Ireland: What Is It You Haven't Told Me?

Last Updated: 14 September 2017
Article by Joanelle O’Cleirigh and Jillian Conefrey

Disclosure is an essential feature of the criminal justice process. If not done correctly, it can cause issues for both prosecutors and accused and can jeopardise the successful prosecution of a case.

HM Inspectorate of Constabulary recently released a Report which considered issues with the disclosure process in UK criminal proceedings. While the Report applies to proceedings in the UK, in light of similar rules on disclosure between the UK and Ireland (aside from the additional constitutional protections in Ireland), the issues raised in the Report may equally apply in this jurisdiction.

THE IMPORTANCE OF DISCLOSURE

The Report, which was commissioned following a number of critical Court of Appeal rulings surrounding the issue of disclosure in criminal cases, highlights the importance of getting disclosure right and specifically refers to the high financial cost as well as the emotional cost to victims, witnesses and defendants of inadequate disclosure and the impact a failure to disclose material can have on the case itself.

The report noted that in 2015/2016 the single most frequent cause of miscarriages of justice in the UK was the failure to disclose evidence which could have assisted the accused.

In each criminal investigation the police are required to record, retain and make known to the prosecutor all material obtained during the investigation which may be of relevance to the prosecution. Every unused item or piece of material obtained during the investigation which is retained by the police and considered relevant should be reviewed to assess whether it is capable of undermining the prosecution or assisting the defence. If either factor applies, it must be disclosed to the defence.

The Report found that this practice is not adhered to in the vast majority of cases. The effect of this is such that the prosecution is at risk of challenge in respect of inadequate disclosure. The failure to deal with disclosure issues early may also lead to last minute disclosure between counsel. This, in turn, can lead to unnecessary adjournments and discontinued cases which, if disclosure had been dealt with properly earlier, could have been avoided.

RECOMMENDATIONS

The Report makes a number of remedial procedural recommendations that should be implemented within six to twelve months, which include:

  •  That the police and the Crown Prosecution Service ("CPS") identify all disclosure issues relating to unused material at the charging stage;
  •  The CPS should comply with the Attorney General's Guidelines on Disclosure and ensure that every defence statement is reviewed by the allocated prosecutor before sending to the police and that prompt guidance is given to the police on what further actions should be taken;
  •  The College of Policing should produce guidance to enable police forces to provide effective training on the disclosure of unused material to all staff involved in the investigation process;
  •  Police forces should improve their supervision of case files;
  •  All police forces should establish the role of dedicated disclosure champion and make sure that the role holder is of sufficient seniority to ensure he/she is able to work closely with the CPS;
  •  The police and the CPS should review their respective digital case management systems.

The police and CPS should develop effective communication processes to resolve unused material disclosure issues in a timely and effective manner.

CONCLUSION

As is evident from the above, the Report highlights the requirements on law enforcement authorities to fulfil their obligations in respect of disclosure material. These principles could be said to apply equally to all criminal proceedings and investigations, including those initiated by regulators.

In Ireland, there is an obligation to disclose material not intended to be used by the prosecution at trial (or by an investigator) if such material may undermine an aspect of the case or investigation or assist the defence in some other way. This material is known as "relevant unused material". The DPP's Guidelines for Prosecutors states that where it is feasible to do so, the defence should be provided with copies of relevant unused material. Where this is not feasible, the defence should be provided with an opportunity to inspect the evidence. Either way, it appears clear that appropriate access ought to be provided.

It is important also to remember that prosecutors and regulators also have obligations to victims pursuant to the European Union Directive 2012/29/EU which includes an inherent obligation to ensure that prosecutions are conducted appropriately.

In light of the similar rules on disclosure in this jurisdiction, prosecutors, regulators and investigators ought to place renewed emphasis on proper procedures such as those being adopted in the UK. For those facing prosecution or investigation, it will be increasingly important to ensure that thorough enquiries are made in respect of the disclosure process such that any errors or omissions on the part of the prosecutor, regulator or investigator can be explored.

The consequences of a failure to make proper disclosure have been evidenced in recent times in proceedings such as the case of DPP v Fitzpatrick and the Tribunal of Inquiry into Certain Planning Matters and Payments ("The Mahon Tribunal") and it is likely that identification of failures to disclose evidence in the context of proceedings or an investigation will face further scrutiny going forward. Prosecutors, regulators and investigators should ensure they have proper procedures in place to deal with such emerging issues.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions