Select Committee on Legislation and Security debate -
Wednesday, 10 Nov 1993

SECTION 2.

Mr. G. Mitchell

I move amendment No. 5:

In page 4, subsection (1) (a), line 3, to delete "and" and substitute the following:

"or

(iii) on summary conviction and has received a custodial sentence of at least six months, and".

I will not delay the select committee on this amendment. I hope the Minister might find it possible to accept it or to explain if there is a slight difficulty about it. The reason for my amendment is that the section deals with a person who has been convicted on indictment. Such a person may apply for review by the Court of Criminal Appeal of his alleged miscarriage of justice or excessive sentence.

It appears that the Bill does not deal with a person who is convicted on summary conviction. My amendment refers to a person who is found guilty on summary conviction and has received a custodial sentence of at least six months. That would be a reasonable safeguard to insert in the section. In the interests of making progress I will not dwell at great length on this issue.

Mr. O'Dea

I will explain the situation to Deputy Mitchell because the response to the amendment deserves explanation. The difficulty is that in this legislation we are providing for people who have gone through the entire appeal process, up to and including the Court of Criminal Appeal, to come back to the Court of Criminal Appeal. In the case of summary convictions the case does not get as far as the Court of Criminal Appeal. Summary convictions are convictions by the District Court and can only be appealed to the Circuit Court. The difficulty is that the District Court is not a court of record so there is no record of what transpired in the District Court.

When a case goes to the Circuit Court on appeal, unlike the Court of Criminal Appeal, it is a full rehearing and again there is no record kept of that. If a new fact emerges in relation to a case which only went as far as the Circuit Court — and that is as far as a case on summary conviction can go — one has nothing to measure, as it were. Deputy Mitchell's amendment would not achieve a referral of the case to the Circuit Court, rather it would go back to the Court of Criminal Appeal which did not hear the case in the first place and has no record of it. If the case was to go back to the Circuit Court it would have no record against which to measure the validity of the new evidence.

Unfortunately, the case the Deputy has in mind would require going to the Minister for Justice under section 7, who is empowered to decide the matter herself after making such inquiries as she can or alternatively she may set up a committee of inquiry to make recommendations to her. We cannot send a case back to the Court of Criminal Appeal that has not been to the Court of Criminal Appeal in the first place and of which there is no record. The procedure in the Court of Criminal Appeal is that they look at the record of the initial trial, they can bring in witnesses and adduce new evidence if they wish or they may just decide it on the basis of the written record. There is no record in this case and it has not reached the Court of Criminal Appeal anyway.

Mr. G. Mitchell

I am grateful to the Minister for that explanation which indicates that the misgivings I have on section 2 are well placed. Let us take the example of a person sentenced to six months or more bearing in mind the District Court can apply consecutive sentences — it could be 12 months or, perhaps, more.

Mr. O'Dea

Up to two years.

Mr. G. Mitchell

A person could have consecutive sentences imposed at the District Court of up to two years and not be able to avail of this reference to the Court of Criminal Appeal, whereas if the tribunal were in place that person would have such access. We will look at that again on Report Stage, whether or not the Minister can accept it. Whatever way we deal with this, if somebody has been sentenced to up to two years imprisonment on summary conviction and there is a miscarriage of justice, some way should be found of having that case heard by this new procedure.

If the amendment I am proposing does not facilitate that I ask the Minister to find a mechanism that does and return to the matter on Report Stage. If a person is sentenced to two years imprisonment — whether it is applied by a higher court or the District Court — and there is miscarriage of justice, that person should have the right to have the case reviewed if new evidence emerges. I do not see why that should be excluded from the review procedures in this legislation. I would ask the Minister to look at that matter between now and Report Stage. It is an anomaly that needs to be addressed.

Mr. O'Dea

Under the legislation there is a procedure and the section 7 procedure will be available. I take the Deputy's point. The principal reason we are not going back on that is that there is no record of the case. In view of that the judge is not in a position to decide whether there should be a rehearing on the basis of the new evidence. Two years imprisonment is a serious matter. The reality is that somebody who can get as far as the Court of Criminal Appeal, even though he might get a lesser sentence, can go back in two ways. They can either go back through the courts or to the Minister and the Minister may refer them to the courts anyway, whereas the person who has been convicted in the District Court and who gets two years imprisonment has no way back through the courts. They may only revert to the ministerial option under section 7. I will consider Deputy Mitchell's point. It will be difficult to find a solution because the District Court and the Circuit Court on appeal are not courts of record.

