The Gazette 1995

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

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 takers were called as to their personal I scrutiny of the contents of the warehouse. That situation was 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: j i 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

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 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 date of birth of the child and its patrimony. The accused, however, 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

present, and in illuminating the present, assist in illuminating the future.

property in the possession of a person. The sections which allow 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 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 cutting down the right to silence has been, whether fortunately or not, given to us in incomprehensible form. In the United Kingdom the Criminal Justice and Public Order Act, 1994 makes substantial modifications of the right of silence. Similarly the procedure at fraud trials has been substantially 323 I :

Dr Eamonn G Hall

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| 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.

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