Criminal Procedure Bill 2009: Report and Final Stages.

I welcome the Minister to the House. Before we commence Report Stage, I remind Senators that each Senator may speak only once, except the proposer of an amendment who may reply to the discussion on the amendment. In addition each amendment on Report Stage must be seconded.

Amendments Nos. 1 and 6 are cognate and may be discussed together.

Government amendment No. 1
In page 6, to delete lines 9 to 13 and substitute the following:
""broadcast" has the meaning it has in section 2 of the Broadcasting Act 2009;".

As I indicated on Committee Stage, I am amending the references in the Bill to the word "broadcast" to ensure the term has the same meaning as that used in the Broadcasting Act 2009. According to that Act the term is to be interpreted as follows:

"broadcast" means the transmission, relaying or distribution by electronic communications network of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not;

This is a comprehensive definition that includes electronic transmissions. I believe Senators will agree we should seek uniformity and consistency in the meaning of these issues and that definitions should reflect advances in technology. The term arises in this Bill in two circumstances. The first instance relates to the victim impact statement, which may contain material that is not appropriate to such a statement. The Bill enables the court to make an order restricting publication or broadcast of the offending material. The second instance relates to restrictions the court may impose on the publication or broadcasting of details relating to the granting of retrial orders. It is part of the safeguards surrounding those orders and is designed to prevent any prejudice to the subject of the order especially in the course of a retrial.

Amendment agreed to.

I move amendment No. 2:

In page 6, line 36, after "person," to insert the following:

"or any offence under the Non-Fatal Offences Against the Person Act 1997".

We had a full debate on the amendment on Committee Stage. The Minister might recall — certainly my notes indicate — that he accepted in principle the merit of the amendment, which proposes to extend the type of offence to which the victim impact statement procedure would apply beyond those offences involving violence or threat of violence to cover other offences within the Non-Fatal Offences Against the Person Act. I believe the Minister accepted that offences involving the infliction of, for example, emotional harm or psychological harm on victims could be covered. I believe I mentioned offences such as the abduction of a child under section 16 of the 1997 Act, which it seems to me probably would not be covered under the current definition.

I believe the Minister accepted in principle that these sorts of offences should be covered by the victim impact procedure and he indicated he would introduce a similar amendment or certainly an amendment to extend the definition of harm in this context. I am disappointed he does not have an amendment under this heading. I did not press the amendment on Committee Stage because I understood he planned on introducing something similar. I do not see why there should be a problem with it because it is very much in keeping with the spirit of the legislation and simply extends the type of offence to which the victim impact procedure could apply.

I second the amendment.

The Senator wishes to ensure that offences that cause emotional distress to the victim are included in section 5(1) in addition to the types of offences already specified. I had hoped to introduce an amendment on Report Stage but I am not ready to do so because we require more time to define in clear terms the type of impact and the scope of the offence that might give rise to such an impact. I propose to introduce an amendment in this respect in the other House and then obviously report that amendment back to this House.

We must have certainty as regards the offences to which this section applies. We can achieve this either on the basis of an objective test or by reference to specific offences. The objective test criterion can be achieved fairly readily in cases where violence in the sense of physical violence is used. However, emotional distress is less amenable to an objective determination. The level of distress will vary greatly from one victim to the next and from one circumstance to the next. Basing an entitlement on a very subjective criterion could lead to a legal argument at sentencing hearing as to whether section 5 applies in a particular case. Such a development would not be in anyone's interest, least of all the victim.

It seems unlikely that we shall be able to find some reasonable objective test that can specify the degree of emotional distress to be endured by a victim before an entitlement to make a statement arises. Therefore, the best approach is to identify certain specific offences where physical violence may not always arise, but which can be said with a high degree of certainty to cause emotional distress. My amendment will probably adopt that type of approach. By way of example, the offence of harassment in section 10 of the 1997 Act would very likely be included, as would other such offences under the Non-Fatal Offences Against the Person Act.

I accept that the Senator's amendment offers the certainty that I believe is required. However, as I outlined on Committee Stage, many of the offences in the 1997 Act already come within the category of offences, including violence or threat of violence, to which section 5 already applies, thus creating duplication and making the amendment unsuitable for acceptance as is. I agree in principle and shall introduce an amendment in the other House.

I am grateful to the Minister for indicating his acceptance of the principle of the amendment and also for his indication that he will introduce an amendment in similar terms in the other House. However, I am disappointed that he could not have had the amendment ready for Report Stage in this House, given that it has been fully debated in this House.

I also believe that my amendment has the benefit both of certainty in terms of the offences it would cover and also of encompassing the issue of psychological or emotional harm. Of course "harm" as defined in the Non-Fatal Offences Against the Person Act 1997, includes non-physical harm. The Minister will be aware of the need to ensure co-ordination across criminal legislation. Inserting a definition based on the Non-Fatal Offences Against the Person Act — in other words encompassing those offences under it — might be the best approach, rather than using this new definition that does not have a straightforward relationship with the 1997 Act. The definition currently provided for that is an offence involving violence or the threat of violence. There is a problem with different definitions of different types of offence and a lack of co-ordination between statutes. I was really trying to co-ordinate with existing legislation and create some certainty. I ask the Minister to consider using my wording in his amendment in the other House. However, I will not press the amendment given what the Minister has said.

I have nothing further to add other than to say that I shall come back to the other House and obviously we shall have an opportunity to discuss it when we come back here.

Amendment, by leave, withdrawn.

Amendments Nos. 3 and 4 are related and may be discussed together by agreement.

Government amendment No. 3:
In page 7, to delete lines 52 and 53 and in page 8, to delete lines 1 to 4 and substitute the following:
"(iv) has died as a result of the offence, a family member of the person may give evidence as to the effect of the offence concerned—
(I) on the person between the commission of the offence and his or her death (where relevant), and
(II) on the family members of the person who has died.".

This amends the provision which sets out the circumstances where the family can speak of the impact on the family in cases where the victim has died as a result of the offence. The amended text takes account of instances where the victim has died either as an immediate result of the offence or where the death occurs at some remove in time from the attack.

The family may, in these cases, speak not only about the impact of the offence on the family but in addition speak of the impact on the deceased in the period between the offence taking place and his or her death. I indicated on Committee Stage that I would respond to concerns expressed on this issue. Amendment No. 3 fully deals with this issue and amendment No. 4 is not now necessary.

I am grateful to the Minister for accepting the principle of amendment No. 4 on Committee Stage and tabling his own amendment. On Committee Stage I raised the issue of the time gap between the injury caused and the death of the victim and that the family would be able to speak about the impact on the relative before his or her death. It may only arise in a small number of cases but it is an important principle.

Amendment agreed to.
Amendment No. 4 not moved.

I move amendment No. 5:

In page 8, between lines 26 and 27, to insert the following:

"(4) Where a person in respect of whom an offence has been committed, or a family member of that person, proposes to give evidence under subsection (3) orally rather than in writing, it shall not be necessary for the court to give any particular direction or warning to that person in respect of his or her evidence.".

This amendment wants to make it clear that there should be no need for a warning to be given by a court to a person giving an impact statement. This has to do with the ruling of Mrs. Justice Fidelma Macken in the Court of Criminal Appeal in the O'Donoghue case in which she suggested the court might warn relatives that they would be in contempt of court if they went outside certain parameters. It should not be necessary for such a warning to be given.

I second the amendment.

On Committee Stage I said I would not accept this amendment in that it already states the law as it is. The question as to whether the courts' responsibility to forewarn or direct a victim who is to make a statement about the scope or content of a statement should be set out in statute can be traced to the controversy several years ago where the mother of a deceased added additional material at the end of her impact statement which was not notified to the prosecution or defence legal representatives or sentencing judge. The additional material attracted enormous media coverage, adverse to the person convicted of the offence concerned.

Subsequently, the Court of Criminal Appeal, as part of an application by the Director of Public Prosecutions for review of the sentence handed down in the case, made several important albeitobiter remarks as to how sentencing judges should approach victim impact statements. The case in question is the Director of Public Prosecutions v. Wayne O’Donoghue 2006. The court expressed a view that the victim impact statement should be submitted to the judge and the legal representatives of the prosecution and defence in advance to ensure it contains nothing untoward. The remarks of the court serve as a useful function in highlighting the dangers associated with the uncontrolled delivery of additional material in the statement. However, it must be emphasised the remarks were obiter dictum and are therefore binding. The case does not, therefore, place any obligation on the sentencing judge to give such a warning.

Section 25(5) deals with this issue but from a different angle. It gives the court discretion to prohibit the publication of all or part of the statement in the interests of justice. Breach of such a prohibition is a criminal offence on the part of the publisher and broadcaster. The mechanism will mitigate the worst effects of any departure but it would be preferable if unfounded allegations against the accused were not aired in the first instance. If the sentencing judge considers a direction or warning is appropriate in a particular case, that option and discretion should continue to be available. I know the Senator is not aiming to rule it out completely but the amendment proposed merely reflects the law as it operates and is, therefore, unnecessary.

This amendment would not rule out a discretionary warning by a judge. It is an indication that it is not necessary for a court to give a warning. It is inappropriate that there should be any sense that victims' families would be singled out in this way.

Amendment put and declared lost.
Government amendment No. 6:
In page 9, to delete lines 37 to 43 and substitute the following:
"‘broadcast' has the meaning it has in section 2 of the Broadcasting Act 2009;".
Amendment agreed to.

I move amendment No. 7:

In page 10, between lines 11 and 12, to insert the following:

"(7) This section is without prejudice to the power of a court to receive evidence regarding the effect of an offence, other than an offence to which this section applies, on the person in respect of whom the offence was committed.".

This amendment seeks to make clear that a court has a general power to receive victim impact evidence, even beyond the specific offences to which the section applies. The Minister indicated he will broaden the type of offence to which the section applies when the Bill is considered in the other House. This may make this amendment less important. However, we felt it was important to cover the offences other than those already specified.

