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

I am not sure what way the Minister wants this. He curtailed a debate, yet claims we cannot adopt a proposal with which he agrees in principle because we will not have sufficient time for debate. This is incredible stuff. He now says we should not consider my proposal, which is synchronised with a similar proposal from Deputy Howlin, because it would cause controversy. I would find that incredible coming from any Minister but it is particularly hard to accept from him.

His reference to the general election also causes me concern. Did he disclose his real intentions for this Bill? I understood we were making an honest effort to improve the criminal justice system by introducing measures that would put us in a better position to fight the appalling levels of crime afflicting this country. Are we instead tinkering around with the Minister's election campaign? He might clarify that.

I am focussing on improving the criminal justice system on the basis of a Bill which was put before the House by the Minister but which I think can be improved. We are not discussing a new idea because this issue has been considered as long ago as 1982 by Mr. Justice Walsh in the O'Shea case, who stated: "It would be totally abhorrent if a conviction which had been obtained by improper means, such as the corruption or coercion of a jury, should be allowed to stand, it would be equally abhorrent if an acquittal obtained by the same methods should be allowed to stand." It is therefore not a new principle to say that, in certain limited circumstances, acquittals improperly obtained should be questioned.

With regard to the Constitution, the report of the Criminal Law Review Group states: "for the reasons outlined by Walsh J. in O'Shea, there is no public interest in preserving as inviolable a jury verdict which has been tainted by interference with the trial process". That would involve either tampering or a failure to produce compelling and virtually conclusive evidence. The report continues:

Instead the overwhelming public interest is in ensuring that criminal trials are conducted, in the words of Article 38.1 of the Constitution 'in due course of law.' For the reasons outlined by Walsh J., the Review Group considers that there can be no fundamental constitutional or principled objection to revisiting jury acquittals which were brought about by or influenced by interference of an unlawful kind with the trial process.

I have not yet had the opportunity to read the report of the Human Rights Commission but I do not doubt it would have no problem on this issue because the European Convention on Human Rights touches on it. Article 4 of the convention states:

1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

Jurisprudence and the Constitution are therefore on the side of proceeding with this proposal. The European Convention on Human Rights specifically permits it and the review group recommends it. Deputy Howlin and I, subject to agreeing the procedure, want it and the Minister now informs us he wants it. Why can we not have it? The Minister says it is because it could cause controversy but I am prepared to justify the introduction of such a provision anywhere. I am not attempting to play the hard man or electioneer but believe it would be an improvement to our criminal justice system. I cannot understand the approach being taken by the Minister. If he accepts it would be an improvement to the criminal justice system, as I gather from his remarks, why in the name of goodness do we not proceed with it? That is the purpose of debate and the reason why we learned the views of the review group. The Minister was given a clear indication by this side of the House that we want a provision of this kind, yet he stops at the brink and says it would cause controversy. I cannot accept that as a reason for failing to proceed with the provision outlined in amendments Nos. 12 to 15, inclusive, or failing to take into account Deputy Howlin's amendments, which are of a more limited nature. The modus operandi, however, can be settled provided there is agreement do so. That is the purpose of a debate of this kind.

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