Landmark decision rewrites evidence rulebook

Divisions emerge as judges relax controls on use of evidence obtained in breach of rights

 Mr Justice Adrian Hardiman:  In his 166-page minority judgment, one of his most impassioned, Mr Justice Hardiman deplores what his colleagues have done. Photograph: The Irish Times

Mr Justice Adrian Hardiman: In his 166-page minority judgment, one of his most impassioned, Mr Justice Hardiman deplores what his colleagues have done. Photograph: The Irish Times

 

The Supreme Court doesn’t lightly overturn its own decisions. It’s particularly slow to reverse its most important judgments. But that’s what happened yesterday, when, by a 4-3 majority, the court in effect repudiated a 25-year-old rule that tightly restricts the State from using evidence it obtains in breach of a constitutional right.

By any standards, it’s a landmark decision. The six judgments, which together run to hundreds of pages, are by turns trenchant and delicate, passionate and precise, written with the knowledge that they will be pored over by law students and practitioners for decades to come.

“This is as significant a case on criminal law and evidence as any that have come before the court in the last twenty-five years. It affects in an important way the rights and liberties of every citizen,” wrote Mr Justice Adrian Hardiman, who was in the minority.

The case arose from the trial of an individual known as JC, who was tried for robbery offences at the Circuit Criminal Court. During the trial, the judge excluded six statements made by the accused (three of which were inculpatory) because the accused, at the time when the statements were made, was unlawfully detained by the gardaí. The judge found the evidence fell foul of the so-called exclusionary rule.

The trial proceeded without the prosecution offering any further evidence, and the jury was directed to bring in a verdict of not guilty.

Relax judgment

The exclusionary rule was laid down in the 1990 case of DPP v Kenny, which in effect barred the State from using evidence obtained in breach of a constitutional right, regardless of whether or not the breach was deliberate. In this appeal to the Supreme Court, the State had invited the seven-judge court to relax the Kenny judgment.

The judges accepted the invitation, but only just. The 4-3 division reveals striking intellectual differences, which are laid bare in the individual judgments. The two key texts for the majority are those of Mr Justice Donal O’Donnell and Mr Justice Frank Clarke.

They argue that a middle way must be found between Kenny, which represents a near-absolute exclusion, and the 1965 case of The People v O’Brien, which stated that only deliberate and conscious breaches of constitutional rights could lead to the exclusion of evidence.

There was a balance to be struck between two potentially competing principles: on the one hand, that society and victims of crime were entitled to have an assessment carried out at a criminal trial of the culpability of an accused based on proper consideration of all evidence; and, on the other hand, the need to ensure that investigative and enforcement agencies (including An Garda Síochána) operated properly within the law.

“It is part of the proper function of this court to adjust its prior decisions in the light of developments in the law, experience, and analysis,” Mr Justice O’Donnell wrote. “Having carefully considered the issue, I conclude, with great respect to my colleagues present and past who take or took a different view, that I do not believe that the decision in Kenny can withstand scrutiny.”

The new test is set out by Mr Justice Clarke, who says it strikes the “appropriate balance”. From now on, evidence obtained unconstitutionally will be admissible if the prosecution can show the breach was due to inadvertence. Chief Justice Susan Denham and Mr Justice John Mac Menamin agreed, securing a majority of four.

The judgments are replete with polite judicial euphemisms about reviewing, recalibrating and adapting Kenny, but the implication is clear: the majority believes it was incorrectly decided and it has been over-ruled.

Cut down Kenny

In his 166-page minority judgment, one of his most impassioned, Mr Justice Hardiman deplores what his colleagues have done. He is “gravely apprehensive” that the majority has “cut down” Kenny, one of the “monuments” of constitutional jurisprudence, and sees the move as “a major step in the disengagement of this court from the rights-oriented jurisprudence of our predecessors.”

He is “horrified” that it is proposed to make “inadvertence” a lawful excuse for State infringements of individuals’ constitutional rights.

“I deeply regret to say that the experience of the courts over the past 40 years strongly suggests that ‘inadvertence’ will be accepted very generally as a reason to allow to be provided in evidence the fruits of deliberate and conscious violation of citizens’ rights,” the judge writes. “Needless to say, it is not proposed to extend any parallel laxity to ordinary citizens.”

Mr Justice Hardiman recounts in detail the critical findings of tribunals of inquiry into Garda activities and recent “deeply disturbing developments” in relation to the force and its oversight. He cites Minister for Justice Frances Fitzgerald, who noted last year “the significant recent disquiet over the administration and oversight of justice in this State”. He adds: “I consider it utterly unwise, to use no stronger word, to grant to the gardaí, in that context, the effective immunity from judicial oversight which this case does.”

He was joined in the minority by Mr Justice John Murray and Mr Justice Liam McKechnie, who said he remained unwavering in his view that the justification for the rule in Kenny was correct.

“I feel that the modification of the rule as suggested by the majority is largely unworkable and will greatly add to the length and complexity of a trial,” he said. “It will also result in great uncertainty.”

It took the Supreme Court more than a year to decide the case. Its impact will be felt for much longer than that.

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