Brendan Howlin (Wexford, Labour)

While I share the high regard for Dr. Hogan and his work, I must state the two amendments tabled in my name are identical to those I tabled in respect of the 2004 legislation. Dr. Hogan was certainly minded to consider the points raised in amendments Nos. 121 and 122. He was probably influenced in this regard by Mr. Humphreys who helped me draft the original proposals that are replicated in the amendments.

Amendment No. 121 is an exact copy of an amendment I tabled in respect of the Criminal Justice Act 2006 and it deals with miscarriages of justice resulting in acquittal. There are cases where new evidence arises in respect of miscarriages of justice regarding convictions and where such convictions can be overturned. There is, however, no provision in law where when compelling evidence of the most heinous and serious crimes comes to light, it is possible to launch a retrial. The phrase "In the case of an accused person tried on indictment for an offence carrying a maximum or mandatory sentence of life imprisonment" is used in amendment No. 121 and, therefore, I am suggesting the provision would apply to a limited category of cases and that the normal double jeopardy rule would not apply because that would be grossly unfair and wrong. The potential of being retried cannot be left to hang over everybody for ever.

Amendment No. 121 suggests that in the most serious offences in respect of which life imprisonment should be the penalty, where there is an acquittal and where, at any time following such an acquittal, the DPP comes into possession of significant new evidence which demonstrates that a miscarriage of justice has occurred, he or she may apply to the Court of Criminal Appeal for an order setting aside the acquittal and directing a retrial. I argued this point last year and referred to the UK proposals put forward at that time — these were not then enacted — particularly as they relate to technical advances. I suppose many of us are fans of the television programme "Crime Scene Investigations". While the advances to which I refer may not be as fanciful as some of those put forward in that programme, there have been clear technological advances in respect of DNA evidence and other matters through which very strong evidence of guilt can be adduced. In circumstances where a court did not have the benefit of evidence such as that to which I refer, it may have acquitted an individual who was guilty of awful crimes such as the murder or rape of children or the murder of another adult. That individual would be set free because the State and its prosecution services were powerless to act upon compelling evidence of his or her guilt. As already stated, the position regarding the overturning of wrongful convictions in high-profile cases is clear. There must be the potential — I accept the grounds in this regard would have to be narrowly focused — to revisit cases in respect of which new and compelling evidence relating to serious crimes comes to light.

The Minister may recall that when we debated this matter last year, he indicated an extremely positive view towards my suggestion in this regard. It is ironic that the main concern then was that there would not be sufficient time to tease the matter out properly. It was agreed that we would revisit it on a future occasion when another criminal justice measure came before the House. Such a measure has come before the House but my suggested provision is not contained in it. It would have been included in the legislation if we had been given the normal amount of time necessary to debate the legislation. If there had been sufficient time to review Dr. Hogan's report, the relevant recommendation would have migrated from that report into the legislative proposal before us.

It is not too late to make provision in this regard. The form of words in the amendment is good and robust and suggests a limited change to the current position, under which there is an absolute prohibition on double jeopardy, to allow us the potential to revisit the most serious of cases in respect of which new and compelling evidence arises. I do not know whether the Minister recalls that one of things that recommended this change to me was that in a case where somebody had committed a terrible offence and where the evidence was not sufficiently compelling to convince either a jury or court of his or her guilt, there would always be a nagging belief that one day proof would become available. There is some semblance of satisfaction in knowing that somebody who committed an awful crime that could carry life imprisonment would never be completely free of the shadow of that crime and that at some future date a charge could be proved against him or her.

Amendment No. 122 is an exact replica of another amendment I tabled last year. It arises out of clear examples that arose in respect of interference with juries. In a case where someone is acquitted and where it subsequently becomes clear that the jury was tampered with or intimidated, said acquittal is unsafe and there should be some mechanism to overturn it. Amendment No. 122 states:

42.—(1) In the case of an accused person tried on indictment for an offence, who has been acquitted, where at any time following such acquittal the Director of Public Prosecutions comes into possession of evidence which demonstrates that interference with the jury has occurred, he or she may apply to the Court of Criminal Appeal for an order setting aside the acquittal and directing a retrial.

(2) A retrial under this section shall be conducted by a special criminal court unless the Director of Public Prosecutions certifies that the ordinary courts are satisfactory for such retrial.

There are three elements in this amendment. First, where somebody has been acquitted of a serious crime and it becomes abundantly clear to the DPP that the jury has been got at, there is a mechanism to revisit that. Second, that evidence would have to be put before the Court of Criminal Appeal and that court would have to be satisfied as to it, which involves a significant burden of proof. Third, if there was any fear that one could not get a jury that would not be subject to such intimidation, and some crime gangs' reach is such that might be the case, a special criminal court would be available for the hearing of such cases unless the Court of Criminal Appeal determined otherwise. That is a good, strong, important mechanism and, as I did last year, I recommend it to the Minister for inclusion in this Bill.

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