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

SECTION 7.

Mr. G. Mitchell

I move amendment No. 15:

In page 7, subsection (1), between lines 14 and 15 to insert the following:

"(d) who has had two consecutive sentences amounting, in total, to not less than one year imposed on him by the District Court,".

This brings me back to the question of two consecutive sentences being imposed amounting in total to not less than one year. I am concerned about petitions for a grant of pardon. Section 7 (1) (a), (b) and (c) cover a person who is convicted of an offence, unsuccessfully appeals it, and alleges a newly discovered fact shows a miscarriage of justice has occurred in relation to the conviction. If the amendment is accepted such a person would also be in a position to petition the Minister for Justice with a view to the Government advising the President to grant a pardon. This is not covered by the Bill. This relates to the point that I made earlier. While I do not wish to make a song and dance about it, I think that if a person found himself in that position he would want some means of clearing his name.

Mr. O'Dea

A person does not have to go to the Court of Criminal Appeal to petition the Minister. A person who has been convicted in the District Court can petition the Minister. The person need not have been imprisoned. Therefore a person who has been convicted and gets the Probation Act can petition the Minister under section 7.

The amendment, if accepted, would make the position far less generous because if a person wanted to petition the Minister he or she would have been sentenced to at least one year in prison. Under this section they can petition the Minister even if they get the Probation Act.

Mr. G. Mitchell

For a pardon?

Mr. O'Dea

Yes.

Mr. G. Mitchell

So they can petition the Minister for a full pardon as it stands?

Mr. O'Dea

Yes, even if they have not been imprisoned.

Mr. G. Mitchell

I will withdraw the amendment, Chairman.

Mr. O'Donoghue

We know that a case in the District Court is not a matter of record; there are no stenographers and there is nothing in writing in relation to what happened in the original trial. How would an individual in that situation establish to the satisfaction of the Minister, or anybody else, that there was a new fact which indicated that there had been a miscarriage of justice when there is no record of the original facts?

Mr. O'Dea

That is precisely why we have kept it away from the courts. He or she would certainly be unable to establish it to the satisfaction of the courts. However, one is not restricted in what one can put to the Minister. One can put statements, affidavits, hearsay evidence or anything one wishes to the Minister. There is a difficulty and it arises from the fact that the District Court or the Circuit Court on a criminal appeal is not a court of record, so I am not minimising the difficulties in that situation. Nevertheless, one is not restricted in what one can send to the Minister.

Mr. D. McDowell

Could I tease that out further? Does that mean that we are talking about something similar to the existing petition system?

Mr. O'Dea

Yes.

Mr. O'Donoghue

Under section 7 (1) certain preconditions are set out before an individual can petition the Minister for a pardon. One of those conditions is that the individual can allege that a new or a newly discovered fact shows that a miscarriage of justice has occurred in relation to the conviction. Is it not difficult for a person to say that it is a new or newly discovered fact when he cannot establish that, in the first instance, the fact was not considered by the court? Will the Minister in that event accept his or her bona fides and say "we will accept that there is a new or newly discovered fact and we will carry on"?

Mr. O'Dea

It will be fairly obvious in many cases — for example, where there is a statement from a new witness who can say the accused person was 15 miles away from the scene of the crime but which witness did not come forward for certain reasons. The new fact might also be a development in forensic science which was not available at the time and there would be scientific support for that.

I admit that it is loose. But the difference between that and the general petition about which Deputy McDowell asked is that the general petition does not allow the Minister to order an inquiry. If it is based specifically on the circumstances laid out here, the Minister has the further right to order an inquiry, to set up a tribunal to inquire into it. That is the distinction between the two.

Amendment, by leave, withdrawn.

Mr. O'Dea

I move amendment No. 16.

In page 7, subsection (2), line 19, after "The Minister" to insert "for Justice".

Amendment agreed to.

Amendment No. 17 not moved.

Mr. O'Dea

I move amendment No. 18:

In page 7, between lines 36 and 37, to insert the following subsection:

"(3) In subsection (1) (c) 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.".

Amendment agreed to.

Amendment No. 19 not moved.

Question proposed: "That section 7, as amended, stand part of the Bill".

Ms O'Donnell

I agree with section 7. Sections 7 and 8 could adequately deal with miscarriages of justice cases without the need for referral back to the Court of Criminal Appeal.

It is important to look at this alternative route which the Minister has said will be suitable for some of the cases not suitable to go back to the Court of Criminal Appeal. We must look at what it means. If this is an alternative system for somebody who claims there has been a miscarriage of justice, what is at the bottom of the line for the person if they go through this pardon procedure? What is the legal effect of a pardon? It is vital that that be established before Report Stage. When somebody gets a presidential pardon what is its legal effect? Does it remove all guilt? Secondly, under section 7 the Minister can sent it back to the court, which I disapprove of, or recommend a presidential pardon. The alternative is that the Minister could set up a committee — the original committee recommended by the Martin report — but when that committee is finished deliberating what does it do then? Does it give an opinion to the Minister and does the Minister as a result give the person a pardon? Is the pardon inferior to that which could be obtained in the court? I do not think we should have two groups of people who have been pardoned or vindicated by the system.

Mr. O'Dea

On the question of the legal effect of a pardon, I have undertaken to research that and we will be in a position to discuss what the law is in regard to that on Report Stage. As I understand it, the committee can send their opinion to the Minister and, as a result of that opinion, the Government has total discretion whether to recommend a pardon.

Ms O'Donnell

So both routes lead to a pardon?

Mr. O'Dea

Yes.

Ms. O'Donnell

That is why it is important that we decide what a pardon is.

Mr. O'Dea

Yes.

Question put and agreed to.

Section 8 agreed to.