THE SUPREME COURT
Criminal Procedure Act 2010, S.23
The People at the Suit of the Director of Public Prosecutions
RespondentJudgment delivered on the 15th of April 2015, by O’Donnell J.
1. Ralph Waldo Emerson in his essay, “Compensation” (Essays: First Series; 1841), observed that eventually every secret is told, every crime punished, every virtue rewarded, and every wrong redressed:
2. This may be the comforting classic template to which the detective story must conform, or at least refer, but it does not describe a modern criminal trial. In the criminal trial in this and other jurisdictions, an important part of the focus is increasingly on the exclusion of parts of the story, recalling the spoken word and wiping out the foot track. There are good reasons for this but, the function of any trial, civil or criminal, is to determine contested matters to a requisite standard of proof. In simple terms it is to determine, as far as humanly possible, whether on the balance of probabilities or beyond reasonable doubt, what did or did not happen. As a matter of both logic and pragmatism, the more information available about the event, the more likely it will be that an accurate determination can be made.
“Commit a crime, and the earth is made of glass. Commit a crime, and it seems as if a coat of snow fell on the ground, such as reveals in the woods the track of every partridge and fox and squirrel and mole. You cannot recall the spoken word, you cannot wipe out the foot-track, you cannot draw up the ladder, so as to leave no inlet or clue.”
3. Traditional rules of evidence did lead to the exclusion of some material, that after all is part of the function of the law of evidence. It determines what material, may and may not be presented in court. But that exclusion of evidence was based on views derived from experience, however contested and contestable , as to the reliability of the evidence and its capacity to assist in the determination of the controversy by dispassionate analysis of all available material , which was the hallmark of a fair trial. Increasingly in the latter part of the 20th century, in particular, courts in this and other jurisdictions have had to address the question as to the circumstances, if any, in which evidence, itself reliable, cogent and perhaps compelling, should nevertheless be excluded from consideration by a trial court, not because of what that evidence proves or does not prove, but rather because of how it has been obtained. This shift also involves a subtle change of focus away from an inquiry as to what it is alleged the accused did or did not do, to how the authorities behaved in investigating the alleged offence. There are good reasons for this modern focus on how evidence is gathered as well as on what it shows, but it is necessary to recognise that it raises different issues, and involves different value judgments to those which arise when the focus is merely on the question of reliability.
4. It should be recognised at the outset that the exclusion of evidence of undoubted cogency extracts a significant price in terms of the capacity of the court to perform its primary function, and accordingly in terms of confidence in, and respect for, the legal system. Such a course must always be justified by considerations sufficient to pay that price. It is unavoidable that persons of experience and goodwill may differ as to the precise point at which the balance should tip, and experience may lead people to change their views. But it is essential, at least in my view, that courts do not seek to resolve this difficult issue as a contest between slogans, or by creating and then rejecting exaggerated and unrealistic arguments. It is important to identify the issues carefully, to seek to narrow, as far as possible, the area for disagreement and finally, where differences are unavoidable, to make plain the reasoning leading to the particular conclusion.
5. In general it may be said that the area of illegally, including unconstitutionally, obtained evidence arises most naturally either where evidence is sought to be introduced consequent upon the arrest or detention of an individual, or, as here, consequent on the search of premises authorised by warrant or other authority. While these areas are closely related, and indeed the present case is something of a hybrid case in that the evidence sought to be excluded was obtained consequent on an arrest itself considered invalid as a result of being carried out on premises to which entry was obtained by the gardaí on foot of an invalid warrant, it is in my view undesirable to treat them as completely interchangeable. Accordingly, I consider it appropriate to deal only with the area of search warrants and while recognising that the principles established here are applicable to questions of evidence consequent upon arrest or detention, I would nevertheless prefer to withhold definitive determination of that issue until an appropriate case reaches this Court which would permit the Court to consider the argument in a precise factual context, and moreover, perhaps also with the benefit of experience developed in the light of this decision. There is much wisdom in the observation of Kingsmill Moore J. in The People (Attorney General) v. O’Brien  I.R. 142 (“O’Brien”) at p. 161, when he cautioned that:
6. When in O’Brien garda officers sought and obtained access to 118 Captain’s Road, Crumlin, Dublin to search for stolen property, pursuant to a search warrant issued under s.54 of the Dublin Police Act 1842, but which described the premises as “118 Cashel Road, Crumlin”, they can hardly have anticipated the long running legal debate which would ensue. Nevertheless it has been suggested that the law on unconstitutionally obtained evidence is a matter of more academic dispute than practical significance, and at the hearing of this appeal, it was questioned whether the decision in The People (Director of Public Prosecutions) v. Kenny  2 I.R. 110 (“Kenny”) had, in fact, any real impact. I accept that impressions may vary, but I have little doubt that the issue raised in this case is of real practical importance. It is useful, for the purposes of this case, to focus on real examples, not only to illustrate the recurrence of the legal issue, but also to place in a factual context the issue that is to be determined in this case:
“It would not be in accordance with our system of jurisprudence for this Court to attempt to lay down rules to govern future hypothetical cases.”
The decision in Damache v. The Director of Public Prosecutions & Ors  2 I.R. 266 (“Damache”) which gave rise to the exclusion of the evidence in this case, has figured in a number of cases at appellate level where appellants have sought, some successfully, to obtain the benefit of that case which had been decided after their trials but before their appeals were heard : see The Director of Public Prosecutions v. Patchell  IECCA 6, The Director of Public Prosecutions v. O’Connor  IECCA 4, The Director of Public Prosecutions v. Cunningham  IECCA 64, The Director of Public Prosecutions v. Bolger  IECCA 6, The Director of Public Prosecutions v. Hughes  IECCA 69, The Director of Public Prosecutions v. Timmons  IECCA 86 and The Director of Public Prosecutions v. Kavanagh & Ors  IECCA 65. Furthermore, in two recent cases which have come before this Court, one of the incidental features has been that evidence was excluded consequent under the decision in Damache, applying the decision in Kenny and without that issue being the subject of any argument or appeal: see The Director of Public Prosecutions v. Connolly  IESC 28 and Byrne and Byrne v. The Director of Public Prosecutions. I consider that it is probable that evidence is routinely excluded under Kenny in this way without becoming the subject of reported decisions.
• A warrant was sought for 118 Captain’s Road. Inadvertently the warrant was issued in respect of 118 Cashel Road and existing premises. The error was not that of the gardaí. The warrant was executed and evidence obtained, as a result of which the occupiers of the premises were convicted.
• Members of the gardaí sought and obtained a search warrant from a Peace Commissioner pursuant to s.26 of the Misuse of Drugs Act 1977 which permits the issuance of such warrants if a Peace Commissioner is satisfied based on the information on oath from a member of the gardaí that there is reasonable ground for suspecting that a person is in possession, on any premises, of a controlled drug. The warrant which was the then standard form recorded that the Peace Commissioner “being satisfied on the information on oath of Garda …” issued the warrant. The warrant was executed and drugs found. Between the date of the search and the trial of the accused, the Supreme Court decided, in Byrne v. Grey & Ors  I.R. 31, that it must be demonstrated that the Peace Commissioner had inquired into the basis of the suspicion and thus exercised his judicial discretion to grant or withhold a warrant.
• Gardaí entered on the premises then being searched pursuant to a search warrant issued by a senior garda officer pursuant to s.29 of the Offences Against the State Act 1939. Section 6 of the Criminal Law Act 1997, in addition, permits a garda, for the purpose of arresting a person, to enter premises and search those premises without warrant. The search found items connected to a robbery, the accused was arrested and made admissions. Between the search and the trial, the Supreme Court holds in separate and unconnected proceedings that s. 29 of the Offences Against the State Act 1939 is unconstitutional. It is argued that the evidence obtained should be excluded.
• A warrant is issued on the afternoon of, for example, the 20th of April. Under the relevant legislation it is to be executed within seven days. It is executed on the morning of the 27th of April and evidence found. A court holds that the entirety of the day of issuance (including the portion prior to the issuance of the warrant) to is to be included in the seven day period, and accordingly that the warrant expired on the 26th of April. It is argued that the evidence must be excluded.
• Under the same legislation a warrant is issued on, for example, the 26th of June, and is executed within seven days and evidence obtained. The accused is arrested at the scene and admissions made. However, the warrant is misdated on its face and contains a date of the 26th of May. The search is not carried out within seven days from the date on the warrant, albeit the search is carried out within seven days of the actual date of issuance. The warrant is held to be invalid. It is argued that the evidence obtained during the search must be excluded. If the warrant is invalid, the gardaí were consequently, technically, trespassers and the arrest was wrongful and, it is argued, the admissions should also be excluded.
• A woman is attacked and raped in a public area. Evidence is obtained at the scene. A suspect is identified from CCTV footage. A garda sergeant immediately seeks and obtains a search warrant for the premises under s.10(1) of the Criminal Justice (Miscellaneous Provisions) Act 1997, as substituted by s.6(1)(a) of the Criminal Justice Act 2006. Evidence is obtained which on forensic analysis, links the accused to the crime. The warrant which was issued and executed follows the wording of the Criminal Justice (Miscellaneous Provisions) Act 1997 in recording that the District Justice was satisfied as a result of “hearing evidence on oath” rather than the words of the Criminal Justice Act 2006 providing for the issuance of the warrant upon “information on oath”. It is argued that the warrant is invalid. It is accepted that if invalidated on this basis, the evidence must be excluded.
• A garda based in a Dublin garda station obtains evidence of drugs being supplied from a premises in an adjacent county. He attends before the District Justice for that area who has jurisdiction to and who issues a warrant for the premises. Erroneously, the form of the warrant bears the heading “Dublin Metropolitan District” and authorises a search of the named premises in the adjacent county described however as “within the said District” i.e. the Dublin Metropolitan District. Once again it is argued the warrant is invalid and the evidence must be excluded
7. The examples outlined above are drawn from decided cases. They do not purport to be a comprehensive catalogue of recent cases in which Kenny has arisen and it is possible, without much effort, to imagine other cases. Some of the cases from other jurisdictions suggest other examples. In all but one of the cases set out above which followed O’Brien, the evidence obtained was excluded. This random survey of decided cases shows in my view, that this is an issue of real importance. When one considers that almost all decisions of exclusion of evidence occur at trial level, and that until relatively recently it was not possible to appeal from an order excluding evidence, then it seems probable that the impact of the Kenny decision at trial level has been considerable. It could hardly be otherwise. Cases in which possession is an ingredient of the offence, whether it be of drugs or child pornography, firearms or explosives, will regularly and necessarily be dependent on evidence obtained after a search. Kenny offers the opportunity to seek to have that evidence automatically excluded. It would indeed be surprising therefore if the point was not regularly deployed in criminal trials in the State. Furthermore, this case has involved a survey of the law of a number of jurisdictions where a similar question has arisen. The matter has been hotly debated both in judicial decisions and in extensive academic commentary. I think it unlikely that such debates and commentary would be generated if the matter was of no real or practical importance, and equally unlikely that Ireland would have a lower incidence of errors in the issuance or execution of search warrants than other comparable common law countries with similar systems.
