The Irish justice system faces a “time-bomb” that could lead to the collapse of major trials unless the system for disclosure in criminal cases is reformed, a leading lawyer has said.
In every criminal trial the prosecution is required to hand over all relevant material to the defence even if it damages the prosecution case. Failure to do often leads to the collapse of the trial.
In the UK the collapse of several high profile rape trials over disclosure issues has created a crisis of confidence in the justice system.
Earlier this year the UK’s Crown Prosecution Service ordered a review of all outstanding rape and sexual assault cases to check if disclosure rules were followed.
In recent years there has been a huge increase in the volume of disclosure lawyers must deal with. Some of the recent trials of Irish bankers generated millions of pages of documents, many of them in unsearchable paper format.
Modern technology
Much of the increase is because modern technology such as computers, mobile phones and social media produces vast amounts of evidence. All of it must be read by lawyers for both sides as there is no way of knowing what might be relevant, lawyers say.
A single mobile phone tangentially connected to a rape case could generate vast amounts of data that must be processed.
The legal aid system is actually working really well but it has the potential to go off a cliff in the same way as has happened in the UK
Mary Rose Gearty, a senior counsel who recently finished prosecuting the trial of former Anglo Irish Bank CEO David Drumm, said the collapse of trials due to disclosure failures, as seen in the UK, was a "time-bomb" waiting to go off here.
"What we're seeing on the ground is a huge increase in the amount of work and insufficient resources being put into it," she told The Irish Times.
Barrister
In some trials, the Director of Public Prosecutions (DPP) agrees to pay for a barrister who sole job is to handle disclosure. However this is rare.
Most of the time, Ms Gearty said, barristers had to process large amounts of disclosure themselves for no extra pay. It was inevitable this would lead to mistakes, she said.
“The legal aid system is actually working really well but it has the potential to go off a cliff in the same way as has happened in the UK. There hasn’t been enough planning to cope with the added volume of work.”
Legal aid fees were cut following the recession, although not to the same extent as in the UK.
“UK cuts to fees have been much bigger than those here but much more is now expected of the lawyers on both sides of most criminal cases. And fees here have already been cut, rather than being raised, to reflect that fact,” Ms Gearty said.
Sometimes it only becomes clear what's relevant during a trial. That's why it's so important that barristers involved know the disclosure
Trials in Ireland collapse from time to time because of disclosure failures but it is impossible to know the extent of the problem as the DPP does not keep such records.
Ms Gearty said the growth of electronic evidence should have made the disclosure process easier as the documents should be searchable electronically.
Paper format
However often documents, although generated electronically, are provided in paper format. Last month Dr Gabriel Scally, who is carrying out an inquiry into the CervicalCheck controversy, complained that thousands of pages of records he received from the HSE had been printed out and then scanned back in before being handed over, making them completely unsearchable.
Ms Gearty said it was vital for both the defendant and the State that all disclosure was read carefully, even if it ran to thousands of pages.
“Sometimes it only becomes clear what’s relevant during a trial. That’s why it’s so important that barristers involved know the disclosure.
“A single answer from a complainant could make an entire section of disclosure immediately relevant.
“It’s not so much looking for a needle in a haystack – you could use a metal detector for that – as looking for a different coloured piece of hay in a haystack.”
