Ivana Bacik (Independent)

I am very conscious that there has been a long body of case law on the issue of presentation of evidence, and I declare an interest as I acted in one case that went to the High Court on this. I welcome the attempt to put certainty in the law, but this may be difficult to operate in practice.

I wish to make suggestions to improve the procedure outlined by the Minister in the new section 35. The time of seven days outlined in the new section 35(4) for the defence to serve this notice in writing on the prosecution, indicating what they propose to do with the property, is simply too short. I do not think it will work in practice. The prosecution can serve the prosecution notice about the property at any time at least 23 days prior to the start of the trial. That could occur right at the beginning of the criminal proceedings. In my experience, this arises where somebody reports a crime to the Garda Síochána, gardaí investigate and find stolen property, they arrest an accused and the owner then seeks the return of his or her property. This might happen at a very early date, possibly even prior to the accused's first appearance before the District Court if that person is on bail. It may be that the accused will not even have instructed a solicitor or been granted legal aid. Where the owner is seeking the return of the goods in that sort of case and the gardaí wish to dispose of the property having taken their photographs, they can serve the prosecution notice on the accused because that is allowed in the new section 35(2), but the defence — just the accused person at this stage — will only have seven days to respond.

The new section 35(5) provides that the defence shall, not later than seven days after service of that notice, serve the defence report of evidence on the prosecution. That seems to be too tight to be workable in a situation where an accused person may not have been assigned legal aid. It would be better to have longer time limits in those particular subsections. I do not want to overstate this and I can table amendments on Report Stage. However, I have been involved in cases like this and I know in practice that it may be very difficult for the defence to comply with this. I do not see a proviso saying that all this could be done over a longer period. The real risk is that the gardaí involved will dispose of the property if they have not heard from the defence. We then have the whole Braddish v. DPP and Dunne v. DPP scenario all over again where the defence may apply to the courts claiming that the Garda Síochána should have retained the property. I just seek to make the provision more workable.