Dermot Ahern (Louth, Fianna Fail)

It would be a complete trespass on the judicial domain. At present, people who are accused of crimes but acquitted in due course of law are entitled to the irrebuttable presumption of innocence. Under the existing law, a judgment of acquittal means, in effect, that a person who is acquitted cannot be prosecuted again in any circumstances. If we assume that were permitted under the Constitution, however, and if this Bill were to operate retrospectively, the effect of a decision to acquit would be altered. This would represent a gross interference by the Oireachtas and the Executive in the role of the Judiciary.

Legislation like the Bill before the House that allows for cases of acquittal to be reopened in exceptional circumstances would not involve the setting aside of a specific judgment, it would involve altering the status of that judgment. The effect of such a law would be to reduce for everyone who has already been acquitted the value of that acquittal. The new legislation would make it possible for each of those people to have his or her conviction reopened. In such circumstances, an acquittal could not ever be said to represent finality. I am advised that the constitutional value of finality of acquittals can be altered by statute, but only in ways which are consistent with that value. Any such statutory change must respect cases which are already closed. The approach adopted in the Bill is line with that requirement.

Apart from the fundamental objection to retrospection, there is also a strong argument that to change the status of an acquittal retrospectively and provide the possibility of interference with the verdict of a court, where that possibility does not exist at the time of the person's trial, would infringe Article 38.1 of the Constitution which states a person has a right not to be tried on any criminal charge save in accordance with law. The applicable law at the time of the trial would not have allowed for the reopening of an acquittal in any circumstances, and therefore a new trial on the basis of a law which was not in existence at the time of the first trial is likely to be regarded as being other than a trial in due course of law.

It is not correct to say that I am deliberately adopting a cautious approach or that I am reluctant to test the limits of the Constitution. If I wanted to accept this amendment, it would more than likely be challenged by the lawyers of affected people. As this measure breaks the rule concerning the separation of powers it is, in effect, the Legislature interfering in already decided cases. It would be referred to the Supreme Court under Article 26 of the Constitution and would fall. It would, in effect, do away with the view of the Oireachtas, namely, that we should allow, in very limited circumstances, a change in the rule against double jeopardy.

I do not accept Senator Regan's comments on the cases I quoted earlier. The issue of retrospective reopening of cases was examined by Mr.Justice Lynch in Howard and Others v. Commissioners for Public Works in 1994 where he stated:

The Oireachtas cannot alter or reverse that finding or the declaration and injunction made on foot of same. To attempt to do so would contravene the constitutional separation of powers in that the Oireachtas would be trespassing on and into the judicial domain.

It is a very pertinent judgment.

The issue of the presumption of innocence was referred to by Mr. Justice Henchy in People v. O'Shea and quoted by Mr. Justice Hardiman in DPP v. Independent Newspapers. Under the existing law the effect of a judgment of acquittal is that a person so acquitted can never be re-prosecuted in any circumstances. Were the proposed law to alter that position by operating retrospectively, the effect of the judicial determination would be altered. The Oireachtas cannot change cases which are already decided by the Judiciary in our courts under our Constitution.

The principle of Buckley v. Attorney General from 1950, also known as the Sinn Féin funds case, was referred to by Mr. Justice Keane in the Supreme Court decision in Pine Valley Developments v. Minister for the Environment. He said, "While there would clearly be no constitutional objection to the Oireachtas altering the general law, setting aside a adjudication by competent court was another matter". It is a very clear decision in that respect.

In the case of DPP v. Quilligan in 1986 the Supreme Court allowed an appeal from a directed acquittal in the Central Criminal Court. A question then arose as to whether the Supreme Court, in such circumstances, has the power to order a retrial. The majority of the court ruled that no order should be made in that instance. However, two judges of the majority, Mr. Justice Henchy and Mr. Justice Griffin, went further and ruled the court had no jurisdiction to make such an order. They said the rule of autrefois acquit means that if an accused duly and successfully raised the plea that he or she had already been tried in a court of competent jurisdiction acting within that jurisdiction for the offence now charged, and he or she was acquitted of that charge in that court, a second trial for that offence may not take place. They went on to say that this rule, which is sometimes referred to as the rule against double jeopardy, is but an aspect of the canon of fundamental fairness of legal procedures inherent in our Constitution.

In the case of D.S. v. Judges of the Circuit Court and the DPP, the Supreme Court upheld the decision of a High Court judge prohibiting a third trial of a person for the same offence where in two previous trials a jury had disagreed. While the facts of this case are different from the issue under consideration here, it is difficult to believe that the Supreme Court would decide that it was fair potentially to undermine retrospectively the status of acquittals obtained prior to the coming into force of the Act.

The arguments which have been made regarding the situation in the United Kingdom have been examined by the Attorney General but there is a fundamental difference between treating this a mere procedure and treating it as we are required to under our Constitution where Article 38.1 refers to "in due course of law". Any change would affect the status of the judicial decision which was originally made and it would be inherently unfair to and against the principle of the right to a fair trial of a person who must be treated in accordance with the law pertaining at the time of the offence. He or she should not be affected by some legislative changing of the goalposts by a subsequent Act of the Oireachtas.

As much as we would like fairness and justice and while many heart-rending cases have been portrayed and postulated, we have to determine what the position should be under our Constitution. People ask why we do not take a chance and pass the Bill. Senator Regan stated there is a presumption of constitutionality. If there is, why are hordes of lawyers in the Four Courts on a regular basis trying to pick holes in the legislation the Oireachtas has passed? We must guard the Bill against any challenge.

There cannot be any possible chink in the armour of retrospection in regard to criminal law. In effect, the amendment asks the Oireachtas to change the goalposts. It is a time-honoured principle of criminal law that people can only be convicted on the basis of the law pertaining at the particular time the offence was committed and not on the basis of subsequent law passed. Such a view drives a coach and four through all precedence, our Constitution and all the human rights of a person who may or may not have been acquitted or convicted.

Despite what the heart might say on this issue, I did not make this decision lightly. We examined it very carefully in conjunction with the Department and the Attorney General. We returned to the Attorney General on a number of occasions on this issue and the advice has always been that we cannot introduce such a provision in terms of criminal law in a retrospective way. It must be done in a prospective manner.