Dermot Ahern (Louth, Fianna Fail)

This amendment addresses a difficult issue, namely, the requirement of the Garda not only to seek out but also to retain evidence. While being mindful of the inconvenience and loss being suffered by at least some owners of the property involved, I do not claim that this amendment will address all the concerns in this issue but it will bring a measure of relief as well as a degree of certainty to the law. There is considerable jurisprudence on this issue from the Supreme Court. In its judgment in the 2001 case of Braddish v. DPP, Mr. Justice Hardiman stated:

It is well established that evidence relevant to guilt or innocence must, so far as is necessary and practical, be kept until the conclusion of the trial. This principle also applies to the preservation of articles that give rise to a reasonable possibility of securing relevant evidence.

In her judgment in a more recent Supreme Court case, Savage v. DPP, Ms Justice Denham outlined a best practice suggestion for the Garda to follow when deciding on whether to return or retain the property. This amendment is an attempt to transpose this best practice suggestion into statute, or at least aspects of it.

The approach taken in the amendment is based on section 21 of the Criminal Justice Act 1984, as amended by the 1999 Act. Section 21 establishes a procedure for proof by written statement. The current proposal develops that procedure. It provides a mechanism whereby exhibits may be presented by way of a written statement which contains all relevant analysis to the satisfaction of both parties. The procedure entails the prosecution, at its discretion, presenting a statement or report to the defence. The defence then has the opportunity to agree to or accept the report presented to it by the prosecution, in which case the property is returned or disposed of. The defence may commission its own report, or may require that the item be retained or presented at trial. Although it is a limited procedure, the arrangement refers to the prosecution making its approach to the defence at least 23 days prior to the scheduled start of the trial. The Police Property Act 1897 is available to deal with claims for the return of property after the conclusion of proceedings. Therefore, I recommend this amendment to the Seanad.