Dermot Ahern (Louth, Fianna Fail)

The Senator is seeking to remove the criterion for an appeal to the Supreme Court by either party for an application for a retrial order. The criterion is long established, namely, that the court, the Attorney General or the Director of Public Prosecutions must certify that the determination involves a point of law of exceptional public importance and that it is in the public interest that an appeal should be taken to the Supreme Court. This is the criterion laid down in the Courts of Justice Act 1924 governing an appeal from the Court of Criminal Appeal to the Supreme Court. Similar filter mechanisms to that proposed in the section are to be found in other statutory codes in this and other jurisdictions, including section 29 of the 1924 Act. I am satisfied the criterion is appropriate in this case. The Attorney General has advised that there is no constitutional obligation to have a full appeal available regarding a determination on an application for a retrial order. If the case proceeds to a retrial and a conviction is handed down, there will be facilities for appealing the later conviction.

I acknowledge the section, similar to section 29 of the 1924 Act, provides for an inequality of position in that the Director of Public Prosecutions is a party who can certify the appeal, while the defendant must obtain a certificate from someone else but that inequality arises from the different roles of the Director of Public Prosecutions and it is not unconstitutional discrimination or an inequality of arms. In addition to the Director of Public Prosecutions, the Attorney General may certify the appeal. It is presumed that these officers, one of whom is a constitutional officer, will exercise that discretion appropriately. The Court of Criminal Appeal may also certify the appeal. The court is not a party and has no interest of its own to promote or protect. It is exercising a judicial function, with all the attendant constraints and duties. The evidence of practice establishes that the court has frequently granted certificates, even where it has held against the accused in regard to issues the subject of the appeal. I am satisfied, therefore, with the scope of the appeal avenue in this section and do not propose to accept the amendment.