The Irish courts have been responding to the challenges presented by COVID-19 through a combination of remote hearings and social distancing measures within courtrooms. Nevertheless, lengthy backlogs have built up partly because of the unavailability of suitable court venues and partly because many applications and proceedings were required by law to be carried out in the physical presence of the accused.
A few weeks ago, and more than five months into the crisis, the Irish government finally moved to introduce legislation to deal with the situation in the form of the Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020 (now an Act). Among other things, it permits more court business to be conducted by video link and electronically. While it is easy to see the practical need for some of the measures in the Act, there must be a strong suspicion that the government has taken advantage of the COVID crisis to ram through some permanent criminal (and civil) procedure changes without proper legislative scrutiny.
The most striking feature of the new legislation is the incredible haste within which it was enacted at the very end of the parliamentary session. All of the parliamentary parties agreed in advance to a truncated process which dispensed with the normal pre-legislative scrutiny stage and applied very tight time constraints on the passage of the Bill though each other stage of the legislative procedure. The net effect was that the Bill was introduced in the upper House (the Seanad) without pre-legislative scrutiny and raced through all of the legislative stages in that House in a single evening sitting of about three hours. Two days later, on the very last day of the sitting before the Summer recess, the same pattern was repeated in the lower House (the Dáil).
This is not the first time that an Irish government has rammed criminal procedure measures through parliament in emergency fashion even though it could and should have acted much earlier and at a more considered pace. The parliamentary opposition parties acquiesced in the strategy on the understanding that the measures in question were required urgently in response to the challenges presented by the COVID crisis and went no further than was necessary to meet those challenges. Their trust may have been misplaced.
As will be seen below, the criminal procedure measures in the Act are intended to be permanent and are of a type that could easily have been introduced and enacted in the normal way years ago. More ominous is the fact that, despite being pressed by the opposition, the government refused to include a ‘sunset clause’ in which the measures would automatically expire after a set period unless renewed or re-enacted. The advantage of such a clause is that it postpones a decision on their permanency until a set point in the future when their merits can be subject to more considered scrutiny. Other ‘COVID’ emergency legislation contains a ‘sunset clause’ and the government explanation for its absence in this Act seems hollow.
Cuckoo in the nest
Confidence in the government’s approach is further undermined by the fact that some of the changes on the civil side (allowing for business records to be admissible in evidence as to the truth of the facts stated in them) have nothing at all to do with the COVID crisis. There is at least a suspicion that they were slipped into the Bill in order to overcome difficulties that ‘Vulture Funds’ have been experiencing in the courts in securing repossessions in respect of business, farming and residential properties on which they purchased risky loans from the banks.
The opposition parties were not alerted to this ‘cuckoo in the nest’ until the Bill had completed its passage through the Seanad. The government never quite managed to provide a satisfactory explanation as to why it was necessary to include these particular provisions in a COVID measure that was rushed through in emergency style at the very end of a parliamentary session. If it was needed, it could and should have been introduced, scrutinised and, if considered appropriate, enacted as a civil evidence measure in the normal manner. Most unusually, some of the government’s own back-benchers joined with the opposition (albeit in vein) in pleading with the government to deal separately with the civil evidence measures.
Live video link participation
The criminal procedure provisions in the Act are concerned mostly with facilitating: court applications to be heard using live video link, evidence to be taken from witnesses through live video-link and the remote hearing of appeals.
There already were provisions for a range of applications in criminal proceedings to be heard with the participation of the applicant through video link rather than being physically present. These were confined to situations in which the applicant was a prisoner or in detention. Not only does the new Act expand the range of such applications considerably, but it also extends the video link option to accused persons generally, irrespective of whether they are in prison or detention.
The range of applications in which the accused’s participation can be satisfied by a live video link include: an application for bail or free legal aid; an application relating to sentencing; most pre-trial and post-trial applications; and applications relating to appeals (apart from the hearing of an appeal from the District Court to the Circuit Court).
In effect, the facility can be used in respect of most applications outside of the trial itself. While it is by no means clear, it would appear that it can be used even in respect of an actual sentencing hearing. It is also not entirely clear whether it can be used in respect of pre-charge proceedings, such as an application for extension of detention in police custody.
The court concerned can issue a direction for an accused to participate by a live video link pursuant to these provisions on its own motion or on the application of the DPP or the accused. The DPP can make an application for such a direction without notice to the accused; and vice versa. Where the court issues a direction, the effect is that the accused is physically detached from the hearing of the application in the criminal proceedings and participates by video from his or her location, wherever that might be. Inevitably, this has implications for the proceedings and for the capacity of the accused to engage with his or her legal team, interpreter (where relevant) and family support. It also has broader implications for the whole character of criminal proceedings relative to how they have been understood and experienced in this jurisdiction for hundreds of years.
It is important to note that the court itself has an even broader power to direct that all applications of a specified type or class (or concerning a specified class of person) shall be heard with the accused participating through a live video link. Where such a direction is in force, the accused can only participate in the proceedings concerned through a live video link from the place where he or she is located.
EAW and similar proceedings
All of the above provisions apply to criminal proceedings. There are parallel provisions for applications relating to the execution of a European Arrest Warrant, and for extradition and related proceedings. The net effect is that the person concerned can be restricted to participation in such proceedings through a live video link. It should be noted, however, that this option cannot be used for proceedings concerning the first appearance of the person in court after arrest, the hearing in regard to the making of an order for surrender or a hearing for the making of an order committing the person to prison to await the Minister’s direction on extradition or surrender. Nevertheless, the cases in which they do apply bring with them an increased risk of language difficulties and engagement for the person attempting to participate through video.
