Joel -v- DPP & Ors:

‘via Blog this’

As a Court Solicitor at the cold face of criminal law for the last 13 years some key mainstays emerge again and again in criminal trials conducted within the criminal justice system. These mainstays involve issues of fundamental procedural fairness or first principle rights. The right to disclosure of evidence in advance of trial, the importance of checks and balances, fairness in the investigation of crime, such as the right to access to a solicitor at a Garda Station and independence (judicial oversight in the issuing of search warrants) or the right to a speedy trial. The Irish Courts have been very vigilant in the protection of citizens rights in excluding improperly obtained evidence absent any extraordinary excusing circumstance. The exclusionary rule is crucial  in maintaining proper and effect policing in any democratic society. What the Joel case and the historical analysis of cases cited in the Judgement by His Honour Judge Charelton sets out exactly how difficult it is for an accused person to try and stop their trial by way of judicial review.

The importance of the right to jury trial is clear, as indeed it is only proper that other citizens should sit in judgement, of the facts on any criminal trial. The Trial Judges job is to protect the process, to uphold the integrity of the system and the trial process.

In my own day to day practice, it is becoming more and more important that solicitors in particular, need to play an active role in the investigation stage by that I mean, before any court case or charges are preferred and citizens often do not access competent defence legal advice until the are facing charges or Court appearance.
This is not easy where legal aid is basic, no legal aid is available save the Garda Station Legal Advice scheme which is subject to an income threshold and in my view is discriminatory.
On reading this judgment in Joel it says what it ought to frankly. Judge Charelton is a capable and intelligent jurist and his analaysis of the law is impeccable but I for one cannot but help and feel some sympathy for this accused when reference is made cross criminal allegations against nursing staff at the HSE. Humanity is such, that an accused person is not often listened to by prosecutors when they point the finger at someoneelse particularly of the someonelese is a powerful agency of the State.

I say this in the context of how difficult it is for an accused person to investigate or access impartial investigative or professional advice , equality of arms applies in Court and not at the evidence gathering stage.

The duty to disclose may be one of the only tools open to an accused to stop a trial. I think this is an area that is going to come more closley into focus on the week when several bankers have been finally been charged arising of the Anglo Irish Bank fiasco.

The views expressed in this blog post are the authors alone and are made in the lawful exercise of my right to freedom of expression!

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