9 Disclosure

General

9.1 The constitutional rights to a trial in due course of law and to fair procedures found in Articles 38.1 and 40.3 of the Constitution of Ireland place a duty on the prosecution to disclose to the defence all relevant evidence which is within its possession. That duty was stated by McCarthy J. in The People (Director of Public Prosecutions) v. Tuite (Frewen 175) as follows:

"The Constitutional right to fair procedures demands that the prosecution be conducted fairly; it is the duty of the prosecution, whether adducing such evidence or not, where possible, to make available all relevant evidence, parol or otherwise, in its possession, so that if the prosecution does not adduce such evidence, the defence may, if it wishes, do so".

9.2 In Director of Public Prosecutions v. Special Criminal Court [1999] 1 IR 60, Carney J. (at p.76, in a passage subsequently approved by the Supreme Court at p.81) defined relevant material as evidence which "might help the defence case, help to disparage the prosecution case or give a lead to other evidence".

"the prosecution are under a duty to disclose to the defence any material which may be relevant to the case which could either help the defence or damage the prosecution and that if there is such material which is in their possession they are under a constitutional duty to make that available to the defence"- McKevitt v. Director of Public Prosecutions (Supreme Court, 18 March 2003, Keane C.J.).

9.3 The prosecution is therefore obliged to disclose to the defence all relevant evidence which is within its possession. A person charged with a criminal offence has a right to be furnished, firstly, with details of the prosecution evidence that is to be used at the trial, and secondly, with evidence in the prosecution's possession which the prosecution does not intend to use if that evidence could be relevant or could assist the defence. The extent of the duty to disclose is determined by concepts of constitutional justice, natural justice, fair procedures and due process of law as well as by statutory principles. The limits of this duty are not precisely delineated and depend upon the circumstances of each case. Further, the duty to disclose is an ongoing one and turns upon matters which are in issue at any time.

9.4 Article 5 of the European Convention of Human Rights also guarantees a person charged with a criminal offence the right to a fair hearing and:

"to be informed promptly in a language which he understands and in detail, of the nature and cause of the accusation against him".

The Convention provides guidance concerning the minimum rights of accused persons as they are guaranteed throughout Europe and has been incorporated into Irish domestic law by the European Convention on Human Rights Act 2003.

9.5 The precise scope of the duty to disclose differs as between cases which are triable summarily in the District Court and those triable on indictment and are discussed separately below at paragraph 9.6.

Summary Prosecutions

9.6 The scope of the duty of disclosure in summary prosecutions has been defined by the Supreme Court in Director of Public Prosecutions v. Gary Doyle [1994] 2 IR 286. In the light of that judgment the following principles should be observed by the prosecution:

there is no general duty on the prosecution in a summary case to furnish in advance the statements of intended witnesses whether or not there is a request for them from the defence. However, if there is some reason arising from the particular circumstances of a case why advance disclosure of the details of the case, whether by furnishing statements or otherwise, is necessary in the interest of justice, this should be done whether or not there is a request;
the test to be applied by a court on an application by the defence to be furnished pre-trial with the statements on which the prosecution case will proceed is whether "in the interests of justice on the facts of the particular case" this should be done (Gary Doyle's case, at p.301). The requirements of justice must be considered in relation to the seriousness of the charge and the consequences for the accused. Very minor cases may not require that statements be furnished. Complexity of the case is also a factor. Amongst the matters which the Supreme Court in Gary Doyle identified as possibly relevant to the court's decision were:

"(a) the seriousness of the charge;

(b) the importance of the statements or documents;

(c) the fact that the accused has already been adequately informed of the nature and substance of the accusation;

(d) the likelihood that there is no risk of injustice in failing to furnish the statements or documents in issue to the accused."

