The duty to seek out, preserve and disclose evidence to the defence

AuthorPaul Anthony Mcdermott
PositionB.C.L. (N.U.I.), L.L.M. (Cantab.), Ph.D. (N.U.I.), B.L., Lecturer in Criminal and Tort law, University College Dublin
This paper will consider recent developments in respect of the
duty to seek out, preserve and disclose evidence to the defence. To
date the European Convention on Human Rights Act 2003 does not
appear to have had any real impact in this area. That has not been
the experience in the U.K. In Rowe and Davis v. United Kingdom1the
Court stated that:
…the entitlement to disclosure of relevant evidence is not
an absolute right. In any criminal proceedings there may
be competing interests, such as national security or the
need to protect witnesses at risk of reprisals or to keep
secret police methods of investigating crime, which must
be weighed against the rights of the accused… In some
cases it may be necessaryto withhold certain evidence
from the defence so as to preserve the fundamental rights
of another individual or to safeguard an important public
interest. However,only such measures restricting the
rights of the defence which are strictly necessary are
permissible under Article 6 § 1… Moreover in order to
ensure that the accused receives a fair trial, any
difficulties caused to the defence by a limitation on its
rights must be sufficiently counterbalanced by the
procedures followed by the judicial authorities…2
In Dowsett v. United Kingdom3the Court, re-iterating its
statement in Rowe and Davis held that non-disclosureof certain
information by the prosecution had rendered the applicant’s trial
80 [5:2Judicial Studies Institute Journal
*B.C.L. (N.U.I.), L.L.M. (Cantab.), Ph.D. (N.U.I.), B.L., Lecturer in Criminal and Tort law,
University College Dublin. Text of address delivered at the Circuit Court Annual Conference,
on 9 July 2005.
1(2000) 30 E.H.R.R. 1.
2(2000) 30 E.H.R.R. 1 at para. 61.
3[2003] E.C.H.R. 314.
In O’Callaghan v. Judge Mahon4Hardiman J noted these
developments and made the following observation:
Amajor issue in civil and criminal procedural law is the
extent to which either side must make disclosure to the
other. This has led to the development of an impressive
body of jurisprudence both in the United Kingdom and in
Strasbourg. The latter has significantly influenced the
former and will no doubt influence our jurisprudence
too, in particular through the concept of “égalité des
armes”,which might be regarded as the opposite of that
state of imbalance and disadvantage described by Ó
Dálaigh C.J. as clocha ceangailte agus madraí scaoilte.5
In criminal law there is a duty on the prosecution to provide
full disclosure of all relevant evidence in its possession. The extent of
this duty is determined by concepts of constitutional due process as
well as by statutory provisions. Thus sections 4B and 4C of the
Criminal Procedure Act 1967 (as inserted by s. 9 of the Criminal
Justice Act 1999) provide for the furnishing of what is commonly
known as the Book of Evidence. Disclosureof relevant material in a
criminal trial does not depend on a prior request being made by the
defence; it is an ongoing duty which rests on the prosecution.
In civil law thereis a process known as discovery.This occurs
by a party issuing a letter requesting voluntarydiscovery from the
other side. The letter is written pursuant to the provisions of Order
31 rule 12 of the Rules of the Superior Courts (“RSC”) 1986 (as
amended and substituted by S.I. No. 233 of 1999). If the request for
voluntary discovery is refused a motion seeking discovery can be
issued. Non-party discovery is available via Order 31 rule 29 of the
RSC 1986. However, it is not easy to obtain and in Kennedy v. The
Law Society6Keane J (as he then was) stated that “an order for third
party discovery should not be made lightly”.7
2005] The Duty to Seek Out, Preserve and Disclose
Evidence to the Defence
4Supreme Court, unreported, 9 March, 2005.
5Supreme Court, unreported, 9 March, 2005, at p. 31 of the unreported judgment.
6Supreme Court, unreported, 28 November 1997.
7Supreme Court, unreported, 9 March, 2005, at p. 3 of the unreported judgment.

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