I move amendment No. 29:
In page 28, before section 31, to insert the following new section:
31.—The Courts of Justice Act 1924 is amended—
(a) in section 29—
(i) by the insertion of the following subsections after subsection (2):
"(2A) Subject to subsection (2B), a person who has appealed his or her conviction to the Court of Criminal Appeal and who has been granted a re-trial by that Court, may, without prejudice to the determination by the Court to grant a re-trial, appeal to the Supreme Court in respect of a matter raised by him or her in the Court of Criminal Appeal but upon which that Court did not make a determination.
(2B) A person may only appeal to the Supreme Court where—
(a) the matter which is the subject of the appeal is one that is relevant to the conduct of his or her defence in the re-trial, and
(b) the Court of Criminal Appeal or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions, certifies that the matter involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.”,
and
(ii) by the substitution, in subsection (5A) of "(2), (2A), (2B) or (3)" for "(2) or (3)",
(b) by the substitution of the following section for section 31:
31.—A person convicted on indictment before the Central Criminal Court may appeal under this Act to the Court of Criminal Appeal.",
(c) by the substitution of the following section for section 32:
32.—The Court of Criminal Appeal shall have power to make any order it may think fit, including an order admitting the appellant to bail, pending the determination of his appeal.",
and
(d) in section 33, by the substitution of the following subsection for subsection (1):
"(1) The appeal shall be heard and determined by the Court of Criminal Appeal (‘the court') on—
(a) a record of the proceedings at the trial and on a transcript thereof verified by the judge before whom the case was tried, and
(b) where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers such record or transcript, as the case may be, contains,
with power to the court to hear new or additional evidence, and to refer any matter for report by the said judge.".".
This is a technical amendment, which inserts a new section 31 into the Bill. The existing section 31 amends section 31 of the Courts of Justice Act 1924 in order to abolish the need for a person convicted in the Central Criminal Court to obtain a certificate from the trial judge or the leave of the Court of Criminal Appeal before he or she can appeal his or her conviction or sentence. This amendment is restated in paragraph (b) of amendment No. 29. Paragraphs (c) and (d) of the latter are new and amend sections 32 and 33 of the 1924 Act in order to remove references to certification and leave to appeal. These are consequential on the amendment to section 31 of the that Act but do not alter the substance of the relevant sections, which relate to the jurisdiction of the Court of Criminal Appeal to grant bail pending the determination of an appeal and the basis upon which that appeal is to be heard.
Paragraph (d) of amendment No. 29 restates, without alteration, the substance of section 33. It also amends the Courts of Justice Act of 1924 in respect of the procedures for the use of transcripts in appeal hearings. I am of the view that it is sensible to include all amendments to the 1924 Act in one section. Acceptance of amendment No. 29 will result in the deletion of the current section 31.
Amendment No. 1 to amendment No. 29 in the name of Deputy Rabbitte seeks to insert the words "or that that Court determined adversely to him or her" in subsection (2A). The effect of this would be that a convicted person whose appeal to the Court of Criminal Appeal was successful on some but not all of the grounds raised and who was granted a retrial would be able to appeal the grounds decided against him or her in the Supreme Court. Amendment No. 1 to amendment No. 29 seeks to expand my proposal, which aims to deal with a situation where a person appeals on a number of grounds to the Court of Criminal Appeal and where that court adjudicates on some but not all of those points. Amendment No. 29 will allow a person who has been granted a retrial by the Court of Criminal Appeal to appeal a point of law raised by him or her before that court, but not determined by it, to the Supreme Court. This appeal right is without prejudice to the decision of the Court of Criminal Appeal to grant a retrial. It applies only where the point of law at issue is relevant to the conduct of the person's defence in the trial.
Amendment No. 29 arises on foot of a judgment handed down by the Supreme Court in the DPP v. Campbell in 2004 and creates a limited exception to the rule that no further appeal lies against an appeal which results in the quashing of an appeal and the granting of a retrial, that is to say a successful appeal. I am not convinced that the expansion to this exception is necessary or appropriate. It is important to distinguish between amendment No. 29 and the amendment tabled to it by Deputy Rabbitte in that the non-adjudication of a point by the Court of Criminal Appeal might leave a person in an extremely uncertain position when mounting his or her defence at a retrial.
The possibility of a further appeal is justified if the applicant can satisfy the court that an adjudication is necessary for the conduct of his or her defence. This is not the case where the court has made a determination, albeit that it is adverse to the person. It must also be remembered that in the event that a person is convicted following the retrial, he or she will have a full right of appeal to the Court of Criminal Appeal and the possibility of an onward appeal to the Supreme Court. It is common for the appeal court to find in favour of the appellant on some grounds and against on others. I am concerned with regard to appeals being allowed in these cases and the issue must be given further consideration. If Deputy Rabbitte withdraws the amendment to the amendment, I will re-examine the position between now and Report Stage.