Trial on Indictment II
CRIMINAL JUSTICE ACT 1984
Inferences from failure, refusal to account for objects, marks, etc.
F49[18.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—
(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,
was requested by the member to account for any object, substance or mark, or any mark on any such object, that was—
(i) on his or her person,
(ii) in or on his or her clothing or footwear,
(iii) otherwise in his or her possession, or
(iv) in any place in which he or she was during any specified period,
and which the member reasonably believes may be attributable to the participation of the accused in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.
(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for a matter to which subsection (1) applies.
(3) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for a matter to which that subsection applies might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.
(4) Nothing in this section shall, in any proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section,
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section, or
(c) be taken to preclude the drawing of any inference from a failure or refusal to account for the presence of an object, substance or mark or for the condition of clothing or footwear which could properly be drawn apart from this section.
(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of the matter concerned was first given by the accused.
(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
(7) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.
(8) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.
(9) In this section “arrestable offence” has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997.]
Annotations
Amendments:
F49
Substituted (1.07.2007) by Criminal Justice Act 2007 (29/2007), s. 28(1), S.I. 236 of 2007, subject to transitional provisions in subss. (2) and (3).
F50
Substituted by Criminal Justice Act 2011 (22/2011), s. 9(c), not commenced as of date of revision.
Modifications (not altering text):
C75
Prospective affecting provision: subs. (3)(b) substituted by Criminal Justice Act 2011 (22/2011), s. 9(c), not commenced as of date of revision.
F50[(b) the accused was informed before such failure or refusal occurred that he or she had the right to consult a solicitor and, other than where he or she waived that right, the accused was afforded an opportunity to so consult before such failure or refusal occurred.]
C76
Application of section extended (18.05.2007) by Criminal Justice Act 2007 (29/2007), s. 52, S.I. No. 236 of 2007, as amended (23.07.2009) by Criminal Justice (Amendment) Act 2009 (32/2009), s. 23(4), commenced on enactment; and as amended (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 108, S.I. No. 508 of 2015.
Application of certain provisions of Act of 1984.
52. —[(1) Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984] shall apply with any necessary modifications in relation to persons detained under section 50 as they apply to persons detained under section 4 of that Act.
…
C77
Application of section extended (9.09.1996) by Criminal Justice (Drug Trafficking) Act 1996 (29/1996), s. 5, S.I. No. 257 of 1996, as amended (23.07.2009) by Criminal Justice (Amendment) Act 2009 (32/2009), s. 22(3), commenced on enactment; and as amended (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 106, S.I. No. 508 of 2015.
Application of certain provisions of Act of 1984.
5.—[(1) Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984] shall apply with any necessary modifications in relation to persons detained under section 2 as they apply to persons detained under section 4 of the Act of 1984.
…
Editorial Notes:
E31
Previous affecting provision: subss. (1) and (2) amended (1.10.2001) by Criminal Justice Act 1999 (10/1999), s. 16(1) and (2), S.I. No. 193 of 2001; substituted as per F-note above.
Inferences from accused’s presence at a particular place.
F51[19.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—
(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,
was requested by the member to account for his or her presence at a particular place at or about the time the offence is alleged to have been committed, and the member reasonably believes that the presence of the accused at that place and at that time may be attributable to his or her participation in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.
(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for his or her presence at a particular place under subsection (1).
(3) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for his or her presence at a particular place might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.
(4) Nothing in this section shall, in any proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section,
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section, or
(c) be taken to preclude the drawing of any inference from the failure or refusal of a person to account for his or her presence which could properly be drawn apart from this section.
(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of his or her presence at a particular place concerned was first given by the accused.
(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
(7) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.
(8) In this section “arrestable offence” has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997.]
Annotations
Amendments:
F51
Substituted (1.07.2007) by Criminal Justice Act 2007 (29/2007), s. 29(1), S.I. No. 236 of 2007; subject to transitional provisions in s. 29(2) and (3).
F52
Substituted by Criminal Justice Act 2011 (22/2011), s. 9(d), not commenced as of date of revision.
