Last week the Irish government published a Criminal Procedure Bill aimed largely at introducing a “preliminary trial hearing” for criminal trials on indictment. This equates to the case management procedure that is now a familiar part of the criminal trial architecture in England and Wales.
The preliminary trial hearing seems intended largely as a device to ensure that the main trial can proceed to a conclusion swiftly, smoothly and without being interrupted by lengthy suspensions to deal with legal, procedural, technical or collateral issues. So, for example, it allows for legal, procedural and evidential disputes to be determined in advance, thereby allowing the main trial (usually conducted before a jury) to focus on the core business of presenting and testing the evidence. Consequently, the trial should move swiftly and smoothly from the selection of the jury to the point at which the jury is sent out to consider their verdict.
Arguments cited in favour of such preliminary trial hearings usually highlight perceived advantages in administrative efficiency and cost savings, with consequent benefits for both the State and the victim. It is easy to see how resort to preliminary trial hearings will benefit the crime victim, at least in those trials where there is a human victim. Equally, the cost savings of a more streamlined and swift administrative trial process are obvious. These advantages, however, come at a significant cost to the interests of the accused. Equally, they have significant ramifications for the broader character of Irish criminal process.
The new preliminary hearing facility arises in cases where the accused has been sent forward for trial and before the trial itself has commenced. It applies in respect of trials on indictment (jury trials or trials on indictment before the non-jury Special Criminal Court). It is applicable automatically to indictable offences which are punishable by a maximum term of imprisonment of at least ten years or which are punishable by life. For the most part, that restricts the procedure to offences at the more serious end of the scale. Nevertheless, it still embraces offences such as robbery, burglary, drug trafficking etc where the monetary values involved are relatively small. Moreover, the Minister for Justice is given a power to extend the procedure to any other indictable offence by order.
The preliminary trial procedure does not apply automatically to the prosecution of any qualifying offence. It is a matter for the court before which the accused is to be tried to decide whether a preliminary hearing (or hearings) will be held in that case. It can decide in favour of such a hearing (or hearings) where it is satisfied that the hearing would be conducive to the expeditious and efficient conduct of the proceedings and that it is not contrary to the interests of justice. The court can make the decision either on its own volition or on the application of the prosecution or the defence.
Significantly, the court must hold a preliminary trial hearing where the basic conditions are satisfied in respect of a qualifying offence, no preliminary hearing has been held in respect of the offence and the prosecution or the accused applies for a hearing. It follows that the prosecution can force the holding of a preliminary hearing in such cases, even where the accused objects to it and/or where the court would not otherwise have held a hearing.
It seems clear from these provisions that expediency and efficiency (as distinct from fairness to the accused) are the driving force behind the preliminary trial procedure. Almost invariably, expediency in this context will mean prosecutorial expediency. Seemingly, efficiency refers to administrative efficiency in the use of State resources. It does not necessarily follow that the interests of the accused will be prejudiced, but it seems clear that they are not given the same importance.
Further insights into the objectives of the new procedure can be deduced from the provision on the timing of a hearing, where applicable. The Bill stipulates that the court in question should ensure, in so far as possible, that the timing of the hearing is likely to achieve “the purposes of this Act” in a manner that is consistent with the interests of justice. Nowhere in the Bill is there a statement as to what the purposes of the Act are. However, the provision on the timing of the hearing goes on to say that the court shall ensure, in particular, that a preliminary hearing is likely to: facilitate the expeditious and efficient conduct of the proceedings, result in the least disruption to the jury and witnesses in the trial of the offence and best protect the interests of any victim of the offence.
The implication would appear to be that the new procedure is designed to secure a swift and uninterrupted trial in the interests of the jury members, witnesses and victims; in addition to serving the interests of prosecutorial expediency and administrative efficiency. Yet many of the offences covered by the new procedure would not normally be committed against an individually identifiable victim. Regular examples include drug-trafficking, money-laundering, possession offences, some offences against the State etc. Moreover, the provisions extend to trials before the Special Criminal Court which does not sit with a jury. The failure to confine the preliminary hearing procedure to serious offences against the person (and other such victim-oriented offences) in jury trials suggests that the primary objective is a recalibration of the whole trial on indictment procedure to benefit prosecutorial expediency and administrative efficiency.
Notably absent from the factors that the court is expressly required to take into account when deciding on the holding, or the timing, of a preliminary trial procedure are the interests of the accused. This is despite the fact that an accused can be significantly prejudiced by the effects of moving the determination of challenges to aspects of the prosecution case from the main trial proceedings to a preliminary trial hearing that is detached in both timing and materiality from that main hearing.
Subject matter of hearings
Some idea of the significance of the ground-breaking change can be deduced from the range and substance of matters that the court can address and determine in the preliminary trial hearing. The Bill stipulates that, in the interests of justice and to ensure the just, expeditious and efficient conduct of the trial, the court can assess and make such orders or rulings as it considers appropriate in the preliminary trial hearing in respect of: the availability of witnesses for the trial; whether any particular practical measures or technological equipment may be required for the conduct of the trial; the extent to which the trial is ready to proceed (including any outstanding issues relating to disclosure); and the likely length of the trial.
