The Gazette 1992

GAZETTE

JULY/AUGUST 1992

Many of the points made by the Committee in relation this Part were of a technical nature. Indeed, a criticism could be made that some of the provisions are overly technical and complicated. It remains to be seen how they will work in practice. Thus, it is not clear whether the provisions are confined to cases where the person who supplied or compiled the original business record cannot now be located or cannot recall his involvement in the supply or compilation of the record. However, a particular criticism was that some of the safeguards did not extend to trials in the District Court. There is no statutory requirement to serve advance notice of the relevant documents at such trials, nor is there a provision for the service of a notice of objection. The Explanatory Memorandum states that in summary proceedings any prejudice to either party by lack of notice or inadequate notice can be avoided by an adjournment. This is a very large assumption indeed. Furthermore, it ignores the practice that has built up since the Cowzer cases of the prosecution serving statements in

the leave of the court. In addition, the certificate can no longer be relied upon and oral testimony of the matters set out in the certificate is required. Although the Bill deals primarily with business records, it also extends to the evidence of a Garda photographer or mapper, medical evidence in relation to the examination of a living or dead person and statements made by non- residents in the presence of a judge of the District Court. These last statements are considered to be made in the "ordinary course of the business" of the judge. The Committee is of the view that this concept might be seen to be an affront to the position of the judiciary. In addition, it is to be doubted whether it is part of the ordinary business of a judge to be present when a statement is taken ex parte from a witness in a prospective criminal trial. However, assuming the provision can be operated, it could allow for quite contentious evidence of non-residents to be introduced without any right of cross- examination.

advance on the defence. Unless, as a matter of practice, copy documents and certificates are served on the defence in advance, trials in the District Court will inevitably be adjourned, at great cost and expense.

Nonetheless, there is much to applaud in the Bill. That

practitioners have been involved in the legislative process, and that such involvement has been welcomed, is a new and encouraging development. That criminal procedure and evidence is being looked at in a comprehensive way and that reforms are taking account of the changes in technology and in the social sciences is to be welcomed. However, no one needs reminding that, as the recent history in our neighbouring jurisdiction shows, some developments in science and technology in the forensic field may, with the passage of time, be seen to be of questionable worth. •

Criminal Law

Committee

Case Law of the European Court of Human Rights Volume II: 1988-1990 DR VINCENT BERGER

THE IRISH LAWYERS' FISHING CLUB

A N N U AL T R I P Ballina/Crossmolina, Co. Mayo

summary of the facts and of the law involved, together with a summary bibliography for each decision and a note of the changes effected in national law and procedure resulting from the decisions. ISBN 0-947686-66-5; ISSN 0791-1866 £37.50. Back volumes in print: volume 1:1959-1987 ISBN 0-947686-37-1 £45.00.

The first volume in this series deals with all the case law of the European Court of Human rights from 1959 to 1987, comprising in all 117 decisions of the Court. This present volume deals with down by the Court in the period 1988-1990. For each of the cases covered Dr Berger provides a full the seventy two decisions handed

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Michael O'Byrne, Keaveny Walsh & Co., Kells, Co. Meath. Phone: 046-40004 Robert Burke, McCann FitzGerald, 2 Harbourmaster Place, Custom House Dock. Dublin 1. Phone: 01-8290000

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