(a)”Critically a suspect’s fundamental rights should be admissible in

(a)”Critically assess the current Irish law

admissibility of unconstitutionally obtained evidence”

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When a person commits an offence and the police begin an
investigation, there is an important criminal process to be adhered
to. Under the Irish Constitution, if you are the subject of a
criminal investigation you have certain rights, and sometimes these
rights may be breached by the police. This wrongdoing on behalf of
the state actors can occur in a number of contexts, both deliberately
and inadvertently. As a result, our criminal justice system requires
that we abide by a transparent policy when determining whether
evidence obtained in breach of a suspect’s fundamental rights should
be admissible in court.

This judge made policy is known more commonly as ‘the
exclusionary rule’. This rule in Ireland pertaining to the
admissibility of unconstitutionally obtained evidence, which was
established originally back in 1965 in the case People (AG) v
but was later revised in the 1990 case of DPP v Kenny2,
was arguably the strictest exclusionary rules of all other common
law jurisdictions such as the U.S3,
the UK, New Zealand etc. In practice, if evidence was obtained in
breach of a suspect’s constitutional rights, in nearly every instance
it would be excluded from trial. This was as a result of the
protectionist rationale adopted by the Supreme Court in the Kenny
case, whereby evidence was excluded not only in circumstances
where police knowingly breach constitutional rights, but also
in instances where said breaches were incidental.

The rule as set out in Kenny became a cornerstone
of Irish law as it was followed for over twenty five years following
the decision. However the recent Supreme Court decision of JC v
overruled Kenny and introduced a more modern approach with
subtle distinctions from its previous test regarding how
unconstitutionally obtained evidence is to be treated during the
trial process. It is argued that this move is to be welcomed as the
rule in Kenny gained a lot of criticism as it often conflicted
with the basic principles of both the law of evidence and
constitutional law. The strict approach in Kenny meant that
unforseeable consequences were frequently produced, which exceeded
the original function of protecting the rights of the accused and
attempting to put an end to Garda transgressions. The majority in DPP
v JC recognised that there may be a number of other factors to
be taken into account when attempting to vindicate the rights of the
accused. This essay will therefore examine how the DPP v JC
decision preserved the exclusionary rule doctrine in a way which
was commensurate with a breach of an individual’s constitutional
rights, by adopting a more equitable approach than O’Brien or

History of the Admissibility of Unconstitutionally Obtained Evidence
and Opportunities for Review

1.1 O’Brien
& Kenny

In order to assess
the current Irish position regarding the admissibility of
unconstitutionally obtained evidence it is essential to consider the
O’Brien and
Kenny cases,
to analyse how the difficulties which arose in earlier case law in
this area have been resolved by the new position set out in JC.

The rule against
unconstitutionally obtained evidence was established in the Supreme
Court case of The People
(AG) v O’Brien, where
it was held that any evidence which had been obtained in a manner in
which deliberately and consciously breached an individual’s
constitutional rights would be inadmissible during the trial

This arguably lax approach to the exclusionary rule was later
revised in The People
(DPP) v Kenny, where it
was decided by the court that any evidence
obtained as a result of a breach of constitutional rights will not
be included at trial, except in extraordinary circumstances which
would justify its inclusion6.

In this case Finlay CJ emphasised the importance of adhering to the
provisions of the Constitution, namely vindicating the personal
rights of a citizen as far as practicable. He acknowledged that this
strict approach to the exclusionary rule may result in difficulties
for the prosecution during the trial process, he concluded that this
did not override his obligations as set out by the Constitution7.

This case was not even a case involving Garda transgressions- they
had no way of knowing that the piece of legislation which gave them
the power to arrest the accused would later be deemed to be

1.2 Problems
with Kenny

While the judges in
Kenny may
have thought that the addition of the “extraordinary excusing
circumstances” would mitigate the severity of the rule, this
exception did not materialise in the subsequent cases8.

Additionally the Kenny
decision did not take
account of the potential expansion of the rights of an individual in
Irish constitutional law. As a result of this expansion, the
distinction between unconstitutionality and illegality diluted in
strength and it is now the case that misconduct and a potential
violation of constitutional rights are closely connected9.

This in turn minimized the potential for the admittance of evidence
by judicial discretion. The Kenny
rule rests on the
assertion that in a case where a Garda breaches the constitutional
rights of the accused, the evidence obtained on foot of said breach
will be excluded as a prerequisite in nearly all instances. However
historically the courts have prioritised the need to strike a
balance between the vindication of citizen’s rights and the
maintenance public order10.

The protection of Article 40.3.2 is qualified as it includes the
phrase “as best as it may” which by implication requires the
State to weigh its requirement to protect an individual’s rights
against the requirement of the common good11.

