DPP calls for ‘urgent’ reform of way courts handle criminal trials

Reform of the way the courts handle criminal trials is now "urgent" because of the increased amount of digital and other evidence that is available, the Director of Public Prosecutions (DPP) has said.

Claire Loftus was addressing the annual National Prosecutors' Conference in Dublin which considered matters arising from trials associated with Anglo Irish Bank, as well as other issues.

The Anglo trials, which ran successively in the Dublin Circuit Criminal Court, were among the longest in Irish criminal history and regularly involved extended legal argument over what evidence should or should not be presented to the jury, which though empanelled, was outside the courtroom for all such argument.

Ms Loftus noted that a new law to introduce a pre-trial procedure to deal with such matters before the trial begins is on the priority list for the current Dáil term.

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“I do not think it is to overstate the position to say that an effective pre-trial provision is now urgent, not only for white collar criminal cases but also for the wide range of other criminal offences including sexual offences where protracted legal argument has become the norm.”

There has been an undoubted increase in the volume of material arising generally in criminal investigations, she said.

This is currently most acute in the area of financial crimes, but right across the range of criminal offences from sexual offences to child pornography to drug offences to robbery, digital evidence and other forms of evidence are increasingly prevalent.

“As prosecutors we are all dealing with vast amounts of data arising from the widespread use of CCTV cameras, phone records and electronic evidence including emails and social media messages and posts. This presents its own challenges both in terms of presentation of evidence and disclosure of unused but relevant material.”

When it comes to collecting evidence, for example from social media websites, issues of jurisdiction come into play.

This is a growing area for prosecutors around the world and especially in her office where, for example, the number of mutual legal assistance requests has gone up dramatically, partly owing to the necessity to secure electronic evidence from social media websites abroad.

Ms Loftus said the recent Law Reform Commission report on regulatory matters and corporate crime had recommended a dedicated unit within her office which would deal with a new Corporate Crime Agency the commission has said should be established.

"Of course there is already a unit in my office, led by Henry Matthews, which was first established in 2011 to deal with the banking cases.

“Since the middle of 2016 this unit has also been dealing with a number of other large financial crime cases including some corporate crime cases, investigated primarily by the [Garda National Economic Crime Bureau and the Office of the Director of Corporate Enforcement].

“However, I note the recommendation of the Law Reform Commission that the unit in our office that interacts with the new agency would be properly resourced.”

It is to be expected that any new agency, with a multi-disciplinary approach to corporate crime, would inevitably investigate and submit more cases, she said.

“We would therefore require additional resources to fully meet the requirements of these very complex and sometimes voluminous cases.”

Sinead McGrath BL outlined to the conference how one of the so-called "back-to-back" Anglo trials ran for 82 days and involved 545 exhibits being shown to the jury while the trial of former Anglo CEO David Drumm ran for 87 days and involved 709 exhibits being shown to the jury. Mr Drumm was sentenced to six years in jail.

During the period 2010 to 2013 the gardaí seized more than 800,000 documentary and electronic exhibits from Anglo, as well as 39,000 telephone records.

One of the legal arguments that arose as a result was over the extent and constitutionality of the material seized, she said.