Wednesday, 2 December 2009
Seanad Eireann Debate
Senator Eugene Regan: The purpose of these amendments is to take account of the position of victims of crime and to provide them with legal representation. Amendment No. 18 refers to the information given by the Garda Síochána to victims of crime in terms of early release on bail and the terms of such release. Amendment No. 19 refers to information in respect of parole and the notice of prosecution for breach of conditions of release, the way in which this information would be provided and the notice of discharge, leave of absence or escape of an accused or offender and the way in which he or she would be notified. There is also an amendment in respect of deportation and provision for the appointment of a representative to receive these notices. The other provisions are in the same vein and are designed to ensure the victims of crime receive the requisite information in respect of the convicted person. This is in accord with the basic EU framework decision on the standing of victims in criminal proceedings. We are trying to enhance the position of victims of crime and to provide them with reasonable information in all circumstances.
Senator Ivana Bacik: I support Senator Regan’s amendments. Earlier, we debated other amendments concerning the treatment of victims. At that stage the Minister stated in his view it was not appropriate to place those in statutory form. I anticipate he may take the same view in respect of these amendments and I am conscious that some of the provisions are already carried out in practice, notably, that an investigating or prosecuting garda tends, where possible, to try to give victims notice of the release of accused persons on bail or following a term of imprisonment. However, it is important these measures are placed in statutory form because research carried out on the treatment of victims within the criminal justice system shows that victims wish to be kept informed and notified. I have carried out some research in this area as well. It is of particular concern to victims when an offender or alleged offender is released on bail or following sentence but the victims are not informed. There have been some very distressing situations in which victims have seen the person who assaulted them on the street but were not aware of their release from prison. It is very important to have a statutory requirement that victims are kept notified of the release or deportation of offenders. Another aspect of the amendments relates to the appointment of a victims’ representative. This puts in place what occurs in practice in many cases whereby a victim support person accompanies the victim to court. Many groups throughout the country provide court accompaniment services to victims.
Yesterday, I remarked on the Order of Business that I was part of a Joint Committee on Justice, Equality, Defence and Women’s Rights delegation that visited the new criminal courts complex on Parkgate Street. I put on record in the presence of the Minister how impressed the other members of the delegation and I were with the new facilities offered there and I congratulate the Courts Service in this regard. In particular, we were very impressed by the new facilities for victims or vulnerable witnesses, who are now to be kept separate from the public. Excellent facilities are provided for these people, especially for child witnesses. It is a very important and practical support offered to victims and witnesses in the Dublin area. However, it is also important victims throughout the country are given notice by the Garda in cases where offenders are being released such that they are not taken by surprise or caused distress if they see someone on the street whom they understood was in prison.
Minister for Justice, Equality and Law Reform (Deputy Dermot Ahern): For a moment I expected to witness the political equivalent of a lunar eclipse because I thought Senator Bacik was going to compliment the Minister for the criminal courts complex and for the fact that he and his predecessors have been able to find the resources for it.
Deputy Dermot Ahern: I accept the Senator’s comments. The Courts Service was not the only body responsible for that tremendous building which will stand the test of time and which will represent the modern day equivalent of the Four Courts.
I will read from my speaking note in respect of amendments Nos. 18 to 31. It is important to indicate my views such that on Report Stage and in the other House they will be set down. It is important for the preparation of further stages of the Bill to do this.
However, before I do so I refer to the implementation of the EU framework decision referred to by Senator Regan. I share the Senator’s commitment to improving the services victims can expect to receive from our criminal justice agencies. I am committed to ensuring we have the systems in place to deliver the best possible support for victims. If we are to remain relevant there must be regular reviews and an enhancement of the systems. In this regard I refer to the Justice for Victims initiative which I launched last year, which was the genesis of this Bill. I also refer to the establishment of the victims of crime office within my Department, the commission for support of victims of crime and the review of the victims’ charter. These are examples of the initiatives I have taken in the past 18 months since I became Minister.
We must aim for a more effective means of delivery of services. I favour the legislative approach when it is the most effective, efficient and appropriate means available. The Bill bears testament to my commitment to introduce legislation when necessary and appropriate. However, I am also impressed by the effectiveness of the voluntary service providers and the suitability of the services they provide. We have an obligation to support and assist these organisations. However it is the personal commitment and dedication of the organisations that contribute to their success. I fear that many of these attributes would be lost if we interfered too much and reduced the scope of voluntary effort. In particular, I would be concerned that a statutory framework for all the services would impose a rigidity and result in a loss of much that is good in the current approach. I am committed to supporting the organisations to which I refer and the targeted, high quality services they provide for specific categories of victims. These groups articulate the needs of their clients. By channelling our resources through them, we are avoiding bureaucratic logjams and maximising value for money. We are also ensuring victims obtain a service which is tailored to their needs.
I am pleased to inform the House that since 2005 the Commission for the Support of Victims of Crime has provided €5 million for more than 50 voluntary bodies which support the victims of crime. The commission which operates independently under the aegis of my Department places special emphasis on funding services that assist victims in court. I mention this as a very good example of targeted services.
The Senator will understand, therefore, I cannot accept his belief that legislation is necessary in order to secure the delivery of the notification services mentioned in amendments Nos. 18 to 23, inclusive, or the elaborate mechanisms foreseen in amendments Nos. 24 to 29, inclusive, with regard to the appointment of representatives. I accept that, even in the absence of legislation, there must always be a general policy or framework. The victims’ charter provides such a framework. Since it was first published almost a decade ago, the charter has provided the impetus for the development of new services and highlighted the benefits of co-ordination within an overall framework. It has shown itself to be very effective. Like most things, however, it requires periodic review. As stated, I have arranged for such a review to take place and hope to be in a position to publish the revised charter in the first quarter of 2010. Where possible, I wish to improve the implementation of the existing charter provisions and discover where new provisions might usefully be added. With that general approach in mind, I will now comment on the amendments.
The amendments under discussion can be split into two groups. The first group, comprising amendments Nos. 18 to 23, inclusive, and 30 and 31, focuses on the provision of information for victims and facilitating communication between victims during certain criminal justice procedures such as those related to bail and parole. The notification proposals would certainly result in victims being given a great deal of information on offenders. However, have victims been asked whether they want such an arrangement to be put in place? I am not aware of a demand for such a statutory-based service. Knowing that the offender has been convicted and sentenced is enough for most victims because it represents closure. Regular updates would, in many cases, be an unwelcome reminder. I prefer the current system, under which the victim initiates contact with the victim liaison services of the Garda Síochána or the Irish Prison Service and makes the decision that he or she wishes to be informed of significant developments in the investigation of the offence or the detention of the offender. Under this system, victims are contacted in writing or by telephone at the appropriate times.
I am also concerned about the resource implications of the amendments. Amendments Nos. 18 to 23, inclusive, would place responsibility for ensuring victims were given notice of several issues — ranging from bail proceedings to the deportation of offenders — by the Secretary General of the Department of Justice, Equality and Law Reform. Giving effect to these proposals would require another layer of bureaucracy. While that would be of doubtful value, we must also wonder if victims, as a group, would be better served than they are under the current arrangements. The services and procedures of the Court Service, the Garda Síochána and the Irish Prison Service would be channelled through the Department as opposed to dealing directly with victims, as is the current practice.
