The Gazette 1990

GAZETTE

' APRIL 1990

this

Issue

Viewpoint

Solicitors Charging Lien

— priorities and practice 85

Arbitration — The expert

witness and

compensation 89

Younger Members News

People & Places

100

Medical Negligence Claims

— Some practical

observations

103

AVMA Conference 106

Lawyers Fishing Club

108

Investing on the

Stock Market

Lawbrief

109

111

115

^Bc^jerk Reviews

Professional Information

117

Executive Editor:

Mary Gaynor

Committee:

Eamonn G. Hall, Chairman

Michael V. O'Mahony, Vice-Chairman

John F. Buckley

Gary Byrne

Patrick McMahon

Charles R. M. Meredith

Daire Murphy

John Schutte

Advertising:

Seán Ó hOisín. Telephone: 305236

Fax: 307860

Printing:

Turner's Printing Co. Ltd., Longford.

The views expressed in this publication,

save where otherwise indicated, are the

views of the contributors and not

necessarily the views of the Council of

the Society.

The appearance of an advertisement in

this publication does not necessarily

indicate approval by the Society for the

product or service advertised.

Published at Blackhall Place, Dublin 7.

Tel.: 710711.

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GAZETTE

Viewpgjm

The report of the Committee to

enquire into certain aspects of

criminal procedure is exactly what

one would expect from a Com-

mittee chaired by Judge Frank

Martin, speedy, brisk and very

much to the point. The Committee

was appointed on 29th November

last and its report was published

before the end of March, the Com-

mittee having devoted, according

to its Chairman's note, a con-

siderable part of their Christmas

holidays to the task. In passing, a

comment should be made as to

how fortunate the State is that

busy people from all walks of life

are prepared to devote their time

and expertise on a purely voluntary

basis, to serve on Ad Hoc Com-

mittees of this sort. Would that

their generosity was always

matched by the speedy imple-

mentation of recommendations.

While the first of the topics con-

sidered by the Committee, the

examination of whether there was

a need for a procedure for persons

who had exhausted normal appeals

procedures to have their cases

further reviewed, has attracted

most of the comment on the report,

in the long term it is clear that the

recommendations in relation to

safeguards for statements made to

the Gardai by accused persons will

be of much wider import.

The Committee has concluded

that there is a real need for a

procedure for the review of cases

where new evidence raises

questions about the earlier verdict.

While noting that such cases were

rare, it also concluded that the use

of the normal Courts procedure

was not appropriate for any such

review. Apart from the fact that a

Constitutional amendment wouíd

almost certainly be required to

enable our Courts to re-open a case

which had been taken to the

Supreme Court it is far from clear

that our adversarial system is suit-

able for examining fresh evidence,

even it were of an admissible

nature, years after the original trial.

INCORPORATE D

LAW SOCIETY

OF IRELAND

Vol.84 No.3 Apri l 1990

Suggestions have been made

both in this country and in the U.K.

that where further evidence

becomes available a re-trial should

be ordered. It is very doubtful if it

would be at all in the interests of

justice to attempt to re-try cases

many years after the events in

question. The Committee's recom-

mendation of an Enquiry Body to

which cases could be referred by

the Attorney General seems ad-

mirable though perhaps the Houses

of the Oireachtas could be given

power by joint resolution to refer a

case to an Enquiry Body. While the

Attorney in normal circumstances

would clearly be the most ap-

propriate person to make such a

recommendation it might not be

appropriate for him to be faced

with such a task if, for instance, he

had participated as Counsel in the

trial, the outcome of which is to be

questioned.

The Committee's second recom-

mendation should receive wide-

spread support. It is disappointing

to find spokesmen for sections of

the Gardai suggesting that the

introduction of compulsory Audio

Visual Recording of the questioning

of suspects in Garda stations or by

Gardai generally should be

accompanied by removal of the

right to silence.

Various commentators have over

the years expressed reservations

about the practice of taking state-

ments from persons suspected of

involvement in crime. It is clear that

what is eventually produced, hav-

ing been signed by the suspect, as

a record of his statement, is not

strictly such, but a conversion into

narrative form of replies given by

the suspect to the questioners.

There have been so many chal-

lenges to "voluntary statements"

made in police stations that the

proposed procedures, already used

in other common law countries, of

video recording would seem to be

very welcome.

(Contd. on p.87)