Dermot Ahern (Louth, Fianna Fail)

I am very pleased to initiate the Criminal Procedure Bill 2009 in the Upper House. I thank the Seanad for allowing us to take it here and look forward to the contributions on this important Bill. I thank my officials for bringing it forward quickly because I had given an undertaking when I launched the victims of crime initiative last year to bring it forward as soon as possible this year.

The Bill addresses two major topics, victim impact evidence and the circumstances in which acquittals may be reversed and new trials ordered. Both topics have particular relevance for the victims of crime. The opportunity to give victim impact evidence enables victims to tell about the hurt and pain caused. The reversal of undeserved acquittals will assure victims that their quest for justice can be satisfied. Few things can be more devastating for the victim than to see the offender escape justice.

Before dealing with the Bill, I acknowledge the contribution of the balance in the criminal law review group and in particular its chairman, Dr. Gerard Hogan. The group's analysis and recommendations inform many of the Bill's provisions. When I was appointed Minister for Justice, Equality and Law Reform last year one of the first documents I read more or less from cover to cover was the report written by Dr. Hogan and his committee. It fed into my thought process in bringing forward this Bill.

The Bill has 32 sections, plus 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. The law requires victim impact evidence to be considered at the sentencing stage in a trial. Part 2 replaces section 5 of the Criminal Justice Act 1993. The basic structure, however, is being maintained. It has two elements, one of which is mandatory - the court is required to take account of the impact on the victim when determining the appropriate sentence, with the exception of convictions for murder, where the sentence is, of course, a mandatory life sentence. For the purposes of the first or mandatory element, the judge may receive reports, often from a medical or other specialist. I am not altering those arrangements but I propose that in cases where, as a result of the offence, the victim has died or is ill or incapacitated, the court is obliged, for the first time, to take account of the effects of the offence on the family, in addition to the effect on the direct victim. These reports apply in every case, even where the victim chooses not to make an oral statement. They ensure that the impact on the victim is always considered.

The second element enables the victim to give an oral account of the impact of the offence. Until now, the possibility of making an oral statement was available only to the direct victim of the offence. Clearly, that presents problems in homicide cases. It is also a problem where the victim is unfit, as a result of the offence, and cannot avail of the opportunity himself or herself. The time has come when we must recognise that the trauma of the direct victim is often shared by family and friends and they too must be given an opportunity to have an input. We must also be mindful that young children or persons with a mental disorder may have difficulty in making a statement in open court. Equally, victims of, for example, sexual offences will find it hard to be in the presence of their attacker when speaking about the damage done. My proposals address all these situations.

In homicide cases, a family member may speak about the effect on the family. In cases where the victim is, as a result of the offence, ill or incapacitated, a family member may speak about the impact on the victim and on the family. 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, with the permission of the court, may deliver the statement via a television link. I am providing for a wide definition of "family" to cover the extended family and the variety of relationships that arise. I feel strongly that victims must not feel pressurised into making statements; they have already suffered enough. I am also keen to ensure that the absence of a statement must not be seen to suggest that they suffered less harm than others. I am therefore providing that no inference is to be drawn that would suggest that the absence of an oral statement indicates there was little or no impact on the victim. I am not proposing any changes in the offences that give rise to the need for victim impact evidence. They already include sexual offences and offences involving violence or the threat of violence.

I want to mention the provision that will enable the court to react when things are said that are not appropriate. I appreciate that victims and their families might feel frustrated by the procedures and formalities of the trial process. The legal process, however, is designed to be fair to all sides. For example, we must assume that evidence which is not presented at the trial was felt to be either not relevant or was not reliable. It would be unacceptable if the information became available by means of an impact statement. For this reason, the Bill enables the court to prohibit the publication of material it considers inappropriate. It will be an offence to breach a court order. The Bill develops victim impact evidence in a very positive and progressive way. It recognises that crime affects not only the people most directly concerned, but also those with whom they share their lives. I am in particular securing the entitlement of families to be heard in homicide cases; they will no longer have to depend on the judge's discretion.

