Rónán Mullen (Independent)

I welcome the Minister and aspects of this Bill. Looking through it, I welcome the changes in regard to victim impact statements and that no inference will be drawn where a person, a victim or the family of a victim choose not to make such a statement. That is appropriate. As mentioned by Senator O'Donovan, I welcome the enabling of the courts to prohibit publication of material in certain circumstances in regard to victim impact statements and cases where the Director of Public Prosecutions succeeds in getting a retrial.

In the context of the case in the south to which Senator O'Donovan alluded, is enough being done to accompany victims and their families in the terrible traumatic cases of the kind which occurred? Is enough being done to explain the complex procedures and proceedings involved in the criminal law so that victims and their families understand where precisely they fit into the system? The mere fact that they are witnesses primarily can be a source of tremendous trauma and can lead to them feeling very disempowered in the whole process where they seek justice for the wrong done to a loved one. That is an issue about which we should continue to think.

In regard to the opening up of circumstances where there can be a retrial, this has been described as the end of, or certainly a significant attack on, the old rule in respect of double jeopardy or, as it is known in this jurisdiction, autrefois acquit. It is appropriate we ask from where this is coming. I am aware of changes in the law in England, certainly in the wake of the Stephen Lawrence inquiry. Particular circumstances arose in that case which led to change in England. Given that in the UK retrials hardly ever come to pass, how often does new and compelling evidence emerge? Does this proposed change in the law stem more from a sense that we need to be seen to be tough on crime than from particular circumstances which arise and necessitate it?

A number of issues need to be considered very carefully in this regard. I refer to the guarantees in Article 38 of the Constitution that a person has a right to a trial in due course of law. What exactly flows from those rights under Article 38? Certainly due expedition has been held to be involved. As has been said, there is a public interest in the conclusive determination of criminal proceedings. Given that a person has a right to a trial with due expedition, is there a need to look at some kind of Statute of Limitations arrangement in regard to what is proposed here where the Director of Public Prosecutions can apply to the Court of Criminal Appeal for a retrial in certain circumstances? What would be the courts' view if this was ever tested, that is, whether this abandonment, partial abandonment, call it what you will, of the rule against double jeopardy is fully in keeping with the spirit of Article 38 and the person's right to a trial in due course of law and what would flow from such a challenge were it to be made?

I refer to section 7 and the threshold which allows the possibility of a retrial where new and compelling evidence emerges. What is new and compelling evidence? Is that too loose a term? Does it open up the possibilities of judges agreeing with a nod and a wink that there is new and compelling evidence? Could this nurture inadequate approaches to inquiry on the part of the Garda Síochána? A trial could take place resulting in an acquittal and new and compelling evidence could come to light at that stage perhaps with the Garda Síochána having pursued a line of inquiry which it should have pursued in respect of the first trial. Does the threshold need to be raised to provide for the possibility of a retrial where new and compelling evidence emerges which could not possibly have been obtained with duly diligent behaviour on the part of the Garda Síochána? Would that be a safer threshold to establish in that particular instance?

There will be time to turn to these matters on Committee Stage. I do not want to sound like I am against this Bill in principle. I recognise the circumstances which could give rise to a justification for a second trial but, nonetheless, we must proceed very carefully. We need to look very carefully at the thresholds we establish.