I move amendment No. 1:
In page 3, subsection (2), line 25, after "offence" where it secondly occurs, to insert "alleged to have been".
I thank the Minister for his attention to this matter. I listened carefully to the debate in the Dáil this afternoon. My concerns in relation to this matter stand and I wish to proceed with the amendment. The Minister said that the amendment as drafted could be taken to read "any such offence or any other alleged offence". The proposal here is to insert the term "alleged to have been" after the word "offence" and before the word "committed". That may sound pedantic but there is a genuine purpose for it. I fear that, without this amendment, a similar challenge to that made to the Non-Fatal Offences Against the Person Act could successfully be made in the courts.
Through this Bill we are attempting to outline the conditions under which proceedings can be issued regarding common law offences where such offences have been changed or abolished by statute law. This amendment relates to the conditions under which proceedings can be issued. It is our intention, in putting this legislation through the Oireachtas, to ensure that where such an offence was committed before a change in the law occurred it should be possible to institute, continue with or enforce proceedings under common law. We are all agreed on that. However, I am concerned that section 1, as worded, would seem to require proof that the offence was committed prior to the date of the abolition of the common law offences and that such proof would be required before proceedings could be instituted in the first instance. It would not require somebody very learned in law to argue to the court in a defence case that as it was not possible to establish that the offence took place prior to the issuing of proceedings, proceedings could not be issued. We should seek to ensure that we are not back here in six months following another court case trying to tidy up this matter. I accept that the Minister has received advice from the draftsman but I believe the advice is based on a construction of this amendment as referring to an "alleged offence" rather than an "offence alleged to have been committed".
It is a difficulty that, in order to successfully take proceedings, it would be required that the date of commission be established before the proceedings are instituted in the first place. For that reason, I ask the Minister to seriously consider accepting my amendment.
