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GAZETTE
JULY/AUGUST 1992
the leave of the court. In addition,
the certificate can no longer be
relied upon and oral testimony of
the matters set out in the certificate
is required. Although the Bill deals
primarily with business records, it
also extends to the evidence of a
Garda photographer or mapper,
medical evidence in relation to the
examination of a living or dead
person and statements made by non-
residents in the presence of a judge
of the District Court. These last
statements are considered to be made
in the "ordinary course of the
business" of the judge.
The Committee is of the view that
this concept might be seen to be an
affront to the position of the
judiciary. In addition, it is to be
doubted whether it is part of the
ordinary business of a judge to be
present when a statement is taken
ex
parte
from a witness in a prospective
criminal trial. However, assuming the
provision can be operated, it could
allow for quite contentious evidence
of non-residents to be introduced
without any right of cross-
examination.
Many of the points made by the
Committee in relation this Part were
of a technical nature. Indeed, a
criticism could be made that some
of the provisions are overly technical
and complicated. It remains to be
seen how they will work in practice.
Thus, it is not clear whether the
provisions are confined to cases
where the person who supplied or
compiled the original business record
cannot now be located or cannot
recall his involvement in the supply
or compilation of the record.
However, a particular criticism was
that some of the safeguards did not
extend to trials in the District Court.
There is no statutory requirement to
serve advance notice of the relevant
documents at such trials, nor is there
a provision for the service of a
notice of objection. The Explanatory
Memorandum states that in
summary proceedings any prejudice
to either party by lack of notice or
inadequate notice can be avoided by
an adjournment. This is a very large
assumption indeed. Furthermore, it
ignores the practice that has built up
since the
Cowzer
cases of the
prosecution serving statements in
advance on the defence. Unless, as a
matter of practice, copy documents
and certificates are served on the
defence in advance, trials in the
District Court will inevitably be
adjourned, at great cost and
expense.
Nonetheless, there is much to
applaud in the Bill. That
practitioners have been involved in
the legislative process, and that such
involvement has been welcomed, is a
new and encouraging development.
That criminal procedure and
evidence is being looked at in a
comprehensive way and that reforms
are taking account of the changes in
technology and in the social sciences
is to be welcomed. However, no one
needs reminding that, as the recent
history in our neighbouring
jurisdiction shows, some
developments in science and
technology in the forensic field may,
with the passage of time, be seen to
be of questionable worth.
•
Criminal Law
Committee
THE IRISH
LAWYERS' FISHING CLUB
A N N U AL T R I P
Ballina/Crossmolina, Co. Mayo
Thursday 27 - Sunday 30 August
Details from: -
Michael O'Byrne,
Keaveny Walsh & Co.,
Kells,
Co. Meath.
Phone: 046-40004
Robert Burke,
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Phone: 01-8290000
Case Law of the European
Court of Human Rights
Volume II: 1988-1990
DR VINCENT BERGER
The first volume in
this series deals with
all the case law of the
European Court of
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1959 to 1987,
comprising in all 117
decisions of the
Court. This present
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the seventy two
decisions handed
down by the Court in
the period 1988-1990.
For each of the cases
covered Dr Berger
provides a full
summary of the facts
and of the law
involved, together
with a summary
bibliography for each
decision and a note of
the changes effected
in national law and
procedure resulting
from the decisions.
ISBN 0-947686-66-5;
ISSN 0791-1866 £37.50.
Back volumes in print:
volume 1:1959-1987
ISBN 0-947686-37-1
£45.00.
THE ROUND HALL PRESS
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214