8. Again, it has been argued that the absence of a proper evidence based assessment of the rule in Kenny should somehow preclude this Court from addressing the issue in this appeal. I do not understand how such evidence could have been adduced or to what end, since it could not be said to be relevant to any of the issues at the trial, or the limited issues contemplated as establishing jurisdiction for this statutory appeal. One of the distinctions between a legislature making laws, and a court making decisions, is that the legislature specifically makes laws of general application for a wide range of circumstances, whereas a court makes a decision in an individual case, albeit which on occasions will have wider implications for similar cases. That incidental law making function is indeed a reason why a court should be cautious about making sweeping generalisations which extend beyond the particular issues of the individual case. But the core function of a court is to decide the case before it, not make generalisations about other situations. Whatever law a court makes must emerge from the facts and exigencies of the individual case. I also observe in passing that in neither O’Brien nor in Kenny was any evidence based assessment proffered or considered for the rule each of those cases proposed. This in my view, is not surprising. The issue for this Court is after all not whether the exclusionary rule in Kenny is inconvenient at a practical level, but rather whether as a matter of constitutional law it is right. In order to determine that issue it is necessary to consider the specific issue which arises on the facts of this case.
9. The facts in this case are quite simple. The gardaí in Waterford were investigating three robberies which took place at a bookmaker’s premises in Waterford between late April and early May 2011. On the 10th of May 2011 a Detective Garda Burke and a Sergeant Donohue attended at premises where the accused lived. As a result of inquires he already carried out, Detective Garda Burke intended to arrest the accused for the offences. There was no issue but that the Detective Garda had reasonable grounds for arresting the accused, and any such arrest would have been valid if carried out in a public place. The gardaí also had a warrant issued under s.29 of the Offences Against the State Act 1939 (“the 1939 Act”) to search the premises. Again there is no issue but that the warrant was valid on its face and issued in accordance with the requirements of the section and the general law relating to such warrants. The gardaí showed the warrant to the accused’s sister, and they were admitted to the premises without objection. Detective Garda Burke went upstairs, found the accused in bed, told him to get dressed, and then arrested him. Detective Garda Burke considered that he had entered the premises at 10.30 and the arrest recorded 10.40. A search was carried out by other gardaí, and produced nothing of evidential value. While the search was taking place, the accused was taken to Waterford Garda Station. There, having been appropriately cautioned, he made a number of inculpatory statements. Again, the statements were made while detained in the garda station, in accordance with the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 and 2006 (S.I. No 119/1987 and S.I. No 641/2006), and after receiving legal advice. Those statements were such, that at the trial in the Circuit Court, counsel for the accused accepted that “certain admissions in the last three interviews could reasonably lead to the conviction of J.C., for the offence for which he is charged”.
10. Three days after the search and the arrest of Mr C., the High Court gave judgment in a constitutional challenge to the provisions of s.29 of the 1939 Act and the claim was rejected. However, on appeal to this Court, it was held that the section was unconstitutional (see Damache). By the time Mr C.’s case reached trial in Waterford Circuit Court, the decision of the Supreme Court was therefore the law. The prosecution accepted accordingly that any evidence obtained as a result of a search should be excluded but sought to argue that the admissions made in the garda station should still be admitted.
11. It was pointed out that the arrest was not dependent on the warrant, or any item obtained as a result of the search consequent on the warrant. The only relevance of the warrant was that it justified entry on to the premises where the arrest took place. The arrest could just as easily have taken place in a public street since there was evidence connecting the accused to the offence, and therefore reasonable grounds to justify it. Furthermore s.6(2) of the Criminal Law Act 1997 permits gardaí to lawfully enter premises without a warrant for the purposes of effecting an arrest and in doing so, may also search the premises. The prosecution sought to argue therefore that since the warrant was not necessary or essential to either enter the premises or to effect the arrest, (and indeed to carry out a search) the evidence should be admitted, notwithstanding the unconstitutionality of s.29 of the 1939 Act and therefore the consequent invalidity of the warrant issued under it.
12. It was argued on behalf of the accused that the search warrant had been the vehicle used to obtain entry and it was irrelevant that there might have been another unimpeachable legal source of the power to enter and to arrest. Since the section was unconstitutional, the warrant must be treated as invalid, even though issued prior to the decision of the Supreme Court. It was argued that the warrant could not authorise Detective Garda Burke’s presence on the premises and he was therefore acting as a trespasser; accordingly the arrest was invalid and, the statements made were made while in unlawful custody; the entry on to the premises, and the arrest, had been deliberate and conscious in the sense that each act was intentional, and that, therefore, they were a deliberate and conscious breach of his constitutional right to liberty, and his constitutional rights to inviolability of the dwelling home, and thus the court was obliged, applying Kenny, to exclude the evidence. The trial judge considered the matter carefully and accepted the arguments on behalf of the accused, and accordingly concluded that the evidence contained in the statement made in the garda station was inadmissible. The prosecution offered no further evidence and the trial judge directed the jury to enter a verdict of not guilty.
13. The Director of Public Prosecutions now seeks to appeal that decision to this Court under the provisions of s.23 of the Criminal Procedure Act 2010 (“the 2010 Act”). The purpose of the appeal is to invite this Court to overrule its decision in Kenny. The case has been extensively and ably argued. However, the Court directed of its own motion that since the matter involved appeal against an acquittal in a criminal trial, and is only the second case which this Court has had occasion to consider under the provisions of the 2010 Act, it was necessary to specifically address the question whether the statutory criteria under s.23 had been established, and in particular whether the Court could be satisfied that the provisions of s.23(14) had been established. Accordingly, a further hearing was directed on this specific issue.
14. This appeal was brought pursuant to s.23(3)(a) which provides that an appeal may lie only where a ruling has been made which “erroneously excluded compelling evidence”. Section 23(14) provides that such compelling evidence must be:
I am satisfied that there is before this Court enough evidence already upon which the Court can properly be satisfied that the statements ruled inadmissible came within the statutory term “compelling evidence”. In particular this follows from the proper acknowledgment of counsel for the accused at trial that the last three statements contained evidence which could “reasonably lead to the conviction of the accused”. Accordingly, I do not think it is necessary or desirable to address the question whether the position taken on behalf of the accused on this appeal, of not questioning compliance with s.23(14) and arguing the case on its legal merits, would itself mean that the Court should approach the case on the same basis, or whether, in any event, it would have been appropriate to accept evidence of either the Book of Evidence itself, or the individual statements sought to be advanced by the appellant, as late evidence on this issue.
(b) of significant probative value and;
(c) be such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.
15. Consideration of s.23(14) does not therefore give rise to any particular difficulty in this case. It is however apparent that it is a section which might be difficult to operate in other cases. There is of course a drafting symmetry in including in s.23 a requirement of compelling evidence, since that is the standard which the same Act applies when it is sought to reopen and retry an accused after acquittal on the basis that compelling evidence has emerged (s.8). However, there are significant differences between that jurisdiction to be exercised by a trial court as a preliminary to a trial, and the purely appellate jurisdiction created by s.23(14). (I would also hesitate to draw conclusions as to the object of s23 (14) from an analysis of section s 8-10, not least because such an approach was not argued for, and all these areas are novel and contentious and must be addressed in due course when or if an issue arises. Section 23(14) appears to make this Court a primary decision maker on questions of reliability, probative value and as to whether a jury might reasonably be satisfied beyond a reasonable doubt on such evidence. Furthermore, it is clear that in cases where it is necessary to consider the evidence excluded in conjunction with the other evidence, it is only evidence “adduced in the proceedings concerned” which can be considered. Thus in this case, where the relevant evidence is excluded at an early stage in the trial and in consequence the trial is terminated, the other evidence contained in the book of evidence would not have been adduced, and therefore might not be capable of being considered for the purposes of the jurisdiction under s.23. The trial court’s jurisdiction is only to hear and determine matters relevant to the issue before it, and it could not proceed to hear evidence solely for the purposes of s.23, nor could it make determinations as to reliability, probative value and likelihood of satisfying a jury, which are only relevant to the jurisdiction under s.23, a jurisdiction conferred on this Court (and now the Court of Appeal). A further question might arise if, in a particular case, the respondent to an appeal wished to contest the reliability of the excluded evidence. In such circumstances would this Court or the Court of Appeal have to conduct an inter partes hearing? Again this is not something which can be dealt with at the trial court stage since such determinations are not within the jurisdiction of the court of trial ,or relevant to any issue which that court has to try. Furthermore, it is undesirable, at the very least, that this Court should be invited, indeed required. to express views as to the compelling nature of evidence (even if it may amount in law to nothing more than the same decision a trial judge may be called upon to make at the close of the prosecution case) in a case where the respondent to the appeal may face a trial on that evidence. It is sensible that the Act should not be capable of being operated merely on the exclusion of evidence in a trial court, and that the procedure should only come in to play if at all, when it is clear that the relevant evidence is significant in the context of the trial, but it is clear that s.23(14) may create unintended procedural difficulties in bringing the issue of law before this Court, or the Court of Appeal. It is now necessary to turn to the issue of law arising on this appeal, and in doing so to consider the development of the law in this area.
Background to The People (Attorney General) v. O’Brien  I.R. 142
16. I consider it useful to consider the development of the rule of exclusion of unconstitutionally obtained evidence in some detail, since that process illustrates what was decided in Kenny, and what therefore is at issue in this case. When O’Brien arose, the common law rule on the admissibility of the legally obtained evidence was that stated with almost brutal simplicity in the judgment delivered only a short time earlier in Kuruma v. The Queen  A.C. 197 (“Kuruma”):
On the other hand, Scots Law had allowed the courts a discretion to exclude evidence obtained illegally. At the other end of the spectrum lay developing United States (“US”) federal jurisprudence commencing in Weeks v. United States 232 U.S. 383 (1914) (“Weeks”), that evidence obtained in breach of the Federal Constitution’s guarantee against unreasonable search and seizure was automatically excluded. However, most criminal law in the US is state law and not federal. Weeks in fact, applied only to a small amount of offences against federal law, and its general impact was therefore limited.
“In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships’ opinion it is plainly right in principle.” (p. 203)
17. However, in the period between the argument in O’Brien and the delivery of that decision by this Court, the US Supreme Court decided the landmark case of Mapp v. Ohio 367 U.S. 643 (1961) (“Mapp”). In that case the Supreme Court reversed the decision in Wolf v. Colorado 338 U.S. 25 (1949) (“Wolf”) and held that the exclusionary rule was applicable to the states on the basis that the guarantee found to be contained within the 5th Amendment protection against unreasonable search and seizures, was itself part of the liberty protected by the 14th Amendment to the Constitution, and thus applicable not just to the federal government and officials, but also was binding on state courts and officials. Mapp is discussed in the judgments delivered in O’ Brien. It appears that the reference to the US material was a product of the Supreme Court’s researches alone, since there is no reference to any US case in the argument of counsel. As it happened, Mapp turned out to be a controversial decision in US law marking the high point of jurisprudence of exclusion of evidence obtained on search and seizure. In due course it was qualified and then retreated from by subsequent Supreme Courts. However, at the time of the judgment in O’Brien, it was a fresh decision from a court to which the Irish courts increasingly looked for persuasive authority.
