SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS debate -
Tuesday, 29 Jun 2010

Criminal Procedure Bill 2009 [Seanad]: Committee Stage

Chairman

The meeting has been convened to consider the Criminal Procedure Bill 2009. Apologies have been received from Deputy Noel Treacy. I welcome the Minister for Justice and Law Reform, Deputy Dermot Ahern, and his officials to the meeting. A grouping list has been circulated. As we are in public session I request that all mobile phones be switched off.

I wish to draw the attention of members to a typographical error in amendment No. 1 to amendment No. 9. The word "proceedings" was incorrectly spelled on the additional amendment list. Also amendment No. 8, tabled by Deputy Pat Rabbitte, has been disallowed as it involves a potential charge on the Exchequer. The amendment seeks to provide limited legal representation to persons seeking statements or giving evidence to the court which could involve extra expenditure on legal aid.

Section 1 agreed to.

SECTION 2

Minister for Justice and Law Reform (Deputy Dermot Ahern)

I move amendment No. 1:

In page 6, line 18, to delete ", Equality".

This amendment reflects the change in the Department's title.

Amendment agreed to.

Deputy Dermot Ahern

I move amendment No. 2:

In page 6, between lines 21 and 22, to insert the following subsection:

"(2) In this Act, unless the context otherwise requires, references to—

(a) a jury shall, in relation to proceedings conducted before a court sitting without a jury, be construed as references to that court, and

(b) a person being sent forward for trial include, where appropriate, references to such a person being sent or being sent forward for trial to, or charged before, a Special Criminal Court.”.

This amendment adds a new subsection to section 2, the interpretation section. Deputies will recall that this Bill provides for three scenarios in which an acquitted person may be retried. The purpose of the amendment is to ensure that terms in the Bill that apply to the ordinary courts may be construed, when the need arises, as referring to a Special Criminal Court and the procedural steps related to bringing a person before such a court. The terms are "a jury" and "a person being sent forward for trial".

Paragraph (a) provides that “a jury” shall in relation to proceedings conducted before a court sitting without a jury be construed as references to that court. In effect a Special Criminal Court.

Paragraph (b) deals with the phrase “a person being sent forward for trial”. When an accused is being dealt with by the ordinary courts he or she is sent forward for trial by the District Court to the Circuit Court or the Central Criminal Court. In the case of a Special Criminal Court three possibilities are open: the accused may be sent forward to the Special Criminal Court by the District Court; the proceedings may be transferred from the ordinary courts to a Special Criminal Court after the District Court has sent the accused forward for trial; and, finally, some persons are charged before a Special Criminal Court and never appear before the District Court. Paragraph (b) tries to capture all of these scenarios.

These terms arise from amendments that I propose to move on later sections in the Bill. Amendments Nos. 9, 11 and 24 include references to "a jury" while amendments Nos. 12, 15 and 22 include references to a person being sent forward for trial. As we shall see later, these amendments relate to the scope of the retrial procedures and the standard to be applied by the DPP when making a decision to seek a retrial and by the court when determining whether to grant a retrial.

Amendment agreed to.

Section 2, as amended, agreed to.

Section 3 agreed to.

SECTION 4

Chairman

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

Deputy Dermot Ahern

I move amendment No. 3:

In page 6, to delete lines 32 to 38 and substitute the following:

"(b) an offence involving violence or the threat of violence to a person,

(c) an offence under the Non-Fatal Offences Against the Person Act 1997, and

(d) an offence consisting of attempting or conspiring to commit, or aiding, abetting, counselling, procuring or inciting the commission of, an offence mentioned in paragraph (a), (b) or (c).”.

The purpose of this amendment is to expand the range of offences to which the mandatory victim impact evidence provisions in section 5 of the Criminal Justice Act 1993 apply. At present the provisions apply to sexual offences, offences including violence, threats of or attempts at violence and conspiracies to commit such offences. Section 4 which substitutes section 5 of the 1993 Act, retains these categories. My amendment would add a further new category of any offence under the Non-Fatal Offences Against the Person Act 1997. This addition appears in paragraph (c) of my amendment.

I am aware that many of the offences under the 1997 Act, by their nature, include physical violence in some form, and therefore already come within the mandatory impact arrangements. For example, the Act provides for assault offences of varying degrees of seriousness, syringe offences, coercion, threats to kill and so on. However, the Act contains a small number of offences which do not necessarily involve violence, but which can cause substantial emotional distress to the victims. Examples of such offences include harassment, false imprisonment, and for instance, abduction of a child, as provided for in sections 16 and 17. The need to make these provisions were highlighted during the Seanad hearings, so I am thankful for that. Deputy Rabbitte and I note this all the time that good arguments sometimes arise on legislation going through the Seanad, and this is something that we listened to and followed up on.

While every judge retains the discretion to call victim impact evidence, it is appropriate to extend the mandatory arrangements to all the offences under the 1997 Act, to capture offences of this nature. I note Deputy Rabbitte's amendment seeks to cover the same ground as mine. However, he proposes what would appear to be a subjective test, in that his amendment focuses on offences which cause harm to the victim, something which naturally only the victim can know. I asked my officials to examine the feasibility of such an approach with the Office of the Parliamentary Counsel, but it was concluded that it would not afford sufficient certainty and could mean added distress to victims since it would be difficult to know in which cases the mandatory provisions applied without first establishing whether the victim had suffered harm. This need to establish whether a victim suffered harm prior to the application of section 5 would run the risk of the matter becoming the subject of legal argument at sentencing hearings. To avoid this I have opted for an objective approach, focused on the fact of a conviction having been recorded in relation to the particular offence. My approach is in line with that followed in section 5 to date. The test for sexual offences is an objective one, as is the test of whether an offence involves violence. I therefore believe continuation of this approach which has worked up to now should be the norm in the interest of victims. I urge the committee to accept my amendment and I ask Deputy Rabbitte to accept that this is a better approach than that proposed in his amendment.

Deputy Pat Rabbitte

As the Minister said, the amendments cover similar territory and I, too, wanted to broaden the range of offences that could be covered by the victim impact statement. It is true that this matter was traced in the Seanad. This is the fourth time now that I have heard the Minister praise Senators' attention to legislation. I must check privately at some stage whether the Fianna Fáil Senators have a vote on any vacancy that might arise, because-----

Deputy Dermot Ahern

No, they do not. Deputy Rabbitte can leave his cynicism outside the door.

Deputy Pat Rabbitte

It is true in this case that Senators Bacik and Regan tracked this Bill in a fashion that, contrary to what the Minister says, one does not always see happening in the other House.

The Minister has criticised my amendment in terms of the lack of certainty and said the test is a subjective one. All I am seeking to do is to point out that there might be offences that do no not involve violence or the threat of violence. My amendment instances harassment or false imprisonment, for example offences that create fear, but where it is not necessarily the case that they involve violence or the threat of violence. I accept that the Minister has come a large way down the road on this and I am content to withdraw my amendment in favour of his.

Chairman

Thank you, Deputy.

Deputy Charles Flanagan

I was somewhat distracted last week in the preparation for this afternoon's debate, but I wish to flag that this is an area that we might, perhaps, revert to on Report Stage. I take the view that all victims of crime should be offered a voice and due recognition in the context of court proceedings. While the Minister has broadened substantially the mandatory provision for the victim impact statement, there will still be occasions upon which an opportunity might not be forthcoming. However, I welcome what the Minister has done. It is an important step forward and improves the Bill in so far as the position of the victim is concerned. I accept his amendment. If there are further submission or observations to be made on this, perhaps we they can be made on Report Stage.

Deputy Dermot Ahern

I thank the Deputies, and Deputy Rabbitte in particular, given that he had tabled an amendment on this. If one looks at the Non-Fatal Offences Against the Person Act 1997, one sees that it is very broad. I am just looking down the list of sections. It includes, assault, assault causing harm, serious harm, threats to kill, syringe attacks, offences for the possession of a syringe, placing or abandoning a syringe, coercion, which might not involve violence, harassment, and there does not necessarily have to be physical violence. This is a fairly broad extension that we are putting in, with this amendment, to facilitate a victim impact statement to be made. It includes demands for payments of debt causing alarm, poisoning, endangerment, endangering traffic, false imprisonment, abduction of a child by a parent, or by other persons, justifiable use of force and so on. It is fairly extensive, and as I said, it is a wide extension of the existing provision, and the original provision of the Bill, as a result, I emphasise, of the discussion we had in the Seanad. I thank the Deputies.

Amendment agreed to.

Amendment No. 4 not moved.

Deputy Pat Rabbitte

I move amendment No. 5:

In page 7, line 17, after "by" to insert "the prosecution or".

This amendment is proposed for clarification reasons. The amendment does no more than seek to recognise that in practice, the application for a victim impact report is made by counsel for the DPP, rather than by the victim directly. It is necessary to make that clear in the section.

Who exactly is responsible for guiding the victim through the process? It is not clear. My amendment highlights that. I am sure the Minister and his colleagues have had the benefit of an initial submission made on this by the Irish Council for Civil Liberties, which made a similar point on whether the proposals fully consider the needs of the victim impact regime. The submission raises the point that it is not apparent from the Bill:

Who should take responsibility for guiding the victim through the process - the gardaí, the DPP or the judge? Such practical clarifications often make a big difference to the actual experience of crime victims and their families.

That is a reasonable point. I presume most amendments agreed today will have to go back to the Seanad because they originated there. That clarification should be dealt with and all I seek to do in this constrained amendment is to recognise that in practice, the application for a victim impact report is usually made on behalf of the DPP by counsel for the DPP, rather than by the victim. The section currently states that a court shall, "upon application by the person in respect of whom such an offence was committed". That implies that it is the victim.

Deputy Dermot Ahern

We have taken advice on this from the Office of the Attorney General and we were advised that it is unnecessary. Section 4(3) provides that the sentencing court is obliged, upon application by the person in respect of whom the offence was committed, to hear the victim impact statement. It would be a mistake to say that the words "upon application by the person" excludes somebody else from making the application on behalf of that person. There are many instances in the statute book where the accused is entitled to take some action in proceedings and no reference is made to the possibility of his or her legal representative doing it on his or her behalf. It is regarded as a given.

In the case of victim impact statements, I understand that the normal practice is for counsel for the prosecution to make an application on behalf of the victim. The onus is on the prosecution to inform the victim, who is in effect a State witness. The formula in section 4(3) allows the existing practice to continue. I would be concerned that if we accepted Deputy Rabbitte's amendment it would give the impression that the prosecution, without establishing the wishes of a victim, has the right to make the application to the court under section 4(3). The right to make a victim impact statement belongs to the victim and it must be left to the victim to make the decision as to whether he or she wishes to exercise that right. If the prosecution was to be permitted to act independently in this matter, which could be an interpretation of this amendment, the end result would be that the victim might feel pressurised into making a victim impact statement because the court has already granted the prosecution's application.

Liaison is normally carried out by the prosecution service and the Garda Síochána in the court. The Garda has liaison officers appointed to most victims of crime in substantial cases. The current practice is working reasonably well. We have no complaints about it. I can understand what Deputy Rabbitte is getting at, but I suspect that it is better to leave it up to the victim to decide on whether to make a statement, and not be put under an onus by some overbearing prosecution counsel who feels it might help the overall case.

Deputy Pat Rabbitte

If "overbearing" may be appropriately applied to prosecution counsel, there will be areas of its case to which it will have more relevance than here. I really cannot see circumstances where an application is made by counsel for the prosecution without the assent of the victim. That is highly unlikely. I accept that the Bill, as worded, does not necessarily exclude the kind of circumstance that I am advocating. Given that the practice is that it is counsel for the DPP who would normally make this request, I merely suggest that for clarification purposes, it is desirable that it should state that. As it is currently stated, it seems to me to suggest that it is the victim who must do it and the victim only.

Perhaps when the Minister replies, he might explain who in the administration of justice is responsible for guiding the victim through the process. He states that liaison officers have been appointed and so on, but should it not be prescribed in the Bill given that we are addressing the issue of criminal procedure? Information is a major issue here. Should we not be more prescriptive, given some of the very sensitive and stressful circumstances that may be present in some of these cases, that it is clear who has the responsibility for guiding the victim in the direction of asserting the rights and entitlements that the victim now has?

