LegalizePART I Preliminary
1. Short title and commencement.
1.—(1)This Act may be cited as the Criminal Evidence Act, 1992.
(2)This Act (except Part III and section 29) shall come into operation three months after the date of its passing.
(3)Part III and section 29 shall come into operation on such day or days as may be fixed therefor by order or orders of the Minister for Justice and different days may be so fixed for different purposes and different provisions; and, in particular, any of the provisions of sections 13 to 16 and section 29 may be brought into operation on different days for different courts and for different circuits and district court districts.
(4)(a)The provisions of this Act (other than Part III F1[(exceptsections 14A,15,16(1)(b),18and19A)] and section 29) shall not apply to criminal proceedings instituted before the commencement of the provisions concerned.
(b)For the purposes of paragraph (a) criminal proceedings are instituted—
(i)when a summons or warrant of arrest is issued in respect of an offence,
(ii)when a person is arrested without a warrant, or
(iii)when a person is remanded for trial pursuant to F2[Chapter IVofPart V].
2. Interpretation (general).
2.—(1)In this Act—
“the Act of 1935” means the Criminal Law Amendment Act, 1935;
“court” includes court-martial;
“criminal proceedings” includes proceedings before a court-martial and proceedings on appeal;
“document” includes—
(i)a map, plan, graph, drawing or photograph, or
(ii)a reproduction in permanent legible form, by a computer or other means (including enlarging), of information in non-legible form;
“information” includes any representation of fact, whether in words or otherwise;
“information in non-legible form” includes information on microfilm, microfiche, magnetic tape or disk;
F3["sexual offence" means rape, sexual assault (within the meaning ofsection 2of theCriminal Law (Rape) (Amendment) Act 1990), aggravated sexual assault (within the meaning of section 3 of that Act), rape under section 4 of that Act or an offence under—
(a)section 3or6of theCriminal Law Amendment Act 1885,
(b)section 5of theCriminal Law (Sexual Offences) Act 1993,
(c)section 6of theCriminal Law (Sexual Offences) Act 1993,
(d)section 1or2of thePunishment of Incest Act 1908,
(e) section 4A or 5A of theChild Trafficking and Pornography Act 1998,
(f)section 249of theChildren Act 2001,
(g) theCriminal Law (Sexual Offences) Act 2006, or
(h)section 3,4,5,6,7or8of the Criminal Law (Sexual Offences) Act 2017,
excluding an attempt to commit any such offence;]
“videorecording” means any recording, on any medium, from which a moving image may by any means be produced and includes the accompanying soundtrack (if any), and cognate words shall be construed accordingly.
(2)Nothing in Part II or in section 30 shall prejudice the admissibility in evidence in any criminal proceedings of information contained in a document that is otherwise so admissible.
(3)Where in any criminal proceedings the age of a person at any time is material for the purposes of any provision of this Act, his age at that time shall for the purposes of that provision be deemed, unless the contrary is proved, to be or to have been that which appears to the court to be or to have been his age at that time.
(4)In this Act—
(a)a reference to a Part or section is to a Part or section of this Act, unless it is indicated that reference to some other enactment is intended,
(b)a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.
(5)A reference in this Act to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment (including this Act).
3. Repeals.
3.—The enactments specified in the Schedule to this Act are hereby repealed to the extent specified in column (3) thereof.
PART II Admissibility of Documentary Evidence
4. Definition (Part II).
4.—In this Part “business” includes any trade, profession or other occupation carried on, for reward or otherwise, either within or outside the State and includes also the performance of functions by or on behalf of—
(a)any person or body remunerated or financed wholly or partly out of moneys provided by the Oireachtas,
(b)any institution of the European Communities,
(c)any national or local authority in a jurisdiction outside the State, or
(d)any international organisation.
5. Admissibility of documentary evidence.
5.—(1)Subject to this Part, information contained in a document shall be admissible in any criminal proceedings as evidence of any fact therein of which direct oral evidence would be admissible if the information—
(a)was compiled in the ordinary course of a business,
(b)was supplied by a person (whether or not he so compiled it and is identifiable) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with, and
(c)in the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned.
(2)Subsection (1) shall apply whether the information was supplied directly or indirectly but, if it was supplied indirectly, only if each person (whether or not he is identifiable) through whom it was supplied received it in the ordinary course of a business.
(3)Subsection (1) shall not apply to—
(a)information that is privileged from disclosure in criminal proceedings,
(b)information supplied by a person who would not be compellable to give evidence at the instance of the party wishing to give the information in evidence by virtue of this section, or
(c)subject to subsection (4), information compiled for the purposes or in contemplation of any—
(i)criminal investigation,
(ii)investigation or inquiry carried out pursuant to or under any enactment,
(iii)civil or criminal proceedings, or
(iv)proceedings of a disciplinary nature.
