The wrong move on evidence

Supreme Court ruling

 

The Supreme Court’s decision, by a narrow majority, to effectively amend the rule on the admissibility of evidence in criminal trials will be welcomed by many, particularly the Garda Síochána and those who prosecute. The rule meant that evidence which was significant in pointing to the guilt of an accused could not go before a jury if it was obtained in circumstances which breached the person’s constitutional rights. Examples of such evidence include admissions given to gardaí when the suspect was in custody, but there was a flaw in the arrest warrant; and evidence of child pornography on a computer seized in a search where the search warrant was flawed.

The majority of the Supreme Court has decided that if the denial of the accused person’s constitutional rights in obtaining such evidence was “inadvertent”, the exclusion should not apply. Mr Justice Donal O’Donnell said that excluding compelling evidence on the basis of a “trivial, technical breach” of rights was “plainly wrong”. However, this new rule begs the question as to what might be “inadvertent”, “trivial” or “technical”. It is easy to envisage the lengthy arguments during criminal trials that will be devoted to this question in the light of this judgment. Mr Justice Liam McKechnie, one of the minority of three who dissented and wanted to maintain the previous rule, said he considered the new rule proposed by the majority to be largely unworkable, feared it would result in uncertainty and add to the length and complexity of trials.

Mr Justice Adrian Hardiman was even more trenchant, saying he was horrified that it was proposed to make “inadvertence” a lawful excuse for State infringement of individuals’ constitutional rights, adding that the experience of the courts over the past 40 years suggested that “inadvertence” would become an excuse to bring into evidence the result of such infringements.

He bolstered his argument by reference to various tribunals of inquiry into Garda misconduct, including ongoing inquiries into recent developments. These inquiries, which have shown repeatedly that certain members of the Garda Síochaná have been prepared to bend or ignore the law to obtain convictions against people, some of whom were innocent, are the best argument in favour of the position of the Supreme Court minority.

The new Garda Commissioner has pledged to institute a new regime in the force of respect for citizens’ rights, and the curriculum in Templemore Garda College has been updated to reflect that. Embedding the principles of the Kenny judgment in that training would have gone a long way towards achieving that goal, but the very high standards it required have now been diluted. This cannot but send a message to those investigating crime that less rigour in adhering to constitutional rights will be required.

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