Supreme Court judge criticises ruling on evidence in trials

Adrian Hardiman says ruling gives Garda ‘effective immunity from judicial oversight’

A Supreme Court judge has vehemently criticised a landmark decision of the court, saying in his dissenting judgment that it has given An Garda Síochána "effective immunity from judicial oversight" by rewriting a key rule on evidence in criminal trials.

The court, by a 4-3 majority, relaxed a long-standing rule that bars the State from using evidence obtained in breach of a constitutional right, regardless of whether or not the breach was deliberate. The decision, reversing a 25-year-old Supreme Court ruling, will have major implications for criminal cases.

Mr Justice Donal O'Donnell, in his majority judgment, said the 1990 rule was "plainly wrong". It set down a near-absolute exclusion that represented the most extreme position in the common law world. A new test, set out by Mr Justice Frank Clarke, will allow evidence obtained in breach of constitutional rights to be used in court if the prosecution can show the breach was inadvertent.

Dissenting judgment

In a strong dissenting judgment, Mr


Justice Adrian Hardiman

said he was “horrified” at the majority’s decision to “cut down” the 1990 decision known as

DPP v Kenny


He said he was “gravely apprehensive” that the court had reversed one of the “monuments” of its legal architecture, and protested at what he said was the distinction being made between the ordinary citizen and members of the “privileged and legally empowered group.”

“If the ordinary citizen were provided with a defence of ‘I didn’t mean it’ or ‘I didn’t know it was against the law’, then many parts of the law would become completely unenforceable,” he said.

Mr Justice Hardiman, who was in a minority with Mr Justice John Murray and Mr Justice Liam McKechnie, detailed the critical findings of tribunals of inquiry into Garda conduct and recalled recent "deeply disturbing developments" in relation to the force and its oversight.

‘Recent disquiet’

He cited Minister for Justice

Frances Fitzgerald

, who noted in July last year “the significant recent disquiet over the administration and oversight of justice in this State.” The judge added: “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.”

Mr Justice O'Donnell and Mr Justice Clarke were joined in the majority by Chief Justice Susan Denham and Mr Justice John Mac Menamin. The latter said the new test was significantly higher than in other common law states.

Mr Justice Clarke argued that a balance must be struck between two potentially competing principles: that society and victims of crime were entitled to a trial that assessed the culpability of an accused based on proper consideration of all the evidence, and to ensure law enforcement agencies operated within the law.

The DPP had asked the court to re-examine the "exclusionary rule" set out in the 1990 Kenny decision.

The case arose from the trial of an individual known as JC, who was tried for robbery offences before a judge and jury 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 issue of whether the man will be retried will be decided later.

Ruadhán Mac Cormaic

Ruadhán Mac Cormaic

Ruadhán Mac Cormaic is the Editor of The Irish Times