Evidence by live video link
While the accused is exposed to potential prejudice through being deprived of the right to be physically present at a wide range of hearings in his or her case, the prosecution is potentially advantaged by a sweeping provision enabling witnesses to give evidence by live video link. Admittedly, there already was provision for some witnesses to give evidence, and be cross-examined, in certain criminal proceedings. For the most part, however, these have been confined to children and vulnerable persons giving evidence in respect of sexual or other serious offences against the person. The new Act takes this on to a wholly different level.
Now a witness (other than the accused or the requested person in an EAW etc case) can give evidence by live video link on the hearing of applications across the range of situations outlined above. This can be done simply by leave of the court. No further elucidation or qualification is provided. Presumably, the court can grant leave on its own motion or in response to an application from the DPP (or Minister or Attorney General in extradition or surrender proceedings), the accused or the requested person. On the face of it, there seems to be no reason why it cannot do so on the direct request of the witness.
Where the court does grant leave under this provision, the witness can give evidence (and, presumably, be cross-examined) through a live video link from his or her location whether inside or outside the State. This will relieve the witness of the requirement to give evidence and submit to cross-examination in the physical presence of the accused. When combined with the provisions on the participation of the accused through a live video link, the effect could be that a significant chunk of the criminal business of the courts would go virtual.
A notable feature about the witness facility is the express requirement for the witness’ evidence to be video-recorded or otherwise recorded in such manner as is provided for by the court or in rules of court. Superficially, of course, this can be seen as little more than an efficient means of recording the evidence for the purpose of making and retaining an official record of the proceedings. Nevertheless, the wider implications of having such a video record, and the uses to which it might be put in future proceedings, are not clear and are not defined. It is also worth noting that there is no equivalent provision in respect of the appearance of the accused (or requested person) by live video link. It would appear that the latter is seen as nothing more than satisfying any legal requirement for the accused’s presence at the hearing of the application in question.
Appeal proceedings by remote hearing
The new Act makes provision for appeal proceedings in the Court of Appeal and in the Supreme Court to proceed remotely; in the sense that one or more of the parties participates by means of electronic communications technology from a location other than the court itself. In effect, this facilitates complete appeal hearings being conducted on-line with the participants looking at and appearing on a two-dimensional screen rather than being in each other’s physical presence in a three-dimensional courtroom.
The Court in question can direct that any category or type of appeal proceeding before it should proceed by remote hearing. Equally, it can direct the same with respect to any individual appeal proceedings before it, and it can do so on its own motion or on the application of any of the parties. The court concerned will make all necessary provision and orders for the conduct of remote proceedings.
The Act gives a court the power to make such provision as it considers appropriate to ensure the conduct, in a just and expeditious manner, of criminal or EAW etc proceedings. This extends to the management of lists of criminal proceedings.
An amendment to the Criminal Justice Administration Act 1914 deals with a situation in which a person is detained in one prison but is the subject of an unexecuted warrant committing him to another named prison. In this situation, the warrant can be executed as if the named prison was the prison in which he or she was already detained.
The criminal procedure changes provided for by the new Act augur a major reorientation in the character of the trial process. If used to the full, the familiar experience of court proceedings in which all the parties and players come together in real time in a three-dimensional courtroom will fade. It will be replaced increasingly by proceedings in which they participate remotely in physical isolation from each other through a two-dimensional screen.
The personal contacts, the nuances of body language, the opportunity for quiet asides between the players, and between the parties and their legal teams, will be lost. These informal, unwritten, and essentially human, practices that have been engrained in our trial process for centuries will be squeezed out by the brutal and sanitising effects of technology. Some of the humanity of our criminal process will go with them.
The accused will suffer the most as he or she will be physically isolated from proceedings which may be making life-changing decisions affecting his or her fundamental rights, liberty and person. The opportunity to engage with his or her legal team (and family) remotely through a computer screen is a poor and inadequate substitute for engaging with them in person in such anxious and highly-charged circumstances.
More broadly, public engagement and identification with the law and justice process will be adversely affected. The changes could distort application of the fundamental principle of justice being administered in public; a principle that is as old as the criminal process itself. Taken to the extreme, the real-life drama of law and justice being played out live in public, as in a theatre, could become little more than an episode of a TV play which is called up on a two-dimensional computer screen.
A shocking feature of this potentially ground-breaking legislation is the speed with which it was rammed through parliament. Given the potential impact of criminal measures on the rights and freedoms of the individual, it is always dangerous to enact them in haste. Yet the Irish government and parliament have taken that approach unnecessarily with this legislation.
The Act comprises 33 sections, running over 37 pages. The criminal procedure provisions account for seven sections across 11 pages. By any standards, they are complex and difficult to interpret, even for lawyers. They really needed to be subject to the normal process of pre-legislative scrutiny to tease out their full implications. Only then could the parliamentarians have had the material and insights to debate the measures fully and to take informed decisions on them.
A particularly disturbing feature is that the measures, and the undue haste surrounding their enactment, were not necessitated by the COVID crisis. They effect permanent changes to the law that could have been enacted years ago or in years to come. Some of the key provisions will not even come into operation until the 14 September (more than five weeks after they were enacted) while there was a delay of two weeks in bringing the other measures into operation. It seems shameful that they should have been enacted in the manner that they were undercover of the COVID crisis. Not only is their substance damaging to the essence and character of the criminal trial process, but it is submitted that the manner of their enactment is also damaging to the integrity of the democratic process.