Deputy Dermot Ahern

All of this is contained in the victims charter. I am not sure if the Deputy has seen it. The Garda Síochána also has it in its own charter. The victims charter refers to the type of supports needed to assist victims. The charter will clearly state that the Garda Síochána is required to inform a victim that he or she has the right to make a victim impact statement when that is the case. My understanding is that this is working well. The Garda Síochána has liaison officers and the charter contains principles that guide them through a prosecution. It was previously the case that the Garda did not have any liaison officers because the general view was that the witness was not there as a victim. The witness was there to support the State in the prosecution of the offence, but this is the whole aspect of the type of statutory and non-statutory efforts we have made in recent times.

We will publish the latest edition of the victims charter next week. It is a very simple document. In fact, we won an award for plain English, approved by NALA, so it is very easily read.

Deputy Pat Rabbitte

Was that NAMA?

Deputy Dermot Ahern

It was NALA. Does the Deputy know of NALA?

Deputy Pat Rabbitte

I do. It is the adult literacy body.

Deputy Dermot Ahern

The Deputy seems to have NAMA on his mind.

Deputy Pat Rabbitte

I also know what NAMA means.

Deputy Dermot Ahern

Deputy Rabbitte seems to have NAMA on the brain.

Deputy Pat Rabbitte

Indeed I do, as do 4.5 million people.

Deputy Dermot Ahern

We will not go there, because the Deputy would have had us putting even more money into Anglo Irish Bank - up to €42 billion.

Deputy Pat Rabbitte

I hope the rest of the Minister's statements are more truthful than that one.

Chairman

We shall stick to the Bill and let others deal with those other matters.

Deputy Pat Rabbitte

I would put a good deal of the current members of the Government responsible for this into NAMA and sequester them in Anglo Irish Bank on St. Stephen's Green.

Chairman

We should stick to the Bill.

Deputy Dermot Ahern

The victims charter clearly indicates what is required on victim impact statements. The Deputy's formulation, which in effect states that either the prosecution or the victim can make this application, would mean that, given the circumstances of a particular case, a victim may find that he or she already has counsel on behalf of the State, perhaps through a misunderstanding, and it is indicated in the court that the victim wants to make a victim impact statement when he or she does not want to do so. Some victims do not want to come forward and want to keep their anonymity.

To a certain extent, we are on the same hymn sheet on this issue. However, the Deputy's inclusion of the term "the prosecution or" the victim leaves open the possibility of a situation where someone's views may not be taken into account. For example, the prosecution may feel, having perhaps talked to the Garda Síochána, that it would be better regarding the end result of the case that a victim impact statement is given whereas the victim may have his or her own views which may not have been taken into account.

Deputy Charles Flanagan

Part of the problem, which is highlighted by the differences in the contrasting positions between my two colleagues and which was highlighted in the Fine Gael Bill that was rejected out of hand by the Minister the year before last, is the issue of the information deficit in the system. This was pointed out not merely by Fine Gael but by other groups, the ICCL in particular, and it has now been highlighted in the recent debate between Deputy Rabbitte and the Minister.

The difficulty is knowing precisely the procedure concerning the role of the information providers. One of the deficiencies is that the victims' charter - the Minister has a new one which I have not seen and I am not sure it has been published-----

Deputy Dermot Ahern

It will be next week. There is an existing one.

Deputy Charles Flanagan

There is, but it is ten years old.

Deputy Dermot Ahern

It is still as relevant today as it was.

Deputy Charles Flanagan

It is lacking in the mandatory status necessary because it is lacking in the statutory recognition that is necessary. This is why I feel this legislation was a missed opportunity by the Minister. I understand his point about this new charter that has not yet been published, and I hope it will be published at the earliest opportunity. Now is the time to deal with that in the context of passing this legislation, which will happen. There is a difficulty, however. One of the key criticisms in the current regime is the lack of clarity as to the process and the main decision makers in terms of a victim having a say or being offered recognition and a voice. Will the Minister publish that document before we pass this legislation? As I requested more than a year ago, the new, modern, best practice victims charter should be statutorily recognised in this legislation. We now have an opportunity to do this.

Deputy Dermot Ahern

I differ from Deputy Flanagan on the Bill published, which had a very distinct similarity to another Bill published in New Zealand eight years previously.

Deputy Charles Flanagan

We have been through all that before.

Deputy Dermot Ahern

The only omissions were two sections relating to the assent of the Queen. Therefore, I decided, given we are a sovereign Parliament-----

Deputy Charles Flanagan

That is a travesty.

Deputy Dermot Ahern

-----that rather than plagiarise a Bill from New Zealand-----

Deputy Charles Flanagan

We need to deal with the issue now.

Deputy Dermot Ahern

-----we might be better to decide with regard to our own circumstances.

That Bill included significant statutory provisions on victim impact statements and treatment of victims. We regarded that as a potential playground for lawyers if there was statutory mandating of certain things to be done, which, if all the boxes were not ticked, could lead to more bureaucracy and more difficulty in proving cases. We felt it was far better to deal with the whole issue of a victims charter on a non-statutory basis and, in practice, that is what is happening.

Although the victims charter is ten years old and we will publish the new one next week, the old victims charter has stood the test of time. To be fair to the Garda Síochána - I say this as one who, like the Deputy himself, practised in the District Court - the liaison a few decades ago was non-existent but there is a substantial liaison today. Time and again, I get compliments from people in the victims area who say that gardaí were very accommodating and fully explained the legal case, which is sometimes quite traumatic for those involved. We have done a good job over the past decade or so in assisting victims. We are not on a different page on this issue.

Deputy Charles Flanagan

The Minister is, of course. Without labouring the point, the Minister is doing a disservice to Parliament and to the process by having a document in his hand in the context of this debate that he will not disclose to the committee.

Deputy Dermot Ahern

I can disclose it. We we will publish it on 7 July.

Deputy Charles Flanagan

This is the time-----

Deputy Dermot Ahern

It was approved by Cabinet last week.

Deputy Charles Flanagan

We are discussing victims' rights, the victims charter, the position of victims, the recognition of victims and the placing of the victims at centre stage in the criminal justice process. Yet, as we are debating it here in committee, the Minister pulls the rabbit from the hat that he has the solution in his hand but nobody can see it. That is doing Parliament a disservice.

Deputy Dermot Ahern

The Deputy is going completely over the top in this regard. There is an existing charter.

Deputy Charles Flanagan

It is weak.

Deputy Dermot Ahern

It is not weak. It works, and works very well.

Deputy Charles Flanagan

It has been criticised by national and international groups.

Deputy Dermot Ahern

This is the subject of consultation with the victims groups. We have a dedicated victims office in the Department, the sole job of which is to liaise and to move policy in regard to victims. We have a victims commission, which the Government funds, and one of its projects is the victims charter. Much work has been done in regard to assisting victims side by side with this legislation, which I sponsored and promoted as one of the first Bills when I came into Government. Given that this is the first time ever that we are dealing with the rule against double jeopardy and, in effect, making exceptions in that respect, we have to give some credit to the policy moves we are making. If we do as the Deputy is proposing, as per the New Zealand Bill, it would be a lawyers' charter or playground in that they would be going through the legislation line by line to ensure all these issues have been dealt with. It is far better to leave it as it is, on a non-statutory basis. I am not aware of a huge demand by victims for a change in this regard. I have spoken to the Commission for the Support of Victims of Crime, which for a long period included among its members a former Minister for Justice from the Deputy's party. The commission is satisfied with my proposal. The Deputy is trying to have his cake and eat it.

Deputy Pat Rabbitte

It is clear the Minister has fixed his mind against the amendment, so I will not waste more of the committee's time.

Amendment, by leave withdrawn.

Deputy Pat Rabbitte

I move amendment No. 6:

In page 8, between lines 34 and 35, to insert the following:

"(5) 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.”

The Minister and members will be aware that this amendment derives from the obiter comments made by Ms Justice Macken in the course of the Wayne O’Donoghue case. The amendment proposes the insertion of a new section which provides that where there is an oral statement by a victim or, more likely, a relative of a victim, that 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.

I am somewhat conflicted about this issue, having received representations on both sides of the argument. We are dealing with a difficult judgment. I do not want to reopen the O'Donoghue case as most of us are familiar with it and will have opinions about it. To maintain the privacy of those opinions is perhaps the most helpful approach here. When the matter came before Ms Justice Macken, she clearly suggested in obiter dicta that relatives delivering victim impact statements should be warned that they may be in contempt of court if they go outside certain parameters. As I understand it, and I am open to correction by the Minister, the current procedure requires counsel for the defence and the court to be advised of the statement to be made. What happened in this particular case is that the person making the statement went beyond the agreed statement. As a result, Ms Justice Macken gave her view that relatives ought to be warned of the implications of doing that, namely, that they may find themselves in contempt of court. That is not an injunction that applies to anybody else. Why should it apply to relatives in the context of what may be a very traumatic trial?

One of the reasons for my doubts regarding this issue relates to subsection 4(5) which states: "The court may, in the interests of justice, order that information relating to the evidence given under subsection (3) or a part of it shall not be published or broadcast". If, for example, we had a repeat of what happened in the O'Donoghue case, does this provision mean the court would be in a position to order that any members of the press present cannot broadcast or report those additional remarks? Many practitioners would not necessarily agree with the remarks made obiter by Ms Justice Macken in the case in question, which is not to say they are right. We are talking about a procedure where those involved are experiencing great emotion and distress. People are very vulnerable in those circumstances. What would a formal warning do to the process envisaged in the Bill, which the Minister is including for the first time in this type of legislation?

Deputy Dermot Ahern

As the Deputy said, much of this flows from the O'Donoghue case. We have endeavoured to strike a balance in terms of assessing the reasonableness of a person moving beyond the parameters of an agreed victim impact statement. On 18 October 2006 the judge in the O'Donoghue case gave the view that the intended victim impact statement should be submitted both to the sentencing judge and to the legal representatives of the accused, it being assumed it would already have been made available to the prosecution. This must be done in advance of the making of the statement in court so that the sentencing judge and the accused's legal representatives may have an opportunity of ensuring it contains nothing untoward.

Deputy Pat Rabbitte

Is it generally the case that the defence counsel and the court are given notice of the written statement?

Deputy Dermot Ahern

Yes, that is the normal procedure. Assuming the content of the proposed statement meets the requirement, Ms Justice Macken was of the view that the person proposing to make the statement should be warned by the sentencing judge that if, in the course of delivering the statement, he or she should depart in any material way from the statement as submitted, then he or she may be liable to be found to have been in contempt of court.

We are faced with a choice. Do we try, from a statutory point of view, to prevent this from happening? Where the person who is making the statement goes beyond the notified content, the judge in the case to which we referred suggested that he or she may be tried for contempt of court. The other option is to restrict publication of comments made where a person has gone outside the submitted victim impact statement, which is what we have opted for in subsection (5). At a conference held on 11 June 2010, the Director of Public Prosecutions referred to victim impact statements and more or less welcomed the proposed changes to the making of such statements. He referred to the statement by the court of appeals I have just read out, in which the judge stated that were someone to depart from the submitted statement, he or she may be liable to be found to have been in contempt of court. At the conference, the Director of Public Prosecutions stated:

the ... Bill now proposes a different solution. It will empower the court, in the interests of justice, to order that information relating to evidence given by a victim or part of it should not be published or broadcast. Had this provision been in force at the time of the O'Donoghue trial the trial judge would have been entitled to make an order prohibiting publication of matters which were alleged but which had not in fact been proved in the course of the trial. This solution may not commend itself to everybody, but it does have the advantage of giving the court a procedure to control any matter which it considers is unfair to a party to the case without having to go through the process of censoring a victim impact statement in advance or without holding over a crime victim the threat of being punished for contempt of court which is a prospect that nobody involved in the criminal justice system [would] regard as a desirable outcome.

