Evidence

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 grant the warrant. In the Supreme Court. The Supreme Court held that there was a conscious and deliberate breach of the appellant right. The Supreme Court elaborated that on what “Conscious and deliberate” means. It meant that the Court looks at the act of the Gardaí rather than his state of mind in relation to the lawfulness of the search. The Gardaí in Kenny believed that he had legally obtained the warrant, but the search to the house was conscious and deliberate so therefore rendered the evidence gathered as being illegally obtained and must be excluded; if there is no extraordinary excusing circumstance. This approach by the Court is very restrictive. This approach means that all that is needed for exclusionary rule to apply without an extraordinary circumstance, is for the breach to be conscious and deliberate even when the act was done innocently or without malafide. This suggests that the need to deter improper behaviour on the part of the Gardaí was the central reasoning behind the adoption of the strict exclusionary rule. Finlay C.J acknowledged that this strict threshold adopted in Kenny could create problems in criminal trials, because it will exclude vital evidence that could be of high value to the prosecutors that could be the central holding of the case. He went on to say:

“[T]he detection of crime and the conviction of guilty persons, no matter how important they may be to the ordering of society, cannot … outweigh the unambiguously expressed constitutional obligation ‘as far as practicable to defend and vindicate the personal rights of the citizen’”
This shows that the courts constitutional duty to protect constitutional rights of its citizen outweighs the social need to detect crime and convict guilty person. This can be seen as protecting criminals more than protecting ordinary citizens or even in some aspect unfortunate victims. Gerald Hogan suggests that this strict ruling reached by the court could be because of Art 34.5 of the Irish Constitution; which requires that each judge when appointed would declare to uphold the constitutional right of its citizens. This means that a judge after making this declaration to uphold the constitution and its rights cannot admit evidence that is in breach of that right. The judge is left with in a dilemma as to how to interpret the law here, in a just and fair manner that will uphold citizen’s rights. It must be remembered that potential criminals are also citizens of the state and so must have their constitutional rights protected. The judge must access what constitutes “extraordinary excusing circumstance” it may be argued that in interpreting this matter judges have a degree of autonomy but therein lies an ambiguity that could lead to expensive and time consuming court appeals. As can be seen when the judges of the Supreme Court are seen to disagree on this contentious piece of law. Perhaps it would be better if the autonomy of the presiding judge was upheld by the supreme and in that way legal harmony might be achieved however appeal is an important right and interpretation is a fluidic process which may differ from judge to judge making a legal solution to this matter extremely difficult for the judiciary. Differences such as these will always be exploited to the full by council defending the criminal element in society.

