Introduction: due to inadvertence. ‘While the previous rule in

Introduction:For numerous years, the admissibility of unconstitutionally obtained evidence within the courts of criminal proceedings was governed by the case of AG v O’Brien; which was later modified by the case of DPP v Kenny. The case of Kenny introduced a strict exclusionary rule. Such rule, in its simplest of terms declared that, any ‘evidence obtained as a direct and conscious breach of a constitutional right was automatically excluded, in the absence of extraordinary excusing circumstances’. It places emphasis on the utter importance and necessity of upholding Article 38.

1, that criminal offences shall only be tried ‘in due course of law’. The rule in Kenny, after a long 25 years, was revisited in the recent case of DPP v J.C. In this case, the courts took it upon themselves to question whether it was time to alter the long-standing rule created in Kenny.

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Now, unconstitutionally obtained evidence will in fact be admissible, once the prosecution can determine such breach was due to inadvertence. ‘While the previous rule in Kenny had operated on a rationale of protectionism, this newly stated rule is based on principles of deterrence’. Furthermore, it is evidently clear that the issue at hand in JC caused huge judicial discomfort and controversy, with a 4:3 majority verdict holding the rule to be overruled and reformed. This judicial split and controversy can also be seen in the case of Kenny, with a 3:2 decision opting for the automatic strict exclusionary rule. Hence, this legal concept is one of great unrest and dispute, creating a very interesting essay to research. It can be seen and will further be discussed, that it appears the judicial mindset has now moved from wanting an evolving Irish legal system, who’s goal focused on ensuring the Gardaí complied with the law, as well as ensuring the individuals constitutional rights remained protected; to a structure of allowing breaches of a persons fundamental constitutional right due to inadvertence. It can be stated, that this change in mindset is quite worrisome, and may have extreme impacts.

However; one must also consider the interests of the public, and whether or not the test in Kenny did in fact lean too in favour of the criminal and created a gateway, for their case to be excused due to breach of this constitutional right. To begin; the development of this area of law will be discussed, with the cases of O’Brien and Kenny being scrutinised in full detail. Furthermore, the current position in Ireland will be discussed, with a critical analysis given of the JC case, and a careful dissection of the dissenting opinion of Judge Hardiman. To follow in conclusion, a preferred approach which the Court’s may wish to take, to balance the constitutional rights of individuals and the interest of the public, will be discussed. Development of the Law: O’Brien The exclusionary rule was first established in Ireland in the case of O’Brien. In this case, it was concluded that the Court should not admit any evidence if is was gathered ‘as a result of a deliberate and conscious violation of the constitutional rights of the accused person, where no extraordinary excusing circumstances exist’.

This case involved a warrant used for arrest, which had the incorrect address written on it. Hence, the evidence discovered on foot of this warrant was questioned as to whether it was admissible; as the constitutional right under Art 40.5, of the inviolability of a dwelling, was breached.

It was concluded that although an individuals constitutional right had been breached; the breach was accidental and therefore not conscious or deliberate. Furthermore, although it was declared in this case that discretion to exclude or admit evidence in breach of a mere legal right was allowed or subsequently as seen in this case if the violation was not conscious or deliberate; it was declared that no discretion could be handed to the judge in breach of a constitutional right. Although O’Brien was a pivotal stepping stone within the Irish legal system, its failure to answer one question in particular was its serious downfall. The key question being the definition of ‘conscious and deliberate’, which the courts grappled to come to terms with through various cases, such as DPP v Madden, and also DPP v Shaw. However; this term was subsequently determined in the later case of Kenny. Although both O’Brien and Kenny included the term of ‘deliberate and conscious’ in the admission or exclusion of evidence, the meaning ascribed to them both was crucially different. ‘In O’Brien the term referred to knowledge on the part of the Gardaí that a constitutional right was being breached’; quite a relaxed approach with a sufficient amount of lee-way and discretion given to the judges as to how the term could be interpreted; hence leaving the definition quite open-ended. However; it can be argued that this flexible approach may have been the best test to balance the needs and interest of citizens to justice, whilst also protecting the constitutional rights of an individual.

