Accused Privilege

Photographs

Where a person is arrested by an  Garda Síochána under any power, he may be photographed as soon as may be after his arrest for the purpose of assisting identification in connection with any proceedings that may be instituted or an offence for which he is arrested.  The power may only be exercised on the authority of a member of ane Garda Síochána of Sergeant or higher rank.  If it is given orally, it must be confirmed in writing as soon as possible.

It is an offence to refuse to be permitted to be photographed pursuant to this power.  It is subject on summary conviction can fine not exceeding €3,000 or 6 months imprisonment.  This general power does not limit any other powers of photographing in other legislation.

Accused’s Character

The circumstances in which the accused “opens the door” to his character as an issue is referred to as loss of the shield.  There may be an element of balance and subjectivity in determining as what point the accused loses the shield.

If the defendant seeks to show that he is of good character when he is in fact of bad character, he gives a false view of the case and the prosecution are entitled to prove the contrary.

Where the defence calls witnesses as to the accused’s good character, they may only give evidence of his general reputation are standing.  They may not give their subjective opinion.

Once a person puts his character in issue, his whole past life and record are open to potential evidence on the part of the prosecution. The prosecution may offer evidence for the purpose of discrediting him rather than just to prove that he committed the specific offence.

Putting Character in Issue

If the accused attacks the character of the victim or other witnesses, his own character is opened as an issue. This covers the defence impugning the character of the prosecution’s witness or the victim.

The principle  extends to the defence casting imputations on the good character of witnesses or the victim. Imputation of the character of the witness does not arise merely from cross-examination.  There must be some specific imputation of lack of credibility or reliability.  This may arise where it is claimed the accused or witness themselves committed the crime.

In one sense, every trial involves imputation of somebody’s character.  This would not of itself impugn the character of the witness and cause loss of the shield.

Modern Restatement

The Criminal Procedure Act 2010 provided that where am accused wished to offer  evidence personally or by his advocate of a witness including that person that would involve imputations on the character of a prosecution witness or a victim of the offence  alleged to have been committed and who is either deceased or so incapacitated as to be unable to give evidence or evidence of the good character, the person may only do so, if he is or his advocate give at least seven days’ notice to the prosecution of his intention or has applied to Court citing the reasons why it is not possible to give notice and has been given leave.

The shield protection is lost  in the above circumstances, and the  person may be called as a witness and asked (and the prosecution may ask) other questions that which show that the person had been convicted of any other offence than the one of which he is charged or is of bad character or which show that the person in respect of whom the offence has been alleged to have been committed is of good character. The purpose of the notice is to allow the prosecution consider and the research the position.

If the accused testifies against a co-accused, he loses his shield. This applies where is the co-accused’s evidence is given in his examination in chief and not where it comes from cross-examination.

Accused’s Spouse

Historically, there were restrictions on the competence and compatibility of the accused’s spouse.  This was for the purpose of upholding privacy in marital communications.

The spouse is both competent and can be compelled on behalf of the defence.  This is unless he or she is jointly charged.  The spouse is treated as any other co-accused.

The spouse may testify on behalf of the defence or other co-accused. He or she may not be compelled to testify.  The spouse may not be compelled for the prosecution or generally for any other co-accused.

he accused spouse is competent to testify on behalf of a person charged with the accused.  However, the spouse is compellable only for the co-accused, only in one of the cases mentioned above (violent sexual offence against the spouse or children). testify for the accused.  The spouse is both competent and may be compelled unless jointly charged.  The prosecution may not make any comment on the failure of the accused spouse to give evidence.

Exceptions

A spouse may be compelled in relation to a violent offence against the spouse herself or against the child of the family or any person under 18. Criminal Evidence Act 1992 provides that in criminal proceedings, the spouse of the  accused shall be compellable to give evidence on behalf of the prosecution only in the case of

• an offence which includes a violence or a threat of violence to the spouse or a child of the spouse or of the accused or any person who as at the material time, aged under 18;
• a sexual offence alleged to have been committed in relation to a person referred to above or consists of attempting to or conspiring to commit or aid, abet, cancel, procure, or incite the commission of any of the above offences.

Co-Accused

The Criminal Evidence Act, provides that where persons being either a husband or wife or persons who were formerly husband and wife are charged in  the same proceedings, neither shall at the trial by virtue of the above be competent to give evidence at the instance of the prosecution or be compellable to give evidence unless the person concerned is not or is no longer liable to be convicted at the trial as a result of pleading guilty for any other reason.

The Criminal Evidence Act 1992 provides that the above provisions are not to affect the right of a spouse or former spouse in respect of marital privacy.  It is not clear how this  particular provision might be interpreted and applied.

Former Spouse

Former spouses are treated in the same way as spouses in relation to offences committed during marriage.  A former spouse includes a spouse who is the subject of a judicial separation or a divorce or separation agreement.

It appears that a spouse includes a former spouse where the relevant offence occurred while the parties were married.  Similarly, if the events took place before marriage, the spouse may be compelled, is competent and may be compelled even if the marriage takes place after the events.