Criminal Procedure Bill 2009
Ahern Publishes Major Reform Legislation
The Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern T.D., today published a major new Bill that reforms the law on victim impact statements and that ends the ban on retrying people who have been acquitted even where important new evidence emerges later about their involvement in the offence.
The Criminal Procedure Bill 2009 reforms significantly the victim impact statement but also deals with the issue of double jeopardy.
According to Mr Ahern, one of the key elements in the new Bill is the possibility that, in future, a person who has been acquitted may be tried again. "This will be welcomed by most people, especially by the victims, who feel affronted and scandalised by the knowledge that guilty persons were not being convicted for their crimes."
"The possibility of retrials will arise in three situations. They are when new evidence emerges, where the original trial was ‘tainted’ by perjury or intimidation or where the trial judge gave a mistaken ruling on a point of law and this leads to an acquittal."
Turning to victim statements, the Minister said: "I am pleased to have been able to accede to calls from many organisations representing victims of crime to have the present system updated. These reforms are directed in particular at improving the position of the families of victims. At present only living victims have an entitlement to make a statement. I know many Judges permit family members to make a statement in cases where the victim is not able to do so. But my belief is these families are themselves entitled to be regarded as victims and to have an entitlement to make a statement in the same way as another victim."
"I am using this opportunity to provide that parents or guardians could speak on behalf of a child who was a victim or a person who suffers from a mental disorder. This Bill will also enable vulnerable victims to deliver their statement by television link.
"I recognise that victims must not feel pressured into making statements if they felt unable or unwilling to do so. This Bill makes it clear therefore that no inference can to be drawn that would suggest the offence had no impact when a victim does not make a statement."
Mr Ahern said he was acutely aware of the need to uphold the basic principles of the criminal justice system, principles such as innocent until proven guilty, right to a fair trial in courts that are independent and the right to full legal representation. He is satisfied the new Bill will not interfere with those principles. He said that, on the contrary, he believed the new legislation will close an intolerable gap in our system.
25 May 2009
Note for Editors
1. Criminal Procedure Bill 2009
The Criminal Procedure Bill 2009 is available on the Oireachtas website (www.oireachtas.ie). The Bill is part of the package of measures which comprise the "Justice for Victims Initiative" announced by the Minister in June 2008. The Bill is divided into four parts, as follows -
Part I – Preliminary and General
These are standard provision setting out the Bill’s short title, the commencement arrangements as well as definitions and standard provisions on expenses.
Part 2 – Impact of Crime on Victim
This Part reforms the present law regarding victim impact statements along the lines recommended by the Balance in the Criminal Law Review Group. It expands the range of persons who may make a victim impact statement to the court. In particular it ensures that family members of victims who are deceased or incapacitated as a result of the crime are entitled to make a victim impact statement, as well as in cases where the victim is a child or is suffering from a mental disorder.
Provision is also made to allow a child or person suffering with a mental disorder or other vulnerable victim to make a victim impact statement to the court through a television link. Where the person is to be questioned on their victim impact statement, the court may appoint an intermediary.
It is being made clear that in the event of no statement being made, no inference is to be drawn that would suggest there was little or no impact on the victim. This will relieve the pressure to make a statement where it would be difficult or traumatic to do so.
Part 2 also provides for the court, in the interests of justice, to prohibit the broadcast or publication of either all or part of the victim impact statement. Breach of such an order is an offence punishable by a maximum fine of €5000 and/or up to 12 months imprisonment on summary conviction or by a maximum fine of €50000 and/or up to 3 years imprisonment following conviction on indictment.
Part 3– Exceptions to the Rule against Double jeopardy
This Part implements the recommendations of the Report of the Balance in the Criminal Law Review Group concerning the circumstances in which cases may be re-tried following an acquittal. It is being proposed that the DPP may apply to the Court of Criminal Appeal for a re-trial where there is "new and compelling evidence" which emerges post acquittal or where the acquitted person or another person has been convicted of an offence against the administration of justice (e.g. perjury, intimidation of witnesses or jurors) and it is probable that the result of the original trial was influenced by that offence.