 The term ‘conscious and deliberate’ was subsequently ‘given a different meaning in Kenny which held that evidence had to be excluded if it had been obtained as a result of unconstitutionality, even if Gardaí weren’t aware that they were breaching rights.’ Hence, the decision on Kenny focused on the actions of the Gardaí, however the awareness of the Gardaí of such breach was not taken into account; such being the crucial difference between O’Brien and Kenny. The two tests were described in the case of JC by Justice Clarke as being on a spectrum; with O’Brien situated at one extreme; and Kenny at the other. Furthermore, such inconsistency between the two tests can be shown, when the test in Kenny is applied to the set of facts in O’Brien, a different conclusion would occur. The test of Kenny and its consequences will now be discussed.  II.

  Kenny After years of grappling with the term of ‘conscious and deliberate’, the case of Kenny finally resolved all disputes and created the exclusionary rule. Unlike in O’Brien, the defects in this case were difficult to notice on the face of the warrant, hence there was no ability for the Gardaí to notice such warrant was defective. Nevertheless, the Court agreed to a strict exclusionary rule which disallowed the admission of any evidence which had been obtained in breach of such constitutional right.

Such rule bares no regard to the mindset of the Gardaí when the breach occurred, but places a blanket of authority and accountability on all Gardaí’s actions; regardless if knowledge was there or not. This strict rule has been ‘justified by the public interest in deterring unlawful police conduct’; hence acting as a principle of deterrence but also as a principle of protectionism, preventing such unconstitutional breach from occurring regardless of the situation in which they occurred. This principle, attempts to encourage the proper and formative collection of evidence by police; whilst maintaining to vindicate the constitutional rights of all individuals. It was once stated by Judge Harold J.Rothwax, A New York State Supreme Court Judge, that it was his view ‘that the exclusionary rule applicable in the United States was the strictest in the democratic world’. However, this statement is incorrect as he did not take into account the Irish exclusionary rule post Kenny. The American exclusionary rule focusing on the principle of deterrence, with knowledge being the key aspect; however Ireland being even stricter, focusing not only on deterrence but also the protection of all constitutional rights. However; that being said, from analysing the cases since DPP v Balfe; the Courts appear to operate both the O’Brien and Kenny test alternatively.

This allows the court, in some instances, to opt out of the strictness of Kenny and to a certain extent, allow flexibility in cases. This is with regards to the content of the cases; ‘with the O’Brien rule applying to cases where there is an error on the face of the warrant, and usually admitting the relevant evidence; and Kenny operating where there is a deficiency in the authorisation of the warrant or its legal value, and generally resulting in the exclusion of evidence.’ The majority in Kenny hence concluded that evidence should be excluded either way, as ‘a positive encouragement to those in authority over the crime prosecution and detection services of the state to consider in detail the personal rights of the citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to rights.’ However; in the dissenting judgement of Justice Lynch , he stated that an element of culpability and knowledge was necessary for evidence to be admitted. Hence, two very different views on how the courts should rationalise with the exclusionary principe. It is this difference in opinions which has lead to todays new ruling in the case of JC, which attempts to try and balance the two opinions as stated above. In this case, the majority ‘were of the opinion that Kenny tipped the balance too far away from society’s right to have compelling evidence admitted, by imposing what they consider a near-absolute exclusionary rule without parallel in the common law world.’ The pivotal case of JC will now be analysed.

 Reexamination of the Kenny Rule: DPP v JCIn the case of JC, ‘the state invited the Supreme Court to look again at the balance to be struck between the constitutional rights of an accused to a fair evidence gathering process as against the rights of the public at large to have compelling evidence admitted to criminal proceedings.’ The previous rule of Kenny was re-examined; and the majority ruled to change the previous stance taken, declaring that the Kenny rule was, in fact, incorrect. Mr Justice Clarke declared that ‘from now on, evidence obtained unconstitutionally will be admissible if the prosecution can show the breach was due to inadvertence.’ This new rule stands drastically in contrast to cases involving recklessness and gross misconduct or negligence; where the presumption of exclusion does in fact apply. Furthermore, although it is upon the prosecution to prove ‘inadvertence’; no exact or precise definition was given; hence portrayal of such will face some problems. It may also be questioned, if all warrants must be checked by Gardai’s to ensure the correct information is on them before executing them; will an incorrect piece of information on the warrant constitute as reckless behaviour or grossly negligent? Subsequently will these errors which previously would be contested as being typographical errors, carry a greater burden upon all involved? Also; another evidently clear consequence of this decision will be the admissibility of a vast new amount of evidence; perhaps even when a persons individual constitutional right has been breached.This stance is a drastic change from the Kenny rule, and has not been openly welcomed, with a large number commenting that the new test favours the prosecuting authorities, and moves away from the importance of an individuals constitutional right to be upheld; as declared in Justice Hardiman’s dissenting judgement; which will now be discussed.