Modifications (not altering text):
C78
Prospective amending provision: subs. (3)(b) substituted by Criminal Justice Act 2011 (22/2011), s. 9(d), not commenced as of date of revision.
F52[(b) the accused was informed before such failure or refusal occurred that he or she had the right to consult a solicitor and, other than where he or she waived that right, the accused was afforded an opportunity to so consult before such failure or refusal occurred.]
C79
Application of section extended (18.05.2007) by Criminal Justice Act 2007 (29/2007), s. 52, S.I. No. 236 of 2007, as amended (23.07.2009) by Criminal Justice (Amendment) Act 2009 (32/2009), s. 23(4), commenced on enactment; and as amended (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 108, S.I. No. 508 of 2015.
Application of certain provisions of Act of 1984.
52. —[(1) Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984] shall apply with any necessary modifications in relation to persons detained under section 50 as they apply to persons detained under section 4 of that Act.
…
C80
Application of section extended (9.09.1996) by Criminal Justice (Drug Trafficking) Act 1996 (29/1996), s. 5, S.I. No. 257 of 1996, as amended (23.07.2009) by Criminal Justice (Amendment) Act 2009 (32/2009), s. 22(3), commenced on enactment; and as amended (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 106, S.I. No. 508 of 2015.
Application of certain provisions of Act of 1984.
5.—[(1) Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984] shall apply with any necessary modifications in relation to persons detained under section 2 as they apply to persons detained under section 4 of the Act of 1984.
…
Editorial Notes:
E32
Previous affecting provision: subss. (1) and (2) amended (1.10.2001) by Criminal Justice Act 1999 (10/1999), s. 16(1) and (2), S.I. No. 193 of 2001; substituted as per F-note above.
F53
[
Inferences from failure of accused to mention particular facts.
19A.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—
(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,
failed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure is material.
(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure to mention a fact to which subsection (1) applies.
(3) Subsection (1) shall not have effect unless—
(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure to mention a fact to which that subsection applies might be, and
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure occurred.
(4) Nothing in this section shall, in any proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section, or
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section.
(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to when the fact concerned was first mentioned by the accused.
(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.
(7) Subject to section 7 of the Criminal Justice (Drug Trafficking) Act 1996 and section 5 of the Offences Against the State (Amendment) Act 1998, this section shall not apply in relation to a failure to mention a fact if the failure occurred before the commencement of this section.
(8) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.
(9) In this section “arrestable offence” has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997.]
Annotations
Amendments:
F53
Inserted (1.07.2007) by Criminal Justice Act 2007 (29/2007), s. 30, S.I. No. 236 of 2007.
F54
Substituted by Criminal Justice Act 2011 (22/2011), s. 9(e), not commenced as of date of revision.
Modifications (not altering text):
C81
Prospective amending provision: subs. (3)(b) substituted by Criminal Justice Act 2011 (22/2011), s. 9(e), not commenced as of date of revision.
F54[(b) the accused was informed before such failure occurred that he or she had the right to consult a solicitor and, other than where he or she waived that right, the accused was afforded an opportunity to so consult before such failure occurred.]
C82
Application of section extended (18.05.2007) by Criminal Justice Act 2007 (29/2007), s. 52, S.I. No. 236 of 2007, as amended (23.07.2009) by Criminal Justice (Amendment) Act 2009 (32/2009), s. 23(4), commenced on enactment; and as amended (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 108, S.I. No. 508 of 2015.
Application of certain provisions of Act of 1984.
52. —[(1) Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984] shall apply with any necessary modifications in relation to persons detained under section 50 as they apply to persons detained under section 4 of that Act.
…
C83
Application of section extended (9.09.1996) by Criminal Justice (Drug Trafficking) Act 1996 (29/1996), s. 5, S.I. No. 257 of 1996, as amended (23.07.2009) by Criminal Justice (Amendment) Act 2009 (32/2009), s. 22(3), commenced on enactment; and as amended (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 106, S.I. No. 508 of 2015.
