Sunday 23 October 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.

In the Kenny case the search warrant was held to be defective because the peace commissioner who issued it had not inquired into the grounds for the gardaí's suspicions. The Court held that there the way the Gardai obtained the warrant, whether accidential or intentional, was in breach of the defendant's constitutionalrights and was therefore struck down.

While the Court accepted that the gardaí had not any knowledge that they were invading the constitutional rights of the accused, and had obtained the warrant in a manner that had been availed of over a long period of time, the evidence obtained after the entry into the house should not have been used.

In the recent JC case the warrant issued by a chief superintendent was perfectly good at the time, but by the time that the case reached trial the section of the Offences against the State Act that permitted chief superintendents to issue warrants was struck down as unconstitutional; it required a judicial or semi-judicial person such as a peace commissioner to issue such warrants. Judge Mary Ellen Ring, applied the law as it now stood and held that the warrant was invalid, and any admissions the suspect had made could not be received in evidence.

In the 1977 Madden case, heard by the Court of Criminal Appeal, the defendant had been arrested under the Offences against the State Act and could be detained for 48 hours. He began to make a statement towards the end of the 48 hours and completed it after the time was up. Indeed he stayed in the Garda station for some time after of his own volition.

Chief Justice O'Higgins said: "The statement was taken by a senior Garda officer, who must have been aware of the lawful period of detention which applied in this defendant's case and in circumstances which suggest that he deliberately and consciously regarded the taking and completion of the statement of more importance than the according to the defendant of his right to liberty." He added it involved a deliberate and conscious breach of the defendant's constitutional rights.

No doubt the Supreme Court faced a number of dilemmas in the JC case. For a start, a recent Act had given the Director of Public Prosecutions an entitlement to appeal a decision of a trial judge where the judge had "erroneously excluded evidence".

Mr Justice Frank Clarke (one of the majority in a 4/3 split decision) posed the question: "Can it be said that a trial judge erroneously excluded the evidence in question if the trial judge applied the established case law of a higher court by which that trial judge was bound, even if this Court takes the view that the established case law in question requires to be revisited in a material respect?" He answered the question by saying that the fact that a trial judge may have been bound to follow what transpires to be an erroneous decision of this Court does not prevent the trial judge from being properly described as having erroneously excluded relevant evidence.

The next dilemma the Court faced is: if the decision in Kenny is to be overruled what test to exclude evidence is to put in its place? The majority in the Court held that while O'Brien - the mistaken address case - did not go far enough the Kenny case went too far.

Once again, Mr Justice Clarke summarised the position. "To say that that evidence should be admitted in all cases except where (the authorities) knew they were acting in breach of constitutional rights is to place insufficient weight on the need (for the authorities) to operate within the legal boundaries... (it is) equally the case that to require... that an accused against whom there is sufficient evidence to establish guilt must, in all but the most exceptional circumstances, be acquitted where there has been an inadvertent breach of constitutional rights in the gathering of evidence crucial to the establishment of guilt is to place far too little weight on society's entitlement to secure the proper and legitimate conviction of those guilty of crime and, indeed, the right of victims to ensure that those who commit crimes against them are brought to justice where there is sufficient probative evidence to establish the guilt of the person concerned to the criminal standard."

The case seeks to find a balance. A favourite expression of lawyers is to say of a case decided adverse to their submission that the "floodgates" will open and that there will be endless chaos.

I do not think that the decisions in JC will bring this about. After all, the whole subject of search warrants has been well thrashed out. The question of detaining suspects and for how long is well defined and now it seems that a suspect has the right to consult his lawyer but to have the lawyer present during questioning.

The "concatenation of events" to use a phrase of my old friend Jim Sorahan that occurred in the JC case - perfectly valid warrant at the time it was issued - struck down by the time case comes to trial are not likely to be ever replicated.

Hugh O'Flaherty is a former judge of the Supreme Court

Irish Independent

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