(4)Subsection (3) (c) shall not apply where—
(a)(i)the information contained in the document was compiled in the presence of a judge of the District Court and supplied on oath by a person in respect of whom an offence was alleged to have been committed and who is ordinarily resident outside the State,
(ii)either F4[section 4F] (which deals with the taking of a deposition in the presence of such a judge and the accused) of the Criminal Procedure Act, 1967, could not be invoked or it was not practicable to do so, and
(iii)the person in respect of whom the offence was alleged to have been committed either has died or is outside the State and it is not reasonably practicable to secure his attendance at the criminal proceedings concerned,
or
(b)the document containing the information is—
(i)a map, plan, drawing or photograph (including any explanatory material in or accompanying the document concerned),
(ii)a record of a direction given by a member of the Garda Síochána pursuant to any enactment,
F5[(iia) a record of the receipt, handling, transmission or storage of anything by the Forensic Science Laboratory of the Department of Justice, Equality and Law Reform in connection with the performance of its functions to examine and analyse things or samples of things for the purposes of criminal investigations or proceedings or both,]
(iii)a record of the receipt, handling, transmission, examination or analysis of any thing by any person acting on behalf of any party to the proceedings, or
(iv)a record by a registered medical practitioner of an examination of a living or dead person.
(5)Without prejudice to subsection (1)—
(a)where a document purports to be a birth certificate issued in pursuance of the Births and Deaths Registration Acts, 1863 to 1987, and
(b)a person is named therein as father or mother of the person to whose birth the certificate relates,
the document shall be admissible in any criminal proceedings as evidence of the relationship indicated therein.
(6)Where information is admissible in evidence by virtue of this section but is expressed in terms that are not intelligible to the average person without explanation, an explanation of the information shall also be admissible in evidence if either—
(a)it is given orally by a person who is competent to do so, or
(b)it is contained in a document and the document purports to be signed by such a person.
6. Evidence of admissibility.
6.—(1)In relation to information contained in a document which a party to criminal proceedings wishes to give in evidence by virtue of section 5, a certificate—
(a)stating that the information was compiled in the ordinary course of a specified business,
(b)stating that the information is not of a kind mentioned in paragraph (a) or (b) of section 5 (3),
(c)either stating that the information was not compiled for the purposes or in contemplation of any investigation, inquiry or proceedings referred to in section 5 (3) (c) or, as the case may be, specifying which of the provisions of section 5 (4) applies in relation to the document containing the information,
(d)stating that the information was supplied, either directly or, as the case may be, indirectly through an intermediary or intermediaries (who, or each of whom, received it in the ordinary course of a specified business), by a person who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information and, where the intermediary, intermediaries or person can be identified, specifying them,
(e)in case the information is information in non-legible form that has been reproduced in permanent legible form, stating that the reproduction was effected in the course of the normal operation of a specified system,
(f)where appropriate, stating that the person who supplied the information cannot reasonably be expected to have any, or any adequate, recollection of the matters dealt with in the information, having regard to the time that has elapsed since he supplied it or to any other specified circumstances,
(g)unless the date on which the information was compiled is already shown on the document, specifying the date (or, if that date is not known, the approximate date) on which it was compiled,
(h)stating any other matter that is relevant to the admissibility in evidence of the information and is required by rules of court to be certified for the purposes of this subsection,
and purporting to be signed by a person who occupies a position in relation to the management of the business in the course of which the information was compiled or who is otherwise in a position to give the certificate shall be evidence of any matter stated or specified therein.
(2)For the purposes of subsection (1) it shall be sufficient for a matter to be stated or specified to the best of the knowledge and belief of the person stating or specifying it.
(3)Notwithstanding that a certificate may have been given pursuant to subsection (1), the court—
(a)shall, where a notice has been served pursuant to section 7 (2) objecting to the admissibility in evidence of the whole or any specified part of the information concerned, and
(b)may, in any other case,
require oral evidence to be given of any matter stated or specified in the certificate.
(4)If any person in a certificate given in evidence in any proceedings by virtue of subsection (1) makes a statement material in those proceedings which he knows to be false or does not believe to be true, he shall be guilty of an offence and shall be liable—
(a)on summary conviction, to a fine not exceeding £500 or imprisonment for a term not exceeding 6 months or both, or
(b)on conviction on indictment, to a fine or imprisonment for a term not exceeding 2 years or both.
7. Notice of documentary evidence.
7.—(1)Information in a document shall not, without the leave of the court, be admissible in evidence by virtue of section 5 at a trial unless—
(a)a copy of the document and, where appropriate, of a certificate pursuant to section 6 (1) has been served on the accused F6[pursuant to section 4B(1) or 4C(1) of theCriminal Procedure Act, 1967,] or
(b)not later than 21 days before the commencement of the trial, a notice of intention so to give the information in evidence, together with a copy of the document and, where appropriate, of the certificate, is served by or on behalf of the party proposing to give it in evidence on each of the other parties to the proceedings.
