{"id":1553,"date":"2021-08-01T22:46:05","date_gmt":"2021-08-01T22:46:05","guid":{"rendered":"http:\/\/legalblog.ie\/?p=1553"},"modified":"2024-03-24T14:16:33","modified_gmt":"2024-03-24T14:16:33","slug":"witnesses","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/witnesses\/","title":{"rendered":"Witnesses"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><ul class='ez-toc-list-level-3' ><li class='ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/witnesses\/#General\" title=\"General\">General<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/witnesses\/#Sworn_Evidence\" title=\"Sworn\u00a0 Evidence\">Sworn\u00a0 Evidence<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/witnesses\/#Language\" title=\"Language\">Language<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/witnesses\/#Spontaneous\" title=\"Spontaneous\">Spontaneous<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/witnesses\/#Notes\" title=\"Notes\">Notes<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/witnesses\/#Video_Link_Evidence\" title=\"Video Link Evidence\">Video Link Evidence<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/witnesses\/#The_Accused\" title=\"The Accused\">The Accused<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/witnesses\/#Childrens_Evidence\" title=\"Children&#8217;s Evidence\">Children&#8217;s Evidence<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/witnesses\/#The_anonymity_of_Children_Generally\" title=\"The anonymity of Children Generally\">The anonymity of Children Generally<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/witnesses\/#Child_Defendant\" title=\"Child Defendant\">Child Defendant<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/witnesses\/#Violent_and_Sexual_Offences\" title=\"Violent and Sexual Offences\">Violent and Sexual Offences<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-12\" href=\"https:\/\/legalblog.ie\/witnesses\/#Video_Recording\" title=\"Video Recording\">Video Recording<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-13\" href=\"https:\/\/legalblog.ie\/witnesses\/#Anonymity\" title=\"Anonymity\">Anonymity<\/a><\/li><\/ul><\/li><li class='ez-toc-page-1 ez-toc-heading-level-2'><a class=\"ez-toc-link ez-toc-heading-14\" href=\"https:\/\/legalblog.ie\/witnesses\/2\/#CRIMINAL_JUSTICE_ACT_1999\" title=\"CRIMINAL JUSTICE ACT, 1999\">CRIMINAL JUSTICE ACT, 1999<\/a><ul class='ez-toc-list-level-4' ><li class='ez-toc-heading-level-4'><ul class='ez-toc-list-level-4' ><li class='ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-15\" href=\"https:\/\/legalblog.ie\/witnesses\/2\/#Witnesses_in_fear_or_subject_to_intimidation\" title=\"Witnesses in fear or subject to intimidation.\">Witnesses in fear or subject to intimidation.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-16\" href=\"https:\/\/legalblog.ie\/witnesses\/2\/#Relocated_Witnesses\" title=\"Relocated Witnesses.\">Relocated Witnesses.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-17\" href=\"https:\/\/legalblog.ie\/witnesses\/2\/#Intimidation_etc_of_witnesses_jurors_and_others\" title=\"Intimidation etc. of witnesses, jurors and others.\">Intimidation etc. of witnesses, jurors and others.<\/a><\/li><\/ul><\/li><\/ul><\/li><li class='ez-toc-page-1 ez-toc-heading-level-2'><a class=\"ez-toc-link ez-toc-heading-18\" href=\"https:\/\/legalblog.ie\/witnesses\/2\/#CRIMINAL_PROCEDURE_ACT_2010\" title=\"CRIMINAL PROCEDURE ACT 2010\">CRIMINAL PROCEDURE ACT 2010<\/a><ul class='ez-toc-list-level-4' ><li class='ez-toc-heading-level-4'><ul class='ez-toc-list-level-4' ><li class='ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-19\" href=\"https:\/\/legalblog.ie\/witnesses\/2\/#Interpretation\" title=\"Interpretation.\">Interpretation.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-20\" href=\"https:\/\/legalblog.ie\/witnesses\/2\/#Evidence_through_television_link\" title=\"Evidence through television link.\">Evidence through television link.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-21\" href=\"https:\/\/legalblog.ie\/witnesses\/2\/#Evidence_through_intermediary\" title=\"Evidence through intermediary.\">Evidence through intermediary.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-22\" href=\"https:\/\/legalblog.ie\/witnesses\/2\/#Giving_of_Evidence\" title=\"Giving of Evidence\">Giving of Evidence<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-23\" href=\"https:\/\/legalblog.ie\/witnesses\/2\/#Amendment_of_Criminal_Justice_Evidence_Act_1924\" title=\"Amendment of Criminal Justice (Evidence) Act 1924.