I second the amendment.

Section 5 of the 1993 Act places a mandatory obligation on a judge to take account of victim impact evidence with regard to sexual and violent offences, even where the victim of the family chooses not make an oral statement about the impact of the offence. In response to amendment No. 2, I plan to table an amendment in the other House to deal with the already mentioned categories of offences in which such a mandatory regime is most appropriate. This statutory obligation does not prevent a judge from taking victim impact evidence into account in other cases if he or she considers such evidence would be helpful in determining the appropriate sentence. Judges always have had this discretion and creation of a mandatory obligation in certain categories of cases does not alter that discretion. Creation of a mandatory obligation in certain categories of offences does not alter this. My view remains that this amendment is not necessary.

Amendment put and declared lost.

I move amendment No. 8:

In page 10, line 48, after "competent" to insert "and suitably trained".

This amendment seeks to add an extra layer of qualification to the intermediary provided for in section 6 which inserts a new section 5A into the 1993 Act which allows questions be put to a child or person with a mental disorder through an intermediary who in a court's opinion is competent to act as such. It is appropriate to add the term "suitably trained". The giving of evidence of a child or a person with a mental disorder is a sensitive area. It would be useful for a court to have some indication as to competence. "Suitably trained" adds an extra safeguard.

I complimented the Minister and the Courts Service on Committee Stage on the excellent new facilities in the criminal courts complex. One of those facilities is the new room where children may give evidence through a live television link. The facilities are hugely improved and make the experience of giving evidence much less traumatic. It is equally important that the intermediary is both competent and suitably trained and that a court would be satisfied of that before appointing one.

I second the amendment.

I said I would reflect on this amendment. However, we are not aware of any difficulty. No evidence has been put forward to support the view that there is difficulty in this area. Insisting on a particular level of skill or expertise might only create unforeseen difficulties. Until such time as it has been established that there is a problem, we should allow the present approach to continue.

While I can understand what Senator Bacik suggests, it is unnecessary. It goes without saying that someone would be suitably trained, but it could end up being a point that would be argued about in court unnecessarily.

I thank the Minister for his reply. There is anecdotal evidence of some issues in the past but, clearly, this is not a matter on which there is hard and fast evidence. It is important that the court would have some guidance on what constitutes competence, and yet I have not been specific in the amendment in such a way that would tie the hands of the court either. The wording is appropriate.

Amendment put and declared lost.

I move amendment No. 9:

In page 10, after line 48, to insert the following:

"7.—In an application under this section the court may make such order as it sees fit to facilitate legal representation of a person in respect of whom an offence has been committed or a family member as appropriate, where it is appropriate to do so.".

This amendment proposes to give power to the court to make an order to facilitate legal representation of a person in respect of whom an offence has been committed or a family member where the person in respect of whom the offence has been committed has died, "where it is appropriate to do so.".

This arises out of research into the need for separate legal representation for rape victims, in particular, that I carried out with a team from Trinity College Dublin in 1998. Following that research there was an amendment to the Sex Offenders Act 2001 to allow for legal aid to be granted and a counsel to be appointed where a certain application was made by the defence in a rape trial or a sexual offence trial. Therefore, there is already some limited legal representation provided for, in that respect and, more generally, through the Civil Legal Aid Act 1995, to provide advice to complainants in rape or sexual offence cases.

This amendment seeks to broaden that principle somewhat to allow a court make an order in other cases to facilitate legal representation. It is a matter in which there is increasing interest by victim support groups, particularly, as I stated, arising out of rape trials, but it has got a more general application also. I would ask the Minister to consider incorporating this at this point.

The Minister stated on the last occasion that he felt there might be an impediment to full legal representation, and that is not sought here. It could be, for example, a more limited representation purely to provide advice, as is currently provided for in the Civil Legal Aid Act 1995 in respect of victims of sexual offences.

I second the amendment.

The amendment states "legal representation", not "limited legal representation". If one was to allow this, as it were, one might ask: how long is a piece of string? There would be all sorts of arguments as to what was the intention of the Legislature if we were to include this. Legal representation, in effect, would mean the full gamut.

I am advised that there are constitutional impediments to separate full legal representation for the complainant for the duration of the trial. The weight of legal advice available to the Department is that full separate legal representation would tilt the balance of a trial before a jury to such an extent that it would conflict with Article 38.1, which states that "No person shall be tried on any criminal charge save in due course of law."

The Law Reform Commission supported this view in its report on rape, and Mr. Justice Flood in the Peoplev. MC, Central Criminal Court, 16 June 1995, intimated that making an injured party an independent party in a criminal trial would be doubtful constitutionally. The legal advice available to the Department at the time the Sexual Offences Act 2001 was being prepared was that full separate legal representation in the presence of a jury would, in the words of the Law Reform Commission in its 1988 report on rape, which I mentioned a moment ago, deprive the accused of “the long-standing benefits of a criminal trial conducted in due course of law’”. The circumstances in which complainants are entitled to avail of legal representation are therefore of necessity very narrow.

The Sex Offenders Act 2001 provides an example of where it might arise. The measures introduced by that Act represented a serious effort to allay some of the concerns of complainants in rape trials without breaching the fundamental principle of an accused's right to a fair trial. I do not propose to make any alterations to the present position on legal representation in the criminal process.

Amendment put and declared lost.

I move amendment No. 10:

In page 11, line 11, to delete "Court of Criminal Appeal" and substitute "Supreme Court".

We had a full debate on the merits of the Court of Criminal Appeal versus the Supreme Court. I will not go back over it except to state that my party followed the recommendations of the balance in the criminal law expert review group, which had recommended the Supreme Court be the court for these matters rather than the Court of Criminal Appeal.

The Minister, in his response on the previous amendment, simply read out the same note he read out on Committee Stage, and I know what he will state on this one as well. However, I tabled the amendment again because there is a strong recommendation in that regard from the expert group.

I second the amendment.

I will not repeat what I stated on Committee Stage. In effect, this would set up the Supreme Court for an appeal in a situation for which that court was not designed originally. As I stated on Committee Stage, the issue of trying to filter cases from going into the Supreme Court is absolutely necessary so that what goes to the Supreme Court is only an appeal on a point of law of major interest, and that is all it should be. In effect, the amendment would give the Supreme Court a new jurisdiction which would clog it up even more than it is already.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 11:

In page 11, line 26, after "concerned" to insert the following:

", for example DNA evidence or an admission by the person concerned".

This is the first amendment dealing with Part 3, which in some ways makes the most significant departure from current criminal procedure, which creates the new exceptions to the rule against double jeopardy. I stated already on Committee Stage that we need to ensure that the exceptions are drawn strictly given that this is such a departure from our current principle, that somebody who is acquitted cannot be retried on the same charge.

The amendment, which we discussed on Committee Stage, seeks to specify the sort of evidence which is constituted in the phrase "new and compelling evidence". The idea is that by specifying what sort of evidence might constitute new and compelling evidence, we would offer some sort of limitation and, I suppose, lay out a marker that this would be something that could be done only in rare and exceptional cases.

In drafting this amendment, I have drawn from the balance in the Criminal Law Review Group report and also from the English legislation. The Bill specifies that such evidence is reliable, substantial and implicates the person concerned with a high degree of probability in the commission of the relevant offence concerned, and the amendment would add, ", for example DNA evidence or an admission by the person concerned", which are two of the types of evidence that might be most likely to constitute new and compelling evidence.

The Minister gave a full response on the last occasion stating that it was not appropriate to specify types of evidence. He also stated that DNA evidence might not, in fact, constitute new and compelling evidence. He is correct about that, but the amendment does not state that it would. It merely states that such is the sort of evidence that might come to light and if it fulfils the other tests, could then constitute new and compelling evidence. Therefore, I ask the Minister to consider, if not this specific wording, at least some wording to create a guideline as to the evidence that might be considered to be new and compelling in these exceptional cases where an acquittal is being reopened.

I second the amendment.

I will not repeat what I said on Committee Stage, but "for example" is probably not a great phrase to use in a criminal law code from the point of view of certainty and clarity in the interpretation of legislation. The amendment only states the obvious. If it is to be considered new and compelling evidence, that is a matter to be determined by the court in a particular case. It may or may not include DNA evidence or admissions by persons involved, although it more than likely will, particularly in the context of old cases being reviewed. Ultimately, it is a matter for the court to decide. Therefore, inserting the phrase "for example" is not necessary in this type of criminal legislation.

As I said, I am not wedded to the precise wording proposed, the wording used by the criminal law review group, but I accept that it was not drafting legislation. It gave these two examples of the specific evidence that might constitute new and compelling evidence. As the Minister acknowledged, it is likely that evidence on the basis of which acquittals will be reopened will include DNA evidence or an admission. It would have to be of that high level. Obviously, an admission would constitute reliable and substantial evidence that would implicate the person concerned with a high degree of probability. While using the phrase "for example" might not be the best way of putting it, it is important to have some parameters as to the evidence that would form the basis for the reopening of an acquittal.

Amendment put.
The Seanad divided: Tá, 20; Níl, 27.

  • Bacik, Ivana.
  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • Hannigan, Dominic.
  • Mullen, Rónán.
  • Norris, David.
  • O’Reilly, Joe.
  • Phelan, John Paul.
  • Prendergast, Phil.
  • Quinn, Feargal.
  • Regan, Eugene.
  • Ryan, Brendan.
  • Twomey, Liam.

Níl

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carroll, James.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • Keaveney, Cecilia.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Ivana Bacik and Eugene Regan; Níl, Senators Camillus Glynn and Diarmuid Wilson.
Amendment declared lost.

Amendments Nos. 12, 14 and 18 are cognate and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 12:

In page 12, line 38, after "Court" to insert the following:

"if satisfied that the Director has given the person concerned all reasonable notice to facilitate his or her appearance and".

