Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I move amendment No. 14:

In page 33, between lines 17 and 18, to insert the following:“Amendment of section 34 of Criminal Procedure Act 1967

46. Section 34 of the Criminal Procedure Act 1967 is amended --

(a) in subsection (1), by the substitution of “may, without prejudice to the verdict or decision in favour of the accused person, refer a question of law arising during the trial to the Court of Appeal for determination or, in the case of a person who is tried on indictment in the Central Criminal Court, make application to the Supreme Court under Article 34.5.4° of the Constitution to refer a question of law arising during the trial to it for determination” for “may, without prejudice to the verdict or decision in favour of the accused person, refer a question of law arising during the trial to the Supreme Court for determination”,

(b) in subsection (2), by the substitution of “the Court of Appeal or the Supreme Court, as the case may be,” for “the Supreme Court”,

(c) in subsection (3), by the substitution of “the Court of Appeal or the Supreme Court, as the case may be,” for “the Supreme Court”,

(d) in subsection (4), by the substitution of “The Court of Appeal or the Supreme Court, as the case may be,” for “The Supreme Court”,

(e) in subsection (5), by the substitution of --

(i) “The Court of Appeal or the Supreme Court, as the case may be,” for “The Supreme Court”, and

(ii) “referred to in this section” for “under this section”,

(f) by the substitution of the following subsection for subsection (6) --

“(6) If the acquitted person wishes to be represented in proceedings referred to in this section before the Court of Appeal or the Supreme Court, as the case may be, and a legal aid (appeal) certificate, or as the case may be, a legal aid (Supreme Court) certificate, is granted under subsection (7) or is deemed to have been granted under subsection (8), he or she shall be entitled to free legal aid in the preparation and presentation of any argument that he or she wishes to make to the Court of Appeal or the Supreme Court, as the case may be, and to have a solicitor and counsel assigned to him or her for that purpose in the manner prescribed by regulations under section 10 of the Criminal Justice (Legal Aid) Act 1962.”,

(g) by the substitution of the following subsection for subsection (7):

“(7) The acquitted person may, in relation to proceedings referred to in this section, apply for a legal aid (appeal) certificate to the Court of Appeal or a legal aid (Supreme Court) certificate to the Supreme Court, as the case may be, either --

(a) by letter to the registrar of the Court of Appeal or, as the case may be, the registrar of the Supreme Court, setting out the facts of the case and the grounds of the application, or

(b) to the Court of Appeal, or the Supreme Court, itself, as the case may be,

and the Court concerned shall grant the certificate if (but only if) it appears to the Court that the means of the person are insufficient to enable him or her to obtain legal aid.”,

(h) in subsection (8), by the substitution of --

(i) “a legal aid (appeal) certificate or a legal aid (Supreme Court) certificate, as the case may be,” for “a legal aid (Supreme Court) certificate”, and

(ii) “referred to in” for “under this”,

and

(i) in subsection (9), by the insertion of “, ‘legal aid (appeal) certificate’ ” after “ ‘legal aid (Supreme Court) certificate’ ”.”.

This amendment is primarily directed towards modifying section 34 of the Criminal Procedure Act 1967 to take account of the establishment of the court of appeal and I would stress that it does not change the substance of the section in any way. Section 34 of the 1967 Act allows the Attorney General or the DPP, as the case may be, to refer a question of law which has arisen during a trial to the Supreme Court for determination in circumstances where the person tried on indictment has been acquitted. This referral is without prejudice to the verdict in favour of the accused person.

The key modification is introduced in subsection (1) of the 1967 Act. The amendment provides that the referral on a question of law will now be to the court of appeal rather than to the Supreme Court. It also makes provision, in the case of a person tried on indictment in the Central Criminal Court, for an application to be made to the Supreme Court under Article 34.5.4° of the Constitution seeking the leave of that court to refer the question to it. It will be recalled that Article 34.5.4° of the Constitution envisages that in exceptional circumstances the Supreme Court shall have appellate jurisdiction from a decision of the High Court. The remaining amendments are consequential upon the amendment to subsection (1) and, unless the Deputies wish for some additional information in relation to them I do not propose to dwell upon them further.

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