The Supreme Court has overturned a long-standing constitutional rule of evidence, reversing its own earlier decision that it handed down in 1990. The rule itself, commonly referred to as the exclusionary rule, provides that evidence obtained as a result of a deliberate and conscious breach of constitutional rights is excluded, unless there are extraordinary excusing circumstances.
Those circumstances include the imminent destruction of evidence and the need to rescue a person in peril. The rule, as previously interpreted, operated in an all-or-nothing fashion: if it was found that the evidence was gathered in breach of constitutional rights, it had to be excluded unless the circumstances were extraordinary.
If, for example, a garda gathered evidence not knowing that he or she was breaching the constitutional rights of the accused party, this did not save the evidence at trial - it would still be excluded.
The decision is interesting for a number of reasons.
To begin with, the Supreme Court has reversed its earlier decision in 1990 by removing the 'positive encouragement' which it placed on those in authority over the crime prevention services to consider in detail the personal rights of the citizen. The right to have unconstitutionally obtained evidence excluded still exists, but in a weaker, more diluted form.
Though the right as previously existed set a very high bar in relation to evidence gathering, it acted as a positive encouragement on law enforcement agencies in the State, and they responded over the last 25 years by becoming much more focused on what evidence would stand up to constitutional examination in the courts. The high threshold ensured a cultural shift within law enforcement institutions. Embedding this institutional awareness about accused rights was a good thing, even if it did result, in some instances, in highly probative evidence being excluded at trial.
It seems difficult to understand the basis for this appeal. Section 23 of the Criminal Procedure Act entitles the Director of Public Prosecutions (DPP) to appeal against an acquittal in a trial on indictment where, among other things, the judge has erroneously excluded compelling evidence. The majority of the Supreme Court in this decision have adopted a breathtakingly expansive interpretation of section 23, in that they appear to accept that the trial judge, in making the exclusionary ruling at trial, acted erroneously, even though she interpreted and applied established law in a manner which she was bound to do.
The majority of the Supreme Court, in adopting this interpretation, seem to deny the internal coherency and integrity of law, particularly in relation to the demand for fidelity in following established precedent.
It is generally accepted that Rule of Law societies require adherence to a number of largely uncontested principles including, for example, that laws are known in advance, that they are clear, prospective, not contradicted by other rules, and do not require performance of the impossible.
In effect, this Supreme Court decision permits a retrial for an offence for which there has already been a lawful acquittal. It does so on the basis that the law has been changed, notwithstanding that this change was brought in to existence not only after the impugned conduct occurred, but after the acquittal itself. This seems manifestly unjust.
Finally, much of the justification for changing the law is premised on public protection and the interests of the community. While there is merit in the argument that the previous exclusionary rule set the bar too high, as compared with other jurisdictions, it is dangerous for the majority in the Supreme Court to present the argument in terms of the community ranged against the rights of individual accused parties. After all, we should not forget that accused parties are also members of the community.
While most of us may not have to call upon these rights to defend ourselves in Garda stations, we should bear in mind that the executive power of the State extends far beyond this to include the Revenue, the Health and Safety Authority, water meter inspectors, and so on. Should any of these agencies call at your door and make allegations about your conduct, you will expect as a matter of fairness that the laws by which you are judged are known in advance and respect your rights.
Shane Kilcommins is a professor at the School of Law, University of Limerick