Dermot Ahern (Louth, Fianna Fail)

I move: "That the Bill be now read a Second Time."

I am pleased to present the Criminal Procedure Bill to the House. This very important Bill is a core element of the Government's Justice for Victims initiative. It has been motivated primarily by my desire to improve the standing of victims of crime in the trial process. Its main elements are, therefore, focused on achieving this objective. They relate to victim impact evidence, the question of re-trials following certain acquittals and changes in the rules of evidence. I will deal in more detail with each of these shortly but first I wish to put on record my appreciation for the contribution made by the Balance in the Criminal Law Review Group and its chairman, Dr. Gerard Hogan, to the debate on the suitability of certain criminal law procedures in certain circumstances. The group's analysis and recommendations inform many of the Bill's provisions.

The Bill has 38 sections and a schedule of relevant offences. Part 1 deals with standard matters such as commencement and expenses. Part 2 reforms the law on victim impact evidence. It revises and expands the current law, namely, section 5 of the Criminal Justice Act 1993. The key change is the new and much wider interpretation of who is a victim. In future, the term will apply in certain circumstances to the family of the direct victim, as well as to the direct victim. A wide definition is given to 'family'; it includes the extended family as well as the range of other relationships that arise.

The victim impact procedures will continue to have two elements. As a first, but mandatory step, the court must still consider victim impact evidence at the sentencing stage in any trial in which there has been a conviction for an offence covered by section 5. The judge may be assisted at this stage by impact reports, often from a medical or other specialist and may hear evidence relating to those reports.

I remind Deputies that when compiling an impact report, the extended view on who is a victim will apply, with the result that the impact on the family can also be taken into account. However, the benefits of the expanded interpretation of a victim are most clearly seen in the operation of the second element, the making of an oral statement by the victim about the impact of the offence. This element operates at the discretion of the victim but when requested by the victim, the court must permit him or her to make that statement.

The most notable benefit arises in homicide cases. Until now, families in homicide cases have relied on the goodwill of the court when they sought permission to make a contribution at the sentencing stage. Now, they have a statutory right, if they so request, to be heard. This right is also extended to members of the family in cases where a victim is, as a result of the offence, too ill to deliver a statement.

I take account also of the particular needs of children, persons having a mental disorder or persons who are especially vulnerable, for example, victims of sexual or domestic violence. I am providing that a family member may speak on behalf of a child under 14 years or a person with a mental disorder. A child or a person with a mental disorder or any other person who obtains the permission of the court may deliver the statement via a television link.

For the public at large, the victim impact procedure is, in effect, the oral statement made by the victim. However, some victims are not, for whatever reason, inclined to make an oral statement. Therefore, I am providing that no inference is to be drawn that would suggest the absence of an oral statement indicates there was little or no impact on the victim. This will relieve the pressure on those not inclined, for whatever reason, to deliver an oral statement. The Bill provides the court with powers to prohibit the publication of any inappropriate remarks made in the course of an oral statement. Those remarks may arise out of frustration with the formalities of the trial process, as one can perhaps understand. However, it would be unacceptable if evidence not presented at the trial, for example, could become public through a victim impact statement. The new powers will limit any damage done by such remarks.

As I indicated in the other House, I intend to table an amendment on Committee Stage to expand the range of offences in respect of which the sentencing judge must take account of victim impact evidence. The changes I have outlined draw on the experience gained since 1993. They reflect a more sympathetic approach to victims while maintaining fairness in the trial process, as we are obliged to ensure under the Constitution.

Parts 3 and 4 of the Bill outline the circumstances in which acquittals may be set aside and new trials ordered. Part 3 deals with cases where new and compelling evidence arises or where the original trial was tainted. These two circumstances should be seen as important new exceptions to the rule against double jeopardy.

Part 4 represents an extension of the limited appeal powers currently available to the prosecution. Henceforth, where the acquittal arises from a ruling on a point of law by the trial judge that the DPP believes to be erroneous or where a conviction is quashed but no retrial is ordered, the prosecution may seek to clarify the law, as at present, but may also seek to have the acquittal set aside and a new trial ordered.

Returning to the proposals in Part 3, the double jeopardy rule holds that an acquittal is a final decision and an acquitted person may not be pursued again in respect of the same offence. Currently, the State cannot reopen a case following an acquittal, regardless of the circumstances in which it was arrived at. However, a convicted person has full rights of appeal against both conviction and sentence.

