Disclosure

Disclosure in the District Court

In the case of a summary offence of a serious nature or an indictable offence being charged summarily, the defendant may be entitled to disclosure of the prosecution evidence.  This is the case, notwithstanding that the District Court Rules do not provide formally for the disclosure of evidence.  This is a marked contrast to the position in respect of a charge on indictment where all relevant evidence must be furnished to the accused as of course.

The disclosure of prosecution evidence should be sought in advance of the hearing. If it is refused, an application may be made to the court prior to the hearing or at the hearing for disclosure and adjournment.

Disclosure is required where required as a matter of fair procedures under the Constitution.  Constitutional justice supports fundamental fair procedures.  This includes the right to know the case against the accused in more serious cases so as to have an opportunity to meet reply to and rebut it.  The accused should be given copies of the statements and other documents on which the prosecution relies.

The entitlement depends on the seriousness of the charge, the importance of documents and statements, whether the accused has been adequately informed as to the nature and substance of the accusation, and the likelihood or risk of injustice.  An accused charged with an indictable offence, who has the option to elect for a summary trial, may apply for statements of evidence before he makes his election.

The prosecution must disclose all relevant evidence in its possession.  This includes evidence intended to be used at trial and also evidence that could assist the defence.

There is no general duty on the prosecution in a summary case to disclose statements of intended witness evidence, whether or not there is a request by the defence to so do. The question is whether it is in the interest of justice on the facts of the particular case, that this should be done.

Under the Criminal Justice Act, 2007  copies of recordings made by members of An Garda Síochána where the person has been detained shall be given to the person or his legal representative, if the court so directs, subject to such conditions as may be specified.

General Principles

The prosecution is under an obligation to disclose any information at its disposal that is relevant and which could assist the defence.  The fact that it is not intended as part of the prosecution’s evidence is irrelevant.  This follows from the basic constitutional guarantee of fair procedure.

This obligation goes wider than that required by the book of evidence.  The book of evidence essentially relates to the prosecution’s case only.

As with disclosure in the District Court, this category of disclosure is unstructured. It does not follow and is not laid down in rules under the Criminal Procedure Act.

Disclosure should generally be made sufficiently in advance of the trial to allow the accused to consider the material disclosed.  Primary voluntary disclosure of all disclosable material in the possession of the prosecution should be made at the time of the return for trial.  Any further material subsequent coming into the possession of the prosecution or specifically requested by the defence should be disclosed in a timely fashion.

The extent of the duty is somewhat ill-defined and is interpreted on a case-by-case basis. The prosecution must disclose all relevant evidence in its possession.  Relevant evidence includes evidence that may indirectly assist the accused by providing a lead to other information which may undermine the prosecution case or assist the defence case.

The defendant must act promptly in requesting material considered to be relevant.  The onus of proof is on the accused to show that he cannot obtain a fair trial.  The possibility must be real and not fanciful.  Appropriate rulings and orders may make what would otherwise be a fair trial, fair.The Court focuses on the fairness of the eventual trial, assuming the absence of the evidence.

The duty continues during the criminal proceedings.  If additional information emerges even during the course of the trial, and even after conviction, it must be disclosed. The evidence offered on defence may necessitate that the prosecution reevaluates the relevance of the information held.

Failure to make adequate disclosure may be challenged on appeal or a judicial review.  If the appeal court determines that the failure to disclose caused a degree of unfairness that rendered the conviction unsafe, it may set it aside.  Judicial review emphasises constitutional fairness.  The courts have been willing to uphold challenges to proceedings through judicial review based on failure to disclose given its constitutional significance.

DPP Guidelines

The DPP has published guidelines, setting out information that should be disclosed where relevant.

• Information not in statement form of which the prosecution is aware whether intended to be used by the prosecution or not and whether or not considered reliable;
• in the case of material not in the possession or procurement of the prosecution but of which it is aware, its existence should be disclosed;
• information regarding proposed prosecution witnesses which might reasonably be considered relevant to their credibility such as adverse findings in other proceedings, relationship with the victim, criminal convictions, relationship with other witnesses, possible personal interest;
• details of physical mental condition, which may affect their reliability;
• details of any immunity from prosecution provided to a witness in relation to his involvement in activities;
• admission to the witness protection programme;
• where the witness participated in the criminal activity, the subject of the charges, whether the witness has been dealt with in respect of his own involvement and, whether the sentence imposed took account of cooperation;
• statements not included in the book of evidence which could be of assistance to the defence;
• unedited version of statements prepared for inclusion in the book of evidence;
• items not included in the list of exhibits that could reasonably be of assistance to the defence;
• particulars of the accused’s prior convictions;
• any prior inconsistent statements;
• copies of all electronically or mechanically recorded statements obtained from the accused;
• copies of photographs, plans, documents, and representations, which might be tendered by the prosecution at trial or which, even though not intended to be tendered, might reasonably be relevant to the defence;
• where the prosecutor declines to call a witness whose statement is contained in the book of evidence, the defence should be given details of any material or statements that may be relevant and if requested the prosecution should make the witness available for calling.

Extent of Duty

The prosecution does not have a duty to make exhaustive or widespread inquiries about every witness to ascertain issues of credibility. The duty is not to make a disclosure of every document in the prosecution’s possession, which might be of any conceivable relevance.

The duty extends to any document which is of assistance to the defendant in establishing a defence or in damaging the prosecution’s case.

The defence should assist the prosecution where possible in relation to the nature of the documents of which they seek disclosure.  The prosecution may ultimately exercise some element of judgment in relation to whether the material is disclosable in accordance with the established criteria.

Where information is improperly withheld, a conviction on foot of it may be quashed by the Court of Appeal.

The duty of disclosure is limited to matters which the prosecution reasonably supposes to be relevant.  If the defendant raises an unexpected defence and this is not disclosed, the prosecution may be reasonable in assuming that it is not required.

The prosecution is not obliged to disclose irrelevant material to the defence.  It may be irrelevant in the sense that it is not relied on in the prosecution and it does not appear to assist the defence.  If it is reasonably possible that something is relevant and there is no other obstacle to disclosure the guidelines favour a disclosure.

Seeking Out Evidence

In exceptional cases, the obligation may go beyond retaining and preserving evidence and require seeking out of evidence that may assist the defence.  There is no general obligation to seek out and take possession of evidence.

There is no third-party discovery in criminal cases.  The Court Rules and case law allowing for ancillary or third-party discovery, does not apply to criminal cases.

Courts may take into account in trial the fact that exculpatory information is available from a third-party.  Secondary evidence of the same might be produced and taken into account to account.

The defendant’s right to evidence that may assist his case may place a duty on the Gardai to seek out, obtain relevant evidence and preserve it.  In some cases evidence relevant to guilt or innocence including material that may give rise to reasonable possibility of securing relevant evidence must be retained insofar as necessary and practicable until conclusion of the trial.

What is reasonable to be required of the Garda depends on considerations of necessity and practicality in policing.  This must be interpreted in a fair and reasonable manner and cannot require Gardai to commit  disproportionate manpower and resources in an exhaustive search for every conceivable type of evidence.

The applicant must demonstrate the relevance and significance of the missing evidence.  This must be considered in the light of what is to be put forward at the trial.  If there is alternative evidence available, this should be used.