I also note that the amendments do not distinguish between serious and less serious offences. Realistically, this is a factor which must always be taken into account. I might be sympathetic to the proposals if they added to the quality of the current services. However, I am of the view that they would not provide any tangible improvement to these services. I do not need to remind the House of the severe restriction on resources. Any increase in resources must be matched by a solid and measurable return for that investment.
Amendments Nos. 19 and 30 provide for victims to be notified of parole board hearings and allowed to make submissions to the board or the Minister. It is proposed that any submission made to the board be made available to the offender. I have a number of concerns about this proposal. In the first instance, it would place a statutory requirement on a body which has no statutory basis. The board’s principal function is to advise the Minister on the administration of long-term prison services. The board, by way of recommendation to the Minister, advises on a prisoner’s progress to date and on how best to proceed with the future administration of the sentence. The final decision in this regard lies with me, as Minister.
The parole board has discretion to exclude the views of the victim from a prisoner’s dossier on the grounds of potential negative implications for the safety and security of that victim. The amendments tabled by the Senator — apart from still permitting a victim’s address to be withheld — seem to remove this discretion. The effect might be to expose the victim to associates of an offender in his or her local area and deny confidentiality in respect of the written submission, with all of the consequences that might flow therefrom. I am sure that, on reflection, the Senator might agree that this might not be a desirable outcome.
Amendment No. 21 might have implications for the procedures operated by the Irish Prison Service. It would provide for prior notification to be given to victims when an offender was to be detained in hospital. Advising victims about a prisoner’s movements might not in many cases be consistent with good management or security policies. It would be impossible to safeguard the integrity of the information once it was given to another person. A prisoner remains under the control of the prison authorities while he or she is incarcerated. I suggest, therefore, that there is something of an added risk to victims as a result of the fact that the offender might be in hospital. Having balanced the potential security risks against the limited added risk of escape, I do not propose to accept the amendment.
Amendments Nos. 23 and 31 which relate to providing victims with notice of the deportation of offenders strike me as unnecessary. The Immigration Act 1999 sets out the procedures relating to the sentencing of foreign nationals, including the possibility of deportation on release. The Immigration, Residence and Protection Bill 2008, currently before the Oireachtas, is the appropriate instrument in respect of which this matter should be raised. The Bill, a consolidation measure, is a comprehensive and single statement of the law on immigration. I do not want to begin unravelling the approach taken in that Bill by making separate provision in one area even before it is enacted.
Amendments Nos. 24 to 29, inclusive, provide for an elaborate and complex arrangement which would cover the appointment, functions and termination of appointment of representatives of victims who would receive the proposed notifications for which the Senator’s earlier amendments provide. I am uneasy about these proposals which lack safeguards and oversight. I wish to mention a few obvious areas of concern in this regard. If adopted, the proposals to which I refer would give a third party specific statutory rights in respect of personal information from both victims and offenders. We would need to evaluate this from a data protection perspective. The proposals do not specify any vetting processes to which the nominee should be subjected. Provision is not even made in respect of a good character condition. The latter is the least that should be expected of someone whom it is proposed should, on behalf of victims, make submissions on very sensitive matters to parole boards and during deportation processes.
It is clear that the proposed amendments are grounded in the relevant EU framework decision, particularly Article 4 thereof. Ireland has implemented the framework decision through several legislative measures and the victims’ charter. Article 17 of the framework decision which deals with implementation states, “Each Member State shall bring into force the laws, regulations and administrative provisions necessary to comply with this Framework Decision”. According to the framework decision, it is, therefore, permissible for Ireland to implement it, at least in part, through administrative means. The European Commission has stated it cannot assess the extent or degree of implementation in the absence of legislation. It has also made the point that legislation demonstrates the degree of commitment on the part of the national authorities to supporting victims. These are reasonable points. However, we have in place a wide range of legislative measures aimed at supporting victims and these work well. The fact that they are spread over many years and different statutes does not mean they are less effective or important.
I return to my basic point, namely, that solutions and support need not always require legislation. We have a strong level of voluntarism and strong family and community networks. I am happy to build on these pillars and continue to support them in their excellent work. For the wide variety of reasons to which I refer, I do not propose to accept the amendments.
Senator Eugene Regan: The Minister’s reply is predictable, particularly in the context of our previous discussion on the matter. There is no question that the victims’ charter is comprehensive. If its provisions are implemented in an effective manner, the charter can go a long way towards meeting the needs of victims in being provided with information and involved in the criminal prosecution process.
I welcome the fact the Minister has indicated the victims’ charter will be reviewed in 2010 because, in many cases, we have a voluntary code and a voluntary system of implementing policy but ultimately, it requires legislation in order that the provisions and policies are effectively implemented. This may come to that.
In regard to the European Commission and the point about the commitment to implement the provisions of the framework decision, that is the basis on which the amendments tabled by Fine Gael are premised. I do not suggest in tabling these amendments, nor does the framework decision suggest, that information is forced on victims. In all cases, it is premised on the victim wishing to receive and requesting the information, which is the subject matter of the proposed amendments. This would only arise in the case of serious crime. I stand by the amendments and believe we need victims’ rights established in legislation. These amendments are designed to do that. That procedure is more in conformity with the requirements of EU legislation than the purely voluntary code the Minister proposes. A review of that code is welcome and we will see at that stage whether victims of crime are satisfied that it is proving effective. I stand by the amendments tabled.
Deputy Dermot Ahern: Without going over the area again, having been in this office for more than 18 months, I see very clearly why, in the context of the Lisbon treaty, we decided to ask for particular arrangements in the justice and home affairs area, especially in regard to criminal law. That shows clearly we have a very distinct type of legal system which is very different from that in mainland Europe. In the framework decision and the discussions on a revised framework decision in this area, which are ongoing, it is quite clear the European Commission takes this into account.
The most recent discussion on this issue was at the Council of Europe in Brussels in July. One of its conclusions was to call on the Commission to support by all suitable means member states in their efforts to make sure victims of crime can benefit from decisions taken at EU level and, if appropriate, proceed to put forward the relevant legislative proposal and other measures. It clearly acknowledged that this can be done by a suite of legislative and administrative measures.
It would be wrong if the impression was to be given from what Senator Regan said that there is nothing on a statutory basis in regard to the protection of victims. There is and as I said, it is contained in much legislation enacted over a long period of time. The statutory provisions are in place to protect victims. I refer to the success of the victims’ charter, and not only the one issued by my Department. One should look at the various initiatives taken in other areas. I compliment the Garda Síochána on fulfilling the victims’ charter by having its own victims’ charter and procedure in regard to notification of victims, which is very well set out. The Garda family liaison officers keep victims’ families informed of the progress of serious investigations. The Irish Prison Service also has a number of initiatives in this area, including the Irish Prison Service victims’ liaison officer. It is important to note these services are provided on an opt-in basis.
Some families do not want to be notified and want closure, and I know this from my examination of files in regard to recommendations from the parole board. Other families want to be notified and, as much as possible, their considerations must be taken into account.
Prison is about rehabilitation and trying to get people who have committed heinous offences to reform. I hope, when let out having served their sentences, prisoners would be able to go back into society without committing crimes again. I see from the many files with which I deal that there are people in jail serving very long sentences, deservedly so. It is also clear from some people’s rehabilitation and remorse and regret about the crimes they have committed and from the assistance they have received from their families, that they will not commit crime again because they have learned a very salutary lesson. It is important some cognisance is taken of this.