I tabled two of these three amendments on Committee Stage and the Minister pointed out that I had omitted one related amendment. Therefore I tabled a third, but they are all, essentially, along the same lines. These are amendments relating to section 8, where the Director of Public Prosecutions is applying for a retrial order where a person has been acquitted, and section 9, where the director is applying for a retrial where there was a previous acquittal. The third one relates to the actual hearing of the retrial. In all those cases the amendments seek to ensure the court would only proceed to hear and determine an application in the absence of a person where it was satisfied not only that it was in the interests of justice to do so — the Minister's wording — but also that the Director had given the person concerned all reasonable notice to facilitate his or her appearance.

On Committee Stage I pointed out that any of these applications could be made some years after a person had been acquitted. The person, in the meantime, clearly is regarded as innocent in law and therefore has no obligation to make his or her address known to the Garda or the authorities since he or she has been acquitted. It might well be that it is impossible or very difficult to track down the person. That is why it is important the court should be satisfied that the DPP has made all reasonable attempts to track down the person before it proceeds to hear and determine an application of this importance in his or her absence.

I was concerned on Committee Stage that the Minister had used the term, "absconding" about a person against whom a retrial order is being sought under any of these sections. I pointed out that "absconding" was not the appropriate term to use because the person might simply not be capable of being found, not through any deliberate attempt to avoid having to turn up in court but simply because a free person would have been entitled, for example, to have gone abroad in the meantime. It is a useful extra safeguard for the person who has been acquitted and in respect of whom these applications are being made.

Again, given the radical nature of the departure from the current rules of criminal procedure that Part 3 represents, it is important to ensure the DPP's office has an obligation to make all reasonable attempts to track down a person against whom it is seeking a retrial order under any of these sections. I ask the Minister to agree to take on board, if not in these precise terms, the principle that the DPP's office should be legally obliged to make all reasonable attempts to facilitate the appearance of the person against whom it is seeking these retrial orders under any of these three sections.

I second the amendment.

Again, I believe we are not a million miles away from each other. What we are trying to do, as far as possible, is to ensure the acquitted person, by purposely absenting himself or herself or arranging a situation whereby he or she is not available to the court, in effect can veto the application being made for a retrial.

As is the case, the court must be satisfied that in all the circumstances it is in the interests of justice to proceed and that the hearing may go ahead in the person's absence. The legislation as drafted addresses that situation by applying the requirement on the court to consider all the circumstances and to then apply the interests of justice test to ensure there is an independent consideration by the court of whether the prosecution gave the subject of the application or appeal reasonable notice in regard to his or her appearance. The issue is well addressed in the legislation as drafted and as such the proposed amendments are not necessary.

I thank the Minister for his reply. I should have said the amendments relate to sections 8 and 9, applications for retrial and, section 23 which deals with prejudice prosecution appeals. I take the Minister's point that where a person who is aware the order has been made purposely absents himself or herself the subsection will allow the court to proceed to hear and determine the application in his or her absence. I am not disputing that. The amendments do not seek to prevent the court from hearing applications or appeals under section 23 in the absence of the person.

The amendments provide that the Director of Public Prosecutions should be obliged to give the person concerned all reasonable notice. It may be, as the Minister stated, that the courts will read that in because they already have the test that they can only hear in the absence of the person where it is in the interest of justice to do so. One would hope that they would read that in. However, it is important to oblige the DPP to give the person concerned all reasonable notice. Clearly, if the person then purposely absents himself or herself the court can proceed to hear the application in his or her absence if it is in the interests of justice to do so. The amendment does not seek to prevent the court from hearing the applications or the appeal in the absence of the person but places an extra obligation on the Director of Public Prosecutions. Given the enormous new powers being given to that office under sections 8, 9 and 23 this provides for a little balance in the interests of the acquitted person. I stress again that the term "acquitted person" refers to a person who has already been through the criminal justice process and has been acquitted and there is therefore an extra onus on us to ensure balance and safeguards for such persons where the Director of Public Prosecutions is being given these extensive and radical new powers.

Amendment put and declared lost.

Amendments Nos. 12a and 13 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 12a:

In page 12, line 10, to delete ", on or after the commencement of this section,".

Although I raised this matter on Committee Stage I did not table an amendment because I wanted to hear what the Minister had to say on it. The issue relates to the abolition of the double jeopardy rule and to whether such abolition should be retrospective and prospective. I have considered the Minister's response to this on Committee Stage and believe the amendment now tabled by Fine Gael deals with the concerns raised by him in terms of interference with court decisions and the Judiciary. The Minister's objection to the suggestion of retrospection was based principally on the separation of powers, to which I will come later.

The abolition of this rule can be retrospective or prospective. It is permitted by the Convention on Human Rights. It is applied in the United Kingdom in its 2003 Act and in other common law jurisdictions such as New South Wales, which has introduced retrospection in abolishing the double jeopardy rule. The fundamental point is that the change being made in criminal law is procedural rather than substantive. Accordingly, there can be no constitutional or other impediment to applying the abolition of the double jeopardy rule retrospectively or prospectively.

The UK Law Commission report of March 2001, which is quoted in the report of the Balance in the Criminal Law Review Group, chaired by Gerard Hogan, SC states that there is the spectre of public disquiet, even revulsion, when someone is acquitted of the most serious crimes and new material such as that person's own admission points strongly or conclusively to guilt; that such cases may undermine public confidence in the criminal justice system as much as manifestly wrongful convictions; and that the erosion of that confidence caused by the demonstrable failure of the system to deliver accurate outcomes in very serious cases is at least as important as the failure itself. In announcing the change in the law in England, the Home Office underlined the point that it is important the public should have full confidence in the ability of the criminal justice system to deliver justice. That is the essential point in my putting forward this amendment.

The Balance in the Criminal Law Review Group states that clearly there must be safeguards when we are making this change in the double jeopardy rule. The report states that the review group considers that while strong arguments can be made against general appeals against jury verdicts on the evidence, those arguments do not rule out the desirability of appeals where new or newly discovered facts provide compelling evidence of guilt. The review group stresses that to avoid interference with the jury decision on the merits, safeguards would have to be introduced in the form of (a) an exacting threshold for the obligation such as that the evidence is compelling, for example, DNA evidence or a confession to the offence, (b) advance judicial approval for the application and (c) the setting aside of any acquittal in the State prior to the question of a retrial arising. The report further states that it seems clear that a new trial could not occur in circumstances where there was an extant jury acquittal by a jury in the State or an acquittal by the Special Criminal Court on the merits; that the obvious form of mechanism for both avoiding conflict with an extant acquittal and securing advance judicial approval for the retrial would be by analogy with the right of the accused to apply for a review by the Court of Criminal Appeal of an alleged miscarriage of justice under section 2 of the Criminal Procedure Act 1993 to provide for a similar procedure to apply for prosecution appeals. It refers to mutuality in this situation, namely, a person convicted can appeal and apply on the basis of a miscarriage of justice under the Criminal Procedure Act 1993 but the DPP cannot. The report further states that under such a procedure the prosecution would apply to the Supreme Court for an order quashing an acquittal in circumstances where, as with an application by the defence to the Court of Criminal Appeal, it is alleged that a new or newly discovered fact shows that there has been a miscarriage of justice. The report in providing for safeguards does not suggest that one of those safeguards be that the abolition of the rule cannot be made retrospective. It goes on to examine Article 2.4 of the European Convention on Human Rights and Protocol 7 and concludes that the review group takes the view that the European Convention on Human Rights would not be breached by a provision along the lines of the United Kingdom legislation as the convention allows both appeals against acquittal and the re-opening of acquittals following new evidence of a defect in the procedure. That is important because, as we know, the UK law provides for retrospection. The amendment is formulated so that it is the courts that ultimately decide on the issue of whether a new trial would take place with regard to an acquittal in the past, before the Act was amended. Arguments can be advanced as to why that would be unfair or otherwise to a person who has been acquitted. However, they are arguments going to the merits of such an application, not to whether there should be an absolute bar on dealing with acquittals that occurred before this legislation is passed.

We discussed the constitutional principles to some extent on Committee Stage. The Minister referred to a number of cases, including Buckleyv. Attorney General 1950. In that case, generally referred to as the Sinn Féin case, the Oireachtas attempted to directly interfere in judicial proceedings. In the Howard and Others v. Commissioners of Public Works case, powers were retrospectively being granted by the Oireachtas, which would have affected a case already decided. I do not believe this case law is pertinent or on point on this issue. There is no interference with the functions of the Judiciary. It is similar to the abolition of the double jeopardy rule — it is for the court to decide whether to set aside an acquittal and whether to permit a second trial. Why there should be the distinction between cases which have occurred after the passing of this legislation and before it is not clear. It is the court that should ultimately decide this question. The issue of the separation of powers, therefore, does not arise. There is full respect for the jurisdiction of the court to determine and decide on these matters. The legislation with this amendment merely provides the framework by which that can take place.

What is most important is that the change is procedural. It does not create a new offence. Murder is murder whether the procedural change at issue is prospective or retrospective. The change does not interfere with the constitutional right to a trial in due course of law. The Minister said Senators should consult the authorities on this issue. I refer to one case, the Criminal Law (Jurisdiction) Bill 1975. In reference to the Supreme Court under Article 26, Chief Justice O'Higgins at the time delivered an opinion relating to Article 31.8, which requires trial in due course of law. He defined that as:

[F]air and just treatment for the person so charged, having due regard to the rights of the State to prosecute for the offence charged and to ensure that the person so charged will stand his trial. The phrase "due course of law" requires a fair and just balance between the exercise of individual freedoms and the requirements of an ordered society.

It is a balance between the rights of society and the rights of the accused. There is no suggestion that where an acquittal is set aside for a very serious crime, the person could not receive a fair trial. All the safeguards are there.