Application of certain provisions of Act of 1984.
5.—[(1) Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984] shall apply with any necessary modifications in relation to persons detained under section 2 as they apply to persons detained under section 4 of the Act of 1984.
…
Trial Procedure
Notice of alibi in trials on indictment.
20.—(1) On a trial on indictment for an offence committed after the commencement of this section the accused shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi.
(2) Without prejudice to subsection (1), on any such trial the accused shall not without the leave of the court call any other person (in this section referred to as the witness) to give such evidence unless—
(a) the notice under that subsection includes the name and address of the witness or, if the name or address is not known to the accused at the time he gives the notice, any information in his possession which might be of material assistance in finding the witness,
(b) if the name or the address is not included in that notice, the court is satisfied that the accused, before giving the notice, took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained,
(c) if the name or the address is not included in that notice, but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness, he gives notice forthwith of the name, address or other information, as the case may be, and
(d) if the accused is notified by or on behalf of the prosecution that the witness has not been traced by the name or at the address given, he gives notice forthwith of any such information which is then in his possession or, on subsequently receiving any such information, gives notice of it forthwith.
(3) The court shall not refuse leave under this section if it appears to the court that the accused was not informed of the requirements of this section—
(a) by the District Court when he was sent forward for trial, or
(b) by the trial court when, on being sent forward by the District Court for sentence, he changed his plea to one of not guilty, or
(c) where he was brought before a Special Criminal Court for trial under section 47 of the Act of 1939, by the Court when it fixed the date of trial.
(4) Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi.
(5) Any notice purporting to be given under this section on behalf of the accused by his solicitor shall, unless the contrary is proved, be deemed to be given with the authority of the accused.
F55[(6) A notice under subsection (1) or under paragraph (c) or (d) of subsection (2) shall be given in writing to the solicitor for the prosecution.]
(7) A notice required by this section to be given to the solicitor for the prosecution may be given by delivering it to him or by leaving it at his office or by sending it to him by registered post at his office.
(8) In this section—
“evidence in support of an alibi” means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;
“the prescribed period” means—
F55[(a) the period of fourteen days after the date the accused is, in accordance with section 4B(1) of the Criminal Procedure Act, 1967, served with the documents referred to in that section, or]
(b) F56[…]
F55[(c) where the accused, on being sent forward for sentence, changes his plea to not guilty, the period of fourteen days after the accused is, in accordance with section 13(4)(b) of the Criminal Procedure Act, 1967, served with the documents referred to in section 4B(1) of that Act, or]
(d) where the accused is brought before a Special Criminal Court for trial under section 47 of the Act of 1939, such period as is fixed by the Court when the Court fixes the date of trial.
Annotations
Amendments:
F55
Substituted (1.10.2001) by Criminal Justice Act 1999 (10/1999), s. 16(3), S.I. No. 193 of 2001.
F56
Deleted (1.10.2001) by Criminal Justice Act 1999 (10/1999), s. 16(3)(c), S.I. No. 193 of 2001.
Proof by written statement.
21.—(1) In any proceedings against a person for an offence F57[, other than the hearing of an application under Part IA of the Criminal Procedure Act, 1967, for the dismissal of a charge,] a written statement by any person shall, if such of the conditions mentioned in subsection (2) as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person.
(2) The said conditions are:
(a) the statement purports to be signed by the person who made it;
(b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he stated in it anything which he knew to be false or did not believe to be true;
(c) a copy of the statement is served, by or on behalf of the party proposing to tender it in evidence, on each of the other parties to the proceedings; and
(d) none of the other parties or their solicitors, within twenty-one days from the service of the copy of the statement, serves on the party so proposing a notice objecting to the statement being tendered in evidence under this section.
(3) The conditions mentioned in paragraphs (c) and (d) of subsection (2) shall not apply if the parties agree at the hearing or the parties or their solicitors agree before the hearing that the statement shall be so tendered.