Victims must have as much notification as they require. The present system is more than satisfactory. Leaving aside the issue of resources, which is important, what would worry me is that if we made it too bureaucratic, everything would have to be ticked off by legal teams parsing and analysing whether everything had been done in accordance with the statute. To a certain extent, one would leave out the flexibility there, in particular in regard to NGO groups which, despite more difficult economic circumstances, are very well funded by the Commission for the Support of Victims of Crime, which is funded by my Department.
Senator Eugene Regan: The Minister said my intervention suggested there were no legislative provisions for the victims of crime. In fact, that is my point. There are legislative provisions for the victims of crime and what I suggest with these amendments is that we complete the process. The framework decision, which this country is legally obliged to implement, recognises that victims should have rights in the criminal process. The Minister is saying that is fine but that we will do it on an ad hoc basis and administratively by way of a voluntary code. What that really means is that the victims will have rights but they will not be enforceable. That is the key distinction the Minister is overlooking.
There are commitments in the victims’ charter but it is only a charter and has no statutory basis which would ensure there would be recourse to the courts if the rights of victims were not adhered to. The point the Minister made was that we do not want lawyers in on this and a procedure where the rights of victims would be enforceable.
It is a distinction which should not be used to suggest that we have a superior criminal law system. Given the current breakdown in law and order and the increase in crime figures, I do not think our criminal legal system is of the highest standard or should be regarded as immutable by European best practice.
Deputy Dermot Ahern: I do not wish to repeat myself but if we were to put this on a statutory basis, we would create more restricted bureaucratic procedures and a basis for challenge by the legal profession. We would remove the flexibility that exists in the system at present. There was a time when victims were not notified or given a liaison officer but that has changed dramatically in the past few years, mainly due to initiatives such as the victim’s charter. The existing legislation and substantial administrative arrangements for victims’ rights are working well, although I would be willing to amend them on occasion. We are bringing forward the revised victims’ charter and will ask for the input of victims’ groups, which are, by and large, happy with the existing statutory and consultative arrangements.
Senator Ivana Bacik: I move amendment No. 32:
This amendment is self-explanatory. In my contribution on Second Stage of the Bill I noted that the May 2007 report by the expert group on balance in the criminal law gave rise to many of the provisions made in this Bill. My amendment seeks to give effect to the report’s specific recommendation that an application be made to the Supreme Court. Section 7 deals with exceptions of the rule of double jeopardy in Part 3. This interpretation section defines “Court” as the Court of Criminal Appeal. The aforementioned report advises “that a greater rationality needs to be brought to the piecemeal development of the jurisdiction of the Court of Criminal Appeal” and recommends that appeals be brought instead to the Supreme Court.
This amendment is also appropriate in light of the new departure Part 3 makes to criminal law. Our neighbouring jurisdiction has already introduced statutory exceptions to the rule of double jeopardy but these provisions have been used only sparingly. Strong safeguards need to be inserted to ensure that persons acquitted following a trial will not be in fear of retrial other than in very rare cases.
Given the recommendations of the 2007 report, it would seem more appropriate that the Director of Public Prosecutions would apply for retrial orders under section 8 to the Supreme Court rather than the Court of Criminal Appeal.
Deputy Dermot Ahern: I do not propose to accept the amendment. The balance in the criminal law group indicated the court process for setting aside an earlier acquittal and ordering a new trial should be dealt with by the Supreme Court. However, I am advised by the Attorney General that the constitutionality of so allocating that role is questionable because Article 34.4.1° of the Constitution identifies the Supreme Court as the court of final appeal. I am also advised that it would be inappropriate to give a new jurisdiction to the Supreme Court where it might be called upon to hear oral evidence.
Aside from these considerations, section 14 of the Bill has the advantage of allowing an appeal by either side on a point of law to the Supreme Court. This approach mirrors the process by which an alleged miscarriage of justice against a convicted person may be quashed and a retrial ordered.
Leaving aside the fundamental difficulty with the substance of the amendment, I am advised that it is in any case inadequate from a drafting perspective. It fails to address the references to the Court of Criminal Appeal in section 11, which inserts a new section into the Criminal Justice (Legal Aid) Act 1962 to provide legal aid for those who are subject to retrial orders under sections 8 or 9 of the Bill.
In view of the Attorney General’s advice on the doubtful constitutionality of giving new jurisdiction to the Supreme Court, I ask Senator Bacik to withdraw the amendment.
Senator Ivana Bacik: I should have noted that the Government’s long-standing policy has been to abolish the Court of Criminal Appeal. Legislation introduced in 1995 envisaged the subsumption of the Court of Criminal Appeal into the Supreme Court but it has not yet been commenced. I do not clearly understand why the Attorney General has taken the view outlined by the Minister. I will withdraw my amendment in order to reconsider it further but the expert group’s recommendations are sensible. It is well known among practitioners that the Court of Criminal Appeal has developed its jurisdiction in a piecemeal fashion, although that is a bigger issue than the jurisdiction of that court. My amendment is in keeping with long-standing Government policy in this area.
Deputy Dermot Ahern: A recent report by the working group on the court of appeal, chaired by Mrs. Justice Susan Denham, published last August, acknowledged the necessity for a court of civil appeal. While the report rejected some criticism of the court, particularly in respect of giving ex tempore judgments, it does take the view that a permanent team of judges would lead to a more comprehensive development of the criminal law jurisprudence in the long term. That report is being examined. There is a commitment in the programme for Government to holding a referendum on this issue. While the report deals primarily with the court of civil appeal the Court of Criminal Appeal will also be taken into consideration in any examination of that area. What would be proposed is to give the Supreme Court a new jurisdiction potentially leaving the situation whereby oral evidence would be given. The Supreme Court is the court of final appeal.
Senator Ivana Bacik: I am grateful for the Minister’s clarification. I hope Mrs. Justice Susan Denham’s recommendations will be taken on board. The piecemeal development of the jurisdiction of the Court of Criminal Appeal is the difficulty, largely due to the constantly shifting judges. I do not mean this as any criticism of the individual judges but different judges have sat making it hard to see a consistent set of principles evolve.
Now that the Court of Criminal Appeal has a permanent home in court 22 in the new criminal court complex hopefully there will be a new and more fixed team of judges. I should have earlier extended my compliments beyond the Courts Service to include the Minister and the Department of Justice, Equality and Law Reform on their excellent work on the building. I might criticise many aspects of public private partnerships, which have not served the State well in some areas such as regeneration projects in Dublin, and in Thornton Hall, but on this project the partnership seems to work well. This is a great improvement on conditions for criminal trials. I hope the physical conditions of the Court of Criminal Appeal will be matched by the emergence of a better and more consistent set of principles from the jurisprudence of the court.
Amendment, by leave, withdrawn.
Senator Ivana Bacik: I move amendment No. 33:
In page 11, line 20, after “adduced” to insert “by the prosecution”. This amendment is intended to be more precise about the definition of “new and compelling evidence” in section 7 where the provision states: “which could not, with the exercise of due diligence, have been adduced during those proceedings,”. We want to clarify the type of evidence being described. Section 8 arises only where the prosecution seeks the order for retrial. The implied meaning is evidence that could not have been adduced by the prosecution during those proceedings.
