Dermot Ahern (Louth, Fianna Fail)

This amendment is based on the recommendations of the review group which examined the question of whether there should be a more general prior disclosure of defence evidence. It rejected the idea of general disclosure but recommended more limited requirement of disclosure of evidence of a technical and special nature. The Government and I accepted this recommendation and the amendment gives effect to it. It provides that the defence must give the prosecution notice of its intention to adduce evidence.

The notice must normally be given at least ten days in advance of the scheduled start of a criminal trial but the court retains discretion to allow for shorter notice, for example, where it feels it is necessary to respond to some fact that arises in the course of the trial from the evidence given while in the witness stand by an expert witness for the prosecution. The application from the defence must include the name and address of its expert witness as well as details of the evidence the expert proposes to give. The application is to be accompanied by reports and summary findings of any analysis carried out by the expert witness. When assessing the application the court will satisfy itself that the evidence it is proposed to give meets the requirements in statute or otherwise to the standard of evidence. This ensures the procedure is not used to introduce irrelevant or frivolous material or to otherwise waste the court's time.

The procedures in this amendment are modelled on section 20 of the Criminal Justice Act 1984, notice of alibi in trials on indictment, which requires notice of the particulars of the alibi as well as details of witnesses to be called in support of the alibi. The wider picture is that generally a considerable disparity exists between the advanced disclosure required of prosecution and defence in criminal cases. The prosecution is required to set out details of the precise conclusions that it seeks to prove in the form of statement of particulars of the offence on indictment and to furnish not only copies of exhibits and statements of witnesses intended to call but also any other material which may be useful to the defence.

The defence, by contrast, with limited exceptions such as the alibi evidence to which I referred earlier and information regarding witnesses required by the Offences Against the State (Amendment) Act 1998, or the intention to adduce evidence regarding the mental condition of an accused under section 19 of the Criminal Law (Insanity) Act 2006, is not required to furnish any such information.

Having viewed various options and having considered the position in the UK and elsewhere the review group felt the time was not right to undertake any wholesale changes but there is no doubt that a case can be made for prior disclosure in the case of expert evidence. Such evidence is often very complex. It can relate to a wide range of medical, scientific and mechanical issues, to mention some of the more common ones but it will often relate to matters such as the evaluation of DNA analysis methods, the interpretation of DNA results and pathology reports.

The analysis and subsequent reports are often prepared by specialists in agencies outside the State. It is reasonable that the prosecution should have some opportunity to consider and evaluate such evidence. The defence, after all, will have had details in advance of all of the evidence, including the expert evidence on which the prosecution relies. The amendment does not require disclosure of all of the defence evidence. It is limited to one area where the nature of the evidence is such that it very often cannot be evaluated instantaneously. I recommend this amendment.