Madam, - Frustrated by the aborted trial of Liam Keane, the Minister for Justice has suggested legislative changes might be made to allow juries to consider out-of-court statements that witnesses refuse to adopt at trial. In support, he has referred to Canadian law, which allows this.
Before moving to Ireland four years ago, I practised criminal law before the Canadian courts and lectured in Canadian criminal law at Canadian universities for more than 15 years. I had been taught in law school about the "rule in Milgaard", which addressed this very problem. The reference was to a celebrated conviction of a teenager named David Milgaard for a murder. A key witness - another drugged-up teenage friend of Milgaard's - incriminated Milgaard when she spoke to the police but later repudiated her statement at trial.
The "rule in Milgaard" is now a phrase that sticks in our throats. Milgaard was sentenced to life imprisonment. He constantly proclaimed his innocence, which had the perverse effect of making him ineligible for parole. He spent 22 years in prison before DNA proved he was totally innocent.
Sometimes impressionable witnesses, under the strain of events, and sometimes fears or threats that they themselves may be accused, make false statements to the police. This is what happened in Milgaard's case.
It may seem pretty trite to cite the old adage about it being better for 10 guilty people to go free than to convict an innocent person. But in Canada, an innocent man spent the best years of his life behind bars on the basis of evidence later proven to be false. Great care should be exercised before our rules of criminal justice are bent out of anger over one aberrant case. - Yours, etc.,
Prof WILLIAM A. SCHABAS,
Director, Irish Centre
for Human Rights,
Galway.
Madam, - It appears there is little difficulty in getting witnesses to serious crimes to come forward and make statements to gardaí. The problems seem to arise later when these witnesses are called upon to give evidence in court - months, and in some cases even years, later.
The opportunity and temptation to induce amnesia in key witnesses through direct or indirect intimidation is clearly too great for some to resist.
If serious criminal cases are to be brought to court with any chance of successful prosecution, then clearly the evidence of these witnesses must be preserved and protected so that it can be presented and considered in court. Several possibilities exist:
1. Protect the witnesses themselves, together with their extended families and friends, before during and after the trial, and well into the future. This is simply impractical, financially and socially.
2. Introduce legislation to allow statements as gathered to be considered by a court even where the accuracy or veracity of these statements is clearly rejected by the witness in court. This would entail the removal of too many safeguards for defendants, and could be open to abuse.
3. Appoint special magistrates, who would be full and independent members of the judiciary, and whose function would be to oversee the taking of statements from key witnesses in cases where gardaí have reason to believe that witness intimidation might arise. Legislation would have to be introduced to allow these statements to be presented to the court by such special magistrates in cases where witnesses found themselves unable to give evidence in court. A magistrate could give evidence of the general circumstances surrounding the taking of statements, and the procedures adopted, so the court could satisfy itself the statement was given and taken in an acceptable manner. By adopting this last option, important criminal cases could be prevented from collapse due to witness intimidation, the rule of law would be upheld, and witnesses would be less liable to interference as it would be understood that witness statements could not be retracted and intimidation would therefore be pointless.
While the lifestyle of these special magistrates would not be enviable, and volunteers might be thin on the ground, it would at least be feasible to offer effective Garda protection to this small group. - Yours, etc.,
VINCENT O'TOOLE,
Leopardstown,
Dublin 18.
Madam, - The outbreak of amnesia or an unwillingness to recall past events, as would appear to be the case this week in the Central Criminal Court, is not a new phenomenon. Have we not witnessed the same behaviour in our many long-running tribunals?! - Yours, etc.,
BILL GRIMSON,
Villiers Road,
Dublin 6.