Eugene Regan (Fine Gael)

I move amendment No. 12a::

In page 12, line 10, to delete ", on or after the commencement of this section,".

Although I raised this matter on Committee Stage I did not table an amendment because I wanted to hear what the Minister had to say on it. The issue relates to the abolition of the double jeopardy rule and to whether such abolition should be retrospective and prospective. I have considered the Minister's response to this on Committee Stage and believe the amendment now tabled by Fine Gael deals with the concerns raised by him in terms of interference with court decisions and the Judiciary. The Minister's objection to the suggestion of retrospection was based principally on the separation of powers, to which I will come later.

The abolition of this rule can be retrospective or prospective. It is permitted by the Convention on Human Rights. It is applied in the United Kingdom in its 2003 Act and in other common law jurisdictions such as New South Wales, which has introduced retrospection in abolishing the double jeopardy rule. The fundamental point is that the change being made in criminal law is procedural rather than substantive. Accordingly, there can be no constitutional or other impediment to applying the abolition of the double jeopardy rule retrospectively or prospectively.

The UK Law Commission report of March 2001, which is quoted in the report of the Balance in the Criminal Law Review Group, chaired by Gerard Hogan, SC states that there is the spectre of public disquiet, even revulsion, when someone is acquitted of the most serious crimes and new material such as that person's own admission points strongly or conclusively to guilt; that such cases may undermine public confidence in the criminal justice system as much as manifestly wrongful convictions; and that the erosion of that confidence caused by the demonstrable failure of the system to deliver accurate outcomes in very serious cases is at least as important as the failure itself. In announcing the change in the law in the England, the Home Office underlined the point that it is important the public should have full confidence in the ability of the criminal justice system to deliver justice. That is the essential point in my putting forward this amendment.

The Balance in the Criminal Law Review Group states that clearly there must be safeguards when we are making this change in the double jeopardy rule. The report states that the review group considers that while strong arguments can be made against general appeals against jury verdicts on the evidence, those arguments do not rule out the desirability of appeals where new or newly discovered facts provide compelling evidence of guilt. The review group stresses that to avoid interference with the jury decision on the merits, safeguards would have to be introduced in the form of (a) an exacting threshold for the obligation such as that the evidence is compelling, for example, DNA evidence or a confession to the offence, (b) advance judicial approval for the application and (c) the setting aside of any acquittal in the State prior to the question of a retrial arising. The report further states that it seems clear that a new trial could not occur in circumstances where there was an extant jury acquittal by a jury in the State or an acquittal by the Special Criminal Court on the merits; that the obvious form of mechanism for both avoiding conflict with an extant acquittal and securing advance judicial approval for the retrial would be by analogy with the right of the accused to apply for a review by the Court of Criminal Appeal of an alleged miscarriage of justice under section 2 of the Criminal Procedure Act 1993 to provide for a similar procedure to apply for prosecution appeals. It refers to mutuality in this situation, namely, a person convicted can appeal and apply on the basis of a miscarriage of justice under the Criminal Procedure Act 1993 but the DPP cannot. The report further states that under such a procedure the prosecution would apply to the Supreme Court for an order quashing an acquittal in circumstances where, as with an application by the defence to the Court of Criminal Appeal, it is alleged that a new or newly discovered fact shows that there has been a miscarriage of justice. The report in providing for safeguards does not suggest that one of those safeguards be that the abolition of the rule cannot be made retrospective. It goes on to examine Article 2.4 of the European Convention on Human Rights and Protocol 7 and concludes that the review group takes the view that the European Convention on Human Rights would not be breached by a provision along the lines of the United Kingdom legislation as the convention allows both appeals against acquittal and the re-opening of acquittals following new evidence of a defect in the procedure. That is important because, as we know, the UK law provides for retrospection. The amendment is formulated so that it is the courts that ultimately decide on the issue of whether a new trial would take place with regard to an acquittal in the past, before the Act was amended. Arguments can be advanced as to why that would be unfair or otherwise to a person who has been acquitted. However, they are arguments going to the merits of such an application, not to whether there should be an absolute bar on dealing with acquittals that occurred before this legislation is passed.

