The Gazette 1994

GAZETTE

APRIL 1994

B O O K

R E V I E W S

The Law of Evidence in Ireland

by Caroline Fennell, Butterworths (Ireland) Ltd 1992,400pp, hardback, £41.00. Legal practitioners tend to regard a book on the law of evidence as something to be used on an 'ad hoc' basis to get an answer to a legal problem which is procedural as opposed to substantive. Caroline Fennell's book is in that functional respect different. Throughout, she approaches each heading of the subject from a principled standpoint - a style not unknown to readers of American law review articles. In view of Ms. Fennell's own US academic experience, this is not altogether surprising. Her approach is arguably the correct one, as, unlike the UK but like the US, the application of our rules of evidence, particularly in criminal cases, is always in the context of what American law calls 'due process' and Irish law calls 'constitutional fair procedures'. If this jurisdiction is ever to have a judicial training system, it would be likely that participating judges would be recommended to read fully (not just consult!) Ms. Fennell's book. Those charged with the application of the law of evidence should be aware of its 'balancing' function. Whether the case at hearing be criminal or civil, judges should always be conscious that for the man-in-the-street, exposed to the legal system perhaps for the only time in his life, the way a court hearing is conducted, particularly the way in which 'adjectival' evidential rules are applied, will be for him the substance of the law in action. The inclusion by the author of the American experience will be of interest to the academic and the law student as well as to the practitioner. Our Supreme

At the launch of The Law of Evidence in Ireland were l-r: Gerard Coaklev, General Butterworths Ireland; the Hon Mr. Justice Hugh O'Flaherty, Consultant Editor; Fennell, Author and the Hon Mr. Justice Anthony Hederman, who launched the hook.

Manager, Caroline

Photograph: Sally Kerr-Davis

Francis Elrington Ball, writer and historian (1863 - 1928), was the son of Lord Chancellor Ball, Lord Chancellor of Ireland from 1875 to 1800. As a son of the Lord Chancellor, the highest office-holder of the law in Ireland, Ball was well known from his earliest years to members of the Irish judicial bench of the time. The author devoted the best years of his life to the defence of the legislative union between Great Britain and Ireland. As late as 1926 he still considered the legislative union to be necessary for the economic welfare of Ireland. Ball's years in politics brought him into close contact with members of both branches of the profession. Yet despite his contact with judges, barristers and solicitors, the sketches of the judges of his time are disappointing. Of course this criticism is made from the vantage point of the 1990s. There is a natural tendency for a historian to pay least attention to his or her own time; writers sometimes forget that they publish not only for their present generation but for posterity. However, it is difficult to write

Court, influenced not least by the late Mr. Justice Niall McCarthy, is now as willing to accept, as persuasive, a precedent emanating from the US courts, federal or state, just as much as a precedent from an English, Australian or Canadian court. In her chapter on Opinion Evidence, and of particular contemporary interest here, is the exposition by the author of the current US experience on the acceptability of DNA fingerprint evidence. The last twenty years has seen the publication of an impressive sequence of books on various topics of Irish law, each adding to the development of our own separate jurisprudence.

Michael V. O 'Mahony

The Judges in Ireland 1221 - 1921

by F. Flrington Ball, 2 volumes, xxii + 365pp and 408pp (first published by John Murray, London, 1926, repub- lished by Round Hall Press, Dublin, 1993) IR£100.00, boxed £125.00.

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