Sunday 20 August 2017

Supreme Court alters evidence rule which had applied since 1990

SWING VOTE: Chief Justice Susan Denham agreed with the three judges who allowed the DPP’s appeal
SWING VOTE: Chief Justice Susan Denham agreed with the three judges who allowed the DPP’s appeal

Tim Healy

The Supreme Court has relaxed a 25-year-old rule which effectively excluded from a criminal trial evidence which was obtained through a breach of an accused's rights.

In a case that could have major implications for the investigation and prosecution of crimes, the court granted an appeal by the DPP to relax a 1990 rule concerning exclusion of evidence.

The application of the rule led to a man, known as JC, being lawfully acquitted of burglary charges. The issue of whether the man will be retried will be decided later. By a four to three majority, the Supreme Court granted an appeal by the DPP to alter a rule which had applied since 1990 in a Supreme Court case entitled "DPP v Kenny".

That rule has, 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.

The majority court said the Kenny decision was a determination, in relation to admissibility of evidence, of the "proper balance" to be struck in vindicating the constitutional rights and principles at stake. The majority court said it was replacing the Kenny test with a new "clear" test designed to effect an "appropriate" balance between competing factors.

Mr Justice Donal O'Donnell, who formed the majority view with the Chief Justice Susan Denham, Mr Justice Frank Clarke and Mr Justice John MacMenamin, said the Kenny decision was "plainly wrong" and it was "long past time it was addressed".

Mr Justice MacMenamin, agreeing, said the reputation and integrity of the system of justice should not be adversely affected by a "good faith exception" that was "properly and faithfully applied to the exclusionary rule properly and constitutionally applied".

In a dissenting judgment, Mr Justice Adrian Hardiman said the Kenny decision was essential to the maintenance of the liberties of a citizen.

Consequences

The new rule would permit "inadvertence" by public officials with coercive powers to sufficiently excuse a breach of a citizen's constitutional rights to allow material obtained by such breach to be proved in evidence against them, he said.

Also dissenting, Mr Justice John Murray said the consequences of the majority court ruling was "to change the goalposts, not during the game but after the game is over, except is it not about a game or sport, it is about a criminal trial and justice which the Constitution requires shall be considered in due course of law".

Mr Justice Liam McKechnie also dissented and said it could not be said that the Kenny decision was "plainly wrong".

In the appeal, the DPP asked the Supreme Court to review the exclusionary rule of evidence under which the courts refuse to allow evidence be admitted if obtained in circumstances involving a breach of a defendant's constitutional right, irrespective of whether that right was breached by mistake.

The DPP asked the Supreme Court to find the rule was misapplied in the man's case and to make a "conclusive" decision on the applicability of the rule to future cases.

What was the ruling about?

The case involved a man who was acquitted on burglary charges. The case against the man, known as JC, collapsed after evidence was excluded under a 25-year-old exclusionary rule laid down by the Supreme Court decision in the 1990 Kenny case.

The man was acquitted by direction of the trial judge on the grounds that gardaí had effected an unlawful entry into his home under a warrant issued pursuant to S29 of the Offences against the State Act 1939.

Because the section of the 1939 law was struck down by the Supreme Court in 2012, the evidence was excluded in the JC case, leading to his acquittal.

The DPP appealed the trial judge’s decision, arguing that the judge erroneously excluded the evidence even though the judge had relied on the Supreme Court’s own rule in the Kenny case.

Yesterday, the Supreme Court overruled its own decision on the so-called exclusionary rule and rewrote the test for admitting unconstitutionally obtained evidence.

A decision on whether JC will be subject to a retrial or his acquittal will stand will be taken at a later date

The old rule

Evidence obtained in breach of an accused’s constitutional rights excluded at trial, unless there are special or exceptional circumstances, even if the actions of the gardaí are accidental or intentional.

The new rule

Evidence obtained in breach of an accused’s constitutional rights excluded at trial unless prosecution establishes that the breach was not conscious and deliberate.

Unconstitutionally obtained evidence will also be admitted where the prosecution establishes that the breach of rights was due to inadvertence or derives from subsequent legal rights.

Irish Independent

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