\">Amendment of Criminal Justice (Evidence) Act 1924.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-24\" href=\"https:\/\/legalblog.ie\/witnesses\/2\/#Evidence_of_character\" title=\"Evidence of character.\">Evidence of character.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-4'><a class=\"ez-toc-link ez-toc-heading-25\" href=\"https:\/\/legalblog.ie\/witnesses\/2\/#Return_or_disposal_of_property_to_be_used_as_evidence\" title=\"Return or disposal of property to be used as evidence.\">Return or disposal of property to be used as evidence.<\/a><\/li><\/ul><\/li><\/ul><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"General\"><\/span>General<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Most persons are competent and compellable as witnesses.\u00a0 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.<\/p>\n<p>Most witnesses are compellable.\u00a0 This means that they can be required to testify and required to answer any question under the sanction of contempt of court.<\/p>\n<p>Knowingly to give false evidence constitutes the crime of perjury.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Sworn_Evidence\"><\/span>Sworn\u00a0 Evidence<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Witnesses must give sworn evidence.\u00a0 The standard mechanism for sworn evidence is by way an oath.\u00a0 The standard oath reads \u201cI swear by almighty God that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.\u201d The court will not look behind the oath nor enquire into the witness\u2019s religious beliefs or otherwise.<\/p>\n<p>As an alternative to the oath, a witness may take an affirmation.\u00a0 This is in the following form \u201cI 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.\u201d<\/p>\n<p>Unsworn evidence may be inadmissible. It may be a ground for setting aside proceedings or a conviction in a criminal case.<\/p>\n<p>Unsworn evidence may be given by children under 14 or persons who lack mental capacity.\u00a0 Historically the evidence of the child had to be corroborated, but this automatic requirement was removed in 1992.\u00a0 The judge has the discretion to warn the jury on the dangers of convicting on the basis of uncorroborated child\u2019s evidence.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Language\"><\/span>Language<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A witness may testify in English or in Irish.\u00a0 Where a person witness testifies in a foreign language, a translation is required.\u00a0 The translator must take an oath as to the veracity of his translation.<\/p>\n<p>There is the European Directive on the right to interpretation and translation of criminal hearings and investigations.\u00a0 A suspect who does not speak or understand the relevant language should be afforded a translation during the investigation and at trial.<\/p>\n<p>A witness must give evidence verbally and spontaneously without notes.\u00a0 Certain notes are permissible in limited circumstances.\u00a0 Members of An Garda S\u00edoch\u00e1na and other enforcement officers will typically employ notes to refresh their memory of particular matters and events.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Spontaneous\"><\/span>Spontaneous<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Although a witnesses\u2019 evidence should be spontaneous, there is nothing in principle, wrong with the witness refreshing his memory before giving evidence.\u00a0 However, if a witness appears to have been coached the witness in any way, it is likely to damage his credibility.\u00a0 Coaching a witness may be an abuse of process.<\/p>\n<p>A witness may refresh his evidence by referring to contemporaneous notes.\u00a0 Members of An Garda S\u00edoch\u00e1na will commonly refer to their notebook in giving evidence.\u00a0 However, the statements, notebooks etc. and notes themselves would constitute hearsay and be inadmissible.<\/p>\n<p>A distinction is drawn between present recollection refreshed and past recollection recorded.\u00a0 The former is acceptable while the latter would constitute hearsay.\u00a0 The position may be somewhat artificial.\u00a0 The Criminal Evidence Act allows certain written records to be admissible as hearsay, subject to conditions.