JUDGMENT WAS reserved yesterday in a case challenging the constitutionality of the recently-enacted Criminal Procedure Act.
Bernard Markey, of Birr, Co Offaly, took judicial proceedings challenging section 34 of the Act, dealing with the issue of expert evidence.
He had been charged last June with dangerous driving and driving a vehicle without consent, and sought to call an expert witness for his trial, set for November last. In September the Criminal Procedure Act had came into force, and he sought and obtained leave to take judicial proceedings challenging the Act.
His counsel, James O’Reilly SC, told the court the issue raised was that of equality of arms. The section required the defence to obtain the leave of the court to call an expert witness, and to give notice of wishing to call one, while there was no such obligation on the prosecution.
The section arose from a recommendation in the report of the Balance in the Criminal Law Review Group, but this did not place a leave requirement on the defendant, Mr O’Reilly said. The recommendation referred exclusively to a disclosure requirement for the defendant.
Paul Anthony McDermott, for the Minister for Justice and the DPP, said the case was hypothetical. Rather than bringing a judicial review based on some concrete event that had occurred, the applicant was seeking to engage in a wholly hypothetical debate about the merits and policy behind the enactment of section 34.
It appeared that the expert had not even furnished the report at the time the judicial review was sought, he said. He said there was nothing in section 34 that would permit the DPP do anything that would give rise to an unfair trial.