18. It becomes apparent from the decision in O’Brien, that in confronting the issue of illegally and unconstitutionally obtained evidence, there were at least three options: an almost absolute rule of admission of evidence as outlined in Kuruma (albeit that that the Attorney General disclaimed any argument that evidence obtained by methods offending against the essential dignity of the human person would be admissible); an intermediate position where the court would have discretion to exclude but was not obliged to do so, as appeared to be the position in Scots Law; and, at least in the case of evidence obtained in breach of a constitutional right, a rule of absolute exclusion, which appeared to have been recently adopted across the US in Mapp.
19. O’Brien produced impressively sophisticated judgments from both Kingsmill Moore J. (with whom Lavery and Budd JJ. agreed) and Walsh J. (with whom O’Dálaigh C.J. - who had become Chief Justice between the argument of the case and the delivery of the judgment – agreed). Since then much undergraduate and indeed professional time has been spent analysing the differences between these two important judgments. It will unfortunately be necessary to attempt that task once more. But concentration on the differences of language between the judgments of Kingsmill Moore J. and Walsh J., may distract attention from one important fact: the Court was unanimous as to the result. The appeal was dismissed, indeed dismissed after the hearing, with reasons to be given later. Whatever the differences in reasoning between the two judgments therefore, both must be read in the light of the result. Indeed, the outcome of the particular case appeared to pose no real difficulty for the court. Lavery J., who presided, put it most forcefully:
Indeed the Court of Criminal Appeal (Maguire C.J., McLoughlin and Teevan JJ.) had dismissed the appeal without requiring counsel for the attorney general to address the Court. The first of many warning lights generated by the decision in Kenny, is that if Kenny was correctly decided, it seems inescapable that the result in O’Brien, arrived at by every judge who considered the case, was necessarily wrong.
“I feel it necessary to say that in my opinion this is not a suitable case in which to consider the question serious question of the admissibility of evidence obtained by illegal means.
If a judge were to hold inadmissible the evidence in question in this case, or in any comparable case, his ruling would, in my opinion, be wrong to the point of absurdity and would bring the administration of the law in to well-deserved contempt.” (p. 148)
20. In the light of the subsequent discussion of the decision in O’Brien in Kenny, it is important to consider precisely what was at issue in the earlier case, and what was decided. It seems plain that counsel for the appellant relied on the fact that the search was of the dwelling, and was unauthorised and was therefore a breach of the constitutional rights of the occupier, and that therefore the evidence obtained ought to be excluded. Point 6 of the points certified by the Court of Criminal Appeal, and by definition therefore, a point of exceptional public importance on which it is in the public interest that an appeal should be brought to the Supreme Court, was:
21. The arguments of counsel for the appellant in the Supreme Court are recorded. While arguing for a rule of automatic absolute exclusion of illegally obtained evidence, or alternatively a rule which only permitted its admission if the illegality be condoned by reason of urgency or for some other good reason, counsel continued:
“That the main body of the evidence put forward against the applicants was obtained in direct violation of Article 40, section 5, of the Constitution in that the residence of applicants, namely, 118 Captain’s Road, Crumlin, Dublin, was forcibly entered otherwise than in accordance with law and that property taken from there and put in evidence to support the convictions.” (p. 163)
It seems clear therefore that the exclusion of evidence obtained in breach of the constitutional right was squarely in issue in the proceedings, and as we shall see, was clearly considered by both judges who delivered the extensive main judgments in that case.
“If the method of obtaining evidence employed contravenes a constitutional right it ought not to be admitted in any circumstances. Evidence not rendered absolutely inadmissible as a result of the method by which it was obtained might be admitted at the discretion of the trial judge in each case.” (pp. 146 – 147) (emphasis added)
22. In my view the difference between the judgments of Kingsmill Moore J. and Walsh J., particularly when read (as they must be) in the light of the conclusion to which they come in the case, illustrate differences of degree rather than fundamental principle. Perhaps the single point upon which there is most clear disagreement, was that Walsh J. was prepared to conclude that where evidence was obtained illegally, (but without any breach of constitutional right) there was no discretion to exclude it. He explained his reason for not adopting the Scots approach which had commended itself to Kingsmill Moore J. in a passage at page 167:
This statement is consistent with the same judge’s view, expressed in The People v. O’Kelly (1974) 108 ILTR 97 that the court had the right to every man’s evidence since it was the function of the court to administer justice, and in doing so to determine in any given case what had occurred.
“The Scottish rule would appear to be based on the idea that the Courts must always try to reconcile to important interests, namely, the interests of the citizen to be protected against illegal (as distinct from unconstitutional) invasions of his home or liberty and the interests of the State to secure the bringing of criminals to justice. It is regrettable that these may sometimes be competing interests but the primary purpose of the rules of evidence is to ensure a fair trial of the person accused, and subject to what I have already said with regard to the more recently developed concepts relating to self-incrimination wrongly induced, the rules of evidence have never in this country been deflected to being used as weapons by the Courts to deter police illegalities. Every Judge in our Courts is bound to uphold the laws and while he cannot condone or even ignore illegalities which come to his notice, his first duty is to determine the issue before him in accordance with law and not to be diverted from it or permit it to be wrongly decided for the sake of frustrating a police illegality, or drawing public attention to it.”
23. The majority judgment of Kingsmill Moore J. pointed out that some extreme positions had been canvassed. He rejected as revolting the concept that evidence obtained by personal violence would be received. On the other hand, he also rejected any absolute or near absolute rule of exclusion:
He then cited with approval the decisions of the Scottish Courts and in particular the judgment of the Lord Justice-General in Lawrie v. Muir (1950) J.C. 19:
“Such a rule would exclude evidence of a murder discovered by a man engaged in poaching; even, if confined to illegalities or irregularities committed by the police or State authorities, it might exclude vital evidence where but a slight and immaterial illegality was involved. So stated the principle is clearly too wide and would place unreasonable obstacles in the way of discovering and punishing criminal activities.” (p. 150)
24. At page 156 of the report, Kingsmill Moore J. reviewed the US authorities from Weeks to Wolf and the recently decided Mapp. He also had regard to the decision in Silverman v. United States 365 U.S. 505 (1961), Fahy .v Connecticut 375 U.S. 85 (1963), the well known dissenting judgment of Holmes J. in Olmstead v. United States 277 U.S. 438 (1928) (“Olmstead”) and the decision of the Supreme Court of Kentucky in Youman v. Commonwealth 189 Ky. 152 (1920). These cases, it should be said, are all cases involving the question of an asserted constitutional right and some of the judgments put the case for an absolute or near absolute exclusionary rule in very strong terms. It cannot be doubted therefore, in my view, that Kingsmill Moore J. was alive to the argument that where the illegality complained of amounted to a breach of the constitutional rights, different considerations should apply. Nevertheless, he rejected an absolute rule of exclusion just as he had rejected the absolute rule of inclusion outlined in Kuruma’s case. In relation to an absolute rule of exclusion he said:
“From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict - (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost.” (pp. 26)
Kingsmill Moore J. then set out a number of facts which he considered necessary to the exercise of that judgment. Applying those factors to the particular facts of O’Brien he found:
“The second answer would open up equal difficulties. The exclusionary rule laid down in Weeks v. United States was not accepted in many of the State courts. An absolute exclusionary rule prevents the admission of relevant and vital facts where unintentional or trivial illegalities have been committed in the course of ascertaining them. Fairness does not require such a rule and common sense rejects it.
Some intermediate solution must be found. As pointed out by the Lord Justice-General in Lawrie v. Muir and by Holmes J. in Olmstead's Case a choice has to be made between desirable ends which may be incompatible. It is desirable in the public interest that crime should be detected and punished. It is desirable that individuals should not be subjected to illegal or inquisitorial methods of investigation and that the State should not attempt to advance its ends by utilising the fruits of such methods. It appears to me that in every case a determination has to be made by the trial judge as to whether the public interest is best served by the admission or by the exclusion of evidence of facts ascertained as a result of, and by means of, illegal actions, and that the answer to the question depends on a consideration of all the circumstances.” (p. 159)
Accordingly he considered the evidence should be admitted.
“…no evidence of deliberate treachery, imposition, deceit or illegality; no policy to disregard the provisions of the Constitution or to conduct searches without a warrant; nothing except the existence of an unintentional and accidental illegality to set against the public interest of having crime detected and punished”. (p. 161)
25. At page 162 of the report, Kingsmill Moore J. turned to the judgment to be delivered by Walsh J. It will be necessary to address that judgment in greater detail, but for present purposes it is enough to say that it is clear that Walsh J did not favour a broad based discretion, but rather took a more hard edged approach. Thus, evidence obtained by illegal means was always admissible, subject possibly to the concession made by the Attorney General, but since such circumstances would almost always amount to a deliberate and conscious breach of constitutional rights, the evidence would be inadmissible on that basis. By contrast, evidence obtained in “deliberate conscious breach” of the constitutional rights of the accused person was “absolutely inadmissible” where “no extraordinary excusing circumstances exist”. Kingsmill Moore J. addressed this conclusion, and set out his view of it in a passage which it is necessary to set out in its entirety:
Kingsmill Moore J. then went on to express broad if cautious agreement that in the circumstances outlined, evidence should be excluded:
“Mr. Justice Walsh, in the judgment which he is about to deliver, is of opinion that where evidence has been obtained by the State or its agents as a result of a deliberate and conscious violation of the constitutional (as opposed to the common law) rights of an accused person it should be excluded save where there are “extraordinary excusing circumstances,” and mentions as such circumstances the need to prevent an imminent destruction of vital evidence or rescue of a person in peril, and the seizure of evidence obtained in the course of and incidental to a lawful arrest even though the premises on which the arrest is made have been entered without a search warrant.” (p. 162)
“I agree that where there has been such a deliberate and conscious violation of constitutional rights by the State or its agents evidence obtained by such violation should in general be excluded, and I agree that there may be certain “extraordinary excusing circumstances” which may warrant its admission.” (p. 162)
He then expressed a qualification driven it seems, by caution rather than fundamental disagreement:
26. It is at this point useful to make a number of observations about the judgment of Kingsmill Moore J. First, it is in my view beyond doubt that the issue of evidence obtained in breach of a constitutional right was squarely in issue in the case, and was considered and addressed by him. Second, it is clear that he rejected the absolute exclusionary rule which then appeared to be the law in the US. Third, and usefully, he expressly addressed the central portion of the judgment Walsh J. and expressed his opinion on it. Fourth, the differences between the judgments of Kingsmill Moore J. and Walsh J. in this regard are differences of degree: where Walsh J. held that evidence obtained in a deliberate and conscious breach of a constitutional right should always be excluded save in extraordinary excusing circumstances, Kingsmill Moore J., consistent with his general view as to the discretion of the court, preferred to say that in such circumstances the evidence should “in general” or “normally” be excluded, and preferred to leave for another day the circumstances which would nevertheless justify the admission of evidence obtained in such deliberate and conscious breach of the constitutional rights of the accused. Finally, and importantly, this analysis was applied to the facts of the case. Kingsmill Moore J. considered that the entry of the premises with a warrant which did not authorise such an entry was not a case of “deliberate and conscious violation” but a purely “accidental and unintentional infringement of the Constitution” and that in such cases, the evidence should normally be admitted.
