by Matthew Austin September-18-2015 in Litigation & Dispute Resolution, Regulatory & Administrative Law
For many years the law on the admissibility of unconstitutionally obtained evidence in criminal proceedings was governed by the Judgment in DPP v Kenny [1990] 2IR 110 (“Kenny”). In broad terms, Kenny operated to restrict the State from relying on evidence obtained in breach of a constitutional right. The principles as espoused in Kenny came to be known in legal parlance as the “exclusionary rule”. There were of course some exceptions to the rule.
However, in DPP v JC [2015] IES C31 (“JC”) the State invited the Supreme Court to look again at the balance to be struck between the constitutional rights of an accused to a fair evidence gathering process as against the rights of the public at large to have compelling evidence admitted to criminal proceedings.
Background to JC
Gardai in Waterford were engaged in investigating three robberies which had taken place at a bookmaker’s premises between April and May 2011. On 10 May 2011 two Gardai attended at the accused’s residence. The Gardai intended to arrest the accused. The Gardai also had a warrant issued under Section 29(1) of the Offences Against the State Act 1939 (As Amended) (“Section 29”) to search the premises. Upon arriving at the premises the Gardai showed the warrant to the accused’s sister and they were admitted to the premises without objection. One of the Gardai went upstairs, found the accused abed, roused him and arrested him. On foot of the warrant a search was carried out of the premises by other Gardai but yielded nothing of any great evidential value. During the time the search was taking place the accused was taken to Waterford Garda Station. He was cautioned and received the benefit of legal advice. He then proceeded to make a number of inculpatory statements.
Subsequently the Supreme Court was called upon to assess the constitutionality of Section 29(1) in unrelated proceedings[1]. The Supreme Court struck down Section 29(1) as unconstitutional.
At the accused’s trial the trial Judge was asked by Counsel for the defence to exclude the statements made by the accused whilst in custody in Waterford Garda Station by reason of the fact that they were made following entrance by the Gardai to the accused’s premises on foot of an invalid warrant, the warrant having been issued pursuant to Section 29(1). The trial Judge accepted those arguments and ruled the statements as inadmissible. The accused was acquitted.
The Supreme Court’s decision
The State took the opportunity to raise the issue as to whether it was time to revisit the exclusionary rule provided for by Kenny. Ultimately this was the issue that the Supreme Court had to decide in JC. The matter caused division amongst the seven Judge Court but ultimately the majority decision was to conclude that Kenny was incorrect and that in the words of Mr Justice Clarke “from now on, evidence obtained unconstitutionally will be admissible if the prosecution can show the breach was due to inadvertence”.
The upshot of the decision is that provided the State can demonstrate that unconstitutionally obtained evidence was obtained by reason of an inadvertent breach of the accused’s constitutional rights then it will still be admitted in evidence against the accused. The Judgment has not been universally welcomed with many commenting that it shifts the balance too far in favour of the prosecuting authorities and away from important constitutional protections afforded to the accused in criminal proceedings. Strong words were used in the dissenting Judgment of Mr Justice Hardiman when he offered the view that the decision would effectively give the Gardai “immunity from judicial oversight”.
Whilst the nuances of the Judgments written in JC will be carefully scrutinised by constitutional scholars, the practical consequence of the decision will be the admissibility of a potentially larger range of compelling evidence even in circumstances where that evidence may have been obtained in breach of the accused’s constitutional rights.
[1] Damache v DPP [2012] IESC 11
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About the Author
Matthew Austin
Matthew is a partner in the Commercial & Business team and has considerable expertise in a range of practice areas, having acted for Irish and International clients in domestic and multi-jurisdictional issues. Matthew has advised in civil and administrative law disputes and in regulatory and advisory matters including insolvency/restructuring, IP, defamation and media law, competition and consumer protection and data protection.