Dermot Ahern (Louth, Fianna Fail)

I do not propose to accept the amendment. The balance in the criminal law group indicated the court process for setting aside an earlier acquittal and ordering a new trial should be dealt with by the Supreme Court. However, I am advised by the Attorney General that the constitutionality of so allocating that role is questionable because Article 34.4.1° of the Constitution identifies the Supreme Court as the court of final appeal. I am also advised that it would be inappropriate to give a new jurisdiction to the Supreme Court where it might be called upon to hear oral evidence.

Aside from these considerations, section 14 of the Bill has the advantage of allowing an appeal by either side on a point of law to the Supreme Court. This approach mirrors the process by which an alleged miscarriage of justice against a convicted person may be quashed and a retrial ordered.

Leaving aside the fundamental difficulty with the substance of the amendment, I am advised that it is in any case inadequate from a drafting perspective. It fails to address the references to the Court of Criminal Appeal in section 11, which inserts a new section into the Criminal Justice (Legal Aid) Act 1962 to provide legal aid to those who are subject to retrial orders under sections 8 or 9 of the Bill.

In view of the Attorney General's advice on the doubtful constitutionality of giving new jurisdiction to the Supreme Court, I ask Senator Bacik to withdraw the amendment.