Disclosure

Duty of Disclosure

An order of disclosure is required even in summary cases where it is necessary to ensure the constitutional obligation to afford a fair trial and fair procedures.  They may require that the accused is furnished before trial with copies of statements of all witnesses whose evidence is crucial to the prosecution.  This will generally be appropriate in the case of indictable offences charged summarily, though this need not always be so.

In the case of DPP v Gary Doyle, a case stated to the High Court in relation to interviews of other suspects, asked whether there is a general obligation to furnish request statements of the proposed witnesses for the prosecution.  It asked further whether there was an obligation where no statements of witnesses had been taken in the course of the investigation.  The High Court decision was appealed to the Supreme Court.

The Supreme Court held that the judge should decide on the facts of the case before him, whether the interest of justice requires the statements or documents to be furnished to the defendant.  The Court must have regard to

• the seriousness of the charge,
• the importance of the statement or documents,
• the fact that the accused has been adequately informed of the nature and substance of the accusation,
• the likelihood that there is no risk of injustice in failing to furnish statements and documents in issue to the accused.

If the prosecution holds evidence on which it does not intend to rely, it is subject to a general duty to disclose material evidence.

Book of Evidence

In a trial on indictment, the Book of Evidence is served before trial.  It is a precondition to the accused being sent forward for trial.  It must be served within 42 days of first appearance in the District Court.  If the Book of Evidence is not served and time is not extended by the Court, the summons should be struck out.

The Book of Evidence consists of all evidence which the prosecution intends to rely on against the accused at trial.  It must contain at least the following:

• a statement of the charges against the accused;
• a copy of any sworn information in writing upon which the proceedings were initiated;
• a list of the witnesses which the prosecutor proposes to call at trial;
• a statement of the evidence that is expected to be given by each of them;
• a copy of documents containing information, which it is proposed to give by way of evidence under the Criminal Evidence Act 1992;
• a copy of certificates under the Criminal Procedure Act;
• a list of exhibits, if any.

If there is a substantial and critical failure, the Book of Evidence is not properly served.

The Book of Evidence does not comprise sworn depositions in the manner that applied in relation to the former preliminary and examination in the District Court due.  Witness statements are reduced to writing rather than a formal sworn deposition.

Book of Evidence Issues

The prosecution may serve additional evidence at any time after service of the Book of Evidence.  Where this is done after the return for trial, it must relate only to the charges, the subject of the return for trial.

The prosecution may be compelled to call witnesses in the Book of Evidence so that they may be cross-examined.  If the Book of Evidence does not disclose sufficient basis for the charges, the accused at trial may make a pretrial motion to dismiss the charge.

The prosecution need not call all witnesses in the Book of Evidence.  However, the defendant/ accused may require that they be called for cross-examination.

Statements of witnesses who have been interviewed but who are not included in the Book of Evidence must generally be disclosed and their attendance may be required.

The Book of Evidence procedures do not apply in respect of summary proceedings.  The prosecution is not obliged to call or tender witnesses for cross-examination.

The prosecution is obliged to disclose evidence in its possession which assists the accused, such as a favourable statement.  Once they are made available and a reasonable opportunity has been afforded to the applicant to arrange for their attendance, the right of fair procedures is fulfilled.

The prosecution must disclose evidence to the defendant that is material to its case, even if it is not proposed to call it for trial and even though it is not included in the Book of Evidence.

Disclosure in District Court

The parameters and extent of duty differ in summary cases, which are generally much briefer and where there is much less at stake. There is no mechanism for disclosure of evidence in District Court cases.

Most District Court cases commence by issue of a summons and are heard summarily.  The summons will set out the offence charged.  However, it will not give any details of the evidence on which it is based. The vast majority conclude with a dismissal, a conviction and imposition of a fine, community service, or similar or other noncustodial sanction or dismissal under the probation act.

The District Court has jurisdiction to sentence persons to imprisonment generally for periods of up to a year.  This will depend on the particular statutory provision.  Summary offences commonly make provision for imprisonment of up to six months or, less commonly, up to 12 months.

Constitution & Human Rights

The Irish Courts have long held that constitutional rights of fair procedures may require disclosure of evidence in the District Court.

Basic constitutional fair procedures assume an “equality of arms”.  A person should know the case he has to meet.  He should not be placed at a substantial disadvantage relative to the prosecutor.  The issue is all the more important where the person’s liberty is at risk, this being a key freedom protected by the Constitution.

The European Convention on Human Rights provides a right to a fair trial.  It provides there should be equality of arms between the prosecution and defence.  This means that both the prosecution and defence should be given the opportunity to have knowledge of and comment on anything filed on and evidence adduced by the other party.  It requires the prosecution to disclose to the defence all material evidence in its possession for or against the accused.

The European Court of Human Rights has consistently held that there is an obligation on the prosecution to disclose evidence which assists the defendant’s case and is harmful to his case if it holds it.

Scope of Duty I

In Ireland, what has been commonly called the Ward principles require that the prosecution must disclose any document which could be of assistance to the defence in establishing a defence, in damaging the prosecution case or in providing a lead on evidence that assists in relation to either of these matters.

This requirement applies to summary proceedings and proceedings on indictment.  Proceedings on indictment provide for disclosure and service in the accused of the Book of Evidence.  However this does not preclude that further evidence may be required.

