Dermot Ahern (Louth, Fianna Fail)

If one were to extend the logic of Senator Bacik's argument regarding the arrest of people under this section, no one could be arrested prior to being charged, leaving aside the procedure for a retrial under this legislation. Obviously, the Garda is entitled to arrest someone in accordance with the law to question him or her, or else it would not have the ability to solve crime.

Senator Bacik, when referring to section 15, answered her own question on the rationale behind section 16. As she stated, the section contains safeguards in respect of what can be done. It must also be pointed out that following the arrest of a person, it will be necessary for a superintendent to apply for a judicial imprimatur. There cannot be a subsequent charge unless the court so directs. This is not something that might be used willy-nilly and in every circumstance in order to allow the Garda to have another bite at the cherry.

Section 16 is central to the procedure governing the reopening of acquittals on the basis of new and compelling evidence. It allows for the arrest of a person where his or her detention is necessary for the investigation of information that points to the existence of new and compelling evidence. It is important to note that the arrest follows judicial authorisation. The maximum period for which a person may be detained is 24 hours, the maximum permitted under section 4 of the Criminal Justice Act 1984.

In combination with section 15, section 16 represents a safeguard for acquitted persons. Without the prohibition in section 15, an acquitted person would be subject to Garda arrest and detention in the normal way for the offence in respect of which he or she has been acquitted. Once the law provides for the retrial of acquitted persons in certain circumstances, it follows that, unless some special provision is made in law, such persons would be subject to normal Garda powers as part of a proper investigation of new evidence. The offences to which the new and compelling evidence procedure applies are all arrestable offences. This means that any such person, on the basis of reasonable suspicion, would be liable to be arrested and detained without the need for a judge-assisted warrant.

In recognition of the status of the acquitted person and the need to remove any potential for harassment of that person, section 15 prohibits the exercise of a range of standard Garda investigation powers, including those of arrest, detention, fingerprinting, the taking of forensic samples etc., except in accordance with the special provisions in section 16 to 18, inclusive.

Section 17 makes similar provision in respect of the arrest of an acquitted person who is in prison or a child detention school with regard to his or her suspected involvement in an offence for which he or she has been acquitted. The section also makes special provision for search warrants.

As stated, section 16 provides for judicial authorisation of an arrest. Before issuing an arrest warrant, a judge must be satisfied that the senior member of the Garda Síochána seeking it is in possession of information on the relevant offence in respect of which a person was acquitted which has come to the attention of the Garda since that person's acquittal and which is likely to reveal or confirm the existence of new or compelling evidence in connection with his or her suspected participation in the offence for which his or her arrest is being sought. This test requires the judge to have regard to the exacting threshold which must be met in order to ground an application for a retrial on the basis of new and compelling evidence.

Senators may be interested to note that other jurisdictions that have modified the rule against double jeopardy in order to provide for retrials where new evidence emerges post-trial all allow the exercise of police powers in respect of the acquitted person subject to special safeguards. In general, such safeguards come in the form of prior approval from the prosecution services. Having regard to the independence of the Director of Public Prosecutions in the State, I do not wish to go down that road. I have instead opted for judicial oversight which provides a strong safeguard to protect the acquitted person from potential harassment.

Apart from the fact that, in combination with section 15, it provides a safeguard for acquitted persons, section 16 is also critical from an operational perspective. It goes without saying that before the Director of Public Prosecutions initiates, under section 8, an application to have an acquittal quashed and a person retried, the new and compelling evidence on which that application is based must have been properly verified by the Garda in order to ensure its reliability and substance. To ensure such verification, the Garda must have the possibility of using standard investigative powers to question the person, take his or her fingerprints, gather forensic samples, etc. These powers all arise in the context of Garda detention. It might not be necessary for the Garda to seek the arrest of and detain a person in every case. However, the power to do so must be available as an option.

The purpose of the arrest under this section relates to the investigation of possible new and compelling evidence. It will arise before a decision is taken by the Director of Public Prosecutions to initiate an application for a retrial order. In no way does section 16 allow the acquitted person to be detained in custody pending the determination of the application for a retrial order. As stated, while other jurisdictions permit an acquitted person to be remanded in custody or placed on bail pending the determination of the application for a retrial, I have decided not to go down that route.

Having regard to an acquitted person's entitlement to the presumption of innocence, he or she will be at liberty, without the possibility of restrictions being imposed, pending the determination by the Court of Criminal Appeal of the retrial order. I am aware that this gives rise to the risk of an acquitted person absconding but I am advised that this is unavoidable. In order to address that fact, section 8(6) provides that if an acquitted person fails to appear, the court may, subject to the requirements of the interests of justice, allow the hearing to proceed in his or her absence.

I am satisfied that section 16 strikes the appropriate balance between the rights of the acquitted person and the needs of the investigation into the existence of new and compelling evidence. In such circumstances, I urge Senators to support it.