Ciarán Cuffe (Dún Laoghaire, Green Party)

The Criminal Procedure Bill 2009 does two things. It expands the categories and offences in which a victim impact statement can be made and changes the rules pertaining double jeopardy, namely, the rule that a person may not be tried for the same offence twice. As a result of the proposed change, a person may be tried again when new and compelling evidence emerges or where an acquittal has been achieved through an offence against the administration of justice. An offence against the administration of justice could be corruption, witness intimidation or jury tampering.

I welcome the provision to expand the circumstances in which a victim can make a statement and the categories of persons who can make such a statement. It is important that the legislation provides that families of victims will have a statutory right to give a victim impact statement. Essentially, we have looked across the water at changes in England and Wales and, more important, decided to implement change here along the lines recommended by the balance in the criminal law review group. This is a positive development.

The legislation also introduces sensible safeguards for children and guardians to give evidence by video link. In addition, it provides that an inference cannot be drawn where a victim does not wish to give a victim impact statement.

I raise a minor but significant point regarding the definition of a family member for the purpose of a victim impact statement. It is proposed that the family member definition include "spouse" and that family member means a spouse or partner of the person, a child, grandchild, parent, grandparent, brother, sister, uncle, aunt, nephew or niece of the person, a person who is acting in loco parentis to the person, a dependant of the person or any other person whom the court considers to have had a close connection with the person. The definition does not include the status of civil partner as a defined family member. While the court has discretion to allow a victim impact statement from a person who has a close connection, given that the Civil Partnership Bill is moving through the House, will the Minister consider tabling an amendment to specifically define a civil partner as having a statutory right to make a victim impact statement? I will be in the hands of the Minister or Parliamentary Counsel on this issue. Given that Committee Stage of the Civil Partnership Bill is expected to be taken later this month, we should, however, make provision in anticipation of the Bill's enactment later in the year for a victim impact statement to be made by a civil partner.

The double jeopardy rule is a long held common law feature that seeks to provide certainty in law that those acquitted of a crime do not fear further prosecution. It also draws a line under the relevant offence. When altering this rule it is important, therefore, that certain safeguards inherent in the Constitution, European Convention on Human Rights and international human rights instruments are protected. I note, for example, that under Article 14.7 of the International Covenant on Civil and Political Rights relating to the right to a fair trial, retrials for the same criminal offence should not take place. The article states: "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." This requirement must be balanced with the capacity of the Director of Public Prosecutions, in a case where new and compelling evidence has come to light following a criminal acquittal, to retry a case in the interests of the common good.

Striking a balance between the rights of the individual and the common good is an increasing tension in our criminal corpus. Under the legislation, the retrial procedure may be enacted where new and compelling evidence emerges. The term "new and compelling evidence" is defined in section 7 as evidence which was not adduced in the proceedings in respect of which the person was acquitted and which could not, with the exercise of due diligence, have been adduced during those proceedings. It is evidence which is reliable, substantial and implicates the person concerned with a high degree of probability in the commission of the relevant offence. The Director of Public Prosecutions is enabled to apply for the Court of Criminal Appeal to determine when these criteria are met.

The question is whether the four part test which must be satisfied is sufficiently robust to safeguard against the rights of an individual being trampled and balanced against the need for a retrial to serve justice. Within this test there is sufficient scope to determine the answer to this question. I note that experience in other jurisdictions suggests this procedure is rarely used. We need only look across to England and Wales to see that the use of the procedure is the exception rather the rule. I hope the infrequency of its use elsewhere coupled with the four part test will ensure it is also used here infrequently.

At this point, I am satisfied that care will be taken in determining whether to apply the measure provided for in the Bill. I am pleased the definition of a "victim" for the purposes of a victim impact statement has been expanded and hope the Minister will consider widening the definition of "family member" to include a civil partner. Given that legislation on civil partnerships is on track to be passed by the House in the coming months, any failure to take into account the significant changes the Bill will introduce would create a lacuna.

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