Saturday 10 December 2016

I don't believe the JC case which split the Supreme Court will open the 'floodgates'

Hugh O'Flaherty

Published 21/04/2015 | 02:30

Cartoon by Niall O'Loughlin
Cartoon by Niall O'Loughlin

A point that has been overlooked in the recent so-called JC Supreme Court case - the case was much trumpeted because it reversed the 1960 Kenny case - is that Kenny in its time had itself, in effect, though not expressly stated, reversed the 1965 decision of the Court in O'Brien.

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The point at issue in all the cases was: should evidence in a criminal case be excluded if there is a breach of an accused's constitutional right - generally touching the inviolability of the dwelling house or the liberty of the individual.

So it is worthwhile to summarise what each case was about. In O'Brien, the search warrant specified the wrong road for a house in Crumlin, Dublin. The Court held this as a technical breach - there was no conscious and deliberate violation of the Constitution.

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