Wednesday 20 November 2019

Seismic shift as Supreme Court splits on key ruling

For Judge Murray, the prospect of a citizen relying on the rule of law at the time of their trial having their acquittal set aside when the law is changed after the trial was an 'appalling prospect' and one that undermines the judicial process
For Judge Murray, the prospect of a citizen relying on the rule of law at the time of their trial having their acquittal set aside when the law is changed after the trial was an 'appalling prospect' and one that undermines the judicial process
Dearbhail McDonald

Dearbhail McDonald

Judges are human, but they tend not to display their emotions as easily as the rest of us.

This is partly occupational hazard: juries and witnesses can easily pick up on any non-verbal cues - let alone verbal cues - emitted by judges that could lay the foundation of an appeal.

Even when handing down rulings, judges lean towards the urbane. But that quality was lacking to some degree yesterday when the Supreme Court - a 4/3 majority of it, to be precise - overturned one of its own key precedents aimed at protecting suspects' rights.

Former Chief Justice John Murray could barely conceal his evident upset at what he described as "the appalling prospect" of a citizen who was acquitted by a trial judge under one Supreme Court ruling facing the prospect of a retrial - and potential conviction - because the court had changed its mind on another. And Supreme Court Judge Adrian Hardiman could barely contain his patent distress when he spoke - his voice quivering - of his fears that the highest court in the land was "disengaging" from the long line of rights-orientated jurisprudence of his predecessors.

Strident words, indeed.

The exclusionary rule laid down by the Supreme Court in the Kenny case 25 years ago is, as Judge Hardiman lamented, one of the bedrocks or monuments of Irish constitutional jurisprudence. But the relaxation of the rule was a long time coming. Until yesterday, any evidence obtained in breach of an accused person's constitutional rights was excluded from trial. This evidence could include, for example, the search of a person's home under a defective warrant.

A hotly-contested debate has raged since Kenny to the effect that guilty people are walking free from prosecution or conviction just because gardaí make good faith mistakes in their investigative processes - failing to dot the i's and cross the t's on search warrants and the like.

The debate is, of course, much more nuanced than that. But the formerly strict or absolute application of the exclusionary rule goes to the heart of the perennial debate about the balance that needs to be struck between two competing societal interests.

The competing interests, namely the need for all potentially relevant evidence to go before a judge and jury on the one hand, and the need to ensure gardaí and the authorities act within the law on the other, itself strikes at the heart of the question of whether the State serves the citizen or the citizen serves the State?

The Supreme Court was invited to moderate the absolute rule in the case of the Director of Public Prosecutions vs JC. The defendant, who may now face a re-trial, was accused of burglary offences. But he was acquitted by direction of the trial judge because evidence against him was obtained on foot of a law that was subsequently struck down by the Supreme Court in 2012, the Damache ruling.

The DPP appealed the acquittal verdict under a law introduced in 2010 permitting appeals on points of law in limited circumstances, including if a judge has erroneously excluded compelling evidence.

In the course of the appeal, the DPP invited the Supreme Court to find that this was so, even though the trial judge was obliged - following the Kenny decision - to exclude the evidence as the Supreme Court (in Damache) had struck down Section 29 of the Offences Against the State Act, the warrant gardaí relied on to enter JC's home.

The rights and wrongs of the relaxation of the exclusionary rule were extensively rehearsed during the course of the appeal and in the individual rulings of the Supreme Court.

The absolute nature of the rule has acted as a brake on evidential misbehaviour by gardaí and has served to ensure that gardaí maintain high standards in the course of their investigations.

Many, including Supreme Court judges Frank Clarke and Donal O'Donnell - relative newcomers to the Supreme Court - highlighted the risks of an absolute rule. This includes the risk that suspects against whom there is cogent if not sufficient evidence to prove guilt beyond a reasonable doubt, being acquitted because of mere inadvertence by gardaí.

For the majority of the Supreme Court, Kenny went too far. Judge O'Donnell went so far to say that it was "plainly wrong".

Only time will truly tell if the Supreme Court has struck the right balance, whether the moderation of the exclusionary rule has any seismic effect in practice, if the delicate balance of rights has been tipped too far in favour of the State to the detriment of accused persons.

The real seismic shift in yesterday's ruling is, arguably, the intellectual and ideological chasm that has opened up within the Supreme Court itself.

For Judge Murray, the prospect of a citizen relying on the rule of law at the time of their trial having their acquittal set aside when the law is changed after the trial, was an "appalling prospect" and one that undermines the judicial process.

Judge Murray even went so far as to say that the majority ruling was to "change the goalposts", not during the game but after the game is over, distinguishing sport from the altogether more serious pursuit of criminal justice.

The Supreme Court majority was almost American-like in its split, the 4/3 majority being carried or swung by the Chief Justice, Mrs Justice Susan Denham.

The majority denied that the reversal of one of its own previously binding rulings is a form of retrospective law-making, by judges to boot.

Yet it remains to be seen whether JC will face a retrial in circumstances where he has previously been acquitted.

The ruling marks a new, ideological departure for the Supreme Court which, as an institution, was widely criticised during the 2006 statutory rape crisis.

Then, after a tumultuous week, the court returned a convicted paedophile to jail after earlier striking down the law under which he and others were convicted.

The open dissent in this case, patent in the individual rulings, may indicate, too, a return to a more activist Supreme Court that has, for many years, refused to cross the constitutional line demarcating the separation of powers.

And it comes at time when the legal community is riveted by the prospect of who - a new head or old hand - will become the next Chief Justice.

Irish Independent

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