20th October, 2006

Criminal Justice issues

Changes to society and civilisation generally have been immense in recent years.  Even over the past ten 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 twenty years ago.  How much more changed then is our society from what were the norms and values compared to fifty 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.  In particular, education has driven that change at an exponential rate in society over the past forty or so years.

In this country, the common law and statute law have developed over centuries and many legal principles which we hold in high esteem are rightly to be highly valued and protected.  However, development and change in our laws and criminal justice system has moved at a slower pace than other changes in our society and perhaps too often change is reactive rather than proactive.

Over the lifetime of both this current Government and the previous administration, over eighty Acts have been passed covering a wide spectrum of the Criminal Justice area.  By any standard, this is an impressive record.  The net result of this is that in our domestic law we now have a huge armoury of substantive law to combat crime.  Of course that does not mean there will not be a need for additional legislation in the future - for example, proposals on a DNA database are currently being worked on with a view to bringing a scheme of a Bill to Government for approval.  This will be a very valuable and worthwhile weapon in fighting crime and bringing perpetrators to justice.

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.

I am strongly committed to our system of open trial, to our system of jury trial, to adversarial trial in which evidence is tested in front of the jury, and where the role of the judge is to ensure a fair and impartial trial process, not to act as inquisitor.

I am equally convinced that the burden of proof must generally lie on the prosecution and that proof must be of a standard beyond reasonable doubt.

But the constitutional right to trial by jury and to trial in due course of law exists to serve the common good, not as en end in itself.

And the nature of criminal trial and of the rights of an accused person has varied considerably over time. Not every right, presumption and procedure is written in stone because it was orthodox in 1937. The guarantee of trial on criminal charges in due course of law does not mean that our rules of evidence, procedure, and admissibility are frozen in time. The constitution is a living document; it is not the ghostly voice of a dead generation.

I want tonight to raise the possibility that we, as a society, must now face up to difficult questions, not as a substitute for good and effective policing and criminal investigation, but as a means of ensuring that the scales of justice are held evenly between those who would break the law and those who would uphold it, between the accused and the prosecutor and between the criminal, the victim and the community.

Now is the time for some far reaching questioning and thinking.


 

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 Ireland, the Supreme Court held the right not only a common law right but also a constitutional right which might however be validly limited by legislation (O'Leary v AG [1995] 1 IR 254).

In this jurisdiction, a number of statutory measures have re-interpreted the right to silence, such as the Criminal Justice Act 1984, the Criminal Justice (Drug Trafficking) Act, 1998 and the Offences Against the State (Amendment) Act, 1998.  The general effect of some of these measures is to provide for adverse inferences to be drawn against a suspect who declines to answer questions while being questioned in Garda custody. 

Importantly in Rock v Ireland [1997] 3 IR 484, the Supreme Court affirmed a "proportionality test", balancing the suspect's right to avoid self incrimination with the State's right to protect life, person and the property of citizens.  The Supreme Court asserted that the inferences themselves could not form the basis for a conviction but were to carry corroboratory value.


 A similar line was taken by the European Court of Human Rights in the case of Murray v UK (1996) 22 EHRR 29. In Murray although the Court held there to have been a breach of Article 6 by denying the applicant access to solicitor during the first 48 hours of his detention it was held that there had been no breach of Article 6 by the impugned Northern Ireland legislation by allowing for inferences of guilt to be drawn from the applicant's silence during police questioning.  The Court concluded that "whether the drawing (by a court) of adverse inferences from an accused's silence infringes the Convention is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where the inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation".  It is worth acknowledging however that the majority made it clear that the denial of access was a violation only because at the same time the defendant's silence could lead to inferences of guilt being drawn.