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Notes\"><\/span>Notes<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 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.\u00a0 This is not established as a universal rule.<\/p>\n<p>The other side may inspect the record and notes.\u00a0 The Judge may require to see the notes.<\/p>\n<p>The principle as to notes appears to extend to contemporaneous documentation equivalent to notes such as documentation and records used in tests.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Video_Link_Evidence\"><\/span>Video Link Evidence<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.\u00a0 Children&#8217;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&#8217;s right to a fair trial and the interests of potentially vulnerable witnesses.<\/p>\n<p>The most widely used special measure in respect of vulnerable and potentially intermediated witnesses is the giving of evidence through a video link.\u00a0 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.\u00a0 Later legislation allowed for witnesses, who were prospectively subject to intimidation to give evidence via video link.<\/p>\n<p>Any witness may be heard on these terms with the leave of the Court.\u00a0 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.<\/p>\n<p>The provisions as to children giving evidence by video link, also apply to persons with so-called mental handicaps, who are over 18.\u00a0 They may give evidence via video link unless the court sees good reason to the contrary.<\/p>\n<p>Video link is allowed for any adult witness in any proceedings for sexual or violent offence. \u00a0A person other than the accused may give evidence through a live video link with the leave of the Court.<\/p>\n<p>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.<\/p>\n<p>The High Court was satisfied that it was not a necessary part of due procedure. The principle was upheld by the Irish Supreme Court.\u00a0 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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"The_Accused\"><\/span>The Accused<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Historically, the accused in a criminal trial was not permitted to testify at all.\u00a0 This principle was reformed by legislation at the end of the 19th century, which was re-enacted in a modified form in 1924.\u00a0 The general position remains that the accused need not give evidence and cannot be compelled as a witness by the prosecution.<\/p>\n<p>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.<\/p>\n<p>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.\u00a0 If, however,<\/p>\n<ul>\n<li>he has pleaded guilty or<\/li>\n<li>where the Court severs the indictment or<\/li>\n<li>directs that the accused be tried separately or<\/li>\n<li>he has entered a guilty plea or<\/li>\n<li>the prosecution has been withdrawn,<\/li>\n<\/ul>\n<p>the former accused is both competent and may be compelled to give evidence by the prosecution.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Childrens_Evidence\"><\/span>Children&#8217;s Evidence<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Children under 14 are not required to take the oath.\u00a0 They will be allowed to give unsworn evidence, provided they can give an intelligible account of the events concerned.\u00a0 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.<\/p>\n<p>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.<\/p>\n<p>The Court may choose to permit a child under 14 to take the oath.\u00a0 However, the 1992 legislation reduced the distinction between sworn and unsworn evidence.\u00a0 There is no requirement for corroboration of the unsworn testimony of children.\u00a0 The judge need not caution the jury regarding convicting the accused on the evidence of unsworn evidence of a child, unlike the former position.\u00a0 The Court retains a discretion to warn, which may be exercised by the Judge having regard all the circumstances.<\/p>\n<p>The legislation provides that the unsworn evidence of one child may corroborate the unsworn evidence of another child.<\/p>\n<p>A child who knowingly gives false evidence may be convicted in the same way as if guilty of perjury.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"The_anonymity_of_Children_Generally\"><\/span>The anonymity of Children Generally<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Children Act safeguards the anonymity of children at trial.