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GAZETTE
B O O K
R E V I E W S
APRIL 1994
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
Manager,
Butterworths Ireland; the Hon Mr. Justice Hugh O'Flaherty, Consultant Editor;
Caroline
Fennell, Author and the Hon Mr. Justice Anthony Hederman, who launched the hook.
Photograph: Sally Kerr-Davis
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.
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
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