(2)A party to the proceedings on whom a notice has been served pursuant to subsection (1) shall not, without the leave of the court, object to the admissibility in evidence of the whole or any specified part of the information concerned unless, not later than 7 days before the commencement of the trial, a notice objecting to its admissibility is served by or on behalf of that party on each of the other parties to the proceedings.
(3)A document required by this section to be served on any person may, subject to subsection (4), be served—
(a)by delivering it to him or to his solicitor,
(b)by addressing it to him and leaving it at his usual or last known residence or place of business or by addressing it to his solicitor and leaving it at the solicitor's office,
(c)by sending it by registered post to him at his usual or last known residence or place of business or to his solicitor at the solicitor’s office, or
(d)in the case of a body corporate, by delivering it to the secretary or clerk of the body at its registered or principal office or sending it by registered post to the secretary or clerk of that body at that office.
(4)A document required by this section to be served on an accused shall be served personally on him if he is not represented by a solicitor.
8. Admission and weight of documentary evidence.
8.—(1)In any criminal proceedings information or any part thereof that is admissible in evidence by virtue of section 5 shall not be admitted if the court is of opinion that in the interests of justice the information or that part ought not to be admitted.
(2)In considering whether in the interests of justice all or any part of such information ought not to be admitted in evidence the court shall have regard to all the circumstances, including—
(a)whether or not, having regard to the contents and source of the information and the circumstances in which it was compiled, it is a reasonable inference that the information is reliable,
(b)whether or not, having regard to the nature and source of the document containing the information and to any other circumstances that appear to the court to be relevant, it is a reasonable inference that the document is authentic, and
(c)any risk, having regard in particular to whether it is likely to be possible to controvert the information where the person who supplied it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them.
(3)In estimating the weight, if any, to be attached to information given in evidence by virtue of this Part, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.
9. Evidence as to credibility of supplier of information.
9.—Where information is given in evidence by virtue of this Part—
(a)any evidence which, if the person who originally supplied the information had been called as a witness, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose,
(b)evidence may, with the leave of the court, be given of any matter which, if that person had been called as a witness, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party, and
(c)evidence tending to prove that that person, whether before or after supplying the information, made (whether orally or not) a statement which is inconsistent with it shall, if not already admissible by virtue of section 5, be admissible for the purpose of showing that he has contradicted himself.
10. Amendment of Criminal Procedure Act, 1967.
10.—The Criminal Procedure Act, 1967, is hereby amended—
(a)by the substitution, for paragraphs (d) and (e) of section 6 (1) of that Act (which provides for the service of documents on an accused), of the following paragraphs:
and
(b)by the substitution, for section 11 of that Act (which provides for service of additional documents on an accused after he has been sent forward for trial), of the following section:
11. Evidence of resolution of Dáil or Seanad.
11.—In any criminal proceedings evidence of the passing of a resolution by either House of the Oireachtas, whether before or after the commencement of this section, may be given by the production of a copy of the Journal of the proceedings of that House relating to the resolution and purporting to have been published by the Stationery Office.
PART III Evidence in Certain Proceedings
12. F7[Interpretation and application - Part III
12.(1) In this Part—
"family member", in relation to a victim, means—
(a) a spouse, civil partner or cohabitant of the victim,
(b) a child or step-child of the victim,
(c) a parent or grandparent of the victim,
(d) a brother, sister, half brother or half sister of the victim,
(e) a grandchild of the victim,
(f) an aunt, uncle, nephew or niece of the victim, and
(g) any other person—
(i) who is or, where the victim is deceased, was dependent on the victim, or
(ii) who a court considers has or, where the victim is deceased, had a sufficiently close connection with the victim as to warrant his or her being treated as a family member;
"relevant offence" means—
(a) a sexual offence;
(b) an offence involving violence or the threat of violence to a person;
F8[(ba) an offence under section 10 (amended by section 23 of the Criminal Justice (Miscellaneous Provisions) Act 2023) of the Non-Fatal Offences against the Person Act 1997;]
(c) an offence undersection 3,4,5or6of theChild Trafficking and Pornography Act 1998;
(d) an offence undersection 2,4or7of theCriminal Law (Human Trafficking) Act 2008;
F9[(da) an offence undersection 33,38or39of the Domestic Violence Act 2018;]
F8[(db) an offence under section 44 (1) of the Criminal Justice (Miscellaneous Provisions) Act 2023;]
(e) an offence consisting of attempting or conspiring to commit, or of aiding or abetting, counselling, procuring or inciting the commission of, an offence mentioned inparagraph (a),(b),F8[(ba), (c), (d), (da)orF10[(db)]];
"victim" means—
(a) a natural person, other than an accused, who has suffered harm, including physical, mental or emotional harm, or economic loss, which was directly caused by an offence, and
(b) where the death of a person referred to in paragraph (a) is caused directly by the offence, a family member, provided that the family member concerned has not been charged with, or is not under investigation for, an offence in connection with the death of the person.