Deputy Dermot Ahern: We asked the Parliamentary Counsel to examine this amendment and it said the addition is not necessary. We are here concerned with the basis for an application by the prosecution for a retrial order under section 8. It goes without saying that we are concerned with the case being made by the prosecution in the original trial and what was or should have been adduced by the prosecution in that trial. Our preference is to leave it as it stands.
Senator Ivana Bacik: I will not press the amendment at this stage but there is a certain ambiguity in the wording of the section because there could be evidence which was known to the defence during the trial but “which could not, with the exercise of due diligence, have been adduced” by the prosecution.
Amendment, by leave, withdrawn.
Senator Ivana Bacik: I move amendment No. 34:
This seeks to amend the definition of “new and compelling evidence”. The phrase used is “new and compelling” meaning evidence which is reliable, substantial and of a high degree of probity, in other words, it implicates the person with a high degree of probability. I am not sure that is sufficiently restrictive. The review group has identified only one conviction under part 10 of the British Criminal Justice Act 2003. I should have checked to see if there had been any since 2007 when the group reported. In the case of Dunlop, which was decided in 2006, to which the group refers, an acquittal was reopened where an accused person had made various admissions, more or less confessing his guilt in respect of a murder.
The review group recommends that any right of appeal or exception to the principle against double jeopardy should be capable of use only in exceptional cases and must be subject to sufficient safeguards. It refers also to the European Convention and to Articles 2 and 4 of the protocol which state there is a right not to be tried or punished twice and that cases should only be reopened where there is evidence of new or newly discovered facts.
According to the review group’s report, which deals with the British provisions and the sort of evidence that arises, “safeguards would have to be introduced in the form of: (a) an exacting threshold for the obligation, such as that the evidence is compelling”. The word compelling is used in the phrase “new and compelling evidence” which is welcome but the group cites the examples of DNA evidence or a confession to the offence. We propose to insert that here. It does not restrict new and compelling evidence to those two examples but by giving examples it specifies the sort of exacting threshold required before the Director of Public Prosecutions can make the application for a retrial order. We want to clarify what sort of new and compelling evidence it is envisaged would be at issue where a section 8 application is made. It is to ensure that this is an exacting threshold and that it is a new jurisdiction which will be used only sparingly.
Deputy Dermot Ahern: In the UK two convictions after retrial have been obtained and one retrial is still outstanding and has been ordered. The Senator proposes that two types of evidence, DNA and confession, be inserted as examples of what might constitute new and compelling evidence. I am aware the balance in the Criminal Law Review Group when recommending that the rule against double jeopardy should be modified to allow acquittals to be re-opened on the basis of new evidence, identified DNA evidence and confession evidence as examples of compelling evidence. I agree that they may constitute compelling evidence in a particular case.
Two of the few cases which have been successfully retried in the UK on the basis of its new and compelling evidence procedure were based on admissions by acquitted persons. I caution, however, against assuming that DNA evidence is always compelling. It certainly puts a person at the scene of a crime but does not of itself necessarily implicate the acquitted person with a high degree of probability in the offence. Its significance depends on other evidence in the case. It may be that the acquitted person admitted to being at the crime scene during the original trial. In such a case DNA evidence that emerges after the acquittal and puts the person at the scene is very unlikely to constitute compelling new evidence.
As regards confession evidence I understand that an application for retrial in the UK which was based on admissions by the acquitted person was rejected by its court of appeal because it was considered to be unreliable. Including examples of evidence would be very unhelpful and would have the potential to create the incorrect impression as to the value of particular types of evidence. The value of any piece of evidence is dependent on surrounding circumstances. There are many types of evidence. Discerning whether any new evidence is compelling is properly a matter for the prosecution in the first instance, and the court in the second instance. That is the approach taken in the Bill.
The test to be met before the Director of Public Prosecutions may make an application for a retrial order on the basis of fresh evidence is an exacting one, rightly so. The reopening of an acquittal must be an exceptional occurrence, otherwise our criminal justice system would fall into serious disrepute. The test requires the Director of Public Prosecutions to form the view that the evidence is new, that it was not adduced in the earlier proceedings and could not, with the exercise of due diligence, have been so adduced. That is the important qualification to guard against sloppy investigations and prosecutions. The test also requires the Director of Public Prosecutions to form the view that the new evidence is reliable, substantial and implicates the person with a high degree of probability in the commission of the relevant offence concerned, and the public interest requires the application for a retrial to be made.
The test for the Court of Criminal Appeal goes further by requiring it to consider whether granting the retrial order is in the “interests of justice”. The meaning of the “interests of justice” is amplified in section 10(3). It requires the court to have regard to such matters as whether any retrial would be conducted fairly, the passage of time since the commission of the offence and the interests of victims. I am satisfied the definition of new and compelling evidence set out in section 7, together with the additional matters which the Director of Public Prosecutions and the court are required to take into account, are sufficient to ensure this procedure will be used only in exceptional cases.
Senator Ivana Bacik: It is not envisaged in the section that just because DNA evidence comes forward that it is necessarily new and compelling, because it obviously must implicate the person concerned with a high degree of probability and be compelling apart from that. I can envisage a situation where DNA evidence which might not emerge during the trial might not offer anything new or compelling to implicate the person concerned. However, it is hard to see any evidence which fits otherwise within the definition of new and compelling that is not DNA evidence or admission by the person concerned. There might be others, but those are the two obvious examples that spring to mind. I will not press the amendment at this stage.
Deputy Dermot Ahern: There are two significant conditions built into the Bill. The Director of Public Prosecutions can only make the application where it appears to him that there is new and compelling evidence and that it is in the public interest to make the application. There are several significant safeguards in the Bill from the perspective of the acquitted person. First, the possibility of an acquittal being reopened on the basis of new and compelling evidence is restricted to the most serious offences in the Statute Book. Second, the provision has prospective effect only. Third, the test to be met by the Director of Public Prosecutions is very high in order to that the procedure is only used in very clear and exceptional circumstances. Fourth, the court must have regard to the interests of justice, including whether any retrial could be conducted fairly when making its determination. Fifth, the acquitted person is on notice of the application and is entitled to legal aid. Sixth, unlike in other jurisdictions that allow the acquitted person to be remanded in custody or on bail pending the determination of the trial application, the acquitted person will be at liberty and not subject to any restrictions. Seventh, the possibility of an appeal to the Supreme Court is provided for in section 14. Eighth, the Director of Public Prosecutions may only make one application for a retrial. Penultimately, if a person is acquitted a second time, there is no possibility of making a further application for a retrial order. Finally, there is no possibility of a without prejudice prosecution appeal in the case of a person acquitted following a retrial order. That is proposed in section 24 of the Bill.
Senator Eugene Regan: I would like to make one point about this, although it probably comes under section 8.
An Leas-Chathaoirleach: We are dealing with section 7.
Senator Eugene Regan: I can deal with it under this amendment. The Minister has spoken about the prospective effect of the change in the double jeopardy rule. I wonder why that is the case. I would like hear the Minister’s clarification on it. We have a different constitutional position to the UK, but when the double jeopardy rule was limited in that country, it was made retrospective. It is a common law right as distinct from a constitutional right; therefore, I do not readily see the impediment to making it retrospective.
