THIS MORNING the Supreme Court will sit with a rare full complement of seven judges to hear a case considering a controversial rule of evidence in criminal trials.
The so-called “exclusionary rule” means that evidence obtained through a breach of a person’s constitutional rights, even if this breach was inadvertent and of a technical nature, cannot be used by the prosecution.
This rule led to a trial not going ahead in the attempted prosecution of Circuit Court judge Brian Curtin for the alleged possession of child pornography in 2003.
The rule has also led to prosecutions collapsing in a number of less high-profile trials.
Judge Curtin’s house had been searched and his computer seized under a warrant which, at the time of the search, had just expired.
The trial ended when, after legal argument, the trial judge ruled that the evidence taken in the search amounted to a deliberate and conscious violation of the accused’s constitutional right to the inviolability of his dwelling.
This meant that nothing on the computer could be used in the case, and there was no other substantial evidence against him.
This ruling followed a Supreme Court judgement in a case called Kenny, where the court found that any evidence obtained in violation of a person’s constitutional rights, even if the violation arose from an honest mistake, could not be admitted. Once the violation of the person’s rights was established, the judge had no discretion about admitting the evidence.
The ruling in the Kenny case has been controversial, and was discussed at length in the report of the Balance in the Criminal Law Review Group, chaired by Dr Gerard Hogan SC in 2007.
This concluded that it was desirable to have a situation where the court would have a discretion to admit unconstitutionally obtained evidence “having regard to the totality of the circumstances and in particular the rights of the victim”. However, Dr Hogan dissented from this conclusion.
Before the Oireachtas should do anything about it, however, the review group suggested waiting to see whether any change in the jurisprudence would emerge.
Such a change may emerge at the end of the case opening in the Supreme Court today. It is an appeal from a High Court judgment in March 2007, where Mr Justice Charleton decided that fingerprints taken following an arrest which had been challenged by the defence were admissible.
The case concerned a young man, John Cash, who was arrested and accused of burglary in Ballyfermot, Dublin.
Fingerprints had been taken at the scene of the burglary where a window had been broken. Gardaí found they matched prints held in the Garda Technical Bureau, and this formed the basis for his arrest. He was fingerprinted, and these were found to match those taken from the scene of the burglary.
His lawyers questioned whether he had been lawfully arrested as there was an issue as to whether the prints held by the Garda Technical Bureau had been legally kept. If they had not then gardaí had no legal basis on which to arrest him, the arrest would have been illegal, and the fingerprints then taken would have been illegally obtained, the defence argued. The District Court judge asked the High Court for guidance on the matter.
Giving his ruling, Mr Peter Charleton said: “A suspicion which gives rise to reasonable cause for arrest does not have to be justified on the basis that every element of it arose solely on the basis of evidence that was properly obtained.
“Any system of the exclusion of improperly obtained evidence must be implemented on the basis of a balancing of interests. The two most fundamental competing interests, in that regard, are those of society and the accused. I would also place the rights of the victim in the balance.”
In summarising the arguments for the strict exclusionary rule, the Balance in the Criminal Law Review Group said: “Any relaxation of the rule would encourage sloppy or substandard police practices, and, indeed, any new provision that evidence would not automatically be inadmissible if the contravention was ‘bona fide’ would put a premium on ignorance.”
These arguments are now to be rehearsed in the Supreme Court, where the fact that a seven-judge court is sitting testifies to the importance of this case.