Efforts underway to address lengthy delays in criminal trials

Lengthy delays in criminal cases continue to be a problem for the legal system despite a huge drop in the amount of cases coming before the courts.

Take the following case: a 75-year-old man who was accused of abusing his two daughters in the late 1960s and early 1970s. The case first appeared in the lists of the Central Criminal Court in June 2011. It will not be finalised until February 2015 at the very earliest.

It is a slightly extreme example, but in most serious cases, well over a year elapses between the first court date and finalisation.

The consequences of such delays are obvious. Complainants face an agonising wait for closure while defendants, who are innocent until proven guilty, may have to spend that time languishing in a prison cell.

Cases before the Circuit Criminal Court, which deals with the vast majority of non-minor offending, have fallen by 35 per cent over the past three years. So why do such unacceptable delays continue?

The main reason is a lack of judges. Despite recent recruitments, the number of judges per head of population in Ireland remains one of the lowest in the EU.

Complex cases
Added to this is the rise in cases that tend to take up a large amount of court time.

The average criminal trial before the circuit courts takes about three days. However, cases involving white-collar crime or tiger kidnapping tend to be complex and multilayered, the recent Anglo Irish Bank trial being a prime example.

Such trials can last well over a month, meaning that a judge is taken out of circulation for the entirety of that period.

Another big reason for delays is the defendants. The accused will often drag their heels as much as possible in the knowledge that they are destined to be convicted and jailed.

However, there are often more understandable reasons an accused might delay their case. It is an unavoidable fact that many before the courts suffer from mental illness or addiction. Their condition means they are often unable to give clear instructions to their counsel.

Often defendants who are pleading guilty will seek to adjourn a sentence date so they can become drug-free in the hope this will result in a reduced punishment.

Disclosure
Some of the blame also lies with inefficient disclosure procedures. A common refrain during hearings is that the defence has not received all the evidence or has been served with last-minute additional evidence which they require time to analyse.

One of the most frustrating causes of adjournments and delays is legal argument, which can take up days of a trial before leading to its collapse and rescheduling.

Efforts are underway to address at least some of these issues. Earlier this month Minister for Justice Alan Shatter announced a new Criminal Procedure Bill which will introduce statutory pre-trial hearings.

It is envisaged these hearings will deal will all contentious legal matters, such as the admissibility of evidence, before a jury is empanelled. This will allow the trial itself to proceed with little or no interruption.

It is hoped the hearings will also show when there is not enough evidence for a case to proceed, saving the need for parties to endure the stress of a trial that is destined to collapse.

Such procedures have been suggested for many years. In 2003 Supreme Court Justice Niall Fennelly recommended them in a report on the workings of the courts.

Last year pilot pre-trial hearings were introduced in the Dublin, Midland and South East Circuit Courts. However, the Courts Service and Department of Justice could not provide any data showing these pilot schemes have improved the situation.

Experienced criminal barrister Fergal Foley called the Dublin scheme a “toothless version” of what was recommended by Justice Fennelly.

Instead of issues such as admissibility of evidence being decided, the hearings are merely a checklist of provisions needed, such as video link facilities or interpreters.

'Waste of time'
"I would welcome the idea behind the legislation but the current pilot scheme is just a boring load of twoddle," Mr Foley said. "It's a complete waste of time."

Another aim of the pilot scheme is to give defendants one last chance to plead guilty before the trial process begins. There is also little evidence this is happening.

According to the barrister, the incentive isn’t there for defendants to plead at pre-trials. “The pre-trial is meant to be the last chance saloon to plead guilty and get yourself a discount,” Mr Foley said.

“However if someone pleads guilty on the morning of the trial they get the same benefit that they would have got on the morning of the hearing,” he said.

Extra layer of work
Criminal defence solicitor Cahir O'Higgins also hasn't seen much benefit from the new hearings. "It's just an extra layer of work," he said. "I wouldn't see it as something that has brought around any new efficiencies that weren't there with sensible case management."

The pre-trials proposed by the upcoming legislation seem to be more wide-ranging. According to Mr Foley, they have the potential to save huge amounts of court time and public money.

“These proposed hearings could be dealt with quite quickly and at very low cost,” he said. “If the prosecution succeeds there’s a hugely increased chance of getting a plea from the accused and thereby saving the need for a trial. If a prosecution fails, and the vital evidence is not allowed, then the trial doesn’t go ahead and public money is saved.”

Victims' groups have long been calling for pre-trial proceedings. Caroline Counihan of Rape Crisis Network Ireland says pre-trials could help reduce the "retraumatisation" that victims might experience during the court process.

Ms Counihan trained as a barrister in the UK and was shocked on her return to Ireland to learn there was no pre-trial system here.“People have to wait an awfully long time for a trial and that has a hugely negative effect on attrition rates,” she said. “Victims are waiting for what may be years for something to come to trial

“With these last minute delays you have the poor victim caught in the middle of this with no control of it. Their life is on hold for two years or longer.”