The whole purpose of abolishing the rule in the first instance is to restore confidence in the administration of justice and to ensure that it is done. There are two constitutional provisions which people have in mind when considering whether it could not have retrospective effect. Article 15.5 of the Constitution forbids the Oireachtas to declare Acts to be infringements of the law when they were not so at the date of their commission. That does not arise here. Article 38.1 states that no person shall be tried on any criminal charge, save in due course of law. I do not see the conflict there if the rule was retrospective.
The real test for a retrial — reference to this has been made in the High Court — is whether there is a risk of an unfair trial. This should be decided in the sense of balance of competing public interests. There is an issue of confidence in the administration of justice. Justice should be seen to be done where there is new and compelling evidence that there should be a retrial. Why should it not be made retrospective, given that there does not seem to be a constitutional impediment to making it so?
Senator Ivana Bacik: I disagree with Senator Regan. I am glad to see it is prospective only because there would be constitutional difficulties if it was not so. I am also glad the Minister has confirmed the safeguards that apply to section 8, even though I know we are straying into section 8. These safeguards are welcome and my amendments to section 8 are aimed at trying to clarify the safeguards and ensure that they are watertight.
When he listed the safeguards, he said the person who has been acquitted would be at liberty. We are opposed to section 16 because we are not clear what it means. The section allows the detention of a person who has been acquitted, but in respect of whom there has not yet been an application under section 8. That is like a floating detention power, because there is not any purpose specified for the detention. I may have missed something, but I have discussed this with colleagues and we cannot see the purpose of section 16. Is it to give the Garda power to investigate and interrogate somebody, or is it simply to enable the Garda to bring an acquitted person before the court for a section 8 application? It is far too broad in the power of detention it provides. It may be unconstitutional, given that it relates to somebody who has been acquitted. It is certainly at odds with what the Minister has just said, namely, that the person in respect of whom the section 8 application has been made will be at liberty. Reading section 8, it appears such a person would be at liberty but section 16 gives a garda power prior to a section 8 application to seek that the District Court judge would authorise arrest and then detain somebody. I would like clarification on this from the Minister, although we may leave it until the debate on section 16. However, it arises in the context of section 8.
Senator Paul Bradford: I support what has been said by Senator Eugene Regan in regard to the possible application of this provision in retrospective fashion. I note Senator Bacik’s point on the possibility of there being constitutional difficulties in this regard, which is the answer that has previously been given by the Minister. I will be interested to hear his explanation as to what exactly these constitutional difficulties will be.
We are speaking about the passage of a law which will provide, in very exceptional circumstances where very solid and substantial evidence is available, for the possibility of a retrial.  We are not talking about some sort of carte blanche law which will be used every day, and I trust the possibility of a retrial will be used in an exceptionally sparing fashion. However, any law has to be about justice. How can it be just or fair that particular victims against whom crimes were committed before the date this law is enacted will not be able to have those matters reopened in particular and very exceptional cases? As Senator Regan pointed out, we are not attempting to introduce a situation where a person or persons would be charged with an offence which was not an offence before this law was passed. We are obviously talking about cases where an offence which was a crime X number of months or years ago remains a crime, not new crimes.
I would be interested to know exactly what are the constitutional parameters which have caused people to suggest this law cannot apply retrospectively. Why are we now defining two categories of victims — those against whom crimes were previously committed and those against whom crimes will be committed next month or in 12 months? How can the Minister make that differentiation?
I look forward to the Minister’s initial observations. I ask him to reflect carefully on the argument presented by Senator Regan on this section. If we are to have confidence not just in this law but in our entire body of law, justice must be seen to be fair and to be applied in a fair fashion, and the same law and arrangements should apply to every citizen. If this law is introduced in prospective fashion, as Senator Bacik said — these legal terms are new to me — we will clearly have two categories of victims, one where, if substantial new evidence is available, the victim or the victim’s family can have the satisfaction of having a trial reintroduced, and a second category of victim on whom we shut the door and to whom we say go away. It is important there would not be such a variation in our law.
I look forward to the Minster’s presentation of the case for his earlier argument on Second Stage on the difficulty of having this law applied retrospectively. It certainly applies retrospectively in a number of other jurisdictions, although I know different jurisdictions have different legal systems, different bodies of law and different foundations of law. However, if there was a genuine will in this House or in the country to ensure all victims were treated equally and that there would not be two categories of victims, we would be in a position to find our way around this problem.
Deputy Dermot Ahern: With respect, perhaps we could deal with this issue when dealing with section 8. I raised it in the context of trying to outline to Members the safeguards for acquitted persons in regard to the possibility of a retrial. Section 8 deals with the issue of retrospection so perhaps the issue would be best dealt with at that stage and we can also deal with section 16.
Senator Ivana Bacik: Yes. I presumed we would deal with that when dealing with section 8.
Amendment, by leave, withdrawn.
Section 7 agreed to.
Senator Ivana Bacik: I move amendment No. 35:
The amendment is self-explanatory. It seeks that the person in respect of whom the application is made has the right of appearance before the court. It is already implicit in subsection (5) that if the Director of Public Prosecutions has to give notice to the person concerned, it is an important safeguard in this provision that clearly it would be very wrong if this could be made ex parte without the person being informed. If that is the case and if the person has the right to be given notice and the right to legal aid under section 11, he or she should also have a right to be heard.
The Minister may say it is unnecessary because it is already clear from the terms of the section, as well as the terms of section 11, but I would like the point clarified. As I said, I welcome the Minister’s listing of the safeguards contained in the section, which is very important. However, given the obligations under the European convention case law and given the recommendations of the review group report, it is required that we would have safeguards here.
It is a major departure from our current criminal justice procedures that a person who is acquitted can be subject to a retrial. It is very important that we ensure these are powers that can only be used sparingly and that we also provide for safeguards against any abuse of the new power in the section. Otherwise, as the Minister himself has said, the entire criminal justice system will fall into disrepute. There needs to be certainty in the criminal law for victims and for offenders. It is very important that there is also certainty for persons who have been tried and acquitted, which has always been a cornerstone of our criminal justice system. This is a departure from that. While it is a departure the merit of which in principle is recognised by everyone, it is something that must be done sparingly. It is a new power for the Director of Public Prosecutions which must be subject to very stringent safeguards and to an exacting threshold for the application.
Deputy Dermot Ahern: The Senator anticipated my use of the word “unnecessary”. We believe it is inappropriate in criminal proceedings legislation. The words which the amendment proposes to insert sometimes appear in legislation but dealing only with a civil proceeding. They would be unusual in the criminal context, the reason being that it is taken for granted, unless the contrary is stated, that a person who is subject to criminal proceedings has a right to appear to be heard.
I am advised in the case of sections 8 and 9 that it is also taken for granted that an acquitted person, who is a central character in the application for a retrial, has a right to appear and be heard. He or she is on notice of the application, as stated in subsection (5), and it is also clear from subsection (6) that this right is taken for granted. Subsection (6) provides that an application may be heard notwithstanding that the acquitted person fails to appear, subject to the proviso that the court is satisfied that in all circumstances it is in the interests of justice to proceed to determine the application in the absence of the acquitted person.
The Bill also provides for legal aid for the acquitted person. This is provided in section 11, which amends the Criminal Justice (Legal Aid) Act 1962 to create a new legal certificate which is to be available to an acquitted person who is the subject of an application for retrial order. If the acquitted person was not entitled to appear and be heard, this legal aid provision would be redundant. There is no ambiguity in the Bill around an acquitted person’s right to appear and be heard in respect of the application for retrial under either section 8 or 9.