The House will agree that we should review these arrangements. The purpose of a review must be to enhance the rights of the other parties without diminishing a defendant's rights. There is a public interest in respecting the finality of proceedings. The public interest would not be served if every acquittal were potentially subject to being set aside; that would diminish the integrity of the criminal process and would deprive acquitted persons of their entitlement to the presumption of innocence. Nevertheless, acquittals that are the result of perjury or the concealment of evidence, for instance, cannot be said to be deserved. The Bill is, therefore, targeted at and limited to those most undeserved acquittals.

The procedures to be followed for applications for retrials under Part 3 are set out in sections 8, 9 and 10. It is a rigorous process. The DPP may apply to the Court of Criminal Appeal for a retrial where he believes the acquittal was not merited. It is for that court, or, in the event of an appeal, the Supreme Court, to decide whether a new trial should take place. The DPP may apply on one occasion only.

If the DPP's application is based on the availability of new evidence, it must be compelling. It cannot have been available at the first trial and it must be clear that even with the exercise of due diligence by the Garda and the prosecution, it could not have been presented at that trial. Critically, it must be of a standard that implicates the person with a high degree of probability in the commission of the relevant offence. However, the guilt or innocence of the accused remains a matter to be determined by the jury in the new trial. On Committee Stage, I will be proposing some helpful clarifications to the provisions on new and compelling evidence.

It will generally be necessary for the Garda to investigate new evidence before the DPP can decide whether to apply for a retrial and its report on the investigation can be expected to feature prominently in many applications. Sections 15 to 18, inclusive, set out the powers available to the Garda for investigations under this Bill. It will be noted that, since the procedure is exceptional, the Garda may exercise those powers in respect of an acquitted person only where it has prior judicial authorisation to do so.

I have used the term "relevant offence" a number of times. An application for a retrial that is based on new and compelling evidence may be brought only where the offence is a "relevant offence". For the most part, relevant offences are offences that carry a mandatory or discretionary life sentence. The Schedule contains the full list of the relevant offences. It will be noted that cases where special verdicts are recorded under the Criminal Law (Insanity) Act 2006 are exempted from the scope of this category. Limiting the Bill's scope to the most serious offences underlines the measured approach I am adopting.

A retrial can be sought in any instance where the case was tried on indictment if the acquittal is tainted. A tainted acquittal is one that results from an offence against the administration of justice, in other words, where it results from bribery, perjury, intimidation or any activity designed to pervert the course of justice. Two conditions apply before an application can be brought under this heading. There must be a conviction for an offence – perjury, for example - and there must be reasonable grounds to believe that the offence affected the outcome of the trial.

The acquitted person's rights are respected. The acquitted person is put on notice of the DPP's application for a retrial and may attend and participate in the hearing. Legal aid will be available. If an acquitted person fails to attend and the court decides that it is in the interests of justice that it proceed with the application, it may order a retrial and may also issue a warrant for the arrest of the person. Before granting an application for a retrial, the court must be satisfied not only that the DPP has complied with the requirements as set out in the Bill but, crucially, that it would be in the interest of justice to order a retrial.

The integrity of any retrial must be protected. Care must be taken to avoid publicity in advance of a trial that might influence potential jurors. The court may, therefore, order restrictions on attendance at and reporting on the hearing of the DPP's application. The restrictions can be maintained until the new trial has concluded. Any decision by the Court of Criminal Appeal on an application for a retrial may be appealed to the Supreme Court on a point of law.

"With prejudice" appeals under Part 4 are by the DPP or, in some cases, the Attorney General, to the Supreme Court against a ruling on a point of law by a trial judge that the DPP believes to be mistaken and where the ruling can be shown to have resulted in an acquittal. I propose an amendment to section 23 to ensure the basis for "with prejudice" appeals is set out very clearly.

An appeal might relate to rulings on the admissibility of evidence, for example. Until now, such appeals were available only on a "without prejudice" basis; in other words, the outcome did not alter the position of the acquitted person. "With prejudice" appeals go a step further by seeking to set aside the acquittal and to have the case retried.

The procedures for applications under Part 4 are similar to those I have outlined for cases under Part 3, including, when necessary, the same restrictions on reporting. A retrial in any of the three scenarios covered by the Bill will entail a full rehearing of the case. If convicted, the person is liable to the prescribed penalty for the offence in question. The usual rules on access to legal aid will apply.

