Some concern has been expressed about the level of this reliance on guilty pleas to secure convictions, given that some defendants may be vulnerable because of youth or disability.
There is also a lack of empirical research in Ireland into why guilty pleas are chosen.
“What are we trying to achieve in a criminal trial to begin with?” he asked.
He quoted philosopher Jeremy Bentham’s view that the sole purpose of any legal proceedings should be to discover the truth of what happened, with accuracy of outcome as the sole objective of the process.
Quest for truth
In Ireland, as in many other common-law jurisdictions, the discovery of truth matters, but it is not all that matters.
Procedural fairness and respect for human rights area are also important and sometimes the quest for truth must yield to these other values.
This approach is justified since the trial process must have moral legitimacy, Dr O’Malley said, and while the aim should be to discover the truth, this must be done in a fair manner.
The quest for truth must be tempered with procedural fairness and evidence may be excluded because of the manner in which it was obtained.
The criminal justice system must be trusted by the public, he said. People are more likely to obey the law if they feel the justice system is fair.
A criminal trial deals with an event that took place in the past and the court attempts to reconstruct the physical and mental elements of that event.
Proof that leads to truth
O’Malley commented that it has been said that civil law systems are more concerned with truth and common law systems more concerned with finding proof that leads to the truth.
However it is more accurate to say that both systems are concerned with the truth, but we believe that it is best achieved by insisting rigorously on proof.
Oral evidence, and cross-examination in particular, is a powerful legal means of discovering the truth.
Founded on scepticism
Nobody who appears as a witness has a right to be automatically believed, but neither do they deserve to be disbelieved.
The trial can be said to be founded on scepticism which is something very different from cynicism. The system is sceptical in the sense that it does not accept claims or propositions until they have been adequately proved.
A trial can offer legal justice but it won’t heal all wounds, so can’t deliver perfect justice. Therefore the expectations of a court can deliver need to be tempered, Dr O’Malley said.
Due course of law
The key provision of the Irish Constitution for this purpose is Article 38.1 which provides that no person shall be tried on any criminal charge save in due course of law.
The expression “due course of law” has been judicially interpreted to include many more specific rights including the right to a procedurally fair trial and the right to trial with reasonable expedition.
Where a conflict arises between the accused person’s right to a fair trial and other important rights and interests, such as the community’s right to have alleged offences properly investigated and prosecuted, the individual’s right to a fair trial must prevail.
The big question is whether the rights of both victims and offenders can be harmonised, Mr O’Malley said.
Right to a fair trial
“It is possible, but you will never get the perfect balance,” he observed.
The right to fair trial is paramount but within that, the rights of victims can be respected.
The state has a duty to investigate allegations of wrongdoing and must take a case if there is sufficient evidence to do so.
However, victims must be treated with respect and consideration, without compromising the due process rights of the defendant.
Everyone who appears before a court should give truthful evidence without fear or favour.
Among the rights protected by the Constitution is the right to bodily integrity and the Supreme Court has confirmed that rape and other sexual assaults (and indeed all assaults) amount to a violation of that constitutionally protected right.
He referred to an important judgment given by Mr Justice Brian Walsh in the Court of Criminal Appeal in 1988 where it was held that the protection offered to the family as a unit in Article 41 of the Constitution did not detract from the protection offered to individual members of the family, and the rights of those individuals, under Article 40.
In that case, it was held that in a case of familial child sexual abuse, one spouse was a competent witness for the prosecution against the other.
This paved the way for the Criminal Evidence Act 1992.
It also had a broader significance in that it underlined how the rights of persons to be free of victimisation was constitutionally protected.
He cautioned about the notion of “rebalancing” the criminal justice system, as this was often just a euphemism for diminishing the rights of the defence.
He also remarked that in recent times, there is a tendency, when introducing measures to favour the State in criminal proceedings, to present these as being in the interests of victims.
This is intended to make them more palatable. Rather than “balancing” rights, the emphasis should be on trying to harmonise or co-ordinate the rights of defendants and victims.
High conviction rates
In response to a question about low prosecution rates, he said that Ireland has a high conviction rate of 94% where prosecution actually occurs.
The DPP doesn’t take cases where there is insufficiency of evidence, he said, and there is a system in place within the DPP’s office to explain to affected persons why a prosecution was not taken.
The problem may lie earlier in the overall process, in a reluctance to report, but if the trial process is fair this will help confidence in the process.