Supreme Court refuses to extend rule on evidence

A SEVEN-judge Supreme Court has refused an application to effectively extend to certain police procedures the “exclusionary rule” on evidence which states that evidence obtained in breach of a constitutional right is inadmissible in criminal trials.

Lawyers for a young man facing burglary charges had sought to extend the exclusionary rule to put an onus on the prosecution to prove fingerprints, not produced in evidence at his trial before the District Court but which grounded the Garda suspicion which led to his arrest, were lawfully obtained.

The man involved was arrested in September 2003 on suspicion of burglary.

His lawyers argued the sole basis for the suspicion grounding the arrest was a match between fingerprints (referred to as prints 2) taken at the alleged burglary scene and fingerprints of the defendant taken on March 31st 2002, when he was aged 15, (prints 1), and retained by gardaí.

It was argued prints 1 were taken and retained unlawfully, should have been destroyed under the law and therefore his arrest related to those prints was unlawful and unconstitutional.

During his detention in 2003, another set of fingerprints (prints 3) was taken which were adduced in evidence at his trial.

It was claimed these prints 3 should have been excluded on the basis he was unlawfully arrested and were obtained in a conscious violation of his rights under the Constitution and the European Convention on Human Rights.

The law requires fingerprints not taken on consent must be destroyed after six months if there is no prosecution. It was alleged the 2002 prints were taken on consent but no evidence was given as to the circumstances of the taking of those prints.

In his 2007 High Court decision, in what is known as the Cash case, this being the surname of the defendant, Mr Justice Peter Charleton ruled that a balancing exercise had to be applied when considering issues related to the admissibility of evidence. The interests of society and the victim must be considered as well as those of the accused and, applying those principles, he ruled prints 3 were admissible as evidence against the defendant.

Giving a judgment yesterday with which five of the other Supreme Court judges agreed, Mr Justice Nial Fennelly said the lawfulness of an arrest and the admissibility of evidence at trial are different matters which will normally be considered in distinct contexts.

Infringement of any of the basic rules regarding the legality of an arrest could give rise to a challenge to the lawfulness of detention, he said.

In this case, the defendant had not established there was an onus on the prosecution to establish the lawful provenance of material relied on by the gardaí, essentially his fingerprints, or that such material was obtained without a breach of a constitutional right to form reasonable cause justifying an arrest.

On that basis, the court dismissed the defendant’s appeal and upheld the High Court finding that prints 3 were admissible.

In a separate judgment, Mr Justice Adrian Hardiman said there was no adequate evidential material before the Supreme Court to answer the legal issues arising from the case which had been referred by the District Court judge dealing with the case.

It was for the District Court to consider, on the basis of evidence put before it, whether a prima facie case was made out against the defendant he said.

If the judge considered there was such a case, the defence must be permitted go into evidence, he said.

In those circumstances, Mr Justice Hardiman added, it was unnecessary to consider the DPP’s argument that the so-called exclusionary rule of evidence should be reviewed. Under the exclusionary rule, the courts refuse to allow evidence be admitted if it was obtained in circumstances involving a breach of a defendant’s constitutional right, irrespective whether that right was breached by mistake.

The exclusionary rule has effectively been applied since a Supreme Court judgment in 1990 (the Kenny case) but the DPP had claimed it has “no place in a modern criminal justice system”. That matter does not now arise in light of the Supreme Court’s decision there was no breach of the defendant’s constitutional rights arising from his arrest.