Pre-trial hearings could lead to guilty pleas before criminal trials begin, say barristers

The introduction of legislation to provide for pre-trial hearings in criminal cases could lead to some defendants pleading guilty before full jury trials begin, according to barristers who practice criminal law.

Minister for Justice Helen McEntee announced last Thursday she is to introduce legislation to provide for such hearings, and that she expected the Criminal Procedure Bill 2021 to have passed all stages in the Oireachtas by the summer.

The recommendation that a law be introduced to provide for pre-trial hearings was first suggested as far back as 2003, by then Supreme Court judge Nial Fennelly in a report on the workings of the courts.

In a number of recent trials there have been extensive delays as, in the absence of the jury, the prosecution and the defence argued over the admissibility of proposed evidence.

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Vulnerable witness

“The reason you can’t do it, as matters stand, is that, in very basic terms, the trial only starts when the jury is empanelled,” said barrister Tony McGillicuddy.

If there are legal issues about the admissibility of evidence, such as a confession to a garda or the obtaining of DNA evidence, the legal argument over these matters are not heard until the jury is in place.

These legal issues could be litigated at an earlier court hearing, without a jury, if the new law was introduced.

“What you might see, is that in some cases, if the legal issue is decided in favour of the prosecution, in some cases the defendant may then plead guilty.”

The new law will also mean that, at the outset of a trial, when a jury is told how long the case is expected to take, it is more likely that the trial will end within the time period suggested, Mr McGillicuddy said.

In sexual assault cases, there are sometimes issues about how a vulnerable witness will be handled, and these could be done at pre-trial hearings, he said.

Michael O’Higgins SC said that one of the advantages of having pre-trial hearings would be that the “narrative” of a trial would not be interrupted for the jury members, by their being sent away while legal issues are debated in their absence.

Evidence

A trial that lasts up to 10 weeks can involve four weeks of legal argument in the absence of the jury. “It’s a waste of their time.”

The type of evidence that is most often the subject of legal argument over its admissibility includes phone evidence, CCTV evidence, arrests, the obtaining of samples in custody and identification parades, he said.

In some instances, the decision over whether proposed evidence can be heard or not can involve much, if not all, of the significant evidence that has been amassed by the prosecution, he said.

The timely disclosure of the evidence that the prosecution proposes to produce at a trial is a major issue, Mr O’Higgins said.

The introduction of pre-trial hearings will put pressure on the State to hand over the available evidence in a timely manner. The move “has been strongly argued for, for a long time”, he said.