However, that is not at issue. With regard to the authorities on constitutional law, Mr. Gerard Hogan SC is the author of Kelly's Irish Constitution. The suggestion, in essence, is that making the abolition of the double jeopardy rule retrospective is in some way retrospective penal legislation and, therefore, infringes Article 15.5.1° of the Constitution, which states that the Oireachtas will not declare acts to be infringements of the law which were not so at the date of their commission. Murder or other serious crimes are not being made retrospective. They are already in the criminal law and the retrospective application of this procedural change does not change that.

Mr. Hogan's book refers to some pertinent cases regarding retrospection. In Mageev. Culligan 1992, the Supreme Court held that Article 15.5.1° constitutes:

[A]n expressed and unambiguous prohibition against the enactment of retrospective laws declaring acts to be an infringement of the law, whether of the civil or the criminal law. It does not contain any general prohibition on retrospection of legislation, nor can it be by any means interpreted as a general prohibition of that description.

In the key cases on this issue, Mv. D and Gilligan v. Criminal Assets Bureau:

[B]oth Moriarty J and McGuinness J respectively rejected the argument that the provisions of the Proceeds of Crime Act 1996, s 9 infringed Article 15.5.1°. This section enabled the High Court to direct a respondent to file an affidavit specifying the property which he owned or controlled and his income and sources of income for a period up to the last 10 years. InGilligan, however, McGuinness J pithily disposed of the Article 15.5.1° argument:

The Oireachtas has not, by this definition, declared any act to be an infringement of the law which was not so at the date of its commission. The acquisition of assets which derive from crime was not a legal activity before the passing of the Act of 1996 and did not become an illegal activity because of the Act of 1996.

InHaughey v. Moriarty Geoghegan J said that even if the new provision for costs contained in the Tribunal of Inquiry (Evidence) (Amendment) Act 1997 had been applied retrospectively to the plaintiff, he did not consider that this would have amounted to a breach of Article 15.5.1°.

Mr. Hogan continues:

Somewhat analogous issues were also examined by the Supreme Court inMinister for Family Affairs v. Scanlon where the issue was whether a new provision of the Social Welfare Acts permitting the recovery of wrongly paid social welfare entitlements could apply retrospectively. The Supreme Court held on its proper construction that it did and rejected the submission that such a construction was potentially unconstitutional. Fennelly J observed that, unlike Hefferon Kearns, the right at issue which was liable to retrospective abridgement was a statutory right which was subject to conditions. The Oireachtas had retrospectively tightened these conditions, but this was not a breach of Article 15.5.1°.

Mr. Hogan concludes:

The combined effect ofM, Gilligan, Haughey and Scanlon appears to be that retrospective legislation dealing with essentially procedural, remedial and adjectival matters falls outside the scope of Article 15.5.1°.

That makes my case. The change here is procedural and therefore not caught by Article 15.5.1° of the Constitution, which is the Minister's concern.

If we accept that we cannot make this change retrospective, the Minister is saying, in effect, that a person acquitted of a serious crime has a legitimate expectation, even if his or her acquittal was wrong, a miscarriage of justice, obtained by deceit, fraud or perjury or even intimidation, that he or she cannot be charged and tried again to ensure justice is done. That argument is somewhat absurd. We made a procedural change in criminal law in the Criminal Justice Act 1984 when, under section 25 of the Act, we moved from a requirement of unanimity to a majority verdict of 11 or ten in serious criminal cases. Does this mean the provision could not apply to the trial of indictable offences committed before this procedural change came into effect? Does somebody who committed a serious crime who is now being tried on the majority rule argue that he has a legitimate expectation or vested interest that there would be no change in the procedure in criminal law matters and would be unfairly prejudiced by such a change? That is somewhat absurd.

What is argued here is a procedure whereby one can deal with a miscarriage of justice, as under the Criminal Procedure Act, where an accused who has been wrongly convicted, such as when Frank Shortt, uses this procedure to ensure that miscarriage of justice is corrected. The Director of Public Prosecutions should be in a position to correct such a situation on behalf of the victim of a crime or society at large. There is a balancing of rights and that is what we are talking about here. Which is the superior right: the legitimate expectation of an accused not to be tried again for a crime which, based on new and compelling evidence, points overwhelmingly to guilt, or the right to life of the victim or his or her family, the right to the proper administration of justice, the requirement that crime be prosecuted and the need to correct a miscarriage of justice whenever that occurs? In the hierarchy of rights, I would think the right to life takes precedence.

The choice for the Minister is a policy one. It is not a choice dictated by the parameters of constitutional law. The essential distinction one must grasp is that between procedure and substance, procedural and substantive change in the criminal law and the mutuality in dealing with miscarriages of justice. There is endorsement for this approach in the European Court of Human Rights, the United Kingdom and other jurisdictions.

When we discussed a Bill I put forward in this House dealing with the exclusionary rule, the Criminal Law (Admissibility of Evidence) Bill, the Minister argued it was best to leave this matter to the courts to decide. In our debate on 10 December 2008, on the issue of what is or is not constitutional and where there can be debate on such issues, the Minister stated:

[M]y preference is that time be allowed for those arguments to be ventilated before the Supreme Court in a suitable case. I made my views in this regard known, in July this year, to the Attorney General who, I understand, in the context of the statutory consultations which take place from time to time between the Attorney General and the Director of Public Prosecutions, DPP, and permitted by section 2(6) of the Prosecution of Offences Act 1974, raised this matter in September.

I understand that the DPP is very conscious of the benefits of identifying cases in which the scope of the decision in the Kenny case [which concerns the exclusionary rule] can be argued so as to clarify the circumstances in which the rule applies. While the lodging of an appeal in any individual case is, of course, solely a matter for the DPP and appeals can take some time to be heard and adjudicated on, I believe this course of action should be allowed time to come to fruition. In the event that the arguments are put to the Supreme Court and it takes the opportunity to reaffirm the court's analysis in the Kenny case, we will need to think again and look at other options.

What the Minister suggested in that case was that we should allow the courts to determine these issues and determine the jurisprudence. That is what I am arguing in this case. I suggest it is left to the DPP, in a suitable case, to decide, if he deems it appropriate, to reopen and seek to set aside an acquittal or retrial of a criminal case whenever he finds the opportune and appropriate time. Then the courts can decide, as is their function, on the constitutionality or otherwise of allowing such a retrial or whether justice would be done by permitting such a retrial. This is why I say we do not interfere with the Judiciary and the judicial function. We allow and permit the courts, by the amendment I have tabled and the manner in which it is formulated, to make that determination. There is a presumption of constitutionality in the laws we pass in this House. Therefore, I fail to see where the impediment is in this case.

I want to refer to something that encapsulates many of the arguments I have made to allow for retrospective application of the abolition of double jeopardy. I refer to the UK Law Commission report on double jeopardy and prosecution appeals with regard to the retrospective effect of the change in the procedure in the United Kingdom, contained in the 2003 Act. It states:

We consider that the arguments in favour of giving the exception retrospective effect are powerful. Substantive retrospective criminal legislation renders an act, which was legal when it was performed, subsequently illegal. In the case of the procedural change we propose, [which is why I say it is procedural] the alleged act was already a crime. The new procedure merely makes it possible (or easier) to bring the offender to justice, a desirable outcome whenever it is achieved.

Further, if the new exception were not retrospective, it could well be a number of years before it could be used. In deciding to recommend a new exception we have taken account of the fact that, in recent years, we have seen considerable advances in forensic science, particularly in DNA analysis. It is the possibility of bringing these new techniques to bear on materials from old cases that it is likely to constitute a major source of cases said to fall within the new exception. If there were no retrospective effect, the potential advantage in being able to bring these new techniques to bear on materials from old cases would be lost.

Furthermore, if the exception was not retrospective, arbitrary distinctions would be drawn between persons who happened to have been acquitted before and after the relevant date. This would open up the prospect of public outrage where new evidence came to light and the exception would otherwise have been available ... In such cases, we do not believe that a person against whom there is compelling evidence of guilt should be protected by a mere accident of timing.

The report quotes two members of the committee that debated the issue . The committee's view is represented by Mr. Martin Linton MP. He said:

We think that it should apply retrospectively. As I understand it, the principle is that it would be wrong to change the law so that someone is punished retrospectively for doing something that was not an offence at the time. However, we are talking about people who knew that they were committing crimes, lied in court and got away with it. Such cases are entirely different from those with which the retrospectivity principle intends to deal in law.

Mr. Paul Stinchcombe MP said:

I am always slow to support retrospective enforcement, but I can conceive of nothing more self-evidently appropriate than where the sole purpose of the legislation in question is to prevent past miscarriages of justice. The double jeopardy rule has been an integral part of our criminal legal system for many centuries, but the time has now come to relax it in order better to protect the integrity of the system and of the citizens of this country.

The report goes on to analyse whether the retrospective effect would infringe the European Convention of Human Rights. It found that would not be the case.

One respondent in the submission to the commission suggested the change proposed was not merely procedural because it would impose a potential liability to face criminal conviction and punishment on those immune from them. The commission commented:

We respectfully disagree. The crucial question in our view is whether the effect of the change in the law is to expose the defendant to greater liability than he or she might reasonably have expected at the time of the alleged offence, not some later time when the defendant had been acquitted of it. In our view the clear answer to that question is that it would not. The defendant's exposure is to have been convicted of murder, both at the time of the alleged offence and at the time of the retrial. On the other hand, we recognise that acquitted defendants will have organised their lives on the justified basis that they would not be troubled by criminal proceedings a second time. [This is an important point to which I referred.] This is a serious concern, the more so in the light of our revaluation of the importance of finality in criminal proceedings. Although in our view the arguments in favour of retrospective effect are compelling, we accept the force of this particular concern and we seek in our recommendations to provide some recognition of their force. Where the new evidence was already in the hands of the authority at the time when the new exception came into force, we would expect an application for a retrial to be made with all reasonable despatch or not at all. If, moreover, the court hearing the application thought it would be unjust to reopen the acquittal because the defendant had acted in reliance on the assumption that it could not be challenged, there is an argument which a defendant might wish to advance in order to persuade the court to refuse a retrial on the grounds that it would not be in the interests of justice, or thereafter at the retrial to seek to persuade the court to stay the proceedings as an abuse of process. We do not suggest that the date of an acquittal should be wholly disregarded but only that there should be no absolute bar on retrospective application of the exceptions.