\u00a0 It is not permitted to reveal the name, address, school and any other particulars of a child, which may lead to identification.\u00a0 No picture or other matter may be published or included in a broadcast that may identify the child. \u00a0The 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.<\/p>\n<p>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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Child_Defendant\"><\/span>Child Defendant<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The provisions as to children giving evidence by video link also apply to persons with a so-called mental handicap, who are over 18.\u00a0 They may give evidence via video link unless the court sees good reason to the contrary.<\/p>\n<p>Video link is allowed for any adult witness in any proceedings for a sexual or violent offence. \u00a0A person other than the accused may give evidence through a live video link with the leave of the Court.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Violent_and_Sexual_Offences\"><\/span>Violent and Sexual Offences<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Criminal Evidence Act 1992 makes special provision in relation to a range of sexual and violent offences.\u00a0 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.\u00a0 More generally, it allows evidence to be given by video link, by all persons with leave of court.<\/p>\n<p>It applies to the trial and pre-trial application for dismissal of charges.\u00a0 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.<\/p>\n<p>The constitutionality of the provision has been upheld as set out in another chapter.\u00a0 It was challenged on the basis of denying the accused the right to confront his witnesses.\u00a0 The challenge failed in the High Court and ultimately in the Supreme Court.<\/p>\n<p>The 1992 Act allows that in relation to \u00a0a 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 \u00a0person under 18 and on the application of the prosecution others, other than the accused may \u00a0give evidence through a video link,<\/p>\n<p>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.<\/p>\n<p>The intermediary is to be appointed by the Court and is to be in its opinion a person competent to act as such.\u00a0 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.\u00a0 There are limits to the availability of appropriate intermediaries or experts standing appointed.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Video_Recording\"><\/span>Video Recording<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A video recording of a statement by a child, who is an alleged victim of an offence, may be admissible.\u00a0 The child must be available for cross-examination.\u00a0 The statements are admissible in the same manner as oral evidence.\u00a0 They must be available for cross-examination.\u00a0 There is no requirement that the statement be contemporaneous with the trial.<\/p>\n<p>It is a matter for jury to weigh the evidence.\u00a0 The prosecution must give prior notice to the defence of its intention to use a videoed statement.\u00a0 The defence must be given the opportunity to see the recording of the interview.<\/p>\n<p>Pre-trial statements may be admitted in cases where witness refuses to testify in context of witness intimidation.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Anonymity\"><\/span>Anonymity<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Children Act safeguards the anonymity of children at trial.\u00a0 It is not permitted to reveal the name, address, school and any other particulars of a child, which may lead to identification.\u00a0 No picture or other matter may be published or included in a broadcast that may identify a child. \u00a0The 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.<\/p>\n<p>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.<\/p>\n<p><!--nextpage--><\/p>\n<h2>CRIMINAL JUSTICE ACT, 1999<\/h2>\n<p>&nbsp;<\/p>\n<p>CRIMINAL JUSTICE ACT 1999<\/p>\n<h4>Witnesses in fear or subject to intimidation.<\/h4>\n<p>39.\u2014(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.<\/p>\n<p>(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.<\/p>\n<p>(3) Evidence given under subsection (1) shall be videorecorded.