BALANCE IN THE CRIMINAL LAW REVIEW GROUP FINAL REPORT BALANCE IN THE CRIMINAL LAW REVIEW GROUP FINAL REPORT 15 MARCH 2007 Letter from Chairman to Tánaiste . 3 Introduction . 5 Issue 1 - The Right to Silence . 17 Issue 2 – Character Evidence . 100 Issue 3 – Infringements of Constitutional Rights – The Exclusionary Rule . 147 Background . .. 147 Arguments for Change . 155 Arguments against Change . 160 Options for Change . 161 Issue 4 – Requiring a Defence Statement . 167 Advance disclosure of the defence case . 167 Disposal of Admissibility Issues pre-trial . 174 Issue 5 – Extending Alibi Evidence Rules . .. 176 Issue 6 – “With Prejudice” Appeals . 177 Introduction . 177 Constitutional considerations . .. 179 With Prejudice Appeals on indictment . 192 Appeal in respect of District Court Decisions . 198 Issue 7 – Re-opening acquittals following new evidence . 203 Issue 8 – Nullifying acquittals tainted by Trial Tampering . 211 1 Options for Change . 213 Issue 9 – Prosecution Submissions on Sentence . 215 Introduction . 215 The Problem . 219 Options . 220 Views of the Review Group . 221 Issue 10 - Hearsay evidence . 228 Issue 11 – Other Proposals . 233 Identity Parades . 233 The judge’s charge . 234 Victim Impact Reports . 235 Implications for Defence Acts . 240 Other issues which came to the attention of the Group . 240 Summary . 243 Appendices . 255 Appendix 1 - List of submissions made to Group and persons with whom the Group met. 255 Appendix 2 - Draft heads of legislation relating to inferences from silence . 258 Note of Dissent on Right to Silence: Nora Owen and David Gwynn Morgan . 274 Note of Dissent on Exclusionary Rule: Gerard Hogan . 287 2 Letter from Chairman to Tánaiste Michael McDowell, SC, TD, Tánaiste and Minister for Justice, Equality and Law Reform, St. Stephen’s Green, Dublin 2 March 15, 2007 Dear Tánaiste, On behalf of the Balance in the Criminal Law Review Group, I have pleasure in enclosing the final report of the Group. You will note that our Report makes certain recommendations regarding the reform of aspects of criminal law, criminal procedure and the law of evidence in criminal cases with a view to striking a fair balance between the rights of the community in general and those of victims of crime in particular on the one hand and the traditional rights of an accused as protected by the Constitution, the European Convention of Human Rights, statute and, indeed, the common law on the other. 3 Yet I cannot help thinking that society must not ignore the fact that the majority of prisoners are drawn from the more disadvantaged sections of the community and that any balanced response to the problems of crime must also have regard to this factor. A large number of prisoners are the product of dysfunctional families and have experienced significant educational, housing and other social disadvantages. Many of them have only ever encountered hardship, disadvantage and failure in their lives and they have often fallen prey to the evils of alcohol and drug addiction. While not for a moment excusing their crimes, the fact remains that some at least of the prison community can justly say that they too are also in one sense the victims of society. The principle that we must hate the sin, but love the sinner is at least two thousand years old, but yet I fear that as a society we have sometimes lost sight of this fact. Although these are matters which stray well beyond the boundaries of the work of the Review Group, these are factors which I nonetheless consider cannot be ignored in the wider public debate. Kind regards, Gerard Hogan Chairman, Balance in the Criminal Law Review Group 4 Introduction The Review Group on Balance in the Criminal Law was established by the Tánaiste and Minister for Justice, Equality and Law Reform on 1st November 2006, and was required to report by 1st March 2007. The Review Group’s terms of reference were to consider and examine the following issues: · “the right to silence · allowing character evidence of an accused · the exclusionary rule of evidence · requiring the accused to outline the nature of his defence before or at the commencement of a 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 · modifying the rule in relation to hearsay evidence 5 … and any other proposals regarding criminal law, criminal evidence and criminal procedure that may come to the attention of the Group in the course of the review” On the 19th December 2006, the Tánaiste also requested the Review Group to consider the issue of admissibility of video evidence in circumstances where the accused person remains silent. The members of the Review Group are as follows: · Dr Gerard Hogan SC, Law School, Trinity College, Dublin (Chairman) · Barry Donoghue, Deputy Director of Public Prosecutions · Professor David Gwynn Morgan, Faculty of Law, University College, Cork · Dr Richard Humphreys, Barrister-at-Law · Tony McDermottroe, Assistant Secretary, Criminal Law Reform and Human Rights Divisions, Department of Justice, Equality and Law Reform · Caitlín Ní Fhlaitheartaigh, Advisory Counsel, Office of the Attorney General · Ken O’Leary, Assistant Secretary, Crime, Mutual Assistance and Extradition Divisions, Department of Justice, Equality and Law Reform · Nora Owen, Former Minister for Justice (1994-1997), member Commission for the Victims of Crime. 