Trace the development of the pre-trial duty

Trace the development of the pre-trial responsibility on the prosecution to seek out, preserve and unwrap grounds to the defense mechanism in the instance jurisprudence of the Irish tribunals.


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In the Irish tribunals, the responsibility to unwrap embodies natural and constitutional justness, instance jurisprudence and legislative act. Chiefly concentrating upon the development of instance jurisprudence, this paper considers the historically development of the pre-trial responsibility on the prosecution to seek out, preserve and unwrap grounds to the defense mechanism. The paper is set out as follows: foremost, ‘disclosure’ is defined and set within its constitutional and legal model. Following, the range of the responsibility of revelation is considered with mention to drumhead prosecutions, and stuff in the ownership of 3rd parties. The responsibility to retain and to continue grounds is so considered in item and with mention to a figure of influential recent instances, and the restrictions on the responsibility to unwrap are observed. Finally, the paper concludes that instance jurisprudence on revelation will go on to develop further in the old ages to come, peculiarly with respect to stuff in the ownership of 3rd parties.


Within Irish condemnable jurisprudence, the prosecution must supply revelation of all relevant grounds within its ownership. Indeed, Articles 38.1 and 40.3 of the Constitution of Ireland explicitly place a responsibility upon the prosecution to to the full unwrap all relevant grounds to the defense mechanism. Furthermore, McCarthy J. expressly defined the responsibility incumbent upon the prosecution as follows:

‘The Constitutional right to fair processs demands that the prosecution be conducted reasonably ; it is the responsibility of the prosecution, whether abducing such grounds or non, where possible, to do available all relevant grounds, parol or otherwise, in its ownership, so that if the prosecution does non abduce such grounds, the defense mechanism may, if it wishes, do so.’ [ 1 ]

In specifying ‘relevant material’ for the intents of revelation, Carney J. stated that relevant stuff should be understood as that type of grounds which ‘might assist the defense mechanism instance, aid to belittle the prosecution instance or give a lead to other evidence’ . [ 2 ] Importantly, revelation of said ‘relevant material’ is non de pendant upon a petition being made by the defense mechanism to the prosecution for it to do available this stuff – the responsibility to unwrap exists independently of any petition by the defense mechanism. As such, the responsibility to unwrap is an on-going duty which rests with the prosecution. Confirming the sentiment of Carney J. inDirector of Public Prosecutions v Special Criminal Court[ 3 ] , Keane C.J. held inMcKevitt v Director of Public Prosecutions[ 4 ] that:

‘the prosecution are under a responsibility to unwrap to the defense mechanism any stuff which may be relevant to the instance which could either assist the defense mechanism or damage the prosecution and that if there is such stuff which is in their ownership they are under a constitutional responsibility to do that available to the defence’ . [ 5 ]

Additionally, the responsibility to unwrap is non restricted entirely to that grounds which the prosecution intends to utilize at test. The prosecution must guarantee that information which it doesnonintend to utilize at test but which may still be of involvement or usage to the defense mechanism is besides to the full disclosed. Ultimately, the responsibility to unwrap is non a precise one as its bounds are non explicitly defined and as such they will be determined by the fortunes and specificities of each single instance. [ 6 ]

Drumhead Prosecution

In prosecutions on indictment, the prosecution is under a statutory responsibility to supply the accused with certain stuffs prior to test. However, in drumhead prosecutions no right to disclosure exists – although the tribunal has discretion to order revelation if it ascertains that revelation is necessary in the involvements of justness. The taking instance on revelation in drumhead offenses isDirector of Public Prosecutions V Doyle[ 7 ] where the tribunal set out the rules to be followed in drumhead instances. The trial to be applied is underpinned by the impression of the demands of justness in jurisprudence. As such, the tribunal should seek to find if ‘in the involvements of justness on the facts of the peculiar case’ [ 8 ] revelation is necessary. This will necessitate a consideration of the earnestness of the charge and the effects for the accused. [ 9 ] Furthermore, the tribunal indicated that the undermentioned factors could be relevant in informing the court’s determination on whether revelation should happen: ‘ ( a ) the earnestness of the charge ; ( B ) the importance of the statements or paperss ; ( degree Celsius ) the fact that the accused has already been adequately informed of the nature and substance of the accusal ; ( vitamin D ) the likeliness that there is no hazard of unfairness in neglecting to supply the statements or paperss in issue to the accused’ . [ 10 ] Although the tribunal may order revelation in the absence of a petition by the defense mechanism, the tribunal determined inWhelan v Kirby[ 11 ] , that when the defense mechanism does subject such a petition, the defense mechanism must supply some justification for their petition for revelation. Furthermore, McDermott [ 12 ] has observed that the instance ofMcGonnell v Attorney Generalindicates that the range of the responsibility of revelation is non needfully settled. As McKechnie J. notes:

‘ [ I ] T is in my position an of import confidence for an accused individual to cognize of his right to hold entree to a juridical authorization for the intents of seeking review installations in regard of any given machine. When so determinant, the tribunal in inquiry must of class comply with constitutional justness and just processs on any such application so made, as it must on the hearing of the subdivision 49 charge itself. In both cases it may justify such rights of the suspect in the most appropriate mode available. These observations every bit apply to any application in regard of documentation.’ [ 13 ]

