THE LEGAL rule of double jeopardy is to be curtailed in certain circumstances under new criminal law proposals announced yesterday by Minister for Justice Dermot Ahern.
Under the rule, which dates back to Norman times, no person should be put at risk of being tried twice for the same offence.
However, Mr Ahern said yesterday that the Criminal Procedure Bill, 2009, which will be published next spring, will introduce new exceptions to double jeopardy in the most serious cases.
The new legislation will give the Director of Public Prosecutions the power to apply for a retrial where there is new or newly discovered evidence or where evidence of trial tampering emerges.
In another departure, the Bill will also allow the DPP to bring appeals against directions by a trial judge that result in an acquittal. The new appeal mechanism will allow such acquittals to be overturned.
The exceptions allowing cases to be reopened and retried will apply only to indictable cases. Where new evidence emerges, a retrial will only be allowed for offences that carry a life sentence.
In addition, the acquitted person must be put on notice that an application for a retrial is being made unless there is a danger of flight.
The DPP must also make the application to the Court of Criminal Appeal.
Mr Ahern yesterday said that the new legislation was partly based on some of the major recommendations of the Balance in the Criminal Law Review Group, chaired by TCD law lecturer and barrister, Dr Gerard Hogan SC.
He said that another of its key recommendations relating to victim impact statements would also be included in the Bill. This would give family members of victims a statutory right to make a statement in homicide cases or where the victim is incapacitated as a result of the crime. The right will extend to family members of child victims or of victims who have a mental disorder.
Other significant new provisions include reforms of the law on character evidence. Specifically, the prosecution will be able to respond during the trial to any vexatious imputation made against the character of deceased persons or parties who are incapacitated.
The Bill also proposes to allow the prosecution to introduce evidence of the accused's previous character where the accused has introduced evidence as to his or her own character.
There will also be a new obligation on the defence to disclose to the prosecution any expert evidence it plans to introduce.
Mr Ahern said yesterday that the new measures would help maintain confidence in the criminal justice system at a time of change in society.
"I am very aware of the need to respect long established principles, such as the presumption of innocence and the right to a fair trial. However, confidence will be eroded if we do not respond to changes in society, in technology, and to new patterns of crime," said Mr Ahern.
The group chaired by Dr Hogan was set up in November 2006 to examine if the balance struck between the interests of victims and those of the accused was appropriate.
Membership included officials from the Department of Justice; the offices of the Attorney General and DPP, academics and a member of the Commission for the Support of Victims. It submitted its final report in March 2007.
Some of its earlier recommendations, including curtailment of the right to silence, were included in the Criminal Justice Act, 2007.
Since transferring to justice, Mr Ahern has also started a "justice for victims initiative" and has established a "Victims of Crime Office" in his department.