Mr. G. Mitchell

If the Minister of State looks at this between now and Report Stage I will not press the amendment.

Amendment No. 5, by leave, withdrawn.

Amendment No. 6 not moved.

Chairman

Amendment No. 8 is an alternative to amendment No. 7. Amendment Nos. 7 and 8 may be discussed together by agreement. Is that agreed? Agreed.

Mr. O'Dea

I move amendment No. 7:

In page 4, lines 14 to 17, to delete subsection (2).

The purpose of subsection 2 as oringinally drafted is to prevent the abuse of the new procedure under section 2 by persons who originally pleaded guilty. While that remains an important objective I have listened carefully to the concerns expressed at Second Stage about innocent persons who for some genuine reason, perhaps fear or a desire to protect another person, withhold exculpatory evidence or perhaps even plead guilty. Such circumstances would be exceptionally rare but I am persuaded that such a possibility should be taken into account in section 2. I am proposing the removal, therefore, of the requirement in subsection 2 whereby a person who originally pleaded guilty would have to allege that such a plea would not have been entered had he or she known of the new evidence at that time. I am satisfied that any such issues will be capable of being tested by the court.

As I am proposing the deletion of subsection 2 because it might conceivably prove an obstacle to an innocent person I am sure Deputy Mitchell will not see the need to press his amendment because the substance of the amendment is met.

Mr. G. Mitchell

I am happy to accept that and I will withdraw my amendment.

Amendment agreed to.

Amendment No. 8 not moved.

Chairman

Amendments Nos. 9, 10, 11, 18, 19, 26 and 27 are related and may be discussed together.

Mr. O'Dea

I move amendment No. 9:

In page 4, between lines 19 and 20, to insert the following subsection:

"(4) In subsection (1) (b) the reference to a new fact is to a fact known to the convicted person at the time of the trial or appeal proceedings the significance of which was appreciated by him, where he alleges that there is a reasonable explanation for his failure to adduce evidence of that fact.".

Concern was expressed at Second Stage that a convicted person who holds back exculpatory evidence for a genuine reason, for example out of fear or out of a desire to protect another person should not be prevented from adducing evidence of this on an application under section 2 or in a petition for a pardon. The circumstances where this might happen would be exceptionally rare but I accept that the possibility must be provided for.

Amendments Nos. 6 and 12 in the Minister's name will, therefore, make clear that a convicted person may apply to the court under section 2 or have a petition for a pardon considered under the new procedure in section 7 even where the fresh evidence had been withheld by him or herself. Of course there would have to be a reasonable explanation as to why the evidence had not previously been adduced and the court or the Minister for Justice, as the case may be, will have to be satisfied with this explanation.

Strictly speaking this amendment may not be necessary as the definition now being given to new fact is already implicit in the Bill but it may be helpful if the distinction between new and newly discovered fact is made absolutely clear. These amendments deal with the substance of the amendments in Deputy Mitchell's name as they apply to sections 2 and 7. I could not have accepted Deputy Mitchell's amendments because they seek to provide for a circumstance already provided for in the Bill. If a person other than an accused person declines to bring relevant evidence before the court and if this subsequently comes to the attention of the accused then that will constitute a newly discovered fact as it is defined in the legislation. The only issue of concern therefore is a situation where the accused himself or herself holds back exculpatory evidence. As I have explained even this situation is implicitly provided for in the Bill but I am happy to remove any doubt in the matter by defining the term "new fact".