The duty to disclose exculpatory evidence remains at all times. In most cases, an application should not be required, and it should be furnished on request made in court or by letter. If disclosure is not given voluntarily, the applicant may apply to court to have the matter of discovery determined.

The procedure is not the same as that applicable to disclosure in civil cases.  It is a separate procedure arising from due process and the requirement for fair procedure.

When disclosure is made, the accused should be given sufficient time to consider it.  Accordingly, if it is given just before the hearing, the accused will usually be entitled to an adjournment to consider it.  Further disclosure may be requested, and an application may be made to the court if there is disagreement on whether the extent of disclosure is proper.  If new evidence emerges, it must be disclosed.

The Court is unlikely to refuse adjournment for consideration of disclosure unless it infers that there was a tactical decision on the part of the defence. An application for adjournment might not be granted if it is due to the defence’s default.

Scope of Duty II

Evidence that is relevant to an issue in the case must be disclosed.  It may raise a new issue which is not apparent from the existing prosecution evidence.  It may hold out a real as opposed to a fanciful prospect of providing a lead on evidence in the above categories. The court will determine which evidence is material for this purpose.

If a prosecuting lawyer knows of a credible witness who can give evidence of material facts, tending to prove the accused innocent, he must either call the witness himself or make his statement available to the defence.  It is not acceptable to conceal the evidence from the Court or the accused.

The duty to disclose covers evidence which may undermine the credibility of prosecution witnesses.  The question is whether a reasonable jury would regard it as tending to undermine confidence in the reliability of the witness.  This would include inconsistent statements made by the witness. Previously unavailable evidence may emerge, and this may have to be disclosed. Evidence relative to the credibility of a defence need not be disclosed.

Previous Proceedings

The duty may apply in respect of transcripts of previous trials.  This may be relevant, as are previous statements of witnesses, which may be required to be disclosed in accordance with the above criteria.

This may apply to testimony of the first trial, where there is a second trial on the same charges.  The transcript may enable the accused to confront a witness with his previous inconsistent statement.

It may extend to other proceedings where the witness has given an account of the relevant events.

The prosecution must disclose all relevant evidence in its possession.  It must preserve material evidence which may potentially assist the defence. The duty of the prosecution extends to retaining evidence that may be helpful to the accused.  It may not dispose of it because it does not propose to tender it.  An injunction may be issued restraining the destruction of evidence.

Positive Steps

A Garda, if he has reasonable grounds for believing that it is evidence relating to the commission of an arrestable offence, he may seize the thing concerned. The courts have stated that it is the duty of the Gardai arising from their investigative role to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence.   This is the case of whether or not the prosecution proposes to rely on the evidence or not, regardless of whether or not it’d assist the prosecution in the case.

The duty may include the obligation to take positive steps to ascertain whether evidence exists.  It may arise in relation to the ascertainment of video and like evidence with a temporary life.  The obligation must be applied in a realistic manner in the circumstances of the relevant case.

The above test has been rejected in Ireland as impossible to meet and prove.  However, the Irish Courts have indicated that a remote, theoretical or fanciful possibility would not lead to prohibition of the trial. They have been unwilling to accept challenges based on the absence of alleged exculpatory new evidence where there is no realistic possibility of the same being available.

It is not necessary to show bad faith on the part of the investigator in failing to seek out and preserve evidence.  The absence of good faith may, however, impair the fairness of the trial.

Limited Mechanisms

There is no general statutory mechanism for non-party disclosure in criminal proceedings. The provisions in the Rules of the Superior Court are applicable to civil cases only.

The issue may be raised in judicial review. The accused may seek to prohibit the trial or seek an injunction against the prosecutor on the grounds that a fair trial may not be had. Some authorities hold that the test is that the absence of the evidence must be such as risks an unfair trial.  If there is sufficient credible evidence apart from the missing evidence, which would justify a safe conviction, this test will not be met.

The absence of a procedure has led to the accused seeking disclosure of documents through the prosecution under their duty to seek and preserve evidence.  The Gardai have investigative powers, but they are not as extensive as the powers of disclosure that a Court may order against nonparties in civil proceedings.

Exceptionally he accused may be able to apply successfully for a judicial review on the basis that he would not receive a fair trial.

In general, it is not possible to obtain disclosure outside of the jurisdiction.  EU Regulations may assist in some cases.  See separate sections on EU home affairs and justice matters.

Misc. Statutory Requirements

A number of statutory provisions require copy evidence to be given to the accused.  This includes a

• copy of the custody record relating to detention in a Garda station,
• copy interview in respect of an interview of a prisoner in a Garda station, certificate of analysis of alcohol in a drunk driving prosecution,
• records of apparatus measuring speed under the Road Traffic Act.

Limits to Disclosure

Objections may be taken to the disclosure of evidence.  Public interest privilege and informer privilege may be a valid basis of exception.  See the separate chapters dealing with these matters.

The European Court of Human Rights has recognised limits on the duty to disclose where other fundamental rights and public interests are involved.  In some cases, the only viable solution is that no trial takes place rather than one that is potentially unfair.

Informer privilege may be invoked. There may be good public interest reasons not to disclose a source of evidence in cases of violent crime.  The court determines issues of privilege.

An application may be made to the Court ex parte in England and Wales in relation to whether potentially privileged information should be disclosed. A special defence counsel is assigned to argue that defence’s position.  The Irish Courts have rejected this procedure.  Instead, the court itself should examine the material and resolve the conflict between the protection of confidential information and a fair trial.