“I would prefer, however, not to attempt to enumerate such circumstances by anticipation. The facts of individual cases vary so widely that any hard and fast rules of a general nature seem to me dangerous and I would again leave the exclusion or non-exclusion to the discretion of the trial judge. The views expressed in this judgment may seem to be a departure from what has hitherto been considered the law or the initiating of a principle in a field where up to now our law has been undefined. The further development of that principle should await clarification in the light of actual cases. I have already given my reasons for considering that in this particular case the evidence should not be excluded. This case is not one of deliberate and conscious violation, but of a purely accidental and unintentional infringement of the Constitution. In such cases, as Mr. Justice Walsh indicates, the evidence normally should not be excluded.” (p. 162)
The Judgment of Walsh J.
27. The judgment of Walsh J. also deals at some lengths with the question of admission of illegally obtained evidence. That was the common law framework in which the case was presented to the Court. As already observed, Walsh J. came to the strong conclusion that there was no discretion to excluded evidence on the grounds that it had been illegally obtained. He observed:
However he did contemplate the possibility that matters might develop to such a stage that a court might find itself compelled to come to a conclusion that all the measures introduced had failed to secure compliance by the police with the law. In those circumstances he considered it would be preferable that there should be a rule of absolute exclusion rather than that each trial judge should be asked to adjudicate upon the question of whether the public interest could require the accused to go free without full trial rather than the police should be permitted the fruits of a lawless venture. Apart from the anomalies which might arise between the positions of individual judges, the,
“But to render the evidence inadmissible on that account only and for the purpose of controlling the police would be to prefer the latter purpose to the competing but primary one of conducting a fair trial.” (p. 169)
This was however a hypothetical situation which lay, if at all, in the future and on the issue presented for decision in O’Brien, Walsh J. concluded that illegally obtained evidence was admissible.
“lamentable state of affairs which would call for such a change in the existing law of evidence would certainly justify absolute exclusion rather than a rule which might appear to lend itself to expediency rather than the principle” (p. 169).
28. In the second paragraph on page 169 of the report, Walsh J. turned to deal with the constitutional issue. He pointed out that the guarantee under Article 40.5 was not a protection against forcible entry only. Instead it was a guarantee that the dwelling of the citizen was inviolable save for entry as permitted by law and that if necessary, such law could permit forcible entry. That right was engaged in this case. A breach of the Constitution was of far greater importance than an illegality which did not amount to such an infringement. The vindication of the protection of constitutional rights is a fundamental matter for all courts. Accordingly, he concluded that:
This reasoning was repeated and emphasised in the subsequent paragraph:
“The Courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist, such as the imminent destruction of vital evidence or the need to rescue a victim in peril. A suspect has no constitutional right to destroy or dispose of evidence or to imperil the victim. I would also place in the excusable category evidence obtained by a search incidental to and contemporaneous with a lawful arrest although made without a valid search warrant.” (p. 170)
The position thus outlined was contrasted with what was conceived of as the logical corollary: that evidence obtained in breach of the constitutional right which was not obtained by a deliberate or conscious breach, was admissible. Indeed it followed from the view Walsh J. had outlined that there was no discretion in this regard:
“In my view evidence obtained in deliberate conscious breach of the constitutional rights of an accused person should, save in the excusable circumstances outlined above, be absolutely inadmissible.” (p. 170)
These principles were then applied to the facts in O’Brien’s case:
“It follows therefore that evidence obtained without a deliberate and conscious violation of the accused's constitutional rights is not excludable by reason only of the violation of his constitutional right.” (p. 170)
29. I have set out extracts from the judgments in O’Brien at some length because it is important to understand precisely what was decided in that case, and indeed what was left for future decision. It is impossible to fully understand and analyse what was decided in Kenny, without understanding what the law was prior to that decision, and how Kenny treated it.
“In the present case it is abundantly clear from the evidence that it was through an error that the wrong address appeared on the search warrant and that the searching officers were unaware of the error. There was no deliberate or conscious violation of the right of the appellants against arbitrary intrusion by the Garda officers. The evidence obtained by reason of this search is not inadmissible upon the constitutional ground.” (p. 170)
30. It appears to me that a number of conclusions about the decision of the Court as a whole in O’Brien, are clear beyond argument. First, and perhaps most importantly, it is clear that the phrase “deliberate and conscious breach of the constitutional rights” which appeared for the first time in the decision in O’Brien and was used repeatedly by Walsh J. and Kingsmill Moore J., meant, and was understood to mean in that case, an intentional violation of the right. This is, most obviously, the natural meaning of the phrase, in the context in which it was used. But it also follows inexorably from the context in the judgments in which the phrase is used. Deliberate and conscious violation is contrasted with the antithesis, described in the judgment of Walsh J. as “an error of which the gardaí were unaware” and in the judgment of Kingsmill Moore J. as a “purely accidental and unintentional infringement”. Furthermore, this distinction is apparent not merely from a syntactical analysis of the text of the judgments, but is in my view part of the ratio decidendi of the case. The evidence in O’Brien’s case was admitted because it was not obtained by a deliberate and conscious breach of the constitutional rights of the occupiers of 118 Captain’s Road. Adopting the language of Walsh J., the evidence was obtained without a deliberate and conscious violation of the accused’s constitutional rights and was therefore not excludable by reason only of the violation of his constitutional rights. Finally, and if the matter was open to any doubt, the meaning of “deliberate and unconscious” in O’Brien was confirmed by a consideration of the related concept of extraordinary excusing circumstances as elaborated upon in the judgment of Walsh J. The principal examples given (the need to rescue a victim in peril, or to prevent the imminent destruction of vital evidence), occur most naturally in a context where there is a deliberate knowing breach of the constitutional right (in this case the inviolability of the dwelling) which is nevertheless justified by urgent circumstances. In the examples given, the gardaí, or any other actor, are aware that a search or an arrest is not normally authorised but consider that it is necessitated, and therefore justified, by the extraordinary excusing circumstances of the event.
31. Second, it may be observed that the case is predicated upon an extremely clear distinction between evidence obtained as a result of an illegality, and evidence obtained as a result of a breach of a constitutional right. This is clear and sharp in the judgment of Walsh J., but it is also detectable in the judgment of Kingsmill Moore J. who accepted that breach of a constitutional right was a more serious matter and would normally lead to the exclusion of the evidence. Third, it is, I think, possible to identify the ratio decidendi of that case. What the court decided is clear: the evidence was admissible. Why the court decided that is also clear and it is apparent that the difference between the judgments is quite nuanced. The evidence here was obtained in breach of constitutional rights which was accidental. It was however obtained illegally. In such circumstances, evidence obtained should normally (Kingsmill Moore J.) or always (Walsh J.) be admissible. In this case, both judges considered the evidence had been properly admitted.
Observations on the Decision in O’Brien
32. The judgments in O’Brien are thoughtful, detailed and impressive. They address an issue which is only beginning to come to the fore in Irish law as indeed similar issues were arising in other common law jurisdictions. The judgments are, if anything, progressive and innovative when compared with the then contemporaneous decisions in other common law jurisdictions. Furthermore, the position arrived at is relatively cautious and moderate. It is clear that both judgments (and therefore the entire court) rejected an absolute rule whether of admissibility or exclusion. This is apparent from the judgment of Kingsmill Moore J., but it is also apparent on an analysis of the judgment of Walsh J. The position taken by him while, marginally more hard edged than that set out in the judgment of Kingsmill Moore J., is markedly short of an absolute rule of exclusion even though the Court was aware of, and had regard to, the persuasive authority of the decision in Mapp, and the preceding US jurisprudence which seemed to support an absolute rule of exclusion. In Walsh J.’s judgment however, only deliberate and conscious breaches of the Constitution (in the sense of a knowing and intentional breach) could give rise to a rule of exclusion, and even then such evidence obtained in such circumstances might be admitted if there were extraordinary excusing circumstances. O’Brien was undoubtedly a landmark decision, and the judgments were significant contributions to the development of Irish law.
33. Looked at through the clear lens of hindsight and with the benefit of almost half a century of decisions, commentary and analysis on the question of illegally and unconstitutionally obtained evidence in this and other jurisdictions, it is now I think apparent that while the judgments in O’Brien marked a significant advance, there are flaws in the O’Brien approach. Assuming for the moment that the approach of Walsh J. was slightly more robust and radical than that of Kingsmill Moore J. and was likely to be adopted in time (as indeed it was), it still did not go very far. First, only deliberate and conscious breaches of constitutional rights could lead to exclusion of evidence. But the Constitution is a guarantee of rights against invasion and that guarantee is not limited to intentional breaches. Take the example of the related area of the tort of trespass. This is one the methods by which the State, by its laws, protects and vindicates the property rights of the citizen. The tort of trespass is complete when there is a physical entry or intrusion. There is no requirement of intent or any other mental element. An accidental trespass is still a tort and will, if necessary, be restrained or remedied by a court. Why then should the law on exclusion of evidence for breach of the Constitution be different? The constitutional concept of a right and a correlative duty to protect it, involves the focus upon the right interfered with, rather than a consideration of the intention of the wrongdoer. Intent may be relevant to the seriousness of the breach, but is not relevant to whether there was a breach or not.
34. Second, even if some culpability is required it is arguable that capturing only deliberate breaches is insufficient. If there was a reckless breach of a constitutional right, would it still be permissible to admit the evidence? Third, the exception for extraordinary excusing circumstances is also somewhat problematic. It is not clear what constitutional justification there is for this. There are circumstances that the Constitution itself limits, or permits the limitation of, rights guaranteed by it. In such circumstances however, any action within the area of permitted limitation, does not constitute a breach of the constitutional right. It is not normal therefore for there to be a breach of the constitutional right, but for it to be excused, and the Constitution does not contain any general (or indeed specific) provision permitting a Court to excuse or overlook breach of its provisions. The Constitution contains its own balance, and once a right guaranteed by the Constitution is breached, the normal constitutional response, is a requirement to vindicate the right. It is not clear where the power to excuse the breach comes from, or its extent, and it is therefore problematical. It is not suggested in O’Brien that the capacity to excuse a breach of the Constitution comes from some provision in the Constitution itself. Accordingly, the concept of excusing breaches of constitutional rights gives rise to the possibility of undermining the protection required by the Constitution. As Professor Kelly perceptively pointed out in the second edition of Fundamental Rights in the Irish Law and Constitution, (Dublin; Allen Figgis; 1967; 2nd ed.) published shortly after the decision in O’Brien:
Furthermore, the justification offered for the exception of extraordinary excusing circumstances, while having a rhetorical appeal, is not convincing. It may be true that there is no constitutional right to destroy or dispose of evidence for example, but it is equally arguable that there is no constitutional right to possess stolen goods or dangerous drugs, but it cannot be suggested that a search for either would be permissible without a warrant. I would require careful and persuasive argument rooted in the Constitution before accepting in any real life situation that deliberate breaches of the Constitution can be excused by the Court’s say so, but would reserve my judgment on that issue until it arises in a concrete case.
“It is hard to disagree with the court’s conclusion on the issue involved in this particular case, which seems sensible; but it might certainly be dangerous if the police felt it was now open to them to search any premises at their own discretion in the hope that their action could subsequently be covered by the plea that they wished to avoid e.g the imminent destruction of vital evidence. Such a power would go a long way to undermine the 200 year old principle against arbitrary searches laid down in the classic sense of Entick v Carrington.”