Having explained why I cannot accept Deputy Mitchell's amendments in relation to sections 2 and 7, I want to set out briefly the reason I cannot accept a similar amendment to section 9 — I say briefly because I do not want to anticipate too much debate on section 9. Essentially the position is that any situation whereby a person other than the accused withholds evidence is already covered by the definition of newly discovered fact. This applies to section 9 as much as to sections 2 and 7. However, while I believe that an accused who deliberately withholds exculpatory evidence should always be enabled to establish his or her innocence I do not accept that such a person should be entitled to compensation. That would be the affect of Deputy Mitchell's amendments to section 9 and I must oppose them albeit for a slightly different reason than that which applies to the proposed amendments to sections 2 and 7.

The reason we are excluding this from section 9, the compensation provisions from a person who withheld the evidence himself or herself albeit for good reason even though we can give him a pardon or the court can set aside their conviction, is because in that case the State who would be paying the compensation has done nothing wrong. The person would have withheld the evidence of their own choice, maybe perhaps under duress or something like that. Such a person would be entitled to a pardon but we do not regard it as being a proper case for compensation.

Mr. G. Mitchell

The Minister's amendment goes some way to addressing the problems raised by me in amendments Nos. 10 and 11, because of reasonable fear for a person's safety. The Minister used different words, such as "where he alleges that there is a reasonable explanation for his failure to adduce evidence of that fact". That is not unreasonable. I propose in amendment No. 19 to insert, "or a fact the importance of which was known to a party to the proceedings who declined to bring it before the court". In my amendments Nos. 26 and 27 I use the words, "or a fact the importance of which was known to a party to the proceedings who declined to bring it before the court". In his amendment why is that element not covered? If I could be satisfied on that we could move on to the other amendments.

Mr. O'Dea

They are already covered in the definition of "newly discovered fact". If after somebody is convicted somebody else knows something that could overturn the conviction that is no good because that person might keep that information to themselves forever. The only circumstances in which the convicted person will be going back to the court is if it comes to his attention. He will be going back on that basis. If the person who knew, the party to the trial other than the convicted person, who did not reveal the information before brings it to the attention of the person who is in prison he goes back but that is a newly discovered fact. The definition is wide enough to cover that situation.

Mr. G. Mitchell

Are both of my concerns covered by the amendment?

Mr. O'Dea

Yes.

Mr. G. Mitchell

I am happy to accept the Minister's amendment.

Ms O'Donnell

Does the definition in subsection 4 still stand? The reference in subsection 1 (b) is to a newly discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings. Is that the same definition?

Mr. O'Dea

Yes.

Ms O'Donnell

Would the following instance come within the scope of newly discovered fact as defined. If there had been a chance in a moral climate, or a change of attitude in regard to say bigamy, or if there is a change in the moral climate in regard to, for example, buggery between consenting adults which has been decriminalised, would that come into the category of a newly discovered fact? It is a newly appreciated issue of law, as Deputy Gilmore had mentioned.

Mr. O'Dea

The only newly discovered fact that is of evidence of relevance here is something that was not known at the time the person was convicted, that it had been known the person might not have been convicted.

Mr. Costello

I wish to expand on the point raised by Deputy O'Donnell, the definition of a newly discovered fact. One aspect is whether or not attitudes have changed or, indeed, legal interpretations have changed. In court a lawyer or barrister may advise that a client to do some plea bargaining because at certain times uncorroborated evidence might be accepted by the court, as would have been the case to some extent in the special courts established under the Offence Against the State Act. Although somebody might have a substantial case, nevertheless the nature of the case might not lend itself to a perception by the legal adviser that it would be successful. That is not a newly discovered fact but it could affect the ethos, environment and indeed the context in which cases might have been held. In Britain, for example, and in this country, when there was a great deal of racism in relation to Irish defendants coming before the courts on foot of alleged IRA activity when atrocities were carried out, particularly in the 1970s and 1980s there might be legal advice that the best option was to plead guilty to a lesser charge to perhaps avoid a conviction on a more serious charge, irrespective of whether the defendant was innocent, because of the difficulty of pleading their innocence. This is not a new situation, but it could be the strategy used at the time to ensure that somebody got a lesser conviction and a lesser sentence. Does the definition cover that? It does not seem to but it means there could be a miscarriage of justice which may not be related to a newly discovered fact.

