Dermot Ahern (Louth, Fianna Fail)

This set of amendments concerns the scope of the new evidence retrial procedure in section 8 and the tainted acquittal retrial procedure in section 9. The amendments will allow persons charged and sent forward for trial before commencement but tried and acquitted after commencement to be the subject of a retrial application. Only the trial and the acquittal must follow the commencement of this legislation.

Senators will recall that we debated at length the possibility of applying these procedures to historical cases, namely, to persons acquitted before the commencement of these provisions. While calls for these procedures to apply retrospectively are understandable, the strength of the advice against doing so was such that I could not accede to them. To legislate to allow historical acquittals to be re-opened would amount to a breach of the doctrine of the separation of powers which is fundamental to our Constitution. While it is true that such legislation would not alter a particular court judgment, it would have the effect of altering the status of all acquitted persons who are under our law as it stands entitled to an irrebuttable presumption of innocence. There is also a strong possibility that if we were to allow cases that have been finally disposed of by our courts to be re-opened we would be breaching the constitutional right to a trial in due course of law. Given the limited possibilities for extending the scope of the provisions, the inclusion of those awaiting trial at the time of commencement is as far as we can go if we are to stay within the boundaries set by our Constitution.