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Criminal Procedure Bill 2021: Report and Final Stages (Continued)

Thursday, 11 March 2021

Dáil Éireann Debate
Vol. 1005 No. 2

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  2 o’clock

(Speaker Continuing)

[Deputy Martin Kenny: Information on Martin Kenny Zoom on Martin Kenny] It is very clear what the intention is and what is on paper. It states it is to result in the least disruption to the jury and witnesses in the trial of the offence. It does not meant that the court somehow ignores additional or new circumstances, evidence or discoveries that are made. I do not think anyone would interpret it that way, nor should they. Using that as an interpretation or means to block this amendment is unfair and I suggest the Minister reconsiders that.

An Ceann Comhairle: Information on Seán Ó Fearghaíl Zoom on Seán Ó Fearghaíl Is any other Member offering before I go to the Minister? I call on the Minister to respond.

Deputy Helen McEntee: Information on Helen McEntee Zoom on Helen McEntee I again want to thank the Deputy for putting forward this amendment. I appreciate the spirit in which it has been tabled, but unfortunately because the amendment, as proposed, specifically relates to ensuring there are greater efficiencies and avoiding disruption, in a sense it ties the hands of the court, in particular where issues arise where there is an interest of justice that needs to be looked at where emerging evidence has arisen.

  It is always within the scope of a judge to accept or reject a request for this type of questioning. That is for a judge to decide. The intention of the Bill is that these types of issues would be dealt with at the preliminary trial hearing, do not have trials stopping and starting, do not have juries that have been sworn in having to be sent away and come back and do not have vulnerable persons and victims being retraumatised by having to start and stop a trial two, three or four times, something which often happens.

  The Bill sets out very clearly what issues can be raised at the preliminary trial hearing. Section 6(7) sets out the number of matters the court may assess at the preliminary trial hearing.

  Section 6(8) refers to amending or serving an indictment, providing for additional jurors, accepting evidence by written statement or formal admission applications, questioning victims about prior sexual history, providing for practical measures like allowing testimony from behind screens, allowing a witness who is in fear or is subject to retaliation or intimidation to testify via video link, anonymity for certain categories of witnesses, allowing evidence via video link by a witness outside of the State, leave to call an expert witness, whether to allow questioning about the private life of the victim where this is necessary or in regard to the trial allowing video link evidence, a relevant order, which is very much the crux of this Bill because it relates to the admissibility of evidence, or any other order that the court may make in the absence of the jury. A significant amount can, will and should be dealt with in the preliminary trial hearings.

  Section 6(17) states:

Where an order referred to in paragraph (a), (b) or (c) of subsection (8) shall be required to be sought by the prosecution or the accused during the course of proceedings for an offence to which this Part applies, the party concerned shall so inform the trial court at the first available opportunity, in order to facilitate the court in making a decision as to whether or not to direct that a preliminary trial hearing in respect of the trial of the offence shall be held.

  The Bill very clearly states that the intent is that any of the issues I have outlined would be brought to the court's attention as early as possible. They would then be dealt with in the preliminary trial hearing. It is very difficult for us to tie anyone's hands. The two issues Deputy Kenny outlined refer to terms like "efficient" and "least disruption". We have sought legal advice, and spoke to the Attorney General and DPP. The advice is that the amendment ties hands and it is not something we can do in this instance. I fully appreciate the intention behind the amendment. We are bringing in this legislation to support vulnerable persons, but we have to make sure that we get the balance right.

An Ceann Comhairle: Information on Seán Ó Fearghaíl Zoom on Seán Ó Fearghaíl How stands the amendment?

Deputy Martin Kenny: Information on Martin Kenny Zoom on Martin Kenny I will press the amendment.

  Amendment put and declared lost.

An Ceann Comhairle: Information on Seán Ó Fearghaíl Zoom on Seán Ó Fearghaíl Amendment No. 2 arises out of committee proceedings.

Deputy Thomas Pringle: Information on Thomas Pringle Zoom on Thomas Pringle I move amendment No. 2:

In page 18, after line 37, to insert the following:
“Review of operation of Act

19. The Minister shall, not later than three years after the commencement of this Act, carry out a review of the operation of this Act.”.

This amendment is self explanatory. We had a discussion about it on Committee Stage. It states: "The Minister shall, not later than three years after the commencement of this Act, carry out a review of the operation of this Act" and that a report be laid before the House or whatever so that we could see how the legislation is performing.

  On Committee Stage, the Minister said there is already a procedure in the Oireachtas whereby within a year of it being passed an Act is open to be reviewed. That is true. I had not received documentation at that time. I asked the Oireachtas how many Acts had been reviewed and what the procedure is. Interestingly, the Oireachtas was not able to give me a breakdown of the number of Acts that have been submitted for review. Either the information was not ready or was not in a format in which that analysis could be done.

  A document was submitted to me. It was a report that was carried out for a presentation in London on post-legislative scrutiny of Bills and so on, which was very interesting. It makes a mockery of the 12-month review and is interesting for a number of reasons. It stated that while overall the post-legislative scrutiny process has been implemented in an ad hoc and unreflective way by Government Departments, which is damning in itself, some of the information that has been given in the reviews and documents is the type of information that could be readily obtained by Members of the Houses of Oireachtas through parliamentary questions. One could argue that is the way it should be, but the purpose of the review process is to get information about how an Act is working. The parliamentary question process may not be the appropriate way to tease out such issues.

  Recommendations were made on the changes that might be useful and important. In one of the main recommendations it stated that while information about commencement and why certain sections have not been commenced is useful at the one-year point, overall the timeframe of the Government's post-enactment report should be extended from one year to three years, with the option that for certain Acts, agreed between the committee and the Minister, the timeframe should be five years.

  My amendment recommends that after three years a review would take place, which is what the library service recommended for legislative review. The Minister said this is already provided for, and this Bill will come under that timeframe. From that point of view, this is an important amendment. As the Minister outlined in her response to amendment No. 1, a lot of the information will make a real difference. This is an important Bill in terms of how sexual offences are dealt with. The review of how the Bill is working will be important. It should be open to scrutiny and fully scrutinised. I would be very concerned that one year is not long enough and we will not be able to examine what has happened.

  I may be wrong, but the tone from the Minister and all Government Departments seems to imply that if a Bill is passed today and the one-year timeframe is all we have that is all we are going to get. In her response to amendment No. 1, the Minister said a three-year period before a review would be too long and could not happen.

  We cannot underestimate what the Department is trying to achieve, and it is important that things are done right. We need a system to ensure that things are being done right, and if changes are needed the legislation can be tweaked and things can be flagged in order that change can take place. That is why I have put forward the amendment and will press it.

Deputy Brendan Howlin: Information on Brendan Howlin Zoom on Brendan Howlin This is an important amendment. As an Oireachtas, over the past number of years we have looked very carefully at pre-legislative scrutiny. We put new procedures in place. We have a memorandum of understanding between the Oireachtas and Government on the processes to be carried out for Bills to be in order before they are published and go through Second and Committee Stages and so on.

I do not think we have been as proactive in respect of post-enactment scrutiny. We are about to amend the Children Act 2001. The outworking is something for which we need to have regard.

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