(Gary Doyle's case, at p.302);

in making a decision whether to furnish statements the prosecutor should have regard to the principles set out in Gary Doyle's case and referred to above;
a request for statements made by the defence should be considered in the context of the witnesses whom it is proposed to call at the trial and whether the Gary Doyle principles require disclosure. It is primarily a matter for the defence, when requesting statements in summary cases, to advance the reason or reasons why the accused considers that statements should be furnished. If the defence does not advance any adequate reason for disclosure, and the case does not appear to be one where the Gary Doyle principles require disclosure, then they need not be furnished without an order of the court;
statements or information not intended to be tendered at a summary trial should be furnished to the defence where it is necessary in the interest of justice. This should be done with or without a request. This includes statements or information which, even if the prosecutor does not regard them as reliable, might reasonably be regarded as of assistance to the defence;
while the Gary Doyle case arose from indictable offences which were being dealt with summarily, the principles set out in that case are applicable to all offences being tried summarily.

Prosecutions on Indictment

The Book of Evidence

9.7 Where an offence is to be disposed of by trial on indictment the prosecution has a statutory duty pursuant to sections 4B and 4C of the Criminal Procedure Act, 1967 as inserted by section 9 of the Criminal Justice Act, 1999, to furnish the accused with certain materials setting out the evidence intended to be adduced against the accused. The documents provided under section 4B are usually referred to collectively as the book of evidence. This essentially comprises the evidence which the prosecution intends to adduce at the trial. The following documents should be included in the book of evidence:

a statement of the charges against the accused;
a copy of any sworn information in writing upon which the proceedings were initiated;
a list of the witnesses whom it is proposed to call at the trial;
a statement of the evidence that is expected to be given by each of them;
a copy of any document containing information which is proposed to be given in evidence by virtue of Part II of the Criminal Evidence Act, 1992;
where appropriate, a copy of a certificate pursuant to section 6(1) of the Criminal Evidence Act, 1992; and
a list of exhibits (if any).

9.8 These documents are required to be served on the accused person within 42 days of the accused's first appearance in the District Court. An application to extend this time period may be made which must be grounded on sufficient reasons such as complexity of the case, large number of witnesses, or other such reason which may cause delay. Because of the short time for service of the book of evidence it may be more convenient not to charge an accused until the book of evidence is prepared unless there is some reason why such a course of action would be inappropriate.

Further evidence

9.9 Pursuant to section 4C of the 1967 Act, as inserted by section 9 of the Criminal Justice Act, 1999, if the prosecutor proposes to call further evidence or additional witnesses or evidence has been taken on deposition, the prosecutor should serve the accused and furnish the court with the following applicable documents:

a list of any further witnesses the prosecutor proposes to call at the trial;
a statement of the evidence that is expected to be given by each witness whose name appears on the list of further witnesses;
a statement of any further evidence there is expected to be given by any witness whose name appears on the list already served under section 4B(1)(c);
any notice of intention to give information contained in a document in evidence under section 7(1)(b) of the Criminal Evidence Act, 1992 together with a copy of the document;
where appropriate, a copy of a certificate under section 6(1) of the Criminal Evidence Act, 1992;
a copy of any deposition taken under section 4F;
a list of any further exhibits.

Obligation by the prosecution to disclose material not intended to be used at the trial

9.10 There may also be other material of an evidentiary nature which the prosecution has decided not to use at trial. Some of this evidence may neither add to nor detract from the case against the accused, in which case it is not relevant and need not be disclosed. Other evidence may undermine some aspect of the prosecution case or in some other way be of assistance to the defence.

9.11 In the ordinary course disclosure of evidence should be made, without a request, if the evidence is relevant. In this regard relevant evidence includes information which may reasonably be regarded as providing a lead to other information that might assist the accused in either attacking the prosecution case or making a positive case of its own. The following information should ordinarily be disclosed if relevant:

