The Balance in the Criminal Law Review Group
Submission of Edward McGarr
12 City Gate
Lower Bridge St.
That the “Balance in the Criminal Law Review Group” was established following a speech by the Tanaiste and Minister for Justice, Equality and Law Reform undermines its credentials. We already have the Law Reform Commission whose publications do not generally exhibit the realpolitik which is the survival imperative of Government Ministers. Why, then, the need for the Group? The title of the Group implies there is an imbalance between the rights of suspects and the rights of society. It is difficult to know how such an imbalance came about, if it did. If there is such an imbalance the Law Reform Commission is the obvious body to look into it. Ruminations from the Tanaiste and Minister for Justice, Equality and Law Reform or any one else, about “change in society” are no substitute for real analysis.
The members of the Group are excellent people but not, to the writer’s knowledge, practitioners in the field of criminal law, either for the prosecution or the defence. The Group would be the stronger for some representative/s from such a background. It is possible that the dynamics of a criminal prosecution could be examined with such assistance. Zealots should not (and mostly are not) assigned the work of prosecution; for the unexpressed reason that a prosecution is to some degree a creative act, whether in its construction or its presentation or both.
The title of the Group implies, uncontroversially, that there should be a balance between the rights of suspects and the rights of society. However history shows the rights of suspects are relatively recently acquired and, inevitably, easily diminished. Those “rights” are concessions; a first concession is that Society should be administered under a Rule of Law, an impersonal force applicable to all. Another, a corollary of the first, is that the burden of proof lies on the prosecution. Finally, an accused person is entitled to a presumption of innocence.
A. THE RIGHT TO SILENCE
The current balance between the rights of suspects and society is secured in favour to the right to remain silent. The High Court in Heaney v Ireland  2 ILRM 420 found that the right to silence in police custody is an incidence of the right to a fair trial on a criminal charge, protected under Article 38.1 of the Constitution. The Court, referring to the right not to give evidence against oneself said;
“This is an immunity long established in the common law world and has been a basic concept of criminal trials in this country for many years. It was enacted as the 5th Amendment to the American Constitution. It was declared in article 14 (8) (3) (g) of the UN International Covenant on Civil and Political Rights that in the determination of any criminal charge against him everyone shall be entitled not to be compelled to testify against himself or to confess guilt. It was provided in article 6 (1) of the European Convention on Human Rights that in the determination of a criminal charge against him everyone has the right to remain silent and not to incriminate himself (see Funke v France (1993) 16 EHRR 297). I am of the opinion that the concept is such a long-standing one and so widely accepted as a basic to the rules under which criminal trials are conducted that it should properly be regarded as one of those which comes within the terms of the guarantee of a fair trial contained in Article 38.1.”
In Heaney & McGuinness v Ireland  ECHR 684, the ECHR found a breach of Article 6 of the European Convention on Human Rights in the conviction of the applicants under Section 30 of the Offences against the State Act 1939. The applicants had failed to account for their movements on request by a Garda and were convicted of that offence.
Under Common Law an arrested person had no general obligation to answer questions from a Garda. Several statutory provisions reverse that obligation, the oldest being the Offences against the State Act 1939.
The Supreme Court in Heaney v Ireland had quoted Dr. Glanville Williams’ book “The Proof of Guilt” 3rd ed (1963), approvingly, where he stated “…the rule [right to silence] has not been doubted for four centuries.” The Supreme Court went on to quote Lord Mustill in R v Director of Serious Fraud Office, ex p Smith (1993) AC 1 setting out the UK statutory inroads on the right to silence and further setting out the Irish statutory inroads on that right. The Court went on to locate the right to silence as a correlative of the constitutional right to freedom of expression (Article 40). The High Court below in the case had found that the right to silence was to be found and protected under Article 38 (the right to be tried in due course of law).
Again in Heaney v Ireland  2 ILRM 420, the High Court had confirmed the existence of the right to silence in police custody. The court found ” … a suspect should not be required to answer questions on pain of punishment should he not wish to do so, and that he is free to remain silent should he so choose and that he should be informed of his right to do so.”
In Quinn v Ireland  33 EHRR 264 the European Court of Human Rights found that [the right to silence and the right not to incriminate oneself] are “…generally recognised international standards which lie at the heart of the notion of fair procedures under Article 6.” The ECHR found that Section 52 of the Offences against the State Act 1939 infringed the right to silence and the right not to incriminate oneself.