Mr. O'Dea

The Deputy is correct when he says that the definition of "newly discovered facts" would not cover that situation. We are giving people a right to go back on the basis of a fact not considered by the court which only came to its attention after the appeal procedure had been exhausted. If we allow people to go back on the basis of perceptions, on the basis of strategy, advice or whatever, we will never have finality. As I explained to Deputy O'Donnell earlier, we are getting rid of finality to a certain extent. The fact that a mechanism is put inplace means that people know there is something to go back to and finality is to some extent undermined. There would be no finality if we are to extend indefinitely the grounds on which people can appeal.

Mr. Costello

I agree with the point made by the Minister in a judicial context but surely the purpose of this Bill was to deal with circumstances which might give rise to a miscarriage of justice. If we are agreeing now that we are excluding certain circumstances, we are not really being comprehensive in the mechanism we are devising and putting in place. Miscarriages of justice can arise from matters other than a new fact or a newly discovered fact. That limits the thoroughness of the legislation we are putting forward here and brings us back to the debate we had yesterday. While we confine the mechanism and the device — I will not discuss that — while we propose here that the mechanism would be a judicial mechanism, within the Court of Criminal Appeal, we are excluding the possibility of dealing with an alleged miscarriage of justice due to circumstances beyond the specific provisions stated here which the Minister has explained to us.

Mr. O'Donoghue

I understand what Deputy Costello is referring to in relation to an individual who may perhaps be innocent but because of the weight of the evidence against him or her, he or she pleads guilty to a lesser charge. Amendment No. 9 states that reference to a new fact is to a fact known to the convicted person at the time of the trial or appeal proceedings the significance of which was appreciated by him, where he alleges that there is a reasonable explanation for his failure to adduce evidence of that fact.

While it does not go all the way to meet Deputy Costello's concerns I believe that if, subsequent to sentence and conviction the convicted person feels or discovers that it is now possible to put a stronger case, surely it would be possible for the individual under the Minister's amendment, to produce that new fact to his or her advantage?

Mr. O'Dea

We cannot legislate for everything, we have to let the courts decide a certain number of things. Even if that were not possible, section 7 (5) covers the sort of situation the Deputy is talking about. Exclusive of subsection (5), section 7 covers the situation where convicted persons can go to the Minister as a result of a newly discovered fact as defined or a new fact as defined. Subsection (5) is inserted there specifically to leave the Minister's existing power to recommend a Presidential pardon intact. Under section 7 (5), if a convicted person cannot go the Minister in the circumstamces outlined by a newly discovered fact, we are leaving intact the right to go to the Minister to have a Presidential pardon recommended.

Ms O'Donnell

This came up this morning and it is fundamental to the way we are dealing with it. Classic cases of miscarriage of justice will not fit the pattern of those which will be sent bact to court. They are those which are covered by the section 7 provision, the search for a petition. The classic miscarriage of justice case, involving the whole political and social environment at the time of conviction relating to terrorism, will be dealt with under section 7. That section 7 solution, as we discovered this morning, does not actually rid the accused of guilt, it only gives a pardon, which is not good enough. If there are to be two routes, the end result of each route should be the same. If a pardon is the result of opting for section 7 and this does not mean the innocence of the convicted person is recognised, why should people opt for that route? They have no choice because they cannot use the judicial route, as Deputy Costello pointed out. It is part of the fundamental problem. We are here to discuss those classic miscarriage of justice cases and yet it seems that all that will be on offer for those cases is a pardon which does not blot out the finding of guilt, it just gives forgiveness.

Mr. Costello

It does not seem that either amendment No. 9 as proposed by the Minister, or section 7 (5) covers the point I was making. Section 7 (5) refers to a specific situation where the Minister can recommend that a pardon be granted. We are not talking about that now. We are talking about a mechanism whereby a review can take place of all the matters that might give rise to an alleged miscarriage of justice, whereas section 7 (5) relates to a more defined situation resulting in the possibility of a pardon. Would the Minister find it possible to withdraw amendment No. 9 and broaden the definition of "new fact" to cover a broader range of situations than simply a fact which is newly discovered or becomes available to the convicted person? I know the Minister does not want to go into a totality of situations because the end is limitless but many situations which may have a very strong bearing on the circumstances leading to a miscarriage of justice are not encompassed by his definition. They are not covered either in this section, under court procedure or under section 7. Perhaps the Minister could reconsider the amendment with a view to broadening the parameters of it and making provision for the situation I outlined before Report Stage.

