Thursday, March 29, 2007

Final Report of the Balance in the Criminal Law Review Group

Press Release from :

Final Report of the Balance in the Criminal Law Review Group

The Tanaiste and Minister for Justice, Equality and Law Reform, Michael McDowell, T.D, has published the final report of the Review Group he established last November, chaired by Dr. Gerard Hogan, S.C., to examine and review aspects of the criminal law. The Tanaiste established the Group following a speech he made in Limerick last October about whether there was a need for a rebalancing of some fundamental aspects of our criminal law and, in particular, whether the system could reflect better the interests of victims while at the same time preserving the integrity and fairness of our criminal justice system.

Announcing the publication of the report which he received earlier this week on his return from the United States, the Tanaiste said "I warmly welcome this report and I am very grateful to Dr. Hogan and the other members of the Balance in the Criminal Law Group for their sterling and dedicated work on these important issues. It is a fair and balanced report and will I believe form a sound basis for taking forward proposals for reform in the areas with which it deals."

The Report deals in particular with the right to silence, allowing character evidence of an accused, the exclusionary rule of evidence, requiring an accused to outline the nature of his defence before or at the commencement of trial, re-opening new evidence, nullifying an acquittal where there is evidence of jury or witness tampering, "with prejudice" appeals in the case of wrongful acquittal, extending alibi evidence rules to other analogous situations, allowing submissions by the prosecution before sentencing and modifying the rule in relation to hearsay evidence.
The Tanaiste said "The Criminal Justice Bill before the Oireachtas at present already addresses the Group's thinking on the right to silence issue as set out in their earlier interim Report. Where other action is practical in the short term to take forward recommendations I will take it.
For example, I will introduce amendments to the present Bill dealing with the taking of statements in Garda questioning by electronic means and to deal with the problem highlighted in the Report where persons are entitled to video recordings of their questioning in Garda custody.

Of their nature, other proposals in the Report will take more time to advance and, indeed, the Group felt that some issues are in need of more detailed research and my Department will progress this. Nevertheless the Group's proposals form a sound basis for an agenda for sensible reform which I strongly believe should be built on and taken forward as quickly as possible.
On some aspects, I would go further than the Group's recommendations. For example, the issue of requiring a defence statement is one which, in my view, could be of huge assistance to a jury in their consideration of a case. Criminal trials are getting longer and more complicated and it would be of assistance to a jury to have a summary of the contested elements of the case before they hear the evidence."

During the course of its work, the Review Group sought written submissions from interested groups and members of the public. The Review Group also met with a number of interested parties including victims' groups, members of the judiciary, senior members of An Garda Síochána, the Director of Public Prosecutions and Chief Prosecution Solicitor, journalists, representatives of the Human Rights Commission and legal practitioners.

A summary of the recommendations contained in the report are attached at Appendix A and the full text of the Report is published on the Department's website at and the Tánaiste's speech in Limerick last October is at
23 March 2007