It is, therefore, a policy choice for the Minister and the Government whether to allow for the prospective and retrospective application of the change in the procedural law to allow for a retrial in certain exceptional cases. While I agree with the principle of the Bill and the safeguards included in it, it is defective in not allowing for the possibility of retrospective application and allowing the courts to make the decision on whether an individual case involving an acquittal before the passing of this Bill came should be retried.

I commend the amendment to the Minister. I have set out the views of the pertinent authorities, including one of the foremost such authorities in this country, Mr. Gerard Hogan, SC, on why the retrospective effect of the abolition of the double jeopardy rule would not constitute an infringement of the Constitution, either Article 15.5 or Article 38.1 or any other. On that basis, I will press the amendment.

I second the amendment so ably proposed by my colleague, Senator Regan. Although I am not a legal practitioner, I have strong views on this matter and believe retrospection should be allowed. Senator Regan quoted the words of the learned Mr. Gerard Hogan, SC, on the matter: they are significant and telling and should be heeded by the Government.

When we speak of miscarriages of justice, it is normally with regard to people who have been wrongly convicted. However, we can take as an example the murder of a member of our family and subsequent acquittal of the accused. It might be discovered later that the acquittal was the result of deceit, fraud, perjury or intimidation. Are we to suggest it would be in the interests of justice that the person concerned could not be tried again? I have heard these words used on numerous occasions throughout the debate. If one were to ask the question of the general public, a large majority would say there should not be such an outcome. If the acquittal were made on the basis suggested, they would say there should be a procedural change. We are seeking such a procedural change. Let the Director of Public Prosecutions decide.

My colleague, Senator Regan, has done a tremendous amount of research. I ask the Minister to give great thought to what he stated on the matter. If the amendment cannot be accepted in this House, further thought should be given to the subject before it is envisaged that this law will be enacted. It comes down to the fundamental act of fairness and justice; as stated, it would be "in the interests of justice". It is in the interests of justice that we propose the amendment. If a relative of mine, the Minister or anybody else in the House was murdered by somebody — I use the example of murder, although there are many others — and new evidence was discovered afterwards about the person concerned, it would be in the interests of justice that he or she be tried again.

I am very taken by the arguments made by Senator Regan and supported by Senator Cummins. I also support them. I know the Minister very much appreciates the arguments made because in the past he said he was conscious of the added benefit retrospective effect would bring. I strongly urge him to bring further thought to bear on the subject in the light of all the arguments advanced.

The UK Act of 2003 was referred to, with the argument that there is no constitutional impediment. Without rehearsing the arguments again, it is only in cases where there is new or conclusive evidence in which a court would be able to decide on the matter of a retrial, whether on grounds of DNA evidence or an admission. It would be a matter for the courts to decide. There is total respect for the validity of court verdicts. This would apply only where new evidence was found and brought forward. I am taken by the arguments quoted with reference to Mr. Gerard Hogan, SC, and his belief this would not infringe the constitutional position. For all these reasons, therefore, I look forward to hearing the Minister speak on the subject. I hope this will be the outcome because people feel very strongly about the matter. I know the Minister very much appreciates this because he told me as much in a letter he sent me some time ago. In the light of all the arguments made, he may have further thoughts on the matter which I look forward to hearing.

I spoke already on Committee Stage to the effect that I did not agree with Senator Regan on this matter. I have listened to his persuasive arguments in favour of his amendment but I stand by what I said earlier. This is such a radical departure from the current long-standing rules of criminal law and the principle against double jeopardy I do not believe it would not be appropriate to make it retrospective.

I support the amendment which has been presented in a comprehensive, persuasive and compelling fashion by Senator Regan. Senator Bacik stated her concern that the proposal would overturn a tradition and a system that has been in place since the foundation of the State but the legislation, which provides for retrial, is an overturning measure in terms of where we are coming from legislatively. We are asking if we should extend that retrial possibility in a retrospective fashion.

The Minister is putting in place a new law from his Department of Justice, Equality and Law Reform but the question we must ask him to reflect upon and what we must ask ourselves to determine is where justice and natural justice lies in the body of this legislation. As I and I am sure some of my colleagues said either last week or on Second Stage, if the legislation currently proposed is passed and if the provision for retrial is prospective rather than retrospective, we are, possibly for the first time in the history of this State, devising a system of justice which will have two categories of victims and two categories of crime, namely, victims against whom crimes were committed previously and victims against whom crimes may be committed next month, next year or two years from now. That is a dangerous precedent. It is a wrong to claim that in the Ireland of 2010 there can be two different types of victims. That is something to which the Minister must give deep reflection.

We are also putting in place what I would describe as a general amnesty. We are now stating that in unique and exceptional circumstances, and it should be exceptional, unique and thorough and every possible safeguard should be put in place, that the courts and not the Oireachtas, the Minister, the Taoiseach or Members of this House or the other House will be in a position to consider a retrial. We are also putting a limit on the types of cases which can be retried and saying that people who may have committed offences last year, the previous year or two or three years ago, even where new, compelling, exceptionally accurate evidence is available, will be granted an amnesty.

Senator Cummins mentioned a miscarriage of justice. Those are strong words in this Republic because we are aware of cases where Irish people were victims of a gross miscarriage of justice. Time after time this House, this Oireachtas and our Government highlighted such cases and stood on the side of those against whom miscarriages of justice were perpetrated. I recall the Birmingham Six and the Guildford Four cases. Sadly, there have been many other cases. The miscarriage of justice in this respect would be applicable in a different set of circumstances. Victims and families are still suffering, yet we are saying there is no recourse to a retrial.

It is important that the Minister would examine our amendment not just as a political presentation from an Opposition party but as a genuine attempt to make good law and a proper statement on the type of society in which we live. It is not about overturning the Constitution. As a person who is not a constitutional expert I asked the Minister last week to point out to me where in the Constitution is there any section which would deem our proposal to be repugnant. I do not believe there is such a section. As was pointed out by Senator Regan and, I believe, Senator Cummins, Article 15.5 states: "The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission". That is not what we are attempting to do.

We are speaking of the very few exceptional cases of crimes which were criminal matters 12 months ago, two years ago and five years ago. We are not talking about new crimes. We are talking about the opportunity for the courts, in cases where substantial new and almost irrefutable evidence is available, to have the possibility of a retrial with all the necessary checks and balances in place. We are not talking of show trials. If a retrial was to be put in place, obviously the defendant or defendants would have the absolute rights to which they are entitled but I find it difficult to accept that the law as is being proposed would draw a clear line in the sand and create these two categories of victims, families and other sufferers, namely, those cases from 2010 onwards and those people against whom grave crimes would have been committed in recent years.

I appreciate the need for us to examine thoroughly and reflect deeply on this fundamental matter but having read the Minister's contributions and interventions last week on Committee Stage, if he is to be fair he would have to concede that the legal body of opinion presented by Senator Regan in particular shows clearly that there is no constitutional or legal restraint on us. It is simply a question of the type of legislation that we, as a House of the Oireachtas, want to implement.

I look forward to hearing the Minister's response. This amendment and, more importantly, the Minister's response to the amendment, will imprint on his Department and on his tenure in office his absolute thinking in regard to victims, the rights of victims and the willingness of the State and the Judiciary to pursue cases where miscarriages of justice took place.

Moving somewhat from this legislation, in the Minister's clear statements yesterday concerning the possibility of industrial difficulty and chaos in the Garda Síochána he spoke for the entire nation. He pressed the correct buttons, so to speak, and called a spade a spade. He spoke about responsibilities, justice, honour and truth.

I ask him to do the same in regard to this legislation. For the Minister to do the right thing in this instance, he will have to give the most serious reflection to Senator Regan's amendment. He should declare that we will not have two categories of victims, or two categories of crime, in this republic. No amnesty should be available to the perpetrators of crime.

I thank Senators for raising this issue. Senator Bacik set out the factual position in a frank and honest manner. As a politician, I might like to move in the direction proposed by the Fine Gael Senators.

I do not agree with Senator Regan's assertion that this is a policy issue. I have to proceed on the basis of the legal advice given to me by the Attorney General, who is the Government's legal adviser, rather than the advice of barristers like Mr. Gerard Hogan SC, for whom I have good respect. The Senator referred to a number of cases I raised. He said they are not relevant. I do not accept that. The principles enunciated in those cases are very relevant. They go to the very core of what we are about.

Senator Regan also undertook some research on the views in the UK in this regard. It is true that the UK uses a procedural justification for this. While our system is similar to the UK system in many cases, it diverges from it in the sense that we have a written Constitution. Article 38.1 of the Constitution states that: "No person shall be tried on any criminal charge save in due course of law." The phrase "in due course of law" means, in effect, the law subsisting at the actual time when a person was convicted or charged or when the offence was caused. It is quite clear that the applicable law at the time of the trial does not allow for the reopening of an acquittal in any circumstances. Therefore, a new trial on the basis of a law that was not in existence at the time of the first trial is more than likely to be regarded as not being a trial in due course of law.

While one's heart may say one thing, and we all have sympathy for individuals in certain high-profile cases, of which Senators on the other side of the House are aware, one cannot make law on that basis. One has to use one's head to make laws that are based on the solid legal advice available to us. It is clear to me, on the basis of the advice I have received from the Attorney General, that we must have regard to the constitutional phrase "in due course of law".

