Dermot Ahern (Louth, Fianna Fail)

I have looked at the section very carefully with respect to retrospective action. People understand that with criminal law generally, the principle of legislating from a retrospective point of view is impossible. Somebody can only be convicted of a crime on the basis of the legislation in place at a particular time. That is a general point.

There is an issue in this legislation regarding the reopening of acquittals on the basis of new and compelling evidence and an acquittal being tainted. There is a fundamental principle in this relating to the separation of powers. We cannot pass legislation in the Oireachtas overturning or changing any decisions made in court. This legislation is different from that. The call for retrospection would, in effect, be a direct intervention against previous judgments made by courts. This allows the courts to be involved. At every hurdle in the legislation there is judicial involvement. In other words, the courts must be involved in determining whether an acquittal is to be reconsidered. It is not the Oireachtas that will be making the decision; that is the difference. I have given consideration to this issue. I met at least one family and indicated we had considered the issue of acquittal intensely with the Office of the Attorney General. The advice of the Attorney General is that an attempt to retrospectively allow the reopening of acquittals would involve a breach of the principle of a separation of powers. It is well established that the Oireachtas cannot alter or reverse a finding of the courts. Under existing law, the effect of a judgment of acquittal is that the person acquitted cannot be reprosecuted in any circumstances. Were the proposed law to alter that position by operating retrospectively, the effect of judicial determination would be altered.

Apart from this fundamental objection, there is a strong argument that to retrospectively change the status of an acquittal and provide for the possibility of interference with the verdict of the court, where there was not that possibility at the time of the person's trial, would infringe the person's right under Article 38.1 of the Constitution not to be tried on any criminal charge, save in accordance with law. I am conscious that these constitutional requirements are cold comfort to the victims of crime and their families. I am also conscious of the potential added benefits that retrospection, if it were to apply, would bring. It would most likely allow the provisions to be used much earlier and us an opportunity to take advantage of the great developments in forensic science, particularly DNA profiling, in the past 20 years.

I am aware that other jurisdictions, including the United Kingdom, have applied their equivalent provisions retrospectively. However, both I, as Minister, and the Oireachtas must operate within the constitutional framework we have in the State, namely, that the retrospective approach adopted in the Bill reflects the particular duty we have. I am aware, too, that a number of countries, among them southern Australia, have only allowed for prospective effect. The same applies to the Bill currently before the New Zealand Parliament. The United Kingdom does not have the type of constitution we have; therefore, we must judge the retrospective effect under the constitutional framework under which we operate. I am advised that, in the case of the United Kingdom, its provisions have not yet been subject to legal challenge. Also, there has been substantial comment from outside commentators on its legislation. They have expressed a strong view that the UK legislation, as proposed and in place, does not comply satisfactorily with the requirements of the European Court of Human Rights.

I have sympathy for victims in the circumstances in which they find themselves, but having looked at the matter very closely I must, for all of the reasons mentioned, be guided — as must the Government and the Oireachtas — by the strong legal advice available, not just to me but also to the Attorney General. I cannot just reject his advice. We must accept it because he is the law officer of the land. I would be in dereliction of my duty as Minister, as would the Government, if we were to ignore the advice of the Attorney General in this respect.

I am not making a political point, but if the Senators who suggest this legislation can be made retrospective received the proper legal advice from constitutional lawyers, it would clearly state this is not possible.