(2) The application of this Part is not dependent on the commission of an offence having to be established (nor is it dependent on establishing whether the person concerned suffered any harm caused by an offence).]
13. Evidence through television link.
13.—(1)In any proceedings F11[(including proceedings under section 4E or 4F of theCriminal Procedure Act, 1967)] for F12[a relevant offence] a person other than the accused may give evidence, whether from within or outside the State, through a live television link—
(a)if the person is under F13[18 years] of age, unless the court sees good reason to the contrary,
(b)in any other case, with the leave of the court.
F14[(1A) In any proceedings (including proceedings under section 4E or 4F of theCriminal Procedure Act 1967) relating to an offence, other than a relevant offence, a court may, subject tosection 14AA, grant leave for a victim of the offence to give evidence, whether from within or outside the State, through a live television link.]
(2)Evidence given under subsection (1) F14[or(1A)] shall be videorecorded.
(3)F15[…]
14. Evidence through intermediary.
14.—(1)Where—
(a)a person is accused of F16[a relevant offence], and
(b)a person under F17[18 years] of age is giving, or is to give, evidence through a live television link,
the court may, on the application of the prosecution or the accused, if satisfied that, having regard to the age or mental condition of the witness, the interests of justice require that any questions to be put to the witness be put through an intermediary, direct that any such questions be so put.
F18[(1A) Subject tosection 14AA, where—
(a) a person is accused of an offence, other than a relevant offence, and
(b) a victim of the offence who is under 18 years of age, is giving, or is to give, evidence through a live television link,
the court may, on the application of the prosecution or the accused, if satisfied that the interests of justice require that any questions to be put to the victim be put through an intermediary, direct that any such questions be so put.]
(2)Questions put to a witness through an intermediary under this section shall be either in the words used by the questioner or so as to convey to the witness in a way which is appropriate to his age and mental condition the meaning of the questions being asked.
(3)An intermediary referred to in subsection (1) F18[or(1A)] shall be appointed by the court and shall be a person who, in its opinion, is competent to act as such.
14A. F19[Placement of screen etc. for giving of evidence
14A.—(1) Where a person who is under 18 years of age is to give evidence other than through a live television link in respect of a relevant offence, the court may, on the application of the prosecution or the accused, direct that a screen or other similar device be positioned, in an appropriate place, so as to prevent the witness from seeing the accused when giving evidence, unless the court is satisfied that in all the circumstances of the case such a direction would be contrary to the interests of justice.
(2) Subject tosection 14AA, where—
(a) a person who is a victim of an offence, other than a relevant offence, is under 18 years of age and the person is to give evidence, other than through a live television link, in respect of the offence, or
(b) a person who is a victim of any offence has attained the age of 18 years and the person is to give evidence, other than through a live television link, in respect of such an offence,
the court may, on the application of the prosecution or the accused, if satisfied that the interests of justice so require, direct that a screen or other similar device be positioned, in an appropriate place, so as to prevent the victim from seeing the accused when giving evidence.
(3) A witness giving evidence undersubsection (1)or(2)shall be capable of seeing and hearing and being seen and heard by—
(a) the judge and jury (if any),
(b) legal representatives acting in the proceedings,
(c) any interpreter, intermediary appointed under section 14 or any other person appointed to assist the witness,
and shall be capable of being heard by the accused.]
14AA. F20[Matters to be taken into account under sections 13, 14 and 14A regarding victims
14AA.—The court, in deciding—
(a) whether to grant leave undersection 13(1A)for a victim to give evidence through a live television link,
(b) whether, undersection 14(1A), the interests of justice require that it direct that questions be put to the victim through an intermediary, or
(c) whether, undersection 14A(2), the interests of justice require that it direct that a screen or other similar device be positioned, in an appropriate place, so as to prevent the victim from seeing the accused when giving evidence,
shall have regard to the need to protect the victim from secondary and repeat victimisation, intimidation or retaliation, taking into account—
(i) the nature and circumstances of the case, and
(ii) the personal characteristics of the victim.]
14B. F21[Wigs and gowns
14B.—Where a person who is under 18 years of age—
(a) is giving evidence in respect of a relevant offence, or
(b) is giving evidence in respect of any other offence of which he or she is a victim,
neither the judge nor the barrister or solicitor concerned in the examination of the witness shall wear a wig or gown.]