If I were to accept this amendment, there would be a clear danger of this legislation being referred to the Supreme Court for adjudication under Article 26 of the Constitution. If it were to be knocked down in such circumstances, as Members on this side of the House and on the Labour Party benches believe it would be, the entire Criminal Procedure Bill 2009 that is being proposed by the Government, and for which I take credit, would be lost.

Senator Bradford responded to the comments I made yesterday. He exhorted me to make a name for myself in this regard by making these provisions retrospective. As much as I would like to do that, I have to proceed on the basis of what is possible and will stick. All the advice available to me, in addition to my own knowledge of the criminal law, suggests that one cannot try again to convict somebody, after he or she has been acquitted, on the basis of a law that was not in existence on the relevant occasion.

I do not accept Senator Regan's suggestion that this is a procedural matter. That is the UK argument. This goes to the core of the status of a person who has received an acquittal. The Constitution provides for fundamental rights of due process. It is wrong to suggest that this is merely a procedural matter. It is a question of an individual's innocence or guilt, freedom or detention.

One person's definition of justice may differ from another's. Senator Bradford asked me to state where this issue is covered in the Constitution. I used the words "constitutional framework". The advice I have received from the Attorney General is that any attempt to allow cases in which there have been acquittals to be reopened retrospectively would involve a fundamental breach of the separation of powers. Although the Constitution does not contain the words "separation of powers", there is a long line of judicial authority to the effect that the Constitution is founded on the doctrine of the tripartite separation of the powers of government. That is why I used the phrase "constitutional framework".

Having regard to this doctrine, it is well established that the Oireachtas cannot alter or reverse a finding of the courts as in doing so, it would be trespassing on the judicial domain. I take some credit for the fact that I might become the Minister who has changed the time-honoured rule prohibiting double jeopardy. We cannot pass a law that has the effect of overturning existing acquittals. As I have said, to do so would be to trespass on the judicial domain, in effect. If we bypass the existing law, potentially we will change cases that have already been decided by the Judiciary. If we make it prospective, it is obvious that it will apply only to any offence that is committed after the date of the commencement of the Act. If a person is acquitted of involvement in an act that occurs after that date, a decision on whether the case can be considered for a second time can be made on the basis of judicial decision only. If we do it retrospectively, as proposed by Fine Gael, we will potentially change cases that have already been decided on by the Judiciary.

It would only be done on the basis of new facts.

It would be a complete trespass on the judicial domain. At present, people who are accused of crimes but acquitted in due course of law are entitled to the irrebuttable presumption of innocence. Under the existing law, a judgment of acquittal means, in effect, that a person who is acquitted cannot be prosecuted again in any circumstances. If we assume that were permitted under the Constitution, however, and if this Bill were to operate retrospectively, the effect of a decision to acquit would be altered. This would represent a gross interference by the Oireachtas and the Executive in the role of the Judiciary.

Legislation like the Bill before the House that allows for cases of acquittal to be reopened in exceptional circumstances would not involve the setting aside of a specific judgment, it would involve altering the status of that judgment. The effect of such a law would be to reduce for everyone who has already been acquitted the value of that acquittal. The new legislation would make it possible for each of those people to have his or her conviction reopened. In such circumstances, an acquittal could not ever be said to represent finality. I am advised that the constitutional value of finality of acquittals can be altered by statute, but only in ways which are consistent with that value. Any such statutory change must respect cases which are already closed. The approach adopted in the Bill is line with that requirement.

Apart from the fundamental objection to retrospection, there is also a strong argument that to change the status of an acquittal retrospectively and provide the possibility of interference with the verdict of a court, where that possibility does not exist at the time of the person's trial, would infringe Article 38.1 of the Constitution which states a person has a right not to be tried on any criminal charge save in accordance with law. The applicable law at the time of the trial would not have allowed for the reopening of an acquittal in any circumstances, and therefore a new trial on the basis of a law which was not in existence at the time of the first trial is likely to be regarded as being other than a trial in due course of law.

It is not correct to say that I am deliberately adopting a cautious approach or that I am reluctant to test the limits of the Constitution. If I wanted to accept this amendment, it would more than likely be challenged by the lawyers of affected people. As this measure breaks the rule concerning the separation of powers it is, in effect, the Legislature interfering in already decided cases. It would be referred to the Supreme Court under Article 26 of the Constitution and would fall. It would, in effect, do away with the view of the Oireachtas, namely, that we should allow, in very limited circumstances, a change in the rule against double jeopardy.

I do not accept Senator Regan's comments on the cases I quoted earlier. The issue of retrospective reopening of cases was examined by Mr. Justice Lynch in Howard and Othersv. Commissioners for Public Works in 1994 where he stated:

The Oireachtas cannot alter or reverse that finding or the declaration and injunction made on foot of same. To attempt to do so would contravene the constitutional separation of powers in that the Oireachtas would be trespassing on and into the judicial domain.

It is a very pertinent judgment.

The issue of the presumption of innocence was referred to by Mr. Justice Henchy in People v. O’Shea and quoted by Mr. Justice Hardiman in DPP v. Independent Newspapers. Under the existing law the effect of a judgment of acquittal is that a person so acquitted can never be re-prosecuted in any circumstances. Were the proposed law to alter that position by operating retrospectively, the effect of the judicial determination would be altered. The Oireachtas cannot change cases which are already decided by the Judiciary in our courts under our Constitution.

The principle of Buckleyv. Attorney General from 1950, also known as the Sinn Féin funds case, was referred to by Mr. Justice Keane in the Supreme Court decision in Pine Valley Developments v. Minister for the Environment. He said, “While there would clearly be no constitutional objection to the Oireachtas altering the general law, setting aside a adjudication by competent court was another matter”. It is a very clear decision in that respect.

In the case of DPP v. Quilligan in 1986 the Supreme Court allowed an appeal from a directed acquittal in the Central Criminal Court. A question then arose as to whether the Supreme Court, in such circumstances, has the power to order a retrial. The majority of the court ruled that no order should be made in that instance. However, two judges of the majority, Mr. Justice Henchy and Mr. Justice Griffin, went further and ruled the court had no jurisdiction to make such an order. They said the rule of autrefois acquit means that if an accused duly and successfully raised the plea that he or she had already been tried in a court of competent jurisdiction acting within that jurisdiction for the offence now charged, and he or she was acquitted of that charge in that court, a second trial for that offence may not take place. They went on to say that this rule, which is sometimes referred to as the rule against double jeopardy, is but an aspect of the canon of fundamental fairness of legal procedures inherent in our Constitution.

In the case of D.S. v. Judges of the Circuit Court and the DPP, the Supreme Court upheld the decision of a High Court judge prohibiting a third trial of a person for the same offence where in two previous trials a jury had disagreed. While the facts of this case are different from the issue under consideration here, it is difficult to believe that the Supreme Court would decide that it was fair potentially to undermine retrospectively the status of acquittals obtained prior to the coming into force of the Act.

The arguments which have been made regarding the situation in the United Kingdom have been examined by the Attorney General but there is a fundamental difference between treating this as a mere procedure and treating it as we are required to under our Constitution where Article 38.1 refers to "in due course of law". Any change would affect the status of the judicial decision which was originally made and it would be inherently unfair to and against the principle of the right to a fair trial of a person who must be treated in accordance with the law pertaining at the time of the offence. He or she should not be affected by some legislative changing of the goalposts by a subsequent Act of the Oireachtas.

As much as we would like fairness and justice and while many heart-rending cases have been portrayed and postulated, we have to determine what the position should be under our Constitution. People ask why we do not take a chance and pass the Bill. Senator Regan stated there is a presumption of constitutionality. If there is, why are hordes of lawyers in the Four Courts on a regular basis trying to pick holes in the legislation the Oireachtas has passed? We must guard the Bill against any challenge.

There cannot be any possible chink in the armour of retrospection in regard to criminal law. In effect, the amendment asks the Oireachtas to change the goalposts. It is a time-honoured principle of criminal law that people can only be convicted on the basis of the law pertaining at the particular time the offence was committed and not on the basis of subsequent law passed. Such a view drives a coach and four through all precedence, our Constitution and all the human rights of a person who may or may not have been acquitted or convicted.

Despite what the heart might say on this issue, I did not make this decision lightly. We examined it very carefully in conjunction with the Department and the Attorney General. We returned to the Attorney General on a number of occasions on this issue and the advice has always been that we cannot introduce such a provision in terms of criminal law in a retrospective way. It must be done in a prospective manner.

The Minister has his mind made up on this matter and perhaps it was made up before the debate on the Bill commenced today. The Minister is making the wrong policy choice. I have attempted not to be political about this issue. Following on from the Committee Stage debate, I returned to the authorities on this issue. The Minister is wrong to attempt to adjudicate on these constitutional issues. It is for the court to decide. The amendment proposed is designed to enable the courts to adjudicate on these issues. It is for the court to administer justice and to take a decision on the balancing of constitutional rights.

The case law on the separation of powers to which the Minister refers is not pertinent. There is no suggestion in the amendment on the double jeopardy principle that any specific cases are being interfered with by the Oireachtas, which was the case in both the Buckley and Howard cases, on which the Minister relies.

The Minister's position defies logic. The change is procedural, just like the change in the majority required of juries in indictable offences. No one accused or acquitted of a crime could rely on the law subsisting at the time of the crime to determine he or she would not be tried based on a jury majority. The Minister is misreading the law and is presuming to adjudicate on these constitutional principles rather than doing what he proposed we all do in respect of the Bill I proposed on the exclusionary rule, that is, leave it to the court to decide these matters in a suitable case which could be identified by the DPP. The Minister has chosen to do the very opposite in this case. It is this inconsistency that I find difficult to comprehend.

