Witnesses
CRIMINAL JUSTICE ACT, 1999
CRIMINAL JUSTICE ACT 1999
Witnesses in fear or subject to intimidation.
39.—(1) Subject to subsection (2), in any proceedings on indictment for an offence (including proceedings under Part IA of the Act of 1967) a person other than the accused may, with the leave of the court, give evidence through a live television link.
(2) A court shall not grant leave under subsection (1) unless it is satisfied that the person is likely to be in fear or subject to intimidation in giving evidence otherwise.
(3) Evidence given under subsection (1) shall be videorecorded.
(4) In any proceedings referred to in subsection (1) in any circuit or district court district where the court is satisfied that leave should be granted for evidence to be given through a live television link pursuant to subsection (1) but the necessary facilities for doing so are not available in that circuit or district, the court may by order transfer the proceedings to a circuit or district court district where such facilities are available and, where such an order is made, the jurisdiction of the court to which the proceedings have been transferred may be exercised—
(a) in the case of the Circuit Court, by the judge of the circuit concerned, and
(b) in the case of the District Court, by the judge of that court for the time being assigned to the district court district concerned.
(5) Where evidence is given by a person (“the witness”) through a live television link pursuant to subsection (1)—
(a) in case evidence is given that the accused was known to the witness before the date on which the offence in question is alleged to have been committed, the witness shall not be required to identify the accused, unless the court in the interests of justice directs otherwise, and
(b) in any other case, evidence by a person other than the witness that the witness identified the accused as being the offender at an identification parade or by other means shall be admissible as evidence that the accused was so identified.
(6) This section is without prejudice to any other enactment providing for the giving of evidence through a live television link.
Relocated Witnesses.
40.—(1) A person who without lawful authority makes enquiries or takes any other steps whatever, whether within or outside the State, for the purpose of discovering—
(a) the whereabouts of a person whom he or she knows, or reasonably suspects, to be a relocated witness, or
(b) any new name or other particulars related to any new identity provided for such a witness,
shall be guilty of an offence.
(2) A person who without lawful authority discloses, whether within or outside the State, to any other person any information (including information lawfully obtained pursuant to subsection (1)) concerning—
(a) the whereabouts of a person whom he or she knows, or reasonably suspects, to be a relocated witness, or
(b) any new name or other particulars related to any new identity provided for such a person,
shall be guilty of an offence.
(3) In this section “relocated witness” means any person who intends to give or has given evidence in proceedings for an offence and who as a consequence has moved residence, under any programme operated by the Garda Síochána for the protection of witnesses, to any place, whether within or outside the State.
(4) In this section “lawful authority” means the authority of—
(a) a court in any proceedings involving the relocated witness, or
(b) a member of the Garda Síochána not below the rank of chief superintendent.
(5) A court shall give authority pursuant to subsection (1) or (2) only if it is satisfied—
(a) that to do so would be in the interests of justice, and
(b) that another way of proceeding which would not prejudice the continued participation of the relocated witness in the programme aforesaid, including, without prejudice to the generality of the foregoing, the transmission of any documents required to be served on the witness to the Commissioner of the Garda Síochána for the purpose of effecting such service, is not available.
(6) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both, and
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding five years or both.
Intimidation etc. of witnesses, jurors and others.
41.—(1) Without prejudice to any provision made by any other enactment or rule of law, a person—
(a) who harms or threatens, menaces or in any other way intimidates or puts in fear another person who is assisting in the investigation by the Garda Síochána of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, or a member of his or her family,
(b) with the intention thereby of causing the investigation or the course of justice to be obstructed, perverted or interfered with,
shall be guilty of an offence.
(2) In this section, “potential juror” means a person who, at the time an offence under this section is alleged to have been committed, has been summoned for jury service but has not been empanelled as a juror to serve on a particular jury.
(3) In proceedings for an offence under this section, proof to the satisfaction of the court or jury, as the case may be, that the accused did an act referred to in subsection (1)(a) shall be evidence that the act was done with the intention required by subsection (1)(b).
(4) In subsection (1) the reference to a member of a person’s family includes a reference to—
(a) the person’s spouse,
(b) a parent, grandparent, step-parent, child (including a step-child or an adopted child), grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece of the person or his or her spouse, or
(c) any person who is cohabiting or residing with him or her.
(5) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both, and
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 10 years or both.