In National Irish Bank Ltd. and the Companies Act 1990  1 ILRM 321, the Supreme Court decided that a confession obtained from a bank official pursuant to statutory demand under Section 10 of the Companies Act 1990 would not be generally admissible at the trial of the official unless the trial judge was satisfied that the confession was voluntary.
Under Section 15 (4) and Section 16 (4) of the Criminal Justice Act 1984 evidence obtained under compulsion under Section 15 (1) and Section 16 (1) of the 1984 Act is inadmissible against the person giving the information in any … criminal trial of the person or his spouse save for the offences created by Section 15 (2) and Section 16 (2) of the 1984 Act.
SUBMISSION: The Tanaiste and Minister for Justice Equality and Law Reform undermines his querying of the right to silence of an accused when he asks “…why the focus seems to be always on the rights of the accused almost to the point of exclusion of the victim’s rights…” The answer is; we do not want to create another victim to join the first victim or to inflict another injustice on the first victim. A wrongful conviction means the actual perpetrator goes free. The accused is not the perpetrator of the crime until he is proved to be so, and until he is so proved he is entitled to the presumption of innocence, in substance as well as form.
In Indiana it is perjury to swear to a proposition that is inconsistent with another to which you have also sworn. What, at worst, you are guilty of, is illogicality, but which of us is not that at some time or other? Silence is clearly indicated in Indiana, and if in Indiana, why not elsewhere, especially in the adverse circumstance of a prosecution against you?
B. ALLOWING CHARACTER EVIDENCE OF AN ACCUSED
Section 1 (f) of the Criminal Justice (Evidence) Act 1924 states;
“A person charged and called as a witness in pursuance to this Act shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless –
(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show he is guilty of the offence wherewith he is then charged: or
(ii) he has personally or his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or
(iii) he has given evidence against any other person charged with the same offence.”
The Supreme Court explained the law on the point in The People (DPP) v McGrail  2 IR 38. An attack by the defence on the prosecutor or the prosecution witnesses is not, in all cases, a “throwing away of the shield” conferred by the 1924 Act. The court pointed out that a prosecution always involves “…an imputation as to the character of somebody”
However where the attack is on the credibility of the prosecution witnesses independent of the facts of the particular case then the accused has “thrown away his shield” and the prosecution may lead rebuttal evidence about his character, including evidence of prior convictions.
The prosecutor is not restricted where the accused has led evidence of his “good” character; the right of the prosecutor to lead rebuttal evidence is not contingent on whether the accused has given evidence himself. In other words, the issue is not whether the accused has himself given evidence; it is whether he has put his own character in issue. If he has, it is an issue, and evidence on the point may be rebutted by the prosecutor.
SUBMISSION: The basis of the rule is the obligation on the prosecution to adduce relevant evidence (and not to adduce irrelevant evidence). For instance, if the facts of the offence are peculiar and the accused has previous convictions involving similar facts, evidence of the previous crimes may be adduced. The evidence is relevant; the previous conviction is not. Evidence of character adduced in the trial in any circumstances other than those currently permitted will, generally, consist of a suggestion that his character is evidence of his guilt in respect of the offence with which he is charged. Any such suggestion is, implicitly, an admission of failure by the prosecution in the proof of such guilt. As for the idea that it is abhorrent that something should be concealed from a jury, consider legal professional privilege; it permits the withholding of evidence by a party from a judge or jury. For the sake of consistency the Tanaiste should seek to abrogate that privilege. In the US, the Federal Rules of Evidence (Rule 410) prevent the disclosure of admissions or negotiations in “plea bargaining”. Essentially, a judicial process is just that; an approved procedure for reaching a socially acceptable conclusion. It is not a scientific inquiry. Even if it was, it would still not produce immutable truth; Newton’s “universe” lasted over three hundred years but still fell apart.
C. THE EXCLUSIONARY RULE OF EVIDENCE
The exclusionary rule arises where there has been misconduct by the prosecution in the gathering of evidence. The rule was articulated in People (Attorney General) v O’Brien  IR 142. The Gardai had raided and searched a dwelling house, using a search warrant authorizing the searching of a different premises. The Supreme Court laid stress on the intention of the Gardai; if, as in the O’Brien case, the defect or misconduct was not deliberate, although impinging on a constitutional right, the evidence could be [and was] admitted.
