Dermot Ahern (Louth, Fianna Fail)

The effect of the Senator's amendment is that a superintendent could make an application to a judge of the District Court for an arrest warrant under section 16 only where the DPP is contemplating the making of an application for a retrial order under sections 8 or 9. This would suggest to me that there is some confusion about the scope of section 16.

The arrest power in section 16 does not apply to section 9; it is confined to section 8. The references to "relevant offence" and "new and compelling evidence" in the section make clear that these concepts only arise in the case of section 8. As I outlined during the Committee Stage debate, its purpose is to allow the Garda Síochána to further investigate information that has come to its attention since the person's acquittal which is likely to reveal or confirm the existence of the new and compelling evidence. It goes without saying that an application by the DPP under section 8 to have an acquittal quashed and to have the person retried must be based on new evidence that has not been properly verified by gardaí to ensure its reliability and substance. The DPP cannot contemplate an application under section 8 until the existence of the new evidence has been established. Requiring the approval of the DPP before an application for the arrest warrant can be made under section 16 would be akin to putting the cart before the horse.

I accept that the arrest of a person in connection with an offence of which the person has already been acquitted must be seen as an exceptional event and must be subject to safeguards. That is why section 15 prohibits the use of many standard Garda investigative powers other than as provided for in sections 16, 17 and 18.

Sections 16 and 17 require judicial authorisation of the arrest of the acquitted person in connection with the offence of which the person has been acquitted. It must be emphasised that before issuing an arrest warrant, the judge must be satisfied on information on oath provided by a senior member of the Garda Síochána that the member has information regarding the relevant offence in respect of which the person was acquitted which has come to the attention of the Garda since the person's acquittal and which is likely to reveal or confirm the existence of new or compelling evidence on the person's suspected participation in the relevant offence for which his or her arrest is sought. The test requires the judge to have regard to the exact threshold that must be met to ground an application for a retrial on the basis of new and compelling evidence under section 8. I am satisfied that such independent oversight provides a strong safeguard against any misuse of power.

Finally, if the approach proposed by the amendment were to be included in section 16, a similar approach would have to be included in section 17. Section 17 deals with an acquitted person who is already in prison for an offence. As is the case with section 16, such a person may only be arrested in connection with his or her involvement in the offence for which he or she has been acquitted pursuant to a warrant issued by a District Court judge. Notwithstanding that the person is in prison, the same safeguards should apply. This would be the approach taken in the Bill as it stands.

Section 16 is an essential section. Without it we might never be able to bring an application under section 8 based on new and compelling evidence. Section 16, as drafted and when taken in conjunction with section 15, strikes the proper balance between respecting the status of the acquitted person and the need to investigate and verify new evidence. Therefore, I could not accept the amendment.