CRIMINAL PROCEDURE ACT 2010
REVISED
Updated to 1 November 2023
AN ACT TO AMEND AND EXTEND THE CRIMINAL JUSTICE ACT 1993; TO AMEND CRIMINAL LAW AND PROCEDURE IN OTHER RESPECTS, INCLUDING MAKING PROVISION FOR EXCEPTIONS TO THE RULE AGAINST DOUBLE JEOPARDY SO AS TO ENABLE THE COURT OF CRIMINAL APPEAL TO HEAR AND DETERMINE APPLICATIONS BROUGHT IN CERTAIN CIRCUMSTANCES BY THE DIRECTOR OF PUBLIC PROSECUTIONS TO QUASH CERTAIN ACQUITTALS AND TO HAVE PERSONS WHO ARE THE SUBJECT OF THOSE APPLICATIONS RE-TRIED, AND TO PROVIDE FOR AN APPEAL TO THE SUPREME COURT ON A POINT OF LAW FROM A DETERMINATION OF THE COURT OF CRIMINAL APPEAL IN RESPECT OF SUCH APPLICATIONS; TO EXTEND THE POWERS OF THE GARDA SÍOCHÁNA IN RELATION TO THE INVESTIGATION OF CERTAIN OFFENCES; TO EXTEND THE CIRCUMSTANCES IN WHICH THE DIRECTOR OF PUBLIC PROSECUTIONS OR THE ATTORNEY GENERAL, AS MAY BE APPROPRIATE, MAY TAKE AN APPEAL IN CRIMINAL PROCEEDINGS; TO AMEND THE CRIMINAL JUSTICE (EVIDENCE) ACT 1924 AND TO AMEND AND EXTEND THE LAW RELATING TO EVIDENCE IN OTHER RESPECTS; TO AMEND THE CRIMINAL JUSTICE ACT 1994, THE COURTS ACT 1991, THE CRIMINAL PROCEDURE ACT 1967, THE CRIMINAL JUSTICE (LEGAL AID) ACT 1962, THE CRIMINAL JUSTICE ACT 1951, THE OFFENCES AGAINST THE STATE ACT 1939 AND THE COURTS OF JUSTICE ACT 1924; AND TO PROVIDE FOR RELATED MATTERS.
[20th July, 2010]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART 1
Preliminary and General
Short title and commencement.
1.— (1) This Act may be cited as the Criminal Procedure Act 2010.
(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
Annotations
Editorial Notes:
E1
Power pursuant to section exercised (31.08.2010) by Criminal Procedure Act 2010 (Commencement) Order 2010 (S.I. No. 414 of 2010).
2. The 1st day of September 2010 is appointed as the day on which the Criminal Procedure Act 2010 (No. 27 of 2010) shall come into operation.
Interpretation.
2.— (1) In this Act unless the context otherwise requires—
“Act of 1962” means the Criminal Justice (Legal Aid) Act 1962;
“Act of 1967” means the Criminal Procedure Act 1967;
“Act of 1993” means the Criminal Justice Act 1993;
“broadcast” has the meaning it has in section 2 of the Broadcasting Act 2009;
“children detention school” has the meaning it has in section 3(1) of the Children Act 2001;
“Director” means the Director of Public Prosecutions;
F1[“legal aid (appeal) certificate” has the meaning it has in the Act of 1962;]
“legal aid (Supreme Court) certificate” has the meaning it has in the Act of 1962;
“legal aid (trial on indictment) certificate” has the meaning it has in the Act of 1962;
“Minister” means the Minister for Justice and Law Reform;
“prison” has the meaning it has in section 2 of the Prisons Act 2007;
“publication” means publication, other than by way of broadcast, to the public or a portion of the public.
(2) In this Act, unless the context otherwise requires, references to—
(a) a jury shall, in relation to proceedings conducted before a court sitting without a jury, be construed as references to that court, and
(b) a person being sent forward for trial include, where appropriate, references to such a person being sent or being sent forward for trial to, or charged before, a Special Criminal Court.
Annotations
Amendments:
F1
Inserted (28.10.2014) by Court of Appeal Act 2014 (18/2014), s. 71(a), S.I. No. 479 of 2014.
Expenses.
3.— The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.
PART 2
Impact of Crime on Victim
Amendment of section 5 of Act of 1993.
4.— The Act of 1993 is amended by the substitution of the following section for section 5:
“Effect of certain offences on persons in respect of whom offence committed.