Before I leave the subject of retrials, I want to deal with the important question of retrospective effect. The Bill provides for the possibility of a retrial that is based on new evidence or where the acquittal was tainted but only where the person was charged with the offence on or after the commencement of the new legislation and was subsequently acquitted. It is the date of acquittal rather than the date of commission of the offence that is the key consideration. In "with prejudice" appeals, the possibility of bringing an appeal will arise where the acquittal takes place on or after the commencement day. Therefore, in all three scenarios, the acquittal must occur after the commencement date.

Deputies will have noted from my remarks that the Bill does not have general retrospective effect. They will also be aware that there is a general presumption in criminal law against retrospection. Many are aware that Article 15 of the Constitution and Article 7 of the European Convention on Human Rights both make clear that an act that was not an offence when committed may not later be regarded as an offence. Despite that background, the relevance of Article 15 or the European Convention on Human Rights to the issues raised by this Bill is limited. What is very relevant is a different but equally important issue, namely, the separation of powers. Everyone in this House is aware of how fundamental a principle it is in our constitutional structure.

Let me spell out as clearly as I can how the issue arises. We start by recognising that a verdict is a decision of a court and of a court only. Under the current law, the effect of a verdict that acquits a person is that the person is free from further proceedings in respect of that offence. Any retrospective change in that position would amount to interference by the Oireachtas with the workings and independence of the courts. That, of course, would be a serious infringement of the separation of powers. It is just not permitted by the Constitution in my opinion and that of the Attorney General. There is substantial jurisprudence in this jurisdiction to support the advice I have received on this issue.

I am anxious to maximise the impact of the legislation provided, of course, that we respect the constitutional position. I am, therefore, pleased to indicate that I have been advised that the scope of the Bill can be extended to cases charged before but tried after its commencement. I propose to introduce an amendment to that effect. This is a small extension but it is an extension nonetheless. I listened with interest to some of the comments made by Senators in this regard when the Bill was before the Upper House.

I wish to deal with the changes in the rules of evidence contained in sections 34 to 36, inclusive. Section 34 is the most significant in this regard. It amends the Criminal Justice (Evidence) Act 1924 and addresses the anomaly whereby there are no consequences where the defence impugns the good character of a person who is not a witness. A witness can, of course, defend himself or herself while on the stand but the difficulty arises where the person whose character has been impugned is the victim and has, as a result of the offence, died or is so ill that he or she is unavailable as a witness for the prosecution. The amendment will ensure that a defendant who impugns a victim's character risks having his own character examined. He may, in other words, find that he has what is termed "dropped the shield". This change will prevent further abuse and anguish for, in particular, the families of victims who were either killed or seriously injured. I should point out that a defendant is not prevented from raising bona fide defences such as provocation or self-defence, even where to do so might suggest a degree of culpability on the part of the victim.

In other changes, section 35 requires prior notice from the defence of an intention to call its own expert evidence. The new requirement will enable the prosecution to better assess material that is often complex.

Section 36 establishes a new procedure designed to facilitate the earlier return of property held as evidence. Such property often belongs to victims and, until now, they have been at the loss of it until proceedings have been completed. The new measure will ease that difficulty in many cases. A number of Members will be aware of the type of cases to which I refer in this regard.

In other provisions relating to procedural matters, sections 31 and 32 remove the requirement that a convicted person must obtain a certificate from the trial court or the leave of the Court of Criminal Appeal before being allowed to appeal to that court. Section 33 amends section 29 of the Courts of Justice Act 1924 and clarifies when a defence appeal may be brought to the Supreme Court even where the Court of Criminal Appeal has already granted a retrial. Section 37 clarifies the time limits for the preparation of the book of evidence. Section 38 adds the common law offence of breach of the peace to the schedule to the Criminal Justice Act 1951, thus clarifying that it may be tried as a summary or an indictable offence, as appropriate.

I have already identified the Committee Stage amendments that arise directly from the Bill before the House. In addition, however, two small amendments arise from recent judgements, relating to the grounds on which a failure by an accused to appear on the appointed remand date may be excused and the circumstances where bench warrants may be issued.

This Bill will bring about much needed reform. It places the victims of crime on a new and stronger footing within the trial process. In addition, it opens up the possibility of retrials for those whose acquittals are undeserved and it corrects an unacceptable anomaly in the rules of evidence. The integrity of the criminal justice system will benefit from the changes I am proposing. The Bill undoubtedly breaks new ground but it does so in a way which is measured and which respects long-established and cherished legal principles.

I commend the Bill to the House.

See this speech in context