Denis O'Donovan (Fianna Fail)

I thank the Senator. My understanding of the judge's remarks, when put in layperson's terms, is that he was deeply concerned that a balance on this rule was not being achieved. In other words, he expressed a strong view in this case and regardless of whether one can call it obiter dictum, any view of an eminent judge in this regard must be taken on board.

I also was interested to note the Director of Public Prosecutions and Attorney General are putting their heads together and may be considering possible other test cases that could be taken before the courts. While I do not believe the Kenny judgment will be completely reversed, it certainly can be ameliorated — "watered down" would be the wrong term — and the legislation subsequently could be applied. I believe that Members are treading on difficult ground in that the Oireachtas is being asked by simple legislation to overturn and reverse the Kenny decision which has evolved and has been supported.

Nevertheless, the thrust of what Senator Regan is doing under this Bill appears to be going in the right direction. Undoubtedly, in many serious cases, including some involving murder or drugs trafficking, for whatever constitutional or other reason, when evidence sometimes is stumbled upon, such cases are being thrown out by way of a technicality. I have been a practising solicitor for many years and when I started out in the late 1970s and early 1980s, if a defendant was up for an offence such as drunk driving, which now is a serious offence, or for having bald tyres and the incorrect townland name was put on the summons, the case would be thrown out. However, matters have changed arising from jurisprudence, thinking by lawyers and changes in laws, including the famous case of Duggan v. Evans. Thereafter, if the townland in which the defendant lived was spelled incorrectly or his or her car registration was spelled as HIN 242 instead of HIN 224, this was deemed to be technical. In other words, the Duggan v. Evans case had huge positive repercussions in the operation of the District Courts because simple frivolous mistakes could be amended. A superintendent or the prosecution in the form of the State solicitor could ask the court to make such an amendment. Apparently this cannot be done in this case.

Given my position in the House as Government spokesman, I will oppose and vote against the Second Reading of the Bill. Nevertheless, I record my admiration for what Senator Regan has done. This issue cannot be ignored and Members do so at their peril. This matter must be seriously considered, whether through constitutional means, better jurisprudence or better laws.