Witnesses
General
Most persons are competent and compellable as witnesses. A person who is competent has the capacity to give evidence. Persons who may take the oath or affirmation and are capable of giving an intelligible rationale account of matters of which they have knowledge or to which they are privy.
Most witnesses are compellable. This means that they can be required to testify and required to answer any question under the sanction of contempt of court.
Knowingly to give false evidence constitutes the crime of perjury.
Sworn Evidence
Witnesses must give sworn evidence. The standard mechanism for sworn evidence is by way an oath. The standard oath reads “I swear by almighty God that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.” The court will not look behind the oath nor enquire into the witness’s religious beliefs or otherwise.
As an alternative to the oath, a witness may take an affirmation. This is in the following form “I do solemnly and sincerely and truly declare that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.”
Unsworn evidence may be inadmissible. It may be a ground for setting aside proceedings or a conviction in a criminal case.
Unsworn evidence may be given by children under 14 or persons who lack mental capacity. Historically the evidence of the child had to be corroborated, but this automatic requirement was removed in 1992. The judge has the discretion to warn the jury on the dangers of convicting on the basis of uncorroborated child’s evidence.
Language
A witness may testify in English or in Irish. Where a person witness testifies in a foreign language, a translation is required. The translator must take an oath as to the veracity of his translation.
There is the European Directive on the right to interpretation and translation of criminal hearings and investigations. A suspect who does not speak or understand the relevant language should be afforded a translation during the investigation and at trial.
A witness must give evidence verbally and spontaneously without notes. Certain notes are permissible in limited circumstances. Members of An Garda Síochána and other enforcement officers will typically employ notes to refresh their memory of particular matters and events.
Spontaneous
Although a witnesses’ evidence should be spontaneous, there is nothing in principle, wrong with the witness refreshing his memory before giving evidence. However, if a witness appears to have been coached the witness in any way, it is likely to damage his credibility. Coaching a witness may be an abuse of process.
A witness may refresh his evidence by referring to contemporaneous notes. Members of An Garda Síochána will commonly refer to their notebook in giving evidence. However, the statements, notebooks etc. and notes themselves would constitute hearsay and be inadmissible.
A distinction is drawn between present recollection refreshed and past recollection recorded. The former is acceptable while the latter would constitute hearsay. The position may be somewhat artificial. The Criminal Evidence Act allows certain written records to be admissible as hearsay, subject to conditions.
Notes
In order to allow use of notes to refresh memory in Court, the document must have been created and verified contemporaneously with the original event. The witness must have created or verified the original note. Some courts have held that the copy of the notes produced in court to refresh memory should be the original. This is not established as a universal rule.
The other side may inspect the record and notes. The Judge may require to see the notes.
The principle as to notes appears to extend to contemporaneous documentation equivalent to notes such as documentation and records used in tests.
Video Link Evidence
Legislation enacted over the last 30 years has allowed certain categories of witnesses to give evidence other than in open court, subject to full cross-examination. Children’s evidence may be given through a video link, through intermediaries and through pre-recorded statements, subject to certain conditions. This legislation raises questions as to the balance between the accused’s right to a fair trial and the interests of potentially vulnerable witnesses.
The most widely used special measure in respect of vulnerable and potentially intermediated witnesses is the giving of evidence through a video link. The legislation allows children and adults who lack mental capacity, to testify via a video link in a trial involving a sexual or violent crime unless the Court sees good reason to the contrary. Later legislation allowed for witnesses, who were prospectively subject to intimidation to give evidence via video link.
Any witness may be heard on these terms with the leave of the Court. If the judge thinks it is necessary to protect the victim from further victimisation, the victim can give evidence by live video link. Witnesses may be outside the State.
The provisions as to children giving evidence by video link, also apply to persons with so-called mental handicaps, who are over 18. They may give evidence via video link unless the court sees good reason to the contrary.
Video link is allowed for any adult witness in any proceedings for sexual or violent offence. A person other than the accused may give evidence through a live video link with the leave of the Court.
A challenge to video link evidence was made on the basis that it deprived the accused of his right to confront a witness. The right of live confrontation of witnesses in open court was argued to be an essential part of the system of justice under the Constitution.