14C. F22[Protection against cross-examination by accused
14C.—(1) Where—
(a) a person is accused ofF23[a relevant offence], and
(b) a person under the age of 18 years is to give evidence,
the court shall direct that the accused may not personally cross-examine the witness unless the court is of the opinion that the interests of justice require the accused to conduct the cross-examination personally.
(2) Where—
(a) a person is accused of aF24[relevant offence], and
F24[(b) a victim of the relevant offence who has attained the age of 18 years is to give evidence,]
the court may direct that the accused may not personally cross- examine the witness unless the court is of the opinion that the interests of justice require the accused to conduct the cross-examination personally.
F25[(2A) The court, in performing its functions undersubsection (2), shall have regard to the need to protect the victim from secondary and repeat victimisation, intimidation or retaliation, taking into account—
(a) the nature and circumstances of the case, and
(b) the personal characteristics of the victim.]
(3) Where an accused person is prevented from cross-examining a witness by virtue ofsubsection (1)or(2), the court shall—
(a) invite the accused person to arrange for a legal representative to act for him or her for the purpose of cross-examining the witness, and
(b) require the accused person to notify the court, by the end of such period as it may specify, as to whether a legal representative is to act for the accused for that purpose.
(4) If by the end of the period referred to insubsection (3)(b), the accused has notified the court that no legal representative is to act for him or her for the purpose of cross-examining the witness or no notification has been received by the court and it appears to the court that no legal representative is to so act, the court shall consider whether it is necessary, in the interests of justice, for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused person.
(5) If the court decides it is necessary, in the interests of justice, for the witness to be so cross-examined, the court shall appoint a legal representative (chosen by the court) to cross-examine the witness on behalf of the accused.
(6) Where, in a jury trial, an accused person is prevented from cross-examining a witness in person by virtue of this section, the court shall give the jury such warning (if any) as it considers necessary to ensure that the accused person is not prejudiced—
(a) by any inferences that might be drawn from the fact that the accused has been prevented from cross-examining the witness in person, or
(b) where the witness has been cross-examined by a legal representative appointed undersubsection (5), by the fact that the cross-examination was carried out by such a legal representative and not by a person acting as the legal representative of the accused.
(7) In addition to the meaning assigned to that expression bysection 27of theCivil Legal Aid Act 1995, "legal aid" in that Act means representation by a solicitor or barrister, engaged by the Legal Aid Board under section 11 of that Act on behalf of the accused in relation to the cross-examination of a witness undersubsection (3).]
15. F26[Procedure in relation to certain offences.
15.—(1) Where—
F27[(a) under Part IA of theCriminal Procedure Act 1967, the prosecutor consents to the sending forward for trial of an accused personF28[…],
(b)F28[…]a person who has made a videorecording underF29[section 16(1)(b)], is under 18 years of age on the date consent is given to the accused being sent forward for trial, and
(c) it is proposed that a videorecording of a statement made by the person concerned during an interview as mentioned insection 16(1)(b)shall be given in evidence pursuant to that section,]
(d) it is proposed, pursuant tosection 16 (1) (b), that a videorecording of a statement made by that person during an interview as mentioned in that provision shall be given in evidence at the trial,
the prosecutor shall, in addition to causing the documents mentioned in section 4B(1) of that Act to be served on the accused—
(i) notify the accused that it is proposed so to give evidence, and
(ii) give the accused an opportunity of seeing the videorecording of the interview.
F27[(2) The judge hearing an application under section 4E of theCriminal Procedure Act 1967may consider any statement made, in relation to an offence, by a person in a videorecording mentioned insection 16(1)(b)if the person is available for cross-examination at the hearing of the application.]
(3) If the accused consents, an edited version of the videorecording of an interview mentioned insection 16(1)(b), may, with leave of the judge hearing an application referred to insubsection (2)of this section, be shown at the hearing of the application, and, in that event,subsection (2)andsection 16(1)(b)shall apply in relation to that version as it applies in relation to the original videorecording.]
16. Videorecording as evidence at trial.
16.—(1)Subject to subsection (2)—
F30[(a) a videorecording of any evidence given, in relation toF31[a relevant offence], by a person underF32[18 years]of age through a live television link in proceedings under Part IA of theCriminal Procedure Act, 1967, and]
F33[(b) a video recording of any statement made during an interview with a member of the Garda Síochána or any other person who is competent for the purpose—
F31[(i) by a person who is under 18 years of age in relation to an offence of which he or she is a victim, or]
(ii) by a person under 18 years of age (being a person other than the accused) in relation to—
(I) a sexual offence, or
(II) an offence undersection 3(1), (2) or (3) of theChild Trafficking and Pornography Act 1998, or
(III) an offence undersection 2,4or7of theCriminal Law (Human Trafficking) Act 2008,]
shall be admissible at the trial of the offence as evidence of any fact stated therein of which direct oral evidence by him would be admissible:
F30[Provided that, in the case of a videorecording mentioned inparagraph (b), the person whose statement was videorecorded is available at the trial for crossexamination]
(2)(a)Any such videorecording or any part thereof shall not be admitted in evidence as aforesaid if the court is of opinion that in the interests of justice the videorecording concerned or that part ought not to be so admitted.