35. These are issues with the decision in O’Brien which arise at the level of principle. But addressing those issues could, indeed, give rise to further problems. For example, while the approach of mandatory exclusion of evidence advanced by Walsh J. is strong in principle, the narrow scope of application of the rule meant that the quantum of evidence excluded, or likely to be excluded, was quite small since it only captured evidence obtained by deliberate, conscious, intentional and knowing breach which was not otherwise excusable. If however, the scope of the exclusionary rule was widened then the impact of the rule would be dramatically extended, particularly if it was assumed that a mandatory exclusionary rule should apply without modification in any extended area of application.
36. There are also conceptual issues at a slightly deeper level which were touched on but not explored in O’Brien. The protection offered by the Irish Constitution to the dwelling home is a contingent one. Whereas for example the US Federal Constitution protects against unreasonable searches and seizures, and thus provides some substantive protection, Article 40.5 makes the constitutional protection dependent on the existence or otherwise of a law (and the terms thereof). It is true, that any law must, in the words of Henchy J., not stoop to methods themselves inconsistent with the Constitution, but that still leaves a large area of permissible legal intrusion which, it appears, may be permitted with or without a warrant. The list of lawful entry authorised by statute is impressively, and on one view, depressingly, long. This has particular significance in the field of the exclusion of evidence. The judgment of Walsh J. in O‘Brien makes a sharp distinction between breaches of the law and breaches of the Constitution. At the conceptual level this is obviously valid. But in terms of Article 40.5 the distinction almost disappears: any breach of the law permitting entry onto a dwelling for Article 40.5 is arguably a breach of the constitutional guarantee. So long as evidence was excluded only in the relatively narrow case of deliberate and conscious breach subject to the possibility of excusing circumstances, this issue did not loom large since any deliberate, intentional and inexcusable breach of the law (let alone the Constitution) would be a serious matter. But if the test was removed or diluted, then the prospect arose of even trivial breaches of regulatory matters becoming, without more, breaches of the Constitution, and giving rise to presumptive, if not indeed automatic, exclusion of evidence obtained thereby.
37. On the other hand, the fact that the constitutional protection is contingent on the terms of the law means that the substantive boundaries of what is permissible are by no means fixed. The law could determine what was lawful entry and could at least in theory, permit a wide range of entry with or without warrant, or indeed validate otherwise unauthorised entry at least for the purpose of the admission of evidence. The identification of the protection of the Constitution with a breach of the law thus raised the possibility of even trivial breaches of regulatory matters being treated as breaches of the Constitution (and consequently collapsing a distinction which seemed central in O’Brien) but there was the countervailing possibility that if the law did not treat an entry as unlawful there could be no separate question of unconstitutionality. None of this is satisfactory.
38. It is of course not unusual for even landmark cases not to answer all potential questions or indeed not to provide perfect answers to the difficult questions first posed. In normal circumstances a steady stream of cases posing different facts and issues will contribute to an adjustment and refinement of the principle. However, for whatever reason, no warrant case reached the Supreme Court for 25 years until Kenny. In the meantime, the potential flaws in the O’Brien formulation were subjected to the stresses created by a series of cases related to unlawful detention, either by detention beyond a statutorily permissible period (The People (Director of Public Prosecutions) v. Madden & Ors  I.R. 336), detention in custody without being charged (The People (Director of Public Prosecutions) v. O’Loughlin  I.R. 85), or by denial of access to a solicitor who was present in the garda station (The People (Director of Public Prosecutions) v. Healy  2 I.R. 73 (“Healy”)). It is important to note that in these cases the evidence obtained was held to be inadmissible either at trial, or on appeal, or at trial or both. These decisions are plainly correct, and are examples of the courts performing the function in ensuring that constitutional rights are respected, upheld and vindicated. Indeed Healy is a good example of the robust approach taken by the courts : at that time the law was that an accused person had a right of access to a solicitor, but did not have to be informed of the right and there was no prohibition on an accused person making a statement before the solicitor arrived at the garda station. In this case the client’s solicitor arrived and was denied access to his client. The court held that that was a violation of the rights of the accused. Accordingly his detention became unlawful as from the point of denial of access. However because it could not be shown that the statement had been made during the period of lawful custody (and before the point of denial of access) the entirety of the statement must be excluded.
39. In their own terms, these are important cases on the criminal process. However, in the course of such cases, the argument was made on behalf of the prosecution that even if there was a breach of the legal requirement of detention it was not “deliberate and conscious” because the gardaí claimed they were unaware of the relevant provision or legal requirement rendering the detention unlawful. In no case did this argument succeed, but it highlighted a difficulty with the “deliberate and conscious” test, since that appeared to focus attention on the state of mind of the investigating gardaí, which obviously was unsatisfactory in cases like this. If it was accepted that the gardaí were unaware of the existence of the law, and therefore of the constitutional right to liberty, the application of the rule rewarded ignorance of the law by police and gave a perverse incentive to gardaí to assert lack of knowledge of the law that they were supposed to uphold. One solution might have been to modify the test so that the seriousness of the breach was the important factor, and the subjective state of mind of the gardaí only one component in that calculation, or to include recklessness as to the breach, or lack of knowledge of basic provisions protecting citizen’s rights, as themselves grounds for excluding evidence obtained in breach of constitutional rights. But as Jonathan Swift has observed, lawyers are very attached to precedent, and O’Brien’s case and the memorable phrase “deliberate and conscious breach of the Constitution” had been sanctified by repetition. It was effectively binding upon trial courts. Accordingly, the debate occurred, and a solution was sought, within that rubric.
40. In no case was the Court of Criminal Appeal, or where relevant, the Supreme Court, prepared to accept protestations of lack of knowledge: as McCarthy J. observed in Healy, that would be to put a premium on ignorance, indeed ignorance of the law by law enforcement officers. The approach taken by a majority of the judges in the cases identified was simply to find that on the evidence there had indeed been a deliberate and conscious breach. The matter was perhaps put best by O’Hanlon J. in the Court of Criminal Appeal in Kenny:
In other words, gardaí were deemed to know the relevant provisions, and consequently, breach thereof was deemed a deliberate and conscious breach giving rise to the exclusion of the evidence unless there were extraordinary excusing circumstances. As Mr Justice Mc Kechnie observes there was a certain lack of clarity in the jurisprudence , exemplified perhaps by the fact that Mc Carthy J appeared to take different views in DPP V Lawless CCA 28/11/85 , Mc Carthy Keane and O’ Hanlon JJ , and in DPP v Healy. However, an increasingly influential view which can be traced to the dissenting judgment of Walsh J. in The People (Director of Public Prosecutions) v. Shaw  I.R. 1 (“Shaw”) (and perhaps further to the dissenting judgment of the same judge in The People (Director of Public Prosecutions) v. Walsh  I.R. 294 (“Walsh”)) was to the effect that deliberate and conscious breach merely meant that the act complained of was deliberate and intentional and it was irrelevant if the gardaí were entirely innocent and acting bona fide. The implication of this difference of approach was not perhaps immediately obvious. So long as a court was dealing with a breach of obvious provisions which ought to have been known, or could be deemed to have been known, then the difference of approach did not necessarily create a particular difficulty since both tests would lead to the same outcome and exclusion of the evidence. However, if an illegality was caused by a mere technicality or an error for which the gardaí could have no responsibility, and could not in any event possibly cure, then there was a possibility of conflict, since in such circumstances the two approaches could, potentially, lead to different outcomes. Such an issue arose in Kenny.
“It is clear from the decisions in The People v. Madden  I.R. 336, The People v. Farrell  I.R. 13, The People v. O'Loughlin  I.R. 85 and The People v. Walsh  I.R. 294, that knowledge of the common law and statute law, and of the constitutional guarantees, must - generally speaking - be imputed to the law enforcement agencies, and that if they are breached in a manner which infringes the constitutional rights of an accused person, it may be regarded as a deliberate and conscious violation without regard to the actual state of knowledge or bona fides of the garda officer or other person committing such violation.” (p. 119)
The Decision in The People (Director of Public Prosecutions) v. Kenny  2 IR 110
41. The warrant in Kenny’s case was issued by a Peace Commissioner under s.26 of the Misuse of Drugs Act 1977. The warrant was issued on the 29th of September 1984 and the search took place on the 2nd of October of the same year. Drugs were found, the defendant charged, and a trial took place in the Dublin Circuit Criminal Court. At the trial there was a challenge to the validity of the warrant which was rejected and the evidence was admitted. It is not clear from the report of the decision when that trial took place. However, certainly before the appeal was heard, the High Court heard a challenge in a different case, Byrne v. Grey. That case too concerned a search warrant issued under s.26 of the Misuse of Drugs Act 1977. The information and warrant were in the same standard form as that which had been used in Kenny. The High Court on a judicial review challenge held that the form used of the information was inadequate since it gave no basis for the belief of the individual garda that drugs were on the relevant premises. Accordingly, the Peace Commissioner could not be satisfied of that fact, and the search warrant was invalid. The point, it should be said, was one of some subtlety and had escaped the gardaí, court officers and lawyers, involved in many cases in which the same standard form had been used.
42. It was plain that the relevant member of the garda in seeking the warrant, and in swearing the information, was using a standard form and acting in good faith as the Court of Criminal Appeal acknowledged at page 117 of the report. Indeed, a standard form is adopted presumably to seek to minimise the possibility of individual human error. The form was not drafted by the individual garda officer and there was no defect in the matters inserted by him. There was nothing he could have anticipated or done about the possible invalidity without an extraordinary feat of legal clairvoyance. The decision that an information in that form was inadequate and any consequent warrant invalid, lay far in the future at the time the warrant in Kenny was sought and obtained. In such circumstances, was the evidence obtained to be excluded on the ground that there had been a breach of the constitutional right to the inviolability of the dwelling? The Court of Criminal Appeal held first that the warrant was invalid and then directed further argument on the issue of the admissibility of the evidence. In a careful judgment of O’Hanlon J which reviewed the authorities, the Court held that there had been no deliberate and conscious breach of the constitutional right. Specifically the court rejected the argument that merely because the act of entry onto the premises was intentional that there was in consequence a deliberate and conscious breach of constitutional rights and a mandatory requirement of the exclusion of the evidence unless there were extraordinary excusing circumstances, which plainly did not arise in this case. Accordingly the Court of Criminal Appeal held that the evidence was admissible.
43. One other thing had occurred in the period between the decision in O’Brien and that in Kenny: the US Supreme Court had confronted difficulties posed by the absolute exclusionary rule in Weeks and Mapp and in United States v. Leon 468 U.S. 897 (1984) (“Leon”), found that there was a good faith exception to the exclusionary rule, the requirement to exclude evidence obtained did not apply to bar the use, in a prosecution case, of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate which was ultimately found to be invalid. The parallel with the situation in Kenny seemed clear, and O’Hanlon J. found the reasoning of the US Supreme Court persuasive and indeed to echo the observations of Kingsmill Moore J. in O’Brien.
