Michael McDowell (Independent) | Oireachtas source

I do not follow this at all. Amendment No. 5a was to make sure that the Court of Appeal can "allow, quash or vary the order under appeal." It is not predetermined by any previous decision. It is to allow the Court of Appeal to vary an order. This is hugely important. At the moment there is a binary provision in the Act that it either allows the appeal or quashes the order under appeal.It may well be the case that the Court of Appeal will find itself in a situation where it determines that a confession or evidence has been, say, wrongly admitted as to half of it but rightly admitted as to the other half. If we leave this section as it is, without the right to vary the order, there will then be an unfortunate circumstance whereby the Court of Appeal will state that there is some evidence which satisfies the test and should be allowed in but some other evidence should not have been allowed in. All I am trying to do is to put in the word "vary" to allow the Court of Appeal to vary the order rather than simply allow or reject it. I do not think the previous decisions on my amendments or Senator Ward's amendments affect that point at all. Of all the things I am saying here today, I would ask the Minister of State especially to carefully consider whether it is appropriate to leave section 7(10) exactly as it is. It states: "On an appeal referred to in this section the Supreme Court or the Court of Appeal, as the case may be, may affirm or quash the order under appeal." It is not given power to vary the order. I can imagine a case in which a ruling will be made that, for example, a statement is admissible and the court finds that three quarters of the statement was admissible and should have been admitted but one quarter should not have been. It is wrong to prevent the Court of Appeal or the Supreme Court from varying an order and requiring them to make a binary choice to the effect that a piece of evidence is right in its entirety or it is wrong in its entirety. I ask the Minister of State to consider carefully whether the right of the appellate court, whichever it is, to vary the order where it considers it appropriate should be added to the legislation.