 It was declared by Justice Hardiman, that he was worried of the practical consequences of this grave decision to change the Kenny rule; declaring his apprehension of the long-term repercussions which may face the Courts. He declares that the new law does in fact favour the state, and handicaps all individual citizens; stating ‘if once ‘inadvertence’ or mistake is acceptable as an excuse for ignoring, or failing to ascertain, the constitutional rights of ordinary citizens, then ‘inadvertence’ or mistake will be relied upon again and again’. It effectively gives all Gardaí a ‘get-out’ clause, when a right is breached whilst obtaining evidence.

Hence, almost giving the signal to all Gardaí that a breach of an individuals constitutional right is permitted by the State, effectively allowing the Gardaí to do as they please. He believes that the application of such new rule has the effect of ‘conferring a statute of virtual unaccountability’ upon the Gardaí; which may be detrimental. He continues to describe how the new rule places a premium on ignorance amongst all Gardaí; however if a citizen produced the defence of lack of knowledge or ‘inadvertence’ no such allowance would occur. This imbalance of rights, Justice Hardiman highlights, will create a distinction class between ordinary citizens and the ‘privileged and legally empowered group’. Hence, on analysis of the JC ruling, it can be declared that there are some evident and extremely worrisome problems with the new test. The radical shift from the strict automatic exclusionary rule, to one of complete discretion, has the potential to be drastic. However; this new, more flexible approach adopted is in fact in line with numerous decisions by the European Court of Human Rights, such as the case of Khan v United Kingdom.

Although such rule aims at balancing the competing constitutional rights of the accused and those of the public; the question of whether it will achieve such balance is questioned, due to the problems mentioned in Justice Hardiman’s dissenting judgement. However, it is submitted that although the new case law of JC is questionable, the previous rule of Kenny was in need of reform. A preferred approach to unconstitutionally obtained evidence will now be discussed. A Preferred Approach: A Judicially Discrete Exclusionary RulePre the case of JC; the rule set out in Kenny was questioned as stated above, and recommended reform was suggested by the majority of the Criminal Law Review Group in their 2007 Report.

The first argument by the Review Group for changing such exclusionary rule, is that it did not allow the judge to weigh up the interests of the public to ensure that no constitutional rights are breached by the states agents, coinciding with balancing the protection of the interest of the public to ensure crime is detected and punished. Such a strict exclusionary rule, it is believed, offers a far higher protection for the accused; hence a preferred test with a greater balance between the two rights is preferred. The group also argued that the fundamental purpose of having an exclusionary rule to begin with, is to protect the rights of individual citizens. It is declared, that such a purpose can be done just as well, by a discretionary exclusionary rule. It is opined, that it was from this argument, which the JC case based its ruling on.

Furthermore as stated in the review, ‘international experience would suggest that a relaxation of the exclusionary rule would not violate human rights norms’. Although, a preferred approach is one of discretion, I do believe the decision of this discretion should be decided by the trial judge; and not simply left up to a notion of ‘inadvertence’. An addition of such words, it is suggested, is an extreme relaxation of the rule, which may lead, and possible encourage, substandard practises portrayed by the Gardaí.

Although this test allows a level of flexibility which is preferred; ‘it opens the door to all kinds of abuses, and expands the powers of the Gardaí in a range of ways, whilst removing them from oversight, which should worry us all.’The preferable approach, to balance both rights, is a strict exclusionary rule, which allows for judicial discretion in cases where the public interest outweighs that of the accused’s right. Judicial discretion may for example only apply in situations where; ‘the rules of evidence should not be allowed to offend common-sense; with which one must agree. Whilst also looking at the evidence, the judiciary should take into account the ‘totality of the circumstances and in particular the rights of the victim.