information not in statement form of which the prosecution is aware whether intended to be used by the prosecution or not and whether considered reliable or not;
in the case of material not in the possession or procurement of the prosecution but of which it is aware the existence of that material should be disclosed;
information regarding proposed prosecution witnesses which might reasonably be considered relevant to their credibility, such as criminal convictions, an adverse finding in other proceedings, relationship with a victim or another witness or any possible personal interest in the outcome of a case;
details of any physical or mental condition which may affect reliability;
details of any immunity from prosecution provided to a witness with respect to his or her involvement in criminal activities. Where a witness is admitted to a witness protection programme the fact of such an admission should be disclosed;
where the witness participated in the criminal activity the subject of the charges against the defendant, whether the witness has been dealt with in respect of his or her own involvement and, if so, whether the sentence imposed on the witness took into account any cooperation with law enforcement authorities in relation to the current matter;
statements not included in the book of evidence which could be of assistance to the defence;
the unedited version of statements prepared for inclusion in the book of evidence;
items not included in the list of exhibits in the book of evidence which could reasonably be of assistance to the defence;
sworn information and warrants where relevant;
particulars of the accused's prior convictions;
any prior inconsistent statements of witnesses whom the prosecution intend to call to give evidence;
copies of all electronically or mechanically recorded statements obtained from the accused;
copies of any photographs, plans, documents or other representations that might be tendered by the prosecution at trial or which, even though not intended to be so tendered, might reasonably be relevant to the defence. The defence should also be provided with reasonable access to inspect exhibits and, where it is practicable to do, photocopies or photographs of such exhibits;
where the prosecutor declines to call a witness whose statement is contained in the book of evidence, the defence should be given details of any material or statements which may be relevant and if requested the prosecution should make the witness available for the defence to call (see paragraph 8.6 to 8.8);
any other relevant document.

9.12 Where it is feasible to do so the defence should be provided with copies of relevant unused material. However, where that is not feasible (for example because of the large quantity of material involved) the defence should be provided with an opportunity to inspect it.

9.13 The investigating agency should, as early as possible:

inform the Director's Office of the existence of any material not included with the file that it considers is potentially relevant. In cases of doubt the investigating agency should err on the side of informing the Director of the existence of the particular material;
inform the Director's Office of the existence of any potentially disclosable material of which it is aware and which is in the possession of a third party (that is, a person or body other than the prosecution or the investigating agency);
provide the Director's Office with copies of potentially disclosable material unless that is not feasible, (for example, because of the bulk of the material. In such a case it may be necessary for arrangements to be made to enable the prosecutor to view the material before such a decision can be made whether it has to be disclosed to the accused).

Material in the possession of third parties

9.14 Following the decision of the Supreme Court in the case of The People (Director of Public Prosecutions) v. Sweeney (2001 4 IR 102), to the effect that the civil procedure known as 'third party discovery' has no application in criminal proceedings, defendants cannot utilise this procedure to ensure production of material in the hands of third parties.

9.15 This does not, however, have as a necessary consequence an erosion of the fair procedures to which the defendant is entitled. The following observations are relevant:

the Criminal Justice Act, 1999 provides for the possibility of taking evidence by way of sworn deposition in the District Court at any stage after the return for trial and it is open to the accused to ensure that any relevant records or notes in the possession of a witness are produced;
alternatively it is open to the accused to require witnesses to attend at the trial and produce any relevant documents by the issue of a subpoena duces tecum.

The duty to retain and preserve evidence

9.16 A number of principles can be determined from decisions of the High Court and Supreme Court in:

Director of Public Prosecutions v. Daniel Braddish (2001 3 IR 127);
Director of Public Prosecutions v. Robert Dunne (2002 2 IR 305);
Director of Public Prosecutions v. Bowes and McGrath (Supreme Court unreported 6 February 2003);
Director of Public Prosecutions v. Ian Connolly (High Court 15 May 2003); and
Michael Scully v. Director of Public Prosecutions, (unreported 21 November 2003).

The following guidelines are drafted in the light of these cases.

9.17 Evidence relevant to guilt or innocence must, so far as necessary and practicable, be kept until the conclusion of a trial. This principle also applies to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence. The fact that evidence is not to be used by the prosecution does not justify its destruction or unavailability or the destruction of notes or records about it. Where the evidence gives rise to a reasonable possibility of rebutting the prosecution case it should be retained.