5.— (1) This section applies to—
(a) a sexual offence within the meaning of the Criminal Evidence Act 1992,
(b) an offence involving violence or the threat of violence to a person,
(c) an offence under the Non-Fatal Offences Against the Person Act 1997, and
(d) an offence consisting of attempting or conspiring to commit, or aiding, abetting, counselling, procuring or inciting the commission of, an offence mentioned in paragraph (a), (b) or (c).
(2) (a) When imposing sentence on a person for an offence to which this section applies, a court shall take into account, and may, where necessary, receive evidence or submissions concerning, any effect (whether long-term or otherwise) of the offence on the person in respect of whom the offence was committed.
(b) For the purposes of paragraph (a), a ‘person in respect of whom the offence was committed’ includes, where, as a result of the offence, that person has died, is ill or is otherwise incapacitated, a family member of that person.
(3) (a) When imposing sentence on a person for an offence to which this section applies, a court shall, upon application by the person in respect of whom such offence was committed, hear the evidence of the person in respect of whom the offence was committed as to the effect of the offence on such person.
(b) For the purpose of paragraph (a), where the person in respect of whom the offence was committed—
(i) is a child under the age of 14 years, the child, or his or her parent or guardian, may give evidence as to the effect of the offence concerned on that child,
(ii) is—
(I) a person with a mental disorder (not resulting from the offence concerned), the person or a family member,
(II) a person with a mental disorder (not resulting from the offence concerned), who is a child, the person or his or her parent or guardian,
may give evidence as to the effect of the offence concerned on that person,
(iii) is a person who is ill or is otherwise incapacitated as a result of the offence, a family member of the person may give evidence as to the effect of the offence concerned on that person and on his or her family members,
(iv) has died as a result of the offence, a family member of the person may give evidence as to the effect of the offence concerned—
(I) on the person between the commission of the offence and his or her death (where relevant), and
(II) on the family members of the person who has died.
(c) A person who has been convicted of an offence to which this section applies may not give evidence pursuant to paragraph (b) in respect of that offence.
(d) Where more than one family member seeks to avail of paragraph (b), the court may direct the family members to nominate one or more family members for the purpose of that paragraph.
(e) Where the court directs the family members to nominate one or more family members pursuant to paragraph (d) and the family members are unable to reach agreement, the court may, having regard to the degree of relationship between the family members and the person in respect of whom the offence was committed, nominate one or more family members as it considers appropriate.
(4) Where no evidence is given pursuant to subsection (3), the court shall not draw an inference that the offence had little or no effect (whether long-term or otherwise) on the person in respect of whom the offence was committed or, where appropriate, on his or her family members.
(5) (a) The court may, in the interests of justice, order that information relating to the evidence given under subsection (3) or a part of it shall not be published or broadcast.
(b) If any matter is published or broadcast in contravention of paragraph (a), the following persons, namely—
(i) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,
(ii) in the case of any other publication, the person who publishes it, and
(iii) in the case of a broadcast, any person who transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of the editor of a newspaper,
shall be guilty of an offence.
(c) A person guilty of an offence under paragraph (b) shall be liable—
(i) on summary conviction, to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 12 months or to both, or
(ii) on conviction on indictment, to a fine not exceeding €50,000 or to imprisonment for a term not exceeding 3 years or to both.
(d) Where an offence under paragraph (b) is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate or any other person who was acting or purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(e) Where the affairs of a body corporate are managed by its members, paragraph (d) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.
(6) In this section and in sections 5A and 5B, unless the context otherwise requires—
‘broadcast’ has the meaning it has in section 2 of the Broadcasting Act 2009;
‘child’ means a person under the age of 18;
‘family member’ means—
(a) a spouse or partner of the person,
(b) a child, grandchild, parent, grandparent, brother, sister, uncle, aunt, nephew or niece of the person,
(c) a person who is acting in loco parentis to the person,
(d) a dependant of the person, or
(e) any other person whom the court considers to have had a close connection with the person;
‘guardian’, in relation to a child, has the meaning it has in the Children Act 2001;
‘mental disorder’ includes a mental illness, mental disability, dementia or any disease of the mind;
‘publish’ means publish, other than by way of broadcast, to the public or a portion of the public.”.
Evidence through television link.
5.— The Act of 1993 is amended by the insertion of the following section after section 5:
“5A.— (1) (a) A child or a person with a mental disorder in respect of whom an offence to which section 5 applies was committed, may give evidence pursuant to section 5(3), whether from within or outside the State, through a live television link unless the court sees good reason to the contrary.
(b) Any other person in respect of whom an offence to which section 5 applies was committed may, with the leave of the court, give evidence pursuant to section 5(3), whether from within or outside the State, through a live television link.
(2) Evidence given under subsection (1) shall be videorecorded.
(3) While evidence is being given pursuant to subsection (1) (except through an intermediary pursuant to section 5B(1)), neither the judge, nor the barrister or solicitor concerned in the examination of the witness, shall wear a wig or gown.”.
Evidence through intermediary.
6.— The Act of 1993 is amended by the insertion of the following section after section 5A:
“5B.— (1) Where a child or a person with a mental disorder is giving, or is to give evidence through a live television link, pursuant to section 5A, the court may, on the application of the prosecution or the accused, if satisfied that, having regard to the age or mental condition of the witness, the interests of justice require that any questions to be put to the witness be put through an intermediary, direct that any such questions be so put.
(2) Questions put to a witness through an intermediary under this section shall be either in the words used by the questioner or so as to convey to the witness in a way which is appropriate to his or her age and mental condition, the meaning of the questions being asked.
(3) An intermediary referred to in subsection (1) shall be appointed by the court and shall be a person who, in its opinion, is competent to act as such.”
Chapter 1
Giving of Evidence
Amendment of Criminal Justice (Evidence) Act 1924.
33.— The Criminal Justice (Evidence) Act 1924 is amended—
(a) in section (1)(f)—
(i) in subparagraph (ii)—
(I) by the substitution of “questions of any witness” for “questions for the witnesses for the prosecution”, and
(II) by the substitution of “person in respect of whom the offence was alleged to have been committed” for “prosecutor”,
and
(ii) by the insertion of the following subparagraph after subparagraph (iii):
“(iiia) the person has personally or by the person’s advocate asked questions of any witness for the purpose of making, or the conduct of the defence is such as to involve, imputations on the character of a person in respect of whom the offence was alleged to have been committed and who is deceased or is so incapacitated as to be unable to give evidence; or”,
and
(b) by the insertion of the following section after section 1:
“
Evidence of character.
1A.— Where a person charged with an offence intends to adduce evidence, personally or by the person’s advocate, of a witness, including the person, that would involve imputations on the character of a prosecution witness or a person in respect of whom the offence is alleged to have been committed and who is either deceased or so incapacitated as to be unable to give evidence, or evidence of the good character of the person—
(a) the person may do so only if he or she—
(i) has given, either personally or by his or her advocate, at least 7 days’ notice to the prosecution of that intention, or
(ii) has applied to the court, citing the reasons why it is not possible to give the notice, and been granted leave to do so,
and
(b) notwithstanding section 1(f), the person may be called as a witness and be asked, and the prosecution may ask any other witness, questions that—
(i) would show that the person has been convicted of any offence other than the one wherewith he or she is then charged, or is of bad character, or
(ii) would show that the person in respect of whom the offence was alleged to have been committed is of good character.”.
Expert evidence adduced by defence.
34.— (1) An accused shall not call an expert witness or adduce expert evidence unless leave to do so has been granted under this section.
F12[(2) Where the defence intends to call an expert witness or adduce expert evidence, whether or not in response to such evidence presented by the prosecution, notice of the intention shall be given to the prosecution at least 28 days prior to—
(a) the scheduled date of the start of the trial,
(b) the scheduled date of a preliminary trial hearing (within the meaning of Part 2 of the Criminal Procedure Act 2021), where the defence intends to call the expert witness or adduce the expert evidence, as the case may be, at that hearing, or
(c) such earlier date as the court may direct.]
(3) A notice under subsection (2) shall be in writing and shall include—
(a) the name and address of the expert witness, and
(b) any report prepared by the expert witness concerning a matter relevant to the case, including details of any analysis carried out by or on behalf of, or relied upon by, the expert witness, or a summary of the findings of the expert witness.
(4) The court may grant leave to call an expert witness or adduce expert evidence even if no report or summary of the findings are included as required by subsection (3)(b), if the court is satisfied that the accused took all reasonable steps to secure the report or summary before giving the notice.