We discussed the constitutional principles to some extent on Committee Stage. The Minister referred to a number of cases, including Buckley v. Attorney General 1950. In that case, generally referred to as the Sinn Féin case, the Oireachtas attempted to directly interfere in judicial proceedings. In the Howard and Others v. Commissioners of Public Works case, powers were retrospectively being granted by the Oireachtas, which would have affected a case already decided. I do not believe this case law is pertinent or on point on this issue. There is no interference with the functions of the Judiciary. It is similar to the abolition of the double jeopardy rule - it is for the court to decide whether to set aside an acquittal and whether to permit a second trial. Why there should be the distinction between cases which have occurred after the passing of this legislation and before it is not clear. It is the court that should ultimately decide this question. The issue of the separation of powers, therefore, does not arise. There is full respect for the jurisdiction of the court to determine and decide on these matters. The legislation with this amendment merely provides the framework by which that can take place.

What is most important is that the change is procedural. It does not create a new offence. Murder is murder whether the procedural change at issue is prospective or retrospective. The change does not interfere with the constitutional right to a trial in due course of law. The Minister said Senators should consult the authorities on this issue. I refer to one case, the Criminal Law (Jurisdiction) Bill 1975. In reference to the Supreme Court under Article 26, Chief Justice O'Higgins at the time delivered an opinion relating to Article 31.8, which requires trial in due course of law. He defined that as:

[F]air and just treatment for the person so charged, having due regard to the rights of the State to prosecute for the offence charged and to ensure that the person so charged will stand his trial. The phrase "due course of law" requires a fair and just balance between the exercise of individual freedoms and the requirements of an ordered society.

It is a balance between the rights of society and the rights of the accused. There is no suggestion that where an acquittal is set aside for a very serious crime, the person could not receive a fair trial. All the safeguards are there.

However, that is not at issue. With regard to the authorities on constitutional law, Mr. Gerard Hogan SC is the author of Kelly's Irish Constitution. The suggestion, in essence, is that making the abolition of the double jeopardy rule retrospective is in some way retrospective penal legislation and, therefore, infringes Article 15.5.1° of the Constitution, which states that the Oireachtas will not declare acts to be infringements of the law which were not so at the date of their commission. Murder or other serious crimes are not being made retrospective. They are already in the criminal law and the retrospective application of this procedural change does not change that.

Mr. Hogan's book refers to some pertinent cases regarding retrospection. In Magee v. Culligan 1992, the Supreme Court held that Article 15.5.1° constitutes:

[A]n expressed and unambiguous prohibition against the enactment of retrospective laws declaring acts to be an infringement of the law, whether of the civil or the criminal law. It does not contain any general prohibition on retrospection of legislation, nor can it be by any means interpreted as a general prohibition of that description.

In the key cases on this issue, M v. D and Gilligan v. Criminal Assets Bureau:

[B]oth Moriarty J and McGuinness J respectively rejected the argument that the provisions of the Proceeds of Crime Act 1996, s 9 infringed Article 15.5.1°. This section enabled the High Court to direct a respondent to file an affidavit specifying the property which he owned or controlled and his income and sources of income for a period up to the last 10 years. In Gilligan, however, McGuinness J pithily disposed of the Article 15.5.1° argument:

The Oireachtas has not, by this definition, declared any act to be an infringement of the law which was not so at the date of its commission. The acquisition of assets which derive from crime was not a legal activity before the passing of the Act of 1996 and did not become an illegal activity because of the Act of 1996.

In Haughey v. Moriarty Geoghegan J said that even if the new provision for costs contained in the Tribunal of Inquiry (Evidence) (Amendment) Act 1997 had been applied retrospectively to the plaintiff, he did not consider that this would have amounted to a breach of Article 15.5.1°.

Mr. Hogan continues:

Somewhat analogous issues were also examined by the Supreme Court in Minister for Family Affairs v. Scanlon where the issue was whether a new provision of the Social Welfare Acts permitting the recovery of wrongly paid social welfare entitlements could apply retrospectively. The Supreme Court held on its proper construction that it did and rejected the submission that such a construction was potentially unconstitutional. Fennelly J observed that, unlike Hefferon Kearns, the right at issue which was liable to retrospective abridgement was a statutory right which was subject to conditions. The Oireachtas had retrospectively tightened these conditions, but this was not a breach of Article 15.5.1°.

Mr. Hogan concludes:

The combined effect of M, Gilligan, Haughey and Scanlon appears to be that retrospective legislation dealing with essentially procedural, remedial and adjectival matters falls outside the scope of Article 15.5.1°.