This seemingly innocuous list is followed by a much longer list of examples that can be dealt with at a preliminary hearing. These have much deeper ramifications for the defence and the whole balance of the traditional criminal trial. They include the making of orders for separate trials of co-accused, separating the indictment, postponement of a trial and the selection of additional jurors. Arguably, the most significant concern rulings on the admissibility of evidence and orders on matters such as: restrictions on evidence of a complainant’s sexual history in a rape trial; the giving of evidence through a live television link, through an intermediary, from behind a screen or on condition of anonymity in certain circumstances; restrictions on cross-examination in certain circumstances; proof by written statement or formal admission; and the calling of expert evidence by the defence. Separately, with respect to the last listed example, the Bill stipulates that the defence is required to give the prosecution notice of its intention to adduce expert evidence at least 28 days before the scheduled date of a preliminary hearing.
Impact on the accused
Currently, these matters will normally be dealt with as they arise in the course of the criminal trial proper. Superficially, it might appear that separating them out from the main trial for determination in a pre-trial hearing presided over by a judge sitting alone is simply an administrative improvement that can have little adverse impact on the accused. In practice, however, this move can have the effect of rushing the accused into taking premature decisions on his defence strategy that subsequently prove damaging to his own interests. Instead of responding to all aspects of the prosecution case in the round as they are presented at the trial, he will be forced into challenging individual legal and procedural weaknesses in advance and in isolation from other aspects of that case.
Normally, the accused would mount such challenges in the course of the main trial where he would be more fully equipped with knowledge of the strengths and weaknesses of the whole prosecution case as it unfolds at the trial. By picking off select issues in advance, and securing determinations on them before the accused is alerted to material that would otherwise have strengthened or shaped his approach to them, the prosecution can reap a significant tactical advantage which it does not enjoy under the current procedure. The prosecution can also use the procedure to help protect against key aspects of its case from unravelling in the interim between a preliminary trial hearing and the trial itself.
In most instances where the prosecution or the accused intends to seek an order or ruling on a matter that comes within the scope of these provisions, it must inform the court at the first available opportunity. This is designed to enable the court to decide whether or not to direct the holding of a preliminary trial hearing. It also means, however, that the prosecution will be alerted in advance to the defence strategy with respect to any key legal, procedural or evidential matters that might arise in the case. The elements of surprise and strategic flexibility will be lost.
It is also worth noting that nothing in these provisions will operate to deprive the trial court of the power to deal with matters or make an order in the main trial where they could otherwise have been determined in a preliminary trial hearing.
Powers of court
The court holding a preliminary trial hearing has all the powers it would have in conducting the main trial itself. This includes the power to receive evidence. Moreover, the court can make such orders with regard to the holding of a preliminary trial hearing as it considers appropriate and in accordance with the interests of justice. Significantly, this can include orders on the making of submissions in writing. While it is by no means certain, this would appear to open up the possibility of key legal, procedural or evidential disputes in a trial being determined on paper rather than through the current emphasis on oral argument in open court.
In principle, a preliminary trial hearing should be heard in open court. However, where the court is satisfied that the nature or circumstances of the case or the interests of justice are such that it is desirable to do so, it may exclude the public (or a section of the public or any particular persons) from the court during the hearing. There are also severe restrictions on the publishing or broadcasting of information about a preliminary trial hearing.
Court orders and appeals
An order made at a preliminary trial hearing has essentially the same status as if it was made in the course of the main trial itself. It is binding on the parties and, subject to one notable exception, is not subject to the possibility of an appeal before the conclusion of the main trial itself. The notable exception confers a distinct advantage on the prosecution. Where the court makes an order excluding evidence from the trial, the prosecution can appeal that order on a question of law. It can do so where the court erroneously excluded evidence which is reliable, of significant probative value and is such that, when taken together with relevant evidence proposed to be adduced at the trial, a jury (or Special Criminal Court) might reasonably be satisfied beyond a reasonable doubt of the accused’s guilt.
The wording of this provision leaves some ambiguity about how the appeal facility can come into play and on its scope. On the latter aspect, it may be that the provision is aimed at a situation where the court’s order is based on a misinterpretation of the law which has resulted in reliable, relevant and cogent evidence of guilt being excluded. What is indisputable is that the prosecution is being favoured with the opportunity to take an immediate appeal against an order from a preliminary trial hearing, while the defence is not afforded an equivalent facility. The disparity is highly significant. If the defence succeeded in having key evidence excluded either at the preliminary hearing or on an immediate appeal against an order from the hearing, it will likely have the effect of derailing the criminal trial entirely. They, however, in contrast to the prosecution, are denied the early appeal facility.