<\/p>\n<p>(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\u2014<\/p>\n<p>(a) in the case of the Circuit Court, by the judge of the circuit concerned, and<\/p>\n<p>(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.<\/p>\n<p>(5) Where evidence is given by a person (\u201cthe witness\u201d) through a live television link pursuant to subsection (1)\u2014<\/p>\n<p>(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<\/p>\n<p>(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.<\/p>\n<p>(6) This section is without prejudice to any other enactment providing for the giving of evidence through a live television link.<\/p>\n<h4>Relocated Witnesses.<\/h4>\n<p>40.\u2014(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\u2014<\/p>\n<p>(a) the whereabouts of a person whom he or she knows, or reasonably suspects, to be a relocated witness, or<\/p>\n<p>(b) any new name or other particulars related to any new identity provided for such a witness,<\/p>\n<p>shall be guilty of an offence.<\/p>\n<p>(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\u2014<\/p>\n<p>(a) the whereabouts of a person whom he or she knows, or reasonably suspects, to be a relocated witness, or<\/p>\n<p>(b) any new name or other particulars related to any new identity provided for such a person,<\/p>\n<p>shall be guilty of an offence.<\/p>\n<p>(3) In this section \u201crelocated witness\u201d 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 S\u00edoch\u00e1na for the protection of witnesses, to any place, whether within or outside the State.<\/p>\n<p>(4) In this section \u201clawful authority\u201d means the authority of\u2014<\/p>\n<p>(a) a court in any proceedings involving the relocated witness, or<\/p>\n<p>(b) a member of the Garda S\u00edoch\u00e1na not below the rank of chief superintendent.<\/p>\n<p>(5) A court shall give authority pursuant to subsection (1) or (2) only if it is satisfied\u2014<\/p>\n<p>(a) that to do so would be in the interests of justice, and<\/p>\n<p>(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 S\u00edoch\u00e1na for the purpose of effecting such service, is not available.<\/p>\n<p>(6) A person guilty of an offence under this section shall be liable\u2014<\/p>\n<p>(a) on summary conviction, to a fine not exceeding \u00a31,500 or imprisonment for a term not exceeding 12 months or both, and<\/p>\n<p>(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding five years or both.<\/p>\n<h4>Intimidation etc. of witnesses, jurors and others.<\/h4>\n<p>41.\u2014(1) Without prejudice to any provision made by any other enactment or rule of law, a person\u2014<\/p>\n<p>(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 S\u00edoch\u00e1na 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,<\/p>\n<p>(b) with the intention thereby of causing the investigation or the course of justice to be obstructed, perverted or interfered with,<\/p>\n<p>shall be guilty of an offence.<\/p>\n<p>(2) In this section, \u201cpotential juror\u201d 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.<\/p>\n<p>(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).<\/p>\n<p>(4) In subsection (1) the reference to a member of a person&#8217;s family includes a reference to\u2014<\/p>\n<p>(a) the person&#8217;s spouse,<\/p>\n<p>(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<\/p>\n<p>(c) any person who is cohabiting or residing with him or her.<\/p>\n<p>(5) A person guilty of an offence under this section shall be liable\u2014<\/p>\n<p>(a) on summary conviction, to a fine not exceeding \u00a31,500 or imprisonment for a term not exceeding 12 months or both, and<\/p>\n<p>(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 10 years or both.<\/p>\n<p>&nbsp;<\/p>\n<h2><\/h2>\n<h2>CRIMINAL PROCEDURE ACT 2010<\/h2>\n<p>REVISED<\/p>\n<p>Updated to 1 November 2023<\/p>\n<p>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 S\u00cdOCH\u00c1NA 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.<\/p>\n<p>[20th July, 2010]<\/p>\n<p>BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:<\/p>\n<p>PART 1<\/p>\n<p>Preliminary and General<\/p>\n<p>Short title and commencement.<\/p>\n<p>1.\u2014 (1) This Act may be cited as the Criminal Procedure Act 2010.<\/p>\n<p>(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.<\/p>\n<p>Annotations<\/p>\n<p>Editorial Notes:<\/p>\n<p>E1<br \/>\nPower pursuant to section exercised (31.08.2010) by Criminal Procedure Act 2010 (Commencement) Order 2010 (S.I. No. 414 of 2010).