Practice & Procedure
Why do some people respond to social problems by supporting provisions that deny, in effect, the existence of the problem (“right wing”) while others insist on the recognition and resolution, by society, of all problems (“left-wing”).
My post on audio recordings in Garda custody is about establishing the grounds for the making of adverse inferences at trial, not about the procedure for interrogation in Garda custody. Under Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007), it is open to a court to make an adverse inference (of guilt; what else?) arising from …the failure of an accused to mention… [“…any fact relied on in his […]
This may be true, but those documents must be relatively very few. In addition, if the “advice” is in fact correspondence between conspirators, the fact that one of the conspirators is a lawyer is not a bar to the introduction of the document in evidence against all the conspirators, including and particularly, the lawyer.
For the Plaintiff, “fighting” did not require him to give evidence; the case was run purely on legal arguments. Although the judgement of the three-judge Court of Appeal was unanimous in his favour, the legal arguments were sufficiently cogent to defeat him in first instance (and to have attracted the Defendants’ lawyers to the course of action they took, in the first instance).
So, the accused is in a position where i) he is not obliged to say anything; ii) his solicitor’s advice is secret (privileged); and iii) he is menaced with an adverse inference if he remains silent.
Under Section 19A an adverse inference may be drawn from the failure of an accused to mention a fact, later relied upon by him in his defence, while he is being questioned etc., by the Gardai.
In Ireland, it is the person making the request who must justify it. In principle, that would be fine, if the process was not emptied of intellectual content by requiring that person to justify the request, not by relevance (that, bizarrely, is assumed) but by necessity.
Unfortunately, in Ireland, one, at least, of the Rules of the Superior Courts hinders the doing of justice. That rule currently governs the making of “discovery” in proceedings.
That general sense is, often, a hankering for corroboration, as in “…yes, I took the bus home that day, here is the ticket showing the date, the time and the route number”. Here the proof is not the ticket, it is the statement, “I took the bus home…”.
There seems to be no end to the debt of gratitude the Irish (and now, the English) legal profession owe to the managing director of Ryanair. He has clarified the words of a suitable jurisdiction clause on websites to confer jurisdiction within the EU. See HERE for how he did it. (This writer has adapted those words below to accommodate his purposes and intentions. Feel free to appropriate the clause without attribution, but on terms of repudiation of liability by […]