Amendments Nos. 20, 21, 22 and 24 are related and may be taken together.
SECTION 9.
I move amendment No. 20:
In page 8, lines 23 to 41, to delete subsection (1) and substitute the following:
"(1) Where a person has been convicted of an offence and he has been pardoned as a result of a petition under section 7, the Minister may in his discretion, pay compensation to the convicted person or, if he is dead, to his legal personal representatives unless the conviction was substantially attributable to the conduct or omission of the convicted person.".
On mature reflection I think "in his discretion" would be unwise and I withdraw that. However, I am delighted to see the Minister's amendment which removes the necessity of proving beyond reasonable doubt in relation to the compensation. That is a very good amendment from the Minister.
The amendment is as a result of a suggestion made by Deputy McDowell on Second Stage. I am glad that Deputy O'Donnell prefers the wording on the basis that a miscarriage of justice has occurred rather than leaving it totally to the discretion of the Minister.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 8, subsection (1) (a), to delete lines 28 to 31 and substitute the following:
"(ii) the Court or the court of retrial, as the case may be, has certified that a newly discovered fact shows that there has been a miscarriage of justice,".
Amendment agreed to.
I move amendment No. 22:
In page 8, subsection (1) (b), to delete lines 35 to 37 and substitute the following:
"(ii) the Minister for Justice is of opinion that a newly discovered fact shows that there has been a miscarriage of justice,".
Amendment agreed to.
I move amendment No. 23.
In page 8, between lines 41 and 42, to insert the following subsection:
"(2) The Tribunal established under section 2 may recommend that persons deliberately involved in the perpetration of a miscarriage of justice shall be liable to contribute to the payment of compensation and the costs of trials in relation to that miscarriage of justice.".
I refer to the proposal under section 2 to establish a tribunal which we have all agreed should be established. I am suggesting that either the tribunal or the court should have the power to recommend that persons deliberately involved in the perpetration of a miscarriage of justice shall be liable to contribute to the payment of compensation and the costs of trials in relation to that miscarriage of justice. I stress "liable to" because it obviously depends on the ability of people to pay.
As I said on Second Stage, some of our better known racketeers who have acquired substantial sums of money through one source or another, could be involved in deliberately framing somebody. In these circumstances, if somebody is identified as having deliberately been involved in the perpetration of a miscarriage of justice, that person should not be allowed to walk away from the situation leaving the State with a huge bill for compensation and the costs of trials, not to mention what the innocent party has suffered.
We should provide in legislation that the tribunal established under section 2 may recommend that persons deliberately involved in the perpetration of miscarrige of justice shall be liable to contribute to the payment of compensation and the costs of the trial. I am not suggesting that this section will be used in every instance but where this occurs, that power should be available to the courts. I use the words "may" and "liable to" because I do not think we should legislate in such a way that does not leave the court any discretion.
There is probably only a small number of cases of miscarriages of justice but where it occurs, somebody has probably been framed. The person responsible for the frame-up should not be able to walk away scot-free, particularly if that person has accumulated wealth and is in a position to financially contribute to the dreadful situation that has arisen. I hope the Minister will find it possible to take on board the essence of what I am proposing and to make that power available to either the tribunal or the court under section 2.
Deputy Mitchell is presuming in this amendment that his amendment to section 2 has been accepted. As it stands there is no committee under section 2. The difficulty here is that the committee can recommend, but to whom can it recommend? It would not be recommending to a court because the recommendation does not go from a committee to a court unless the Deputy's amendments were accepted.
Presuming the Minister would accept that?
If in our wisdom we decide to accept the Deputy's amendment we will look at that. I am trying to be as helpful as possible and I have discussed with my officials the question of a recommendation which goes back to court. A problem would arise in the court ordering compensation because the person who allegedly framed, or did frame, the innocent party who is before the court on appeal might not be a party to the proceedings or even called as a witness and he would have no chance to defend himself. We cannot have the court ordering compensation against a person who is not present and is given no opportunity to defend himself.
Perhaps we could have a provision whereby that person could be summoned before the court. Technically, and legally, it is very difficult to do that, particularly when the person whom it is proposed would pay compensation will not be a party to the proceedings. I have sympathy with what the Deputy suggested, it is not fair that if somebody frames somebody else resulting in a miscarriage of justice taxpayers as a result have to pay a great deal of money. The person, if he or she has the resources to do, should make some contribution. I will see if this can be accommodated in the context of the courts before Report Stage. I agree with the Deputy's sentiments but it is difficult to provide for this legally. We will do what we can.
I am happy with that.
Amendment, by leave, withdrawn.
Amendment No. 24 not moved.
I move amendment No. 25:
In page 9, subsection (5) (a), line 6, after "Court" to insert "on an application".
This is a technical amendment to bring the wording in subsection (5) (a) into line with the wording of subsection (1) (a) (i). The power to quash a conviction is of course contained in section 3 and not, as the existing wording of subsection (5) (a) might suggest, in section 2.
Amendment agreed to.
Amendments Nos. 26 and 27 not moved.
Section 9, as amended, agreed to.