<\/p>\n<p>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.<\/p>\n<h4>Interpretation.<\/h4>\n<p>2.\u2014 (1) In this Act unless the context otherwise requires\u2014<\/p>\n<p>\u201cAct of 1962\u201d means the Criminal Justice (Legal Aid) Act 1962;<\/p>\n<p>\u201cAct of 1967\u201d means the Criminal Procedure Act 1967;<\/p>\n<p>\u201cAct of 1993\u201d means the Criminal Justice Act 1993;<\/p>\n<p>\u201cbroadcast\u201d has the meaning it has in section 2 of the Broadcasting Act 2009;<\/p>\n<p>\u201cchildren detention school\u201d has the meaning it has in section 3(1) of the Children Act 2001;<\/p>\n<p>\u201cDirector\u201d means the Director of Public Prosecutions;<\/p>\n<p>F1[&#8220;legal aid (appeal) certificate&#8221; has the meaning it has in the Act of 1962;]<\/p>\n<p>\u201clegal aid (Supreme Court) certificate\u201d has the meaning it has in the Act of 1962;<\/p>\n<p>\u201clegal aid (trial on indictment) certificate\u201d has the meaning it has in the Act of 1962;<\/p>\n<p>\u201cMinister\u201d means the Minister for Justice and Law Reform;<\/p>\n<p>\u201cprison\u201d has the meaning it has in section 2 of the Prisons Act 2007;<\/p>\n<p>\u201cpublication\u201d means publication, other than by way of broadcast, to the public or a portion of the public.<\/p>\n<p>(2) In this Act, unless the context otherwise requires, references to\u2014<\/p>\n<p>(a) a jury shall, in relation to proceedings conducted before a court sitting without a jury, be construed as references to that court, and<\/p>\n<p>(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.<\/p>\n<p>Annotations<\/p>\n<p>Amendments:<\/p>\n<p>F1<br \/>\nInserted (28.10.2014) by Court of Appeal Act 2014 (18\/2014), s. 71(a), S.I. No. 479 of 2014.<\/p>\n<p>Expenses.<\/p>\n<p>3.\u2014 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.<\/p>\n<p>PART 2<\/p>\n<p>Impact of Crime on Victim<\/p>\n<p>Amendment of section 5 of Act of 1993.<\/p>\n<p>4.\u2014 The Act of 1993 is amended by the substitution of the following section for section 5:<\/p>\n<p>\u201cEffect of certain offences on persons in respect of whom offence committed.<\/p>\n<p>5.\u2014 (1) This section applies to\u2014<\/p>\n<p>(a) a sexual offence within the meaning of the Criminal Evidence Act 1992,<\/p>\n<p>(b) an offence involving violence or the threat of violence to a person,<\/p>\n<p>(c) an offence under the Non-Fatal Offences Against the Person Act 1997, and<\/p>\n<p>(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).<\/p>\n<p>(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.<\/p>\n<p>(b) For the purposes of paragraph (a), a \u2018person in respect of whom the offence was committed\u2019 includes, where, as a result of the offence, that person has died, is ill or is otherwise incapacitated, a family member of that person.<\/p>\n<p>(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.<\/p>\n<p>(b) For the purpose of paragraph (a), where the person in respect of whom the offence was committed\u2014<\/p>\n<p>(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,<\/p>\n<p>(ii) is\u2014<\/p>\n<p>(I) a person with a mental disorder (not resulting from the offence concerned), the person or a family member,<\/p>\n<p>(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,<\/p>\n<p>may give evidence as to the effect of the offence concerned on that person,<\/p>\n<p>(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,<\/p>\n<p>(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\u2014<\/p>\n<p>(I) on the person between the commission of the offence and his or her death (where relevant), and<\/p>\n<p>(II) on the family members of the person who has died.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>(b) If any matter is published or broadcast in contravention of paragraph (a), the following persons, namely\u2014<\/p>\n<p>(i) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,<\/p>\n<p>(ii) in the case of any other publication, the person who publishes it, and<\/p>\n<p>(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,<\/p>\n<p>shall be guilty of an offence.<\/p>\n<p>(c) A person guilty of an offence under paragraph (b) shall be liable\u2014<\/p>\n<p>(i) on summary conviction, to a fine not exceeding \u20ac5,000 or to imprisonment for a term not exceeding 12 months or to both, or<\/p>\n<p>(ii) on conviction on indictment, to a fine not exceeding \u20ac50,000 or to imprisonment for a term not exceeding 3 years or to both.