Markey v Minister for Justice and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Kearns P.
• Judgment Date: 04 February 2011
• Neutral Citation: [2011] IEHC 39
• Docket Number: [2010 No. 1228 JR]
• Date: 04 February 2011

Markey v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

BERNARD MARKEY

APPLICANT

AND

THE MINISTER FOR JUSTICE AND LAW REFORM, THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

[2011] IEHC 39

[No. 1228 J.R./2010]

THE HIGH COURT

EVIDENCE

Expert witness

Statutory provision - Leave of court required to adduce expert evidence - Material disadvantage in cross-examination - Right to silence - Inequality of arms - Whether provision unconstitutional - Whether provision incompatible with European Convention on Human Rights Declaration - Whether proceedings premature in absence of refusal by any court to adduce evidence - Expert report commissioned but not available at leave hearing - No obligation to call unhelpful evidence - Importance of continuity of criminal proceedings - Whether leave requirement a procedural disadvantage - Different obligations on sides in criminal trial - Duty of judge - Legal privilege - Proportionality of interference - DPP v Special Criminal Court [1999] 1 IR 60 and Fitzgerald v DPP [2003] 3 IR 247 applied - Kennedy v DPP [2007] IEHC 3 (Unrep, MacMenamin J, 11/1/2007), Malcolm v DPP [2007] 1 WLR 1230, Murray v UK [1996] 22 EHRR 29, Averill v UK [2001] 31 EHRR 36 and Salabiaku v France [1991] 13 EHRR 379 followed - Williams v Florida (1970) 399 US 78 and Writtle v Director of Public Prosecutions [2009] EWHC 236 (Admin) (Unrep, Court of Appeal, 20/1/2009) approved - Director of Public Prosecutions v Mackin [2010] IECCA 81/82 (Unreported, CCA, Hardiman J, 19/7/2010), Hardy v Ireland [1994] 2 IR 550, O'Leary v Attorney General [1995] 1 IR 254 and Rock v Ireland [1997] 3 IR 484 considered - JF v Director of Public Prosecutions [2005] IESC 24 [2005] 2 IR 174, O'Callaghan v Mahon [2005] IESC 9 [2006] 2 IR 32 and Bonisch v Austria [1985] 9 EHRR 191 distinguished - Criminal Procedure Act 2010 (No 27), s 34 - European Convention on Human Rights, Art 6 - Relief refused (2010/1228JR - Kearns P - 4/2/2011) [2011] IEHC 39

Markey v Minister for Justice

Facts The applicant initiated judicial review proceedings seeking to challenge section 34 of the Criminal Procedure Act 2010. The case arose out of a prosecution against the application involving alleged road traffic offences. Section 34 provided that an accused must give advance notice to the prosecution when he intended to call an expert witness or adduce expert evidence. It was also provided that leave must first be obtained from the trial judge in order to adduce such evidence. Details of any such reports also had to be disclosed to the prosecution. The applicant claimed that the section was unconstitutional and incompatible with Article 6 of the European Convention on Human Rights. It was also contended that s. 34 encroached upon an accused person's right to silence by requiring him, through his expert, to disclose his defence in advance of the trial hearing. An obligation was imposed upon the accused person to obtain leave of the court to call such evidence while no equivalent obligation was imposed on the prosecution. That obligation had to be discharged at a point in time before the commencement of the case rather than at the time chosen by the defence. It was contended on behalf of the respondents that the proceedings were premature, hypothetical and moot. All s. 34 did was to move forward a ruling by a trial judge on the admissibility of expert evidence. The section was intended to remove the unfairness of defence by ambush. It was to ensure that the prosecution would have a reasonable opportunity to consider the proposed evidence of the defence expert witness before that witness gave evidence. Trial 'by ambush' was both wrong and damaging to the criminal justice system.