The Minister suggests it is not a procedural change and that is just the British excuse. He refers to the fact that our law is distinct from that of the United Kingdom in that we have a written constitution and he implies that, in some way the UK criminal legal system is inferior and, therefore, cannot be relied on to provide a guide to legislation here. However, the Law Commission in the United Kingdom identified the changes being made to the double jeopardy principle and tested them against the European Convention on Human Rights and the protocol attaching thereto and found that the amendment in UK law in 2003 was compatible with human rights principles. Therefore, the Minister's view that what I propose would conflict with such principles is simply unfounded.

The Minister refers to legal advice. We are not privy to it and can only argue the case on its merits. The Minister referred to the possibility of a reference to Article 26. What would be wrong with it in respect of such an important issue? It is a question of the sound administration of justice and bringing people to justice in exceptional circumstances where there is a facility for the courts to revisit cases where there have effectively been miscarriages of justice. The Minister, in this Bill, is blocking such a possibility. He is loading his arguments in many instances, particularly by suggesting any reference would mean the whole Bill could be struck down. The issue is that of retrospection and that is what may be tested. There is no interference by the Oireachtas in specific former cases where there were acquittals. It is a facility and an enabling provision for the court to decide on these matters.

It is a policy choice and the Minister has got it wrong. It is for the courts to balance conflicting rights. The message the Minister is sending out is that, in the case of an individual who has been accused or committed, notwithstanding the fact that the judgment in favour of an acquittal might have been obtained on the basis of fraud, perjury or intimidation, no court can revisit his acquittal. The message from the Minister to somebody acquitted, notwithstanding compelling evidence that would suggest a retrial is warranted and that the acquitted may be guilty, is: "If you can get away with it, good for you."

We cannot go on a wing and prayer and pass legislation without having full confidence in its constitutionality——

I rely on the authorities——

——and hope that the Supreme Court, in an Article 26 reference, might see it right on the night or, alternatively, allow the legal eagles down in the Four Courts to pick holes in it. We must copperfasten any legislation we pass. The Government must accept the advice of the Attorney General on the basis that it is given based on his knowledge of the law, precedent and the Constitution. The Government cannot decide to second-guess his advice and reject it, thus running the risk of exposing the taxpayer to a substantial charge on the Exchequer in the event that we get it wrong. The advice is the fail-safe and this was the case when Senator Regan's Government was in office for many years. I do not accept his contention that this is a policy choice. It is not a policy choice but one based on the legal advice of the Attorney General and on nothing else. If it were merely a policy choice, we would make a decision based on what our hearts, rather than our heads, would say.

Senator Regan has not answered the difficulties that arise and merely states the provision is procedural and that it is a facility to allow a court to reopen a case. It is, in effect, prejudicing those people who have already been acquitted by the courts.

There would be no legitimate expectation.

People already acquitted in any serious case to which the proposed legislation would apply would be put in jeopardy if we pass a law facilitating the turning around of their cases. We are saying that once we pass the law and somebody commits an offence for which he is acquitted subsequently, it will then be possible, under this legislation. The Deputy says his measure is not specific but it potentially in every specific case turns over or changes decisions already handed down and that conflicts with Article 38.1 and with the issue of the separation of powers in that we would in effect be intervening. It would be a terrible precedent that would be used subsequently in relation to other legislation; that we can pass a law and in effect override previous decisions, perhaps just in a general way, that had been handed down.

It is to allow double jeopardy.

Yes, but only regarding offences committed after the Bill is passed.

That is a choice.

It is not a choice. If that was the case, the extension of the Senator's argument would be that if somebody was in a car crash last week and was convicted of dangerous driving, we could pass a law and change it in such a way that perhaps they would get a prison sentence for dangerous driving. The Legislature just cannot do this. It would be wrong. Neither Gerard Hogan nor any other person in the balance in the criminal law review group in any way suggested there should be retrospection in this regard.

They did not rule it out either.

No. There was no discussion in that regard and, as far as I am aware, there was nothing in the report about retrospection——

That is correct.

——because they knew it would not be possible. In a very small way we are allowing for a reopening only in exceptional circumstances. It is something we should do very carefully and in a very considered way.

The Senator has asked what justice is and what is fair. We need to have due respect for the human rights of all people, including those who have been acquitted of very serious offences. Passing a law to look after those who feel aggrieved is not a way of proceeding just because we think it is the right thing to do and know in our hearts there are some very hard cases. One tampers with the principle of retrospection in criminal law at one's peril. No society which regards itself as democratic would allow a Government on a whim or because it had a large majority in the Oireachtas to change cases already decided just because it thought it was the right thing to do. The State clearly, validly and correctly has provided for a separation of powers between what the Judiciary does and what the Government or the Oireachtas does. That should remain the case. It would be a sad day for the Oireachtas if anything was done that led to a diminution of this.

Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 31; Níl, 13.

  • Bacik, Ivana.
  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carroll, James.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Keaveney, Cecilia.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Mullen, Rónán.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Prendergast, Phil.
  • Quinn, Feargal.
  • Ryan, Brendan.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • O’Reilly, Joe.
  • Phelan, John Paul.
  • Regan, Eugene.
  • Twomey, Liam.
Tellers: Tá, Senators Camillus Glynn and Diarmuid Wilson; Níl, Senators Paul Bradford and Maurice Cummins.
Question declared carried.
Amendment declared lost.

I move amendment No. 13:

In page 13, lines 2 and 3, to delete ", on or after the commencement of this section,".

I second the amendment.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 14:

In page 13, line 38, after "Court" to insert the following:

"if satisfied that the Director has given the person concerned all reasonable notice to facilitate his or her appearance and".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 15:

In page 18, lines 8 and 9, to delete ", the Attorney General or the Director".

The wording to this amendment is different from the one I tabled on Committee Stage on section 14, an appeal on a point of law to the Supreme Court. On Committee Stage, I agreed the amendment could be better drafted. I have since redrafted it to encompass what was raised during those proceedings. The Minister was sympathetic to my point.

There is a clear imbalance in the section as currently drafted because an appeal lies by the acquitted person or the Director of Public Prosecutions from a determination of a court under section 10. As I said on Committee Stage, in practice it would only be an appeal by the acquitted person because section 10 specifies a decision will be made in favour of the Director of Public Prosecutions for a retrial order. If the acquitted person were appealing from a determination of the court under section 10, it is inappropriate that the Attorney General or the Director of Public Prosecutions would have a role in certifying that the determination involved a point of law of exceptional importance before an appeal could be taken.

I suggested to the Minister on Committee Stage that it would be more balanced and fairer to the acquitted person if it were simply at the discretion of the court. I want to leave it up to the court to make the determination or certify that it involves a point of law of exceptional public importance so that the appeal can be taken.

The Minister referred to section 29, appeals, but he did accept in principle that the appeal provided for in that section is somewhat different. It relates to an application for a retrial order where someone has been acquitted. It is a new and radical departure from our current principle that a person shall not be retried following an acquittal. Given that this procedure under this Part is entirely new, we must ensure the acquitted person is treated as fairly as possible.

I am willing to accept there should be filtering mechanisms in section 14 and that an appeal cannot be taken as a matter of course. It is wrong, however, that one of the parties involved, indeed the party in whose favour the decision is made, should have a role in certifying before an appeal can be taken by an acquitted person.

The Minister indicated a certain willingness to accept this principle on Committee Stage. I will not press the amendment if he indicates he will accept it, even as an amendment in the other House.

I second the amendment.

The appeal to the Supreme Court provided for in section 14 is intended to be available to both parties, the acquitted person and the Director of Public Prosecutions. In the case of the acquitted person, he or she may wish to appeal in the event of a retrial order being made by the court under section 10. In the case of the DPP, he may wish to appeal in the event that the court refuses to make a retrial order.

The appeal is not a full appeal. It is confined to certified points of law of exceptional public importance in which there is a public interest in taking the appeal to the Supreme Court. This is the same filter that applies in the case of appeals from the Court of Criminal Appeal to the Supreme Court under section 29 of the Criminal Justice Act 1924. Such a filter is necessary, otherwise our final court of appeal would be overwhelmed with cases, many of which may be lacking in merit.

Senator Bacik's amendment concerns who may issue the required certification. Her amendment seeks to remove the possibility of the DPP or the Attorney General certifying a point of law with the result that the court alone would be eligible to certify. I understand that this proposal is motivated by the desire to rectify the apparent lop-sided nature of the section in this regard but, in fact, the provision is not lop-sided. The acquitted person can call on any of the named parties, the court, the DPP or the Attorney General, to issue the necessary certificate. Equally, in the event that the DPP wishes to appeal, he may certify a point himself or call on the court or the Attorney General. Removing the references to the DPP and the Attorney General would have the effect of narrowing the options available, not only to the DPP but also to the acquitted person.

I acknowledge that the section does provide an inequality of position in that the DPP, as a party to the proceedings, can certify the appeal himself while the acquitted person cannot, but that inequality comes from the different role of the DPP and is not unconstitutional discrimination or an inequality of arms. The DPP, aside from having an interest in the particular case, has an interest in ensuring the law is clarified for future cases. It is to be presumed the DPP will exercise his discretion appropriately. Equally, it can be presumed that the Attorney General, who is a constitutional officer, would exercise his discretion appropriately as well.

It must be recognised that the DPP and the Attorney General, as public officeholders, have a specific role to play in safeguarding the public interest. Permitting the court alone to certify could potentially restrict consideration of what is a desirable point, and that is in the public interest a key element of the basis on which an appeal may be taken to the Supreme Court. Having looked at it, we decided that the proposed amendment would be a negative for the acquitted person and would be against safeguarding the public interest.

I thank the Minister for giving it his considered attention. As he stated, it is a lop-sided provision, especially if the DPP himself is appealing. Although section 10 provides for the court to make the retrial order, I suppose the DPP could appeal. In that situation, it seems even more unbalanced that he would be the one then certifying that the determination involves a point of law of exceptional public importance.