<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>(6) In this section and in sections 5A and 5B, unless the context otherwise requires\u2014<\/p>\n<p>\u2018broadcast\u2019 has the meaning it has in section 2 of the Broadcasting Act 2009;<\/p>\n<p>\u2018child\u2019 means a person under the age of 18;<\/p>\n<p>\u2018family member\u2019 means\u2014<\/p>\n<p>(a) a spouse or partner of the person,<\/p>\n<p>(b) a child, grandchild, parent, grandparent, brother, sister, uncle, aunt, nephew or niece of the person,<\/p>\n<p>(c) a person who is acting in loco parentis to the person,<\/p>\n<p>(d) a dependant of the person, or<\/p>\n<p>(e) any other person whom the court considers to have had a close connection with the person;<\/p>\n<p>\u2018guardian\u2019, in relation to a child, has the meaning it has in the Children Act 2001;<\/p>\n<p>\u2018mental disorder\u2019 includes a mental illness, mental disability, dementia or any disease of the mind;<\/p>\n<p>\u2018publish\u2019 means publish, other than by way of broadcast, to the public or a portion of the public.\u201d.<\/p>\n<h4>Evidence through television link.<\/h4>\n<p>5.\u2014 The Act of 1993 is amended by the insertion of the following section after section 5:<\/p>\n<p>\u201c5A.\u2014 (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.<\/p>\n<p>(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.<\/p>\n<p>(2) Evidence given under subsection (1) shall be videorecorded.<\/p>\n<p>(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.\u201d.<\/p>\n<h4>Evidence through intermediary.<\/h4>\n<p>6.\u2014 The Act of 1993 is amended by the insertion of the following section after section 5A:<\/p>\n<p>\u201c5B.\u2014 (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.<\/p>\n<p>(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.<\/p>\n<p>(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.\u201d<\/p>\n<p>Chapter 1<\/p>\n<h4>Giving of Evidence<\/h4>\n<h4>Amendment of Criminal Justice (Evidence) Act 1924.<\/h4>\n<p>33.\u2014 The Criminal Justice (Evidence) Act 1924 is amended\u2014<\/p>\n<p>(a) in section (1)(f)\u2014<\/p>\n<p>(i) in subparagraph (ii)\u2014<\/p>\n<p>(I) by the substitution of \u201cquestions of any witness\u201d for \u201cquestions for the witnesses for the prosecution\u201d, and<\/p>\n<p>(II) by the substitution of \u201cperson in respect of whom the offence was alleged to have been committed\u201d for \u201cprosecutor\u201d,<\/p>\n<p>and<\/p>\n<p>(ii) by the insertion of the following subparagraph after subparagraph (iii):<\/p>\n<p>\u201c(iiia) the person has personally or by the person\u2019s 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\u201d,<\/p>\n<p>and<\/p>\n<p>(b) by the insertion of the following section after section 1:<\/p>\n<p>\u201c<\/p>\n<h4>Evidence of character.<\/h4>\n<p>1A.\u2014 Where a person charged with an offence intends to adduce evidence, personally or by the person\u2019s 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\u2014<\/p>\n<p>(a) the person may do so only if he or she\u2014<\/p>\n<p>(i) has given, either personally or by his or her advocate, at least 7 days\u2019 notice to the prosecution of that intention, or<\/p>\n<p>(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,<\/p>\n<p>and<\/p>\n<p>(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\u2014<\/p>\n<p>(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<\/p>\n<p>(ii) would show that the person in respect of whom the offence was alleged to have been committed is of good character.\u201d.<\/p>\n<p>Expert evidence adduced by defence.<\/p>\n<p>34.\u2014 (1) An accused shall not call an expert witness or adduce expert evidence unless leave to do so has been granted under this section.<\/p>\n<p>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\u2014<\/p>\n<p>(a) the scheduled date of the start of the trial,<\/p>\n<p>(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<\/p>\n<p>(c) such earlier date as the court may direct.]