Appendix I
The main recommendations of the Report are as follows:
1. The right to silence
* Inferences as to the credibility of a defence to be drawn from a failure to mention the fact relied on in the defence when in custody
* Inferences to be drawn from a failure to explain suspicious circumstances in custody
* Judges' Rules would cease to have effect and would be replaced by regulations, to be made by the Minister, regarding the conduct of interviews.
* A recorded interview should not be required to be the subject of a written note, subject to suitable safeguards
* Where the detained person requests that recording would not apply, the requirement for a note to apply to any admission made in an interview.
* Routine audio and video taping of common areas in Garda stations such as corridors etc to minimise the potential for issues arising concerning utterances or incidents in such common areas.
* The present practice regarding the supply of the videotapes of Garda interviews to suspects be changed so that the videotapes are only required to be made available by way of prosecution disclosure following the charging of the suspect or by order of a court
* Creation of a new offence of disclosing or showing an interview
videotape without lawful excuse.
A majority of the Group considers that neither the trial judge nor the prosecution should be permitted to comment on the failure of the accused to give evidence at his or her trial.
A separate dissent on this topic from two members of the Review Group is attached to the Report.
At the request of the Tanaiste, the Group had already issued an Interim Report on the right to silence in February 2007 and some of the Group's recommendations are contained in Part 4 of the Criminal Justice Bill 2007.
2. Allowing character evidence of an accused
* Where the defence attacks the character of the injured party in a case where the injured party has died or has become incapacitated and is unable to give evidence, the shield would be dropped and the accused would be liable to cross-examination as to his or her character without leave of the court.
* 10 days notice to be given of an intention to make an imputation against a deceased or incapacitated victim. (In the absence of such notice, the leave of the court would be required by the defence to make the imputation).
* Where the accused has engaged in an attack on the character of the prosecution witnesses or, the injured party who is deceased or unavailable to give evidence, or has adduced positive evidence of his own good character, or asked a question designed to elicit such evidence from any witness, the prosecution would be entitled to adduce evidence regarding the defendant's character.
* Allow an express power to call further prosecution evidence regarding the character of the deceased or an incapacitated victim where the victim's character has been put in issue.
3. The exclusionary rule of evidence
Majority recommendation
* Court to have a discretion to admit unconstitutionally obtained evidence or not, having regard to the totality of the circumstances and in particular the rights of the victim.
* Allow time for a possible change in jurisprudence to emerge following use of the appeal provisions of the Criminal Justice Act 2006. If not, other options, including various legislative models or possibly constitutional change, to be examined and considered.
A separate dissent on this topic from the Chairman is attached to the Report.
4. Require the accused to outline the nature of his defence before or at the commencement of a trial and 5. Extending alibi evidence rules to other analogous situations
* Limit the obligation of additional disclosure to the expert or technical reports or witness statement of experts on which the defendant intends to rely.
* Provide that, following such disclosure, the prosecution would not be entitled to call any witness making such a report without the consent of the defendant.
* Allow the prosecution to require the defence to tender a witness where a report or witness statement has been furnished, but the defence does not, in the event, wish to call the witness at the trial.
* When the obtaining of expert evidence takes a longer period of time the defence should be permitted to give details of the efforts being made to obtain a statement if the statement itself is not to hand at the time for disclosure. In any event, such reports should be disclosed well in advance of the trial.
Disposal of Admissibility Issues pre-trial
* Provide that admissibility issues be determined prior to the swearing in of a jury on the first day or days of a trial.
* The principle that consideration be given in sentencing to the stage at which a plea is tendered should be stated expressly in statute.
6. "With prejudice" appeals in the case of wrongful acquittal
* "With prejudice" appeals in respect of trials on indictment in the case of wrongful dismissals - A "with prejudice" right of redress against erroneous decisions by a trial judge, whether that is an interlocutory or evidential ruling (including a ruling which weakens the prosecution case, followed by a jury acquittal) or a directed acquittal.
* "With prejudice" appeals in respect of decisions of the District Court - No change.
7. Re-opening new evidence
* A right to the prosecution to complain in respect of miscarriages of justice on the basis of new or newly discovered evidence with recommended safeguards against a possible abuse of procedure which, of its nature, should only be used in exceptional cases.
* Such right to be exercised if the Supreme Court so decides, notwithstanding a foreign acquittal subject to consideration of the legal issues arsing under the Schengen implementation agreement.
8. Nullifying an acquittal where there is evidence of jury or witness tampering
* Review of acquittals in the event of interference with the trial process, whether in respect of the jury or otherwise.
* Supreme Court to be satisfied that there is sufficient evidence warranting a quashing of the acquittal.
9. Allowing submissions by the prosecution before sentencing
* Amendment to the Guidelines for Prosecutors to allow the prosecutor to volunteer information regarding sentencing precedents whether requested by the judge or not.
* Develop guideline judgments by the Court of Criminal Appeal or Supreme Court, where a number of appeals concerning the same offence would be heard together and a general guideline judgment given, indicating the approximate mid point on the scale of severity and the factors that might result in a significant adjustment up or down.
* Consider possible statutory mechanism for the requesting of a guideline judgment by the Director or the giving of such a judgment on the court's own motion.
10. Modifying the rule in relation to hearsay evidence
* Identify any particular areas that warrant specific exceptions being permitted rather than a radical break from existing norms.
* Consider legislative provisions which would allow proof of purely formal or technical matters to be proved by certificate
* Department of Justice, Equality and Law Reform to keep under review section 6 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, (evidence of scene preservation to be proven by certificate) and section 188 of the Criminal Justice Act, 2006 (handling of forensic samples), to see whether any extension of these provisions is warranted.
Other proposals
11. Identity parades
Allow an injured party to identify a suspect through a one-way screen in as far as practicable.
12. The judge's charge
Development of "Bench Books" as recently recommended by the Law Reform Commission which should bring greater standardisation to the formulae used for certain aspects of judges charges.
13. Victim impact reports
* The statutory provision should be recast to permit the person or
persons who have been most directly affected by an offence, to give evidence at the sentencing stage - for example next of kin of a deceased victim of crime, subject to the Court's discretion in any case.
* Include a power vested in the court to direct that the statement as
delivered or any part of it would not be published or broadcast, without prejudice to any other power of the court.
* Welcome the Tánaiste's recent decision to ensure that the Parole Board would have access to the book of evidence in any case in which parole was applied for.
* Victim impact statement should also be given to the Parole Board and
considered prior to any decision on parole.
* In addition - particularly for the category of relatives or victims
who did not get the opportunity to make a victim impact statement - the Department of Justice, Equality and Law Reform to examine further whether there might be merit in allowing such victims to be heard by the Parole Board in the presence of the offender, perhaps as a condition for eligibility for consideration of the request for parole.
14. Implications for the Defence Acts
Amendments to the Defence Acts to reflect (in the military justice context) the changes to the criminal justice system proposed.