Brian Lenihan Jnr (Dublin West, Fianna Fail)

I do not think the construction the Senator has put on this is correct. The Minister mentioned on Committee Stage references in subsections (3), (5), (8) and (10) of this section to offences other than the offence charged. I presume this is what Senator Cummins is referring to.

The Minister explained that this is to take account of cases where a person charged with one offence may be convicted of a different offence. If, for example, a person is charged with murder and found not guilty by reason of insanity and the Court of Criminal Appeal considers that the applicant was in fact suffering from a mental disorder and that the act in question would have amounted to a lesser offence of manslaughter, the court should still dismiss the appeal. The Minister also mentioned that if an amendment is proposed to subsection (3) which deals with appeals to the Circuit Court, then logically it should also apply in other cases to the Court of Criminal Appeal as provided in the other subsections. The Minister pointed to the text in brackets, "by virtue of the charge", in subsection (3). This is the crucial point because the reference in subsection (3) to the phrase, "by virtue of the charge", means that this option only arises where there is a choice open on the charge, not to additional or other charges.