Material in the ownership of 3rd parties

InThe People ( Director of Public Prosecutions ) V Sweeney[ 14 ] , the Central Criminal Court sought an order for non-party find against The Rape Crisis Centre. The Supreme Court held, nevertheless, that 3rd party find has no application in condemnable proceedings. As such, suspects are unable to utilize this process to get relevant stuff from 3rd parties. [ 15 ]

By manner of farther account, Geoghegan J. observed that find normally takes topographic point in civil proceedingsafterthe pleadings have closed and the instance issues are defined. However:

‘…none of this can be done in condemnable proceeding. Merely the prosecution must demo its manus. Subject to some modern statutory exclusions in relation to alibi grounds the defense mechanism is entitled to spring surprises and above all is absolutely entitled, pending the test, to give no indicant as to what issues might be raised. In that province of personal businesss find of paperss under the Rules of Court is entirely inappropriate and it is another ground why those regulations can ne’er hold been intended to use to condemnable proceedings.’ [ 16 ]

Geoghegan J. farther noted that if informants from the Rape Crisis Centre were called to give grounds at test, the inquiry of privilege might later originate. This affair would so be for the test justice to make up one’s mind upon. In such instance:

‘A general consideration of the issue of privilege would surely back up the position that the machinery of find as operated in civil proceedings and which justness would necessitate the prosecution to do available to the defense mechanism would about surely be privileged from production in civil proceedings.’ [ 17 ]

InD.H. V Judge Groarke[ 18 ] , an effort was made to turn over the opinion inSweeneyon a point of jurisprudence. The applier inD.H.challenged the refusal of the tribunal to let the find of notes from the D.P.P. and the Health Board. On entreaty, the tribunal observed that the specific inquiry of 3rd party find was a pertinent issue and one that would probably come before the tribunals once more. [ 19 ] Hence their Lordships ascertained that it was in the public involvement that the inquiry be decided definitively. Continuing the determination in Sweeney, Keane CJ stated:

‘I am, in any event, satisfied that the determination in The People ( Director of Public Prosecutions ) v Sweeney [ 2001 ] 4 I.R. 102 was correct in point of jurisprudence. The map of find in civil proceedings, whether it beinter partesor 3rd party find, is to enable both parties to progress their ain instance or damage their opponent’s case….Discovery, consequently, in a test on indictment would be a entirely nonreversible procedure, which was surely non what was envisaged by the process forinter partesand 3rd party find provided under the Rules of Court. It is clear, consequently, that, in the instance of the Rules of Court covering with find, to handle the word “cause” as widening to condemnable proceedings would be clearly abhorrent to the context in which it was being used.’ [ 20 ]

Yet, although instance jurisprudence has determined that there is no find in condemnable proceedings, the suspect remains entitled to due procedure and just processs embodied within the Constitution and Irish statutory rules. For illustration, as the Director of Public Prosecutions’ Guidance on Disclosure notes, under the Criminal Justice Act 1999, grounds may be taken by manner of pledged deposition in the District Courtat any phaseafter the return for test. Furthermore, the accused may besides see that any such relevant stuff ( in the signifier of records or notes ) which is in the ownership of a informant is so produced. The accused may besides necessitate informants to go to at test and may oblige the production of relevant stuff paperss through the usage of asubpoena duces tecum. [ 21 ] However, it has been suggested that, given the importance that defense mechanism advocate attaches to obtaining all available information probably to be of relevancy to their client, this is an facet of the jurisprudence on revelation that is likely to stay combative. [ 22 ]

Duty to Retain and Preserve Evidence

Following on from several outstanding instances [ 23 ] in the High Court and the Supreme Court, a figure of rules sing the responsibility upon the Garda to seek out and to continue grounds can be ascertained. First, the responsibility ‘must be interpreted realistically on the facts of each case’ . [ 24 ] Furthermore, McGuiness J. observed that:

‘Where a tribunal would be asked to forbid a test on the evidences that there was an alleged failure to seek out grounds, it would hold to be shown that any such grounds would be clearly relevant, that there was at least a strong chance that the grounds was available, and that it would in world have a bearing on the guilt or artlessness of the accused person’ . [ 25 ]

Similarly in understanding, Finlay Geoghegan J. stated inConnollythat ‘the responsibility on the Garda to seek out grounds must be interpreted realistically on the facts of each case’ . [ 26 ]