(b)In considering whether in the interests of justice such videorecording or any part thereof ought not to be admitted in evidence, the court shall have regard to all the circumstances, including any risk that its admission will result in unfairness to the accused or, if there is more than one, to any of them.
(3)In estimating the weight, if any, to be attached to any statement contained in such a videorecording regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.
(4)In this section “statement” includes any representation of fact, whether in words or otherwise.
17. Transfer of proceedings.
17.—In any proceedings for an offence F34[…] in any circuit or district court district in relation to which any of the provisions of sections 13 to 16 or section 29 is not in operation the court concerned may, if in its opinion it is desirable that evidence be given in the proceedings F35[through a live television link or by means of a videorecording or that a screen or other similar device be used in the giving of evidence], by order transfer the proceedings to a circuit or district court district in relation to which those provisions are in operation and, where such an order is made, the jurisdiction of the court to which the proceedings have been transferred may be exercised—
(a)in the case of the Circuit Court, by the judge of the circuit concerned, and
(b)in the case of the District Court, by the judge of that court for the time being assigned to the district court district concerned.
18. F36[Identification evidence.
18.—Where a person (in this section referred to as "the witness")—
(a) gives evidence in respect of a relevant offence, or
(b) gives evidence in respect of any other offence of which he or she is a victim,
through a live television link pursuant tosection 13(1)or(1A)or using a screen or other similar device pursuant tosection 14A, then—
(i) in case evidence is given that the accused was known to the witness before the date on which the offence is alleged to have been committed, the witness shall not be required to identify the accused at the trial of the offence, unless the court in the interests of justice directs otherwise, and
(ii) in any other case, evidence by a person other than the witness that the witness identified the accused at an identification parade as being the offender shall be admissible as evidence that the accused was so identified.]
19. Application of Part III to persons with mental handicap.
19.—The references in F37[sections14,14B,15and16] F38[to a person under 18 years of age] F39[…] shall include references to a person with F37[a mental disorder, within the meaning ofsection 5of theCriminal Justice Act 1993,] who has reached the age concerned.
19A. F40[Disclosure of third party records in certain trials
19A.—(1) In this section—
"Act of 1995" means theCivil Legal Aid Act 1995;
"competent person" means a person who has undertaken training or study or has experience relevant to the process of counselling;
"counselling" means listening to and giving verbal or other support or encouragement to a person, or advising or providing therapy or other treatment to a person (whether or not for remuneration);
"counselling record" means any record, or part of a record, made by any means, by a competent person in connection with the provision of counselling to a person in respect of whom a sexual offence is alleged to have been committed ("the complainant"), which the prosecutor has had sight of, or about which the prosecutor has knowledge, and in relation to which there is a reasonable expectation of privacy;
"court" means the Circuit Criminal Court or the Central Criminal Court;
"sexual offence" means an offence referred to in the Schedule to theSex Offenders Act 2001.
(2) In criminal proceedings for a sexual offence the prosecutor shall notify the accused of the existence of any counselling record but shall not disclose the content of the record without the leave of the court given in accordance with this section.
(3) An accused who seeks disclosure of the content of a counselling record may make an application ("disclosure application"), in writing, to the court—
(a) providing particulars identifying the record sought, and
(b) stating the reasons grounding the application, including grounds relied on to establish that the record is likely to be relevant to an issue at trial.
(4) An accused who intends to make a disclosure application shall, not later than the beginning of such period as may be prescribed in rules of court, notify the person who has possession or control of the counselling record, the complainant, the prosecutor and any other person to whom the accused believes the counselling record relates of his or her intention to make the application.
(5) Where no disclosure application has been made by the accused in respect of a counselling record undersubsection (3)and the prosecutor believes that it is in the interests of justice that the record should be disclosed, the prosecutor may make a disclosure application in writing to the court.
(6) Where the prosecutor intends to make a disclosure application undersubsection (5), he or she shall, not later than the beginning of such period as may be prescribed in rules of court, notify the person who has possession or control of the relevant record, the complainant, the accused and any other person to whom the prosecutor believes the counselling record relates of his or her intention to make the application.
(7) The court may, at any time, order that a disclosure application be notified to any person to whom it believes the counselling record may relate.
(8) The court shall hold a hearing to determine whether the content of the counselling record should be disclosed to the accused and the person who has possession or control of the counselling record shall produce the counselling record at the hearing for examination by the court.
