Criminal Procedure

Confronting Witnesses

Modern legislation has allowed for evidence to be given by way of TV links in cases of sexual offences and those involving threats of violence, where the witness is a minor or where otherwise allowed. The Supreme Court has rejected the view that this deprives the accused of the constitutional right to confront witnesses face-to-face.

There is a right to cross-examine and challenge evidence but the State was permitted to place limitations in cases where there are good grounds for so doing, such as in the case of minors, underage witnesses and other cases.

As applies generally to due process, there is a right to challenge the witnesses of the prosecution, by way of cross-examination. There is a right to know the evidence in advance. This is subject to the general proper of conduct of the trial by the judge who may use discretion not to permit questions where there are good grounds, such as grounds of relevance and undue prejudice.

The hearsay evidence rule has been largely abrogated in the United Kingdom. There are limited exceptions to Ireland, in criminal cases in Ireland which permit certain documents and statements, to be allowed as evidence of the truth of their content subject to protections. The courts do not seem to indicate that there are constitutional barriers to the Oireachtas expanding the scope of admissible hearsay evidence.

Presumptions and Certificates

The use of presumptions and certificates in criminal proceedings has been held to be consistent with the guarantee of trial and due process of law, at least where the certificates and presumptions are procedural and go to the burden of proof only.

There are a number of instances in Offences against the State and in anti-gangland criminal legislation allowing conviction of persons on basis of opinion evidence of senior Gardai officer. The Supreme Court has taken the view that convictions on the basis of such opinions evidence do not render the trial unfair, at least provided that there is other evidence in support of the charge.

The Supreme Court found unconstitutional provisions in the Road Traffic Act, which provided that a certificate of the Medical Bureau was conclusive evidence of the alcohol concentration in blood. This purported to deprive the accused of his right to challenge the facts alleged against him and was held to be unconstitutional.

In contrast, where statutes made particular designations, this may simply define the offence concerned. Accordingly, a certificate might deem a substance to be an explosive. Equally a designation by ministerial order of a substance as an explosive made it so, as a matter of law, within that meaning of the section rather than deeming of a person to be guilty in the circumstances. The deeming of a thing to be an explosive simply defines the offence.

Opinion and Informer Evidence

The Offences against the State Act permitted opinion evidence in relation to membership of prescribed organisations. The basis of the opinion was itself protected, under the common law informer’s privilege. Courts have held, the assertion of the privilege to be consistent with the constitutional rights of the accused.

At common law, there is a so-called innocence at stake exception to the informer’s privilege, which allows for disclosure of the identity of the informant, where it is necessarily required to establish the accused’s innocence. In this case, the evidence should be given to the trial judge, to determine that it is appropriate in the circumstances that the privilege should be overridden for the reasons that it establishes innocence.

In a case in which it was proposed that evidence be released to be the accused’s legal representatives but not the accused, the  Supreme Court rejected this approach on the basis that the lawyer could not take appropriate instructions and that it tended to undermine the lawyer-client relationship.

Evidence Gathered in Breach of Constitutional Rights

Where evidence is obtained in breach of constitutional rights, it must be excluded in the absence of exceptional circumstances. This is in contrast to the position in respect of evidence that is procured merely illegally or in breach of the judge’s rule.

At common law, there was no jurisdiction to exclude evidence on the basis of the manner in which it was obtained. Confessions must be voluntary. A confession made to Gardai or other people in authority is not admitted as evidence unless it is proved beyond doubt to be voluntarily made.

Even where voluntarily made, the trial judge has the discretion to exclude it where it is made otherwise than in accordance with the judge’s rules. It must be excluded where it is obtained as a result of a conscious and deliberate violation of the accused’s constitutional right.

In 1990, the Supreme Court held in People (DPP) v Kenny, where a warrant was obtained but was unknown to Gardai to be irregular, it was held that evidence must be excluded if it was obtained in breach of one or more constitutional rights of the accused. The breach must have been deliberate and conscious.

In deciding whether the breach was deliberate and conscious, the test was whether the act complained of was deliberate and conscious, and it was immaterial whether the actor knew that what he was doing was in breach of the constitutional rights. Even if the breach was deliberate and conscious, a court may still admit it if there are extraordinary excusing circumstances. This approach was revised in 2015.

Sentences

Determining the sentence is a judicial function. Where State bodies such as Revenue Commissioners were entitled to determine sanctions, it was held to contravene the separation of powers. Determining the sanction and selecting the sentence is a judicial function. However, the Constitution specifically allows commutation to be undertaken and remission to be undertaken by the executive.

It has been accepted by the courts that a mandatory sentence may be permissible for certain offences. Murder carries life imprisonment as a mandatory sentence. The Supreme Court upheld mandatory life sentences for murder.

Appeal

At common law, an acquittal could not be appealed or impeached. There is now a statutory provision to appeal unduly lenient sentences. A question of law may be referred to the Supreme Court, but without prejudice to the verdict.

The constitutional provisions, whereby all decisions of the High Court could be appealed to the Supreme Court, was held to allow the appeal of an acquittal from the Central Criminal Court (the High Court to the Supreme Court). Two judges strongly disagreed, based on the clear words of the Constitution.