Mr. O'Dea

I will think about it. The example given by the Deputy, where the accused was advised by his legal advisers because of uncorroborated evidence etc., could be accepted. In that situation he has a primary right to appeal to the Court of Criminal Appeal. The Deputy spoke about what would happen at the initial trial. The transcript of that trial would go to the Court of Criminal Appeal and the accused would be asked: "Why are you here?" and he would reply: "I do not think my legal adviser advised me properly". That would happen regardless. However, the Deputy outlined a situation where the accused does no change his or her mind and the Court of Criminal Appeals lets it stand, but where the accused subsequently decides to come back, I will think about that.

Amendment agreed to.

Amendments Nos. 10, 11 and 12, inclusive, not moved.

Amendment No. 12 not moved.

Section 2, as amended, agreed to.

SECTION 3.

Mr. G. Mitchell

I move amendment No. 13:

In page 5, subsection (3) (a), line 20, to delete "Commissioner of the Garda Síochána" and substitute "Attorney General".

I hope the Minister and the committee are aware of how agreeable and constructive the main Opposition spokesman has been in regard to teasing out the strengths and weaknesses of this Bill. I hope the Minister will accept my amendment to this section. I propose to delete the words "Commissioner of the Garda Síochána" and substitute "Attorney General". Section 3 (3) (a) refers to the hearing of an appeal by the Court of Criminal Appeal where the court is considering an appeal based on new evidence. I raised this matter on Second Stage. The court may direct the Garda Commissioner to make further inquiries. This is a useful power, but it should allow the court to direct the Attorney General to make futher inquiries.

I suggest this for the following reasons. The conduct of the Garda in the prosecution of the offence could be the point of dispute and it is possible that the Garda Commissioner of the day could have been the chief superintendent overseeing the original inquiry, because given the nature of this procedure, time will have passed. He could have been peripherally involved or responsible for the conduct of the original case. Although inquiries could be focused on the conduct of the Garda, it would still pass through the offices of the Garda Commissioner. For that reason the Attorney General should oversee the conduct of any inquiry.

I noted what the Minister said about the Attorney General not having enough staff. I do not propose that the Attorney General personally carry out the inquiries, but that he oversee the inquiry. In other words, the court would not have to rely on a situation where the point at question is the conduct of the Garda. I am not suggesting that gardaí are untrustworthy or that there is any problem in ths regard, but when they are involved in matters relating to an inquiry it would be safer to place the inquiry in the hands of the Attorney General.

The second leg of the conduct of the trial and prosecution could be the decisions and judgment of the Director of Public Prosecutions. It would, therefore, be inappropriate for the DPP to be the law officer overseeing the Garda Commissioner. Having taken all of the arguments into account, I suggest the Attorney General is the correct person to deal with this.

I hope the Minister will accept this amendment. It is a question of justice being done and of justice being seen to be done and ensuring that nobody faces difficulties. The Garda Commissioner of the day would not find it difficult to work under the supervision of the Attorney General in these circumstances. In a situation where the Garda Síochána is involved somebody other than the Garda Commissioner should have the right to oversee a court's request in these matters. I hope the Minister will accept this amendment.

Mr. L. Fitzgerald

I share Deputy G. Mitchell's concern in relation to this. I often heard colleagues pose the question: "Who guards the Garda Síochána?" When I pose that question I want to make it clear that I am not articulating a concern about the honesty or otherwise of members of the Garda Síochána. We should be proud of the fine body of gardaí. They have brought a high degree of professionalism to their work and they have displayed a high degree of integrity at all times. Circumstances may occur where a review or an appeal may involve evidence available to members of the Garda Síochána which would have been presented in court. We have seen examples of that across the water and Deputy G. Mitchell has that in mind.

