The High Court has refused Bernard Markey’s challenge to a law requiring the defence to seek leave before calling expert evidence in a criminal trial. The court said his judicial review application was premature and hypothetical because no court had refused him leave to use an expert.
The judgment was delivered by Kearns P. on 4 February 2011. Markey had been granted leave to seek declarations that section 34 of the Criminal Procedure Act 2010 was unconstitutional and incompatible with Article 6 of the European Convention on Human Rights. The court ultimately refused the relief sought.
Markey faced charges arising from a road traffic accident in County Offaly in June 2009, including dangerous driving causing serious bodily harm, unlawful use of a motor vehicle and drunk driving. The judgment records that he was sent forward for trial to Tullamore Circuit Court in November 2010. These were charges, not findings of guilt.
Section 34 requires a defendant intending to call an expert witness or adduce expert evidence to notify the prosecution at least 10 days before the scheduled trial date and provide the expert’s details and report or a summary of findings. The court must grant leave when the statutory conditions are met, including where late notice was not reasonably possible or an unanticipated matter arose from prosecution expert evidence and further examination is in the interests of justice. The prosecution must have a reasonable opportunity to consider the report before the evidence is given.
Markey argued that the requirement disadvantaged the defence, affected the right to silence and created inequality because the prosecution did not face an equivalent leave requirement. His solicitor had commissioned an expert report in September 2010. The judgment says it came to hand on 11 October, but the defence decision on whether to call the expert remained provisional. The court noted there was no indication of what the report said and no ruling refusing leave.
The respondents argued the case was premature but asked the court to address the wider constitutional issue. The judge agreed the application was premature and hypothetical, without expressly deciding the case on that basis, and then considered the main arguments. He concluded that the leave procedure moved the timing of an admissibility decision, served to address trial by ambush, and left the trial judge with a limited discretion and a primary duty to grant leave when the statutory requirements were satisfied.
The court also rejected the claims that section 34 abolished the right to silence or eroded litigation privilege. It found any interference with protected rights limited and proportionate, and held that the applicant had not established grounds for the declarations sought. The judgment did not decide whether Markey would be permitted to call a particular expert at his criminal trial.