Ivana Bacik (Independent)

I thank Senator Mullen for sharing time. I welcome the Minister and the opportunity to speak on the issue of criminal procedure. Issues about reform of the criminal justice system have been very pressing with recent murders really bringing it to the fore, the intimidation of persons who have been witnesses and so on.

I welcome some of the measures in the Bill, in particular Part 2 which deals with the impact of crimes on the victim. It is very important to see necessary changes being made to the victim impact statement provisions of the 1993 Act, in which the flaws had been very obvious, namely, that there was no provision for the families of homicide victims to give statements and there was a lack of clarity about how victim impact statements would be taken by the courts.

I am glad to see greater provision for children, in particular, to give evidence through video link and, under section 6, through an intermediary, which is very welcome. As a practitioner in this area - I declare my interest in it - I am very much aware of cases where there have been logistical problems with children giving evidence by video link, for example, in sex offence cases. That is a logistics matter for the Courts Service which normally deals very well with this. It is very important the person in the room with the child is trained. There should always be a trained person in the room with the child when giving evidence by video link because the video link experience can also be very traumatic for the child. We need to be aware of that when we expand the right to give evidence through video link. We need to tighten up the practice and ensure persons are trained if they are to be alone in a room with a child who is giving evidence in such a difficult circumstance.

I would like to see more support for victims. Various changes have been made in regard to sex offences to have some limited separate legal representation. I would like to see an expansion of that provision in this Bill.

I refer to Part 3 which deals with the new exceptions proposed to the rule against double jeopardy and the provisions that the Director of Public Prosecutions can now apply for a retrial order. Especially with developments in DNA, it should be possible, although only in very rare cases, for retrials to be ordered even where there has been an acquittal. However, it is essential that we limit cases where such retrials may be ordered.

I refer to the balance in criminal law review group report. As the Minister said, it is that group's recommendations which inform many of the Bill's provisions. The group said that any power to provide for an appeal in respect of an acquittal following new evidence or allegations of trial tampering would be rarely used. That is the experience elsewhere and it should only be used rarely. The group recommended that there should be an exacting threshold where the Director of Public Prosecutions seeks a retrial order. I am not sure the threshold in section 8 is exacting enough. The two examples given by the expert group - DNA evidence or a confession to the offence - perhaps seem to be the only examples of new and compelling evidence where a retrial order might be possible.

The Director of Public Prosecution's application to the court can be in the absence of an acquitted person, about which I am slightly concerned. It must be made on notice but it can be done in a person's absence. There is no time limit within which the Director of Public Prosecutions may make such an application. The court to which the application is to be made is the Court of Criminal Appeal.

That was not envisaged by the review group, which made various criticisms of the manner in which the jurisdiction of the Court of Criminal Appeal has developed. The group specifically recommended that "greater rationality" be brought to bear on the "piecemeal development" of the jurisdiction of that court. The review group was of the view that it would be appropriate for appeals against acquittals to be brought to the Supreme Court. In regard to double jeopardy, the group recommended that the prosecution right could be exercised if the Supreme Court so decides. In other words, it recommends that this be a matter for the Supreme Court rather than the Court of Criminal Appeal.

Given the lack of consistency encountered by practitioners in judgments of the Court of Criminal Appeal, this is a worthwhile recommendation. A difficulty arises from this proposal in that there would then be a problem as to where an appeal could be taken. However, there is currently a problem with the appeal mechanism provided for in section 14 of the Bill, which allows for an appeal to the Supreme Court from a decision or determination of the Court of Criminal Appeal in a retrial application in that there is no right of appeal for the acquitted person unless either the court or the Director of Public Prosecutions agrees it. There may be a problem constitutionally in restricting this right. This issue of appeal and the question of the court to which the application should be made are issues that should be revisited.

I welcome the introduction of other restrictions. For example, summary acquittals are not included. The range of offences is limited to more serious ones and only one application may be made. However, there may not be sufficient safeguards in the legislation. Under Part 4, which deals with new provisions on without prejudice prosecution appeals, there is significant potential for abuse. This is also the case in respect of Part 3, sections 15 to 18, inclusive, whereby the District Court is to be empowered to give approval for powers relating to persons acquitted. I am concerned that this provision may give rise to serious issues. The provisions in regard to without prejudice prosecution appeals are broader than was envisaged by the expert group. The latter referred to the need to enure the absolute impregnability of jury decisions to acquit and that such decisions should only be made on very narrow points. In other words, the reopening of acquittals or appeal against acquittals should only be carried in restricted circumstances.

I am concerned that the provisions in the Bill in this regard are not sufficiently restrictive. For example, under section 16, the District Court may approve the arrest and detention of an acquitted person in respect of whom no retrial order has yet been made. In other words, the Garda can seek right of rearrest before the District Court before an acquittal has been set aside and a retrial ordered. I am not convinced this is constitutional. I accept there is a practical issue in that there may be a flight risk if the person concerned is not arrested before the retrial application is made. However, I am not sure whether the type of broad power of rearrest put forward in the legislation is in accordance with Article 38.1 of the Constitution.

I have a query regarding the power to grant search warrants under section 18. I am conscious there are strict laws prohibiting the use of rearrest powers by the Garda. I acted in a case where one of these laws was examined and found wanting. We must be careful about the potential for abuse where gardaí are rearresting persons who have been acquitted and whose acquittal has not been set aside.

In Britain, the law was changed in 2003 to introduce exceptions to the rule against double jeopardy. However, prior to the enactment of the legislation, a detailed Law Commission report examined all the issues. The review group report referred to some of the interesting cases that have arisen in Britain. We must examine these issues more closely to ensure we tread cautiously in opening up the potential to mount appeals against acquittals for prosecution. In view of recent heinous crimes, there is clearly a need to look at issues such as tainted acquittals where persons convicted of offences against the administration of justice may have been acquitted wrongly, thus leading to miscarriages of justice. This point is dealt with in section 9. I clearly see the merit of changing the rule on double jeopardy in those cases. In other cases, however, particularly in respect of with prejudice appeals, we must tread more cautiously. I thank the Acting Chairman for her indulgence.