<\/p>\n<p>(3) A notice under subsection (2) shall be in writing and shall include\u2014<\/p>\n<p>(a) the name and address of the expert witness, and<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>(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\u2014<\/p>\n<p>(a) subsections (2) and (3) have been complied with,<\/p>\n<p>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) \u2014<\/p>\n<p>(i) it would not, in all the circumstances of the case, have been reasonably possible for the defence to have done so, or<\/p>\n<p>(ii) it is otherwise necessary in the interests of justice that the expert witness give evidence or the expert evidence be adduced,<\/p>\n<p>or]<\/p>\n<p>(c) where the prosecution has adduced expert evidence, a matter arose from that expert\u2019s 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.<\/p>\n<p>(6) The prosecution shall be heard in an application under subsection (4) or (5).<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<p>(9) In this section\u2014<\/p>\n<p>\u201cexpert evidence\u201d means evidence of fact or opinion given by an expert witness, and<\/p>\n<p>\u201cexpert witness\u201d means a person who appears to the court to possess the appropriate qualifications or experience about the matter to which the witness&#8217;s evidence relates.<\/p>\n<p>Annotations:<\/p>\n<p>Amendments:<\/p>\n<p>F12<br \/>\nSubstituted (28.02.2022) by Criminal Procedure Act 2021 (7\/2021), s. 18(a), (b), S.I. No. 79 of 2022.<\/p>\n<h4>Return or disposal of property to be used as evidence.<\/h4>\n<p>35.\u2014 (1) This section applies where property that is to be entered in evidence in a criminal trial is to be\u2014<\/p>\n<p>(a) returned to its owner, or<\/p>\n<p>(b) disposed of,<\/p>\n<p>before the trial begins.<\/p>\n<p>(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 \u201cprosecution notice\u201d) on the accused at any time that is at least 23 days prior to that date.<\/p>\n<p>(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\u2014<\/p>\n<p>(a) one or more photographs of the property, and<\/p>\n<p>(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 \u201cprosecution report of evidence\u201d).<\/p>\n<p>(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 \u201cdefence notice\u201d) that indicates one of the following:<\/p>\n<p>(a) that the defence accepts the prosecution notice and agrees to the return or disposal of the property;<\/p>\n<p>(b) that the defence wishes to provide to the prosecution a report that conforms with subsection (3) (the \u201cdefence report of evidence\u201d);<\/p>\n<p>(c) that the defence requires the property to be available as an exhibit at the trial.<\/p>\n<p>(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.<\/p>\n<p>(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 \u201cprosecution notice of reply\u201d).<\/p>\n<p>(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\u2014<\/p>\n<p>(a) a member of the Garda S\u00edoch\u00e1na 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,<\/p>\n<p>(b) the member referred to in paragraph (a) shall keep a written record of the return or disposal of the property, and<\/p>\n<p>(c) where the property is returned to its owner, the owner shall acknowledge in writing the receipt of the property.<\/p>\n<p>(8) The following rules apply to admissibility of evidence:<\/p>\n<p>(a) where subsection (4)(a) applies, the prosecution report of evidence is proof of the facts stated therein, unless the contrary is shown;<\/p>\n<p>(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;<\/p>\n<p>(c) where subsection (4)(c) applies, the property may be admitted as evidence in any trial in which the property is otherwise admissible;<\/p>\n<p>(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.<\/p>\n<p>(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.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-1553\" data-postid=\"1553\" class=\"themify_builder_content themify_builder_content-1553 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>General Most persons are competent and compellable as witnesses.\u00a0 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.\u00a0 This [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[69],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/1553"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=1553"}],"version-history":[{"count":14,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/1553\/revisions"}],"predecessor-version":[{"id":34017,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/1553\/revisions\/34017"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=1553"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=1553"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=1553"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}