(9) The person who has possession or control of the counselling record, the complainant and any other person to whom the counselling records relates shall be entitled to appear and be heard at the hearing referred to insubsection (8).
(10) In determining, at the hearing referred to insubsection (8), whether the content of the counselling record should be disclosed to the accused undersubsection (11), the court shall take the following factors, in particular, into account:
(a) the extent to which the record is necessary for the accused to defend the charges against him;
(b) the probative value of the record;
(c) the reasonable expectation of privacy with respect to the record;
(d) the potential prejudice to the right to privacy of any person to whom the record relates;
(e) the public interest in encouraging the reporting of sexual offences;
(f) the public interest in encouraging complainants of sexual offences to seek counselling;
(g) the effect of the determination on the integrity of the trial process;
(h) the likelihood that disclosing, or requiring the disclosure of, the record will cause harm to the complainant including the nature and extent of that harm.
(11) (a) Subject toparagraph (b)andsubsection (12), after the hearing referred to insubsection (8), the court may order disclosure of the content of the counselling record to the accused and the prosecutor where it is in the interests of justice to do so.
(b) The court shall order disclosure of the content of the counselling record to the accused where there would be a real risk of an unfair trial in the absence of such disclosure.
(12) (a) Where an order is made pursuant tosubsection (11), in the interests of justice and to protect the right to privacy of any person to whom the counselling record relates, the court may impose any condition it considers necessary on the disclosure of the record.
(b) Without prejudice to the generality ofparagraph (a), one or more of the following conditions may be included in an order made pursuant tosubsection (11)—
(i) that a part of the content of the counselling record be redacted,
(ii) that a copy of the counselling record and not the original be disclosed,
(iii) that the accused and any legal representative for the accused not disclose the content of the counselling record to any person without leave of the court,
(iv) that the counselling record be viewed only at the offices of the court,
(v) that no copies, or only a limited number of copies, of the counselling record, be made,
(vi) that information concerning the address, telephone number or place of employment of any person named in the counselling record be redacted from the record,
(vii) that the counselling record be returned to the person who owns or controls the said record,
(viii) that the counselling record is used solely for the purposes of the criminal proceedings for which the record has been disclosed.
(13) The court shall provide reasons for ordering, or refusing to order, disclosure of the content of a counselling record pursuant toF41[subsection (11)].
(14) (a) Subject toparagraph (b), a disclosure application shall be made before the commencement of the trial of the accused.
(b) Where, upon application by the accused, the court considers that the interests of justice require the making of a disclosure application after the commencement of the trial, the court may direct that such an application may be made.
(15) For the purposes of a hearing pursuant tosubsection (8), all persons, other than officers of the court, persons directly concerned in the hearing and such other persons (if any) as the court may determine, shall be excluded from the court during the hearing.
(16) In addition to the meaning assigned to that expression by section 27 of the Act of 1995, "legal aid" in that Act means representation by a solicitor or barrister, engaged by the Legal Aid Board under section 11 of that Act, on behalf of a complainant or witness in relation to a disclosure application that concerns the complainant or witness.
(17) This section does not apply where a complainant or witness has expressly waived his or her right to non-disclosure of a counselling record without leave of the court.]
PART IV Competence and Compellability of Spouses and Former Spouses to give Evidence
20. Definitions (Part IV).
20.—In this Part—
F42["decree of divorce" means a decree undersection 5of the Family Law (Divorce) Act, 1996 or any decree that was granted under the law of a country or jurisdiction other than the State and is recognised in the State;]
"decree of judicial separation" includes a decree of divorce a mensa et thoro or any decree made by a court outside the State and recognised in the State as having the like effect;
F43["former spouse" includes a person who, in respect of his or her marriage to an accused—
(a)has been granted a decree of judicial separation, or
(b)has entered into a separation agreement, or
(c)has been granted a decree of divorce;]
“separation agreement” means an agreement in writing which provides for the spouses concerned living separately and apart from each other.
21. Competence of spouses and former spouses to give evidence.
21.—In any criminal proceedings the spouse or a former spouse of an accused shall be competent to give evidence at the instance—
(a)subject to section 25, of the prosecution, and
(b)of the accused or any person charged with him in the same proceedings.
22. Compellability to give evidence at instance of prosecution.
22.—(1)In any criminal proceedings the spouse of an accused shall, subject to section 25, be compellable to give evidence at the instance of the prosecution only in the case of an offence which—
(a)involves violence, or the threat of violence, to—
(i)the spouse,
(ii)a child of the spouse or of the accused, or
(iii)any person who was at the material time under the age of F44[18 years],
(b)is a sexual offence alleged to have been committed in relation to a person referred to in subparagraph (ii) or (iii) of paragraph (a), or
(c)consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b).