F58[(3A) Where a party (“the first-mentioned party”) serves a notice pursuant to paragraph (d) of subsection (2) objecting to a statement being tendered in evidence under this section, the court may, at the hearing of the matter, on the application of the party who served, pursuant to paragraph (c) of that subsection, the copy of the statement to which the notice relates—
(a) require the first-mentioned party to provide an explanation to the court of the reasons for serving that notice, and
(b) where the court is satisfied, having taken into account the explanation provided in accordance with paragraph (a), that it is not contrary to the interests of justice to do so, direct that the statement be so tendered.]
(4) The following provisions shall also have effect in relation to any written statement tendered in evidence under this section:
(a) if the statement is made by a person under the age of twenty-one years, it shall give his age;
(b) if it is made by a person who cannot read it, it shall be read to him before he signs it and shall be accompanied by a declaration by the person who so read the statement to the effect that it was so read; and
(c) if it refers to any other document as an exhibit, the copy served on any other party to the proceedings under subsection (2) (c) shall be accompanied by a copy of that document or by such information as may be necessary in order to enable the party on whom it is served to inspect that document or a copy thereof.
(5) Notwithstanding that a written statement made by any person may be admissible as evidence by virtue of this section—
(a) the party by whom or on whose behalf a copy of the statement was served may call that person to give evidence, and
(b) the court may, of its own motion or on the application of any party to the proceedings, require that person to attend before the court and F59[give evidence, including for the purposes of cross-examination].
(6) An application under subsection (5) (b) may be made before the hearing in a case in which the proceedings are in the Central Criminal Court, the Circuit Court or the Special Criminal Court and, for this purpose, the powers of the Central Criminal Court shall be exercisable by any judge of the High Court and the powers of the Circuit Court shall be exercisable by any judge of that court.
(7) So much of any statement as is admitted as evidence by virtue of this section shall, unless the court otherwise directs, be read aloud at the hearing.
(8) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement.
(9) A document required by this section to be served on any person may, subject to subsection (10), be served—
(a) by delivering it to him or to his solicitor,
(b) by addressing it to him and leaving it at his usual or last known residence or place of business or by addressing it to his solicitor and leaving it at the solicitor’s office,
(c) by sending it by registered post to him at his usual or last known residence or place of business or to his solicitor at the solicitor’s office, or
(d) in the case of a body corporate, by delivering it to the secretary or clerk of the body at its registered or principal office or sending it by registered post to the secretary or clerk of that body at that office.
(10) A document required by this section to be served on an accused shall, if the accused is not represented by a solicitor, be served personally on the accused.
(11) Where—
(a) a statement is tendered in evidence by virtue of this section, and
(b) the person by whom the statement was made has stated in it anything which he knew to be false or did not believe to be true,
he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding twelve months or to both, or on conviction on indictment to a fine not exceeding £2,000 or to imprisonment for a term not exceeding five years or to both.
(12) This section shall also apply to a written statement made outside the State with the omission from subsection (2) (b) of the words from “and that he made the statement” to the end of the paragraph, and the omission of subsection (11).
Annotations
Amendments:
F57
Substituted (1.10.2001) by Criminal Justice Act 1999 (10/1999), s. 16(4), S.I. No. 193 of 2001.
F58
Inserted (28.02.2022) by Criminal Procedure Act 2021 (7/2021), s. 16(a), S.I. No. 79 of 2022.
F59
Substituted (28.02.2022) by Criminal Procedure Act 2021 (7/2021), s. 16(b), S.I. No. 79 of 2022.
Editorial Notes:
E33
A fine of £1,000 converted (1.01.1999) to €1,269.74. This translates into a class C fine, not exceeding €2,500, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(2) and table ref. no. 3, S.I. No. 662 of 2010. A fine of £2,000 converted (1.01.1999) to €2,539.48. This translates into a class A fine, not exceeding €5,000, as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 4(2) and table ref. no. 3, S.I. No. 662 of 2010.
Proof by formal admission.
22.—(1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecution or the accused, and the admission by any party of any such fact under this section shall be against that party be conclusive evidence in those proceedings of the fact admitted.
