The Director of Public Prosecutions has called for a change in the law to allow him to appeal against judges' decisions that lead to acquittals in criminal trials.
Mr James Hamilton was speaking at the second prosecutors' conference in Dublin at the weekend, organised by his office. It was attended by more than 200 delegates, including solicitors and barristers involved in prosecutions, members of the judiciary, the Garda and other State agencies.
He stressed he did not want the right to appeal against jury acquittals: "It is right that their decision should be final."
However, there were instances where an acquittal resulted from a decision of the trial judge, for example where he/she decided that evidence vital to the prosecution should be excluded, or where he gave a mistaken direction to the jury while charging them. There was no provision for the prosecution to appeal against such points of law, which were then there as precedents in future cases. Yet the defence had a full right of appeal on any question of law.
When the Convention on Human Rights was incorporated a variety of legal issues would be raised in criminal trials. It would be wrong for these to be interpreted without any opportunity for consideration by an appeal court, he said.
Contrary to certain assumptions, "the prosecutor must be a human rights defender too", said Mr Hamilton, a point also made by Prof Egbert Myjer of Amsterdam University and chief advocate-general at the Amsterdam Court of Appeal. He said that when he was appointed to the university position a newspaper headline announced "Chief Prosecutor become Human Rights Professor" - "in the category `man bites dog' and `granny and grand-daughter simultaneously pregnant'."
However, the prosecutor's task in defending human rights was more complex than that of the defence, who must only pursue the interests of the client, Mr Hamilton said. The prosecutor had to respect and defend the right of a defendant to a fair trial, but must also defend the right of a victim to see justice done and the rights of the citizens as a whole to the effective protection of criminal law.
"We should not lose sight of the fact that human rights can be abused not only by states and by governments but also by private individuals and by private organisations which engage in criminal activities," he said.
Mr Patrick Dillon-Malone, a barrister, told the conference that the Convention on Human Rights, when incorporated, would have an impact on pre-trial activity like surveillance, phone-tapping and encryption, which would need to be heavily regulated.
Ms Una Ni Raifeartaigh, a barrister, said that the convention would also have an impact on some areas where Irish law was out of date. Referring to the media reporting of cases, she said that the European Court had come to an opposite decision to that of Miss Justice Carroll in the Catherine Nevin case, when photographs of the accused were banned.