Reasonable Suspicion for Arrest and Evidence at Trial: Supreme Court Excludes Consideration of Exclusionary Rule

Yesterday, the Irish Supreme Court issued its judgment in the much anticipated case of DPP (Walsh) v Cash. The 7-judge court neatly side-stepped any indepth examination or reconsideration of the exclusionary rule, which it was thought that this case might produce. Although defence counsel sought to rely on that rule, the Supreme Court held that it was inapplicable on the facts and focused instead on the distinction between material which is required to ground a legal arrest and material which is presented as evidence at trial.

To briefly recap on the facts of this case, which was previously discussed on this blog here: the appellant, John Cash, was charged in relation to a burglary which occurred in July 2003 (at which time he was a minor).  Fingerprints had been taken at the scene of the burglary (referred to in the Supreme Court judgment as “Prints 2”) and these were found to match fingerprints reviously taken from Mr. Cash which were held in the Garda Technical Bureau (“Prints 1”). On the basis of this match, Mr. Cash was arrested and he thereafter consented to provide a new set of fingerprints (“Prints 3”). The prosecution had been unable to clearly state the legal position of Prints 1; whether they had been taken with consent or otherwise and whether or not they ought to have been destroyed following the passage of some time and the fact that no proceedings had been instituted.

One question which had originally been included in the case stated from the District Court judge in this case centred on the legality of gardaí obtaining fingerprints by consent, rather than invoking the statutory regime for the taking of same which exists under the Criminal Justice Act, 1984. The Supreme Court held that this question was no longer in issue, but they did point to the case of DPP v Boyce wherein it was held that the two regimes, voluntary and statutory, operate parallel to one another in relation to the taking of bodily samples.

Fennelly J., providing the majority judgment of the Supreme Court suggested that the main issue for consideration in the Cash case was whether

the absolute exclusionary rule laid down in Kenny should be extended to cover facts, not being offered as part of the evidence at a criminal trial, but giving rise to the suspicion which led to the arrest.

This absolute exclusionary rule, discussed earlier here, insists that evidence obtained in breach of an individual’s constitutional rights cannot be admitted at trial, unless there are extraordinary excusing circumstances in place which justify its admission. Fennelly J. held that this rule is only relevant to the exclusion of evidence proferred at a criminal trial and is not concerned with

the lawful provenance of evidence used to ground a suspicion.

He suggested that the appellant was seeking to extend this rule beyond its correct boundaries and that doing so would

blur the distinction between the arrest and the trial.

The issue then, more so, was related to the lawfulness of the accused’s arrest. Fennelly J.’s judgment thus went on to examine the requirements of a lawful arrest and noted that

The courts have always been astute to control the exercise of powers of arrest, to ensure that they are lawfully used and that they are not abused.

Quoting from the High Court decision of Charleton J. in Cash, Fennelly J.  observed that it has never been held that

what would found a reasonable suspicion in law, requires to be based on the kind of evidence that would be admissible under the rules of evidence during the hearing of a criminal trial.

Fennelly J. stated that

The lawfulness of an arrest and the admissibility of evidence at trial are different matters which will normally be considered in distinct contexts

and held that the appellant had not established that an onus rests on the prosecution to establish the lawfulness of material relied upon by a member of the Garda Síochána or that such material was obtained without breach of a constitutional right to form reasonable suspicion justifying an arrest. Thus the appeal was dismissed.

It is interesting that the Supreme Court did not decide to comment in this case on the operation of the exclusionary rule in general. Since the report of the Balance in the Criminal Law Review Group there has been much debate on the continued existence of that rule in its current form, and suggestions for the manner in which it might be altered. It was thought that this case presented the Supreme Court with an opportunity to renew or review its conception of the exclusionary rule. The Court did not do so. Whether this is to be taken as an endorsement of the exclusionary rule and the manner in which it currently operates is unclear. Perhaps it is merely the case that the Court did not see it as being applicable on the facts. However, it is possible to suggest that had the Court been minded to do so it could have examined the rule in some detail, as had Charleton J. in the High Court in this case.

Moreover, while it is correct to suggest that evidence which might ground an arrest would not always be acceptable under the evidentiary rules of the courts, it may also be suggested that there is a distinction between unlawfully or unconstitutionally obtained evidence and evidence lawfully obtained which would be excluded at trial for other reasons. One example of the sort of evidence which might ground arrest but would not be admissible in evidence at trial, as outlined by Charleton J. in the High Court, is hearsay evidence. The rationales for the exclusion of hearsay evidence at trial centre on the reliability of such evidence and the dangers inherent in not being able to adequately test that evidence in the courtroom. However, the rationale for the exclusion of unconstitutionally obtained evidence from trials in Ireland is based on the protection of constitutional rights. This was noted by Fennelly J. in the Supreme Court in Cash and he noted that in the DPP (People) v Kenny [1990] 2 I.R. 110; [1990] I.L.R.M. 569 Finlay CJ, weighing up various options, sought to provide a positive encouragement to those in authority within the criminal process to consider in detail the constitutional rights of citizens and the

effect of their powers of arrest, detention, search and questioning in relation to such rights.

It seems arguable at least that there is a distinction between certain types of evidence which might ground an arrest and that unconstitutionally obtained evidence ought not to be allowed in this context. If Prints 1 in this case ought to have been destroyed then their retention could be seen as breaching the appellant’s right to privacy (both under the Constitution and the European Convention on Human Rights – as per the recent case of S and Marper v UK ) and their use to ground an arrest could be seen as a breach of the right to liberty. Surely these matters are of interest to the trial court, in order to ensure the protection of suspect’s rights in the pre-trial period of the criminal process.

The Court held that there is no onus on the prosecution to establish the lawful provenance of material relied upon by the gardaí to form reasonable cause justifying an arrest. Where in this finding is the “positive encouragement” sought by the exclusionary rule in Kenny? While the Court may not have reviewed the general application of the rule, it appears to have set pre-arrest investigative methods beyond its reach.