The Gazette 1990

GAZETTE Viewpgjm

' APRIL 1990

GAZETTE

INCORPORATE D LAW SOCIETY OF IRELAND Vol.84 No.3 Apri l 1990

In this Issue Viewpoint

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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.

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.

Solicitors Charging Lien — priorities and practice 85 Arbitration — The expert witness and compensation 89 Younger Members News 99 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 Advertising: Seán Ó hOisín. Telephone: 305236 Fax: 307860 Printing: Turner's Printing Co. Ltd., Longford. Daire Murphy John Schutte 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. Telex: 31219. Fax: 710704.

(Contd. on p.87)

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