Dermot Ahern (Louth, Fianna Fail)

In the UK two convictions after re-trial have been obtained and one re-trial is still outstanding and has been ordered. The Senator proposes that two types of evidence, DNA and confession, be inserted as examples of what might constitute new and compelling evidence. I am aware the balance in the Criminal Law Review Group when recommending that the rule against double jeopardy should be modified to allow acquittals to be re-opened on the basis of new evidence, identified DNA evidence and confession evidence as examples of compelling evidence. I agree that they may constitute compelling evidence in a particular case.

Two of the few cases which have been successfully retried in the UK on the basis of its new and compelling evidence procedure were based on admissions by acquitted persons. I caution, however, against assuming that DNA evidence is always compelling. It certainly puts a person at the scene of a crime but does not of itself necessarily implicate the acquitted person with a high degree of probability in the offence. Its significance depends on other evidence in the case. It may be that the acquitted person admitted to being at the crime scene during the original trial. In such a case DNA evidence that emerges after the acquittal and puts the person at the scene is very unlikely to constitute compelling new evidence.

As regards confession evidence I understand that an application for re-trial in the UK which was based on admissions by the acquitted person was rejected by its court of appeal because it was considered to be unreliable. Including examples of evidence would be very unhelpful and would have the potential to create the incorrect impression as to the value of particular types of evidence. The value of any piece of evidence is dependant on surrounding circumstances. There are many types of evidence. Discerning whether any new evidence is compelling is properly a matter for the prosecution in the first instance, and the court in the second instance. That is the approach taken in the Bill.

The test to be met before the DPP may make an application for a retrial order on the basis of fresh evidence is an exacting one, and rightly so. The reopening of an acquittal must be an exceptional occurrence, otherwise our criminal justice system would fall into serious disrepute. The test requires the DPP to form the view that the evidence is new, that it was not adduced in the earlier proceedings and could not, with the exercise of due diligence, have been so adduced. That is the important qualification to guard against sloppy investigations and prosecutions. The test also requires the DPP to form the view that the new evidence is reliable, substantial and implicates the person with a high degree of probability in the commission of the relevant offence concerned, and the public interest requires the application for a retrial to be made.

The test for the Court of Criminal Appeal goes further by requiring it to consider whether granting the retrial order is in the "interests of justice". The meaning of the "interests of justice" is amplified in section 10(3). It requires the court to have regard to such matters as whether any retrial would be conducted fairly, the passage of time since the commission of the offence and the interests of victims. I am satisfied the definition of new and compelling evidence set out in section 7, together with the additional matters which the DPP and the court are required to take into account, are sufficient to ensure this procedure will be used only in exceptional cases.