Furthermore, grounds which is of relevancy to the accused’s guilt or artlessness, must ( every bit far as is possible ) be kept until the decision of a test. If said grounds is non destined to be used by the prosecution, this does non intend that it should be destroyed or made unavailable to the defense mechanism or to others. Where there is asensible possibilitythat the grounds in inquiry may supply a rebuttal to the prosecution instance, so it should be retained. [ 27 ] There is besides a responsibility to ‘seek out’ grounds which may be capable of finding guilt or artlessness. [ 28 ] Again, this responsibility should be understood as bing in ‘realistic’ footings. That is to state that the responsibility does non confabulate upon an research worker the demand to throw out disproportional and/or inordinate work force or resources in his/her attempts to obtain such grounds. Each instance will turn on its ain facts. Hence the responsibility is, one time once more, to be interpreted as non unduly normative or disproportionately burdensome in its duties – although it should be noted that defense mechanism canvassers are under a specific responsibility to seek out grounds that they consider relevant. [ 29 ]

Additionally, the Garda is besides required to hold specific respect for the proprietor of stolen goods. In the instance that the Garda are in ownership of grounds which is non intended to be used at test ( and where they intend to either dispose of this grounds or to return the grounds to its proprietor ) , the Garda are required to do the accused aware of this fact prior to disposing of/returning the grounds in order that the defense mechanism may analyze the grounds before it is returned/disposed of. Where the defense mechanism requires to transport out such an review, the Garda must guarantee that they are afforded a ‘reasonable’ sum of clip in which to make so. The inside informations of such an review should so be recorded ( including the communicating between the parties and the continuance of the review period ) .

The rule and over-riding concern in instances affecting stolen belongings used in condemnable offenses is thedirect relevancyof the stolen belongings to the offense under probe. [ 30 ] Again, each instance must be considered separately. In fortunes where no suspect has been identified but a 3rd party is accordingly seeking return of the point ( s ) , the Garda must so see whether forensic scrutiny or other trials may be required in order to supply rebuttal of any possible bias happening as a consequence of disposal of the point ( s ) . [ 31 ]

Restrictions on Duty to Unwrap

The responsibility to unwrap is non absolute and as such, a figure of restrictions to its operation exist. First, there is no responsibility officeholder upon the prosecution to unwrap stuff deemed irrelevant to the defense mechanism. [ 32 ] Further, there is no responsibility upon the prosecution to unwrap a statement made by a Garda source where the revelation of such a statement would later place the aforesaid source. Similarly, there is no responsibility to unwrap the individuality of possible informants who have ( without the purpose of being a informant ) helped the Garda in their probes. [ 33 ]

There are specific relevant factors that should be considered when the prosecution is contemplating whether or non to unwrap – including the public involvement, the protection of professionally privileged information and State security. However, any restriction on the responsibility to unwrap is finally capable to the over-riding rule of the ‘innocence at stake’ exclusion. As Lord Esther MR summarised inMarks v Beyfus:

‘If upon the test of a individual the justice should be of sentiment that the revelation of the name of the source is necessary or right in order to demo the person’s artlessness, so one public policy is in struggle with another populace policy, and that which says that an guiltless adult male is non to be condemned when his artlessness can be proved is the policy that must prevail.’ [ 34 ]

Therefore, any information capable of showing the accused’s artlessness will probably fall under the ‘innocence at stake’ exclusion.


This paper has considered through the scrutiny of instance jurisprudence, the historical development of the pre-trial responsibility on the prosecution to seek out, preserve and unwrap grounds to the defense mechanism. Pulling upon recent opinions on drumhead prosecutions, stuff in the ownership of 3rd parties, the responsibility to retain and to continue grounds, and the restrictions upon the responsibility to unwrap, the paper has traced the overarching rules of revelation in the Irish tribunals. Following the determination of the Supreme Court in Sweeney, it appears that the issue of stuff in the ownership of 3rd parties remains unrecorded and it is therefore submitted that this facet of the jurisprudence will stay a cardinal country of argument.


McDermott, P.A. ( 2005 ) ‘The Duty to Seek Out, Preserve and Disclose Evidence to the Defence’ ,Judicial Studies Institute Journal5 ( 2 ) 80-98

McGrath, D. ( 2004 )Evidence.Irish capital: Roundhall Press.

O’Mahony, P.Condemnable Justice inIrish republic.Irish capital: Institute of Public Administration

Office of the Director of Public Prosecutions ( 2008 ) hypertext transfer protocol: // [ accessed 17/10/08 ]


Director of Public Prosecutions v Braddish[ 2001 ] 3 IR 127

Director of Public Prosecutions V Doyle[ 1994 ] 2 IR 286

Director of Public Prosecutions V Dunne[ 2002 ] 2 IR 305

Director of Public Prosecutions V Bowes and McGrath( Supreme Court unreported 6 February 2003 )

Director of Public Prosecutions V Connolly( High Court, 15 May 2003 )

Director of Public Prosecutions v Special Criminal Court[ 1999 ] 1 IR

The People ( Director of Public Prosecutions ) V Sweeney[ 2001 ] 4 I.R. 102 ( S.C. )

Marks v Beyfus[ 1890 ] 25 Q.B. 494

McKevitt v Director of Public Prosecutions,Supreme Court, 18 March 2003

Scully 5 Director of Public Prosecutions( unreported 21 November 2003 )

The People ( Director of Public Prosecutions ) v Tuite( Frewen 175 )

Whelan v Kirby[ 2004 ] 2 I.L.R.M. 1 ( S.C. )


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