This issue has been closely examined but I consider that rather than putting someone on the hazard of contempt of court, it would be better to give the court the option to order the non-publication of the matter at issue.

Deputy Pat Rabbitte

I refer to circumstances where the existing procedure requires that defence counsel be put on notice and the court advised of the statement to be made. If the written statement contains something that is considered to be unfair or prejudicial to the defendant, is this thrashed out between counsel or can the court require that something be excised?

Deputy Dermot Ahern

The court would require that such material be excised. Obviously, this would be subject to legal argument before such a statement would be allowed to be read in open court.

Deputy Pat Rabbitte

If an amendment such as this is not included in the Bill, is the Minister suggesting that the court has the discretion in such matters at present? Does he suggest that henceforth, it will have the power under subsection (5) to specify that while a person would be free to go outside of the parameters, it may not be broadcast?

Deputy Dermot Ahern

Yes. The Deputy's amendment does not add anything to the existing law. While the court probably has some residual power to ban the publication of such material, that could be queried by the media concerned. However, subsection (5) sets out in statutory form that the court has the option of banning the material that was not contained in the victim statement, that is, the additional piece to the victim impact statement. Obviously, it is will be up to the court to decide this. Perhaps the additional piece uttered orally by the person giving the victim impact statement does not have any prejudicial effect and might not be a huge issue. Consequently, the court must decide in each circumstance on the non-publication of such additional comments.

Deputy Pat Rabbitte

Subsection (5) is a different way of addressing the remarks made by Mrs. Justice Macken.

Deputy Dermot Ahern

Yes, I believe it is. I read out the comments in which she stated that potentially, such people may be liable to be found to be in contempt of court. In other words, had all this been in situ at the time, the victim or in this case Mrs. O’Donoghue, potentially would have been in contempt of court. In effect, the victim would be put on a hazard. My method of approaching the issue gets around it in what probably is a smarter way by preventing publication.

Amendment, by leave, withdrawn.

Deputy Pat Rabbitte

I move amendment No. 7:

In page 10, line 13, after "public." 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 the court has a general power to receive victim evidence, even outside the specific offences to which the section applies. I merely seek to include a provision to make this clear.

Deputy Dermot Ahern

The situation the amendment seeks to bring about already exists. The mandatory provisions in the current law do not rule out the hearing of victim impact evidence in respect of cases not coming within these mandatory provisions. Section 5 of the 1993 Act is the basis of current law in this area and places a mandatory obligation on a judge to take account of victim impact evidence in respect of a range of offences directed against the person. This is the case even when the victim declines the opportunity to make his or her statement. The offences listed in section 5, together with the additional category pertaining to the Non-Fatal Offences Against the Person Act 1997 to which members already have agreed in amendment No. 3, are the categories of offences in which such a mandatory regime is most appropriate. The statutory obligation does not prevent a judge taking account of victim impact evidence in other types of cases if he or she considers that such evidence would be helpful in determining the appropriate sentence. Judges always have had this discretion and the creation of a mandatory obligation in certain categories of cases does not alter this. Consequently, I reiterate that the amendment tabled by the Deputy is unnecessary.

Deputy Pat Rabbitte

I take the Minister's submission at face value and withdraw the amendment.

Amendment, by leave, withdrawn.

Section 4, as amended, agreed to.

Sections 5 and 6 agreed to.

SECTION 7

Chairman

Amendment No. 8 in the name of Deputy Rabbitte has been ruled out of order because of a potential charge on the Exchequer.

Amendment No. 8 not moved.

Chairman

Amendment No. 9, the amendment thereto in the name of Deputy Rabbitte and amendments Nos. 16 and 18 are related and will be discussed together.

Deputy Dermot Ahern

I move amendment No. 9:

In page 11, between lines 13 and 14, to insert the following:

" "compelling evidence", in relation to a person, means evidence which—

(a) is reliable,

(b) is of significant probative value, and

(c) is such that a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned;”.

It is important, for the assistance of members on Report Stage, to put on record that these amendments relate to the tainted acquittal retrial procedure in section 9. Members will be aware that the tainted acquittal procedure is one of three retrial procedures in the Bill, the other two being a new evidence retrial procedure in section 8 and a with-prejudice prosecution appeal avenue in section 23. Before outlining my amendments relating to the tainted acquittal procedure, I wish to comment briefly on the procedure generally, to contextualise the amendments.

All three retrial procedures are innovative and represent a radical departure in the criminal justice system from what once was regarded as a basic legal principle, that is, a principle such as double jeopardy. There are many reasons not to reopen acquittals. One is that the absence of finality would subject the accused to considerable and continuing anxiety, turmoil and so on. Other reasons are the possible inequality of resources resulting in the accused not being able to prepare a proper defence on a second occasion, an increased likelihood that the accused will be convicted both because of the number of trials and because the prosecution will have advance knowledge of defences being made out and the fact that the absence of finality diminishes the respect and confidence of the public in the system.

However, factors that favour the status quo must be set against the public interest in seeing the perpetrator of a serious crime brought to justice. Society would be outraged if our prosecution authorities did not have the power to act against an acquitted person in the face of, for example, new evidence of the person’s responsibility for a murder of which he or she had already been acquitted or a conviction for perjury that was instrumental in the person’s acquittal. Furthermore, the victim would endure even greater distress.

Currently, if someone is prosecuted for murder and is acquitted, the person can walk out of court with the case finally determined and make a statement admitting to the murder. The person could not be tried a second time. That is one of the issues that arises. This Bill also considers tainted evidence, new DNA evidence and a number of other restricted exceptions to the rule against double jeopardy.

The proposals in this Bill that provide for retrials after acquittals represent a departure, albeit of a limited kind, from long-established constitutional principles. As such, they impact on the status and rights of the accused person. These changes are likely to find acceptance if they are accompanied by high standards and clear procedures. This is especially so in regard to the standards to be observed by the DPP when bringing an application and by the court when considering it. With this in mind, I propose a number of amendments to the standard that must be met by the DPP when he is determining whether to seek a re-trial and by the court when it is assessing the application by the DPP.

My amendments are aimed at ensuring we put an acquitted person through a re-trial only where there is a real prospect of a conviction, that is to say where there is sufficient evidence upon which a jury may convict. To put an accused person through the ordeal of a re-trial where there is no real prospect of a conviction would be unfair to the accused person and wasteful of resources.

The purpose of the three amendments before us is to raise the standard to be met before an application for a re-trial is granted in the case of the tainted acquittal procedure in section 9. Later amendments will address in similar fashion the standard for new evidence appeals and with prejudice prosecution appeals. As section 9 stands the DPP may make an order for a re-trial where the acquitted person or another person has been convicted of an offence against the administration of justice regarding the proceedings that resulted in the acquittal, as set out in section 9(1)(b); where it appears to him that it is probable that the commission of the offence against the administration of justice affected the result of the proceedings concerned, as set out in section 9(3)(a); and that it is in the public interest to do so, as set out in section 9(3)(b). Section 10(2) sets out the matters of which the court must be satisfied when granting the DPP’s application and quashing the acquittal. In addition to being satisfied that it is probable - having regard to all the circumstances - that the commission of the offence against the administration of justice affected the result of the proceedings, the court must be satisfied that it is in the interests of justice to order a retrial.

The current standard to be applied is one of assessing where the balance of probability lies. Amendments Nos. 16 and 18 substitute the balance of probability standard in section 9(3)(a) and section 10(2)(a) by a requirement that there is compelling evidence against the acquitted person. Amendment No. 15 inserts a definition of compelling evidence in section 7, which contains the definitions for this part of the Bill. The definition of “compelling evidence” has three elements. The evidence must be reliable, of significant probative value - of high evidential value - and such that a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned. This definition was formulated to incorporate the criminal standard of proof in order to ensure only the DPP makes a re-trial application and that the court only grants the application and quashes the acquittal where there is a real prospect of a conviction. While this may be implied by the requirement on the court in section 10(2)(b) to be satisfied that the making of the re-trial order is, in all the circumstances, in the interests of justice, it is desirable to provide explicit guidance to the DPP and the courts in this regard, not least in the interests of strengthening the State’s defence in the likelihood of a constitutional challenge to this legislation.

It has always been my expectation that the re-trial of an acquitted person would be a rare occurrence and the amendments will assist in this regard. Before concluding, I draw the attention of the committee to an important issue arising from paragraph (c) of the definition. It refers to a hypothetical future jury but it does not require the DPP or the court to look behind the verdict of the original jury to determine the reasons for the verdict to acquit and the extent to which the taint affected their deliberations. Sections 9(3)(a) and 10(2)(a) as currently formulated require the court to read the mind of the jurors and I am advised that, in doing so, it runs the risk of infringing the constitutional right to jury trial. The secrecy of jury deliberations is firmly established in our law. Any suggestion that it is possible to look behind a jury decision to see the reasons upon which it was grounded could be viewed as undermining our system of jury trial. In light of this, the formulation in paragraph (c) focuses on a prospective jury.

Overall, I am satisfied the cumulative effect of my amendments ensures the provisions are robust enough to withstand a constitutional challenge. In amendment No. 9, Deputy Rabbitte is proposing that the words "taken together with any other evidence in the proceedings" be inserted in paragraph (c) of the definition of "compelling". While amendment No. 11, which concerns the definition of "new and compelling evidence" and which applies to the fresh evidence re-trial procedure in section 8, includes similar wording to that proposed by Deputy Rabbitte, it is not appropriate in the case of the tainted acquittal procedure. In the fresh evidence re-trials there will, by definition, always be new evidence and it will be for the DPP to determine whether the totality of the evidence in the case - that is to say the new evidence together with any evidence adduced at the original trial - meets the required standard for a re-trial application. While in some tainted acquittal cases there may be new evidence, for example, where the taint was the result of perjury, that will not always be the case. For example, in the case of a corrupt juror the evidence available for the re-trial will simply be that adduced at the original trial. To deal with this paragraph (c) in the definition of “compelling” that will apply to tainted acquittals does not make any reference to “evidence being taken together”. I suggest Deputy Rabbitte’s amendment is unnecessary.

Deputy Pat Rabbitte

I move amendment No. 1 to amendment No. 9:

In the first line of paragraph (c), after “that”, to insert “, taken together with any other evidence in the processedings,”.

In cases where a re-trial can be ordered because the original trial was tainted, there must be a conviction for an offence against the administration of justice. This includes bribery, corruption and the Minister's reference to perjury. What are the figures for such convictions over the past decade, given the extent to which the Minister is relying on that argument in respect of my amendment? How many convictions have we had against the administration of justice as defined here over the past ten years? It is important we are satisfied about the definition of compelling evidence. The reference in section 23 appears to be different to the one in section 27. A piece of evidence might not be compelling in itself but, taken together with other evidence, it might make the case. We are taking a big step in terms of the time honoured rule against double jeopardy. I do not take the position that it has to be thus forever and a day and I accept that forensic science and techniques change and that the Minister is trying to ring fence the circumstances in which the rule against double jeopardy might not apply but, for obvious reasons, we must be careful in proceeding.

Deputy Dermot Ahern

I do not have figures to hand for prosecutions but I will try to get them for the Deputy.

Deputy Pat Rabbitte

Does the Minister know whether we are discussing anything in reality? Has a significant number of such prosecutions been pursued? They have passed me by if so.

Deputy Dermot Ahern

I know there have been some.

Deputy Pat Rabbitte

Very few.

Deputy Dermot Ahern

It is not the only one we are dealing with in this legislation. The amendments are more restrictive than we originally proposed because we found on close examination of the legislation that much of it was based on the original balance in the criminal law report by Gerard Hogan. The proposed amendments are more restrictive because we want to raise the bar on the DPP and the court in their assessment of the application to a criminal burden of proof rather than a balance of possibilities. It is safe to say this legislation will not be used very often but it will be valuable in certain exceptional circumstances. We have introduced significant checks and balances in reaching the point where someone who has been acquitted will be sent to trial for a second time. These include compelling new evidence, such as in regard to DNA or interference with witnesses. We are satisfied that the provisions can withstand challenges when the provision is implemented in certain specific circumstances.

