The Gazette 1982

E T

JANUARY/FEBRUARY 1982

BOOK REVIEW

A Casebook of Irish Criminal Law:

by Mark Findlay

and Barry McAuley. Precedent Publications 1981.

Pbk. only. 490pp. IR£16.00 + £1.50 post & packing.

This book contains over four hundred pages of

excerpts from many of the most important Irish

Criminal Law cases. As such it is a very welcome

addition to the rather poor selection of books on the

topic. In recent years there seems to be a trend towards

the publication of different books on various aspects of

Irish Law. Gone forever, one hopes, are the days when

Irish students were forced to rely on English textbooks

and the odd Irish case.

The editors of this book, both Lecturers, have

attempted to produce a casebook with a difference. The

reader is not given a note of the facts of the case nor a

potted introduction to the relevant law - he is expected

to extract both of these from the excerpt quoted. Head

notes have been excised in all cases. This is a deliberate *

policy of the editors. In their introduction they cast

doubt on the educational value of the traditional

casebook - that is where students are presented with

highly abridged extracts from leading cases. There

argument is that the student is not aware either of the

extent to which cases have been cut or the criteria

governing editorial decisions. Accordingly, we are here

presented with extremely long excerpts and in some

cases, in fact, the whole case as reported in the reports.

Whereas I appreciate the point the editors are making

I am not convinced that they have been entirely

successful in their attempt to overcome these

difficulties. Ironically part of the reason for this failure

stems from the method of presentation of the cases. As

there are no references or headnotes the reader can have

no idea, for instance, of the year in which the decision

was handed down unless he is prepared to look up the

table of contents at the beginning of the book. Then he

may be presented with legal argument of Counsel

concerning intricate facts (and of course in many cases

the facts themselves are in issue) long before these facts

are disclosed to him, for example cf.

The People (AG)

-v -

Heald

(at page 300). Furthermore because the

editors are loathe to interfere overmuch with the cases

there is much boring and wasteful repetition. In

The

Minister for Post and Telegraphs - v -Campbell

(page 19

of the casebook) a full case stated sent up by the District

Court is set out in the first page and a half the Judge

effectively repeats the facts of the case stated in the next

half page and the decision itself takes up less than a

page. Similarly in cases where there is more than one

Judgement more severe editorial pruning would, I feel,

have been in order. Finally I was surprised to see that

the list of cases at the beginning of the book did not

refer the reader to the pages in the book containing the

excerpts.

The editors also claim that this <

asebook could

be of

benefit to the practitioner as it brings

together ill ol

the

leading cases on Irish Criminal law in a

single volume.

cannot agree fully with this claim.

I he book is of

value

to the practitioner in that he can read extracts from

important cases without having to get out actual

reports. There can be no substitute, however, for the

actual report when in Court or indeed when preparing a

case for Court

when it is obvious that certain

precedents will be relied upon. It is always possible that

some point, which may seem to have little importance at

the time but which may be vital at a later stage, may

have been ommitted. This is expecially true in the

complex and technical field of Criminal Law. To be fair

the editors would no doubt be the first to point out this

problem. Secondly however the editors do not inform

us of the exact manner in which they have interfered

with the text. For instance in

The People (AG) -

-Cowan

there are (at page 310 in the Casebook) four

lines in italics stuck right in the middle of the extract.

This appears to be a comment on the Judgement. Is this

a comment of the Editors? Is it a statement that the

Judge particularly wanted to emphasis? It would also

be interesting to know whether the footnotes (usually

references) are those of the Editors or are they part of

the actual report. Thirdly, and most regrettably there

are a large number of printing errors, and at times

references to footnotes, which do not exist. Some

printing errors may be expected in 400 closely typed

pages, but I feel that they occur too frequently to make

the book totally reliable in Court.

Furthermore, I would not agree that the Casebook is

completely up to date. It contains only four unreported

Judgements (two of which are over ten years old) and

very few cases from the nineteen seventies. The Editors

claim that developments in Irish Substantive Criminal

Law have not kept pace with other jurisidictions. They

blame this phenomenon partly on the fact that Courts in

small jurisdictions get fewer opportunities to develop

the law, and that this is due somewhat, in our case, to

"evident reluctance of defence counsel to appeal

Criminal cases on other than Constitutional grounds."

This last point is rubbish. In my experience, defence

lawyers are very willing to draft grounds of appeal

involving points of Criminal Law, Evidence and

Criminal Procedure as well as Constitutional points,

and I do not think I have ever seen a set of grounds of

appeal containing only Constitutional points. In any

event it is not only through appeals that cases reach the

higher courts for decision. Decisions on State Side

applications have produced a number of interesting

Jugements affecting the Criminal Law, and none of

these are reported in the Casebook.

"Ivan Scott

" (1980)

is concerned with the definition of Common Law

offences. "

James Daly"

(1980) dealt with the vexed

question of the scheduling of offences under the

Offences Against the State Acts "

George Farrell"

(1977) and "

Jeremiah Walsh

" (1979) dealt with

substantive as well as evidential aspects of the same

legislation. "

John O'Loughlin

" (1978) ruled on the so

called "Claim of Right" in larceny cases. It is

interesting to note that this last case was an appeal!

Finally, but not exhaustively, "

Carew

" (1979) dealt

with the offence of public mischief.

My final criticisms are perhaps unfair. Every Editor of

an Anthology is criticised for not including somebody's

favourite poem. Similarly an Editor of a Casebook

cannot include every case, and thus leaves himself open