Ivana Bacik (Independent)

I move amendment No. 36:

In page 12, subsection (6), line 38, after "Court" to insert the following:

"if satisfied that the Director has given the person concerned all reasonable notice to facilitate his or her appearance and".

This amendment provides an extra test for the court before it may proceed to hear and determine the application in the absence of the person. Given what the Minister has said about the right of the person to be heard before the court — I am glad he clarified that — it is of extreme concern that an application of this serious nature could be heard in the absence of the person.

I understand there may be cases where this is necessary. If the section 8 jurisdiction is to be used only sparingly, the section 8(6) jurisdiction must be used even more sparingly. It concerns somebody who is acquitted and innocent in law. That person is not expecting further criminal proceedings and may have moved abroad or left the jurisdiction, as he or she is entitled to having been acquitted. I accept that the court should have power to hear and determine the application in a person's absence but it is important that the court must be satisfied it is in the interests of justice to do so. The court must also be satisfied that the Director of Public Prosecutions has given all reasonable notice to the person concerned to enable an appearance before the court.

There may be a more elegant way of putting the amendment but the director must give the person concerned all reasonable notice to facilitate their appearance. The Minister may say that is unnecessary as the director will do this anyway but it is important there is a requirement for the court to be satisfied that this is the case, as well as being satisfied that it is in the interests of justice to proceed in the absence of the person. The person is not accused and "acquitted" is the more correct term.

Amendment No. 45 is in similar terms and relates to with-prejudice prosecution appeals where many similar concerns arise. This is the procedure under section 23 where it is proposed that the DPP or Attorney General can appeal a verdict even where somebody has been acquitted on indictment after commencement of the section. There is a provision in section 23 for the appeal procedure and there is a specific notice requirement in slightly different terms in section 23(2). The test in subsection (3) allows the appeal to proceed in the absence of the person acquitted.

I have proposed an amendment that the court would have to be satisfied not just that it is in the interests of justice to proceed in the absence of the person concerned but also that the DPP has given all reasonable notice to the person concerned to facilitate an appearance. We may be dealing with somebody who has been acquitted some years previously and subsequently left the jurisdiction. It may not be possible to locate such people but it is important that the DPP would take all reasonable steps to do so before any proceeding could take place in their absence. We are dealing with acquitted persons.