The Exclusionary Rule soon to be before the Supreme Court
The case of DPP v Cash is listed for hearing in the Supreme Court on Monday November 16th 2009. This case may have major implications for the criminal justice process, policing in Ireland and the protection of suspect rights. The case is likely to allow for an exploration of the Irish exclusionary rule in relation to improperly obtained evidence. This rule, first established in People (AG) v O’Brien  I.R. 142 and later modified in People (DPP) v Kenny  2 I.R. 110;  I.L.R.M. 569, has come in for much criticism in recent times and many see the Cash case as the perfect opportunity for the Supreme Court to address the strict manner in which the rule operates in the context of unconstitutionally obtained evidence.
In O’Brien, a dichotomy was established between evidence obtained in breach of legal rights only and evidence obtained in breach of constitutional rights. In relation to the former, a trial judge holds a discretion to admit or exclude the evidence based on an assessment of the totality of the circumstances, including the nature and extent of the illegality, whether it was based on an ad hoc decision or settled policy, whether it was intentional or unintentional and whether the public interest would be best served by the admission or the exclusion of the relevant evidence.
However, the trial judge has no discretion in relation to the exclusion of unconstitutionally obtained evidence. Once it is shown that there has been a breach of constitutional rights, and there is a causal link between such breach and the impugned evidence, the evidence becomes automatically inadmissible. The only circumstances in which unconstitutionally obtained evidence might be admitted is where there are so-called “extraordinary excusing circumstances” in place which justify its admission, such as the need to rescue a victim in peril or to prevent the imminent destruction of vital evidence.
In O’Brien, the exclusionary rule was said to operate where there had been a “deliberate and conscious” breach of constitutional rights. The courts grappled in a number of cases with this concept of “deliberate and conscious” breach and whether or not it required that gardaí knowingly breached rights in order for evidence to thereafter be excluded. Ultimately, the matter was clarified in Kenny where it was decided that the sole rationale for the exclusion of unconstitutionally obtained evidence in Ireland is the protection of a suspect’s constitutional rights. The Supreme Court in that case expressly rejected any rationale of deterrence, such as that which operates in the United States, which would necessitate exclusion only where the police knowingly breached constitutional rights. The rule was restated in Kenny without the confusing terminology of “deliberate and conscious” breach. In Kenny, Finlay C.J. stated the rule in the following terms:
… [E]vidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in [the court’s] discretion.
 2 I.R. 110, at 134;  I.L.R.M. 569, at 579
Resultantly, evidence is excluded at trial in Ireland where it has been obtained in breach of the constitutional rights of the accused and the actions of the gardaí at the relevant time cannot be said to have been accidental or unintentional. In Kenny, where the gardaí had executed a search warrant erroneously thinking that it had been lawfully issued, the evidence obtained ought to have been excluded as the warrant in fact had been issued by a Peace Commissioner in a manner which did not comply with the relevant legislation. So, although the gardaí genuinely believed that they had done everything necessary to obtain a valid search warrant, the evidence was inadmissible. Their actions, in entering the dwelling of the accused could not be said to have been unintentional or accidental (i.e. they did not sleepwalk or fall into the dwelling).
In setting the bar for the exclusion of evidence at this level, Finlay CJ in Kenny acknowledged that the high protectionist stance adopted could create problems in criminal trials given its propensity to exclude from evidence items of immense probative value. However, he was of the opinion that:
[T]he detection of crime and the conviction of guilty persons, no matter how important they may be to the ordering of society, cannot … outweigh the unambiguously expressed constitutional obligation ‘as far as practicable to defend and vindicate the personal rights of the citizen’.
 2 I.R. 110, at 134;  I.L.R.M. 569, at 579
The rule as set out in Kenny has been criticised on a number of occasions and was particularly called into question by the majority of the Balance in the Criminal Law Review Group in their 2007 Report. This Group advocated a change to the rule whereby a trial court would have a discretion to admit unconstitutionally obtained evidence or not, having regard to the totality of the circumstances with particular regard to the rights of the victim.
Criticism of the current rule was also apparent in the High Court judgment of Charleton J in the Cash case  IEHC 108, which, as mentioned, is soon to come on for hearing before the Supreme Court.
The Cash case involves the use of fingerprint evidence in the charging and conviction of Mr. Cash in relation to a burglary. Fingerprints were found at the scene of a burglary and when these prints were put through a database held in the Garda Technical Bureau a match was found with the fingerprints of Mr. Cash, who had been fingerprinted in relation a different offence on another occasion. On foot of this finding, the gardaí arrested Mr. Cash and he was requested at this point to provide another set of fingerprints, which he did voluntarily. These matched the prints held in the Garda Technical Bureau and the prints found at the scene of the crime.
It was unclear whether the first set of prints, those taken on an earlier occasion and held in the Garda Technical Bureau, had been obtained voluntarily from the accused or if s.6 of the Criminal Justice Act 1984 had been invoked at that time. If the fingerprints had been taken under the statutory regime, they ought to have been destroyed after six months given that no prosecution had occurred (under s.8 of the 1984 Act, as amended by s.13 of the Criminal Justice Act 2006). However, they had not been destroyed and were still on the garda database, allowing for the link to be made between the burglary and Mr. Cash. The gardaí at trial refused to comment on the manner in which this first set of prints had been obtained and the defence alleged that the gardaí had failed to discharge the burden of proof of their legality and that, accordingly, evidence of those prints and the causally-linked evidence of the second set of prints ought to be excluded.
Charleton J, considering this dilemma in the High Court, deemed himself bound by the ruling in Kenny but clearly expressed a distaste for that rule. He was of the opinion that
[a] rule which remorselessly excludes evidence obtained through an illegality occurring by a mistake does not commend itself to the proper ordering of society which is the purpose of the criminal law.