In the interest of the perception of what is fair and thorough by way of an examination, inquiry or interrogation, the matter should not — in fairness to the Commissioner — be the responsibility of that office holder. It would be more appropriate for the Attorney General to hold that office. He or she would be removed from the line of command. The public would perceive a degree of independence and detachment in relation to the duties or investigations being conducted by that office holder.

Ms O'Donnell

I support this amendment. We must remember that we are dealing with unusual circumstances where an alleged miscarriage of justice has ocurred. It would be wise to remove somebody who by leadership is involved with the Garda Síochána. We must learn from the Guildford Four case and other cases that from time to time — it may only happen once every ten years — police officers fabricate evidence and take short cuts in order to secure convictions. We can learn from previous cases. The rule that one should not be a judge in one's own case must apply. There would be a conflict of interest if the Commissioner of the Garda Síochána were to investigate his force. Although we do not wish to cast aspersions on the Garda Síochána, in circumstances where evidence maybe fabricated — something which we are addressing in this Bill — the Garda Commissioner should be removed from direct involvement in investigatng his force. The Attorney General would be the appropriate person for that role.

Mr. Callely

I am not sure whether I support Deputy G. Mitchell's amendment in relation to the Attorney General. We all have the greatest respect for the Garda Commissioner. On attaining that office he separates it from all other office holding positions he would have. I appreciate the point highlighted where the Garda Commissioner may have been the superintendent, the inspector or the chief superintendent in that divisional area when the miscarriage of justice may have been carried out. We have seen Garda Commissioners carrying out an independent role which befits a person in such a high office. We are talking about the court directing the Garda Commissioners to carry out such inquiries.

We all recognise that when the court would direct the Garda Commissioner in such a fashion everything would be above board and all available information would be on the table. I appreciate the sentiment expressed by Deputy Mitchell in relation to a Garda Commissioner investigating or reporting on a case in which he may have been involved. That is the only query I would have and I welcome whatever clarification the Minister will give on that issue.

Mr. O'Donoghue

It is is difficult, until one delves a little deeper, to ecape the logic of Deputy Mitchell's amendment, which basically says that a person should not be seen to be a judge in his or her own cause. If one delves a little deeper, however, the problem gets even more complex. The Commissioner would be almost totally dependent on the integrity of those conducting the inquiries on his behalf. When one looks at it in that context there is little alternative but to allow the Commissioner of the Garda Síochána to direct the inquiries.

If the integrity of those conducting the inquiries is questionable or if they report wrongly to the Commissioner of the Garda Síochána, it makes little difference whether it is the Commissioner of the Garda Síochána or the Attorney General to whom they are reporting. If one takes this to its logical conclusion the alternative is for the court — and one could hardly do this — to direct the Attorney General to engage a private detective agency to ascertain whether or not further evidence ought to be adduced.

I take Deputy Mitchell's point. My problem is that it is a maze and one which is difficult to get out of. In those circumstances experience might show that most members of the Garda Síochána are people of the highest standards and integrity. The majority of them would be as disgusted as any member of the general public at an attempt by one of their number to convict a person wrongly or adduce false evidence. I am not so naive as to believe that this does not happen. I appreciate that in a minority of cases it does happen and indeed could happen. However, on balance, I do not see an alternative to the section as it stands.

Mr. Browne

(Carlow-Kilkenny): I thought my colleague had made a reasonable case until my other colleagues decided to cause a small bit of havoc. We have to accept that in discussing this Bill we are dealing with extreme cases that would not arise in normal circumstances. We can heap as much praise as we like on the efficiency and integrity of the Garda Síochána — and I will join with that because I have the utmost respect for them — but if everything were perfect we would not need this Bill at all.

There is going to be a case at some stage where a person is wrongfully imprisoned due to a lack of evidence, evidence that might be found later. For example, a superintendent may have been efficient and successful in his area and a person may have spent ten years in jail because of something that went wrong under that superintendent. If that superintendent happened to be promoted through the ranks to Garda Commissioner, he would be dealing with that case.

It is hypothetical, and I am quite sure it will never happen, but what is the point in having legislation to deal with extreme emergencies if we are leaving loopholes because we have the utmost faith in the Garda? If a teacher was under investigation and the President of the INTO or the ASTI was appointed to conduct that investigation, people would question whether or not it was going to be dealt with fairly. They would expect the Minister for Education or someone else to be involved.