(2) An admission under this section—
(a) may be made before or at the hearing,
(b) if made otherwise than in court, shall be in writing,
(c) if made in writing by an individual, shall be signed by the person making it and, if so made by a body corporate, shall be signed by a director or manager, or the secretary or clerk or some other similar officer of the body corporate,
(d) if made on behalf of an accused who is an individual, shall be made by his counsel or solicitor,
(e) if made at any stage before the hearing by an accused who is an individual, must be approved by his counsel or solicitor either at the time it was made or subsequently,
and any signature referred to in paragraph (c) shall be taken to be that of the person whose signature it appears to be unless the contrary is shown.
(3) An admission under this section for the purpose of proceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial).
(4) An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter.
Abolition of right of accused to make unsworn statement.
23.—(1) In any proceedings against a person for an offence the accused shall not be entitled to make a statement without being sworn and, accordingly, if he gives evidence, he shall do so on oath and be liable to cross-examination, but this shall not—
(a) affect the right of the accused, if not represented by counsel or a solicitor, to address the court or jury otherwise than on oath on any matter on which, if he were so represented, his counsel or solicitor could address the court or jury on his behalf,
(b) affect any trial, or the preliminary examination of any indictable offence, commenced before the commencement of this section.
(2) Nothing in subsection (1) shall prevent the accused from making a statement without being sworn—
(a) if it is one which he is required by law to make personally, or
(b) if he makes it by way of mitigation before the court passes sentence upon him.
(3) The following provisions are hereby repealed:
(a) paragraph (h) of the proviso to section 1 of the Criminal Justice (Evidence) Act, 1924, and
(b) section 7 (4) of the Criminal Procedure Act, 1967, and, in section 8 (2) of that Act, the words from “proceed in accordance with” to “paragraph (a),”.
Order of closing speeches.
24.—(1) Notwithstanding any rule of law or practice, and notwithstanding anything contained in section 2 of the Criminal Procedure Act, 1865, the procedure at a trial on indictment as to the closing speeches for the prosecution and for the defence shall be as follows:
(a) the prosecution shall have the right to a closing speech in all cases except where the accused is not represented by counsel or a solicitor and does not call any witness (other than a witness to character only), and the defence shall have the right to a closing speech in all cases, and
(b) the closing speech for the defence shall be made after that for the prosecution.
(2) Section 3 of the Criminal Justice (Evidence) Act, 1924, is hereby repealed.
Majority verdicts.
25.—(1) The verdict of a jury in criminal proceedings need not be unanimous in a case where there are not fewer than eleven jurors if ten of them agree on the verdict.
(2) The court shall not accept a verdict of guilty unless the foreman of the jury has stated in open court whether the verdict is unanimous or is by a majority in accordance with subsection (1) and, in the latter event, the number of jurors who agreed to the verdict.
(3) The court shall not accept a verdict by virtue of subsection (1) unless it appears to the court that the jury have had such period of time for deliberation as the court thinks reasonable having regard to the nature and complexity of the case; and the court shall not in any event accept such a verdict unless it appears to the court that the jury have had at least two hours for deliberation.
(4) The court shall cause the verdict of the jury to be taken in such a way that, where the verdict is one of not guilty, it shall not be indicated whether the verdict was unanimous or by a majority.
(5) This section shall not affect the trial of any offence for which the court is required, upon the conviction of the accused, to sentence him to death or any trial commenced before the commencement of this section.
Miscellaneous
CRIMINAL JUSTICE ACT 2006
PART 3
Admissibility of Certain Witness Statements
Definitions (Part 3).
15.— In this Part—
“audiorecording” includes a recording, on any medium, from which sound may by any means be produced, and cognate words shall be construed accordingly;
“proceedings” includes proceedings under section 4E (application by accused for dismissal of charge) of the Act of 1967 where oral evidence (within the meaning of subsection (5) of that section) is given;
“statement” means a statement the making of which is duly proved and includes—
(a) any representation of fact, whether in words or otherwise,
(b) a statement which has been videorecorded or audiorecorded, and
(c) part of a statement;
“statutory declaration” includes a statutory declaration made under section 17 or 18;
“videorecording” includes a recording, on any medium, from which a moving image may by any means be produced, together with the accompanying soundrecording, and cognate words shall be construed accordingly.
