being questioned in Garda custody.
What is interesting to note, if one stands back from the development of the law in this area and considers the bigger picture, the focus is almost exclusively on the rights of the accused.
Of itself, there is absolutely nothing wrong in that of course. But where do the rights of victims stand in such cases? Surely we need to ask questions as to why the focus seems to be always on the rights of the accused almost to the point of exclusion of the victim's rights or indeed anybody else who might be adversely effected. Is this is desirable? Surely at least it must prompt us to raise questions about what the justice system seeks to achieve.
Has the time come to consider broadening the circumstances in which an inference can be drawn from the failure of an accused to respond to fair questioning duly recorded not as sufficient proof of guilt but as corroboration of other evidence of guilt?
Character evidence: Consider now the rules of evidence that apply to character evidence. In very general terms, all relevant evidence is admissible, but as with all rules there are exceptions.
One of these exclusionary rules - excluding evidence of an accuser's bad character - exists to prevent the jury being unduly influenced by evidence that may be highly prejudicial. At present, evidence of the accuser's bad character can generally only be introduced if its value or relevance is so high as to outweigh its prejudicial value.
In effect, in most cases the accused can choose to conceal the fact that he is of bad character or has serious previous convictions from the jury or the judge when it is in the great majority of cases the function of the jury or judge to assess his credibility as a witness.
But why should the fact that a person has been convicted of serious offences in the past be concealed from those who have to decide on the credibility of his evidence. Where credibility is in issue, why is a central matter which can go the heart of that issue concealed from the jury? The presumption of innocence of the charge before the jury is one thing; but is presuming that all witnesses, including the accused, are equally credible, frankly speaking, a fiction too far in many cases? A defence witness other than the accused may be cross-examined as to character or previous convictions. But not the accused. Why not? But it is very arguable that we are not obliged to pretend against the facts that an accused person of very bad character is as credible as any other witness of blameless character.
The exclusionary rule: Earlier in the summer, at the Seventh National Prosecutors' Conference in Dublin Castle, major questions were posed about difficulties in the rules of evidence and in particular the exclusionary rule. The net effect of this rule means that evidence obtained by invasion of the constitutional personal right of a citizen must be excluded unless a court is satisfied that either the act which constitutes the breach of constitutional rights was committed unintentionally or accidentally, or in the court's discretion, it is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence. The justification for the rule is plain for all to see.
However, if the effect of the rule leads to the unintended outcome of accused persons regularly getting away with crimes on a technicality, it is incumbent on all of us to examine where improvement may be brought about.
The respect and regard for the criminal justice system and the rule of law must not blind or prevent us from change, when change is required.
Other areas for reconsideration: I believe there are a number of other areas in relation to evidence and procedures that currently raise challenging questions and these areas would benefit from reflective consideration and examination.
These include: reopening new evidence; nullifying an acquittal where there is evidence of jury or witness tampering; extending alibi evidence rules to other analogous situations; allowing submissions by the prosecution before sentencing; extending the admissibility of hearsay evidence.
I intend therefore to set up a small group to examine these topics in detail with a view to seeing what difficulties and challenges they currently pose and whether any changes might be suggested that might lead to improvement. Perhaps on examination of these topics, some improvement can be introduced so that the fine balance between the right of the prosecution and the rights of the defence can be maintained.
Equally it might be the case that the outcome of this study would be that no change is needed and that for all the flaws, if there are any, we should "leave well enough alone". If that is to be the outcome, so be it. At least, we will have contributed to the ongoing debate on the criminal justice system, a factor in itself that should be beneficial in maintaining the robustness of the law.