(2)In any criminal proceedings a former spouse of an accused shall, subject to section 25, be compellable to give evidence at the instance of the prosecution unless—
(a)the offence charged is alleged to have been committed at a time when the marriage was subsisting and no decree of judicial separation or separation agreement was in force, and
(b)it is not an offence mentioned in subsection (1).
(3)The reference in subsection (1) to a child of the spouse or the accused shall include a reference to—
(a)a child who has been adopted by the spouse or the accused under the Adoption Acts, 1952 to 1991, or, in the case of a child whose adoption by the spouse or the accused has been effected outside the State, whose adoption is recognised in the State by virtue of those Acts, and
(b)a person in relation to whom the spouse or the accused is in loco parentis.
23. Compellability to give evidence at instance of accused.
23.—Subject to section 25, in any criminal proceedings the spouse or a former spouse of an accused shall be compellable to give evidence at the instance of the accused.
24. Compellability to give evidence at instance of co-accused.
24.—(1)Subject to section 25, in any criminal proceedings—
(a)the spouse of an accused shall be compellable to give evidence at the instance of any person charged with the accused in the same proceedings only in the case of an offence mentioned in section 22 (1),
(b)a former spouse of an accused shall be compellable to give evidence at the instance of any person charged with the accused in the same proceedings unless—
(i)the offence charged is alleged to have been committed at a time when the marriage was subsisting and no decree of judicial separation or separation agreement was in force, and
(ii)it is not an offence mentioned in section 22 (1).
(2)Subsection (1) is without prejudice to the power of a court to order separate trials of persons charged in the same proceedings if it appears to it to be desirable in the interests of justice to do so.
25. Saving.
25.—Where persons F45[(being either spouses of each other or persons who were formerly spouses of each other)] are charged in the same proceedings, neither shall at the trial be competent by virtue of section 21 (a) to give evidence at the instance of the prosecution, or be compellable by virtue of section 22, 23 or 24 to give evidence, unless the person concerned is not, or is no longer, liable to be convicted at the trial as a result of pleading guilty or for any other reason.
26. Right to marital privacy.
26.—Nothing in this Part shall affect any right of a spouse or former spouse in respect of marital privacy.
PART V Miscellaneous
27. Oath or affirmation not necessary for child etc., witness.
27.—(1)Notwithstanding any enactment, in any criminal proceedings the evidence of a person under 14 years of age may be received otherwise than on oath or affirmation if the court is satisfied that he is capable of giving an intelligible account of events which are relevant to those proceedings.
(2)If any person whose evidence is received as aforesaid makes a statement material in the proceedings concerned which he knows to be false or does not believe to be true, he shall be guilty of an offence and on conviction shall be liable to be dealt with as if he had been guilty of perjury.
(3)Subsection (1) shall apply to a person with mental handicap who has reached the age of 14 years as it applies to a person under that age.
28. Abolition of requirement of corroboration for unsworn evidence of child, etc.
28.—(1)The requirement in section 30 of the Children Act, 1908, of corroboration of unsworn evidence of a child given under that section is hereby abolished.
(2)(a)Any requirement that at a trial on indictment the jury be given a warning by the judge about convicting the accused on the uncorroborated evidence of a child is also hereby abolished in relation to cases where such a warning is required by reason only that the evidence is the evidence of a child and it shall be for the judge to decide, in his discretion, having regard to all the evidence given, whether the jury should be given the warning.
(b)If a judge decides, in his discretion, to give such a warning as aforesaid, it shall not be necessary to use any particular form of words to do so.
(3)Unsworn evidence received by virtue of section 27 may corroborate evidence (sworn or unsworn) given by any other person.
29. Evidence through television link by persons outside State.
29.—F46[(1) Without prejudice toF47[section 13(1)and(1A)], in any criminal proceedings or proceedings under the Extradition Acts, 1965 to 2001, a person other than the accused or the person whose extradition is being sought, as the case may be, may, with the leave of the court, give evidence through a live television link.]
(2)Evidence given under subsection (1) shall be videorecorded.
(3)Any person who while giving evidence pursuant to subsection (1) makes a statement material in the proceedings which he knows to be false or does not believe to be true shall, whatever his nationality, be guilty of perjury.
(4)Proceedings for an offence under subsection (3) may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the State.
30. Copies of documents in evidence.
30.—(1)Where information contained in a document is admissible in evidence in criminal proceedings, the information may be given in evidence, whether or not the document is still in existence, by producing a copy of the document, or of the material part of it, authenticated in such manner as the court may approve.
(2)It is immaterial for the purposes of subsection (1) how many removes there are between the copy and the original, or by what means (which may include facsimile transmission) the copy produced or any intermediate copy was made.
(3)In subsection (1) “document” includes a film, sound recording or videorecording.