Deputy Charles Flanagan

I am inclined to accept what the Minister has said on his amendments. This is an important component of the legislation and it goes to the heart of the changes. The exceptions to the rule against double jeopardy are important. The Minister was correct when he adverted to the report of the balance in the criminal law review group. There is an element of public disquiet when new material is discovered, such as a confession, that might point conclusively to guilt of someone who has been acquitted of a serious crime. The case has been made that such outcomes undermine public confidence in the system. The exceptions for new and compelling evidence for a retrial on grounds of a tainted verdict are, to my mind, accompanied by sufficient safeguards to deal with this important issue. We will deal with the issue of retrospection in a later amendment but I believe these changes are appropriate and necessary.

The Minister took the view that it would bring no great benefit to study legal changes in other jurisdictions. He used as an example a Fine Gael initiative based on the legal system of New Zealand. In this instance, however, to contrast his proposed measure with the practice in other jurisdictions, in Australia and the United Kingdom, for example, the exceptions to the rule against double jeopardy apply to a limited number of offences and circumstances.

Several types of offence would be applicable under the amendment's provisions for a retrial on grounds of tainted verdict or an offence against the administration of justice. One ground that has not been mentioned is the offence of intimidation of witnesses or jurors. In the context of organised crime and gangland activity, it is important that the term "offence against the administration of justice" is clearly defined to include the common law offences of attempting to pervert the course of justice, perjury and incitement to commit these offences. On balance, I support the Minister's amendments.

Deputy Dermot Ahern

Section 7 includes intimidation of witnesses and jurors within the phrase "an offence under section 41 of the Criminal Justice Act."

I thank the Deputy for his support. It defies logic that somebody who is acquitted of murder can admit responsibility virtually on the steps of the court without fear of a second prosecution. Clearly, however, such a statement would not necessarily result in a prosecution under this legislation because the DPP would have to apply to have the original acquittal reversed and a retrial ordered. Evidence would be required in regard to the circumstances of the statement. The same would apply in regard to tainted evidence, new DNA and interference with the trial process or the administration of justice. The Bill lists an offence under section 1 of the Prevention of Corruption Act, an offence under section 41 of the Criminal Justice Act 1999, which is interference with witnesses and jurors, attempts to prevent the course of justice, perjury, conspiring or inciting another person to commit any of these offences. We have a reasonable balance and it is perhaps more onerous than we originally intended. That is to ensure fairness to the person acquitted in the event of this being used against that person. It is also in order for this to pass constitutional challenge.

Deputy Pat Rabbitte

I thank the Minister for offering to let me have the figures relating to the offences against the administration of justice section and so on.

The Minister's amendment, in paragraph (c), defines what constitutes compelling evidence. He indicates that it is such that a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned. My amendment to the amendment seeks to strengthen that by indicating that it is such that, taken together with other evidence in the proceedings, a jury might reasonably be satisfied beyond a reasonable doubt. I do not believe the Minister has addressed that point; it is true a piece of evidence might not be compelling in itself but it might become compelling when taken with another piece of evidence. The amendment seeks to strengthen what is there but it has not been addressed by the Minister.

Deputy Dermot Ahern

I explained in my original comments that we take into account any other evidence which is new and compelling. In this section we are dealing with a position where the trial itself is corrupted so there is no new and compelling evidence. In the case where a retrial has been ordered because of new and compelling evidence, we take into account other evidence in the proceedings. A later amendment will be relevant.

Deputy Pat Rabbitte

I will not press my amendment.

Deputy Dermot Ahern

Section 9 concerns an application by the director for a retrial where the previous acquittal was tainted; it does not concern new evidence and it is only the original evidence that is relevant.

Deputy Charles Flanagan

The Minister is saying it is the second exception.

Deputy Dermot Ahern

Yes. There is no new evidence in this application. The Deputy's amendment to the amendment includes "taken together with any other evidence in the proceedings", which is based on new evidence being produced. That is not correct. This is based on the trial itself and does not go outside what was put forward previously as evidence.

Amendment to amendment, by leave, withdrawn.

Amendment No. 9 agreed to.

Deputy Pat Rabbitte

I move amendment No. 10:

In page 11, line 23, after "adduced" to insert "by the prosecution".

This deals with the interpretation section where the Minister is setting out what is comprised by new and compelling evidence. Insertion of the words in my amendment would clarify the meaning of "new and compelling evidence". For example, it is clear that evidence which the defence knew about could still be new evidence if the prosecution could not have discovered it. The insertion of the term "been adduced by the prosecution during the proceedings" provides necessary clarity.

Deputy Dermot Ahern

I am relatively easy about this one. The Deputy's amendment concerns the definition of "new and compelling evidence". The definition relates to the procedure in section 8 which permits the Director of Public Prosecutions to seek an order for a retrial where fresh evidence emerges post-acquittal. The Deputy's amendment is focused on the part of the definition which goes to the meaning of "new". He wishes to spell out that the reference to evidence adduced in fact refers to the evidence adduced by the prosecution in paragraph (a) of the definition.

What is at issue here is an application by the prosecution based on evidence which points to the guilt of the acquitted person. The burden of adducing evidence in criminal proceedings which goes to proving the guilt of a person is on the prosecution. In these circumstances I am advised by Parliamentary Counsel that it goes without saying that paragraph (a) is concerned with the actions, or more correctly in this context, omissions of the prosecution in the proceedings which resulted in the acquittal. If the Deputy withdraws the amendment I will consider it for Report Stage to see if we can accept the amendment.

Amendment, by leave, withdrawn.

Deputy Dermot Ahern

I move amendment No. 11:

In page 11, to delete lines 26 to 29 and substitute the following:

"(ii) is of significant probative value, and

(iii) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned;".

My amendment concerns the definition of "new and compelling evidence". Earlier, we discussed what we understand by "compelling" in the case of tainted acquittals. This time the definition relates to the procedure in section 8 which permits the DPP to seek an order for a retrial where fresh evidence emerges post-acquittal.

My amendment is focused on the part of the definition which goes to the meaning of "compelling", which is paragraph (c). Subparagraph (i) remains unchanged, as the evidence must be reliable. I propose that subparagraph (ii) which currently reads “is substantial” be substituted by “is of significant probative value” and that subparagraph (iii), which currently reads “implicates the person concerned with a high degree of probability in the commission of the relevant offence concerned” be substituted by “is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond reasonable doubt of the person’s guilt in respect of the offence concerned”. The amendment to subparagraph (ii) is aimed at tightening up the wording; the phrase “is substantial” is somewhat at large while the proposed substitute - “is of significant probative value” - clearly refers to the evidential value of the new evidence.

The purpose of the amendment to subparagraph (iii) is to ensure that it is the criminal standard that applies to the DPP’s determination to make a retrial application on the basis of new evidence and to the Court of Criminal Appeal’s assessment. I have already set out the rationale for introducing this high standard in the context of previous amendments which relate to the tainted acquittal procedure. In essence, it is intended to ensure that acquitted persons are subjected to a retrial only where there is a real prospect of a conviction. To allow otherwise would be unfair to the acquitted person and a waste of resources.

My amendments have the added benefit of applying similar tests to each of the retrial procedures. However, Deputies will note there is a slight variation in wording between the subparagraph (iii) in this instance and the equivalent wording for the tainted acquittal procedure. This is because, in the new evidence cases, it will be necessary for the Director of Public Prosecutions and the court to consider whether the totality of evidence, as we discussed earlier - that is to say, the new evidence together with the evidence adduced at the original trial - offers a real prospect of conviction. While in some tainted acquittal cases there may be new evidence, for example, where the taint was the result of perjury, this will not always be the case. In the case of a corrupt juror, the evidence available for retrial will simply be that adduced at the original trial. That is why subparagraph (3), in providing the definition of compelling that will apply to tainted acquittals, does not make any reference to evidence being taken together.

Deputy Charles Flanagan

I accept what the Minister has said in terms of raising the standard of probability for what is new and compelling. It is important that the matter be as clear as possible in the circumstances. I can see the possibility of considerable debate in court on whether a piece of evidence is such that a jury might be satisfied beyond reasonable doubt of the person's guilt in respect of the offence concerned. However, I see what the Minister is aiming for and I hope it works.

Amendment agreed to.

Section 7, as amended, agreed to.

SECTION 8

Chairman

Amendments Nos. 12 to 15, inclusive, and 22 are related and may be discussed together.

Deputy Dermot Ahern

I move amendment No. 12:

In page 12, lines 12 to 18, to delete subsection (1) and substitute the following:

"(1) Subject to subsection (7), this section applies where a person---

(a) is, on or after the commencement of this section, sent forward for trial in respect of a relevant offence and is, or

(b) has, before the commencement of this section, been sent forward for trial but has not yet been tried in respect of a relevant offence and is, on or after such commencement, tried on indictment in respect of the offence, and acquitted of that offence (whether at the trial, on appeal against conviction or on appeal from such a decision on appeal).”.

Amendments Nos. 12 and 15 relate to the scope of new evidence procedures in section 8 and tainted acquittal procedures in section 9, respectively. Amendment No. 22 relates to section 15 and is consequential on amendment No. 12. The purpose of my amendments is to expand the scope of these procedures within the boundaries set by our constitutional framework. As drafted, the procedures may be applied to persons who are both charged and acquitted after the commencement of the relevant section. My amendments will allow persons charged and sent forward for trial before commencement, but acquitted after commencement, to be the subject of a retrial application. Only the trial and the acquittal must follow the commencement of this legislation. In other words, the Bill will apply to those already charged and awaiting trial at the time of commencement.

We considered this closely and had a good debate in the Seanad. While I was exhorted to deal with this in a retrospective way, I took the advice of the Attorney General, who was absolutely adamant that the legislation could not be made retrospective, as is the norm in criminal law.

Deputy Rabbitte's amendments are aimed at allowing section 8 to apply retrospectively so that litigation already closed and disposed of at the time of commencement of the Bill can be reopened. As I emphasised on Second Stage, the absence of retrospective effect from Part 3 of the Bill stems from our constitutional framework. I am strongly advised by the Attorney General that at its most fundamental, any attempt to retrospectively allow the reopening of acquittals would involve a breach of the separation of powers. While the Constitution does not actually 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, hence my use of the term "constitutional framework". In view of this doctrine, it is well established that the Oireachtas cannot alter or reverse a finding of the courts as, in doing so, the Oireachtas would be trespassing into the judicial domain.

Accused persons who have been acquitted in due course of law are at present entitled to the irrebuttable presumption of innocence. 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. However, let us assume for a moment it were constitutionally permissible to do this. If this Bill operated retrospectively, the effect of the decision to acquit would be altered; it would no longer be definitive or final. This would represent a gross interference by the Oireachtas and the Executive in the role of the Judiciary.

Legislation such as the current Bill, which allows for cases in which an acquittal has taken place to be reopened in exceptional circumstances, would not involve the setting aside of a specific judgment. However, it would involve altering the status of that judgment, given after the legislation was passed. The effect of making such a law retrospective would be to reduce for everybody who has been acquitted the value of that acquittal, because each of those persons would, by virtue only of new legislation, face the possibility of his or her case being reopened. An acquittal could not, in those circumstances, 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 consistent with that value. Any such statutory change must respect cases which are already closed. The approach adopted in the Bill is in line with that requirement.

Apart from the fundamental objection to retrospectivity, there is a strong argument that to change retrospectively the status of an acquittal and provide the possibility of interference with the verdict of the court, where that possibly did not exist at the time of the person's trial, would infringe on the person's right under Article 38.1 of the Constitution not to be tried on any criminal charge "save in due course of law". The applicable law at the time of the trial would not have allowed for the reopening of an acquittal in any circumstance and, therefore, a new trial on the basis of a law that 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.