Moving to the second area covered by the Bill, Parts 3 and 4 outline the circumstances in which acquittals may be overturned and new trials ordered. There are three circumstances. Part 3 deals with two of them, where new and compelling evidence arises and where the trial was tainted. These two circumstances represent a departure from the rule against double jeopardy. The third circumstance, which arises in Part 4 is an extension of the current powers available to the prosecution to bring appeals where the acquittal arises from an erroneous ruling on a point of law by the trial judge. The double jeopardy rule means an acquitted person may not be pursued again in respect of the same offence. An acquittal is regarded as a final decision which, until now, the State could not seek to reopen. As against that, a convicted person already has full rights of appeal against both conviction and sentence. Despite this imbalance, I accept that we must be cautious about changes to the operation of the double jeopardy rule. There is a public interest in respecting the finality of proceedings. Nevertheless, we must recognise that some acquittals cannot be truly said to be deserved. Obvious examples arise where someone commits perjury or where new evidence that is compelling becomes available after the acquittal. Both situations would suggest the acquittal is not a true or just outcome.

Sections 7 to 10, inclusive, set out the procedures to apply before a retrial can take place. The process is a rigorous one and ultimately, it is for a court to decide whether a new trial should take place. If it is a question of new evidence, it must be compelling, it cannot have been available at the time of 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 available 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. That is the highest standard possible, short of saying the new evidence must amount to proof that is beyond reasonable doubt, in other words, that it meets the criminal standard. That would amount to a predetermination of the case. It is for the jury at the new trial to make the determination about the guilt or innocence of the accused.

"Relevant offences" are those that for the most part carry a mandatory or discretionary life sentence. The offences under the International Criminal Court Act 2006 which carry a maximum of 30 years in some circumstances are the exception. The offences in question are listed in the Schedule. These are the only offences in respect of which a retrial may be ordered based on new evidence becoming available. Limiting the offences to these most serious offences underlines the careful approach we have adopted to this area of reform.

In the case of tainted acquittals, a retrial may be ordered in respect of any offence tried on indictment where the first trial was tainted by an offence against the administration of justice. That covers bribery, intimidation or any other activity designed to pervert the course of justice. It also includes perjury. There must be reasonable grounds to believe that the offence affected the outcome of the trial. The Director of Public Prosecutions must be satisfied that the acquittal was not merited. In the new evidence scenario, he will generally have available to him a Garda report on its investigation of the new evidence.

Sections 15 to 18, inclusive, set out the powers available to the Garda for the conduct of the investigation. The Garda may not pursue the investigation against an acquitted person except where it has judicial authorisation to use the powers in this Bill. In the case of tainted acquittals, there must be a conviction for the offence against the administration of justice. Once satisfied that the acquittal is without merit, the Director of Public Prosecutions may apply to the Court of Criminal Appeal for an order for a retrial. The acquitted person is put on notice of the application and may attend and participate in the hearing. Legal aid will be available. The court may quash the acquittal and order a new trial if it is satisfied that the Director of Public Prosecutions has complied with the requirements as to the standard of the new evidence or, where appropriate, that an offence against the administration of justice had occurred and that it would be in the interests of justice to do so.

Section 12 outlines important safeguards. The court may order restrictions on attendance at the hearing as well as restrictions on reporting of details of the case. The restrictions can be maintained until the trial has concluded. They are designed to avoid prejudicing the new trial, especially by avoiding publicity that might influence any potential jurors. Section 13 specifies details of the offences committed by publishers who breach an order.

The Director of Public Prosecutions may bring an application once only; there can be no question of repeated applications. If an acquitted person fails to attend and the court decides to proceed with the application, it may, in the event of it ordering a retrial, issue a warrant for the arrest of the person.

Section 14 provides that the decision of the court is subject to appeal to the Supreme Court on a point of law. The retrial 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.

