Section 34 of the Criminal Procedure Act, 1967, which is specifically referred to in section 11, is an exception. I will give the reason I am making this change. A person convicted on indictment in the Central Criminal Court has a statutory right of appeal to the Court of Criminal Appeal. The only statutory right of appeal by the prosecution against on acquittal in the Central Criminal Court is to the Supreme Court on a point of law of exceptional public importance and without prejudice to an acquittal.
In the case of The People (DPP) v. O’Shea, 1982, IR 384, however, the Supreme Court gave a literal interpretation to the provisions of Article 34.4.3th of the Constitution which says that all decisions of the High Court may be appealed to the Supreme Court. That not only gave persons convicted in the Central Criminal Court the right of appeal directly to the Supreme Court as an alternative to appealing to the Court of Criminal Appeal but, for the first time, it gave the prosecution the right to appeal to the Supreme Court against convictions in the Central Criminal Court.
However, the terms of Article 34.4.3 provide that legislation may exclude decisions of the High Court from the apellate jurisdiction of the Supreme Court and that is what this section does in relation to the criminal jurisdiction of the High Court. A saver is included to protect the prosecution's statutory right to appeal without prejudice to an acquittal.
In effect, section 11 restores the right of appeal from the Central Criminal Court to what it was thought to be before the O'Shea case. In other words, persons convicted in the Central Criminal Court will continue to have a right of appeal to the Court of Criminal Appeal which is the court specifically designed for that purpose with the possibility of a subsequent reference to the Supreme Court on a point of law of exceptional public importance.
The prosecution will continue to have a right of appeal direct to the Supreme Court, without prejudice to an acquittal, on a point of law of exceptional public importance. The loss by the prosecution of an appeal against an acquittal is of little real significance as it had not been decided by the Supreme Court in the O'Shea case or subsequent cases, that it could order a retrial in such circumstances. In any event, provision for an appeal by the prosecution against an acquittal is a matter of such fundamental importance to the criminal legal system that any such change should only come about as a result of the decision of the Oireachtas after a full debate.
The amendment proposed by Deputy O'Donnell is excellent. I thank her for bringing this point to our attention and I accept the amendment.