Admissibility of certain witness statements.
16.— (1) Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the proceedings made by a witness (in this section referred to as “the statement”) may, with the leave of the court, be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination—
(a) refuses to give evidence,
(b) denies making the statement, or
(c) gives evidence which is materially inconsistent with it.
(2) The statement may be so admitted if—
(a) the witness confirms, or it is proved, that he or she made it,
(b) the court is satisfied—
(i) that direct oral evidence of the fact concerned would be admissible in the proceedings,
(ii) that it was made voluntarily, and
(iii) that it is reliable,
and
(c) either—
(i) the statement was given on oath or affirmation or contains a statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief, or
(ii) the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth.
(3) In deciding whether the statement is reliable the court shall have regard to—
(a) whether it was given on oath or affirmation or was videorecorded, or
(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability,
and shall also have regard to—
(i) any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement, or
(ii) where the witness denies making the statement, any evidence given in relation to the denial.
(4) The statement shall not be admitted in evidence under this section if the court is of opinion—
(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or
(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.
(5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.
(6) This section is without prejudice to sections 3 to 6 of the Criminal Procedure Act 1865 and section 21 (proof by written statement) of the Act of 1984.
F2[(7) A reference in subsection (1) to a person being sent forward for trial shall, in relation to proceedings before a Special Criminal Court, include, where appropriate, a reference to such a person being charged before that court.]
Annotations:
Amendments:
F2
Inserted (1.11.2023) by Criminal Justice (Miscellaneous Provisions) Act 2023 (24/2023), s. 73(a), S.I. No. 525 of 2023.
Witness statements made to members of Garda Síochána.
17.— (1) A person who makes a statement to a member of the Garda Síochána during the investigation of an arrestable offence (not being a person who is at that time suspected by any such member of having committed it) may make a statutory declaration that the statement is true to the best of the person’s knowledge and belief.
(2) For the purposes of section 1(1)(d) of the Statutory Declarations Act 1938 a member of the Garda Síochána may take and receive a statutory declaration made under subsection (1).
(3) Instead of taking and receiving such a statutory declaration the member may take the person’s statement on oath or affirmation and for that purpose may administer the oath or affirmation to him or her.
Other witness statements.
18.— (1) In this section—
“competent person” means a person employed by a public authority and includes an immigration officer who is deemed to have been appointed as such an officer under section 3 of the Immigration Act 2004;
“public authority” means—
(a) a Minister of the Government,
(b) the Commissioners of Public Works in Ireland,
(c) a local authority within the meaning of the Local Government Act 2001,
(d) the Health Service Executive,
(e) a harbour authority within the meaning of the Harbours Act 1946,
(f) a board or other body (not being a company) established by or under statute,
(g) a company in which all the shares are held by, or on behalf of, or by directors appointed by, a Minister of the Government, or
(h) a company in which all the shares are held by a board or other body referred to in paragraph (f) , or by a company referred to in paragraph (g) .
(2) A person who makes a statement to a competent person in the course of the performance of the competent person’s official duties may make a statutory declaration that the statement is true to the best of the person’s knowledge and belief.
(3) For the purposes of section 1(1)(d) of the Statutory Declarations Act 1938 a competent person may take and receive a statutory declaration made under subsection (2) .
Regulations concerning certain witness statements which are recorded.
19.— (1) The Minister may, in relation to any statements of witnesses that may be videorecorded or audiorecorded by members of the Garda Síochána while investigating offences, make provision in regulations for—
(a) the manner in which any such recordings are to be made and preserved, and
(b) the period for which they are to be retained.
(2) Any failure by a member of the Garda Síochána to comply with a provision of the regulations shall not of itself—
(a) render the member liable to civil or criminal proceedings, or
(b) without prejudice to the power of a court to exclude evidence at its discretion, render inadmissible in evidence anything said during the recording concerned.
