Jim O'Keeffe (Cork South West, Fine Gael)

I move amendment No. 12:

In page 6, before section 5, but in Part 1, to insert the following new section:

"PART 2

QUASHING OF AN ACQUITTAL

5.—(1) The Director may apply to the Central Criminal Court for an order—

(a) quashing a person's acquittal for a stated offence, and

(b) ordering that he or she shall be retried in respect of that offence.

(2) On an application under subsection (1), the court shall—

(a) if satisfied that the requirements of sections 6* and 7** are met, make the order applied for, or

(b) otherwise, dismiss the application.

This proposal arises out of one of the recommendations of the criminal law review group which reported this week. One of the recommendations of this group was to do with the re-opening of acquittals following new evidence. I know from my days as a law student and as a practitioner of the old principle of double jeopardy, whereby once an acquittal was granted, the person was free. I have noticed that changes have been made in recent years in the UK and other jurisdictions. The change arises where new and fresh evidence becomes available which was not available at the time of the trial and which points to the guilt of the person who was accused of a serious offence and who was acquitted at the time.

The recommendations of the Hogan committee arise in the context in which the power which I am proposing in my amendment of quashing an acquittal would be used very rarely and only used following the new evidence becoming available or an allegation of trial tampering. It would not be used often but it would be an important part of the criminal justice system to have this power to deal with somebody who was guilty of a serious offence and who effectively got away with it. I am proposing that the jury acquittal can in certain limited circumstances in the case of serious offences such as murder and rape and other heinous crimes, be re-opened.

In tabling this amendment I am reinforced by the recommendation of the Hogan committee. It is a ludicrous situation that a Criminal Justice Bill is being proceeded with without taking into account the recommendations of such a high-powered committee chaired by such an eminent lawyer, Dr. Gerard Hogan. I certainly take note of the committee's recommendation.

It was not a question of sitting up all night when it came to drafting these amendments but rather of looking at the British precedent and its outcome. It is already in operation in the UK under the Criminal Justice Act and the sections in the Bill before the House largely follow the format of the British Act. The thinking is to give the power to the DPP to apply to the Central Criminal Court for an order quashing the acquittal and leaving open the possibility of a new trial with new and compelling evidence. I have in mind here advances in modern technology such as those relating to the collection of DNA evidence. If DNA evidence was not available at a trial but if it subsequently became available and pointed to the guilt of the person who was accused and then acquitted, surely there must be an argument in favour of, at the very least, reopening the case. I accept this would be subject to all the relevant safeguards recommended in the Criminal Law Review Group's report, namely, an exacting threshold, advance judicial approval for an application and a setting aside of an acquittal before a retrial could commence. The mechanism I am suggesting would only be used on rare occasions. Having it in the armoury would, however, strengthen the criminal justice system.

According to the Criminal Law Review Group's report, there has already been one conviction in the UK, namely, in the case of Regina v. Dunlop last year. In the case in question, a murderer who had been acquitted following two trials subsequently made admissions in which he clearly accepted responsibility for the death of the unfortunate woman who had been killed. The latter led to the use of the type of mechanism I have outlined in the UK and the man's acquittal was set aside and he was retried on the new evidence and convicted of murder.

The Criminal Law Review Group's report also gives us the benefit of its members' views on the European Convention on Human Rights. Anything we do must remain within the terms of both the Constitution and the convention. This issue has been analysed by the Criminal Law Review Group and its recommendation arises on the basis that any such proposal here is both constitutional and in accordance with the European Convention on Human Rights.

One of the reasons I wanted a decent examination of our criminal justice system and the allocation of a reasonable amount of time in which to debate these issues is to ensure that proposals of this nature are properly assessed, analysed and, if appropriate, included in the legislation. I rest my case in respect of the amendments and I await the views of other Members.

See this speech in context