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The Duty of Disclosure on the Prosecution in Criminal Proceedings

The Duty of Disclosure on the Prosecution in Criminal Proceedings

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An essay for the 2011 Undergraduate Awards (Ireland) Competition by Paul Barry. Originally submitted for Bachelor of Corporate Law -GY250 at NUI Galway, with lecturer Thomas O'Malley in the category of Law
An essay for the 2011 Undergraduate Awards (Ireland) Competition by Paul Barry. Originally submitted for Bachelor of Corporate Law -GY250 at NUI Galway, with lecturer Thomas O'Malley in the category of Law

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Published by: Undergraduate Awards on Aug 31, 2012
Copyright:Attribution Non-commercial


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The right of an accused to a fair trial
, while not expressly stated, is implicitlyprotected in Irish law under our constitution by articles 38.1 and 40.3 respectively.Within the right to a fair trial, is the right to be furnished with all relevant evidencerelating to the accused and his case
in the prosecution’s possession.
This right wasset out by McCarthy J. in the Court of Criminal Appeal in D.P.P v Tuite
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.
 The right to such evidence is intrinsically linked to the severe imbalance that arisesout of a criminal prosecution, whereby an accused must contend with all theresources available to the state as his or her opposition. It must be noted that theobligation on the prosecution in criminal cases is not to ensure a conviction but toensure that justice is served and must produce its evidence if it is both exculpatoryand inculpatory. This issue has been raised in two major cases outside of IrishJurisdiction in the US and Canada
(Brady v Maryland 
R v Stinchcombe 
dealt with the suppression of evidence which was favourable to the accusedand was in violation of the right to due process held in the fourteenth amendment of 
First developed in
Re: Haughey 
[1971] IR 217
People (DPP) v Tuite
(1983) 2 Frewen 175
at 186
Brady v Maryland 
373 U.S 83, 87 (1963) This position was later affirmed
in Commonwealth v. Daye
,411 Mass. 719, 728 (1992)
R v Stinchcombe
[1991] 3 SCR 326, 68 CCC (3d) 1
the constitution
. The Supreme Court laid out a global marker for defining the duties
of the prosecution in criminal cases and the requirement for the “fruits of the
to be discharged, as mentioned in
The House of Lordshave also followed the jurisprudence of our Atlantic neighbours, finding that it is
"Axiomatic", that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not 
be tried for it at all.” 
It is therefore no surprise that we have followed in finding that this duty is inherentlylinked to the common law principles of justice and fairness. The case of 
Braddish v DPP 
found that the Gardaí had a duty to “seek out and preserve
” all evidence thatwould have a potential bearing on the outcome of an accused’s trial, regardless of 
the intention to use it in court. The duty has also been seen to be approved also inthe EC under the convention of Human Rights Article 6(1) which has beeninterpreted to include the right to disclosure of evidence against an accused, but thatthe courts are happy to allow the national courts to decide admissibility of evidenceand such matters and that Strasbourg would take an administrative role in assessingthe overall fairness of trials
 It is clear therefore that internationally, a general right applies to disclosure of evidence in criminal proceedings and that we are obliged under National andEuropean law to ensure that this right is upheld. However, such a right is not
Mentioned the possibility of civil liability imposed on police who failed to disclose exculpatoryevidence(see Farber, B
Civil Liability for Police: Failure to Disclose Exculpatory Evidence
2009 (9)AELE Mo. L. J. 101)
R v Horseferry Road Magistrates' Court, Ex .p.Bennett 
[1994] 1 A.C. 42 at 68.
Braddish v DPP
[2002] 1 ILRM 151, Approved lynch J in
Murphy v DPP
[1989] I.L.R.M. 71
Hardiman J at 157
Andreangeli, Arianna
EU competition enforcement and human rights
(2008) EE Publishing at 87
absolute in all proceedings and it is necessary to establish in what context anaccused may rely on claiming this privilege.The first issue regarding disclosure is that the material to be disclosed must berelevant to the guilt or innocence of the accused and eligible to be brought before thecourt. While other jurisdictions have been pretty strict in deciding what the currentIrish position is set out by Keane C. J. in a hearing on
McKevitt v DPP: 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 
This decision has however failed to define under who exactly is considered to be theprosecution for deciding upon who to impose the burden. So while the prosecutionon indictment is usually made up of a barrister, they may not be in factualpossession of the evidence. Generally, it is the police that make disclosure after conferring with counsel.
The DPP v McKevitt 
case also raised the issue of actualpossession of documents. The prosecution cannot disclose evidence that it may nothave in its material possession, for example McKevitt involved documents inpossession of foreign security services. Here the refusal of cooperation by the other states meant that the courts could not have any control in ordering them to produce
as it would be outside the remit of the state’s jurisdiction.
Supreme Court, 18
March 2003 which approved and developed upon
DPP v Special Criminal Court 
[1999] 1 IR 60

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