Essay: The exclusionary rule

Recent decisions in the Supreme Court would undoubtedly show judicial discomfort with the operation of the exclusionary rule in Irish Law. Since the seminal decision of People (AG) V O’Brien in the supreme court, the exclusionary rule has dominated cases questioning the admissibility of evidence. For a long time following the subsequent ruling in Kenny it would have appeared that the Irish Courts main concern was not to ensure just that the Gardaí complied with the law, but also that the constitutional rights of individuals be protected and respected. However, it’s application in that and other later cases has led many to question if the strictness of the approach leans too heavily in the direction of protecting constitutional rights at the expense of justice. Justice Benjamin Cardozo, when famously commenting on the exclusionary rule in the US, noted that “The criminal is to go free because the constable has blundered.”
In this essay I will attempt to explore how the law regarding the constitutionality of evidence has changed in recent years from the previous application in case law. I will particularly explore the recent decision in DPP v JC and what potential consequences this might hold for future cases that come before the courts.
The Exclusionary Rule
The exclusionary rule in Ireland was first established in AG v O’Brien which found that the courts should exclude evidence that is gathered; ‘as a result of a deliberate and conscious violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist’.
In this case two brothers challenged the use of evidence in their trial, as the warrant used to obtain evidence from their family home had an error regarding the address written on it. Instead of correctly being written as 118 Captain’s Road, Crumlin, it was instead issued as 118 Cashel Road Crumlin. The issue was one relating to constitutional rights, specifically the inviolability of the dwelling for Justice Walsh. In this case it was accepted that the mistake on the warrant was accidental and that there had been no deliberate or conscious violation of the accused’s rights.
A two-tiered approach to improperly obtained evidence was therefore adopted in Ireland. Where evidence was deemed to have been illegally obtained, such as in the breach of the legal rights of the suspect, the exclusion or inclusion of that evidence was a matter for the trial judge.
Where evidence was deemed to have been obtained in breach of constitutional rights then it had to be automatically excluded from evidence unless there were extraordinary circumstances that would justify its admission. These ‘extraordinary’ circumstances were defined as ‘the need to rescue a victim in peril and the need to safeguard vital evidence from imminent destruction.’ If the evidence did not fall into these categories, then it was absolutely inadmissible.
The question of what constituted ‘deliberate and conscious’ breach would be examined in later case law including in People (D.P.P) v Madden The Court of Criminal appeal excluded a confession made by the accused during a time he had been held beyond the time allowed by statute. In this case it appeared that the breach of rights in the pre-trial period had been deliberate and conscious. A different reasoning later emerged in People (DPP) V Shaw where the appellant and another were arrested for being in possession of a stolen vehicle. The Gardaí also suspected that they were involved in the disappearance and possible abduction of two women. The men were interrogated in custody and eventually gave confessions. At trial the judge admitted the confession evidence because he didn’t see it as a deliberate and conscious breach of the right to liberty and that it satisfied the ‘extraordinary’ excusatory circumstances mentioned in the O’Brien case. Justice Griffin in Shaw held in a majority judgment that it was the violation of rights as opposed to the particular act complained of, that had to be ‘deliberate’ and ‘conscious.’
For many years afterwards the law on the admissibility of unconstitutionally obtained evidence was governed by the judgement in DPP v Kenny (1990). This case established that evidence obtained through a deliberate and conscious breach of a constitutional right is not admissible in criminal proceedings, as to do so would breach article 38.1 of the constitution that says that criminal offences shall only be tried ‘in due course of law’. In this particular case which is somewhat reminiscent of the facts in O’Brien, a search warrant used was invalid because it had been issued by a Peace Commissioner without any evidence to show that he was satisfied that there were reasonable grounds for the suspicion of the Gardaí. Therefore, the search warrant had been issued without lawful authority. Unlike in O’Brien the defects were not easily spotted on the face of the warrant and there was no way that the Gardaí who executed it could have known that the warrant was invalid and that executing it would lead to a breach of the suspect’s constitutional rights. The Supreme court held that the evidence obtained due to the defective warrant should have been excluded from the trial because it had breached the accused’s constitutional right to the inviolability of his dwelling under Article 40.5, regardless if the Gardaí in this case knew this or not. However, the ruling of the majority of the Supreme Court in Kenny was not accepted by all members of the Court. Both Griffin and Lynch JJ in the minority issued strong dissents, suggesting that some element of culpability on the part of the Gardaí ought to be required before exclusion would occur. suggesting a growing discomfort with the finality of the exclusionary rule. In DPP v Mallon it was questioned whether all evidence obtained under such circumstances should be completely excluded.