44. In Leon, White J. had reasoned that the fourth amendment of the US Federal Constitution did not itself preclude the admission of evidence obtained in breach of the amendment, and that the admission of evidence in the trial did not itself work any fresh violation of the amendment. Accordingly the exclusionary rule was a judicially crafted remedy designed to protect the fourth amendment right, rather than constituting a separate constitutional right in itself. The issue for the Court was the admission or exclusion of the evidence, and not the breach of the rights. The decision on admission or exclusion of evidence involved a balancing test. The absolute rule of exclusion exacted too high a price. The unbending application of the rule to enforce governmental rectitude would, the Court considered, impede unacceptably the truth finding function of the Court and an indiscriminate application of the rule might generate disrespect for the law and the administration of justice. Since the purpose of the rule was to deter wrongdoing, its operation should be focussed and targeted on the area where it would have this effect. It was intended to deter police misconduct, not judicial or clerical errors. Accordingly, there was no justification for applying the rule in a case where the police had not been guilty of any misconduct (however broadly defined) and the invalidity of the warrant was due to a simple error for which the police were not responsible.
45. The Court of Criminal Appeal in Kenny certified that its decision involved a point of exceptional public importance, and accordingly the matter was appealed to the Supreme Court. That Court decided to allow the appeal by a majority of three to two and reversed the decision of the Court of Criminal Appeal. As already observed, it is unfortunate that there has not been a more steady stream of warrant cases since that might permit a more nuanced, gradual and refined development of the law. It is also unfortunate that the Kenny case was to some extent decided in the shadow of the debate on evidence obtained from persons in detention found unlawful. In the event, the majority of the court (Finlay C.J., Walsh and Hederman JJ.) held that ”deliberate and conscious breach” meant merely that the act (of entry to the premises in that case) was intentional. If so, there was a deliberate and conscious breach of the constitutional rights and the evidence must be excluded since there were no extraordinary excusing circumstances. Accordingly, the appeal was allowed.
46. The single judgment of the majority in Kenny is that of Finlay C.J. First, he observed that the decision in Leon depended on a principle of deterrence rather than the absolute protection of constitutional rights. He considered that this had no echo in the judgment of Kingsmill Moore J. in O’Brien, the greater part of which he considered was concerned only with illegally as opposed to unconstitutionally obtained evidence. He considered that the only reference to the Constitution in O’Brien was a short passage at the end of the judgment of Kingsmill Moore J. The learned Chief Justice then expressed the view that:
47. The judgment then cited the extracts from the dissenting judgment in Walsh, the principles outlined in the judgment of Walsh J. in Shaw, and the decision in Healy. The essence of the court’s reasoning is to be found in a relatively short passage commencing at pages 133 - 134 of the report:
“The expression of opinion [by Kingsmill Moore J.] which formed the majority view of the Court in The People (Attorney General) v. O’Brien … clearly leaves unresolved in relation to the admissibility of unconstitutionally obtained evidence the choice raised by the arguments in this case between the deterrent and absolute protection principles.” (p. 131)
48. In concluding that a rule which only excludes evidence obtained by a person who knows that he is invading a constitutional right and intends to do so, was too limited a rule, the judgment was in my view quite correct, for reasons I have sought to set out. That limitation in the scope of the O’Brien principle had become apparent in the succeeding years. But in my view the judgment is much less persuasive in implicitly rejecting the approach of O’Hanlon J. in the Court of Criminal Appeal, and in particular in substituting for the O’Brien test, an absolute or near absolute rule of exclusion especially when that was achieved by using the same language and structure as the decision in O’Brien (deliberate and conscious breach, not unintentional or accidental and no extraordinary excusing circumstances) but assigning different meanings to the concepts involved. This maintained an impression of superficial consistency while undermining the reality of the test.
“The duty of the Court pursuant to Article 40, s.3, sub-s.1 of the Constitution is as far as practicable to defend and vindicate such rights.
As between two alternative rules or principles governing the exclusion of evidence obtained as a result of the invasion of the personal rights of a citizen, the Court has, it seems to me, an obligation to choose the principle which is likely to provide a stronger and more effective defence and vindication of the right concerned.
To exclude only evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from acting in a manner which he knows is unconstitutional or from acting in a manner reckless as to whether his conduct is or is not unconstitutional.
To apply, on the other hand, the absolute protection rule of exclusion whilst providing also that negative deterrent, incorporates as well a positive encouragement to those in authority over the crime prevention and detection services of the State to consider in detail the personal rights of the citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights.
It seems to me to be an inescapable conclusion that a principle of exclusion which contains both negative and positive force is likely to protect constitutional rights in more instances than is a principle with negative consequences only.
The exclusion of evidence on the basis that it results from unconstitutional conduct, like every other exclusionary rule, suffers from the marked disadvantage that it constitutes a potential limitation of the capacity of the courts to arrive at the truth and so most effectively to administer justice.
I appreciate the anomalies which may occur by reason of the application of the absolute protection rule to criminal cases.
The detection of crime and the conviction of guilty persons, no matter how important they may be in relation to the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional obligation “as far as practicable to defend and vindicate the personal rights of the citizen”.
After very careful consideration I conclude that I must differ from the view of the majority of this Court expressed in the judgment of Griffin J. in The People v. Shaw  I.R. 1. I am satisfied that the correct principle is that evidence 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 its (the court's) discretion.”
49. While the decision refers to an absolute rule at certain points, the rule subsequently stated was in a more qualified form:
This appears therefore to be a more nuanced test, and a repetition of O’Brien. But now “accidental and unintentional” has an entirely different meaning to the same phrase when used, and more importantly, applied, in O’Brien. It is now only the act which must be intentional. But in the field of search warrants, this is no qualification at all. Every search and every entry pursuant to warrant is intentional. That is why a warrant is sought in the first place. Similarly, “extraordinary excusing circumstances” provides no substantial limit or qualification in the new definition. That phrase was adopted in O’Brien in the context of excusing what was a deliberate and conscious violation which was intentional. The circumstances contemplated involved normally, urgency which for example might make it impossible to comply with a legal requirement to obtain a warrant, before evidence was destroyed. But this would have no application where a warrant has already been obtained but some time later is subsequently ruled invalid. Thus the consequence of the new definition of “deliberate and conscious” looked at in the field of warrants is not only to enlarge significantly the scope of the exclusionary rule to cover all intentional acts, and therefore every entry pursuant to a warrant which transpires to be invalid or defective, but at the same time to render the apparent balancing qualifications of the rule (accidental and unintentional actions, and extraordinary excusing circumstances) devoid of any practical application. The new rule is, in practice, absolute. This analysis is confirmed if need be, by experience: in the years since Kenny there does not appear to have been any example of evidence obtained pursuant to an invalid warrant which was nevertheless admitted because the violation was either accidental in the Kenny sense, or, justified by excusing circumstances. Accordingly, one of the troubling features of Kenny is that it adopts a rule on its face qualified, but in reality absolute or near absolute, at least in the field of warrants. Moreover the absolute nature of the rule is not recognised and accordingly is not justified in the reasoning in the judgment.
“…evidence … 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 …”. (p. 134)
50. The treatment of the decision in O’Brien by the judgment in Kenny is a further difficulty. The decision in Kenny explicitly departed from and disapproved of the majority decision in Shaw. However it makes no determination or comment on the decision in O’Brien. Subsequent courts have struggled to reconcile the two decisions (see The People (Director of Public Prosecutions) v. Balfe  4 I.R. 50, and The People (Director of Public Prosecutions) v. Mallon  2 I.R. 544). However it was said in argument in the present case (and my experience in other cases in which warrant points were argued would seem to bear this out) that Kenny in effect overrules O’Brien, and has been so understood and applied by the profession, so that on the same facts, the warrant in O’Brien would now have to be held invalid and the evidence ruled inadmissible. The suggestion made in Kenny that O’Brien can be distinguished on the basis that the judgment of Kingsmill Moore J. was principally concerned with illegally obtained evidence is unpersuasive. It seems clear for the reasons set out at some length above, that the consideration of the constitutional point was more extensive than the Court in Kenny allowed and the constitutional question was fully considered, indeed decided, by Kingsmill Moore J. The question of whether there was a deliberate and conscious breach of the constitutional right of the citizen was essential to his decision in that case. It was because he considered that the breach of the constitutional right of the accused was not deliberate and conscious ( “This case is not one of deliberate and conscious violation, but of a purely accidental and unintentional infringement of the Constitution”) that he was able to treat it as a case of illegally obtained evidence , which should be admitted . Furthermore, the choice between a deterrent exclusionary principle, and absolute protection principle was also firmly in view in O’Brien, and, on my reading of the decision, both judgments in that case rejected the absolute protection approach. Furthermore, the outcome in Kenny effectively collapses the distinction which seemed central in O’Brien between illegally obtained evidence which might (Kingsmill Moore J.) or must (Walsh J.) be admitted, and unconstitutionally obtained evidence which, if there are no extraordinary excusing circumstances, must normally (Kingsmill Moore J.), or always (Walsh J.), be excluded. One consequence of the Kenny decision, in particular in respect of warrants, is that any illegality which leads to invalidity will lead inevitably to exclusion. Indeed, since the entry under Article 40.5 of the Constitution must be “in accordance with law”, it can be argued that any illegality (even if not invalidating the warrant) leads to an unconstitutionality, and if Kenny is correct, to an automatic or near automatic exclusion of the evidence.
51. I confess to real difficulty in accepting the interpretation of “deliberate and conscious breach” advanced first in the dissent in Shaw and adopted by the majority in Kenny. First, it is linguistically and grammatically implausible. The adjectives, ‘deliberate’ and ‘conscious’ qualify the noun, ‘breach’. The natural understanding of the phrase is that which was understood and applied until 1990, namely that it was the breach which had to be deliberate and conscious. Indeed that is, I think, plainly the manner in which it was understood – and applied – in O’Brien. The evidence was admitted (by all courts which considered the matter), because ultimately the error in the address, and the consequent invalidity of the warrant and unauthorised entry, was unintentional and accidental, rather than a deliberate and conscious breach of the constitutional guarantee. This was part of the ratio decidendi of that case. It would be surprising and noteworthy if a venerable decision of this Court in O’Brien was overturned both in its reasoning and its result with the effect that the conclusion rejected in that case as wrong to the point of absurdity, would become correct in law, but it is remarkable if all this is achieved sub silentio. This is not merely a matter of judicial politesse or ritual. Preceding decisions provide an important structure which either supports or tests the reasoning in subsequent cases. The careful and faithful analysis of precedent is an important discipline in contributing to the rigour of the argument . It is also an essential part of the concept of precedent which itself is part of the law and justice , which the Courts administer and uphold under the Constitution.
52. The rationale for the new rule advanced in Kenny does not, at least in my judgment, withstand scrutiny. Leon is characterised as a decision on deterrence and the Kingsmill Moore J.’s judgment in O’Brien distinguished unpersuasively, and a choice posed between a rule based on deterrence, and one of absolute protection, the absolute protection rule being preferred. However, the analysis conducted by the Court seems to be based on a principle of deterrence. The apparent contrast between a negative deterrent and a positive encouragement is superficially attractive, but, at least in my view, is not convincing. The choice in Kenny was between a somewhat exclusionary rule and a more, indeed almost absolute, exclusionary rule. That is a choice between some deterrence and more deterrence. No reward or incentive is being offered to the State authorities for compliance with the rule other than the avoidance of the punishment of having otherwise cogent and possibly compelling evidence excluded. The description of the new rule as offering positive encouragement rather than negative deterrence does not therefore explain ,still less justify, its adoption. But if deterrence underpins the decision in Kenny then the question arises why it is appropriate to apply the rule when, as in this case, there is no misconduct to be deterred.
