Dermot Ahern (Louth, Fianna Fail)

I thank Senators for raising this issue. Senator Bacik set out the factual position in a frank and honest manner. As a politician, I might like to move in the direction proposed by the Fine Gael Senators.

I do not agree with Senator Regan's assertion that this is a policy issue. I have to proceed on the basis of the legal advice given to me by the Attorney General, who is the Government's legal adviser, rather than the advice of barristers like Mr. Gerard Hogan SC, for whom I have good respect. The Senator referred to a number of cases I raised. He said they are not relevant. I do not accept that. The principles enunciated in those cases are very relevant. They go to the very core of what we are about.

Senator Regan also undertook some research on the views in the UK in this regard. It is true that the UK uses a procedural justification for this. While our system is similar to the UK system in many cases, it diverges from it in the sense that we have a written Constitution. Article 38.1 of the Constitution states that: "No person shall be tried on any criminal charge save in due course of law." The phrase "in due course of law" means, in effect, the law subsisting at the actual time when a person was convicted or charged or when the offence was caused. It is quite clear that the applicable law at the time of the trial does not allow for the reopening of an acquittal in any circumstances. Therefore, a new trial on the basis of a law that was not in existence at the time of the first trial is more than likely to be regarded as not being a trial in due course of law.

While one's heart may say one thing, and we all have sympathy for individuals in certain high-profile cases, of which Senators on the other side of the House are aware, one cannot make law on that basis. One has to use one's head to make laws that are based on the solid legal advice available to us. It is clear to me, on the basis of the advice I have received from the Attorney General, that we must have regard to the constitutional phrase "in due course of law".

If I were to accept this amendment, there would be a clear danger of this legislation being referred to the Supreme Court for adjudication under Article 26 of the Constitution. If it were to be knocked down in such circumstances, as Members on this side of the House and on the Labour Party benches believe it would be, the entire Criminal Procedure Bill 2009 that is being proposed by the Government, and for which I take credit, would be lost.

Senator Bradford responded to the comments I made yesterday. He exhorted me to make a name for myself in this regard by making these provisions retrospective. As much as I would like to do that, I have to proceed on the basis of what is possible and will stick. All the advice available to me, in addition to my own knowledge of the criminal law, suggests that one cannot try again to convict somebody, after he or she has been acquitted, on the basis of a law that was not in existence on the relevant occasion.

I do not accept Senator Regan's suggestion that this is a procedural matter. That is the UK argument. This goes to the core of the status of a person who has received an acquittal. The Constitution provides for fundamental rights of due process. It is wrong to suggest that this is merely a procedural matter. It is a question of an individual's innocence or guilt, freedom or detention.