I assure the committee that it is not the case that I am deliberately adopting a cautious approach. It is simply that the strength of the constitutional arguments presented to me against applying sections 8 and 9 to historical cases is such that they cannot be sidestepped. I am conscious that legal arguments are of little comfort to victims and their families; I am also conscious that, when enacted, the Bill will give rise to a greater possibility of justice for future victims of crime than exists for current victims and their families. I sincerely regret the difficult situation this represents for victims of cases already tried and closed, but we must operate within the permitted limits. While respecting those limits, we must act now and reform the law so that future miscarriages of justice in favour of acquitted persons can be reopened in years to come. For that reason I cannot accept the Opposition amendments.

Deputy Pat Rabbitte

The Minister will be aware that there has been canvassing by colleagues from all parties on this point, arising from tangible representations made to them at local level. I am advised that the double jeopardy legislation in the United Kingdom is not so restricted. If that advice is correct, I am puzzled. The Minister said earlier that if somebody is tried for murder, is acquitted and presents on the steps of the Four Courts afterwards saying "I did it," it is not right that he or she be permitted to walk away. Most right-thinking people would agree with that. However, what about circumstances in which DNA evidence comes to light that proves that a person previously acquitted is in fact guilty of murder? Why should he or she walk free simply because he or she was charged before the 2010 Act was commenced?

I am not surprised, I must concede, at what the Minister said about the strong advice of the Attorney General, nor that there is an irrebuttable presumption of innocence in the circumstances he describes. However, when it comes to the question about DNA evidence coming to light which shows that a person who has been acquitted is probably guilty, it is difficult for many of our colleagues to explain why the provisions for retrial should not apply. The Government has applied retrospective legislation in other areas of life. For example, although certain rights are vested by contract in civil servants that did not stop Governments of the day making changes that applied retrospectively with regard to some of those rights. Given the strides made in science in this area, it is very difficult to explain to the ordinary citizen why, if DNA evidence emerges that seems conclusive notwithstanding an acquittal and the law being enacted only now, such a person should enjoy the cover of that irrebutable presumption of innocence.

Deputy Charles Flanagan

This matter was considered at some length in the Seanad. The Minister is of the view that it is a constitutional issue, a point we hear repeatedly. I contrast the situation of our relaxing of the double jeopardy rule with that which took place in recent years in the neighbouring jurisdiction. The Minister states that, because of our Constitution, we may not allow a retrospective application of the changes in the double jeopardy rule. The next question is why we are prepared to stand by a Constitution that can give rise to such an injustice. If our Constitution can be used to bring about a situation where perpetrators of the most serious crimes in the statute books can continue to evade justice I believe we should examine that Constitution.

The situation in Britain was changed after considerable deliberation, much in line with what has happened in this country. There was a report by the Law Commission in Britain along similar lines to our Law Reform Commission. We had the Hogan report. There was an appointment in Britain by the Lord Chancellor, the Home Secretary and the Attorney General of Lord Justice Auld to conduct a review into the workings of the criminal courts in the earlier years of this century. The Law Commission in Britain recommended that the new exception to double jeopardy should apply equally to acquittals which had taken place before the exemption came into force. There are issues surrounding retrospection that have not been debated adequately in this country because of the reluctance on our part to examine the constitutional issues involved. The Law Commission report in Britain considered the arguments in favour of giving the exception retrospective effect and stated these were powerful. Substantive retrospective criminal legislation renders an act which was legal when performed subsequently illegal. In the case of a procedural change it was proposed that the alleged act already was a crime, in any event.

The procedure which would be made possible under Deputy Rabbitte's amendment would render it easier to bring an offender to justice. It can be argued this would be a desirable outcome in any event, whenever it may be achieved. The Law Commission report in Britain also stated that if the new exception, or changes to the law, were not retrospective it might be a number of years before it could be used. There have been considerable advances in forensic science, especially, as has been said, in DNA analysis. Furthermore, if the exception is not made retrospective arbitrary distinctions could be drawn by the courts between persons who happen to have been acquitted before or after a relevant date. It hardly shows great confidence in the criminal justice system to give such importance to a particular date. In the future that could open the prospect of some outrage on the part of the public whereby, on the coming to light of new evidence, the exception which would otherwise be available is not so because of the commencement order on this Act.

I note what the Minister said concerning his advice from the Attorney General in terms of our Constitution but what we are dealing with here is the prevention of a miscarriage of justice and that should be paramount. If there is new and compelling evidence or if there has been a tainted verdict and matters are uncovered that show a criminal act in a completely different light I would find it somewhat unjust that a particular date should be a bar to justice.

Deputy Dermot Ahern

As much as I would like to have this legislation made retrospective - I, too, have been lobbied by some of the people who feel it would be of benefit to them - one must look at this from the base. There is separation of powers in this State. Is it conceivable that the Oireachtas should pass legislation that would put a person on a hazard who already has been acquitted? That is putting it in the bluntest terms. It would be completely unjust. and unfair if this were to happen just because a majority in Leinster House decided on a particular day it would, in effect, change court decisions previously handed down. Leaving aside all the constitutional issues, it would be patently unfair.

Deputy Rabbitte referred to contractual civil servants, etc, but that does not lie in the area of criminal law. That is not a case of a person being in hazard of losing his or her liberty. This is a basic principle, namely, that a person can only be convicted based on the law which was relevant and passed at the time of his or her committing the offence. It is not based on a possible change of view of 166 Deputies and so many Senators ten years afterwards. At its most basic, that is what the Deputy asks for. I say to Deputy Rabbitte that in the Seanad, Senator Bacik agreed completely with the points I have raised. Senator Regan tried to make the points both Deputies are making now but I do not accept them.

Leaving aside what is stated in Article 38 of the Constitution, namely, that no person shall be tried in any criminal charge save in due course of law, and the arguments in regard to the breach of separation of powers which are very convincing, this point about a person being convicted - or acquitted - and our coming along later and deciding otherwise would mean that every criminal conviction decided before the passing of legislation would be on hazard. Any person acquitted could not be satisfied or feel safe if some day in the future the 166 Deputies in Leinster House might decide to change the law and move the goalposts. We hear a good deal about human rights now but what the Deputy is calling for in effect is for someone to be put on a hazard because of a law that did not exist when the offence took place and that person was either convicted or acquitted on that occasion. I cannot see the logic in it.

Deputy Pat Rabbitte

The Minister maintains it would involve changing the decision of the court but one would not change the decision of the court. That would only be the case if there were new and compelling evidence requiring someone to stand a re-trial.

Deputy Dermot Ahern

That refers to a judgment and a decision of the court given after the commencement of the Act. The Deputy is calling on me to allow new and compelling evidence to be given with regard to a judgement before the passing of the Act.

Deputy Pat Rabbitte

Given the advice of the Attorney General and what the Minister says, clearly he will not change his mind at this stage. What about the authority quoted by Deputy Flanagan from the neighbouring jurisdiction?

Deputy Dermot Ahern

It has a completely different constitutional framework to ours. It does not have a written constitution, as we do, which refers clearly to the due course of law. There is some academic doubt about the UK law. It has not been tried and tested and there is some academic doubt along the lines that potentially, a person who has been acquitted ten or 20 years ago could find himself or herself on a hazard simply because someone passes a law 20 years on. Circumstances may change because of the whim of a Government which has a majority in the Parliament and that person believes that having been acquitted, he or she is required to be subject a lower standard of proof with regard to the offence he or she was acquitted on previously.

I refer to the positions in several other jurisdictions, including South Australia and New Zealand. Apparently, there is a Bill before the Bermudan Parliament which does not give restrospectivity. I am simply making the point that while it may apply to one jurisdiction, the strong advice of the Attorney General is that because of the separation of powers here the Oireachtas cannot interfere in judgments handed down by our courts. As a result of the imperative in the Constitution, which is interpreted on the basis that one cannot pass legislation in the Oireachtas which gives retrospective effect in the criminal law area putting someone's liberty at a hazard, it is not possible, as much as I would wish to do so.

I have great sympathy in this area and I sponsored this legislation. It is derived from an issue of the balance in the criminal law from the Hogan report. It was something I took forward as an initiative in the Department and it was something I wished to do. As much as I would wish to go further, I cannot. In the Seanad, we changed the legislation to allow for a situation where the time limit can go back slightly in the case of those charged but not convicted. There is a slight element of retrospectively but it is predicated on the basis that in such a limited instance there is no conviction. In other words, no decision of the court has been made.

Deputy Charles Flanagan

I accept the separation of powers. It is fundamental to the rule of law here. However, I do not believe the separation of powers in the UK is any weaker or less clear. It is very unfair of the Minister to suggest this legislation could be introduced or changed at the whim of 166 Deputies and Senators. This does the process something of a disservice. The Minister portrays the matter as though the Houses of the Oireachtas would be involved in some way in determining the guilt or otherwise of a person with regard to a serious criminal offence. This is a totally unfair portrayal because we are dealing with cases involving new and compelling evidence. This is no matter of whim. It refers to evidence which must be reliable, of significant probative value, as we have discussed, and such that at jury might be satisfied beyond a reasonable doubt of a person's guilt in respect of the offence concerned. To portray this as the whim of 166 Deputies is inappropriate and unfair.

I accept there may be constitutional difficulties. We have had this argument throughout the years with regard to the legislative process. However, I do not believe it would involve opening up every case for the past ten or 15 years. In jurisdictions of a similar legal framework to ours, the application of legislation where the rules against double jeopardy have been relaxed are rarely used in any event. However, they are used in cases where there has been a serious miscarriage of justice either way. I am unsure if matters of justice, guilt or otherwise could be determined in a serious criminal case by a date, whether some date in July 2010 or otherwise. That conflicts with a fundamental tenet of justice.

Deputy Dermot Ahern

I can give the Deputies chapter and verse with regard to cases previously decided. In 1994, Howard and others v. the Commissioner for Public Works, Judge Lynch stated that 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 trespass upon and into the judicial domain. Similarly, in the DPP v. Independent Newspapers, it was stated the accused persons who have been acquitted in the course of law at present are entitled to an irrebuttable presumption of innocence. This was the view expressed by Mr. Justice Henchy in the People v. O’Shea and quoted by Mr. Justice Hardiman in DPP v. Independent Newspapers. Under the existing law, the effect of the 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 restrospectivity, the effect of the judicial determination would be altered. Perhaps it is not at the whim of 166 Deputies. However, let us consider the case of an offence committed on a particular day ten years ago.

Deputy Charles Flanagan

We are doing it now anyway.

Deputy Dermot Ahern

No, we are not. We are doing it with regard to future cases after the passing of this legislation and those which originated before the commencement but where no conviction or decision was made. That was the exception as a result of the Seanad discussion. We returned to the matter and heard representations from Senators and others. The case was made on Second Stage and we examined it to determine if we could do any more. I am willing to make it retrospective and would love to do so. However, a person who was acquitted of a particular offence ten years ago, would find that as a result of a change of legislation which did not apply when he or she was involved in the case, he or she would be affected. In all fairness, how can the Deputy say-----

Deputy Pat Rabbitte

A very high standard applies in the Bill and would have to be surmounted if the person concerned were to be retried. It is not the case that one would declare that the person was acquitted ten years ago and convicted today just because of the Bill. The test is of a high standard.

Deputy Dermot Ahern

It is very high and it has to be because it has to pass muster. Reopening trials which took place in the past and will take place in the future is a significant departure from the norm in criminal law here. Having considered the respective issue and taken advice from the Attorney General, and based on my gut feeling and knowledge of putting people's liberty and human rights in jeopardy, if we were to pass legislation in Leinster House today which affected previous decisions I have no doubt those who would be affected would run to the courts in this jurisdiction and the European Court of Justice. I have no doubt they would challenge such an attempt by the Legislature to, in effect, move the goalposts. It would not pass muster and I doubt if the legislation would be upheld. It is not just the view of the Attorney General, it is also my gut feeling that one cannot-----

Deputy Pat Rabbitte

What would happen if new DNA evidence came to light which demonstrated that a person who had been acquitted was guilty of a murder? Such evidence may not have been available 15 years ago. Is there a question of a fundamental miscarriage of justice?

Deputy Dermot Ahern

There may be but, unfortunately, in passing legislation we cannot change the rules that applied at the time the offence was committed.

Chairman

We have given this a good airing. Can we move on?

