An expert group appointed by the Government to examine the balance in criminal law has proposed wide-ranging changes which would restrict a suspect's right to silence.
The Balance in Criminal Law Review Group, chaired by Dr Gerard Hogan SC, has also recommended that evidence excluded from trials on technical grounds could be admitted at the discretion of a judge, even if the gathering of the evidence breached the accused's constitutional rights.
It also believes that suspects who are acquitted should face a retrial if new evidence emerged or if it became clear that the jury had been tampered with. These measures would effectively end the double jeopardy rule under which a suspect cannot be tried twice for the same crime.
The group was appointed by Minister for Justice Michael McDowell to examine if aspects of the Republic's criminal law could be rebalanced to better reflect the interests of victims.
Changes to restrict a suspect's right to silence have already been included in the Criminal Justice Bill.
However, informed legal sources last night told The Irish Timesthat the changes in the legislation represent a greater degree of restriction around the right to silence compared to the review group's proposals.
Under Mr McDowell's plans, if a suspect fails to mention under Garda questioning issues that he later uses in his defence, a jury can treat the silence as evidence which could corroborate guilt.
Under the review group's proposals, the credibility of a defence could be questioned if details of that defence were not mentioned by the suspect under questioning.
"Mr McDowell is going further," said one source. "It may be a small difference but in some cases it may prove vital."
The Irish Council for Civil Liberties noted that the exclusionary rule might be relaxed to allow evidence gathered unconstitutionally to be admitted as evidence. "Any suggestion along these lines would be a cause of concern for us," said director Mark Kelly. He believed, for example, that the terms of search warrants granted by the courts were deliberately narrow so gardaí could not use them to "go on a fishing trip" searching for evidence.
The group's chairman, Dr Hogan, expressed some disagreement with the majority of the other members. He believed the exclusionary rule was working well and should be left intact.
Mr McDowell yesterday welcomed the review group's report as fair and balanced. He said the group's views on the right to silence had already been disclosed in an interim report and had informed the framing of the Criminal Justice Bill. "Where other action is practical in the short term to take forward recommendations I will take it," he said. "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."
Apart from the chairman, the other members of the panel are: Prof David Gwynn Morgan, UCC; Richard Humphreys BL; Nora Owen, chairwoman of the justice group of the Institute of European Affairs and member of the Commission for the Support of Victims of Crime; Barry Donoghue, deputy director, office of the Director of Public Prosecutions; Caitlín Ní Flaithearthaigh, advisory counsel, office of the Attorney General; Tony McDermottroe and Ken O'Leary, assistant secretaries, Department of Justice.
Balance in Criminal Law Review Group: main findings
RIGHT TO SILENCE
New legislation should be introduced to provide for inferences to be drawn as to the credibility of a defence if details of that defence are not mentioned under Garda questioning.
A recorded interview of a suspect being questioned by gardaí should not be required to be the subject of a written note by the questioning officers.
Videos of interviews should only be given to suspects after charges are pressed. It should become an offence to show such videos to other persons without lawful excuse.
CHARACTER EVIDENCE
In a case where an injured party has died or has become incapacitated and is unable to give evidence, and where the accused attacks their character, the accused should be cross-examined as to his or her character without the permission of the court first being secured.
The prosecution should be entitled to adduce evidence regarding the defendant's character in cases where a defendant has made efforts to attack the character of an incapacitated injured party or has through any other means tried to introduce evidence as to his/her own good character.
THE EXCLUSIONARY RULE
The group wishes to see a situation where the court would have discretion to admit unconstitutionally obtained evidence having considered all of the circumstances and the rights of the victim. However, group chairman Dr Gerard Hogan SC disagreed.
DISPOSAL OF ADMISSIBILITY ISSUES PRE-TRIAL
In order to avoid a situation where juries are forced to endure long breaks in between the hearing of evidence, the group proposes that all issues around the admissibility of evidence be disposed of before juries are sworn in.
RE-OPENING ACQUITTALS FOLLOWING NEW EVIDENCE
Review group recommends legislation be enacted to give a right to the prosecution to complain in respect of miscarriages of justice on the basis of new or newly discovered evidence.
IDENTITY PARADES
Review group favours the concept of allowing the injured party to identify the suspect through a one-way screen.
VICTIM IMPACT STATEMENTS
Review group favours a system whereby a judge could direct that certain portions of a victim impact statement would not be reported upon or broadcast.