The High Court was satisfied that it was not a necessary part of due procedure. The principle was upheld by the Irish Supreme Court. The Supreme Court was prepared to uphold the relevant provision on the basis that the Jury could see the witness and his demeanour and that the Judge retained an overall role in ensuring the fairness of the process.
The Accused
Historically, the accused in a criminal trial was not permitted to testify at all. This principle was reformed by legislation at the end of the 19th century, which was re-enacted in a modified form in 1924. The general position remains that the accused need not give evidence and cannot be compelled as a witness by the prosecution.
If, however, he chooses to give evidence, he may be cross-examined. If but only if he offers evidence on his character, then the accused may be cross-examined in relation to his character and evidence may be given of his bad character or past misconduct.
The fact that the accused cannot be compelled to give evidence for the prosecution would mean that he may not be compelled to give evidence against accomplices and other accessories. If, however,
- he has pleaded guilty or
- where the Court severs the indictment or
- directs that the accused be tried separately or
- he has entered a guilty plea or
- the prosecution has been withdrawn,
the former accused is both competent and may be compelled to give evidence by the prosecution.
Children’s Evidence
Children under 14 are not required to take the oath. They will be allowed to give unsworn evidence, provided they can give an intelligible account of the events concerned. The historical objection to children taking the oath was their presumed lack of appreciation of the solemnity of the occasion and the responsibility that it carried.
Ultimately the Criminal Evidence Act 1992 allows unsworn evidence by children under 14, provided that the Court is satisfied that the child is capable of giving an intelligible account of events, relevant to the proceedings.
The Court may choose to permit a child under 14 to take the oath. However, the 1992 legislation reduced the distinction between sworn and unsworn evidence. There is no requirement for corroboration of the unsworn testimony of children. The judge need not caution the jury regarding convicting the accused on the evidence of unsworn evidence of a child, unlike the former position. The Court retains a discretion to warn, which may be exercised by the Judge having regard all the circumstances.
The legislation provides that the unsworn evidence of one child may corroborate the unsworn evidence of another child.
A child who knowingly gives false evidence may be convicted in the same way as if guilty of perjury.
The anonymity of Children Generally
The Children Act safeguards the anonymity of children at trial. It is not permitted to reveal the name, address, school and any other particulars of a child, which may lead to identification. No picture or other matter may be published or included in a broadcast that may identify the child. The court may dispense with the requirements to the extent that is appropriate in the interests of the child. If the Court dispenses with the requirement, it must explain in open court, why it does so.
Where in proceedings for an offence, a person who is a child is called as a witness, the Court may exclude from the Court during the taking of his or her evidence, all persons except officers of the Court, persons directly concerned in the proceedings and a bona fide representatives of the press or such other persons as it may permit to remain.
Child Defendant
The provisions as to children giving evidence by video link also apply to persons with a so-called mental handicap, who are over 18. They may give evidence via video link unless the court sees good reason to the contrary.
Video link is allowed for any adult witness in any proceedings for a sexual or violent offence. A person other than the accused may give evidence through a live video link with the leave of the Court.
Violent and Sexual Offences
The Criminal Evidence Act 1992 makes special provision in relation to a range of sexual and violent offences. They allow for the evidence to be given through live television link, by persons under 18, unless the Court sees good reason to the contrary. More generally, it allows evidence to be given by video link, by all persons with leave of court.
It applies to the trial and pre-trial application for dismissal of charges. Where a trial is being held in an area that does not have video link facilities, there is provision to apply to move it to such an area.
The constitutionality of the provision has been upheld as set out in another chapter. It was challenged on the basis of denying the accused the right to confront his witnesses. The challenge failed in the High Court and ultimately in the Supreme Court.
The 1992 Act allows that in relation to a sexual offence, an offence involving violence or the threat of violence to a person, or an offence consisting of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, those offences person under 18 and on the application of the prosecution others, other than the accused may give evidence through a video link,
If satisfied having regard to the age and mental condition of the witness, the interest of justice required questions be put through an intermediary, direct that questions be so put.
The intermediary is to be appointed by the Court and is to be in its opinion a person competent to act as such. A question shall be either in the words used by the question or so as to convey to the witness in a way that is appropriate to his age and mental condition. There are limits to the availability of appropriate intermediaries or experts standing appointed.
