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

• Author: Francis Comerford
• Pages: 252-260

BOOK REVIEW

“LAW OF EVIDENCE IN IRELAND”

2ND ED., LEXISNEXIS, BUTTERWORTHS, 2003

FRANCIS 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