 IEHC 108, per Charleton J. at para.65
Much like the majority of the Balance in the Criminal Law Review Group, Charleton J. suggested that the decision whether or not to exclude evidence at trial should be based on a balancing of the interests of society as against the interests of the accused, taking into account the rights of the victim as well. On the facts of Cash, Charleton J. dismissed the appeal against conviction holding that
evidence resulting from a detention based upon a suspicion that cannot be proved as being founded entirely upon evidence lawfully obtained is not, for that reason, made unlawful
[i]f a judge is satisfied that evidence has been obtained lawfully, the decision in Kenny’s case does not apply and there is no judicial basis for the exclusion of evidence on the ground of the mistaken infringement of any constitutional right.
 IEHC 108, per Charleton J. at para. 68
The Supreme Court will now have the opportunity to re-examine this decision and it is likely in this context to re-examine the current incarnation of the exclusionary rule in Irish law.
While many see the exclusionary rule as a hindrance to the conviction of offenders and as an affront to victims’ rights, there is a value in retaining the exclusionary rule in its current form. The Chairman of the Balance in the Criminal Law Review Group, Dr. Gerard Hogan S.C., dissented from the view of the majority in relation to reform of the exclusionary rule. He stated that
Our society has committed itself to abiding by the rule of law and to respect and vindicate the fundamental freedoms enshrined in the Constitution. It behoves us to take these rights and freedoms seriously and if the occasional exclusion of otherwise relevant evidence is the price of respecting these constitutional rights, then that is a price society should be prepared to pay in the interests of upholding the values solemnly enshrined in our highest law …
Final Report of the Balance in the Criminal Law Review Group March 15, 2007, pp.287–88
Furthermore, it should be noted that in the past number of years there has been much curtailment of the rights of suspects within the criminal process, both in the pre-trial investigative stage and at trial. The existence of a strict exclusionary rule might be thought to compensate to some degree for such intrusions on previously protected suspect rights. To some extent it can be seen as a last refuge of “due process” in a swell of recent “crime control” rights-limiting enactments. Since the decision in Kenny, for example, we have seen extended detention periods (e.g. s.2 of the Criminal Justice (Drug Trafficking) Act 1996 and s.50 of the Criminal Justice Act 2007), very broad intrusions on the right to silence (e.g. s.19A of the Criminal Justice Act 1984 as inserted by s.30 of the Criminal Justice Act 2007), the curtailment of the right to bail (by virtue of the constitutional referendum and the Bail Act 1997), an increase in reliance on opinion evidence from members of the gardaí at trial (e.g. s.7 of the Criminal Justice (Amendment) Act 2009), alterations to the rule against hearsay in relation to witness statements (under s.16 of the Criminal Justice Act 2006) and so on. These changes have occurred incrementally, however, their overall effect has been to shift the Irish criminal process away from its traditional due process foundations into the sphere of crime control, where a conviction at all costs is the main concern. The exclusionary rule at least maintains some level of protection for suspects and their constitutional rights.
Moreover, while there may be one or two causes célèbres, there is no major raft of evidence to suggest that a great many factually guilty suspects are escaping conviction in the Irish courts due to the operation of the exclusionary rule. And while one clearly understands the feelings of injustice which victims in individual cases feel when a prosecution collapses as a result of the exclusion of evidence, it is not necessarily true that an alteration to the rule would enhance victims’ rights. Victims’ rights and the rights of suspects are not necessarily at odds with one another; a reduction in the protection of suspect rights does not necessarily equate with a victory for victims’ rights. I would contend, in fact, that the protectionist incarnation of the Irish exclusionary rule is an important safeguard for all the citizens of the state, given that any one of us could find ourselves under suspicion at any time, subject to arrest, interrogation, searches of our private dwellings and so on.
As noted above, the Irish exclusionary rule does allow for an exception whereby unconstitutionally obtained evidence can be admitted if there are extraordinary excusing circumstances in existence which justify such admission, however, this exception has not been widely used by the courts. In fact there is very little jurisprudence on the matter. In the seminal case of O’Brien, Walsh J. gave three examples of possible extraordinary excusing circumstances: the imminent destruction of vital evidence; the need to rescue a victim in peril; or a search without warrant which was incidental to and contemporaneous with a lawful arrest. This is not an exhaustive list; however the courts have not expanded the list in any way. It is suggested that rather than entirely overhauling the current incarnation of the exclusionary rule the courts could, in appropriate, exceptional cases, lessen any overly harsh or unjust effects which the operation of the rule might be thought to create by employing the “extraordinary excusing circumstances” exception. This ought not to be allowed to undermine the general protectionist rationale of the rule, however it might be usefully employed to smooth any jagged edges created by the operation of the rule in appropriate cases. Allowing for such minor exceptions would be much more favourable than altering the entire basis and application of the exclusionary rule.
It will be most interesting to see what view the Supreme Court takes on this matter. The decision will clearly be of huge importance in Ireland, but this issue also has something of a European dimension given the imminent introduction of the European Evidence Warrant (EEW). Questions will surely arise under the EEW procedure as to whether or not evidence lawfully obtained in one EU member state which does not comply with the legal or constitutional requirements of another member state can be admitted as evidence in the trial of an accused in the latter member state. This is a discussion for another day, but it is clear that there is a lot at stake in the Supreme Court consideration of DPP v Cash.
Postscript: The Irish Criminal Law Journal recently published an article of mine on the Irish exclusionary rule. Anyone who might be interested in reading it can access the article here.