Furthermore the Criminal Justice Act, 1984, the Offences Against the State Act, 1939, the Offences Against the State (Amendment) Act, 1972 and the Road Traffic Act, 1961 provide for more direct encroachments on the right to silence by creating different offences for failure to account for certain facts or circumstances.  In the cases of Quinn v Ireland (Application 36887/1997) and Heaney v Ireland (Application 34720/1997) both suspects had refused to answer questions when being questioned under section 52 of the Offences Against the State Act, 1939, such a refusal amounted to an offence in itself.  The European Court of Human Rights rejected the Irish Supreme Court's upholding of the legislation as constitutionally valid in the interests of a community's entitlement to have crime properly investigated when it held that "the right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seeks to prove their case against the accused without resort to evidence by obtained methods of coercion or oppression in defiance of the will of the accused".

In the case of In Re National Irish Bank [1999] 1 ILRM 321 sections 10 and 18 of the Companies Act, 1990 were examined. Section 10 provided that company officials were obliged to give certain information under investigation or face prosecution for an offence.  Section 18 further provided that any such information obtained under section 10 could then be used as evidence in a criminal prosecution of the same individual. 

The Supreme Court upheld section 10, rejecting an argument that the bank officials in this instance could invoke the privilege against self incrimination to refuse to answer questions under section 10.  The Court reserved judgement as to the admissibility of such evidence under section 18 to a future trial judge with the reminder that admissions could only be admitted against an accused where they are shown to be voluntary.

The right to silence and the privilege against self incrimination are necessary adjuncts of the right to a fair hearing which is enshrined in article 6 of the European Convention on Human Rights.  Indeed various pieces of national legislation throughout the European Union have been impugned as a breach of Article 6 on the basis that such laws abridge the right to silence and the privilege against self incrimination. 

 In  Funke v France (1996) 16 EHRR 297 the applicant was convicted of an offence of failing to produce bank statements relevant to investigations into customs offences that might have been committed by him.  The European Court of Human Rights held that by attempting to compel him to produce incriminating evidence the state had infringed his right to remain silent, the right to a fair trial in a criminal case was held to include "the right of anyone charged with a criminal offence...to remain silent and not to contribute to incriminating himself"  In the case of K v Austria however the Commission held that Article 6 did not apply where the applicant was fined for refusing to give evidence in the trial of persons for drug trafficking on the ground that this would prejudice his defence in criminal proceedings pending against him for purchasing drugs from them because the fine did not result from a 'ciminal charge'  Nevertheless the commission did find a breach of the applicant' freedom of speech under Article 10.

In Saunders v UK (1997) 23 EHRR 313 the ECHR returned to the line adopted in Funke.  In Saunders the applicant, on pain of a criminal sanction, was required by law to answer questions put to him by the Department of Trade and Industry inspectors in Britain in the course of their investigations into the conduct of a company takeover.  This information was then given to prosecuting authorities to be used in criminal proceedings subsequently brought against him. 

The ECHR disagreed with the domestic ruling in Britain and held there to have been a breach of Article 6, the freedom from self incrimination was held to be 'an important element in safeguarding an accused from oppression and coercion during criminal proceeding' and noted that the freedom was closely linked with the presumption of innocence.

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 accused's bad character - exists to prevent the jury being unduly influenced by evidence that may be highly prejudicial.  At present evidence of the accused's bad character can generally only be introduced if its value or relevance is so high as to outweigh its prejudicial value. 

Even then, section 1(f)(i), (ii) and (iii) of the Criminal Justice (Evidence) Act 1924, make provision whereby in certain circumstances an accused who testifies may be asked about his bad character.   Over the years, case law has developed and finely honed this legislation and has led to a complex set of rules and exceptions.

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.

Where an accused attacks the character of a prosecution witness, it is open to the prosecution to cross-examine the accused as to the accused's character or previous convictions if, but only if, the accused gives evidence. If the accused does not give evidence, the prosecution may not inform the jury or judge of the accused's bad character or convictions.

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?

The classic defence of the present rule is that evidence of previous convictions would tend to prejudice the jury against the accused without proving the case. But, we must ask, does that argument hold water in this day and age where a jury is well capable of distinguishing between probative and prejudicial aspects of testimony, especially if properly directed on the law?

We are obliged to uphold the presumption of innocence of the charge in criminal cases. This obligation arises under the constitution and is required by international law as well.

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.

