Jane McGowan BL

Speaking yesterday at an Irish Legal News webinar on access to justice, Jane McGowan BL, outgoing chairperson of the Irish Criminal Bar Association (ICBA), said: “It was best described to me by a judicial colleague that we’re effectively on cruise control, driving on an icy road with our eyes closed and the engine light blinking.”

In 2018, prosecutors in England and Wales were forced to review thousands of rape and serious sexual assault cases following the collapse of several trials after failures to disclose evidence were uncovered.

The Crown Prosecution Service subsequently began an overhaul of its procedures, but figures show that 1,078 cases were dropped due to failures in disclosure in the first nine months of 2019, a stark increase from 567 in the whole of 2014.

In response to successive FOI requests from Irish Legal News, the Office of the Director of Public Prosecutions has said it does not track the number of trials which have collapsed in Ireland due to disclosure issues.

“It’s foolish of us to think that we would somehow be immune to these matters when England have fallen foul of them, America has, and Australia has – to a smaller degree, but they certainly have their own issues,” Ms McGowan said.

“As trials become more complex, as social media features more heavily, mobile phone records … the amount of information that is disclosed can run to anywhere from 20 to 50 bankers boxes in some cases, and that data is generally given to practitioners on LiquidFiles or remotely.

“It is very difficult for lawyers to be in a position to sift through everything and be in a position to pick out relevant things.”

Although An Garda Síochána is “obliged to give over every piece of evidence that’s either inculpatory or exculpatory”, Ms McGowan said it’s “sometimes a deep dive and things are missed”.

“That can also go on the other side of the fence with the prosecution, where they may miss disclosing something,” she added.

“That was really the difficulty in England with particular rape trials, where mobile phone evidence had been a little bit buried. It didn’t appear to be mala fides, it was just an overwhelming amount of information and a misstep.”

Ms McGowan stressed that increased funding is “necessary across all of the court system” to deal with issues including disclosure.

“Unless you have the administrative staff and the support staff and the guards, the prosecution or defence solicitors’ firms who have the time and capacity to give the attention that’s necessary in these matters, you’re going to have a system that fails,” she said.

“It’s not going to be popular, nobody likes putting on the poor mouth or saying anything, particularly in this climate, but we’re going to see problems happening and we’re not in a position to fix them at this point, so batten down the hatches, folks.”