LEAVE HAS been granted by the High Court for a constitutional challenge to the recently enacted Criminal Procedure Act, which became law earlier this month.
The Act, which provides for a modification of the previous prohibition on a retrial following an acquittal (double jeopardy), was being challenged on the grounds that it violated the rights of an accused person under both the Constitution and the European Convention on Human Rights.
The section under scrutiny requires the accused to obtain leave from the court before calling an expert witness, while making no such requirement of the prosecution.
The case was being brought by Bernard Markey, from Birr, Co Offaly, who was charged with a number of road traffic offences last June and sent forward for trial on November 16th next.
According to the affidavit filed by his solicitor, James Sweeney, the solicitor advised his client that an expert report was required for his defence. Under the Criminal Procedure Act, as amended, expert evidence cannot be introduced by the defence without 10 days' notice being given to the prosecution and leave being obtained from the court.
Mr Sweeney said in his affidavit that no such obligation was placed on the prosecution, who is also named in the action, and this "unfairly and invidiously discriminates against the applicant" under articles 38 and 40 of the Constitution, and is incompatible with his rights under article 6 (right to a fair trial) of the European Convention on Human Rights, part of Irish law since 2003. The Irish Human Rights Commission is a notice party to the proceedings.
Mr Sweeney referred to the debate during which the amendment with this requirement was introduced into the legislation. He said Minister for Justice Dermot Ahern told the Seanad this arose from recommendations from the expert group, Balance in the Criminal Law Review Group.
He said there was no such recommendation in the report of the review group. Seeking leave for judicial review proceedings, Gareth Robinson, for Mr Markey, said he was also seeking an injunction stopping the prosecution until the matter had been decided. The leave application was made ex parte (without the participation of the other side). The case was adjourned until October 11th.