53. This leads to a fundamental question as to what behaviour it is the rule in Kenny seeks to either encourage or deter. The answer given at one level of generality is easy: the rule seeks to ensure compliance with the Constitution and deter its breach. But that is not behaviour, it is a legal consequence of the behaviour. At a more specific level, because the combined effect of Article 40.5 of the Constitution and the decision in Kenny, is to collapse any distinction between legal validity and unconstitutionality, the expanded rule of exclusion in Kenny seeks apparently, at least in warrant cases, to punish technical, human and forgivable error, perhaps to encourage precision in the drafting and issuance of warrants, and in cases such as Kenny and the present case, to encourage a form of inspired legal clairvoyance in predicting decisions in future cases on points not yet raised, argued or decided, at the time the warrant is obtained. Insomuch as these may be worthy objects at all, they come at a high price in terms of resources, time, efficiency, the detection of criminal conduct, and in particular the exclusion of otherwise compelling evidence.
54. A further unsatisfactory aspect that emerges through Kenny is that since the constitutional protection of the dwelling home is dependent on the terms of legal regulation (since inviolability is guaranteed “save in accordance with law”), it is possible by the law to alter the extent of protection of the dwelling home. Thus, and more recently, legal provisions seek to limit the consequences of failure to comply with them. Section 7 of the Criminal Justice Act 1984 establishing Custody Regulations, Order 38 Rule 1 of the District Court Rules on forms, and the provisions of s.12 of the Interpretation Act 2005, all seek to limit invalidity and thus cut off at source the possible argument that there has been an invalidity and therefore breach of a constitutionally protected right. This makes the exclusion of evidence for breach of the Constitution even more haphazard and unpredictable and removes the law on exclusion of evidence some distance from the substance of the right sought to be protected by the Constitution.
55. Having considered the arguments made in this case and the range of cases referred to, I conclude that the test articulated in O’Brien, either by both judgments or a synthesis of the two, while a significant advance in the jurisprudence at the time, is not a complete or comprehensive statement of the circumstances in which evidence should be excluded. However, I am even more clearly of the view that the outcome of Kenny is a solution which is worse than the problem.
56. It is necessary therefore to address the question afresh in the light of the scrutiny of O’Brien and Kenny and subsequent experience and practice. The first question which must be addressed is whether an absolute rule of exclusion such as that articulated in Mapp or in effect adopted in Kenny, is justifiable even if it results in the exclusion of evidence caused by technical, understandable, forgivable and sometimes unavoidable error? There are, I think, two plausible arguments in favour of such a rule. First, it might be said, and this is hinted at in Kenny, that the Constitution commands this outcome. On this argument, the balance has been set by the Constitution which has decided that the exclusion of such evidence in such circumstances is required by the obligation to vindicate the constitutional rights of the citizen, and the near absolute rule of Kenny merely applies that conclusion. The second argument is a more pragmatic variation of the first. It argues that an absolute rule can be justified because no more nuanced rule can be devised to permit the admission of evidence where the error is technical, accidental or excusable, which does not open up the possibility of permitting, and indeed encouraging , further breaches of the Constitution. A bright clear line may come with a cost, but, so the argument runs, it may be preferable in the long run.
57. The issue raised here can usefully be addressed first as a matter of principle and constitutional analysis, second by consideration of relevant analogies in constitutional law, and finally by consideration of the manner in which it has been addressed in other countries with a similar legal system and similar commitment to fundamental rights
58. In an admirably focussed and knowledgeable argument on behalf on the respondent, Mr Michael Delaney SC argued that the absolute exclusionary rule was required by the constitutional obligation to respect and vindicate the constitutional rights of the citizen. Accordingly it was, he argued, the Court’s function and indeed duty, to vindicate the right which had been breached. It is possible to elaborate on that basic argument in a number of ways. If it was possible to imagine a hypothetical judge present as the gardaí were seeking entry of a dwelling home under a defective and therefore invalid warrant (even if obtained in good faith) the judge would be bound to grant an injunction restraining entry. If, in a slightly more realistic scenario, a householder physically resisted entry, for whatever reason, and was arrested, but it transpired that the entry had been obtained on foot of an invalid warrant, he would, as I understand it, have committed no crime. If entry was obtained on a warrant subsequently found to be invalid, and the householder was to sue for trespass, then subject to special defences as contained in legislation such as the Constabulary (Ireland) Act 1863 (see Hanahoe & Ors v. Hussey & Ors  3 I.R. 69) he would be entitled to succeed. The same reasoning should, it is argued, lead to the exclusion of evidence obtained as a result of a search carried out on the same warrant, not least since the very object of the entry was to obtain that evidence.
59. This is an attractive argument, but for me ultimately unpersuasive. First, to adopt the approach of Leon, the Constitution does not itself address the question of the admissibility of evidence and the admission of evidence is not itself a breach of the inviolability of the dwelling. The question for a court is the admission of evidence. That itself is not a breach of Article 40.5. The example of injunction or other tortious remedies are useful but do not necessarily lead to the conclusion that an absolute rule of exclusion is required. Indeed the fact that there are statutory limits for recovery of damages on foot of invalid warrants and that similar provisions have been held to be consistent with the Constitution (Dillane v. The Attorney General and Ireland  I.L.R.M. 167) might suggest that the obligation on the court to vindicate the rights of the occupier of the dwelling is by no means absolute. Furthermore, as Barron J. pointed out in a thoughtful dissenting judgment in Simple Imports Ltd v. The Revenue Commissioners  2 I.R. 243, it should not be assumed that the legal position at or before entry is identical to the situation which arises when entry has been obtained, evidence is found, and it is sought to have that evidence admitted at trial. Indeed, the example of the hypothetical judge supervising the execution of the warrant and empowered to grant relief is instructive in a different way. If such a hypothetical judge’s power extended to injunctions, then by the same reasoning it must also extend to a power of rectification or conceivably to grant a fresh warrant. In the circumstances considered in this judgment, where the defect is a mere error, it would therefore be possible to correct the error, authorise the search and obtain the evidence in a lawful way. The situation therefore is not by any means as clear cut as the examples given might suggest.
60. The argument that an absolute rule is required by the strict compliance with the Constitution does not, indeed, support the approach taken in Kenny but would in fact go significantly further. The argument should mean that accidental breaches (even within the narrow and artificial interpretation adopted in Kenny) should also be excluded. Similarly, it is difficult to square the concept of extraordinary excusing circumstances with the theory of absolute exclusion mandated by the constitutional obligation to vindicate rights since the strength of the argument is that if the constitutional right is breached, it must be vindicated by the exclusion of the evidence. If however it is accepted that there are some permissible exceptions to a rule of absolute exclusion, even narrow, then it is no longer a matter of absolute principle, and becomes a matter of balance. If some exceptions are permitted, that can only mean that the constitution contemplates some factors as limiting the requirement to exclude evidence. If so, then there is no logical reason to exclude from the balance other factors particularly if they are rooted themselves in the Constitution.
61. Perhaps the most fundamental objection to this line of argument is that it assumes that the question in issue is only the vindication of the citizen’s right of inviolability of the dwelling home, or other property, save in accordance with law. In an action for an injunction restraining trespass ex ante or seeking damages ex post that might indeed be the only question. Even then, as discussed above, there is no absolute rule. But the admission of evidence in a criminal trial occurs in a quite different context. The central issue there is not the question of breach of the rights of the householder, but rather the performance of the constitutional obligation of the administration of justice. That involves a determination of the guilt or innocence of an individual, something that is best performed with maximum relevant probative evidence whatever that evidence proves or suggests. As the discussions in O’Brien and Leon show, traditionally the administration of justice was robust, even ruthless, in requiring that all relevant evidence be available. Grounds for excluding reliable and probative evidence are few, and strictly construed. The administration of justice under the Constitution, its truth finding function and its requirement of the availability of all relevant evidence, is a factor weighing in favour of admission of evidence. Of course, there comes a point when the administration of justice may itself require that relevant evidence be excluded, for example where the evidence was obtained in circumstances offensive to the concept of justice itself. This would itself be offensive to the administration of justice which is the fundamental obligation of a court. However, that calculation involves a balance rather than an absolute rule. The fact that the Kenny approach to the issue is one dimensional and simply addresses the question of what is the most effective deterrent to a breach of the right is in my view, a central weakness in that decision. In my opinion, the approach in Kenny fails to locate the issue as a question arising in the course of the administration of justice, and accordingly, fails to give any weight to the interests involved in the administration of justice or indeed appreciate that a balance is involved. Instead the judgment treats the damage the rule effects to the administration of the justice as simply an unfortunate collateral consequence of an exclusionary rule.
62. It remains to consider whether there is in principle any other more persuasive justification for the rule advanced in Kenny. One suggested justification is an echo of an argument touched on in the judgment of Walsh J. in O’Brien. On this argument, the justification for a bright line rule is pragmatism rather than principle. It is said that the price of the occasional exclusion of cogent evidence where a party seeking to admit the evidence has been blameless in the breach concerned, is nevertheless preferable to the risk that evidence would be too easily admitted because, it is said, given an option, courts will inevitably succumb to pressure to admit apparently cogent evidence of guilt.
63. There are arguments in favour of general rules, particularly if the alternative is an unbridled discretion. As Lord Shaw of Dunfermline said “[t]o remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand” (Scott & Anor v. Scott  A.C. 417, p. 477). It is however a difficult argument to make here. The choice here is between two different rules. Furthermore, the argument that the exclusion of evidence is a price worth paying to avoid the improper inclusion of evidence is difficult, since there is no way of counting still less valuing, the costs of either side of the balance. In particular it is not possible to say that a substitute rule is too costly, in terms of the breach of rights occasioned, when that rule has not been articulated or operated to date. If this same calculation had been made in Kenny, then it might be possible to consider if experience had borne out the prediction implicit in the adoption of the rule. However, there is in my view, little doubt but that Kenny exacts a very heavy price not merely in terms of cases terminated and evidence excluded, but, just as importantly, in respect for the law itself.
64. Furthermore particularly in the field of warrants with which this judgment is concerned, there is surely little risk of unjustified admission of evidence obtained by unconstitutional means by trial courts exercising an unreviewable discretion. In almost every invalid warrant case, the police have sought to comply with both the Constitution and the law by seeking and obtaining a warrant. The question rarely involves any subjective consideration of motive. The error or defect once identified is normally apparent, and the reasons clear. Accordingly a trial court has a very clear view on objective factors and its determination is equally open to review on appeal. It is a normal function of law and in particular case law, to seek to draw nuanced rules in an incremental fashion, and I do not consider that it is impossible to devise a rule which distinguishes clearly between those cases where a warrant is technically invalid but the evidence ought to be admitted, and those cases where evidence obtained in breach of the Constitution should be excluded. The experience of other common law jurisdictions also suggests this is so. It is in any event both offensive and self defeating to devise a judicial rule of absolute or near absolute exclusion on the basis that courts will not enforce rules of exclusion. In my view there is no reason in principle or pragmatism which requires the absolute or near absolute rule in Kenny.
