Ivana Bacik (Independent)

I move amendment No. 35:

In page 12, subsection (5), line 36, after "concerned" to insert the following:

"and the person may appear and be heard by the Court".

The amendment is self explanatory. It seeks that the person in respect of whom the application is made has the right of appearance before the court. It is already implicit in subsection (5) that if the DPP has to give notice to the person concerned, it is an important safeguard in this provision that clearly it would be very wrong if this could be made ex parte without the person being informed. If that is the case and if the person has the right to be given notice and the right to legal aid under section 11, he or she should also have a right to be heard.

The Minister may say it is unnecessary because it is already clear from the terms of the section, as well as the terms of section 11, but I would like the point clarified. As I said, I welcome the Minister's listing of the safeguards contained in the section, which is very important. However, given the obligations under the European convention case law and given the recommendations of the review group report, it is required that we would have safeguards here.

It is a major departure from our current criminal justice procedures that a person who is acquitted can be subject to a retrial. It is very important that we ensure these are powers that can only be used sparingly and that we also provide for safeguards against any abuse of the new power in the section. Otherwise, as the Minister himself has said, the entire criminal justice system will fall into disrepute. There needs to be certainty in the criminal law for victims and for offenders. It is very important that there is also certainty for persons who have been tried and acquitted, which has always been a cornerstone of our criminal justice system. This is a departure from that. While it is a departure the merit of which in principle is recognised by everyone, it is something that must be done sparingly. It is a new power for the DPP which must be subject to very stringent safeguards and to an exacting threshold for the application.