Deputy Dermot Ahern

Yes.

Amendment agreed to.

Amendments Nos. 13 and 14 not moved.

Section 8, as amended, agreed to.

SECTION 9

Deputy Dermot Ahern

I move amendment No. 15:

In page 13, subsection (1), lines 7 to 13, to delete paragraph (a) and substitute the following:

"(a) a person—

(i) is, on or after the commencement of this section, sent forward for trial in respect of an offence (irrespective of whether or not the offence is a relevant offence) and is, or

(ii) has, before the commencement of this section, been sent forward for trial but has not yet been tried in respect of an offence (irrespective of whether or not the offence is a relevant offence) and is, on or after such commencement,

tried on indictment in respect of the offence, and acquitted of that offence (whether at the trial, on appeal against conviction or on appeal from such a decision on appeal), and".

Amendment agreed to.

Deputy Dermot Ahern

I move amendment No. 16:

In page 13, subsection (3), lines 26 to 28, to delete paragraph (a) and substitute the following:

"(a) there is compelling evidence against a person referred to in subsection (1)(a)*, and”.

Amendment agreed to.

Section 9, as amended, agreed to.

SECTION 10

Chairman

Amendments Nos. 17, 19 and 20 are related and will be discussed together.

Deputy Dermot Ahern

I move amendment No. 17:

In page 14, subsection (1), line 12, after "directions" to insert the following:

"(including conditions and directions as to placing a stay on the re-trial)".

Amendments Nos. 17 and 19 make identical amendments to subsections 10 (1) and (2). Subsection (1) relates to new evidence at retrial applications. It provides that in the event that the court grants the DPP's application and directs that the acquitted person is to be retried, that direction may be subject to such conditions and directions as the court considers necessary or expedient to ensure the fairness of the retrial.

Amendment No. 17 inserts the words "including conditions and directions as to placing a stay on the re-trial" in subsection (1) in order to clarify that this option is available to the court. Subsection (2) related to the tainted acquittal trial applications. Amendment No. 19 makes the same amendment to this subsection. Amendment No. 20 is a consequential amendment to subsection (6) in order to make the requirement that a retrial take place as soon as practicable, subject to subsections (1) and (2). Clearly, if the courts place a stay on the retrial this has implications for the retrial taking place as soon as practicable.

Amendment agreed to.

Deputy Dermot Ahern

I move amendment No. 18:

In page 14, subsection (2), lines 17 to 20, to delete paragraph (a) and substitute the following:

"(a) there is compelling evidence against a person referred to in section 9(1)(a), and”.

Amendment agreed to.

Deputy Dermot Ahern

I move amendment No. 19:

In page 14, subsection (2), line 26, after "directions" to insert the following:

"(including conditions and directions as to placing a stay on the re-trial)".

Amendment agreed to.

Deputy Dermot Ahern

I move amendment No. 20:

In page 15, subsection (6), line 10, to delete "Where" and substitute "Subject to subsection (1) or (2), where”.

Amendment agreed to.

Section 10, as amended, agreed to.

Sections 11 to 13, inclusive, agreed to.

SECTION 14

Deputy Pat Rabbitte

I move amendment No. 21:

In page 18, subsection (1), lines 18 to 21, to delete all words from and including "if" in line 18 down to and including "Court" in line 21.

This amendment would excise most of subsection (1) of section 14 which concerns appeals to the Supreme Court on a point of law. My amendment seeks to delete the condition for appealing from the Court of Criminal Appeal to the Supreme Court because the appeal conditions are discriminatory against the accused. It is fair to say that this was dealt with at considerable length in the Seanad. The Minister indicated in the Seanad that he might consider the position as the Bill progressed. Senator Bacik did not accept the arguments advanced by the Minister and indicated that she would revert to it. I do not know what the outcome of that was.

Deputy Dermot Ahern

This amendment would alter section 14 to a significant degree. The appeals procedure in section 14 as it stands is intended to be available to both parties. In the case of an acquitted person he or she may wish to appeal in the event that a retrial order is made by the court under section 10. The DPP 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 an appeal to the Supreme Court.

I am advised that it is not necessary to have a full appeal available in those circumstances. We must remember that if the case does proceed to a retrial and conviction there will be facilities for an appeal from the later conviction. The Deputy's amendment would have the affect of removing the filtering mechanism for appeals to the Supreme Court from a decision of the Court of Criminal Appeal on an application for a retrial order. In effect, it would provide an unqualified right of appeal to the acquitted person and the DPP.

The filter provided for in section 14 applies in all 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 the final court of appeal would be overwhelmed with cases, many of which may be lacking in merit.

Deputy Pat Rabbitte

I shall refer to what my colleague, Senator Ivana Bacik, said in the Seanad. She said she was prepared to reframe her amendment and that rather than deleting all of the words from and including "if" she will propose deletion of the words "the Attorney General or the Director". I accept what the Minister said about the need for a filtering mechanism to ensure only cases involving a point of law of exceptional public importance are referred to the Supreme Court. My difficulty is with the lopsided nature of the certifying mechanism. Under that mechanism, the Director of Public Prosecutions has the power to certify and the acquitted person does not. Given that section 10 decisions are always in favour of the DPP, because of the retrial order being made, it is pointless to suggest that he might want to appeal. The appeal will be made by the acquitted person. It is wrong, therefore, that only the DPP should have power to certify, the court alone should have that power. That is eminently logical; to expect the DPP to appeal in such circumstances is not reasonable and there is inequality between the DPP and the acquitted person. Senator Bacik said she was prepared to accept where the court had the power to certify.

Deputy Dermot Ahern

Section 14 provides that 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 can certify a point or call on the court or the Attorney General. Removing the references to the DPP and the Attorney General would narrow the options available to the DPP and to the acquitted person.

I acknowledge that the section provides an inequality of position in that the DPP as a party to the proceedings can certify the appeal himself while the acquitted person cannot. That inequality, however, 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 case, has an interest in ensuring the law is qualified for future cases. It must be presumed the DPP will exercise his discretion appropriately. Equally, it can be presumed that the Attorney General, who is a constitutional officer, will also exercise his discretion appropriately.

It must be recognised that the DPP and the Attorney General, as public office holders, have a particular role to play in safeguarding the public interest. Bearing this in mind, permitting the court alone to certify could potentially restrict consideration of what is desirable in the public interest, a key element of the basis upon which the appeal may be taken to the Supreme Court.

I discussed this with Senator Bacik at the time and while I accepted there was inequality, it must be accepted that there should be an ability for the DPP and the Attorney General to query a matter of a point of law. The acquitted person will also be entitled to appeal to the Supreme Court.

Amendment, by leave, withdrawn.

Section 14 agreed to.

SECTION 15

Deputy Dermot Ahern

I move amendment No. 22:

In page 19, lines 7 to 13, to delete subsection (1) and substitute the following:

"(1) This section applies where a person—

(a) is, on or after the commencement of this section, sent forward for trial in respect of a relevant offence and is, or

(b) has, before the commencement of this section, been sent forward for trial but has not yet been tried in respect of a relevant offence and is, on or after such commencement, tried on indictment in respect of the offence, and acquitted of that offence (whether at the trial, on appeal against conviction or on appeal from such a decision on appeal).”.

Amendment agreed to.

Section 15, as amended, agreed to.

Sections 16 to 21, inclusive, agreed to.

SECTION 22

Deputy Dermot Ahern

I move amendment No. 23:

In page 24, paragraph (a), line 7, to delete “or” and substitute “and”.

This is a minor drafting amendment to section 22. At present, paragraphs (a) and (b) are presented as alternatives. My amendment replaces “or” with “and” to the rules of court to provide for expeditious hearings of the retrial applications and of any retrials ordered.

Amendment agreed to.

Section 22, as amended, agreed to.

SECTION 23

Chairman

Amendments Nos. 24 to 27, inclusive, are related and may be discussed together.

Deputy Dermot Ahern

I move amendment No. 24:

In page 24, lines 13 to 24, to delete subsection (1) and substitute the following:

"(1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.

(2) Where on or after the commencement of this section, a person's conviction of an offence on indictment is quashed on appeal by the Court of Criminal Appeal and that Court makes no order for the re-trial of the person in respect of the offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24, appeal the decision of the Court of Criminal Appeal not to order a re-trial of the offence concerned on a question of law to the Supreme Court.

(3) An appeal under this section shall lie only where—

(a) a ruling was made by a court during the course of a trial referred to in subsection (1) or the hearing of an appeal referred to in subsection (2), as the case may be, which erroneously excluded compelling evidence, or

(b) a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where—

(i) the direction was wrong in law, and

(ii) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.".

Section 23 is intended to capture the recommendation of the balance in the criminal law group that a with-prejudice right of appeal against acquittals following trial on indictment should be available to the prosecution in certain circumstances. The review group recommended the right should be available in the case of erroneous rulings by a trial judge which resulted in a judge directing acquittal or weakened the prosecution case that is put to the jury. The report of the group emphasised that a jury acquittal, following receipt of all admissible evidence, should be impregnable under the regime.

This requirement stems from the constitutional right to a jury trial. Following an extensive review of the manner in which section 23 is drafted, the conclusion I have reached is that it is drawn too widely. It would, for example, permit the DPP to ground a with-prejudice appeal on any question of law arising during the course of the trial, no matter how trivial. It potentially leaves jury decisions on the merits following receipt of all admissible evidence open to challenge. I am also concerned that it does not give sufficient guidance to assist the DPP when he is determining whether to initiate a with-prejudice appeal or to the Supreme Court when it is assessing the DPPs case.

As I outlined in the context of the other pretrial procedures in Part 3, it would be unfair to put an acquitted person through the ordeal of a retrial without the real prospect of a conviction at the end of it. To address these issues, my amendments specify the types of rulings that may be appealed, the standard that must be met before a with-prejudice appeal may be lodged by the DPP or granted by the Supreme Court and explicitly require the Supreme Court to consider the interests of justice when assessing the matter.

Amendment No. 24 substitutes subsection (1) with three new subsections. New subsections (1) and (2) restate the contents of existing subsection (1) but in clearer terms. New subsection (1) provides that the prosecution may appeal against an acquittal on indictment on a question of law to the Supreme Court. New subsection (2) provides that the prosecution may appeal against a decision of the Court of Criminal Appeal not to order a retrial where that court quashes a conviction. Again, the appeal is on a question of law to the Supreme Court.

Both subsections are subject to new subsection (3), which contains the key changes to the section. It limits the circumstances in which appeals shall lie under subsections (1) and (2) to rulings by the court which erroneously excluded compelling evidence, in paragraph (a), and in the case of judge-directed acquittals, where the direction was wrong in law and the evidence put forward in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.

At this point, I draw attention to the new subsection (12), which is to be inserted in amendment No. 27. It inserts a definition of "compelling evidence" for the purpose of paragraph (a) of the new subsection (3). The formulation of this new subsection not only limits the type of ruling that may be appealed under this section to evidential ruling and directed acquittals that were wrong in law but also requires the DPP to examine the totality of evidence in the case to determine if it affords a real prospect of conviction in the event of a retrial.

In the case of jury acquittal on its merits, the focus on evidential rulings ensures that jury verdicts reached on receipt of all admissible evidence remain untouchable.

Amendment No. 26 is intended to bring the terminology in subsection (5) into line with that in subsections (1) and (2). Amendment No. 27 substitutes existing subsections (9) and (10) with four new subsections. New subsections (9), (10) and (11) are intended to give more explicit guidance to the Supreme Court when assessing a with prejudice appeal. New subsection (12) defines "compelling evidence".

In addition to making the procedure in section 23 more robust, my amendments have the added benefit of aligning more closely all three retrial procedures and ensuring that in all cases the standard required is met.

Deputy Pat Rabbitte

Will the Minister come back after the Order of Business? There are some matters I am requested to be there for.

Deputy Dermot Ahern

I will come back then, yes.

Sitting suspended at 4.50 p.m. and resumed at 5.45 p.m.

Chairman

Did the Minister finish his note on amendment No. 24?