A peculiar twist to these appeal provisions is that the court hearing the appeal (the Supreme Court or Court of Appeal, as the case may be) can assign counsel to argue in support of the exclusion of the evidence. It can do this not only where the accused does not wish to be represented or heard on the appeal, but also where the accused does exercise his right to be represented or heard in the matter. The appeal court can do that where it considers it desirable in the public interest to do so.
It is submitted that this is a most unusual and disturbing development. In effect, it amounts to the State stepping into the shoes of the accused and overriding his strategy for the conduct of the appeal by imposing its own strategy. The result is that one arm of the State will contest the appeal against another arm of the State (the prosecution), with the accused, who has most to lose in the matter, seemingly relegated to the status of a spectator. The reason for the insertion of such an alien procedure into the Irish criminal trial has nothing to do with protecting or benefiting the accused. It would appear to be motivated by a desire to give full effect to the partial appeal facility with which the prosecution has been privileged.
Separately, it is worth noting that there is provision for the court to vary or discharge an order from a preliminary trial hearing where it is satisfied that it is in the interests of justice to do so. It can do that on its own motion. It can also do it on the application of the prosecution or the accused, but only where there has been a material change in circumstances with respect to the order in question. That, of course, falls well short of a right of appeal against the order.
Some other matters
It is not necessary for the same judge who presided over the preliminary hearing (or hearings) to preside over the subsequent trial. However, where the preliminary hearing results in an order on the admissibility of evidence, the same judge should, where possible, preside over the subsequent trial.
Where an accused has been granted a legal aid certificate for the trial of an offence, that certificate shall extend to any preliminary trial hearing in respect of that offence. There is also provision for legal aid in respect of a prosecution appeal (as outlined above).
It is easy to see the superficial attractions of a formal case management approach to the conduct of criminal trials. To the outside observer, some Irish criminal trials suffer from unnecessary delays and disruption which can prove burdensome on victims, juries, witnesses and State resources. They can also result in cases collapsing and justice being denied to the detriment of the State and victims. Frequently, the finger of blame is pointed at the defence for springing last minute surprises or for changes of strategy which can result in severe disruption to court schedules and the waste of time and resources for all concerned.
Great care should be taken, however, in responding to these perceived weaknesses by the adoption of a formal case management approach. Imposing a sanitised order on the conduct of a criminal trial as if it was an administrative process carries a high risk of upsetting the less visible, but essential, checks and balances that have been stitched into it over decades and centuries.
The Irish criminal process has always had the criminal trial at its core. It has been painstakingly built around the fundamental precept that a person should not be exposed to punishment by the State unless he has been convicted in open court in accordance with law by an impartial jury who have heard all the relevant evidence being presented by first-hand witnesses who have been examined and cross-examined in person in accordance with familiar laws of evidence and procedure. The presumption of innocence that underpins this criminal process requires freedom and flexibility for the defence to devise and develop their strategy in response to the prosecution case as it unfolds.
This focus on the centrality of the oral trial, together with its individual components, has also allowed us to leave the gathering of evidence in the closed hands of the police, largely unsupervised by any higher executive or judicial authority. Critically, the risk that the police will abuse that freedom by gathering ‘evidence’ improperly to the detriment of the suspect and the public at large is balanced by the reality that the evidence will be closely and openly scrutinised in a trial in open court. A price to be paid for that critical safeguard is that every trial will not always run smoothly and efficiently as if it was a refined administrative process. The defence will need the flexibility and opportunity to respond to the evidence as it unfolds in the trial.
The Criminal Procedure Bill threatens to remodel the traditional architecture of the Irish criminal process. It goes much further than promoting reasonable efficiencies and protecting legitimate interests of victims, witnesses and jury members. By diverting much of the business of the criminal trial into pre-trial hearings where it will be carved up into component parts and dealt with individually in isolation from the whole, the Bill goes a long way towards dismantling the centrality of the oral criminal trial in the Irish criminal process. It also severely limits the efficacy of defence challenges against legal, procedural or evidential weaknesses in the prosecution case. Having to mount such challenges in advance and without the benefits of waiting to see how the prosecution case unfolds at the trial puts them at a significant disadvantage to the prosecution.
This move towards preliminary trial hearings, at the expense of the centrality of the oral criminal trial, reflects the model prevalent in the criminal procedure of many European continental jurisdictions. Critically, however, the latter include judicial supervision and scrutiny of the police evidence gathering process; a feature that is notably missing in the ‘reforms’ contained in the Criminal Procedure Bill. Arguably, the net effect is that Ireland is moving towards a continental style criminal trial procedure without the associated controls on the police investigation. The result, it is submitted, will be a criminal process heavily weighted in favour of the prosecution and against the defence.
For almost the past 25 years, the Irish State has been pursuing a persistent and intensive strategy of remodelling Irish criminal process to favour the interests of the victim, the prosecution and the State to the detriment of the suspect and the accused. The Criminal Procedure Bill represents another significant step in that vein. Collectively these measures threaten to undermine balance and fairness in the criminal process. It may take some time, of course, before the adverse effects of that are fully appreciated. Almost by definition, it will be too late.