347 / 424
GAZETTE
j Society, deepen (in a metaphorical
I sense) the fading letters on the
J
tombstones of Irish legal history so that
facets of the history of Irish law and its
legal system are presented to new
generations.
j
Professor Brand describes the fortunes
j of the judicial bench in the medieval
| Irish lordship. Judge Hart presents a
j portrait of King's sergeants at law in
Ireland over the centuries and
considers the many facets of the life of
Audley Mervyn
who was elevated to
i the rank of prime sergeant in 1660. Dr.
Colum Kenny
writes on the history of
the Four Courts up to 1796, almost a
period of two centuries and also
contributes a paper with the title "Irish
! ambition and English preference:
chancery appointments, the fate of
| William Conygham Plunkett
". Mr.
Sellar analyses marriage, divorce and
the forbidden degrees, canon law and
| Scots law.
Professor Osborough and The Legal
History Society must be commended.
There is intrinsic merit in studying
legal history for its own sake, but
paraphrasing another, legal historians
in illuminating the past, illuminate the
present, and in illuminating the
present, assist in illuminating the
future.
Dr Eamonn G Hall
| Cr imi nal Evidence
By Richard May. Published by
Sweet and Maxwell, London. Third
edition, 1995; hardback: £58.00 stg.
New editions of this book are
appearing at intervals of just over four
years. Phipson remains the standard
work on the law of evidence. As with
all the other volumes in the Common
Law Series these are not produced with
a degree of frequency that makes them
readily useful. The problem with this
book is a National one. It relates more
j
to the diligence of the parliament of the
United Kingdom in reviewing their
I existing law for the purpose of
| changing it than with the similar
I
enthusiasm displayed in this
1
jurisdiction: that.does not exist.
The Constitution has had the most far
reaching effect on the law of evidence
in this country. Those aspects of the
common law which it has touched
remain the areas which are vital for
day-to-day criminal litigation. Many of
the rules of the common law might be
j regarded as suspect viewed from the
j scope of a broad constitutional
I principle that the purpose of the courts
j is to administer justice. What "justice"
I is has depended to a large extent on
interpretation of the notion of what
might fairly be regarded as a proper
1 and logical exercise of the right of
! access to the courts. With one
í exception that movement has all been
! in favour of the accused. The reason
S for this is that the prosecution were
debarred from appealing rulings in
criminal cases save in the exceptionally
limited circumstance of an appeal from
the Central Criminal Court to the
Supreme Court, now abolished (for
| whatever reason) by the Criminal
Justice Act, 1993. In
The People (DPP)
I v
JT
a mother was mistakenly called on
j
the prosecution of her husband for
! incest against their daughter. The facts
she gave were hardly critical to the
course of the hearing since they
consisted merely of a recitation of the
date of birth of the child and its
patrimony. The accused, however,
representing himself, and in an excess
of enthusiasm, cross-examined his wife
about a number of matters including
their prior sexual history receiving an
answer as to its similarity to the
allegation now made by her daughter.
Under the rules of common law a
| spouse could not be called against the
; other save in circumstances where that
act of violence had been directed
against the spouse, and not against her
children. The Court of Criminal Appeal
overturned that rule of common law in
favour of a more logical interpretation
whereby the right of access to the court
implied within it the right to defend
and vindicate one's constitutional
rights by giving relevant evidence. It
would have been interesting to note
what the Supreme Court might have
made of an appeal, subsequently
withdrawn, whereby the full rigors of
the hearsay rule were to be subjected to
a simple test of logic. Since, for
example, a Bonded Warehouse was
' under the control of the Revenue
Commissioners it would be
inappropriate to apply the full silliness
of the House of Lords ruling in Myers
(1964) whereby evidence of stock
could only be given if all of the stock
j
takers were called as to their personal
I scrutiny of the contents of the
warehouse. That situation was
i
overtaken by the Criminal Justice
: (Evidence) Act, 1992 and what remains
a principle will probably now lie
j
dormant in the light of further statutory
j
reforms. The big issue in Irish criminal
litigation is the admissibility of
I evidence. In regard to this work it is
well that we note that:
1. The Judges Rules of 1918 remain in
force in this jurisdiction. They were
subsequently heavily amended in
the United Kingdom and were then
replaced in total by the Police and
Criminal Evidence Act, 1984 and,
in that form, do not even merit a
mention in this work.
2. The right to silence, such as it is,
remains a rule of the common law
which continues in force in this
jurisdiction. The only change made
is contained in sections 15, 16, 18
and 19 of the Criminal Justice Act,
1984. The first two sections make it
an offence to withhold information
regarding a firearm that is in the
possession of a person or stolen
j
property in the possession of a
|
person. The sections which allow
I
Í
inferences to be drawn from the
|
failure of an accused person to
|
account for objects or marks found
on him and for his presence in a
!
particular place are cast in such
:
I
obscure language that they remain
11 years after the passing of the Act
virtually unexplained to any jury.
Provisions along the line of those
requiring a person to account for his
movements under the Offences
|
Against the State Act, 1939
continue to have a certain internal
logic but every other attempt at
I
cutting down the right to silence has
I
been, whether fortunately or not,
j
given to us in incomprehensible
form. In the United Kingdom the
j
Criminal Justice and Public Order
j
Act, 1994 makes substantial
modifications of the right of silence.
Similarly the procedure at fraud
trials has been substantially
323