Video Recording
A video recording of a statement by a child, who is an alleged victim of an offence, may be admissible. The child must be available for cross-examination. The statements are admissible in the same manner as oral evidence. They must be available for cross-examination. There is no requirement that the statement be contemporaneous with the trial.
It is a matter for jury to weigh the evidence. The prosecution must give prior notice to the defence of its intention to use a videoed statement. The defence must be given the opportunity to see the recording of the interview.
Pre-trial statements may be admitted in cases where witness refuses to testify in context of witness intimidation.
Anonymity Children
The Children Act safeguards the anonymity of children at trial. It is not permitted to reveal the name, address, school and any other particulars of a child, which may lead to identification. No picture or other matter may be published or included in a broadcast that may identify a child. The court may dispense with the requirements to the extent that is appropriate in the interests of the child. If the Court dispenses with the requirement, it must explain in open court, why it does so.
Where in proceedings for an offence, a person who is a child is called as a witness, the Court may exclude from the Court during the taking of his or her evidence, all persons except officers of the Court, persons directly concerned in the proceedings and a bona fide representatives of the press or such other persons as it may permit to remain.
Anonymity General
Apart from any other enactment or rule of law, a court may order such “anonymity measures” under the 2023 Act to be taken in relation to a witness in criminal proceedings as the court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings. The anonymity measures referred to in that subsection may include—
- that the witness’s name and other identifying details may be withheld, removed from materials disclosed to any party to the proceedings, or both,
- that the witness may use a pseudonym,
- that the witness shall not be asked questions of a description specified by the court that might lead to the identification of the witness,
- that the witness shall be screened to an extent specified by the court, and
- that the witness’s voice shall be altered by appropriate means specified by the court.
Anonymity Measures
Anonymity measures shall not include measures to prevent—
- the witness from being visible to the judge or judges, or to the jury (if any), or
- the witness’s unaltered voice being heard by the judge or judges, or by the jury.
The court shall not order anonymity measures unless it is satisfied that the measures would be consistent with the defendant receiving a fair trial and are necessary to—
- protect the safety of the witness concerned or of another person connected to the witness or to prevent serious damage to property,
- protect the anonymity of a law enforcement official, where that anonymity is necessary for the proper performance of that official’s duties, or
- avoid harm to the public interest,
In determining whether measures should be ordered, the court shall have regard to—
- the general principle that a defendant should know the identity of witnesses,
- the extent to which the credibility of the witness is at issue,
- whether the evidence of the witness may be the sole or decisive evidence,
- whether the evidence of the witness is corroborated,
- whether the evidence of the witness may be properly tested without his or her identity being disclosed,
- whether there is any reason to believe the witness is or may be dishonest, or has any motive to be dishonest in the particular case, and
- such other factors as the court considers relevant.
A determination by the court that the evidence of the witness may be the sole or decisive evidence shall not, in and of itself, preclude the court from ordering anonymity measures, provided that the court is satisfied that the conditions above apply.
Application for Anonymity Measures
An application for anonymity measures may be made by the prosecutor or the defendant and where it is made by the prosecutor, he or she—
- shall, (unless the court directs otherwise) inform the court of the identity of the witness, and
- is not required to disclose the identity of the witness, or any information that might enable the witness to be identified, to any other party to the proceedings or to the defendant’s legal representatives,
Where it is made by the defendant, he or she—
- shall inform the court and the prosecutor of the identity of the witness, and
- is not required to disclose the identity of the witness, or any information that might enable the witness to be identified, to any other defendant or to that other defendant’s legal representatives.
The court shall give every party to the proceedings the opportunity to be heard with regard to an application. Where the court considers it necessary for the purpose of properly considering an application it may hear one or more parties, or examine the proposed witness in relation to whom the application is made, or other witnesses, in the absence of the defendant and his or her legal representatives.
Where a person proposes to make an application, he or she may, disclose documents or other material that fall to be disclosed, or are sought to be relied on, by him or her, subject to such redactions as are necessary to avoid identifying the witness in respect of whom the application was made or enabling that witness to be identified.
Where a witness in relation to whom anonymity measures apply has given evidence in a trial before a jury, the judge shall caution the jury in such terms as he or she considers necessary for the purpose of avoiding prejudice to the defendant.
A court may, on notice, vary or discharge an order where the court is satisfied that it is in the interest of justice to do so.