Part 4 of the Bill provides for "with prejudice" appeals. These appeals are made by the Director of Public Prosecutions or, in some cases, the Attorney General, to the Supreme Court against a ruling by the trial judge on a point of law. Typically, they may relate to the admissibility of evidence or the legality of searches. Until now, such appeals were available only on a "without prejudice" basis; in other words, the outcome of the appeal did not alter the position of the acquitted person. It is now proposed that, in addition to this option, there should also be a "with prejudice" option. In other words, the acquitted person may ultimately be convicted. It entails the possibility of asking the Supreme Court to not only to clarify the law but to order a new trial. The procedures are similar to those I outlined earlier in terms of double jeopardy cases. They are set out in section 23. The same restrictions on reporting may be imposed as mentioned earlier.

I want to deal with the scope of application of the new measures and the question of retrospective effect. The possibility of quashing an acquittal arises in new evidence cases and in the case of the tainted acquittals where the person was charged with the offence on or after the commencement of the new legislation and was subsequently acquitted. Members will note that the offence may have been committed prior to the commencement date.

In cases where the acquittal arises from an incorrect direction on a point of law, the possibility of bringing a "with prejudice" appeal will arise where the acquittal takes place on or after the commencement day. In all three scenarios the acquittal must occur after the commencement date. This is a significant point and I will elaborate on it after I look at the question of retrospective effect.

There is a general presumption, especially in criminal law, against retrospection. This is reflected in Article 15 of the Constitution. Article 7 of the European Convention on Human Rights takes a similar approach. However, the position as covered by the Constitution and the ECHR relates primarily to substantive criminal law; they make it clear that an act that was not an offence when committed may not later be regarded as an offence.

The Bill, on the other hand, is concerned with criminal procedure. I have been advised that if the Bill was to have full retrospective effect, there is a strong risk that the courts would regard it as interference by the Oireachtas in the administration of justice. An interference would arise if the Oireachtas allowed cases that were considered closed by the courts to be reopened. That would also represent a transgression of the doctrine on the separation of powers. I am advised that the Bill cannot therefore have retrospective effect. I am aware that a different view has been taken in the UK but I must operate within the constitutional framework in this State. The possibility of retrying a case under this Bill, based on new evidence, does not apply to cases where special verdicts were recorded under the Criminal Law (Insanity) Act 2006. Those special verdicts acknowledge that the person committed the act but lacked the necessary mental capacity at the time.

Sections 30 to 32, inclusive, address other matters relating to appeals. Sections 30 and 31 remove the requirements 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 the latter court.

Section 32 amends section 29 of the Courts of Justice Act 1924 by clarifying that a person who appealed to the Court of Criminal Appeal on a number of grounds and was granted a retrial on some of the grounds may appeal to the Supreme Court for a decision on those matters included in the original appeal to the Court of Criminal Appeal but which were not addressed by that court when granting the retrial, provided they are relevant to the defence at the new trial.

I would like to mention some issues I am examining and may wish to bring forward as Committee Stage amendments. These include alterations to the current law on character evidence, prior notification on the use of expert witnesses and an amendment on the treatment of property being retained as evidence. I am also considering a further set of issues that include the use of restraint orders in relation to cases coming within the terms of this Bill, adding further offences to the Schedule to the Bill and a proposal to extend the time period for the preparation of the book of evidence.

The Bill I have presented will bring about much needed and overdue reform. It puts victims of crime on a new footing in so far as the legal process is concerned. They are being given much fuller and more generous opportunities to participate in the legal process. In addition, the gap in our law that allowed guilty persons to escape the consequences of their crimes is being addressed. I believe the integrity of the criminal justice system will benefit from the changes I am proposing.

The House will have noted that while breaking new ground with this Bill, I have been very careful to provide many safeguards. As a result, I am pleased to commend the Bill to this House. It is balanced and carefully constructed. It is grounded in a deep respect for our legal traditions and values but it moves the law forward in a measured way.