Similarly in the United States, under the Federal Rules of Evidence, the admissibility of evidence in the United States is determined by its relevancy. 'Relevant evidence' is defined by Article IV, Rule 401 as 'evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence'.  The Rules go on to provide that all relevant evidence is admissible unless otherwise provided by the US Constitution, Act of Congress, by the Federal Rules themselves or by other rules prescribed by the Supreme Court pursuant to statutory authority.  Rule 404 deals with Character Evidence, and generally provides that evidence of a person's character or a trait thereof is not admissible for the purpose of proving action in conformity therewith on a particular occasion.  Not unlike the manner in which our own law has developed, the Federal Rules of Evidence set out detailed parameters and exceptions around the operation of the principle
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 Re-Consideration

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

Re-opening new evidence

 

Let us briefly consider these areas.

Reopening new evidence - the basic principle underlying the Ne Bis In Idem or 'double jeopardy' rule is that a person may not be prosecuted, tried and convicted twice for the same offence.  The concept of double jeopardy is one of the oldest in Western civilization. In 355 B. C. the Athenian statesman Demosthenes said that the "law forbids the same man to be tried twice on the same issue." The Romans codified the principle in the Digest of Justinian in 533 A. D. The principle also survived the Dark Ages (400-1066 A.D.) through Canon Law and the teachings of early Christian writers, despite the deterioration of other Greco-Roman legal traditions. 

In England, the protection against double jeopardy was considered a universal maxim of the Common Law and was embraced by eminent jurists such as Henry de Bracton (1250), Sir Edward Coke (1628), Sir Matthew Hale (1736), and Sir William Blackstone (1769).

The 'double jeopardy' rule is a cornerstone principle underlying very many national criminal justice systems.  It serves to not only give judicial protection to a person who has been subject to a prosecution but it also brings legal certainty to the law and thereby ensures respect for it. 

However, if in the application of that principle of the law a person is acquitted and new and compelling evidence emerges at some later date - such as new witnesses coming forward, DNA or fingerprint evidence - which had it been available at the outset would most likely have resulted in a guilty verdict, is it right that the acquitted person can then go around boasting that he or she has got away with some serious crime?

That is not the judicial protection for the person that was ever intended by the 'double jeopardy' rule - in place of certainty it creates uncertainty in the law and most assuredly brings the law into disrepute in the eyes of the public.  Consider the case where a person has been tried for some serious offence before a jury and acquitted. 

If it emerges subsequently that there was compelling evidence of jury or witness tampering by the accused, it is surely not appropriate that such person should benefit from the double jeopardy rule.  Surely the appropriate course of action in that circumstance is to nullify the acquittal and put the person on trial again.       

In such instances, why should we treat the 'double jeopardy' rule as sacrosanct and above any examination or evaluation or refining?  True it may have served us well for centuries but in a changed world that does not mean we must consider is above review.  If new and compelling evidence emerges after an acquittal for some serious crime, surely justice demands that some mechanism be available to ensure that justice is done and seen to be done.  

Any change to the rule could be of a limited nature but by confining any change to crimes of a serious nature and applying very rigid safeguards, there may be no reason not to consider some change in this area to improve its application.  In addition, the application of appropriate judicial safeguards should enable the rights of the accused to be fully respected. 

It must be noted of course that all members of the Council of Europe have signed the European Convention of Human Rights and Article Four of the 7th Protocol protects against double jeopardy.  The Optional Protocol has been ratified by all EU Member States except Belgium, Germany, Portugal the Netherlands Spain and the UK.  So any change that might be contemplated in this jurisdiction would have to take account of this.

Recently, some limited changes have been made to the rule in the UK with the passing of the Criminal Justice Act 2003.  Similarly the rule has been the subject of recent scrutiny in Australia with New South Wales deciding to consider changes similar to those already made in the UK, but some other states remained unconvinced of the need to change. 

Generally speaking, the changes leave the old rule generally applicable and it might be useful to examine the experiences of the UK and Australia in this area to see if we can learn from their changes. 