Deputy Dermot Ahern

I did not speak on the Labour Party amendments, namely, the amendment to amendment No. 24 and amendment No. 25. Deputy Rabbitte is seeking, in his amendment to amendment No. 24, to provide that instead of the DPP being able to appeal on a "with prejudice" basis rulings which "erroneously excluded compelling evidence", he or she should be able to appeal any ruling which "substantially weakened the prosecution case".

I recognise that this draws on the wording used in the report. However, it is worth recalling that the review group did not embark on a drafting exercise and therefore was not required to put its collective mind to formulating the legal language that would be required to implement its recommendations that rulings which substantially weaken the prosecution case should be open to appeal with the possibility of a re-trial if successful.

There are three potential failings in Deputy Rabbitte's proposal. First, it would allow the DPP to appeal a ruling on a "with prejudice" basis without forming the view that the trial judge or the Court of Criminal Appeal had made an error in law - essentially, the DPP could appeal any ruling that was adverse to the prosecution. This would be going too far. Some or, indeed, many rulings, although adverse to the prosecution, may be well-founded. Second, Deputy Rabbitte's proposal would allow the DPP to seek a re-trial without considering whether there is a real prospect of a conviction - as I have stated, pursuing an acquitted person a second time without such a prospect would be unfair. Finally, any assessment of whether a ruling "weakened the prosecution case" would require the DPP and the Supreme Court to read the mind of the jury as to why it had acquitted the accused. Bearing in mind the centrality of the secrecy of jury deliberations to our criminal justice system, this is inappropriate.

Deputy Rabbitte's amendment No. 25 appears to cover somewhat similar ground to my amendments in that he is seeking to limit the scope of this section by specifying the types of ruling that may be appealed. However, his amendment does not require the DPP to consider whether the totality of the evidence in the case, including any excluded evidence, is enough in terms of quality and quantity to offer a real prospect of conviction. This is an essential requirement to ensure that what is a radical procedure in the criminal justice system is sufficiently robust and pays sufficient attention to the rights of the acquitted person.

It is useful to recall also that while we are now looking at "with prejudice" appeals, the option of "without prejudice" appeals is still also available, especially if the point at issue does not reach the threshold for a "with prejudice" appeal. The DPP may seek to have the question of law examined and corrected by means of a "without prejudice" appeal to the Supreme Court.

Finally, I would add that my amendments to this section have been drafted following extensive deliberations with the Attorney General over many months. They are detailed and comprehensive and I believe they are more soundly based than the alternative being proposed.

Deputy Pat Rabbitte

I move amendment No. 1 to amendment No. 24:

In line three of the new subsection (3)(a), to delete “erroneously excluded compiling evidence,” and substitute the following:

"substantially weakened the prosecution case,".

I am not seeking, and I am not sure that I fully understand how the Minister states I am, to now reopen the issue we have discussed about a person acquitted according to the law as it stood at the time being now re-tried outside of the terms of this Bill. That is not my intention.

My intention is to follow the example of the UK wording, which is what inspires the amendment, "substantially weakened the prosecution case,", rather than the Minister's term. A possible example would be an incorrect ruling which allowed the defence to improperly introduce inadmissible evidence. As I understand it, this would not exclude compelling evidence. Indeed, it would not exclude any evidence and therefore no appeal would lie, and I think this is an anomaly. It is an anomaly which is not in the Bill as it stands before the Minister's amendment. It is the amendment that introduces the anomaly.

As the Minister stated, the intent of amendment No. 25 is fairly close to his own. It clarifies the types of rulings which would weaken the prosecution case and which can be made the subject of a "with prejudice" appeal. I emphasise is it not a mechanism to revisit a jury decision on the merits.

Deputy Dermot Ahern

I do not have anything further to add. On amendment No. 1 to amendment No. 24, Deputy Rabbitte is using words that were used in the report, "substantially weakened the prosecution case,". As I stated, when the Attorney General's office looked at this it was decided that it would be better catered for in the type of amendment that the Department was proposing. As I stated, we have tightened up what was originally in the legislation so that we are laying down reasonable parameters within which appeals can be taken under this section.

Chairman

Does Deputy Rabbitte wish to add anything further?

Deputy Pat Rabbitte

I do not see there is any profit in me trying to press it further.

Amendment to amendment, by leave, withdrawn.

Amendment No. 24 agreed to.

Amendment No. 25 not moved.

Deputy Dermot Ahern

I move amendment No. 26:

In page 25, subsection (5), lines 2 and 3, to delete all words from and including "the" in line 2 down to and including "section (1)” in line 3 and substitute the following:

"the acquittal referred to in subsection (1) or the decision of the Court of Criminal Appeal not to order a re-trial referred to in subsection (2), as the case may be”.

Amendment agreed to.

Deputy Dermot Ahern

I move amendment No. 27:

In page 25, lines 34 to 46, to delete subsections (9) and (10) and substitute the following:

"(9) On hearing an appeal under this section the Supreme Court may—

(a) quash the acquittal or reverse the decision of the Court of Criminal Appeal, as the case may be, and order the person to be re-tried for the offence concerned if it is satisfied—

(i) that the requirements of subsection (3)(a) or (3)(b), as the case may be, are met, and

(ii) that, having regard to the matters referred to in subsection (10), it is, in all the circumstances, in the interests of justice to do so,

or

(b) if it is not so satisfied, affirm the acquittal or the decision of the Court of Criminal Appeal, as the case may be.

(10) In determining whether to make an order under subsection (9)(a), the Supreme Court shall have regard to—

(a) whether or not it is likely that any re-trial could be conducted fairly,

(b) the amount of time that has passed since the act or omission that gave rise to the indictment,

(c) the interest of any victim of the offence concerned, and

(d) any other matter which it considers relevant to the appeal.

(11) (a) The Supreme Court may make an order for a re-trial under this section subject to such conditions and directions as it considers necessary or expedient (including conditions and directions in relation to the staying of the re-trial) to ensure the fairness of the re-trial.

(b) Subject to paragraph (a), where the Supreme Court makes an order for a re-trial under this section, the re-trial shall take place as soon as practicable.

(12) In this section "compelling evidence", in relation to a person, means evidence which—

(a) is reliable,

(b) is of significant probative value, and

(c) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.”.

Amendment agreed to.

Section 23, as amended, agreed to.

Sections 24 and 25 agreed to.

SECTION 26

Deputy Dermot Ahern

I move amendment No. 28:

In page 27, subsection (3), line 35, after "proceedings" to insert ", the legal aid (trial on indictment) certificate".

This amendment is designed to correct a drafting error in section 26(3). The phrase ", the legal aid (trial on indictment) certificate", which was originally omitted from the subsection will now be included in it.

Amendment agreed to.

Section 26, as amended, agreed to.

Sections 27 to 30, inclusive, agreed to.

NEW SECTION

Deputy Dermot Ahern

I move amendment No. 29:

In page 28, before section 31, to insert the following new section:

31.—The Courts of Justice Act 1924 is amended—

(a) in section 29—

(i) by the insertion of the following subsections after subsection (2):

"(2A) Subject to subsection (2B), a person who has appealed his or her conviction to the Court of Criminal Appeal and who has been granted a re-trial by that Court, may, without prejudice to the determination by the Court to grant a re-trial, appeal to the Supreme Court in respect of a matter raised by him or her in the Court of Criminal Appeal but upon which that Court did not make a determination.

(2B) A person may only appeal to the Supreme Court where—

(a) the matter which is the subject of the appeal is one that is relevant to the conduct of his or her defence in the re-trial, and

(b) the Court of Criminal Appeal or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions, certifies that the matter involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.”,

and

(ii) by the substitution, in subsection (5A) of "(2), (2A), (2B) or (3)" for "(2) or (3)",

(b) by the substitution of the following section for section 31:

31.—A person convicted on indictment before the Central Criminal Court may appeal under this Act to the Court of Criminal Appeal.",

(c) by the substitution of the following section for section 32:

32.—The Court of Criminal Appeal shall have power to make any order it may think fit, including an order admitting the appellant to bail, pending the determination of his appeal.",

and

(d) in section 33, by the substitution of the following subsection for subsection (1):

"(1) The appeal shall be heard and determined by the Court of Criminal Appeal (‘the court') on—

(a) a record of the proceedings at the trial and on a transcript thereof verified by the judge before whom the case was tried, and

(b) where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers such record or transcript, as the case may be, contains,

with power to the court to hear new or additional evidence, and to refer any matter for report by the said judge.".".

This is a technical amendment, which inserts a new section 31 into the Bill. The existing section 31 amends section 31 of the Courts of Justice Act 1924 in order to abolish the need for a person convicted in the Central Criminal Court to obtain a certificate from the trial judge or the leave of the Court of Criminal Appeal before he or she can appeal his or her conviction or sentence. This amendment is restated in paragraph (b) of amendment No. 29. Paragraphs (c) and (d) of the latter are new and amend sections 32 and 33 of the 1924 Act in order to remove references to certification and leave to appeal. These are consequential on the amendment to section 31 of the that Act but do not alter the substance of the relevant sections, which relate to the jurisdiction of the Court of Criminal Appeal to grant bail pending the determination of an appeal and the basis upon which that appeal is to be heard.

Paragraph (d) of amendment No. 29 restates, without alteration, the substance of section 33. It also amends the Courts of Justice Act of 1924 in respect of the procedures for the use of transcripts in appeal hearings. I am of the view that it is sensible to include all amendments to the 1924 Act in one section. Acceptance of amendment No. 29 will result in the deletion of the current section 31.

Amendment No. 1 to amendment No. 29 in the name of Deputy Rabbitte seeks to insert the words "or that that Court determined adversely to him or her" in subsection (2A). The effect of this would be that a convicted person whose appeal to the Court of Criminal Appeal was successful on some but not all of the grounds raised and who was granted a retrial would be able to appeal the grounds decided against him or her in the Supreme Court. Amendment No. 1 to amendment No. 29 seeks to expand my proposal, which aims to deal with a situation where a person appeals on a number of grounds to the Court of Criminal Appeal and where that court adjudicates on some but not all of those points. Amendment No. 29 will allow a person who has been granted a retrial by the Court of Criminal Appeal to appeal a point of law raised by him or her before that court, but not determined by it, to the Supreme Court. This appeal right is without prejudice to the decision of the Court of Criminal Appeal to grant a retrial. It applies only where the point of law at issue is relevant to the conduct of the person's defence in the trial.

Amendment No. 29 arises on foot of a judgment handed down by the Supreme Court in the DPP v. Campbell in 2004 and creates a limited exception to the rule that no further appeal lies against an appeal which results in the quashing of an appeal and the granting of a retrial, that is to say a successful appeal. I am not convinced that the expansion to this exception is necessary or appropriate. It is important to distinguish between amendment No. 29 and the amendment tabled to it by Deputy Rabbitte in that the non-adjudication of a point by the Court of Criminal Appeal might leave a person in an extremely uncertain position when mounting his or her defence at a retrial.

The possibility of a further appeal is justified if the applicant can satisfy the court that an adjudication is necessary for the conduct of his or her defence. This is not the case where the court has made a determination, albeit that it is adverse to the person. It must also be remembered that in the event that a person is convicted following the retrial, he or she will have a full right of appeal to the Court of Criminal Appeal and the possibility of an onward appeal to the Supreme Court. It is common for the appeal court to find in favour of the appellant on some grounds and against on others. I am concerned with regard to appeals being allowed in these cases and the issue must be given further consideration. If Deputy Rabbitte withdraws the amendment to the amendment, I will re-examine the position between now and Report Stage.

Chairman

Before Deputy Rabbitte proceeds, I wish to inform Members that a vote has been called in the Dáil.

Deputy Pat Rabbitte

I move amendment No. 1 to amendment No. 29:

In the last line of the new subsection (2A) being inserted, after "determination", to insert the following:

"or that that Court determined adversely to him or her".

