Law of evidence in Ireland' 2nd ed., Lexisnexis, Butterworths, 2003

AuthorFrancis Comerford
An author in mapping a route of approach to the topic of
Evidence can view the subject as a free standing mountain where
every step leads to a summit or else as an array of independent
foothills of varying shapes which a traveller must negotiate. By the
former approach, one describes a Law of Evidence where all the
rules are underpinned by a purpose against which the merit of each
rule can be judged. The other path, involves the empirical
description of the rules (or laws) of Evidence, born of many
disparate forbears, whose sole function is the ordering of trial.
When faced with this choice, the Scottish Law Commission in a
Report on Hearsay Evidence in Criminal Proceedings (Scot Law
Com No 149, 1995) were content with “a simple answer” and took
as their own purpose; simplification. The function of the rules -
which could be classed indiscriminately as evidential or procedural -
were to provide intelligible and acceptable rules indicating what
evidence may be received in the elucidation of truth. The commission
was to simplify them so they could be understood.
This neutral empirical route is travelled by two of the three
recent textbooks on Evidence in Ireland. The remaining work, the
2nd Edition of the Law of Evidence in Ireland by Caroline Fennell
aims for a summit in seeking to identify a unifying principle against
which each rule of evidence should be measured. It is an ambitious
approach and attractive for that. There is a nuance of surrender in
any assertion that the facts of the rules are more important than their
purpose. The justice of consistency is bought at the cost of the call
of justice, implying an acceptance that since the trial system can give
no guarantee that it will attain the right verdict, it proffers an
assurance of impartiality flowing from pre-ordained rules.
Except of course they are not – the rules of evidence did not
arrive on a tablet from a mount. They are misshapen creatures of
252 [4:2Judicial Studies Institute Journal

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