White v Ireland

• Jurisdiction: Ireland
• Judgment Date: 01 January 1995
• Date: 01 January 1995
• Docket Number: [1993 No. 158 J.R.]
• Court: High Court

White v. Ireland

Algernon White

Applicant

and

Ireland, The Attorney General and The Director of Public Prosecutions, Respondents

[1993 No. 158 J.R.]

High Court

Constitution - Personal rights - Right to trial in due course of law - Applicant accused of offence against child - Child witness to give evidence via live television link - Whether constitutional right on part of accused to require the physical presence in court of person giving evidence against him - Criminal Evidence Act, 1992 (No. 12), ss. 12 and 13 - Constitution of Ireland, 1937, Article 38, s. 1.

Evidence - Child witness - Trial of prosecution for offence against child - Evidence proposed to be given via live television link - Whether giving of evidence by person not physically present in courtroom a violation of right of accused person to trial in due course of law - Criminal Evidence Act, 1992 (No. 12), ss. 12 and 13 - Constitution of Ireland, 1937, Article 38, s. 1.

Article 38, s. 1 of the Constitution of Ireland, 1937, provides:—

"No person shall be tried on any criminal charge save in due course of law."

Section 13 of the Criminal Evidence Act, 1992, which is contained in Part III of that Act, provides, inter alia, as follows:—

"(1) In any proceedings for an offence to which this Part applies a person other than the accused may give evidence, whether from within or outside the State, through a live television link —

• (a) if the person is under 17 years of age, unless the court sees good reason to the contrary,

• (b) in any other case, with the leave of the court."

Section 12 of the Act of 1992 provides that Part III of the Act of 1992 applies to:—

"(a) a sexual offence,

(b) an offence involving violence or the threat of violence to a person, or

(c) an offence consisting of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence mentioned in paragraph (a) or (b)".

The applicant was charged with offences against a child to which the provisions of Part III of the Act of 1992 applied. The prosecution proposed that the child in question would give evidence at the trial from a room which was at some distance from the courtroom through a live television link. The applicant applied to the High Court by way of judicial review for, inter alia, a declaration that ss. 12 and 13 of the Act of 1992 were invalid having regard to the provisions of the Constitution of Ireland, 1937.

It was submitted on his behalf that the giving of evidence by a witness who was not physically present in the court where the trial was being conducted constituted an infringement of the right of the accused to be tried in due course of law, on the grounds that a person accused of a criminal offence had a right to confront his accuser in open court.

Held by Kinlen J., in refusing the relief sought, 1, that a person accused of a criminal offence did not enjoy a constitutional right to require a witness giving evidence against him to be physically present in court.

2 That accordingly s. 13 of the Act of 1992 was not invalid having regard to the provisions of the Constitution of Ireland, 1937.

Semble: That it was for a trial judge to ensure that the trial of the accused was conducted fairly and that any dangers to fair procedure arising out of the use of technology were obviated.

Cases mentioned in this report:—

California v. Green (1970) 399 U.S. 149.

Chambers v. Mississippi (1973) 410 U.S. 284.

Coy v. Iowa (1987) 487 U.S. 1012.

In re Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129; (1976) 110 I.L.T.R. 69.

Davis v. Alaska (1974) 415 U.S. 308.

Dutton v. Evans (1970) 400 U.S. 74.

Kentucky v. Stincer (1987) 482 U.S. 703.

Lee v. Illinois (1986) 476 U.S. 530.

K.M. v. Director of Public Prosecutions [1994] 1 I.R. 514.

Mapp (a minor) v. Gilhooley [1991] 2 I.R. 253; [1991] I.L.R.M. 695.

Maryland v. Craig (1989) 497 U.S. 836.

Mattox v. United States (1895) 156 U.S. 237.

O'Callaghan v. Judge Clifford [1993] 3 I.R. 603.

Ohio v. Roberts (1980) 448 U.S. 56.

R. v. Smellie (1919) 14 Cr. App. Rep. 128.

The State (Healy) v. Donoghue [1976] I.R. 325; (1976) 110 I.L.T.R. 19.

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgment of Kinlen J., infra.

On the 24th May, 1993, the High Court (Geoghegan J.) granted the applicant's ex parte application for leave to apply by way of judicial review for the reliefs set out at p. 271, infra.

Following the filing of a statement of opposition on the 2nd July, 1993, the application was heard by the High Court (Kinlen J.) on the 8th, 12th, 13th and 14th October and the 5th and 6th November, 1993, pursuant to notice of motion dated the 31st May, 1993.

