Courts are no longer reluctant to find against the Garda on matters of fact, writes Mr Justice Paul Carney.
The police in Ireland are at present subject to several investigations in relation to serious corruption and malpractice, particularly but not exclusively related to one part of the country. I am stating this simply to balance the rosy picture I will be presenting of the state of affairs in my court as I see them at the present time.
I have been engaged substantially whole-time for 40 years in the trial on indictment, a quarter of a century as a barrister appearing alternatively for the prosecution and defence and for the last 15 as the LTJ, namely the learned trial judge.
I propose to reflect on some aspects of the trial on indictment and how it has evolved during my time. In doing so I am at the great disadvantage that by 4.10 each afternoon I have completely forgotten what has happened in my court that day and even who the counsel were. This is a necessary defence mechanism to have in a court where jurisdiction is largely murder and rape, and if I did not have this facility my mind would constantly be cluttered with images of semen and body parts.
The criminal process would generally start with an arrest for the purpose of interrogation, the taking of forensic samples, fingerprints and photographs.
The period of detention permitted depends on the nature of the crime ranging from 12 hours in the ordinary case, 72 hours in the case of certain terrorist-type offences involving firearms, explosives or criminal damage, to seven days for certain drugs offences.
A tabloid newspaper is currently suggesting that domestic killers are choosing their weapon or method of killing to expose themselves to the minimum period of interrogation. This would seem to me to be the most fanciful of speculation.
In the early part of my career there was hardly a case in which there was not an allegation of ill-treatment during the interrogation phase. A voir dire - a trial within a trial - was a routine step in the case to challenge the admissibility of statements.
Judges then were slow to find against the police on a disputed issue of fact and defence victories tended to be on points such as non-compliance with the judge's rules.
Nowadays reluctance to find against the police on disputed fact has almost disappeared. The routine allegation of physical mistreatment of prisoners has also almost disappeared. Such allegations are hardly to be heard anymore. It would be said that this is the fruit of interviews being video recorded, but for my part I am satisfied that the change had come about before recording equipment was available beyond four pilot stations which the guards could, and did, avoid.
It seems to me that for whatever reason a culture change has come about that matters would be done by the book. Conviction rates have not suffered as a result.
Video recording of interviews is now available in all cases. They do not seem to inhibit frank confessions or admissions.
Their availability, effectiveness and manifest fairness have led me to conclude that I should no longer even entertain proffered confessions alleged to have been made in the police car on the way to the station or on the steps from the cells to the docks, which are invariably repudiated on appearance before a judge.
Video recording of interviews was provided for in the Criminal Justice Act, 1984, which also provided for the reading of statements of evidence and the making of formal admissions by both the prosecution and defence.
In respect of all three of these reforms it took a full 20 years for them to become widely operative as they are now. It is easy to understand the guards' reluctance to face the television cameras, but why were counsel reluctant to embrace reform in their areas of the case? Perhaps it took a new generation of barristers to embrace a new culture.
A matter on which I entertain strong feelings is the frequency with which juries are discharged. As the judge in charge of the list I do not like to see cases which I have assigned come back to me. I will only discharge a jury in the most exceptional circumstances.
Juries are trusted by the Constitution. They are repeatedly described by the Supreme Court as robust. The discrimination of their verdicts is constantly marvelled at. I suppose the most frequent reason for discharge is that someone has blurted out that the accused is in some form of custody.
So what? Who is being fooled for a moment by the television pictures of the accused being towered over by two burly prison warders with the handcuffs barely below the radar?
Juries used to be sent away for up to weeks on end, while questions of admissibility were challenged on a voir dire. This in my experience is largely a thing of the past.
It is now quite routine for defence counsel to indicate at the outset that it is accepted that there was no ill-treatment of the accused during detention, that all the provisions of the treatment of persons in custody regulations were complied with, that scenes were preserved and that exhibits were properly transmitted.
Voir dires of course continue but they tend now to relate to fairly limited issues and to be dealt with in fairly short encompass.
The applications for a direction that there is no case to answer now seem to be relatively few and far between. The old practice of putting up any old cod point that can be dreamed up has been sensibly abandoned.
Juries are sworn on a Monday morning which is the day for which the panel is summoned.
A practice has been developed under which once a jury is sworn, counsel asks that the substantive trial not begin until the following day, the rest of the Monday being utilised by counsel to narrow the issues, decide what witnesses can be dispensed with and whose evidence can be read.
This has led to a speeding up of cases and a reduction in voir dires with juries being left in their room or sent home. The court has increasingly been sitting in country venues. Being away from the pressure cooker atmosphere of the Mother Ship, as I call the Four Courts when away from it, has also significantly reduced the length of trials.
Finally, I should say a word about the women. When I came to the Bar there were quite literally a handful of women in practice. They did conveyancing. Family law did not exist in those days.
They would not have been offered nor would they have accepted a criminal brief.
Women are now of course numerically in the process of overtaking men in both branches of the legal profession.
They are playing their full part in the area of crime. There is now a significant number of women in full-time practice as Senior Counsel in the criminal area.
To say that female prosecutors manifest a Mountie-like determination to get their man would be to accuse them of breaching their code of conduct. It can, however, be said that they are quite capable of being street fighters when necessary.
The area in which I most appreciate female silks is the closing speech. They will tell the jury these are my best points, make them and sit down.
The male of the species, both for the prosecution and the defence, feel compelled to give the jury in tedious and repetitious detail all the directions of law which I am required by law to give them myself. The jury only listens to this once. I hear it in every case. What irks me most is that counsel, having heard my charges before, are now stealing my best lines.
These have been random reflections on a 40-year involvement in the trial on indictment.
My conclusion is that with a highly professional and competent Bar and solicitors' profession, trials have been streamlined over the years and the public is being well served.
Oratory has all but disappeared from the system, particularly with the retirement of Séamus Sorahan and the more po-faced and precious approach to everything these times, but it remains a joy to hear the last practitioner of oratory at the criminal bar, Brendan Nix SC.
This paper was delivered recently at theUniversity of Dar es Salaam by Mr Justice Paul Carney, presiding judge, Central Criminal Court, adjunct professor of law, UCC