Ivana Bacik (Independent)

I acknowledge the existing provisions are discriminatory but this is a new provision relating to appeals specifically against a decision by the Court of Criminal Appeal under section 10, that is, where the court grants a retrial order quashing a person's acquittal under section 8 or section 9. We are, therefore, dealing with a new area of law because until now there was no provision for the court to quash an acquittal on this basis. A section 10 decision is definitively against the acquitted person because it is an order for a retrial. It is highly unlikely, therefore, that the Director of Public Prosecutions would seek to appeal it, yet this section provides that the appeal can be taken by either the acquitted person or the Director of Public Prosecutions but it may only take place where the Director of Public Prosecutions, the party in respect of whom the decision is of necessity made under section 10 in his or her favour, is one of the parties, yet he or she has the power to certify that an appeal shall lie to the Supreme Court when it is clear from the earlier sections that the appeal will only be taken by the acquitted person.

The Minister has said the Attorney General or the court may also certify and, in practice, in the relatively rare cases where it has arisen, the Supreme Court grants a certificate. This may even become similar to the current farcical procedure, whereby the Court of Criminal Appeal must consider the question of whether there is leave to appeal before considering the appeal where there is an appeal against conviction or sentence. The expert group pointed to the pointless nature of that process and stated it should be reviewed. Other groups have also recommended a similar review. If the Minister inserts another mechanism that will become something similar, why is he bothering with that formula? Why not state a person may appeal to the Supreme Court?

One of the Minister's justifications in opposing my amendment to section 7 was that if he substituted the Supreme Court for the Court of Criminal Appeal, there would be no appeal beyond that where the Supreme Court granted a retrial order under section 10. That is a valid point but if I accept it, clearly an appeal should lie to the Supreme Court by the acquitted person where a section 10 order for a retrial has been made. It is not necessary to insert the certification procedure in this section, particularly when it is so lopsided, given that an appeal is also capable of being made by the Director of Public Prosecutions, yet the Director of Public Prosecutions may certify that the appeal be taken.

I propose the insertion of the words "shall lie". Perhaps a neutral test could be inserted in the interests of justice or on a point of law. I could not have a difficulty with that but deleting the reference to the Attorney General or the Director of Public Prosecutions and having only the court certify the appeal might be a useful amendment. The Minister has acknowledged the inequality in the current provisions for the appeals mechanism in section 29 of the 1924 Act but we are dealing with a different mechanism. This is not about a clear-cut criminal appeal against conviction or sentence where the Court of Criminal Appeal has upheld a conviction and a point of law arises. The section deals with an acquitted person, against whom a retrial order has been made but where the retrial has not taken place. They are still acquitted, they are still innocent and this is a new procedure where the Court of Criminal Appeal gives the retrial order under section 10. There should therefore be an appeal from that. Perhaps this should be on a point of law or perhaps it should be a point of law of exceptional public importance but the Attorney General or the Director of Public Prosecutions should not have power to certify this. It seems an unnecessary filtering or blocking mechanism in respect of someone who was acquitted. Just because there is inequality in the law does not mean we should reproduce it here. This is especially true when we speak of acquitted persons. I intend to press this amendment on Report Stage if not now.