The Gazette 1976

G A Z E T T E

N O V E M B E R 1976

and they must feel satisfied beyond reasonable doubt

of the correctness of the identification before they are

at liberty to act upon it.

You will be aware that this has been the

subject of a great deal of discussion in England

and elsewhere, for many years. As a result of

the increasing unease caused by miscarriages of justice

that had come to light the British Home Secretary

appointed Lord Devlin to lead an inquiry into iden-

t'fication evidence. The report has appeared recently.

In the case of

The People (Attorney General)

O'Callaghan

the Supreme Court narrowed the

grounds on which bail could be refused to two viz.,

the likelihood that the accused would not stand his

trial and the likelihood of his interference with wit-

nesses if allowed bail. It was specifically decided that

bail could not be refused merely because there was a

likelihood of the commission of further offences while

on bail and it was held that that was a form of pre-

ventive detention. Mr. Justice Walsh said (at p. 516

of the report:-

"In this country it would be quite contrary to the

concept of personal liberty enshrined in the Con-

stitution that any person should be punished in

this respect of any matter upon which he has not

been convicted or that in any circumstances he

should be deprived of his liberty upon only the

belief that he will commit offences if left at liberty,

save in the most extraordinary circumstances care-

fully spelled out by the (Parliament) and then only

to secure the preservation of public peace and

order for the public safety and the preservation

of the State in the time of national emergency or

in some situation akin to that".

Those I would single out as the outstanding develop-

ments in the criminal law in that period.

At the

moment the concept of "loitering with intent" and

whether on a charge or motion to attach ror contempt

of Court an accused should be entitled to a jury -

and, indeed, the whole concept of what should be

embraced by the notion of contempt of Court - are

on the fringes of judicial consideration here and in

this regard, too, I believe, that there is a rich lode of

Australian authority.

Turning to the civil side, we retarn juries to try

civil cases where the amount of the cla

m is likely to

exceed £2,000 and the right is confined to cases of

negligence, nuisance, defamation and the like. There is

an appeal to the Supreme Court if the findings of the

jury on the Lability issue are unwarranted or un-

reasonable. There can also be an appeal as

regards damages if they are such (being either too high

or too low) as no reasonable jury, properly directed,

should award. Furthermore, the Supreme Court has

power either to order a re-trial on any or some issue

or, itself, to make findings. Increasingly, it is exercising

its power to substitute a different award from that given

by the jury where the expense of the re-trial would be

out of proportion to the amounts involved: Section

96 of the Courts of Jurt

;

ce Act, 1924, (No. 10 of 1924)

permits the Court to enter "such judgment as it con-

siders proper".

As regards the assessment of damages, the Supreme

Court has laid down repeatedly

that where there is

a substantial element of future loss of earnings in-

volved in any claim, the evidence of an actuary is not

merely desirable but necessary. It is immaterial

whether the prospective losses are in respect of a long

period or in respect of a short period, and whether

the period is already commenced or whether it will

arise at some stage in the future.

The appropriate actuarial evidence is necessary in all

these cases to enable the jury to arrive at a reasonably

accurate mathemathical computation of the present

value of the actual loss which they will find will be

incurred.

In a case where there is a diminution of

earn

ngs, then that is the amount to be calculated and

evidence can be called from an employer or a person

familiar with the employment situation to state what

the plaintiff's potential earning capacity would be if he

could get a job.

Until this year juries in this country were in practice

composed exclusively of men. There was also a prop-

erty qualificarion. While women were eligible to act

they had to apply to be put on the register and, need-

less to say, many did not avail of that "privilege".

However, two ladies challenged the constitutionality

of the relevant legislation. The Supreme Court in

a decis

on delivered on the 12th December, 1975

laid down that the absence of women from juries was

unconstitutional. As Mr. Justice Henchy said:-

"Firstly, it fails the test of representat'veness because

it means that some fifty per cent of the adult population

will never be included in the jury lists. Secondly, and

of even greater importance, that narrowed cho

means that a woman's experience, understanding and

general attitude will form no part in the jury processes

leading to a verdict. Whatever may have been the

position at Common Law, or under statute up to

recent times, it is incompatible with the necessary

diffusion of rights and duties in the modern democratic

society that important public decis'ons - such as voting,

or jury verdicts involving life or liberty - should be

made by male citizens only. What is nvssing in de-

cisions so made is not easy to define, but reason and

experience show that such decisions are not calculated

to lead to a sense of general acceptability, or to carry an

acceptable degree of representativeness, or to have the

SAINT LUKE'S CANCER

RESEARCH FUND

Gifts or legacies to assist this Fund are most

gratefully recived by the Secretary, Esther

Byrne, at "Oakland", Highfield Road, Ratbgar

Dublin 6. Telephone 976491.

This Fund does not employ canvassers or

collectors and is not associated with any

other body in fund raising.

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