In view of the time constraints, I will not delay matters unduly. I will withdraw amendment No. 1 to amendment No. 29 in light of the Minister's commitment to consider the matter between now and Report Stage. I submit, however, that there is a flaw in the new right of appeal to the Supreme Court being introduced by the Minister. If a defendant appeals on two grounds and the Court of Criminal Appeal decides in his or her favour in respect of the first of these but makes no decision on the second, he or she will be in a position to appeal to the Supreme Court in respect of the latter even though he or she will have already won the right to a retrial. However, if the Court of Criminal Appeal decides in the defendant's favour in respect of the first ground but against him or her with regard to the second, he or she will have no right of appeal to the Supreme Court. The latter is the case despite that fact that in both instances, the second ground could arise in a retrial. That is the issue I would like the Minister to consider.

Deputy Dermot Ahern

We will re-examine it between now and Report Stage.

Chairman

We can return to this matter following the vote in the Dáil.

Sitting suspended at 5.55 p.m. and resumed at 6.05 p.m.

Chairman

We are dealing with amendment No. 1 to amendment No. 29. I invite the Minister to respond to Deputy Rabbitte.

Deputy Dermot Ahern

I offered to return to this amendment on Report Stage if the Deputy is willing. His amendment to amendment No. 29 was only available as of yesterday so we did not have much of an opportunity to consider it.

Deputy Pat Rabbitte

I accept that.

Amendment to amendment, by leave, withdrawn.

Amendment No. 29 agreed to.

Sections 31 to 33, inclusive, deleted.

Sections 34 to 36, inclusive, agreed to.

NEW SECTION

Chairman

Amendments Nos. 30 and 34 are related and may be discussed together by agreement.

Deputy Dermot Ahern

I move amendment No. 30:

In page 33, before section 37, but in Chapter 2, to insert the following new

section:

37.—Section 22 of the Courts Act 1991 is amended, in subsection (5), by the

deletion of "if the complaint or accusation has been substantiated on oath and".".

This amendment inserts a new section in the Criminal Procedure Bill which will amend section 22(5) of the Courts Act 1991 by deleting the words "if the complaint or accusation has been substantiated on oath and". Before I explain the background for this amendment it is necessary to briefly explain the purpose of section 22 of the Courts Act. Section 22 introduced new procedures for the service of summonses by District Court. Section 22(4) relates to summonses issued under the 1851 Petty Sessions Act and the Courts Act 1986. It provides that where a person does not appear at the time or place specified in summons, the court has the option of adjourning to enable the person to be notified of the adjourned hearing. Summonses under the 1851 Act require information on oath for their issue but those issued under the 1986 Act do not. Section 22(5) is a major provision for the enforcement of attendance by a person who does not respond to a summons under subsection (5). Where the person does not subsequently appear at the adjourned hearing the court may issue a bench warrant for the arrest of the person to answer the complaint or proceed to hear the complaint in his or her absence.

The need for this amendment has arisen out of the judgment of the High Court in DPP v. Murphy, October 2009. In summary, the judgment concluded that in a situation where an accused person does not appear at the adjourned hearing on the second day, having failed to appear on the first date and having been notified of the adjourned second date, the District Court judge must hear sworn evidence of the complaint against the accused prior to issuing a bench warrant. The requirement that the evidence must, in all cases, be sworn, is the aspect causing difficulty. No distinction was drawn by the court based on the requirements as regards sworn evidence in the Act under which the original summons was issued. As a result of the judgment, all bench warrants issued under section 24(5), are to be based on sworn evidence, irrespective of the procedure applicable to the original summons. The normal practice in the District Court has not been to hear sworn evidence of complaints prior to issuing bench warrants and any change in that practice arising from this judgment would involve considerable resource and logistical obstacles for the prosecution as in many cases, prosecuting gardaí are not present and the interests of the State are presented by court presenters. The Attorney General has advised that this amendment is required to re-establish the status quo ante to normalise the practice of issuing bench warrants on foot of a failure by a person to appear at an adjourned hearing in the District Court, but without recourse to sworn evidence. Dispensing with the requirement to hear sworn evidence will not put the defendant at any new or greater risk - we are merely seeking to return to established practice and procedure.

Amendment 34 makes the necessary alterations to the long title to reflect the insertion of an amendment to the Courts Act 1991.

Deputy Charles Flanagan

That does not sound unreasonable.

Amendment agreed to.

SECTION 37

Chairman

Amendments Nos. 31 and 32 are related and may be discussed together.

Deputy Dermot Ahern

I move amendment No. 31:

In page 33, paragraph (a), line 26, to delete “and”.

This simple deletion facilitates amendment 32 which inserts a new paragraph (c) into section 37. Amendment 32 provides for an amendment to Section 24(5) of the Criminal Procedure Act 1967. The amendment is designed to address a lacuna in the law governing the production in court of accused persons who had been remanded in custody.

The jurisdiction of a District Court judge to remand a person on bail or in custody derives from the provisions of section 21 of the Criminal Procedure Act 1967, as amended. That section provides that where an accused person is before the District Court in connection with an offence, the court may, subject to the provisions of the 1967 Act, remand the accused from time to time as the occasion requires. Section 24 of the Act sets out the provisions regarding periods of remand, including the circumstances in which a person who has been remanded in custody can be further remanded in custody in their absence. Section 24(5)(a) provides that if the court is satisfied that any person who has been remanded in custody is unable by reason of illness or accident to be brought before the court at the expiration of the period of remand, the court may, in that person’s absence and where it is satisfied as to the circumstances for the non-appearance, remand the person for such further period, which may exceed 15 days, as the court considers reasonable.

It is clear from this provision that the circumstances in which a District Court judge can further remand a person who is in custody but not produced before the court are very limited as they are based on illness or accident. This means that if a person is not produced, the court cannot make an order and the person would have to be released if he or she is not being held on any other warrants. This can cause difficulties in a number of situations where it is reasonable for prisoners not to be produced - for example where they have been lawfully produced before another court. This can happen where they have charges before a number of courts and remand dates coincide or where they are produced in the High Court on foot of their own application, normally, under Article 40 of the Constitution, making it impossible for the governor to produce them in the District Court to which they have been remanded.

The amendment proposed here addresses the difficulty by inserting the additional provision in section 24(5)(a) to deal with cases where the non-appearance is “for any other good and sufficient reason”. The court is required to be satisfied that the reasons are “good and sufficient”. Having been thus satisfied, the court may extend a person’s period of remand.

This amendment ensures that a non-appearance must be explained to the court's satisfaction. This is a strong safeguard against any arbitrary extensions of remand times. It protects against any abuse and gives good and timely protection to the individual concerned.

Amendment agreed to.

Deputy Dermot Ahern

I move amendment No. 32:

In page 34, line 20, to delete "(if any)."." and substitute the following:

"(if any).",

and

(c) in section 24(5), by the substitution of the following paragraph for paragraph (a):

"(a) If the Court is satisfied that a person who has been remanded in custody is unable to be brought before the Court at the expiration of the period of remand—

(i) by reason of illness or accident, or

(ii) for any other good and sufficient reason,

the Court may, in that person's absence, remand the person for such further period, which may exceed fifteen days, as the Court considers reasonable.".".

Amendment agreed to.

Section 37, as amended, agreed to. SECTION 38

Question proposed: "That section 38 stand part of the Bill."

Deputy Pat Rabbitte

What is section 38 envisaged to capture?

Deputy Dermot Ahern

Section 38 provides for a matter raised by the Office of the Director of Public Prosecutions. It arises in the High Court hearing in a case stated, Paul Thorpe v. DPP, where the court was asked whether the offence was known to law and if so, whether it could be tried by the District Court. The court replied to both questions in the affirmative. This is the offence of breach of the peace. The Office of the Director of Public Prosecutions pointed out that despite the outcome there is a residual doubt about the status of such an offence. This is due to its origins as a misdemeanour, a concept largely abolished by the Criminal Law Act 1997 and because despite the High Court’s decision there is no express statutory provision permitting the District Court to try the offence. The Office of the Director of Public Prosecutions proposed and the Office of the Attorney General agreed that the matter can be addressed by adding this offence to the Schedule of the Criminal Justice Act 1951. As a schedule offence under the Act, the offence could be tried summarily when the conditions in that Act apply, that is that the District Court agreed the particular offence as charged is a minor one and the defendant and the DPP agree. While the 1951 Act states that the Schedule may be amended by ministerial order, practice in recent years has been to alter the Schedule by means of primary legislation.

Deputy Pat Rabbitte

That is scarcely something I would have thought was contemplated when we embarked on this enterprise.

Deputy Dermot Ahern

It is a bit like one of the earlier amendments. We are taking the opportunity in this Bill to address some of the issues that have been raised by the Office of the Director of Public Prosecutions or even the Office of the Attorney General.

Question put and agreed to.

SCHEDULE

Deputy Dermot Ahern

I move amendment No. 33:

In page 36, between lines 18 and 19, to insert the following paragraph:

"Organised Crime

15. An offence under section 71A of the Criminal Justice Act 2006 (directing a criminal organisation).".

The purpose of this amendment is to add the offence of "directing a criminal organisation" to the schedule. Deputies will recall that this offence was introduced by the Criminal Justice (Amendment) Act 2009. The schedule lists the offences in respect of which the DPP may seek to quash an acquittal and seek a retrial on the basis of new evidence. The threshold for inclusion of offences in the Schedule is that a maximum sentence of life imprisonment applies on conviction with the one exception of the offences under sections 7 and 8 of the International Criminal Court Act 2006. Those offences are genocide, crimes against humanity, and war crimes and ancillary crimes. In some limited circumstances a person convicted of an offence under section 7 or 8 is liable to imprisonment for a term not exceeding 30 years rather than life imprisonment. The offence I propose be added to the Schedule attracts a maximum sentence of life imprisonment and its inclusion is appropriate.

Deputy Pat Rabbitte

I am reminded every time I see this that when I initially advanced the crime of directing a criminal organisation, it was felt that it was not something that could be applied to the criminal fraternity and was more related to subversive crime. I am glad to see it enshrined. As this is the first time the committee has met since the appalling grizzly murders in my home area of Clondalkin, it is appropriate that the committee should take the opportunity to deplore this terrible crime, which was obviously directed by a criminal organisation. A teenager was involved in the trauma of the killings and might have been killed. We have come to an appalling circumstance when on a summer's evening in broad daylight people can arrange this kind of gruesome murder. It is appropriate that the committee should express its view on that.

Chairman

We all concur with that.

Deputy Dermot Ahern

I first commiserate with those who have been bereaved and also commiserate with the people of the area, who, as Deputy Rabbitte has said, had to cope with such terrible circumstances within their community. Since the event I have spoken to the Garda Commissioner on several occasions. I understand he confirmed today that all the resources of the Garda Síochána will be used to track down the killers. I understand it has a number of substantial leads. On this day last week we renewed the legislation that was passed here this time last year on organised crime and directing gangland crime. Clearly last night's event was a very well organised hit on individuals. Clearly, a substantial number of people were behind the offence and commissioning of the offence. The Garda is adamant that it has the resources. It has the legislation it needs, thankfully, because we have passed it. I hope and pray that these people will be brought to justice.

Deputy Charles Flanagan

I regret that this committee must again turn to the scourge of organised crime in our State. I urge communities to provide all available evidence to the forces of law and order to ensure these people are brought to justice. We need to ensure that the Garda is properly resourced. Gardaí should live in communities and work with communities to ensure all appropriate evidence is brought to bear. This is a real and serious problem. The conviction rate of those responsible for gruesome killings over the past decade does not augur well in this case, despite the Minister's comments about legislation and resourcing. It is essential that law-abiding communities show their absolute revulsion for this type of activity.

Chairman

We should commend the Garda on what it does. The Garda Commissioner said earlier today that the force will be in the faces of all criminals. Evidence elsewhere suggests that is beginning to work. I sympathise with everyone involved in this unfortunate incident. I wish the Garda well in what it is doing.

Amendment agreed to.

Schedule, as amended, agreed to.

TITLE

Deputy Dermot Ahern

I move amendment No. 34:

In page 5, line 29, after "1994," to insert "THE COURTS ACT 1991,".

Amendment agreed to.

Title, as amended, agreed to.

Bill reported with amendments.