So long as Irish law maintains AN ALMOST ABSOLUTE EXCLUSIONARY RULE for evidence obtained as a result of an illegal and therefore unconstitutional search of a dwelling house,
courts should be slow to invalidate warrants on the grounds of typographical, grammatical, or transcription errors, which are neither calculated to mislead, nor in truth do mislead, any reasonable reader of the words.
Growing discomfort with the exclusionary rule in the courts and Criticism
In 2009 the Criminal Law review recommended that the Irish rule in relation to the exclusion of unconstitutionally obtained evidence be replaced by a rule which allowed the trial judge discretion on whether to admit or exclude evidence based on individual circumstances, with particular regard given to the rights of the victim.
DPP V JC
In the DPP v JC (2015) supreme court decision the previous stance taken by the courts was re-examined. In this case Gardaí in Waterford were investigating three robberies that had taken place at a bookmaker between April and May of 2011. On the 10th of May, two Gardaí had approached the accused’s residence with the intent to arrest him. They also had a warrant to search the premises under Section 29 (1) (as amended, section 39) of the offences against the State Act 1939. Upon arriving, they showed the warrant to the sister of the accused and were let in without any objection. The accused was arrested and a search was carried out on the house though nothing of any significant value was found. During the search the accused was taken to the Garda station in Waterford where he was cautioned and was able to take leave of legal advice, after which he made a number of inculpatory statements.
In unrelated proceedings subsequent to this (cite) the Supreme Court struck down section 29 (1) as unconstitutional.
At the trial of the accused the counsel for the defence asked the judge to exclude the statements made by the accused while in custody because they were made following entrance by the Gardaí on the accused’s residence on an invalid warrant. The trial judge accepted this and ruled that the statements were inadmissible and the accused was acquitted. The question then put to the Supreme Court in this case was this; Could evidence gathered unconstitutionally still be admitted if it could be shown that the breach was caused inadvertently?
Here the state took the opportunity to raise the issue as to whether it was time to re-examine the exclusionary rule set out in the Kenny case. This was the main issue for the court to decide. It caused major division between the seven judges but ultimately the majority decision was that the rule in Kenny was incorrect.
The debate here was finely balanced, despite the decision, proving that there is still loyalty to the exclusionary rule. The split revealed split decisions on the dominant opinions of past cases.
O’ Donnell J specified that in JC applied only search warrants, although Clake J was not so restrictive in specifics of the new rule, suggesting that it would only apply where there is a question as to how relevant evidence was gathered as opposed to the probative value of the evidence given in the way it was obtained. In re-defining the exclusionary tile as discretionary to the trial judge the impact of this shift could have major implications for Irish law. Justice Clarke stating; “From now on, evidence obtained unconstitutionally will be admissible if the prosecution can show the breach was due to inadvertence” (cite)
In contrast to the previous precedent set in Kenny which would have seemed to operate towards a goal of perfectionism, the new rule set out by the JC case would seem to operate on a rationale of deterrence, as evidence will no longer be automatically excluded if it was obtained in an unintentional unconstitutional manner. This is satisfied through the determination that the term ‘deliberate and conscious; relates to the state of mind of the person obtaining the evidence, rather than their actions (such as unknowingly using a warrant with an incorrect address).
The main elements of the new rule are as follows; If a claim is raised that evidence was obtained in breach of constitutional rights then the onus is on the prosecution to establish that it was not done so unconstitutionally, or that it should be admitted despite this. The onus is on the prosecution to establish the admissibility of all evidence.
Ramifications of changes relating to the exclusionary rule
One of the major ramifications of the decision in JC is that if the State can show that unconstitutionally obtained evidence was gathered through an inadvertent breach of the accused’s constitutional rights then it may still be admitted as evidence against the accused. This is a major change given the previous commitment to a rationale of deterrence and could be seen as a significant step forward for those who have viewed the exclusionary rule as working contra to the interests of justice in the past. One of the most obvious consequences of the decision will no doubt be the admissibility of a wider range of evidence, even where it may have been obtained in a breach of a person’s constitutional rights.
However, the judgement was far from universal with Hardiman J stating that the decision would give the Gardaí ‘immunity from judicial oversight’. Whether or not that is the case is debatable given the recent progress on Garda Policy but will remain to be seen
It is also worth noting that this more lenient approach is in line with movements in the US towards and decisions made in the European Court of Human Rights
Conclusion
In conclusion the recent decision made in the supreme court in JC would undoubtedly point towards a change in the way the court’s view the exclusionary rule. Before the judgement in JC v DPP there was more or less a complete ban on the admissibility of evidence that may have mistakenly been obtained unconstitutionally thanks to Kenny. It is obvious that this was not the intention from the decision in O’Brien but had developed gradually. As Irish scholars such as (cite) and have noted, this would seem to be a positive move in the right direction for prosecutors who previously would have seen their hands tied by the rule. That being said the softening of the rule may also raise other problems, particularly in relation to human rights violations.