Cur. adv. vult.

Kinlen J.

The applicant stands charged with offences allegedly committed against a child who was born on the 26th December, 1979. The State proposes to call evidence by a television link in accordance with Part III of the Criminal Evidence Act, 1992, and particularly under ss. 12 and 13 of that Act. By the Criminal Evidence Act, 1992 (Commencement) Order, 1993 (S.I. No. 38) the 15th February, 1993, was fixed as the day on which the following sections of Part III of the Criminal Evidence Act, 1992, were to come into operation:—

• (a) sections 12 and 18;

• (b) section 13 for the Central Criminal Court and the Dublin Circuit Criminal Court, and

• (c) section 19 insofar as it relates to the references in it to s. 13, sub-section 1 (a).

Section 12 of the Criminal Evidence Act, 1992, reads:—

"This Part applies to —

• (a) a sexual offence,

• (b) an offence involving violence or the threat of violence to a person, or

• (c) an offence consisting of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence mentioned in paragraph (a) or(b)."

Section 13 provides:—

"(1) In any proceedings for an offence to which this Part applies a person other than the accused may give evidence, whether from within or outside the State, through a live television link —

• (a) if the person is under 17 years of age, unless the court sees good reason to the contrary,

• (b) in any other case, with the leave of the court.

(2) Evidence given under subsection 1 shall be video-recorded.

(3) While evidence is being given through a live television link pursuant to subsection (1) (except through an intermediary pursuant to section 14 (1)), neither the judge, nor the barrister or solicitor concerned in the examination of the witness, shall wear a wig or gown."

The summons in this case was issued on the 2nd September, 1992, and was returned for the 17th September, 1992. The applicant made an application ex parte to Geoghegan J. on the 24th May, 1993. He ordered that the applicant do have leave to apply for orders of declaration and injunction set forth in the statement of grounds dated the 19th May, 1993, as follows:—

"1. A declaration that s. 12, s. 13, sub-ss. 1 and 2 and s. 18 of Part III of the Criminal Evidence Act, 1992, are invalid insofar and to the extent that they are repugnant to the provisions of Bunreacht na hÉireann éireann and Article 38, s. 1, Article 38, s. 5, Article 40, s. 1 and Article 40, s. 3 thereof.

2. An injunction restraining the third respondent from adducing evidence from any witness to be called by counsel on his behalf at the applicant's trial herein presently pending in the Central Criminal Court in proceedings entitled The People at the suit of the Director of Public Prosecutions v. Algernon White by means of or under the provisions of s. 12, s. 13, sub-ss. 1 and 2 and s. 18 of Part III of the Criminal Evidence Act, 1992.

3. A declaration that s. 27 of Part V of the Criminal Evidence Act, 1992, is invalid insofar and to the extent that it is repugnant to the provisions of Bunreacht na hÉireann héireann and Article 38, s. 1, Article 38, s. 5, Article 40, s. 1 and Article 40, s. 3 thereof.

4. An injunction restraining the third respondent from adducing any evidence from any witness to be called by counsel on his behalf at the applicant's trial herein presently pending in the Central Criminal Court in proceedings entitled The People at the Suit of the Director of Public Prosecutions v. Algernon White otherwise than upon oath."

It was agreed that s. 18 of the Act of 1992 was not in issue nor was s. 30, sub-s. 3 of the Act.

It was agreed by the parties that the offences charged fall within s. 12 of the Act of 1992.

Mr. Denis O'Neill, principal officer in the Department of Justice, gave evidence regarding the video links which the Minister proposed to use. He had studied video links in Belfast, Leicester, Birmingham and at a courts technology conference at Dallas in Texas in the U.S.A. The equipment he had provided in Dublin was superior to that used in Northern Ireland or England as it was more flexible. He said it was on a par with what was available in Dallas. It was not all manufactured by the same source but was a conglomerate. Evidence was also given by Mr. Scott, an engineer, who had laid it out in the courtroom.

There is a control panel in front of the judge which can switch on and off the entire system with a white button. Below the white button are three blue buttons. The judge is in complete charge of what can be seen by the witness, the jury and the barristers. On the left of the judge there are two monitors. On the larger monitor you can see the witness from just below the shoulders upwards. This picture is available to the witness box but there is another one which can be swivelled around at the end of the jury box, which can be seen by all the jury. There is a similar...