‘ It is also opined, that a principle based on deterrence rather than protectionism is favoured; as in focusing on deterring police from obtaining evidence unconstitutionally; this in itself leads to the protection of the individual with a safeguard from having their constitutional rights violated. Focusing in on how police obtain their evidence is one of the core elements of the exclusionary rule; hence if the principle focuses on an element of deterrence, breaches which occur in actual good faith and honest mistake; can easily be spotted for the judiciary to admit such evidence. Although this is in contrast to the English Courts which have ‘repudiated the idea of using exclusion of illegally obtained evidence as a deterrent against police conduct; as it was believed that it was not the judges role to discipline police officers in court;’ it can be opined that if individuals actions are controlled by the judiciary, then Gardaí’s actions should be too. This approach is one which is similar with that of the United States; following the case of Weeks. The essence of having such rationale for the basis of the rule is ‘that it allows the courts to control the activities of the law enforcement agencies and dissuade them from encroaching unjustifiably on the civil liberties of citizens.’Hence, in conclusion a preferred approach to be adopted by the Irish Courts is a judicially discrete exclusionary rule, which allows flexibility and discretion to come into place when evidence in questioned. The flexibility and discretion operating when evidence is blatantly clear and as suggested above would offend common sense if not allowed, hence protecting the publics interests in detecting crime. The trial judge should look at the entirety of the situation, and take into account the totality of the circumstances; whilst weighing up the competing rights of the publics interest and the accused’s constitutional rights.

‘Inadvertence’ being looked at, but not the deciding factor for the judge to decide upon. However; it must be noted that the exclusionary rule is one of the most complex, and controversial doctrines in criminal proceedings as it is an ‘area of law that is still developing.’ It is an area which will continue to cause unrest and dispute within the Courts regardless of what approach is taken. Hence; it will be very interesting to see how the new rule plays out as it is put into practise over the next few years. Conclusion: In conclusion, the case of JC will have far-reaching impacts within the Irish legal system.

Although Kenny was in need of reform as described by Justice O’Donnell in JC; as it ‘fails to give any weight to the interests involved in the administration of justice or indeed appreciate that a balance is involved’; it is opined that the reformation now rests on a balance which is far too permissive, and hands too much discretion to the trial judge, to decide a key factor in a case; such as the admission of evidence. Although the new test does insist on the onus being placed on the prosecution to prove such evidence was gathered inadvertently; one must question how one really shows the difference between inadvertence and negligence for example. JC allows an unambiguous atmosphere to rest within the Courts; with individuals constitutional rights possibly left not protected to its fullest extent. Indeed, the interests of the public to punish crime must be noted; but allowing too much discretion to the Courts is a dangerous practise which may lead to unusual precedence. Subsequently, individuals constitutional rights may not be regarded as highly within the courts if one can breach another’s right due to ‘inadvertence’; and still allow for the admission of such evidence.

 Although Clarke J described O’Brien and Kenny on opposite ends of the spectrum, JC fails to create a fair balance between the two and it is suggested that no balance has actually yet even been obtained. As Justice Hardiman suggested; the majority approach in JC is indeed retrogressive; and will most likely have negative effects on the loosening of Gardaí control; which is extremely worrisome. A recommended exclusionary test is indeed one of discretion; but one which balances the totality of circumstances; whilst taking all factors into account; and weighing up all rights involved. Basing cases on a notion of ‘inadvertence’ is worrisome, and does indeed place a premium on ignorance; furthermore it will be very interesting to see how the Gardaí interpret such word whilst obtaining evidence. Possibly the only test suitable to such a forever changing topic, is one which is judged on a case to case basis; with each conditions looked at individually. Hence; the exclusionary test is one which will create several questions and queries in the coming years.

The balancing of both interests is extremely difficult, and will be very hard to find a happy medium between the two. ‘It is however hoped that future courts will indeed be provided with greater clarification on the rationale and content of the new test, so that judicial discretion is not left unguided.’