The ruling of the majority of the Supreme Court in Kenny was not accepted by all members of the Court. Finlay C.J, Walsh and Hederman JJ. Walsh and Hederman JJ gave a strong dissent that suggested that some level of fault and unfairness must come from the Gardaí in order for evidence to be excluded. Griffin J. in his dissent argued that it is the violation of the person's constitutional rights and not the particular act complained of that needed to be “deliberate and conscious” in order to have evidence excluded despite this strong dissent the decision in Kenny still stands.
The continuing application of the term “deliberate and conscious” to the actions of Gardaí rather than to their violation of constitutional rights ensures that the rationale of protectionism in relation to unconstitutional obtained evidence in Ireland still stand even though there has been criticisms from academics and even judges for example in the case of DPP (Walsh) v Cash, Charleton J. in the High Court accepted that he was bound to apply the exclusionary rule as set out in Kenny, but he strongly expressed his dislike for that rule. Charleton J. suggested that the Kenny judgment undermined the original exclusionary rule which was formulated in O'Brien, as it allowed for no balancing of the interests of the parties. He stated that the rule in Kenny automatically requires the exclusion of any evidence obtained through a mistake which had the accidental, and therefore unintended, result of infringing a constitutional right of a suspect. The learned judge rightfully considered that the decision whether or not to exclude evidence at trial should be based on a balancing of the interests of society as against the interests of the accused, taking into account the rights of the victim, as well. There is need for flexibility in a situation of unconstitutionally obtained evidence the trial courts should not to be under a duty to automatically exclude evidence which has been obtained in breach of the constitutional rights of a suspect, but should have a discretion to admit such evidence or not, having regard to the totality of the circumstances with particular regard to the rights of the victim. These victims also have constitutional rights and should be protected under the same threshold as an accused person; it seems that their right is being outweighed by the constitutional right of the accused; who might probably be guilty of the crime. A situation may arise whereby it is beyond the control of the Gardaí to avoid causing a defect in a warrant such as in the case of Kenny where this was a normal policy for Gardaí to get a warrant from Peace Commissioner and this was thought to be the right way to do it. A group set up to give their recommendation in this situation recommended a radical change. Among these radical changes were the videotaping of interviews, the creation of the Garda Ombudsman Commission and the regulation of the Garda Síochána by statute.
Similar claims in relation to the modern nature of policing and police forces were recently successful in leading to a change in the application of the exclusionary rule in the United States. The exclusionary rule in relation to unconstitutionally obtained evidence in the United States, is based on a rationale of deterrence: unconstitutionally obtained evidence will only be excluded where such exclusion would have a deterrent effect on police. In the United Sates v. Leon That Court accepted that to exclude evidence obtained as a result of an error or lack of authority on the part of the authority which granted the search warrant does not assist in the aim of deterring police misconduct.The rule used in the US Court is a judicially created remedy rather than a constitution right remedy. In the case of US v Leon which has similar fact to Kenny. Awarrant issued to the police was defective , but the police was not aware of this defect in the warrant and evidence obtained as a result of this defective warrant was held to be admissible by the Court, because there was no mala fide on the part of the police. This was a similar ruling suggested by walshj in his dissent in Kenny.The US court will only exclude unconstitutionally obtained evidence whwre it will teach a leasson to the police not to involve in such practices.This offers a low level of protection to the constitutional right of the accused than the Irish court which has embarked on a protectionisit stance. The US court has further held that there exist other remedies fior violation of constitutional right, in Hudson v Michigan police officers knowingly breached constitutional right of a suspect, it was expected that this was a good example where deterent element of exclusionary rule should be applied and the evidence excluded.The US Supreme Court held that because the police force is more professional in the present day,exclusion of the evidence was not warranted.This is going to the extreme and shows given=ing the court discretion on exclusionary rule,they can go to the extreme by making absord decision like this,this was a fundamental breach of the constition and the police knowingly breached the accused right yet the evidence was deemed admissible.it can be argued that that the cost of exclusionary rule can be high the level of deterrence achievable by the exclusion of evidence in a given case would have to outweigh the dangers of excluding the evidence and the risk that a guilty person could go free as a result, this seem to be a good reason but it can be argued that the Irish protectionist stance is a better approach because it it ensures that it preserves Justice and prevents unfair punishment or convictions, but using the Irish rule risk the potential that a guilty would go free if the essemtial evidence is excluded. The Us Court also noted that there are tort remedies available for the accused if its constutional right has been breached. This approach is good because instead of letting a potential criminal free,damages in tort law can be afforded to the accused.

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[ 1 ]. [1965] I.R .142.
[ 2 ]. People v O’brien [1965] I.R at 170
[ 3 ]. [1982] I.R 1
[ 4 ]. [1982] IR 1 at 23
[ 5 ]. People (D.P.P.) v. Shaw [1980] IR 1 at 33
[ 6 ]. The People v Kenny [1990] IR.2 .110.
[ 7 ]. The People v Kenny [1990] I.R.2 110, at 134
[ 8 ]. The People v Kenny [1990] 2 I.R. 110, at 137
[ 9 ]. [2007] I.E.H.C. 108.
[ 10 ]. Final Report of the Balance in the Criminal Law Review Group, March 15, 2007, pp.159–60
[ 11 ]. 468 US 897 (1984).
[ 12 ]. (1998) 468 US 897,
[ 13 ]. [2006] 547 US 586