There has to be someone who is not directly involved and whose participation could not be questioned, because we are dealing with emergencies. We should cater for emergencies. Substituting the Attorney General for the Commissioner of the Garda Síochána would help this Bill, which will not have to be used very often but more than likely will have to be used at some stage.

Mr. O'Dea

We must deal with this in context. In section 3 we are giving the Court of Criminal Appeal the right, in a section 2 type case or in any ordinary appeal, to direct the Garda to carry out an inquiry to see whether further evidence should be adduced on appeal. The inquiry will take place on the instructions of the Court of Criminal Appeal and the court will have to be satisfied that the investigation was carried out properly and the evidence properly presented.

The Court of Criminal Appeal who set up the inquiry will have a certain supervisory function. They will be examining the evidence that comes back and they can ask questions as to how the inquiry was conducted. The practical reality is that the Court of Criminal Appeal will just direct the Garda Commissioner to have an inquiry carried out. The Garda Commissioner is only a figurehead. As Deputy O'Donoghue said, he will not be personally carrying out the inquiry. He will be directing his subordinates to carry it out and they will be reporting to him. If the Attorney General is substituted in this instance, the Court of Criminal Appeal will direct the Attorney General to have the Garda carry out an inquiry. He will communicate with the Garda Commissioner and ask him to arrange an inquiry Basically, we are adding another layer of bureaucracy and that is the net effect of the amendment.

Everyone agrees that the DPP should not be the person to arrange the inquiry because he has a prosecutorial function. The 1974 legislation set up the DPP's office. The DPP has taken over most of the prosecutorial functions of the Attorney General, but there are still a number left and a number of prosecutorial functions can be allocated to the Attorney General under legislation. There is a difficulty if the case in question is one of the latter.

The Garda Commissioner or the Attorney General or whoever is asked by the Court of Criminal Appeal to arrange the inquiry will only be a figurehead. Rather than having one figurehead going to another figurehead and on down to the people who are going to conduct the inquiry, I prefer to have one direction going to the Garda Commissioner who will direct his people to conduct an inquiry.

Mr. G. Mitchell

I have been very facilitating on this Bill. I have not delayed it and I do not intend to change my attitude. It is important legislation. We are talking about a situation where there has been a travesty of justice, where somebody is in prison and evidence comes to hand to suggest that they are entitled to be retried and in many cases should not be in prison. These are rare cases.

There is a strong possibility that one of the elements in the review would be the conduct of the Garda in the original case. There are almost 11,000 gardaí but they are not all saints, no more than legislators, Army personnel or anybody else are all saints. It could well be that the conduct of the Garda in the first place is the issue under review. If that were to happen in Britain an outside chief constable would be brought in to examine the constabulary which is, in the first instance, involved in the prosecution. That cannot be done here because we do not have regional police forces. We have one national police force. We cannot bring in somebody from another jurisdiction to investigate what happens in Dublin. There is only one Garda Commissioner. There is not a Garda commisioner for different regions.

There is no need for an additional layer of bureaucracy. The Attorney General is the chief law officer of the State. He has the right to consult, and be consulted by the Director of Public Prosecutions in certain circumstances. He is the Government's adviser, the leader of the Bar Council and, in other words, is an open, honest broker in these circumstances. It is very unlikely that if the Attorney General was involved in the case originally, either as a prosecutor or for the defence, his conduct of the case would be the basis of an appeal by someone who felt there had been a travesty of justice.

On the other hand, it is possible the Garda Commissioner of the day may have been peripherally involved. He may have been the Assistant Commissioner or the Chief Superintendent responsible for the Garda division. He may even have been directly involved in the case. In those circumstances my amendment to substitute the Attorney General for the Garda Commissioner is a perfectly good one.

If the Minister is not in a position to accept this amendment, which I hope he will having heard the arguments, I ask him to consider it between now and Report Stage. I am the spokesman for 62 legislators, TDs and Senators. On their behalf I consider it a reasonable amendment. I have facilitated the Minister in regard to many other sections and it is not unreasonable to press the Government to facilitate the Opposition on this amendment.