The rule was subject to different articulations until The People (DPP) v Kenny  2 IR 110. In that case the Supreme court decided that evidence should be excluded where it was obtained in breach of constitutional right and there were no excusing circumstances.
SUBMISSION: The Kenny decision was a modest restatement of the rule in O’Brien, which dealt with illegally obtained evidence and evidence obtained in breach of a constitutional right. Kenny dealt only with evidence obtained in breach of a constitutional right. If there are excusing circumstances the evidence may be admitted even if a constitutional right has been breached. It belatedly followed the practice in the US of denying to the prosecutor “the fruits of the poison tree”. To do otherwise is to disregard the good of having the police follow proper procedures and to value bad or poor police practices or procedures over rights enshrined in the constitution.
D. REQUIRING THE ACCUSED TO OUTLINE THE NATURE OF HIS
DEFENCE BEFORE OR AT THE COMMENCEMENT OF A TRIAL
There is no such requirement in Irish law, with the exception of the obligation on the accused to give advance notice of any alibi he intends to rely on at trial. Under Section 20 of the Criminal Justice Act 1984, the accused must give that notice within 14 days of being sent forward for trial.
SUBMISSION: In his reference to “requiring the accused to outline the nature of his
defence before or at the commencement of a trial” the Tanaiste takes issue with what he seems to think is the unfairness of the defence producing an “exculpatory account of events” at trial. Should he not rejoice? Any such account would mean that the prosecution had not only failed to establish guilt beyond a reasonable doubt, but had failed to establish a prima facie case. Only a prosecutor who resents the obligation of discharging the burden of proof in a criminal trial could feel threatened by the possibility that “exculpatory” evidence from the defence could undermine the prosecution case. The Tanaiste’s comments also assume an equality of arms between the prosecution and the defence, a proposition he should expressly defend in public.
E. RE-OPENING NEW EVIDENCE
There is currently no opportunity for the prosecution in Irish law to put an accused on trial again after the conclusion of a trial for the same offence.
SUBMISSION: In his reference to “re-opening new evidence” the Tanaiste has indicated he means to question the “Double Jeopardy” rule. The rule is intended to bring finality to prosecutions and to prevent a person being tried twice for the same offence. It applies whether the accused was convicted or acquitted. It has received statutory endorsement in Section 14 of the Interpretation Act 1937. The Tanaiste cites Henry de Bracton (1250), Sir Edward Coke (1628), Sir Matthew Hale (1736), and Sir William Blackstone (1769) as endorsing the rule. He justifies his questioning of the rule by raising the spectre of new evidence emerging tending to show the guilt of the accused after an acquittal. He acknowledges that the rule is to be found in many national criminal justice systems. He fails to mention that the rule only applies where the accused pleads and proves it. He also fails to mention that it is by no means as easy to prove the applicability of the rule as it is to state it. He also fails to say if he knows of any particular instance where new evidence emerged after (presumably) an acquittal tending to show the guilt of an accused who “walked free”. In short, there is no reason to believe that his anxieties have substance.
F. NULLIFYING AN ACQUITTAL WHERE THERE IS EVIDENCE OF JURY OR WITNESS TAMPERING
Tampering with a jury or witnesses is a criminal offence. To establish that it had happened would involve a criminal trial and proof beyond a reasonable doubt. To reverse the finding of a court in favour of an accused, it would be difficult to argue that something less than that burden of proof would be required. Needless to say, it would be essential to show the tampering was the work of the accused.
SUBMISSION: The case being made is that any instance of tampering with a jury or witnesses should permit a breach or abrogation of the rule on double jeopardy. Surely the issue is whether the “tampering” was effective to produce an acquittal? If it was not then the verdict should stand.
G. “WITH PREJUDICE” APPEALS IN THE CASE OF WRONGFUL
There is no common law or constitutional right of appeal from a conviction in the District court to the Circuit court. Conversely, there is no constitutional bar on a statutory right of appeal either from a conviction or an acquittal. Currently there is no general right of appeal against an acquittal. There are statutory rights of appeal against conviction and/or sentence from the District court to the Circuit court and from the Circuit court to the Court of Criminal Appeal. The right of appeal on sentence lies in favour of the prosecution as well as the defence. What appears to be proposed by the proposition is to allow the prosecution to appeal an acquittal.
