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

• Author: Paul Anthony Mcdermott
• Position: 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
• Pages: 80-98

THE DUTY TO SEEK OUT, PRESERVE AND

DISCLOSE

EVIDENCE TO THE DEFENCE

PAUL ANTHONY MCDERMOTT*

I. INTRODUCTION

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

unfair.

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

II. DISCLOSURE: CRIMINAL LAWAND CIVIL LAW

CONTRASTED

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

81

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.