That makes my case. The change here is procedural and therefore not caught by Article 15.5.1° of the Constitution, which is the Minister's concern.

If we accept that we cannot make this change retrospective, the Minister is saying, in effect, that a person acquitted of a serious crime has a legitimate expectation, even if his or her acquittal was wrong, a miscarriage of justice, obtained by deceit, fraud or perjury or even intimidation, that he or she cannot be charged and tried again to ensure justice is done. That argument is somewhat absurd. We made a procedural change in criminal law in the Criminal Justice Act 1984 when, under section 25 of the Act, we moved from a requirement of unanimity to a majority verdict of 11 or ten in serious criminal cases. Does this mean the provision could not apply to the trial of indictable offences committed before this procedural change came into effect? Does somebody who committed a serious crime who is now being tried on the majority rule argue that he has a legitimate expectation or vested interest that there would be no change in the procedure in criminal law matters and would be unfairly prejudiced by such a change? That is somewhat absurd.

What is argued here is a procedure whereby one can deal with a miscarriage of justice, as under the Criminal Procedure Act, where an accused who has been wrongly convicted, such as when Frank Shortt, uses this procedure to ensure that miscarriage of justice is corrected. The Director of Public Prosecutions should be in a position to correct such a situation on behalf of the victim of a crime or society at large. There is a balancing of rights and that is what we are talking about here. Which is the superior right: the legitimate expectation of an accused not to be tried again for a crime which, based on new and compelling evidence, points overwhelmingly to guilt, or the right to life of the victim or his or her family, the right to the proper administration of justice, the requirement that crime be prosecuted and the need to correct a miscarriage of justice whenever that occurs? In the hierarchy of rights, I would think the right to life takes precedence.

The choice for the Minister is a policy one. It is not a choice dictated by the parameters of constitutional law. The essential distinction one must grasp is that between procedure and substance, procedural and substantive change in the criminal law and the mutuality in dealing with miscarriages of justice. There is endorsement for this approach in the European Court of Human Rights, the United Kingdom and other jurisdictions.

When we discussed a Bill I put forward in this House dealing with the exclusionary rule, the Criminal Law (Admissibility of Evidence) Bill, the Minister argued it was best to leave this matter to the courts to decide. In our debate on 10 December 2008, on the issue of what is or is not constitutional and where there can be debate on such issues, the Minister stated:

[M]y preference is that time be allowed for those arguments to be ventilated before the Supreme Court in a suitable case. I made my views in this regard known, in July this year, to the Attorney General who, I understand, in the context of the statutory consultations which take place from time to time between the Attorney General and the Director of Public Prosecutions, DPP, and permitted by section 2(6) of the Prosecution of Offences Act 1974, raised this matter in September.

I understand that the DPP is very conscious of the benefits of identifying cases in which the scope of the decision in the Kenny case [which concerns the exclusionary rule] can be argued so as to clarify the circumstances in which the rule applies. While the lodging of an appeal in any individual case is, of course, solely a matter for the DPP and appeals can take some time to be heard and adjudicated on, I believe this course of action should be allowed time to come to fruition. In the event that the arguments are put to the Supreme Court and it takes the opportunity to reaffirm the court's analysis in the Kenny case, we will need to think again and look at other options.

What the Minister suggested in that case was that we should allow the courts to determine these issues and determine the jurisprudence. That is what I am arguing in this case. I suggest it is left to the DPP, in a suitable case, to decide, if he deems it appropriate, to reopen and seek to set aside an acquittal or retrial of a criminal case whenever he finds the opportune and appropriate time. Then the courts can decide, as is their function, on the constitutionality or otherwise of allowing such a retrial or whether justice would be done by permitting such a retrial. This is why I say we do not interfere with the Judiciary and the judicial function. We allow and permit the courts, by the amendment I have tabled and the manner in which it is formulated, to make that determination. There is a presumption of constitutionality in the laws we pass in this House. Therefore, I fail to see where the impediment is in this case.

