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Friday 3 February 2023 Dublin: 10°C
# ian bailey case
Explainer: What happens when a witness walks out of court?
Can you do that?

MARIE FARRELL WALKED out of the High Court today while being cross-examined during Ian Bailey’s civil case against the State and An Garda Síochána.

She was refusing to answer a question about the person who accompanied her on the night of 23 December 1996, RTÉ reports.

In general, can a witness do that? We asked an expert – Darren Lehane BL, a barrister who practises civil law.

What is contempt of court?

“‘Contempt’ is a word that’s used a lot, but it has a technical legal meaning, which is a failure to comply with an order of a court,” says Lehane.

When can a witness refuse to answer a question?

“This very much depends on the attitude of the judge, and the relevance of the question,” according to Lehane.

For one thing, witnesses have a right to privacy, which stems from both settled interpretation of the Irish Constitution, and Article 8 of the European Convention on Human Rights.

Witnesses also have a right not to answer a question if to do so would mean incriminating themselves.

Marie Farrell Bailey Court Cases Sam Boal / Photocall Ireland Sam Boal / Photocall Ireland / Photocall Ireland

There is an important difference here between criminal and civil cases, Lehane says.

In a criminal case, it’s regarded as the people of Ireland prosecuting an individual.
So in that case, a court is likely to give closer scrutiny to a witness’s refusal to answer a question, than in a civil case.
It’s very much a weighing exercise.

‘Do I have to be here?’

The distinction between criminal and civil cases also plays a big part in what happens when a witness refuses to give evidence (or stops giving evidence).

In a criminal case, individuals can be commanded to show up in court – they’re given a “witness summons.”

If they refuse to show up, or they refuse to acknowledge the authority or validity of a court, or if they stop answering relevant questions – they can be held in contempt of court.

The Four Courts Laura Hutton / Photocall Ireland The Four Courts - which houses the High Court. Laura Hutton / Photocall Ireland / Photocall Ireland

In civil cases – for example where someone is a witness to a car crash, and one person is suing another – witnesses are generally asked to give evidence, by lawyers for either the plaintiff (the person/entity suing), or the defendant (the person/entity being sued).

“Witnesses give evidence in two main ways: during examination-in-chief, by the side which adduced [called] the witness, and during cross-examination, by the other side.”

Let’s say a witness for the plaintiff refuses to answer a question under cross-examination by lawyers for the defendant.

If the judge feels the question is relevant and insists on an answer, but the witness refuses repeatedly to answer, the credibility of all that witness’s evidence can be placed in doubt.

“It all boils down to the credibility of a witness, and at the end of a case, the judge can point out to a jury that a particular witness refused to answer a question.”

And since lawyers call witnesses because they feel their evidence will help their client, the onus is on them to try to get that witness back on board.

Read: Bruised eyes, torn hair and beatings: Ian Bailey’s domestic violence laid bare in packed courtroom>

‘You’ll be found dead in a ditch’: Ian Bailey tells court he is ‘haunted by garda threat’>