Senator Ivana Bacik: I will withdraw the amendment in light of what the Minister has said but I would like clarification on the relationship to section 16, or at least an indication from the Minister that he will address my concern about the section given that he stated that one of the safeguards in section 8 is that the person will be at liberty in respect of this with regard to the offence of which they have been acquitted. There is provision later in the Bill where somebody is detained in respect of other matters.
Section 8 envisages that a person would be at liberty——
An Leas-Chathaoirleach: I will allow the Senator to speak on the section later.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach: Amendments Nos. 36 and 45 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Senator Ivana Bacik: I move amendment No. 36:
This amendment provides an extra test for the court before it may proceed to hear and determine the application in the absence of the person. Given what the Minister has said about the right of the person to be heard before the court — I am glad he clarified that — it is of extreme concern that an application of this serious nature could be heard in the absence of the person.
I understand there may be cases where this is necessary. If the section 8 jurisdiction is to be used only sparingly, the section 8(6) jurisdiction must be used even more sparingly. It concerns somebody who is acquitted and innocent in law. That person is not expecting further criminal proceedings and may have moved abroad or left the jurisdiction, as he or she is entitled to having been acquitted. I accept that the court should have power to hear and determine the application in a person’s absence but it is important that the court must be satisfied it is in the interests of justice to do so. The court must also be satisfied that the Director of Public Prosecutions has given all reasonable notice to the person concerned to enable an appearance before the court.
There may be a more elegant way of putting the amendment but the director must give the person concerned all reasonable notice to facilitate their appearance. The Minister may say that is unnecessary as the director will do this anyway but it is important there is a requirement for the court to be satisfied that this is the case, as well as being satisfied that it is in the interests of justice to proceed in the absence of the person. The person is not accused and “acquitted” is the more correct term.
Amendment No. 45 is in similar terms and relates to with-prejudice prosecution appeals where many similar concerns arise. This is the procedure under section 23 where it is proposed that the Director of Public Prosecutions or the Attorney General can appeal a verdict even where somebody has been acquitted on indictment after commencement of the section. There is a provision in section 23 for the appeal procedure and there is a specific notice requirement in slightly different terms in section 23(2). The test in subsection (3) allows the appeal to proceed in the absence of the person acquitted.
I have proposed an amendment that the court would have to be satisfied not just that it is in the interests of justice to proceed in the absence of the person concerned but also that the Director of Public Prosecutions has given all reasonable notice to the person concerned to facilitate an appearance. We may be dealing with somebody who has been acquitted some years previously and subsequently left the jurisdiction. It may not be possible to locate such people but it is important that the Director of Public Prosecutions would take all reasonable steps to do so before any proceeding could take place in their absence. We are dealing with acquitted persons.
Deputy Dermot Ahern: We believe the amendment is unnecessary. There is a similar provision in section 9(7) dealing with tainted evidence acquittals, but for some reason the Senator has not proposed an amendment to it. The person’s absence may be due to him or her having absconded and fled the jurisdiction, and such action on the part of the acquitted person should not have the effect of vetoing a hearing of the application or an appeal, if that is the case.
The acquitted person may have a valid reason for non-appearance and that is why the court may only decide to proceed with the hearing in the absence of the person if it is satisfied in all circumstances to do so in the interests of justice. I am assured the interests of justice test encompasses consideration of whether the prosecution gave the subject of the application or appeal, as the case may be, reasonable notice to facilitate his or her appearance. The amendment is unnecessary.
If somebody had either absconded or left the jurisdiction after an acquittal, the normal extradition rules would apply, especially with the European arrest warrant if somebody was on the continent of Europe. The Senator has argued it is necessary to have the court satisfied of the director’s efforts but in these circumstances the court would always be under an obligation to ensure reasonable notification was given.
Senator Ivana Bacik: I am interested in the Minister’s use of language which illustrates why we must be so careful with section 8 to ensure there are sufficient safeguards. The Minister commented on a person absconding but we are talking about a person who has been acquitted.
Deputy Dermot Ahern: Perhaps the person absconded on purpose knowing that an application was to be made.
Senator Ivana Bacik: The person is not subject to any criminal charge.
Deputy Dermot Ahern: No.
Senator Ivana Bacik: I know “abscond” is not a legal term but the use of the word implies that the person would leave with the charge hanging over them in some way. This clearly deals with somebody who has been acquitted. There is no time limit on section 8 now so when the section commences, somebody could be acquitted and five years down the line the Director of Public Prosecutions might move an application under the section because new evidence only arises at that point. If that is the case, it may be impossible to track down the person concerned to give notice.
There may be examples of a person deliberately not appearing because an application has been made but there may also be applications made under section 8(6) where it is not possible to locate the person. To say that this is because a person has absconded is immediately to suggest the person is guilty. We must be careful of the issue and that is the reason we have proposed the amendment. I will withdraw it now but we will press it on Report Stage.
I will propose an amendment for section 9(7) on Report Stage and I am grateful to the Minister for pointing out that oversight. Such an amendment should also have been included with the amendment to section 23.
Amendment, by leave, withdrawn.
Question proposed: “That section 8 stand part of the Bill.”
Deputy Dermot Ahern: I have looked at the section very carefully with respect to retrospective action. People understand that with criminal law generally, the principle of legislating from a retrospective point of view is impossible. Somebody can only be convicted of a crime on the basis of the legislation in place at a particular time. That is a general point.
There is an issue in this legislation regarding the reopening of acquittals on the basis of new and compelling evidence and an acquittal being tainted. There is a fundamental principle in this relating to the separation of powers. We cannot pass legislation in the Oireachtas overturning or changing any decisions made in court. This legislation is different from that. The call for retrospection would, in effect, be a direct intervention against previous judgments made by courts. This allows the courts to be involved. At every hurdle in the legislation there is judicial involvement. In other words, the courts must be involved in determining whether an acquittal is to be reconsidered. It is not the Oireachtas that will be making the decision; that is the difference. I have given consideration to this issue. I met at least one family and indicated we had considered the issue of acquittal intensely with the Office of the Attorney General. The advice of the Attorney General is that an attempt to retrospectively allow the reopening of acquittals would involve a breach of the principle of a separation of powers. It is well established that the Oireachtas cannot alter or reverse a finding of the courts. Under existing law, the effect of a judgment of acquittal is that the person acquitted cannot be reprosecuted in any circumstances. Were the proposed law to alter that position by operating retrospectively, the effect of judicial determination would be altered.
Apart from this fundamental objection, there is a strong argument that to retrospectively change the status of an acquittal and provide for the possibility of interference with the verdict of the court, where there was not that possibility at the time of the person’s trial, would infringe the person’s right under Article 38.1 of the Constitution not to be tried on any criminal charge, save in accordance with law. I am conscious that these constitutional requirements are cold comfort to the victims of crime and their families. I am also conscious of the potential added benefits that retrospection, if it were to apply, would bring. It would most likely allow the provisions to be used much earlier and us an opportunity to take advantage of the great developments in forensic science, particularly DNA profiling, in the past 20 years.