I want to refer to something that encapsulates many of the arguments I have made to allow for retrospective application of the abolition of double jeopardy. I refer to the UK Law Commission report on double jeopardy and prosecution appeals with regard to the retrospective effect of the change in the procedure in the United Kingdom, contained in the 2003 Act. It states:

We consider that the arguments in favour of giving the exception retrospective effect are powerful. Substantive retrospective criminal legislation renders an act, which was legal when it was performed, subsequently illegal. In the case of the procedural change we propose, [which is why I say it is procedural] the alleged act was already a crime. The new procedure merely makes it possible (or easier) to bring the offender to justice, a desirable outcome whenever it is achieved.

Further, if the new exception were not retrospective, it could well be a number of years before it could be used. In deciding to recommend a new exception we have taken account of the fact that, in recent years, we have seen considerable advances in forensic science, particularly in DNA analysis. It is the possibility of bringing these new techniques to bear on materials from old cases that it is likely to constitute a major source of cases said to fall within the new exception. If there were no retrospective effect, the potential advantage in being able to bring these new techniques to bear on materials from old cases would be lost.

Furthermore, if the exception was not retrospective, arbitrary distinctions would be drawn between persons who happened to have been acquitted before and after the relevant date. This would open up the prospect of public outrage where new evidence came to light and the exception would otherwise have been available ... In such cases, we do not believe that a person against whom there is compelling evidence of guilt should be protected by a mere accident of timing.

The report quotes two members of the committee that debated the issue . The committee's view is represented by Mr. Martin Linton MP. He said:

We think that it should apply retrospectively. As I understand it, the principle is that it would be wrong to change the law so that someone is punished retrospectively for doing something that was not an offence at the time. However, we are talking about people who knew that they were committing crimes, lied in court and got away with it. Such cases are entirely different from those with which the retrospectivity principle intends to deal in law.

Mr. Paul Stinchcombe MP said:

I am always slow to support retrospective enforcement, but I can conceive of nothing more self-evidently appropriate than where the sole purpose of the legislation in question is to prevent past miscarriages of justice. The double jeopardy rule has been an integral part of our criminal legal system for many centuries, but the time has now come to relax it in order better to protect the integrity of the system and of the citizens of this country.

The report goes on to analyse whether the retrospective effect would infringe the European Convention of Human Rights. It found that would not be the case.

One respondent in the submission to the commission suggested the change proposed was not merely procedural because it would impose a potential liability to face criminal conviction and punishment on those immune from them. The commission commented:

We respectfully disagree. The crucial question in our view is whether the effect of the change in the law is to expose the defendant to greater liability than he or she might reasonably have expected at the time of the alleged offence, not some later time when the defendant had been acquitted of it. In our view the clear answer to that question is that it would not. The defendant's exposure is to have been convicted of murder, both at the time of the alleged offence and at the time of the retrial. On the other hand, we recognise that acquitted defendants will have organised their lives on the justified basis that they would not be troubled by criminal proceedings a second time. [This is an important point to which I referred.] This is a serious concern, the more so in the light of our revaluation of the importance of finality in criminal proceedings. Although in our view the arguments in favour of retrospective effect are compelling, we accept the force of this particular concern and we seek in our recommendations to provide some recognition of their force. Where the new evidence was already in the hands of the authority at the time when the new exception came into force, we would expect an application for a retrial to be made with all reasonable despatch or not at all. If, moreover, the court hearing the application thought it would be unjust to reopen the acquittal because the defendant had acted in reliance on the assumption that it could not be challenged, there is an argument which a defendant might wish to advance in order to persuade the court to refuse a retrial on the grounds that it would not be in the interests of justice, or thereafter at the retrial to seek to persuade the court to stay the proceedings as an abuse of process. We do not suggest that the date of an acquittal should be wholly disregarded but only that there should be no absolute bar on retrospective application of the exceptions.

It is, therefore, a policy choice for the Minister and the Government whether to allow for the prospective and retrospective application of the change in the procedural law to allow for a retrial in certain exceptional cases. While I agree with the principle of the Bill and the safeguards included in it, it is defective in not allowing for the possibility of retrospective application and allowing the courts to make the decision on whether an individual case involving an acquittal before the passing of this Bill came should be retried.

I commend the amendment to the Minister. I have set out the views of the pertinent authorities, including one of the foremost such authorities in this country, Mr. Gerard Hogan, SC, on why the retrospective effect of the abolition of the double jeopardy rule would not constitute an infringement of the Constitution, either Article 15.5 or Article 38.1 or any other. On that basis, I will press the amendment.