Held by Kearns P in refusing the relief sought. If an expert report was furnished to the applicant's solicitors was not helpful, no question of calling the author as a witness would arise. Section 34 was designed to implement recommendations contained in a report by the Criminal Law Review Group. It had been pointed out that a considerable disparity existed between the advance disclosure required of the prosecution and the defence. It was the disadvantage being suffered by the prosecution (and, by extension, the public interest) which required to be addressed in new legislation. There was no rule of law or requirement in the Constitution that the procedures available to an accused person must be identical to those available to the prosecution. It must be assumed that any trial judge, ruling on an application brought under s. 34, would do so in a manner which accords with his declaration of office under the Constitution and which fully respects all the rights of the accused person, including, most particularly, the presumption of innocence. A suggestion that the prosecution might comment adversely on the failure to call an expert in respect of whom leave under s. 34 had been granted could readily be dealt with by the trial judge, either by warning or discharging the jury and by making an appropriate costs order. Any interference caused by s. 34, to the extent that it might be said to interfere with any constitutionally protected right was limited and proportionate having regard to the nature, scope and effect of s. 34 when placed in balance with the public interest in an effective and balanced prosecution system.

Reporter: R.F.

CRIMINAL PROCEDURE ACT 2010 S34

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CRIMINAL PROCEDURE ACT 2010 (COMMENCEMENT) ORDER SI 414/2010

ROAD TRAFFIC ACT 1961 S53(1)

ROAD TRAFFIC ACT 1961 S112

ROAD TRAFFIC ACT 1961 S49

CRIMINAL PROCEDURE ACT 1967 S4B(1)

KENNEDY v DPP UNREP MACMENAMIN 11.1.2007 2007/32/6613 2007 IEHC 3

DPP v SPECIAL CRIMINAL COURT 1999 1 IR 60

F (J) v DPP 2005 2 IR 174

O'CALLAGHAN v MAHON 2006 2 IR 32

DPP v MACKEN UNREP CCA 19.7.2010 2010 IECCA 82

WILLIAMS v FLORIDA 399 US 78 1970

CRIMINAL PROCEDURE & INVESTIGATION ACT 1996 S6(D) (UK)

CRIMINAL JUSTICE ACT 2003 S35

WRITTLE v DPP 2009 EWHC 236 (ADMIN)

MALCOLM v DPP 2007 1 WLR 1230

FITZGERALD v DPP 2003 3 IR 247

SUMMARY JURISDICTION ACT 1857 S4 (UK)

DPP PEOPLE v CAHILL 2001 3 IR 494

COURTS & COURTS OFFICERS ACT 1995 S45

RSC O.39 r 46(8)

ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE SWEET & MAXWELL LONDON 2011 1408

CONSTITUTION ART 34

CONSTITUTION ART 40

CRIMINAL JUSTICE ACT 1984 S20

CRIMINAL LAW INSANITY ACT 2006 S19

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S3(1)

HARDY v IRELAND 1994 2 IR 550

O'LEARY v AG 1995 I IR 254

ROCK v IRELAND 1997 3 IR 484

BONISCH v AUSTRIA 1985 9 EHRR 191

MURRAY v UK 1996 22 EHRR 29

AVERILL v UK 2001 31 EHRR 36

SALABIAKU v FRANCE 1991 13 EHRR 379

1 JUDGMENT of Kearns P. delivered the 4th day of February, 2011

2 By order of the High Court (Hanna J.) dated 15 ^th September, 2010 the applicant herein was granted leave to apply for a declaration that s. 34 of the Criminal Procedure Act 2010 is unconstitutional and a further declaration that the same section is incompatible with Article 6 of the European Convention on Human Rights.

3 Section 34 of the Criminal Procedure Act 2010 is contained in Part V of the Act which contains miscellaneous provisions in relation to the giving of evidence. Section 34 introduces a new provision in relation to the giving of evidence by expert witnesses retained by the defence and provides:-

4 2 "(1) An accused shall not call an expert witness or adduce expert evidence unless leave to do so has been granted under this section.

5 (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 10 days prior to the scheduled date of the start of the trial.

6 (3) A notice under subsection (2) shall be in writing and shall include -

7 a (a) the name and address of the expert witness, and

8 b (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.

9 (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.

10 (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-

11 (a) subsections (2) and (3) have been complied with,

12 a (b) where notice was not given at least 10 days prior to the scheduled date of the start of the trial, it would not, in all the circumstances of the case, have been reasonably possible for the defence to have done so, or

13 b (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.

14 (6) The prosecution shall be heard in an application under subsection (4) or (5).

15 (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.

16 (8) Where the court grants leave under this section, the...