6 The Review Group would first wish to express its heartfelt thanks to the three members of its Secretariat: Ann Barry, Assistant Principal, Caroline Davin- Power, Executive Officer and Peter Jones, Assistant Principal, of the Criminal Law Reform Division of the Department of Justice, Equality and Law Reform. All three responded promptly to our requests for documentation and research and organised the meetings of the Group which were invariably held at short notice and out of ordinary office hours. The Chairman, with the complete assent of the other members of the Review Group, would particularly wish to register special recognition of the exceptional contribution of Dr. Richard Humphreys. The Review Group advertised for submissions and also had meetings 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. We list in Appendix 1 the persons we met or from whom written submissions were received. The Review Group also presented the Tánaiste on February 5, 2007 with an interim report containing provisional recommendations on the right to silence. Observations received on that interim report were taken into account in preparing this final report. 7 As stated above we should also emphasise that, given that the terms of reference of our review constrained us to report by 1st March 2007, we have taken the view that in certain cases, various issues drawn to our attention or considered by us warrant further study and we have sought to identify those issues later in this report. The context of the Review Group’s deliberations is the need to keep under review, in a changing society, legal rules that have developed over a long period of time. O’Higgins C.J. in Re Criminal Law (Jurisdiction) Bill 19751 speaking of the constitutional guarantee in Article 38.1 that no-one shall be tried save in due course of law, commented that the concept of due course of law requires: “a fair and just balance between the exercise of individual freedoms and the requirements of an ordered society.”2 In considering this proposition it must be recalled that individual freedoms are not the monopoly of the defendant and that the State also has a primary responsibility to vindicate the rights of the victim. The criminal law is a significant mechanism for vindicating those rights. At the same time, the criminal trial cannot simply be regarded as the equivalent of a civil action between a plaintiff victim and a defendant accused where the rights of 1 [1977] IR 129. 2 [1977] IR 129 at 152 8 both parties are absolutely equal. Certainly in the case of non-minor offences, the State has long since claimed a monopoly to prosecute such offences, in the words of Article 30.3 of the Constitution, “in the name of the People.” Moreover, given the profound implications for the liberty, reputation and livelihood of an accused charged with a serious offence, society has rightly ordained that an accused enjoy a series of special protections designed to ensure fairness and to guard against a possible miscarriage of justice. That, at any rate, is the theory of both the Constitution and the European Convention of Human Rights. The Review Group takes the view that the fundamental principles of our criminal justice system are sound, including the adversarial nature of the trials, the general rule of trial with a jury, the requirement that the burden must rest with the prosecution and the requirement that guilt be proved beyond a reasonable doubt. The Review Group considers that these traditional fundamental features of the system are necessary and appropriate and would not wish to see these elements changed. Indeed the very fact that the system of jury trial is fundamental to our ordinary criminal law explains to a large extent many of the complexities in our criminal law, evidence and procedure. Other countries which do not have the tradition of jury trials have, in many respects, radically different laws of evidence, but 9 these systems are not a necessarily reliable guide as to how Irish law should develop. The Group feels that the fundamental rules of the Irish criminal justice system are working satisfactorily and, in any event, radical change to those fundamental rules is outside our remit.