(5) The court shall grant leave under this section to call an expert witness or adduce expert evidence, on application by the defence, if it is satisfied that the expert evidence to be adduced satisfies the requirements of any enactment or rule of law relating to evidence and that—
(a) subsections (2) and (3) have been complied with,
F12[(b) where notice was not given within the period specified in paragraph (a), (b) or (c), as the case may be, of subsection (2) —
(i) it would not, in all the circumstances of the case, have been reasonably possible for the defence to have done so, or
(ii) it is otherwise necessary in the interests of justice that the expert witness give evidence or the expert evidence be adduced,
or]
(c) where the prosecution has adduced expert evidence, a matter arose from that expert’s testimony that was not reasonably possible for the defence to have anticipated and it would be in the interests of justice for that matter to be further examined in order to establish its relevance to the case.
(6) The prosecution shall be heard in an application under subsection (4) or (5).
(7) A notice required by this section to be given to the prosecution may be given by delivering it to the prosecutor, or by leaving it at his or her office or by sending it by registered post to his or her office.
(8) Where the court grants leave under this section, the prosecution shall be given a reasonable opportunity to consider the report or summary before the expert witness gives the evidence or the evidence is otherwise adduced.
(9) In this section—
“expert evidence” means evidence of fact or opinion given by an expert witness, and
“expert witness” means a person who appears to the court to possess the appropriate qualifications or experience about the matter to which the witness’s evidence relates.
Annotations:
Amendments:
F12
Substituted (28.02.2022) by Criminal Procedure Act 2021 (7/2021), s. 18(a), (b), S.I. No. 79 of 2022.
Return or disposal of property to be used as evidence.
35.— (1) This section applies where property that is to be entered in evidence in a criminal trial is to be—
(a) returned to its owner, or
(b) disposed of,
before the trial begins.
(2) Where the prosecution proposes to dispose of property that is to be entered in evidence or return it to its owner before the scheduled date of the start of the trial, the prosecution shall serve a notice under this section (the “prosecution notice”) on the accused at any time that is at least 23 days prior to that date.
(3) The prosecution notice shall contain a description of the property in sufficient detail to identify it and a statement as to the relevance of the property to the proceedings, together with—
(a) one or more photographs of the property, and
(b) any report that the prosecution proposes to enter in evidence arising from the analysis of the property, including analysis of any materials found in or on the property (the “prosecution report of evidence”).
(4) Not later than 7 days after service of the prosecution notice under subsection (2), the defence shall serve on the prosecution a notice in writing (the “defence notice”) that indicates one of the following:
(a) that the defence accepts the prosecution notice and agrees to the return or disposal of the property;
(b) that the defence wishes to provide to the prosecution a report that conforms with subsection (3) (the “defence report of evidence”);
(c) that the defence requires the property to be available as an exhibit at the trial.
(5) Where the defence notice served under subsection (4) is a notice mentioned in paragraph (b) of that subsection, then, notwithstanding section 34, the defence shall, not later than 7 days after service of that notice, serve the defence report of evidence on the prosecution.
(6) Where a defence report of evidence is served on the prosecution under subsection (5), the prosecution shall, not later than 3 days prior to the scheduled date of the start of the trial, provide to the defence and the court a notice stating whether it accepts or rejects that notice (the “prosecution notice of reply”).
(7) If the defence notice under subsection (4) is made under paragraph (a) of that subsection or is made under paragraph (b) of that subsection and a defence report of evidence is served under subsection (5) and accepted under subsection (6), then—
(a) a member of the Garda Síochána not below the rank of inspector shall, on receipt by him or her of a copy of the notice referred to in subsection (4) or (6), cause the property to be returned or disposed of, as the case may be,
(b) the member referred to in paragraph (a) shall keep a written record of the return or disposal of the property, and
(c) where the property is returned to its owner, the owner shall acknowledge in writing the receipt of the property.
(8) The following rules apply to admissibility of evidence:
(a) where subsection (4)(a) applies, the prosecution report of evidence is proof of the facts stated therein, unless the contrary is shown;
(b) where subsection (4)(b) applies and a defence report of evidence is served on the prosecution under subsection (5) and accepted under subsection (6), the defence report of evidence is proof of the facts stated therein, unless the contrary is shown;
(c) where subsection (4)(c) applies, the property may be admitted as evidence in any trial in which the property is otherwise admissible;
(d) in any other case, a report prepared under subsection (3) or (5) may be admitted as evidence in any trial in which the property is otherwise admissible.
(9) Any person who prepares information contained in a report under subsection (3) or (5) may be called to give evidence in relation to all or any part of the report, and may be cross-examined on that evidence.