Ciarán Cuffe (Dún Laoghaire, Green Party)
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Question 159: To ask the Tánaiste and Minister for Justice, Equality and Law Reform if he has given consideration to making changes to the legislation governing the double jeopardy rule, known in law as [i]autrefois acquit[/i], in view of recent legislative changes in the UK which have relaxed the double jeopardy rule for up to 30 offences which attract a life sentence, including manslaughter, kidnapping, rape, armed robbery and a number of serious drugs crimes; and if he will make a statement on the matter. [30713/06]

Michael McDowell (Dublin South East, Progressive Democrats)
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Irish law relating to prosecution appeals has been the subject of scrutiny in recent times. As the Deputy may be aware, in this jurisdiction there exists only a limited prosecution right of appeal against an acquittal. This situation has its origins in the common law rule against double jeopardy, i.e. that no-one should be tried twice for the same offence. The existence of this rule does not, however, prohibit the introduction of statutory provisions allowing for a prosecution right of appeal against acquittal. For example, a prosecution right of appeal in relation to cases tried on indictment is contained in section 34 of the Criminal Procedure Act, 1967, as amended by section 21 of the Criminal Justice Act 2006. This section provides for a prosecution right of appeal on a point of law which arose during the trial of an acquitted person. This right of appeal is without prejudice i.e. it cannot interfere with the decision to acquit the accused.

As the Deputy points out the United Kingdom has introduced legislative provisions, contained in the Criminal Justice Act 2003, which provide for an exception to the double jeopardy rule for certain serious offences. A prosecutor in that jurisdiction is empowered, subject to the written consent of the DPP in that jurisdiction, to apply to the Court of Appeal for an order quashing a person's acquittal and ordering a re-trial. The DPP may only consent to the making of the application if certain conditions are met, including that there is new and compelling evidence and that it is in the public interest.

I mentioned earlier that the system of prosecution appeals in this jurisdiction has been under examination. In May 2002 the Law Reform Commission issued a Consultation Paper on the subject of prosecution appeals. The Commission stated in that paper that it is strongly of the view that Irish law should move from a near token system of prosecution appeals to one in which prosecution appeals would represent a real and substantial element in the criminal process. It further sets out five possible options for reform ranging from a narrow without prejudice model to a comprehensive with prejudice model. It is expected that the Commission will publish a final report detailing its recommendations later this year.

Having regard to the ongoing work of the Commission I have taken the opportunity to bring to the attention of the Commission the question of allowing for an appeal mechanism whereby an acquittal may be set aside and a person retried. I should point out that the introduction of such a provision in this jurisdiction would constitute a fundamental change and requires careful consideration. I would therefore propose to await the views of the Law Reform Commission before bringing forward any legislative proposals on the matter.