Proposals for reform of the exclusionary rule in relation to unconstitutionally obtained evidence
The exclusionary rule is the rule that defines the circumstances in which a court will exclude evidence on the grounds that it has been obtained in violation of the accused’s constitutional rights. Traditionally the common law did not have an exclusionary rule. The court allowed evidence to be admitted that had been obtained through the use of illegal means, for example, searching a dwelling without a search warrant, any evidence obtained is an illegal evidence, but this was allowed provided the evidence was admissible and relevant to the case. This practice was changed in the case of people v O’brien , in this case, two brothers challenged the admissibility of evidence found in the family home, this was due to the fact that the warrant used to obtain the evidence was flawed and it had an error in the address written on it. The trial judge Walsh J took the view that the error on the warrant was accidental and there had been no deliberate or conscious breach of the accused rights, the evidence was held admissible. Walsh j went on to outline the criteria for admissibility of evidence; where there has been a conscious and deliberate breach of the accused rights there must be an extraordinary excusatory circumstance to allow this evidence. This could mean imminent destruction of vital evidence, where there is a need to rescue a victim or evidence is obtained by an accidental search or invalid warrant, but a lawful arrest was made. A problem arises with this ruling because Walsh J never elaborated on what constitutes “a deliberate and conscious breach”. This has caused confusion and inconsistency in the application of the law. In people v Shaw two men were arrested in relation to a stolen car. But during interrogation, the Gardaí suspected they were also involved with the disappearance of two women and the men were kept longer than legally allowed. The question that was before the court was whether the confession given at the time of the illegal detention was admissible as evidence. Walsh J noted that the law in this situation is: “When the act complained of was undertaken or carried out consciously and deliberately, it is immaterial whether the person carrying out the act may or may not have been conscious that what he was doing was illegal or, even if he knew it was illegal, that it amounted to a breach of the constitutional rights of the accused. It is the doing of the act which is the essential matter, not the actor’s appreciation of the legal consequences or incidents of it.” What the courts had to determine in these cases was whether the words “conscious and deliberate violation” could be used to give a Garda who was ignorant and indeed oblivious of the suspect’s rights a “fool’s pardon”. The courts were clear that no such allowance should be made. As Walsh J. stated in Shaw: “To attempt to import any such interpretation would be to put a premium on ignorance of the law”. However, the judges have differed as to how they should achieve this end. Walsh J. in particular emphasised that the words “conscious and deliberate” this qualified the actions of the Garda, rather than his state of mind. In the majority judgment in Shaw’s case, however, Griffin J expressly dissented from this position. He stated: “In my opinion, it is the violation of the person’s Constitutional rights and not the particular act complained of, that has to be deliberate and conscious for the purpose of ruling out a statement.” In People v Kenny, the courts finally came to a conclusion. The Gardaí here observed suspicious behaviour in a flat and obtained a search warrant, on foot of which they entered the house and discovered a quantity of drugs. This led to a successful conviction. But the warrant was flawed as there was insufficient information placed before the peace commissioner, to enable him to be satisfied that there were reasonable grounds to...
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