Dermot Ahern (Louth, Fianna Fail)

Amendments Nos. 5, 10 and 12 relate to the tainted acquittal re-trial procedure in section 9. The tainted acquittal re-trial procedure is one of three re-trial procedures in the Bill, the other two being the new evidence re-trial procedure in section 8 and the with-prejudice prosecution appeals avenue in section 23.

This set of amendments raises the threshold that must be met before the Director of Public Prosecutions may make an application to the Court of Criminal Appeal for a re-trial and by that court before granting the Director of Public Prosecution's application. The amendments are intended to ensure an acquitted person is put through the ordeal of a re-trial only where there is a real prospect of a conviction, that is, where there is sufficient evidence on which a jury may convict. Later amendments address in similar fashion the thresholds applying to new evidence appeals and with-prejudice prosecution appeals.

Amendment No. 10 substitutes the balance of probability standard contained in section 9(3)(a) by a requirement that there be compelling evidence against the acquitted person before the Director of Public Prosecutions may make an application for a re-trial order. The requirement that the application be in the public interest has been retained.

Amendment No. 12 follows from amendment 10 and substitutes the balance of probability standard in section 10(2)(a) by a requirement that the court must be satisfied that there is compelling evidence against the acquitted person. The requirement that the granting of the Director of Public Prosecution's application is in the interests of justice has been retained.

Amendment No. 5 inserts a definition of "compelling evidence" in section 7 which contains the definitions for this Part. The definition has three elements. The evidence must be reliable, of significant probative value, that is, of high evidential value and is such that a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned. I want to highlight two points about this definition. It has been formulated to incorporate the criminal standard of proof in order, as I said, to ensure the Director of Public Prosecutions makes a re-trial application and the court quashes the acquittal and orders the re-trial only where there is a real prospect of a conviction. Given that this re-trial procedure and the other re-trial procedures in the Bill represent a radical departure from long-standing legal principles, it is desirable to provide explicit guidance for the Director of Public Prosecutions and the courts in this regard.

Senators will also note the definition refers to a hypothetical future jury. It does not require the Director of Public Prosecutions or the court to look behind the verdict of the original jury to determine the reasons for the verdict to acquit and the extent to which the taint might have affected their deliberations. I am advised that if they were required to do so, they would run the risk of infringing the constitutional right to a jury trial. As Senators will appreciate, the secrecy of jury deliberations is firmly established in law. Any suggestion it is possible to look behind a jury decision to see the reasons on which it was grounded could be viewed as undermining our system of jury trial. In the light of this, the formulation in the definition focuses on a prospective jury.