By a majority of four-to-three the Supreme Court has departed from the long standing rule dealing with the admissibility and exclusion of evidence in criminal trials.
The old rule which had been in effect since 1990, effectively excluded all evidence obtained where there was a breach of a constitutional right, whether or not that breach was deliberate or due to a mistake.
Under the new rule, evidence obtained in breach of an accused’s constitutional rights will be excluded at trial unless the prosecution establishes that the breach was not conscious and deliberate. The new rule goes on to provide that unconstitutionally obtained evidence will be admitted where the prosecution establishes that the breach of rights was due to inadvertence or derives from subsequent legal rights.
The case arose out of an appeal by the Director of Public Prosecutions following the acquittal of a man on burglary charges. The trial judge acquitted the man on the basis that the evidence gathered by the Gardaí was on foot of an illegal search warrant of his home. A warrant of the man’s home had been issued under Section 29 of the Offences against the State Act 1939 , which had been found to be unconstitutional by the Supreme Court 2012. Section 29(1) was struck down as being unconstitutional on the grounds that the section permitted a warrant to be issued by a person who was not independent – a Garda Detective Superintendent who was participating in the investigation.
The trial judge reasoned that as the section was unconstitutional all evidence gathered on foot of the warrant was also unconstitutional and therefore must be excluded from the trial. The DPP appealed to the Supreme Court on a point of law. Section 23 of the Criminal Procedure Act permits the DPP to appeal an acquittal to the Supreme Court on a point of law on grounds including the belief that the acquittal arose from a ruling which wrongly excluded 'compelling evidence'. In her submissions the DPP sought the Supreme Court to make a 'conclusive' decision on the applicability of the exclusionary rule to future cases.
Mr Justice Donal O’Donnell, who formed the majority view with the Chief Justice Susan Denham, Mr Justice Frank Clark and Mr Justice John MacMenamin, said the previous rule was “plainly wrong” and it was “long past time it was addressed”. The majority opined that they were replacing the old rule with a new 'clear' test designed to affect an 'appropriate' balance between competing factors. Strong dissenting judgements were issued most notably from Judge Adrian Hardiman who was of the view that the old rule was essential to the maintenance of the liberties of a citizen.
Click here to read an article in the Irish Times about the judgement.
Click here to read a copy of the judgement.