1.3 Opportunities
for Review
the outset, the Kenny
was met with criticism. As a result the ad
hoc committee
called the Criminal Law Review Group, which was set up in 2006 by
the Minister for Justice in order to review various issues relating
to criminal procedure in Ireland, recommended that the Kenny
be changed. It is submitted that they offered a sensible
alternative, namely that the judge in each case should have the
discretion to decide when unconstitutionally obtained evidence ought
to be admitted by considering the circumstances of the case as a
whole, while paying appropriate attention to the rights of the

Another opportunity for review arose in the case DPP
(Walsh) v Cash13
reached in the Supreme Court in 2010. Charleton J in the High Court
decided on the facts that the Kenny
was inapplicable, however he outlined his complaints about the rule
in the course of his concluding remarks in his judgement by stating
that “Any
system of the exclusion of improperly obtained evidence must be
implemented on the basis of a balancing of interests…The current
rule, as set forth by the Supreme Court in Kenny’s
automatically requires the exclusion of any evidence obtained
through a mistake which had the accidental, and therefore
unintended, result of infringing any constitutional right of one
individual, namely the accused. The entire rational of the original
Supreme Court decision in O’Brien’s
is undermined by
Supreme Court in Cash
suit from the High Court and deemed the rule Kenny

Therefore it wasn’t until five years later, when the DPP brought the
before the Supreme Court, that the Kenny
was reviewed.

Current Irish Position on The Admissibility of Unconstitutionally
Obtained Evidence: DPP v JC

and Jurisdiction of the Case

demonstrated by an array of academic criticism and judicial
commentary of the Kenny
the decision in DPP
v JC was
foreseen to some degree. The facts of the JC
were as follows. The plaintiff had been arrested and charged with
armed robbery. While he was detained he made incriminating
statements to the Gardai. However following the Damache
v DPP decision,
the statements made by the plaintiff could not be admitted at trial
on foot of the fact that they were made while the he was in unlawful
custody as the Gardai had no legal authority to arrest him in the
first place15.

The DPP then brought the case to the Supreme Court on the basis of s
23 of the Criminal Procedure Act 2010 and all members accepted
authority to hear the appeal on the contention that Kenny
was decided erroneously, thus the exclusion of the statement
evidence at the JC trial was also erroneous. This jurisdiction for
the use of s 23 has been criticised by Daly16
as she points out that the “linguistic acrobatics17”
required by the Supreme Court to hear the appeal under s 23 could
have been avoided by the use of a “without prejudice” appeal
under s 34 of the Criminal Procedure Act 1967. It is submitted that
this would have made better sense in the circumstances as the
majority decided not to order a retrial so the acquittal of the
plaintiff remained intact, and s 34 does not necessitate the finding
that the trial judge erred in excluding the disputed evidence.

Happy Medium between O’Brien and Kenny

decision presented the courts with a new option but also recognised
that returning to the O’Brien
would not adequately vindicate the the constitutional rights of the
accused. Thus Clarke J’s judgement avoided engaging in the futile
debates which had emerged following the Shaw

The most welcome development to arise from this new test was that it
now recognised the varying degrees of error which can occur. This
remedies the detrimental effect of the Kenny
whereby valuable evidence can be subject to omission, despite the
fact that the disputed warrant would have been perfectly legal had
it not been for a slight human error19.

On top of this, the allowance for made for evidence obtained through
an inadvertent breach counterbalances situations in which probative
evidence is subject to exclusion as a result of minor administrative
formalities. The new rule also sensibly allows evidence to be
admissible even if subsequent legal developments would render the
warrant illegitimate, which is arguably the most welcome development
as it is impossible for a Garda to anticipate that a piece of
legislation would be found to be unconstitutional in the future.

IR 142.

1990 2 IR 110.

have been a number of rationales put forward for the application of
the of the exclusionary rule in the US, but the use of the rule as a
deterrent has been the rationale most applied in the courts. For
example, in the judgement of Alito J. in Davis v United States
564 U.S (2011) he lays emphasis
on maintaining the rule for deterrence purposes only- i.e to
encourage police officers to properly observe a suspect’s rights in

2015 IESC 31.

judgements of Walsh J. and Kingsmill Moore J in this case put
forward conflicting ratios of the rule and therefore in the years
subsequent to O’Brien, there
were ongoing debates as to what had actually been decided.

1990 2 IR 110


at 133-134.

and Ni? Raifeartaigh, “Evidence
in Criminal Trials” (Bloomsbury
2014) at 396.

Ibid. at

example, the case Murphy v Attorney General
was an example of how the retroactive impact of a finding of
unconstitutionality. The Supreme Court declined to follow a Kenny
approach here, as they held
that only couples who brought proceedings could claim for a tax
rebate. They considered that the need of the public good outweighed
absolute vindication of citizens rights.

point was recognised, for example, by O’Higgins CJ in Moynihan v
Greenspan 1977 IR 55at 71.

Final Report of the Balance in the Criminal Law Review Group, March
15, 2007, p.166.

IEHC 108

2007 IEHC 108 at 65.

2012 IESC 11.

Y.M. “Overruling the protectionist exclusionary rule: DPP v JC”
International Journal of Evidence & Proof, 19 (4). pp. 270-280.

ISSN 1365-7127


at p 10.

Oran Doyle, Constituional
Law: Texts, Cases and Materials (Clarus,
2008) 22-24. For example, debates as to constituted a deliberate and
conscious violation of constitutional rights; debates over what was
actually decided
in O’Brien.

evidenced by Curtin v Da?il
2006 2 IR 556, where the warrant was carried out one day past the
time limit so as a result the damning evidence could not be admitted
at trial.