I am aware that other jurisdictions, including the United Kingdom, have applied their equivalent provisions retrospectively. However, both I, as Minister, and the Oireachtas must operate within the constitutional framework we have in the State, namely, that the retrospective approach adopted in the Bill reflects the particular duty we have. I am aware, too, that a number of countries, among them southern Australia, have only allowed for prospective effect. The same applies to the Bill currently before the New Zealand Parliament. The United Kingdom does not have the type of constitution we have; therefore, we must judge the retrospective effect under the constitutional framework under which we operate. I am advised that, in the case of the United Kingdom, its provisions have not yet been subject to legal challenge. Also, there has been substantial comment from outside commentators on its legislation. They have expressed a strong view that the UK legislation, as proposed and in place, does not comply satisfactorily with the requirements of the European Court of Human Rights.
I have sympathy for victims in the circumstances in which they find themselves, but having looked at the matter very closely I must, for all of the reasons mentioned, be guided — as must the Government and the Oireachtas — by the strong legal advice available, not just to me but also to the Attorney General. I cannot just reject his advice. We must accept it because he is the law officer of the land. I would be in dereliction of my duty as Minister, as would the Government, if we were to ignore the advice of the Attorney General in this respect.
I am not making a political point, but if the Senators who suggest this legislation can be made retrospective received the proper legal advice from constitutional lawyers, it would clearly state this is not possible.
Senator Eugene Regan: I thank the Minister for his explanation, but I am not entirely convinced. One could argue that the principle of double jeopardy which I classify as a common law right has been used and referred to in various judgments of the courts and has, at times, been invoked as a constitutional right. In this legislation we are interfering with that principle. Therefore, retrospection would not create new criminal offences or interfere with the notion of a fair trial. I have not brought forward an amendment on this issue and do not, therefore, propose to prolong the debate. However, I reserve my position on the issue before Report Stage.
Senator Ivana Bacik: I have spoken on section 8. I welcome the safeguards and the fact the section will only operate prospectively. My amendments were designed to ensure the safeguards were watertight for the person acquitted in respect of section 8 applications and I intend to press the second amendment on Report Stage. I ask the Minister for clarification of the relationship between sections 8, 9, 16 and 23 which clearly provide for a power of detention, or so it seems, in advance of these applications being made to the courts. It is a retrospective power of detention of an acquitted person. The Minister may prefer to leave this issue aside until we deal with section 16. I have given notice that I oppose that section. I am happy if that is how the Minister wants to deal with the matter. Given that it was he who raised the issue of a person being at liberty during the section 8 application process, I thought I should raise it here.
Senator Paul Bradford: I listened with interest to the Minister’s comprehensive reply and noted that he dwelt on the phrase “the constitutional framework” which underpins our body of law. Reference was made to Article 15.5 of the Constitution which reads, “The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission”. Our request that this legislation apply retrospectively would not breach Article 15.5 because we are not asking for something to be declared an infringement that was not previously an infringement.
The Minister also referred to Article 38.1 which reads, “No person shall be tried on any criminal charge save in due course of law”. While I am not a constitutional expert, I suggest a move to have this law applied retrospectively would not breach Article 38.1. Will the Minister outline clearly the section or statement in the Constitution that prohibits him from making this legislation retrospective? I respect what he said about the advice presented to him by the Attorney General. However, will he confirm whether there is a constitutional bar in making this legislation retrospective? If retrospection is constitutionally barred, what section of the Constitution deems it repugnant? Is the Minister just working on the basis of advice given by the Attorney General which is a compilation of his views and legal traditions, etc? My contention is there is no constitutional provision which would disallow or debar us from making section 8 retrospective. We can, obviously, have different political views as to whether there should be retrospection. However, in order to determine the issue, will the Minister tell us whether it is constitutionally repugnant? If it is, there is obviously a section in the Constitution which deems it so. Will the Minister advise me on whether there is such a section?
Deputy Dermot Ahern: I do not have a copy of the Constitution to hand but a separation of powers between the courts, the Executive and the Oireachtas is clearly indicated in the Constitution. By making criminal laws retrospective, in effect this is an interference in the power of the courts to hand down judgments. This is an infringement of the Constitution and also a possible infringement of a person’s constitutional right under Article 38.1: “No person shall be tried on any criminal charge save in due course of law”. This means the law at the time when he or she was charged. This is a double-whammy, so to speak.
The Senator may argue that we are changing decisions by means of this legislation but this is not the case. We are giving the courts the opportunity to revisit in exceptional circumstances but it is entirely a matter for the courts and is not any action or omission on the part of the Oireachtas that is changing a judgment previously handed down. This is something the Oireachtas cannot do because of the separation of powers under the Constitution. This Bill proposes giving the ability to the courts to revisit their own decisions. The Senator is proposing that the Oireachtas allow a situation where previous decisions can be overturned and this is not possible.
Senator Paul Bradford: It might be helpful if the Attorney General’s advice were made available to us and the Minister may be in a position to present us with same in the near future. I am a million miles from being in any way expert in this matter but the kernel of my argument is that we are not attempting to create new law in the sense of new offences. We are not suggesting that some event or some intervention which previously was not an offence should now become an offence. In my view we are not interfering with Article 15.5. We are speaking about cases where an offence which is now against the law was previously also against the law. I do not fully comprehend the Minister’s argument as to how we are breaching our constitutional framework. The Minister speaks of the separation of powers. It would be up to the courts to use this section. The Oireachtas is not issuing an instruction to use this section. However, from a layman’s perspective, by means of this Bill the Oireachtas is willing to give powers in an extremely limited number of cases for the courts to consider whether on the basis of new evidence, for example, a case should be retried. Our argument is whether this is possible retrospectively. I appreciate the Minister’s comments about those people who believe that justice may not have been done but while this application will only apply prospectively rather than retrospectively, we are now very clearly defining two categories of victims and this is very regrettable.
I would be interested in hearing the Attorney General’s opinion. I ask the Minister to reflect on this request during the latter stages and when the Bill goes to the other House. It is not up to other jurisdictions or parliaments to set the body of law for this country but at least we have seen indications from afar that it is possible to consider retrospective application. The Minister’s mind appears to be closed on the matter but I hope he would be willing to examine the situation again and try to bring some degree of redress to people who believe they are becoming very second class citizens and second class victims as a result of the way this new proposed law is to be written.
Senator Eugene Regan: Having clarity on this issue would obviate the need for protracted discussion on Report Stage. However, I fail to understand the Minister’s argument. We are aware of the constitutional principle of the separation of powers and it is respected in this House or is endeavoured to respect it. The suggestion is that to abolish retrospectively the double jeopardy principle is to interfere with judgments of the courts. The fact is that interference and the abolition of the double jeopardy principle does just that in any event because it gives power to the Director of Public Prosecutions to bring a new trial to a new case against the person who has been acquitted where there is compelling evidence. Every appeal of the Director of Public Prosecutions invites the courts to change their views on a judgment. The Minister suggests it is an invitation to the courts to revisit their own judgments but that is in fact what would apply whether it is prospective or retrospective. The broad principle and notion of the separation of powers gets us nowhere with regard to this matter and is not pertinent as to whether the abolition of double jeopardy is prospective or retrospective.
