Dermot Ahern (Louth, Fianna Fail)

The appeal to the Supreme Court provided for in section 14 is intended to be available to both parties, the acquitted person and the Director of Public Prosecutions. In the case of the acquitted person, he or she may wish to appeal in the event of a retrial order being made by the court under section 10. In the case of the DPP, he may wish to appeal in the event that the court refuses to make a retrial order.

The appeal is not a full appeal. It is confined to certified points of law of exceptional public importance in which there is a public interest in taking the appeal to the Supreme Court. This is the same filter that applies in the case of appeals from the Court of Criminal Appeal to the Supreme Court under section 29 of the Criminal Justice Act 1924. Such a filter is necessary, otherwise our final court of appeal would be overwhelmed with cases, many of which may be lacking in merit.

Senator Bacik's amendment concerns who may issue the required certification. Her amendment seeks to remove the possibility of the DPP or the Attorney General certifying a point of law with the result that the court alone would be eligible to certify. I understand that this proposal is motivated by the desire to rectify the apparent lop-sided nature of the section in this regard but, in fact, the provision is not lop-sided. The acquitted person can call on any of the named parties, the court, the DPP or the Attorney General, to issue the necessary certificate. Equally, in the event that the DPP wishes to appeal, he may certify a point himself or call on the court or the Attorney General. Removing the references to the DPP and the Attorney General would have the effect of narrowing the options available, not only to the DPP but also to the acquitted person.

I acknowledge that the section does provide an inequality of position in that the DPP, as a party to the proceedings, can certify the appeal himself while the acquitted person cannot, but that inequality comes from the different role of the DPP and is not unconstitutional discrimination or an inequality of arms. The DPP, aside from having an interest in the particular case, has an interest in ensuring the law is clarified for future cases. It is to be presumed the DPP will exercise his discretion appropriately. Equally, it can be presumed that the Attorney General, who is a constitutional officer, would exercise his discretion appropriately as well.

It must be recognised that the DPP and the Attorney General, as public officeholders, have a specific role to play in safeguarding the public interest. Permitting the court alone to certify could potentially restrict consideration of what is a desirable point, and that is in the public interest a key element of the basis on which an appeal may be taken to the Supreme Court. Having looked at it, we decided that the proposed amendment would be a negative for the acquitted person and would be against safeguarding the public interest.