 

Extending Alibi Evidence Rules To Other Analogous Situations

In criminal proceedings, the accused is not obliged to disclose his defence to the prosecution before presenting it in court at the trial.  However, in the same way that some exceptions have been introduced to the right to silence, some limited inroads have been made in relation to holding back the contents of the defence. 

One such exception relates to alibi evidence where, on trial on indictment, an accused is compelled to give notice of evidence in support of an alibi before the end of a prescribed period.  Section 20 of the Criminal Justice Act 1984 sets down the procedures and requirements where, by leave of the court, evidence may be adduced in support of an alibi. The section defines evidence in support of an alibi as evidence 'tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission'.

This is the only situation in relation to alibi evidence for which provision is made in Irish legislation.  No provisions exist to deal with other analogous situations where, for example, a person might claim a defence alibi based on the fact of mistaken identity and wrong foot the prosecution unfairly.

Is it an essential ingredient of trial in due course of law that the accused can ambush the prosecution with an exculpatory account of events at a time when the prosecution has no real opportunity to test out the defence?

If we are dealing with serious offences, why should the defence not be obliged to indicate in advance what the nature of a defence case will be?

Bearing in mind that every accused is now legally aided or represented, why should we have a system in which the prosecution hears the nature of a defence for the first time when the trial is already half over. Why should not a jury know in advance what type of defence they will be dealing with while they are listening to the prosecution case? Surely they are entitled to understand why evidence is being led and why it is being challenged.           


 

Allowing submissions by the prosecution before sentencing

Another area of the law that has been in the news again in recent times is that of allowing submissions by the prosecution before sentencing.  This issue has been touched on by the Law Reform Commission in their Consultation Paper on Prosecution Appeals from Unduly Lenient Sentences in the District Court.  The Consultation Paper makes reference to the case of People (DPP) -v- Botha [Court of Criminal Appeal, January 2004] in which the trial judge asked for assistance in the form of information regarding the sentences imposed in similar cases. Counsel first raised an objection to the question, stating that the DPP would not enter into the arena of sentencing, but on being pressed provided anecdotal evidence based on his own experience. The Court of Criminal Appeal stated: 'in our opinion a trial judge is entitled to make of both sides, but perhaps particularly of the prosecution, the inquiry which was made here. It is to be regretted he received so little assistance, even after an adjournment'.

At a King's Inns symposium in 2004, Mr. Justice Hardiman referred to this case and said that he was of the opinion that the usefulness of the appeal procedure under Section 2 of the Criminal Justice Act 1993 has been undermined by the reluctance of the prosecution to give 'suitable assistance' to the trial court at sentencing.  He went on to say that in his view 'it is anomalous that a trial judge, whose decision may be appealed on grounds either of undue severity or undue leniency, should not receive at least on request assistance of this kind, especially from the Director who, since he is a participant in all of these cases, is uniquely able to tender it'

Interestingly, the Commission Paper goes on to say that 'in recent years however, the courts have been open to expanding the role of the prosecutor at the sentencing stage in two ways: firstly where the prosecutor treats the sentencing hearing as an element of the trial, approaching it in an adversarial manner, and secondly where the prosecutor makes recommendations or suggestions to the trial judge regarding the sentence that should be imposed on the defendant'.

In People (DPP) -v- Furlong (2000), the Court of Criminal Appeal stated that on occasion, the DPP should provide assistance to the court at sentencing.  Obviously there is already some appetite for change in this area and again it seems appropriate that this issue be thoughtfully examined.

Many of the values underpinning the criminal justice system are enshrined and protected in our Constitution and in the European Convention on Human Rights.  However, the high value that we attribute to these principles must not prevent us from occasionally standing back and examining them robustly with a critical eye. In our bid to protect what have rightly become important values and standards we should not preclude ourselves from considering and reviewing them to ensure that the scales of justice remain balanced and are not tilted unfairly in any one direction.  There has to be balance for both suspect and victim alike.  On occasion it is important that we remind ourselves of the outcomes that we seek from the criminal justice system and ask if we are achieving those outcomes.   

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.

 

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