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

I move amendment No. 19:

In page 42, between lines 18 and 19, to insert the following:“Amendment of Criminal Procedure Act 2010

66. The Criminal Procedure Act 2010 is amended --

(a) in section 2(1), by the insertion of the following definition:

“ ‘legal aid (appeal) certificate’ has the meaning it has in the Act of 1962;”.

(b) in section 23 --

(i) by the substitution, in subsection (1), for “may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court” of “may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to --

(I) the Court of Appeal, or

(II) in the case of a person who is tried on indictment in the Central Criminal Court, the Court of Appeal or the Supreme Court under Article 34.5.4° of the Constitution”,

(ii) by the substitution of the following subsection for subsection (2):

“(2) Where a person’s conviction of an offence on indictment is quashed on appeal by the Court of Appeal and the Court makes no order for the retrial of the person in respect of the offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General, as may be appropriate, may, subject to subsection (3) and section 24, appeal the decision of the Court of Appeal not to order a re-trial of the offence concerned on a question of law to the Supreme Court under Article 34.5.3° of the Constitution.”,

(iii) in subsection (3) --

(I) by the substitution of “An appeal referred to in this section” for “An appeal under this section”,

(II) by the substitution of the following paragraph for paragraph (a):

“(a) a ruling was made by a court --

(i) during the course of a trial referred to in subsection (1), or

(ii) during the hearing of an appeal referred to in subsection (2), which erroneously excluded compelling evidence, or”,

(iv) by the substitution of the following subsection for subsection (4):

“(4) An appeal referred to in this section shall be made on notice to the person who is the subject of the appeal within 28 days or such longer period not exceeding 56 days as --

(a) in the case of an appeal referred to in subsection (1), the Court of Appeal or the Supreme Court, as the case may be, or

(b) in the case of an appeal referred to in subsection (2), the Supreme Court, may, on application to it in that behalf, determine, from the day on which the person was acquitted or the conviction was quashed, as the case may be.”,

(v) in subsection (5), by the substitution of “the Supreme Court or the Court of Appeal, as the case may be,” for “the Supreme Court”,

(vi) in subsection (6), by the substitution of “For the purposes of considering an appeal referred to in this section the Supreme Court or the Court of Appeal, as the case may be,” for “For the purposes of considering an appeal under this section the Supreme Court”,

(vii) in subsection (7), by the substitution of “The Supreme Court or the Court of Appeal, as the case may be, shall assign counsel to argue in support of the acquittal referred to in subsection (1) or the decision not to order a re-trial referred to in subsection (2), as the case may be, if” for “The Supreme Court shall assign counsel to argue in support of the acquittal referred to in subsection (1) or the decision of the Court of Criminal Appeal not to order a re-trial referred to in subsection (2), as the case may be, if”,

(viii) by the substitution of the following subsection for subsection (8):

“(8) Where an appeal referred to in this section has been made to the Court of Appeal or the Supreme Court and a legal aid (appeal) certificate or, as the case may be, a legal aid (Supreme Court) certificate, is granted under subsection (9), or deemed to have been granted under subsection (10), in respect of the person who is the subject of the appeal, he or she shall be entitled to free legal aid in the preparation and conduct 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 Act of 1962.”,

(ix) by the substitution of the following subsection for subsection (9):

“(9) The person may, in relation to an appeal 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.”,

(x) in subsection (10) --

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

(II) by the substitution of “in relation to an appeal referred to in this section” for “in relation to the proceedings under this section”,

(xi) in subsection (11) --

(I) by the substitution of “On hearing an appeal referred to in subsection (1) the Court of Appeal may” for “On hearing an appeal under this section the Supreme Court may”,

(II) in paragraph (a) --

(A) by the deletion of “or reverse the decision of the Court of Criminal Appeal, as the case may be,”, and

(B) in subparagraph (i) by the substitution of “subsection (3)(a)(i) or (b)” for “subsection (3)(a) or (3)(b)”, and

(III) in paragraph (b), by the deletion of “or the decision of the Court of Criminal Appeal, as the case may be”,

(xii) by the insertion of the following subsection after subsection (11):

“(11A) On hearing an appeal referred to in this section, the Supreme Court may --

(a) quash the acquittal or reverse the decision of the Court of Appeal, as the case may be, and order the person to be re-tried for the offence concerned if it is satisfied --

(i) that the requirements of subsection (3)(a) or (b), as the case may be, are met, and

(ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to do so,

or

(b) if it is not so satisfied, affirm the acquittal or the decision of the Court of Appeal, as the case may be.”,

(xiii) in subsection (12), by the substitution of “In determining whether to make an order under paragraph (a) of subsection (11) or (11A), the Court of Appeal or the Supreme Court, as the case may be,” for “In determining whether to make an order under subsection (11)(a), the Supreme Court”, and

(xiv) in subsection (13) --

(I) by the substitution, in paragraph (a), of “The Court of Appeal or the Supreme Court, as the case may be,” for “The Supreme Court”, and

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

(c) in section 25 --

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

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

and

(d) in section 26 --

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

(ii) by the substitution, in subsection (3), of “A legal aid (appeal) certificate or a legal aid (Supreme Court) certificate” for “A legal aid (Supreme Court) certificate”.”.

On the face of it this is a lengthy and complex amendment. However, on closer scrutiny it will be seen that it involves extensive adaptation of just one key section in the Criminal Procedure Act 2010 to take account of the establishment of the court of appeal. I emphasise that no substantive change is being made to the section and any such change would clearly be outside the scope of this Bill. It may help if I outline briefly the background to section 23. When introduced it provided, for the first time, for a with prejudice appeal against an acquittal at first instance and an appeal against a decision of the Central Criminal Court not to order a retrial. These appeals are restricted to points of law relating to the erroneous exclusion of compelling evidence or an erroneous direction to a jury to acquit.

At the time the decision was taken that an appeal against a first instance acquittal should lie to the Supreme Court rather than to the Court of Criminal Appeal, with the former being a superior court with full constitutional jurisdiction. Clearly, with the establishment of the court of appeal, it is now appropriate that an appeal against acquittal should lie to that court, and that is one of the key changes introduced by the proposed amendment to subsection (1) of section 23. Due to the leapfrogging jurisdiction set out in Article 34.5.4^oof the Constitution, a reference to the Supreme Court is also retained in that subsection.

The only other change I would like to dwell upon relates to that being made to subsection (2) of section 23. That subsection concerns the right of the DPP or of the Attorney General to appeal a decision of the Court of Criminal Appeal not to order a retrial where a person’s conviction for an offence on indictment has been quashed by that court. That right of appeal is subject to the conditions which I mentioned at the outset. Under the new constitutional dispensation, were this subsection to be repealed, the DPP would be at liberty to appeal every case where a retrial was not ordered provided the conditions for an appeal as set out in the Constitution were met. The view taken was that this did not accord well with the decision taken by the Oireachtas a few short years ago that this was a matter where some regulation was desirable. However, if the subsection was not to be repealed it clearly could not stand completely unaltered. The approach proposed is to continue to regulate the circumstances in which the DPP may appeal a decision not to order a retrial. However this is not in any way to except such appeals from the Supreme Court. Rather, the legal advice received is that it amounts to a permissible regulation under the Constitution.

In this context I draw the attention of Deputies to the Article 34 reference which is also to be included in the subsection, courtesy of the amendment. This is to reinforce the basic idea that we are regulating the circumstances in which the Director of Public Prosecutions may appeal rather than seeking to exclude cases from the Supreme Court. I do not propose to dwell on the other amendments as they flow from the approach I outlined and are technical in nature to allow for the change outlined.

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