knowledge 2 June 2021 |

Disputes: Criminal Procedure Act 2021 - Better Case Management in White Collar Crime?

Preliminary trial hearings

The introduction of preliminary trial hearings is a welcome step in the streamlining of criminal procedure in Ireland. Currently, issues around the admissibility of evidence, for example, are generally dealt with during a trial in the absence of the jury. This can greatly disrupt the trial and lead to delay. The introduction of preliminary hearings for trials on indictment will now allow these matters to be dealt with conclusively before a trial commences.   The preliminary trial hearing will effectively be treated as part of the trial, at which purely administrative case management issues (length of trial; technology use; availability of witnesses, etc.) and applications requiring legal rulings which need not go before the jury can be cleared in advance of trial (though certain pre-trial orders can be varied or discharged at trial if there has been a material change of circumstances).

Over the years, there have been numerous calls for the introduction of preliminary hearings. One area singled out for particular focus is that of white collar crime. Here trials can be long and complex with the court possibly having to decide on issues of admissibility of large amounts of technical and documentary evidence. A number of long-running high profile prosecutions following the financial crisis have highlighted the particular difficulties here. Recognising this issue, the recent Hamilton report called for the introduction of pre-trial hearings to enable the efficient and timely progress of criminal trials in complex economic crime and corruption cases.¹

The new Act sets out how the provisions will operate and they are likely to be supplemented by court rules.  In certain circumstances, the court will have a discretion whether to order a preliminary trial hearing though where the offence is a “relevant offence”, a preliminary trial hearing is mandatory where requested.  A “relevant offence” is an offence of a specific gravity or an offence specified by the Minister as such by reference to the nature of the offence or specific complexities in the prosecution of the offence.

In making a decision around the timing of a preliminary trial hearing, the court will have regard to the interests of justice and in particular will seek to:

• facilitate the expeditious and efficient conduct of the proceedings;

• cause 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.

Provision of information to juries

The new Act also deals with the provision of information to juries at trial to assist them in their deliberations. Currently, certain pieces of Irish legislation include specific provisions on the giving of information to juries at trial to assist them. One example is section 57 of the Criminal Justice (Theft and Fraud Offences) Act 2001. This section allows the trial judge to order that copies of documents, charts, transcripts etc. used in the trial as well as summaries of evidence relating to complex transactions be provided to the jury. The section implicitly recognises that fraud trials can be very complex. There are similar provisions in certain other areas of white collar crime.²

The Law Reform Commission has previously recommended that these type of provisions be extended to all trials on indictment. The new Act now does so and will capture the prosecution of other serious white collar offences where the parent legislation does not currently contain similar provisions.

Comment

The introduction of provisions on preliminary trial hearings and the potential that this brings to reduce delay and improve efficiency will be welcomed. This is particularly true where the pandemic has led to court closures and postponements.

While there are some concerns around the scope of the jury information provisions which, for example, extend to providing transcripts of the opening speeches of counsel (which are not evidence), the widening of the application of this procedure to indictable crime more generally will undoubtedly assist jurors in complex cases.

In so far as these changes impact on the prosecution of white collar crime, they are just one step in a series of promised reforms to strengthen the State’s capacity to prevent and prosecute this type of wrongdoing.³  Review of how effectively preliminary trial hearings operate in practice, especially in complex white collar cases, will enable us quickly to determine whether they are among the effective innovations promised.