Eugene Regan (Fine Gael)

I can deal with it under this amendment. The Minister has spoken about the prospective effect of the change in the double jeopardy rule. I wonder why that is the case. I would like hear the Minister's clarification on it. We have a different constitutional position to the UK, but when the double jeopardy rule was limited in that country, it was made retrospective. It is a common law right as distinct from a constitutional right, so I do not readily see the impediment to making it retrospective.

The whole purpose of abolishing the rule in the first instance is to restore confidence in the administration of justice and to ensure that it is done. There are two constitutional provisions which people have in mind when considering whether it could not have retrospective effect. Article 15.5 of the Constitution forbids the Oireachtas to declare Acts to be infringements of the law when they were not so at the date of their commission. That does not arise here. Article 38.1 states that no person shall be tried on any criminal charge, save in due course of law. I do not see the conflict there if the rule was retrospective.

The real test for a retrial — reference to this has been made in the High Court — is whether there is a risk of an unfair trial. This should be decided in the sense of balance of competing public interests. There is an issue of confidence in the administration of justice. Justice should be seen to be done where there is new and compelling evidence that there should be a retrial. Why should it not be made retrospective, given that there does not seem to be a constitutional impediment to making it so?