Disclosure in criminal cases

In a criminal trial the prosecution is obliged to disclose to the defence, in advance of the trial, all relevant evidence which it has. This includes both the evidence which the prosecution intends using at your trial, as well as the evidence which it has but does not intend to use, if that evidence could assist your defence.

This duty to disclose is based on natural and constitutional justice, case law and statutory principles. However, the duty differs between summary prosecutions, which are tried in the District Court before a judge without a jury, and prosecutions on indictment, which are tried before a judge and jury in the Circuit Court or the Central Criminal Court.

In a summary prosecution there is no general duty for the prosecution to provide you in advance with the statements of witnesses, whether or not you request them. If you apply to the court to be provided with the statements, it is up to the court to decide whether it is in the interest of justice to provide you with them. The matters the court may need to consider were set out by the Supreme Court in Director of Public Prosecutions v Garry Doyle [1994] 2 IR 286.

When deciding whether or not to release evidence, the prosecution must consider similar principles. If you are requesting that you be provided with the statements, the responsibility lies primarily with you or your solicitor to provide reasons for why you need advance disclosure of the evidence.

In a case of trial on indictment the prosecution has a statutory duty to provide you, in advance of your trial, with certain materials which sets out the evidence intended to be given in the trial against you. These documents are usually referred to as the Book of Evidence.

When the Director of Public Prosecutions (DPP) consents to you being sent forward for trial, the DPP must serve the Book of Evidence on you (or your solicitor) within 42 days after you first appear in the District Court. The DPP can apply to the District Court to extend the 42 day period and normally the District Court will grant this extension if:

• There is a good reason for doing so and
• It would be in the interest of justice to do so

The law does not set down any limit on the length of the extension. There must, however, be a good reason for granting the extension, such as, if the Garda investigation is complex and there are a lot of witnesses involved in the case.

If the District Court refuses to grant an extension of time for service of the Book of Evidence, it must strike out the proceedings against you in relation to the offence. This does not mean that the case is over or finished. When the District Court strikes out the proceedings it is without prejudice to the institution of any proceedings against you by the DPP. This means that the DPP can bring you before the court again on the same charges.

If you intend relying on the evidence of any alibi at your trial you must give notice of the alibi to the prosecution within 14 days of being served the Book of Evidence.

What does the Book of Evidence contain?

The documents which must be served on you or your solicitor are as follows:

• A statement of the charges against you
• A copy of any sworn information (in writing) upon which the proceedings were started, that is, the written complaint made by a Garda
• A list of the witnesses whom the DPP proposes to call at the trial
• A statement of the evidence that is expected to be given by each witness at the trial
• A copy of documentary evidence complied in the ordinary course of business which the DPP wishes to use
• A list of any exhibits to be introduced at the trial.

Once the Book of Evidence is prepared, it is served on you. The serving of the Book of Evidence does not mean that the DPP cannot serve additional documents on you at a later stage.

At any time afterwards, the DPP must serve certain documents on you if they exist. These additional documents include:

• A list of any further witnesses the DPP proposes to call at the trial
• A statement of the evidence that is expected to be given by each witness whose name appears on the list of further witnesses
• A statement of any further evidence that is expected to be given by any witness whose name appears on the earlier witness list
• A copy of any further documentary evidence complied in the ordinary course of business which the DPP wishes to use
• A list of any further exhibits

You have the right to inspect all exhibits mentioned in the list of exhibits.

Who compiles the Book of Evidence?

While the Book of Evidence is compiled and served on behalf of the DPP, it is normally the investigating Garda who is responsible for putting the Book of Evidence together. Work on the Book of Evidence starts immediately after your first appearance before the District Court.

As mentioned above, compiling a book of evidence can be a lengthy process especially if the case is complex and there are a large number of witnesses. Witness statements normally are the largest class of document included in a Book of Evidence. Statements from Gardaí, witnesses to the crime and expert witnesses (such as forensic experts and medical experts) are all gathered by the investigating Garda for inclusion in the Book of Evidence.

Is all the collected material disclosed?

The prosecution may have other material which it has decided not to use at your trial. Disclosure of this evidence should be made to you, without a request, if the evidence is relevant to your defence.

Further information on disclosure is available in the publication Guidelines for Prosecutors (pdf) which is available on the Director of Public Prosecution’s website.