The proposals represent limited exceptions to the rule against double jeopardy. That rule states that where a trial process has concluded, a person should not be put at risk of being punished again for the same offence.
Part 4 – Appeals and matters relating to appeals
This Part extends the appeal options available to the DPP. The new provisions of this Part relate to "with prejudice" prosecution appeals, i.e. appeals that can result in the earlier acquittal being overturned. There is already a ‘without prejudice’ system of appeals (under Section 34 of the Criminal Procedure Act 1967 as amended) which allows for clarifications on points on law but it does not have any implications for the acquittal that gave rise to the appeal.
The new ‘with prejudice’ appeal is to the Supreme Court and may be undertaken against erroneous rulings by a trial judge (e.g. on the admissibility or exclusion of certain evidence) which give rise to a jury acquittal or a judge directed acquittal. A jury verdict on the merits of the case when all the admissible evidence was tendered is not subject to appeal under this part.
Safeguards in Parts 3 and 4
The procedures for reopening and re-trial of cases mentioned in Parts 3 and 4 above are accompanied by several safeguards, including
(i) The procedure applies only to cases tried on indictment (but in cases where new evidence emerges, the possibility of seeking a re-trial applies only if the offence in question is one that carries a mandatory or potential maximum life sentence).
(ii) The person may not be re-tried except where either the Court of Criminal Appeal or the Supreme Court makes an order to that effect.
(iii) The DPP must make an application to the Court of Criminal Appeal (or the Supreme Court in the case of ‘with prejudice’ appeals) and may do so only once in respect of any acquittal.
(iv) Where ‘new and compelling’ evidence is the basis for the application for a re-trial, the evidence must be reliable, substantial and implicate the person concerned with a high degree of probability in the commission of the offence concerned.
(v) In cases where new evidence is the basis for the application to re-try the acquitted person, the Gardaí may, in the course of the investigation into the new evidence, wish to exercise certain powers in respect of the acquitted person (for example, taking samples, carrying out searches). It will be necessary for the Gardaí to get prior authorisation from a judge of the District Court for the use of these powers in the case of a previously acquitted person, i.e. existing search and arrest powers may not be used in these cases.
(vi) The application is to be on notice to the person whom it is proposed to re-try.
(vii) The court may, where it is satisfied that publicity about an application or its order may hinder or prejudice a re-trial or in the interests of justice generally, make an order prohibiting or restricting publication of details about a case.
(viii) The person whom it is proposed to re-try has access to legal aid.
(ix) The re-trial provisions are not retrospective and will only apply where the person had been charged and acquitted following the enactment of this legislation.
2. Justice for Victims Initiative
The Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern T.D. announced, in June 2008, a major new initiative for victims of crime entitled the Justice for Victims Initiative. It has legislative and administrative elements. Today’s announcement represents a major step in the legislative side of the initiative.
The administrative elements include:
• The establishment in September 2008 of a new Executive Office of the Department of Justice, Equality and Law Reform, known as the Victims of Crime Office. Its function is to support crime victims, focusing on the co-ordination of delivery of services.
• Also in September, Commission for the Support of Victims of Crime was reconstituted. Its role is to distribute funding to groups working with crime victims, as well as providing general oversight of services and promoting awareness.
• A Consultative Forum has been established. It will liaise with the commission and will provide a forum where the views of victims and their representatives can be articulated. The first meeting took place in January 2009.
3. Balance in Criminal Law Review Group
The Balance in the Criminal Law Review Group was established in November 2006 under the Chairmanship of Dr Gerard Hogan S.C. to examine whether the balance struck in the criminal law between the interests of the community and the victim on the one hand and the accused on the other is appropriate. The membership included officials from the Department of Justice, Equality and Law Reform and the Offices of the Attorney General and the DPP, academics and a member of the Commission for the Support of Victims.
In formulating its views the Group met with and received submissions from numerous parties including victims’ groups. The Group submitted its final report to the Minister in March 2007.
A number of the recommendations in the Report have already been implemented by means of the Criminal Justice Act 2007, in particular the recommendations concerning the right to silence.
The Report is available on the Department’s website at www.justice.ie