Amendment of section 4E of Act of 1967.
20.— Section 4E (application by accused for dismissal of charge) of the Act of 1967 is amended in subsection (5)(b)—
(a) by the substitution of “section 4F, or” for “section 4F.” in subparagraph (ii), and
(b) by the addition of the following subparagraph:
“(iii) any other videorecording, or an audiorecording, which may be admitted by the trial court as evidence of any fact stated in it.”.
Anonymity of certain witnesses.
181.— (1) Where in any criminal proceedings—
(a) it is proposed to call a person to give evidence, and
(b) the person has a medical condition,
an application may be made for an order under this section prohibiting the publication of any matter relating to the proceedings which would identify the person as a person having that condition.
(2) An application for such an order may be made at any stage of the proceedings and shall be made—
(a) in case the accused person has been sent forward for trial, to the trial judge,
(b) in case the proceedings are proceedings on appeal, to the judge, or a judge, of the appeal court,
(c) in any other case, to a judge of the District Court.
(3) An order under this section may be made only where the judge concerned is satisfied that—
(a) the person concerned has a medical condition,
(b) his or her identification as a person with that condition would be likely to cause undue distress to him or her, and
(c) the order would not be prejudicial to the interests of justice.
(4) An appeal from a refusal or grant of an application for an order under this section shall lie—
(a) in relation to proceedings before the District Court, to a judge of the Circuit Court,
(b) in relation to proceedings before the Circuit Criminal Court or a Special Criminal Court, to a judge of the High Court, and
F47[(c) in relation to proceedings before the Central Criminal Court, to a judge of the Court of Appeal,]
at the instance of the prosecution or the defence.
(5) Where—
(a) an accused person is sent forward for trial, and
(b) an order has been made by a judge of the District Court under this section,
the trial judge may, on application made in that behalf, vary or revoke the order.
(6) Where—
(a) an appeal is being taken against a decision of a court in criminal proceedings, and
(b) the trial judge has made an order under this section,
the judge, or a judge, of the appeal court may, on application made in that behalf, vary or revoke the order.
(7) An application under this section, or an appeal under subsection (4) , may be made by the prosecution or the defence on notice to the other party to the proceedings and shall be made to the judge concerned in chambers.
(8) Each of the following persons who publishes or broadcasts any matter in contravention of an order under this section is guilty of an offence and is liable on conviction on indictment to a fine not exceeding €25,000 or imprisonment for a term not exceeding 3 years or both:
(a) if the matter is published in a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical;
(b) if the matter is published otherwise, the person who publishes it; or
(c) if the matter is broadcast, any person transmitting or providing the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of an editor of a newspaper.
(9) Where a person is charged with an offence under subsection (8) , it is a defence to prove that at the time of the alleged offence the person was not aware, and neither suspected nor had any reason to suspect, that the publication or broadcast concerned was of any such matter as is mentioned in subsection (1) .
(10) (a) Where an offence under subsection (8) has been committed by a body corporate and it is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of any person who, when the offence was committed, was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(b) Where the affairs of a body corporate are managed by its members, paragraph (a) shall apply in relation to the acts and defaults of a member in connection with the functions of management as if he or she were a director or manager of the body corporate.
(11) In this section—
“broadcast” means the transmission, relaying or distribution by wireless telegraphy of communications, sounds, visual images or signals, intended for reception by the public generally or a section of it, whether the broadcast is so received or not, and cognate words shall be construed accordingly;
“publish” means publish, other than by way of broadcast, to the public generally or a section of it;
“trial judge” and “judge”, in relation to proceedings before a Special Criminal Court, means a member of that Court, and the references in subsections (2) (a) and (5) (a) to an accused person being sent forward for trial include, where appropriate, references to such a person being charged before that Court.
Annotations
Amendments:
F47
Substituted (28.10.2014) by Court of Appeal Act 2014 (18/2014), s. 66, S.I. No. 479 of 2014.