The latest paper from the Law Reform Commission discusses allowing prosecution appeals, writes Carol Coulter, Legal Affairs Correspondent
Every year there are one or two cases where a person accused of a serious crime is acquitted in circumstances which the public finds difficult to understand.
At the moment there is little the prosecution can do when this happens, either to clarify the law leading to the acquittal or to seek to have it overturned.
The issue might arise where the accused has pleaded provocation as a defence, even though the provoking behaviour did not seem, to many observers, to justify the crime.
Or the accused person's lawyers may have put forward a technical defence, like arguing that too much time had elapsed since the alleged crime for a fair trial to go ahead. This has happened in a number of sex abuse cases.
In Irish and international law an accused person has the right to appeal against conviction for a serious offence. However, the prosecution has much more limited rights of appeal, and these rights are more restricted in Ireland than in most common law jurisdictions.
In Ireland, the Director of Public Prosecutions can appeal against leniency of sentence. The right to appeal against the verdict is limited to cases where the judge directs the jury to acquit - when the DPP can appeal this direction on a point of law. Because there is no jury in the Special Criminal Court, this right is restricted to cases in the Circuit Criminal Court and the Central Criminal Court.
There are historical reasons for this apparent imbalance - the right of appeal is a constitutional right of citizens; in democratic countries it is considered important that the citizen be protected against the enormous power of the state; and there is a centuries-old tradition against "double jeopardy", which excludes trying a person twice for the same offence.
The Law Reform Commission argues that the present situation is unduly restrictive. A ruling may be made during a case on a point of law - for example, in relation to the admissibility of certain evidence - which will have a major impact on the outcome, but there can be no appeal against it.
Other issues can also arise in criminal cases which may need clarifying, like the definition of "the mental element" in murder; or whether to define "provocation" in accordance with how the accused perceived it or as a "reasonable person" would perceive it. Up to now these decisions have been made by judges, thereby establishing precedents but without being tested by appeal.
The DPP has also drawn another issue to the attention of the Law Reform Commission - the planned incorporation of the European Convention on Human Rights into Irish law. This will then be argued in Irish courts. He has argued that the interpretations given to the convention by judges in criminal trials should be testable on appeal.
These issues in themselves are unlikely to prove highly controversial. But there will be a lot of controversy over any suggested solutions. The biggest issue to be considered is whether any prosecution appeal will be "with prejudice" or "without prejudice".
With prejudice means a successful prosecution appeal could lead to a retrial, and therefore to the accused being tried twice for the same offence. This system exists in Canada, New Zealand and, in relation to technical grounds only, in the US. Defence lawyers are likely to object to such a change in Ireland as it would allow the prosecution "mend" its case, correcting deficiencies revealed first time around.
The prosecution would also have had a rehearsal of the defence case, and could prepare a second case to withstand it.
The alternative is a "without prejudice" prosecution right of appeal, which would clarify the law without overturning the verdict. This exists for serious cases in England and Wales, Scotland, Northern Ireland, France and most Australian states.The Law Reform Commission does not come down on one side or the other but puts all the arguments forward.