SUBMISSION: The Tanaiste did not mention this idea of permitting an appeal against an acquittal in his speech. Presumably he would not defend the concept of a “wrongful acquittal��?. An acquittal is a finding of fact – and a judgement about the prosecution. It is not a finding of innocence of the accused; that is already presumed. There can be no such thing as a wrongful acquittal, but there can be a defective or incompetent prosecution. It could be to the detriment of the accused or the victim of the offence. However all of this was presumably taken into account in the development of the rule on double jeopardy?
H. EXTENDING ALIBI EVIDENCE RULES TO OTHER ANALOGOUS
The justification of requiring a defendant to give advance notice of an alibi is to give the prosecution a reasonable opportunity of checking the validity of that alibi in addition to testing it in cross examination of the alibi witness/es. The Tanaiste cites “mistaken identity” as analogous to “alibi”to justify a suggestion of placing a burden of disclosure on the accused about his defence.
SUBMISSION: The thrust of the suggestion is to reduce the burden of proof on the prosecution and to shift it correspondingly to the accused. It is to treat the trial as a form of inquiry in which the court finds one explanation more credible than another. The chosen example is illustrative of this: for the defence to raise “mistaken identity” would involve the defence in pointing to some other person as the perpetrator. That is not the obligation on the accused; but if it happened it would be grotesque of the court to refuse to examine the proposition simply because the knowledge had come to the accused late. As Montaigne remarked, “Memory tells us not what we choose, but what it pleases”. Alibi as a defence would be known early to the accused as soon as, (or after checking a diary, assuming there is one) the charge is formulated and delivered to the accused. Not so the realization that the prosecution have chosen the wrong person to prosecute; that might only emerge during cross examination of the prosecution witnesses.
I. ALLOWING SUBMISSIONS BY THE PROSECUTION BEFORE
One of the significant differences in the conduct of the criminal justice systems of Ireland and the US is the ability of the US prosecutors to offer and deliver reduced sentences in “plea bargaining��?. In Ireland it is the court that decides what the sentence will be. It is in the light of that, that, apparently, the DPP appears to hold the view that the function of the prosecution ends with the deployment of evidence and that the functions of judge and jury (specifically in sentencing) are not part of his function.
SUBMISSION: If there is a case for the prosecution to make submissions on sentencing it can only be as an aid to the judge. It would be better if the court had recourse to such aid from some other source, such as training courses for the judiciary or researchers answerable to the court, rather than the DPP. Certainly “anecdotal evidence” from counsel (which is not evidence at all) should not be canvassed or offered.
J. MODIFYING THE RULE IN RELATION TO HEARSAY EVIDENCE
The Tanaiste did not use this formulation of words and failed to “briefly consider” the subject in his speech, as he had promised.
SUBMISSION: There is no indication of the basis for his suggestion of “extending the admissibility of hearsay evidence”. Hearsay evidence is evidence (of the making of a statement by somebody else) from a witness giving oral evidence and adduced for the purpose of proving, as fact, the content of the evidence (although not personally known to the witness) (as opposed to proving the making of a statement by that other person). The classic example is where a witness recounts what someone else told him, suggesting or asserting that what he was told was true.
There are exceptions to the rule. They include; statements being part of the res gestae; statements in public documents; dying declarations; declarations against proprietary pecuniary interest; declarations as to relationship; declarations as to public rights; declarations by testators as to the contents of their wills; declarations made in the course of duty. The most significant, in the context of the Tanaiste’s remark, is to be found in Section 5 Criminal Evidence Act 1992. It makes provision for the limited admissibility of certain documentary evidence compiled in the course of a business. There is no suggestion from any source that the exceptions to the rule against hearsay are not still valid and useful and even comprehensive. The reason for the hearsay rule is to enable the accused to be in a position to challenge, by cross examination, the evidence of the prosecution witnesses. Exceptions to the hearsay rule all constitute privileges for the prosecution and excuses for failure to adduce the best evidence. A senior Israeli legal official has said of the hearsay rule; “We are very proud of our civil liberties. It would be absurd to wreck our entire judicial system to accommodate a few wartime security cases.��? And: “The rules of evidence lie at the center of our civil liberties, and the right to confront your accuser is the heart of any fair system of evidence. If we created a rule allowing into evidence [hearsay evidence regarding] the invisible-ink message and the agent’s report, there would be virtually nothing left to the right of confrontation. I would rather see us act completely lawlessly in a few security cases than a little lawlessly in every case.” (cited at p. 117 in “Preemption”, Alan M. Dershowitz  W W Norton & Co.)
30th December 2006