Michael McDowell (Dublin South East, Progressive Democrats)

It might preclude me from sitting on such a case.

To arrive at such a point, the House could prepare a single clause Bill, stating it is a legislative recalibration of the Kenny issue. The President, at her discretion, can then decide to refer it to the Supreme Court, having consulted the Council of State, under Article 26. Alternatively, it could be enacted without reference to Article 26 until an individual challenged it.

The alternative method is to insert a wording into the Constitution to recalibrate the law to meet the Kenny judgment. This could come to 15 lines which makes it a less preferable method.

The best way is to draw up a single clause Bill and test its constitutionality. Alternatively, one could wait for a case to come before the courts to challenge the Kenny judgment but that has already happened unsuccessfully. The difficulty with that is that it normally falls to the DPP to make that decision. It is not competent for the Government of the day to direct a case to be fought in those circumstances. In most of these cases, the Director of Public Prosecutions decides independently the points he wishes to make.

I fully sympathise with what the Deputy is driving at which also represents my view of what would be a desirable outcome. However, to use the slightly colourful language I used on Committee Stage, for me to accept this amendment would be like carrying a ticking bomb on to an aeroplane because it would mean I was including something which was at the very least challenging in respect of an Article 26 reference. The whole Bill would collapse if the Supreme Court was to uphold its original position in the Kenny case. It would not be in the interests of the Garda Síochána, the community at large or, indeed, the justice system if an extensive Bill was to fall because we engaged in a bit of experimentation.

I agree with the spirit of what Deputy Jim O'Keeffe proposes but it would be courting disaster to include something in a Bill that is at best a 50-50 proposition, even if the Attorney General were to agree to it, which is another issue with which I do not have to deal, to test whether the Supreme Court would be willing to revisit this matter for a third time. If this House got it wrong, we would be leaving ourselves in the position that we would have no legislation as a consequence. It is a matter for the next Dáil.

There are other issues for the next Dáil, including a pet of mine, namely, matters in regard to jury trial and an issue about which I am very strong, namely, the requirement that the accused in a jury trial be required to outline as part of the whole process his or her defence so the jury knows from the beginning of the trial what the case is all about and so the evidence that is irrelevant to the points at issue between the parties is not tendered to a jury unless there is a very good reason for doing so. We should introduce the concept of a formal defence where a person would say "I accept the girl was raped but I did not do it" or "I accept the house was burgled but that is not my fingerprint" so the jury knows the issue in a case rather than have everything open and have trial by ambush. That is the next phase of reform of the criminal law.

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