Deputy Dermot Ahern: I suggest to the Senators that they perhaps take their own distinct legal advice although I accept that Senator Regan has a legal training. There is clear case law to support the issue. The Senators are asking for the Oireachtas by legislation to possibly overturn previous decisions made before the passing of this Act. I can put it no better than Mr. Justice Lynch in his 1994 judgment in Howard and Others v. Commissioners for Public Works and Others when he stated:
I refer to significant other case law, Buckley v. Attorney General in 1950, and the judgment of Mr Justice Keane that: “While there would clearly be no constitutional objection to the Oireachtas altering the general law, setting aside a specific adjudication by a competent court was another matter entirely.” All the advice I have received is to the effect that because of the clear fundamental confirmation in the Constitution of the separation of powers, to make any criminal law retrospective would be contravening that principle of separation of powers within the Constitution.
Senator Eugene Regan: I did not table an amendment on this point because I wanted to hear the Minister’s views on the matter. It is not an easy question but the debate has been useful and I reserve my position about tabling an amendment on Report Stage to deal with the issue because I am not quite content with the argument advanced by the Minister.
Senator Paul Bradford: Will the Minister present us with his advice?
Deputy Dermot Ahern: I cannot. Members have never been given a copy of the Attorney General’s advice.
Senator Paul Bradford: Will the Minister present us with an analysis of his difficulty with this section, including correspondence with Members? I expect a number of my colleagues have written to him about this section.
Deputy Dermot Ahern: I can add no more to what I said. I will consider the matter before Report Stage.
Senator Ivana Bacik: Will the Minister deal with the issue raised in section 16?
An Cathaoirleach: Yes, when we reach the relevant section.
Question put and agreed to.
Sections 9 to 13, inclusive, agreed to.
Senator Ivana Bacik: I move amendment No. 37:
The amendment proposes to delete the condition for appealing from the Court of Criminal Appeal to the Supreme Court because the appeal conditions are discriminatory against the acquitted person, providing no right of appeal unless the court, the Attorney General or the Director of Public Prosecutions certifies that there are points of law of exceptional public importance. It may be like existing general law in respect of appeals from the Court of Criminal Appeal but it is discriminatory against the acquitted person. There is no reason he or she should not have the right to appeal if the Attorney General or the Director of Public Prosecutions may do so. It is unnecessary to insert this additional proviso.
Deputy Dermot Ahern: The Senator is seeking to remove the criterion for an appeal to the Supreme Court by either party for an application for a retrial order. The criterion is long established, namely, that the court, the Attorney General or the Director of Public Prosecutions must certify that the determination involves a point of law of exceptional public importance and that it is in the public interest that an appeal should be taken to the Supreme Court. This is the criterion laid down in the Courts of Justice Act 1924 governing an appeal from the Court of Criminal Appeal to the Supreme Court. Similar filter mechanisms to that proposed in the section are to be found in other statutory codes in this and other jurisdictions, including section 29 of the 1924 Act. I am satisfied the criterion is appropriate in this case. The Attorney General has advised that there is no constitutional obligation to have a full appeal available regarding a determination on an application for a retrial order. If the case proceeds to a retrial and a conviction is handed down, there will be facilities for appealing the later conviction.
I acknowledge the section, similar to section 29 of the 1924 Act, provides for an inequality of position in that the Director of Public Prosecutions is a party who can certify the appeal, while the defendant must obtain a certificate from someone else but that inequality arises from the different roles of the Director of Public Prosecutions and it is not unconstitutional discrimination or an inequality of arms. In addition to the Director of Public Prosecutions, the Attorney General may certify the appeal. It is presumed that these officers, one of whom is a constitutional officer, will exercise that discretion appropriately. The Court of Criminal Appeal may also certify the appeal. The court is not a party and has no interest of its own to promote or protect. It is exercising a judicial function, with all the attendant constraints and duties. The evidence of practice establishes that the court has frequently granted certificates, even where it has held against the accused in regard to issues the subject of the appeal. I am satisfied, therefore, with the scope of the appeal avenue in this section and do not propose to accept the amendment.
Senator Ivana Bacik: I acknowledge the existing provisions are discriminatory but this is a new provision relating to appeals specifically against a decision by the Court of Criminal Appeal under section 10, that is, where the court grants a retrial order quashing a person’s acquittal under section 8 or section 9. We are, therefore, dealing with a new area of law because until now there was no provision for the court to quash an acquittal on this basis. A section 10 decision is definitively against the acquitted person because it is an order for a retrial. It is highly unlikely, therefore, that the Director of Public Prosecutions would seek to appeal it, yet this section provides that the appeal can be taken by either the acquitted person or the Director of Public Prosecutions but it may only take place where the Director of Public Prosecutions, the party in respect of whom the decision is of necessity made under section 10 in his or her favour, is one of the parties, yet he or she has the power to certify that an appeal shall lie to the Supreme Court when it is clear from the earlier sections that the appeal will only be taken by the acquitted person.
The Minister has said the Attorney General or the court may also certify and, in practice, in the relatively rare cases where it has arisen, the Supreme Court grants a certificate. This may even become similar to the current farcical procedure, whereby the Court of Criminal Appeal must consider the question of whether there is leave to appeal before considering the appeal where there is an appeal against conviction or sentence. The expert group pointed to the pointless nature of that process and stated it should be reviewed. Other groups have also recommended a similar review. If the Minister inserts another mechanism that will become something similar, why is he bothering with that formula? Why not state a person may appeal to the Supreme Court?
One of the Minister’s justifications in opposing my amendment to section 7 was that if he substituted the Supreme Court for the Court of Criminal Appeal, there would be no appeal beyond that where the Supreme Court granted a retrial order under section 10. That is a valid point but if I accept it, clearly an appeal should lie to the Supreme Court by the acquitted person where a section 10 order for a retrial has been made. It is not necessary to insert the certification procedure in this section, particularly when it is so lopsided, given that an appeal is also capable of being made by the Director of Public Prosecutions, yet the Director of Public Prosecutions may certify that the appeal be taken.
I propose the insertion of the words “shall lie”. Perhaps a neutral test could be inserted in the interests of justice or on a point of law. I could not have a difficulty with that but deleting the reference to the Attorney General or the Director of Public Prosecutions and having only the court certify the appeal might be a useful amendment. The Minister has acknowledged the inequality in the current provisions for the appeals mechanism in section 29 of the 1924 Act but we are dealing with a different mechanism. This is not about a clear-cut criminal appeal against conviction or sentence where the Court of Criminal Appeal has upheld a conviction and a point of law arises. The section deals with an acquitted person, against whom a retrial order has been made but where the retrial has not taken place. They are still acquitted, they are still innocent and this is a new procedure where the Court of Criminal Appeal gives the retrial order under section 10. There should therefore be an appeal from that. Perhaps this should be on a point of law or perhaps it should be a point of law of exceptional public importance but the Attorney General or the Director of Public Prosecutions should not have power to certify this. It seems an unnecessary filtering or blocking mechanism in respect of someone who was acquitted. Just because there is inequality in the law does not mean we should reproduce it here. This is especially true when we speak of acquitted persons. I intend to press this amendment on Report Stage if not now.
Senator Eugene Regan: I think Senator Bacik is correct. The phraseology is contradictory. The Minister referred to the separation of powers yet in the same sentence we have the courts, the Attorney General and the Director of Public Prosecutions certifying matters. The solution is that if we want to limit appeals to matters of exceptional public importance or if it is desirable in the public interest that such an appeal should be taken, the court should decide on the basis of the submissions of the parties before the court. A wording along these lines would be more appropriate than the either or situation in respect of the acquitted person.
Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.
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