I am not sure my amendment in fact restricts the acquitted person's options. In practice, the acquitted person is most likely to apply to the court for this determination. One can foresee that it might become almost a formulaic exercise, and I hope that does not happen. My amendment would have been a preferable option.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 16:

In page 19, line 35, after "section" to insert the following:

", and only where the Director of Public Prosecutions is contemplating the making of an application for a re-trial order undersection 8 or section 9 of this Act.”.

This arises out of Committee proceedings which did not include this amendment. In the debate on section 16, however, I stated that I would table it on Report Stage. I expressed concern about section 16 and the wide-ranging powers it appeared to give the Garda in terms of arresting an acquitted person, and I expressed concern about the potential for the Garda operating a fishing expedition, essentially seeking to obtain the new and compelling evidence required. There is a requirement that a superintendent or somebody of a rank superior to superintendent would apply to the court first, stating that he or she had information which was likely to reveal or confirm the existence of new and compelling evidence, but that is not a sufficient safeguard for the acquitted person. I would prefer to give the DPP a specific filtering role in respect of the operation of section 16.

What I have proposed is not to undermine section 16 altogether or to oppose the section as I did on Committee Stage because while the Minister explained fairly the purpose of section 16, there is still a requirement for an additional safeguard. I propose that there would be a safeguard in section 16(1) that a person could be arrested again in accordance with this section "only where the Director of Public Prosecutions is contemplating the making of an application for a re-trial order undersection 8 or section 9 of this Act”. In other words, I am giving a role to the DPP in the first instance in filtering this mechanism so that it cannot simply be a garda operating on his or her own behalf and that there must already be in contemplation by the DPP the making of an application for a retrial order. It seems that it is important to ensure against the sort of fishing expeditions about which I speak, and particularly because this section will allow an acquitted person to be arrested and then detained for up to 24 hours and questioned or interrogated during detention, even where he or she has already been tried and acquitted for a criminal offence.

It is a radical departure that section 16 proposes in terms of new powers for the Garda and I would ask the Minister to consider a safeguard of this nature to ensure the DPP will have a role in making a decision of some kind before the Garda can apply to the District Court for the permission to arrest and detain.

I second the amendment.

The effect of the Senator's amendment is that a superintendent could make an application to a judge of the District Court for an arrest warrant under section 16 only where the DPP is contemplating the making of an application for a retrial order under sections 8 or 9. This would suggest to me that there is some confusion about the scope of section 16.

The arrest power in section 16 does not apply to section 9; it is confined to section 8. The references to "relevant offence" and "new and compelling evidence" in the section make clear that these concepts only arise in the case of section 8. As I outlined during the Committee Stage debate, its purpose is to allow the Garda Síochána to further investigate information that has come to its attention since the person's acquittal which is likely to reveal or confirm the existence of the new and compelling evidence. It goes without saying that an application by the DPP under section 8 to have an acquittal quashed and to have the person retried must be based on new evidence that has not been properly verified by gardaí to ensure its reliability and substance. The DPP cannot contemplate an application under section 8 until the existence of the new evidence has been established. Requiring the approval of the DPP before an application for the arrest warrant can be made under section 16 would be akin to putting the cart before the horse.

I accept that the arrest of a person in connection with an offence of which the person has already been acquitted must be seen as an exceptional event and must be subject to safeguards. That is why section 15 prohibits the use of many standard Garda investigative powers other than as provided for in sections 16, 17 and 18.

Sections 16 and 17 require judicial authorisation of the arrest of the acquitted person in connection with the offence of which the person has been acquitted. It must be emphasised that before issuing an arrest warrant, the judge must be satisfied on information on oath provided by a senior member of the Garda Síochána that the member has information regarding the relevant offence in respect of which the person was acquitted which has come to the attention of the Garda since the person's acquittal and which is likely to reveal or confirm the existence of new or compelling evidence on the person's suspected participation in the relevant offence for which his or her arrest is sought. The test requires the judge to have regard to the exact threshold that must be met to ground an application for a retrial on the basis of new and compelling evidence under section 8. I am satisfied that such independent oversight provides a strong safeguard against any misuse of power.

Finally, if the approach proposed by the amendment were to be included in section 16, a similar approach would have to be included in section 17. Section 17 deals with an acquitted person who is already in prison for an offence. As is the case with section 16, such a person may only be arrested in connection with his or her involvement in the offence for which he or she has been acquitted pursuant to a warrant issued by a District Court judge. Notwithstanding that the person is in prison, the same safeguards should apply. This would be the approach taken in the Bill as it stands.

Section 16 is an essential section. Without it we might never be able to bring an application under section 8 based on new and compelling evidence. Section 16, as drafted and when taken in conjunction with section 15, strikes the proper balance between respecting the status of the acquitted person and the need to investigate and verify new evidence. Therefore, I could not accept the amendment.

I am disappointed that the Minister will not accept the amendment in principle, although I take his point that section 9 should not be included. I also take his point that it would require a similar amendment to section 17, as well as to section 18 which allows for a search warrant. It is set up as an exception to the general safeguard provided in section 15. I drafted the amendment as a result of proceedings on Committee Stage because I considered it was an important principle to be included in the Bill. It is to ensure the Director of Public Prosecutions would filter, make or contemplate a decision before the Garda Síochána would move to seek an arrest or a search warrant in respect of an acquitted person.

Amendment put.
The Seanad divided: Tá, 5; Níl, 25.

  • Bacik, Ivana.
  • Mullen, Rónán.
  • Prendergast, Phil.
  • Quinn, Feargal.
  • Ryan, Brendan.

Níl

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carroll, James.
  • Carty, John.
  • Cassidy, Donie.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Keaveney, Cecilia.
  • Leyden, Terry.
  • MacSharry, Marc.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • White, Mary M.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Ivana Bacik and Phil Prendergast; Níl, Senators Camillus Glynn and Diarmuid Wilson.
Amendment declared lost.

I move amendment No. 17:

In page 24, line 15, before "arising" to insert the following:

"which gives to a directed verdict or which prevented the jury from considering evidence which was properly admissible or a misdirection of law to the jury".

This amendment was debated on Committee Stage, and I believe the Minister accepted it in principle then. It is based on the expert group report on balance in the criminal law. Page 248 of that report recommended a similar wording to qualify where the with-prejudice prosecution appeals may be taken. It is simply to say that these would arise where the decision is made on a question of law which gives rise to a directed verdict — I apologise for the typo in the amendment — or which prevented the jury from considering evidence which was properly admissible or a misdirection of law to the jury. The Minister indicated on Committee State that he would table an amendment in similar terms on Report Stage, or perhaps it will be in the other House.

I second the amendment.

I agree with the Senator and I shall be tabling an amendment to this effect in the other House. We shall be endeavouring to ensure the threshold of any appeal is sufficiently high to protect jury decisions, following receipt of all admissible evidence, while at the same time not setting the bar so high that the section is inoperable. If the Senator agrees to withdraw her amendment, I undertake to table an amendment in the other House, which ultimately will come back to the Seanad as well.

I am grateful to the Minister for accepting the principle of this amendment and I will withdraw it in the light of what he has said, although I am sorry he was not able to bring it forward in this House. None the less, I am grateful to him for accepting the principle, which is important, again given that this is a radical departure from the current procedures and will allow with-prejudice prosecution appeals. I am glad he will be ensuring a stricter safeguard for jury verdicts.

Amendment, by leave, withdrawn.

I move amendment No. 18:

In page 24, line 24, after "Court" to insert the following:

"if satisfied that the Director has given the person concerned all reasonable notice to facilitate his or her appearance and".

I second the amendment.

Amendment put and declared lost.
Question proposed: "That the Bill, as amended, be received for final consideration."

I propose to table another amendment in the Dáil in relation to the Supreme Court case that is being dealt with at the moment. There is some uncertainty about the hearing before the Supreme Court, but in an earlier hearing the court gave an indication that in dealing with what are called hybrid cases, namely, ones that may be tried as summary or indictable offences, the District Court was entitled to refuse jurisdiction if it was of the view that the offence was not a minor one. However, the court appeared to say that there was no procedure to permit the District Court judge thereafter to return the accused for trial on indictment.

I understand there is likely to be a further hearing on the matter very soon. However, if the earlier indications were to prevail, it will be necessary to table an amendment that would clarify the position. It was always understood that where a District Court refused jurisdiction, it had powers to refer for trial on indictment, so we shall be tabling an amendment dependent on what happens in the Supreme Court decision.

Question put and agreed to.
Question proposed: That the Bill do now pass."

I thank the Minister for spending his time in the House on this Bill. I was not happy with the responses to the different amendments I had tabled, both on the rights of victims and on the double jeopardy rule, so I shall wait for the next Bill to see whether any amendment I put forward might be accepted by the Minister. None the less, I thank him for dealing with the Bill from beginning to end, and also the officials who assisted in its preparation.

I, too, thank the Minister for taking this Bill through the House. We have had some very constructive and useful debates on the provisions within it. I am particularly grateful to him for accepting my amendment on the victim statements, thus ensuring a family can give evidence on the impact of the offence upon somebody who has died following an injury and having survived for some time. That is an important principle.

I am also grateful to the Minister for accepting in principle the amendment we have just discussed on the with-prejudice prosecution appeals. I hope he reflects on some of the other amendments I tabled. Perhaps the relevant changes could be made during the Dáil debates. I am grateful to the Minister for accepting my amendments and I welcome the important new safeguards for victims in this Bill.

I thank Senators on all sides for the constructive discussion we have had on this Bill. I strongly believe that issues are well argued and teased out when they come to the Seanad. Senator Regan may believe I have been down on him in that I have not accepted any of his amendments. However, the fact that we have such good debates in this House is, I believe, yet another reason — I hope the Senator takes this in the best spirit — the Seanad should not be abolished.

Question put and agreed to.

When is it proposed to sit again?

Tomorrow morning at 10.30.