Mr. L. Fitzgerald

I queried the basis for opting for the Garda Commissioner as distinct from the Attorney General, as proposed by Deputy Mitchell. If the position is as the Minister outlined, I can see the logic of his argument. I do not support the view, though it has a great deal of merit, that this function be assigned to the Attorney General. He or she would be obliged to go to the Garda Commissioner who, in turn, would have to go to his subordinates in the Garda Síochána.

Perhaps I have been a little naive in relation to what I thought was possible. I assumed if we opted for the Attorney General as distinct from the Garda Commissioner, he would have wider discretion as to the composition of an inquiry body. This may have been possible and would give weight to Deputy Mitchell's argument but my comments might set off alarm bells in this area. A degree of detachment from the immediacy of the source of the problem, as perceived by the Government, the courts and the public, would have been laudable but since that does not appear to be the case I will bow to the superior knowledge of the Minister. I plead with him again, as did Deputy Mitchell, to further examine the issue before Report Stage.

Mr. O'Dea

I concede and appreciate Deputy Mitchell has been reasonable in his approach. We are getting through the business as a result. Deputy Mitchell will also agree we have met the substance of some of his amendments in the amendments we moved today. His contribution has not gone unnoticed. The Minister reflected it in the Bill we are now introducing with amendments. I am sure some of what he said today will be reflected in further amendments on Report Stage. I am confident of that and have one or two things in mind.

What will happen in practice is the court will give a direction. We are talking about a Garda inquiry. If it gives it to the Garda Commissioner, he will order a district superintendent to carry it out. If the court gives a direction to the Attorney General, he will have to give a direction to the Garda Commissioner to arrange to have it carried out. In practice, in the example given, if there is something wrong in Dublin, the Chief Superintendent in Limerick, Cork or some place else would be asked to investigate the matter. In view of the reasoned and reasonable debate we have had and the fact that some Deputies on my side are supportive of Deputy Mitchell's amendment, I will consider it between now and Report Stage.

Amendment, by leave, withdrawn.

Mr. G. Mitchell

I move amendment No. 14:

In page 5, lines 45 to 48, to delete subsection (7) and substitute the following:

"(7) A legal aid certificate which was gained in relation to the trial of an accused person shall have effect as if it had been granted also in relation to an application under section 2 and, if the Court has ordered a re-trial under this section, in relation to his re-trial".

This amendment seeks to delete subsection (7) which reads that: "A legal aid certificate which was granted in relation to the trial of an accused person who has been ordered by the court under this section to be re-tried shall have effect as if it had been granted also in relation to his re-trial." The purpose of my amendment is to cover situations which may arise under section 2. I hope the Minister will accept it.

Mr. O'Dea

I understand what Deputy Mitchell is proposing. The purpose of the amendment is to extend the existing subsection (7) so that it provides for legal aid for the application under section 2. Deputy Mitchell's understanding is that if an application is made under section 2 and a re-trial is ordered, the legal aid will only cover the re-trial, it will not cover the cost of the legal advice and help one gets in making the application. The situation, the Deputy will be happy to hear, is already provided for. Section 2 (3) provides that such an application under section 2 shall be treated for all purposes as an appeal to the court against conviction or sentence. The normal legal aid appeals certificate could therefore be granted where appropriate in such cases. It would be the very same as an ordinary appeal. The legal aid certificate will apply, ab initio, from the beginning. The application back to the Court of Criminal Appeal under section 2 will be covered from the minute the prisoner calls in a solicitor to go back to the court.

Mr. G. Mitchell

Therefore, the full range of what I am proposing is covered by the section?

Mr. O'Dea

Yes.

Amendment, by leave, withdrawn.

Question proposed: "That section 3 stand part of the Bill."

Ms O'Donnell

Section 3 (5) states "The reference in subsection (1) (d) to a jury shall, where the trial was before a court sitting without a jury, be construed as a reference to that court." Does this mean judgments of the Special Criminal Court will be part of the process?

Mr. O'Dea

That is precisely why the provision was included.

Question put and agreed to.

Sections 4 to 6, inclusive, agreed to.