9.18 There is a duty to seek out evidence having a bearing on guilt or innocence. The obligation does not require the investigator to engage in disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence. The duty must be interpreted realistically on the facts of each case. The obligation to seek out and preserve evidence is to be reasonably interpreted and the relevance or potential relevance of the evidence needs to be considered. There is an obligation and responsibility on defence lawyers to seek material they consider relevant.

9.19 While observing the foregoing principles the Garda Síochána must have regard to the rights of the owner of stolen goods. Where they possess evidence which it is not proposed to use at the trial and which they intend to return to the owner or otherwise dispose of, they should inform the accused of this fact beforehand so the defence may have the opportunity to examine the items before their return to the owner.

9.20 The defence should be afforded a reasonable amount of time in which to carry out such an inspection. A record should be retained of any communication with the accused or the accused's representatives inviting access to the item and the time limit allowed for such access should be recorded. Where the Garda Síochána have recovered stolen property used in criminal offences the main consideration is relevance to the offence which is being investigated. The item has to be considered with regard to the overall nature of the investigation. If a third party is seeking the return of the item, but no suspect has been identified, the question should be asked as to whether forensic examination, sampling or other tests need to be carried out beforehand to rebut any possible prejudice which may arise from the disposal of the item.

9.21 Where the Garda Síochána or another investigating agency is in doubt whether material should be retained they should seek the advice of
the Director's Office.

Limitations on the Duty to Disclose

9.22 The prosecution is under no obligation to disclose irrelevant material to the defence. If the material is irrelevant in the sense that it is not relied on by the prosecution and does not appear to assist the defence then it is neither appropriate nor necessary to disclose it. However, as a general guideline if it is reasonably possible that something is relevant and if there is no other obstacle to disclosure the balance is in favour of disclosure. It must be borne in mind that the prosecution may not be aware that a particular defence will be put forward by the accused. In cases of doubt concerning either relevance or a competing claim of privilege the prosecutor should consider seeking a ruling from the court.

9.23 The prosecution is not obliged to disclose:

a confidential statement made by a Garda informant where such statement would identify the informant;
the identity of a potential witness who has assisted the Garda Síochána without intending to be a witness and the prosecution has agreed not to call the person unless that person has evidence which would assist the defence.

9.24 In deciding whether to disclose material the prosecutor must also have regard to any other issues of the public interest which might arise. In such cases, however, the defence should be informed that material has been withheld on such grounds so as to enable the accused to seek a court ruling on the matter. Some relevant factors to be considered are:

whether the material is protected by legal professional privilege. The public policy which protects communications between lawyer and client extends to communications between the Director and his professional officers, solicitors and counsel as to prosecutions by him which are in being or contemplated;
whether the material, if it became known, might facilitate the commission of other offences or alert a person to Garda investigations;
whether the material would be of assistance to criminals by revealing methods of detection or combating crime;
whether the material involves the security of the State;
whether disclosure of the document would lead to the publication of the names of others in respect of whom further investigative discussions are to take place or in respect of whom enquiries have been made in certain circumstances where all the parties involved have an entitlement to the presumption of innocence;
where the circumstances require, a prosecutor may seek an undertaking that the material will not be disclosed to parties other than the accused's legal advisers and the accused.

9.25 The privileges or exemptions outlined at 9.23 and 9.24 are subject to the 'innocence at stake' exception where the disclosure of the material concerned or of the identity of the informant or witness is necessary or right because the evidence in question if believed could show the innocence of the accused.

"If upon the trial of a person the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the person's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail" - Lord Esher MR in Marks v. Beyfus (1890 25 QBD 494).

If the prosecution is nonetheless unable to disclose the material concerned then it may be necessary to discontinue the prosecution.

The Timing of Disclosure

9.26 As a general rule disclosure should be made sufficiently in advance of the trial to enable the accused to consider the material disclosed. Primary voluntary disclosure of all disclosable material then in the possession of the prosecution should be made at the time of the return for trial of the accused. Any further material subsequently coming into the possession of the prosecution or specifically requested by the defence should be disclosed in a timely fashion.