65. It is noteworthy that in a number of areas Irish courts have confronted similar questions and rejected any absolute or nearly absolute rule. For example the Irish courts have never adopted the United States doctrine of “fruit of the poisoned tree”. It must be acknowledged that there is a logic to this doctrine and that it is consistent with the logic of Kenny. If the sole question for a court is the remedy of the breach of the constitutional right, and thus to seek to restore the person to a situation where the breach had not occurred, then the court should not merely stop at excluding evidence obtained directly as a result of an invalid search, but should exclude all evidence shown to flow from that search. Any such evidence would not have been available, or even known, had the illegal and unconstitutional search not taken place. But the Irish courts have never accepted this position (see Curtin v. Dáil Éireann & Ors  2 I.R. 556). Similarly this Court has decided that unconstitutionally obtained evidence may nevertheless be a permissible basis for seeking a valid warrant (The Director of Public Prosecutions (Gda Walsh) v. Cash  I.R. 609). Once again, if the obligation were merely to vindicate the rights of the citizen, and to seek to restore them to a position where the breach had not occurred, then the evidence obtained should not be treated as being available for any purpose adverse to the householder.
66. Another analogous area is that of appearance in court consequent on an initial invalid arrest. This Court has had occasion to deal with arguments made arising from an apparently invalid arrest and subsequent remands before the District Court. However, it is well established that the fact that an initial arrest was unlawful (and therefore unconstitutional) does not invalidate everything which follows even though it can properly be said that a person would not have been before a court, were it not for an initial invalid arrest which brought him or her on the first occasion before the court, from which he or she was then remanded. As long as the presence of the accused has not been obtained by deliberate and intentional breach of rights such as that which occurred in The State (Trimbole) v. The Governor of Mountjoy  I.R. 550, all further steps are valid. See the concurring judgment of McKechnie J. in Whelton v. O’Leary & Anor  4 I.R. 544, where the law is helpfully analysed. It is plain therefore that the Kenny approach is not taken here.
67. Another example occurred in the decision in Hanafin v. Minister for the Environment & Ors  2 I.R. 321. There, it will be recalled, the Court had to deal with the consequences of unconstitutionality identified in McKenna v. An Taoiseach & Ors (No. 2)  2 I.R. 10, where the government had been found to have acted unconstitutionally in expending public funds on one side of a referendum campaign. It was argued that the Court should apply the reasoning in Kenny, and invalidate the referendum result. That argument was rejected by the Court. O’Flaherty J. said at page 434:
68. Finally, in A v. The Governor of Arbour Hill Prison  4 I.R. 88, the Court rejected an argument that once an act had been declared unconstitutional it necessarily followed that all steps taken on foot of it were void. As Murray C.J., as he then was, observed, “the law is too old and too wise to be applied according to a rigid abstract logic or a beguiling symmetry”. In this and in other areas the life of the law has not been logic but experience. That may involve recognising that a number of different values are involved. It is of course possible to present an argument in favour of an absolute rule as somehow more simple and therefore (and more dubiously) a more principled approach, but there are many problems which are complex and which require nuanced solutions. As Albert Einstein is reputed to have said, things should be made as simple as possible, but not more so. Whether for this reason or others it is certainly the case, that the supposed remorseless logic of Kenny has not been applied in other immediately comparable areas of Irish law.
“… I do not think anything is to be gained by assigning a description of “deliberate and conscious violation” on the Constitution, as opposed to innocent wrong-doing, to the Government’s action. Either of those descriptions are more appropriate to police action by servants of the State and, in general, would be inappropriate to apply to Government action when the Government is exercising the executive power of the State.”
69. The judgment of Kingsmill Moore J. in O’Brien makes clear that this is an area where it is particularly appropriate to consider how this question has been dealt with in other common law countries sharing a comparable value system. Indeed it seems clear that the judgment in O’Brien was influenced by the decision of the Scottish court in Lawrie v. Muir and the then recent decision of the US Supreme Court in Mapp. In considering this jurisprudence I do not lose sight of the argument made on behalf of the respondent that the constitutional provision in Ireland is not comparable to any other country, and that the Irish Constitution imposes a uniquely high standard upon the court in requiring it to vindicate the personal rights of the citizen in the case of an injustice done. However, as already noted, the Constitution does not specifically address the question of admission of evidence. Furthermore, Article 40.3.2 has been a constant while the law on admissibility of evidence has moved from near absolute admission prior to O’Brien, and a balancing test post O’Brien, to a new rule of near absolute exclusion post Kenny. It is difficult to argue therefore that any particular rule is mandated by the Constitution to the exclusion of all argument. There are clear resonances in the manner in which the question has been considered in other common law jurisdictions. In each jurisdiction courts have had to consider the admissibility of evidence obtained in circumstances amounting to a breach of rights considered fundamental. I consider it useful therefore to consider these cases while acknowledging that this is ultimately a matter for the Irish courts.
The Law of the United States
70. As addressed in part in Kenny itself, Mapp v. Ohio, however it may have seemed in 1963, did not succeed in establishing itself as a fixed part of the jurisprudence of the US. It was criticised almost immediately, and the period since 1963 has seen considerable qualification and retrenchment of the absolute rule established in Mapp for all criminal prosecutions whether State or Federal. In a recent influential book by the late Professor William Stuntz The Collapse of the American Criminal Justice (Harvard; Harvard University Press; 2011) it was labelled one of the errors of the Warren court.
71. In considering this jurisprudence it is relevant to remind ourselves, that the US courts exclude all evidence which can be shown to have been acquired as a direct result of evidence itself obtained in circumstances rendering it inadmissible. Such evidence is treated as the “fruit of the poisoned tree”. However the US courts have held that where evidence was obtainable from an independent source, or would inevitably have been discovered, it may be admitted. There is also a doctrine of attenuation which provides, that if there is any intermediate act which separates the violation of the right from the evidence obtained, the evidence may be admissible. Of course, in Leon, the Court also held that evidence held in good faith execution of a warrant subsequently found invalid, could be admitted. The scope of the rule has also been narrowed and it has been found inapplicable to civil tax proceedings, habeas corpus proceedings, deportation proceedings, and, in United States v. Calandra 414 U.S. 338 (1974), to proceedings before a grand jury. The reasoning of Justice Powell in that case has been influential more generally:
72. In Hudson v. Michigan 547 U.S. 586 (2006), the court addressed the substance of the rule and whether evidence obtained in breach of the “knock and announce” requirement, should be excluded. Justice Scalia speaking for the Court held that such evidence should be admitted:
In the influential comment in the Harvard Law Review, the editors of that review noted:
“Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates ‘substantial social costs,’ United States v. Leon … which sometimes include setting the guilty free and the dangerous at large. We have therefore been ‘cautio(us) against expanding’ it, … and ‘have repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging (its) application’ .. We have rejected ‘[i]ndiscriminate application’ of the rule … and have held it to be applicable only ‘where its remedial objectives are thought most efficaciously served’ … that is, ‘where its deterrence benefits outweighs its substantial social costs’”.
73. This prediction has been borne out by subsequent decisions. In Herring v. United States (555) U.S. 135 (2009), the court dealt with an arrest made on the basis of a warrant listed on a neighbouring county’s database of warrants. It transpired that the warrant had been recalled months earlier, but the information had been not entered until after the date of the arrest. However on a search consequent to the arrest, the police found a gun and drugs. It was argued that this evidence ought to be suppressed because the arrest ought not to have been effected. Roberts C.J. observed:
“The majority’s reasoning in Hudson represents a significant step toward eliminating the exclusionary rule.” (120 Harv. L. Rev. 173 (2006))
The court identified the matter of principle as follows:
“Our case establishes that … suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.”
This is a useful analysis of the rationale of the rule and the limits that suggests. Significantly in the present context, it would mean exclusion for breaches which were reckless, grossly negligent and possibly systemically negligent, even if not deliberate and conscious.
“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can deter and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.”
74. In 2011 the Court decided Davis v. United States 564 U.S. – (2011). While conducting a routine vehicle stop police arrested Davis, a passenger, for giving a false name. Having handcuffed him and secured the scene, the police searched the vehicle and found a revolver. The search was held to be unconstitutional but was in accordance with the law of the relevant circuit, at the time the search was carried out. A majority of the Court held that the evidence was admissible. Justice Alito said that the exclusionary rule:
I appreciate that there are dissenting arguments and other views expressed. It is not however necessary to express my views on the strengths or merits of the many different theories advanced. It is not necessary to accept all of the subsequent jurisprudence of the US Supreme Court anymore than it was necessary to accept Mapp. But the inescapable fact is that the US, which at one stage had the most far-reaching exclusionary rule, has long since abandoned an absolute or near absolute exclusionary rule.
“…[A]lmost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. … Our cases hold that society must swallow this bitter pill when necessary, but only as a ‘last resort’. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.”
75. The law of evidence and criminal procedure was largely codified in the Police and Criminal Evidence Act 1984. Section 78(1) preserves the common law power to exclude evidence where its prejudicial value outweighs its probative value. Section 78(2) provides that a trial judge should have discretion to exclude evidence obtained from a search if its admission would render the proceedings unfair.
76. It is particularly noteworthy that this balancing test has not been affected by the entering into force of the European Convention on Human Rights Act. In Attorney General’s Reference (No 3 of 1999)  2 A.C. 91, the judgment of Lord Cooke of Thorndon contains a useful analysis of the law of other common law countries, which he considered was broadly similar to the law under the European Convention:
It should be noted that this passage states the law as of 1999, and in two of the countries surveyed, Canada and New Zealand, there has been a significant development of the law, and in each case in the direction of the greater admission of evidence.
“It may be worth adding that just as in the European Convention law, as Lord Steyn has pointed out, there is no principle that unlawfully obtained evidence is not admissible, so there is no such general principle in Commonwealth countries. Approaches differ somewhat among the jurisdictions. Thus in Canada evidence obtained in breach of the Charter will be excluded if its admission is likely to bring the administration of justice into disrepute (R v Collins  1 SCR 265); in Australia the leading cases recognise a judicial discretion in which the competing demands of the public interest in the prevention and punishment of crime, on the one hand, and fairness to the accused, on the other, have to be weighed (Bunning v Cross (1978) 141 CLR 54; Ridgeway v The Queen (1995) 184 CLR 19); and in New Zealand, while it has long been held that the judicial discretion to exclude unfairly obtained evidence is wider than that recognised in England at common law in R v Sang (1980) AC 402 and Kuruma v The Queen  AC 197, a line of cases has treated evidence obtained in breach of the semi-constitutional provisions of the Bill of Rights as prima facie inadmissible but subject to exceptions created by overriding demands of justice… .” (p. 120)
77. The development of the jurisprudence of fundamental rights in Canada since the adoption in 1982 of the Charter of Fundamental Rights (“the Charter”) has been remarkable. Canadian jurisprudence represents an intersection between common law and constitutional rights which makes it a useful point of reference for Irish courts. Unusually, the Charter specifically addresses the consequence of the obtaining of evidence in breach of a Charter right. Section 24(2) of the Charter requires the court to exclude from a criminal trial any evidence obtained in a manner that infringed or denied a Charter right if, in all the circumstances, admission of the evidence could bring the administration of justice into disrepute. It is pointed out by the respondent that in so providing, the Charter excludes the possibility of an automatic absolute exclusionary rule such as that which briefly held sway when Mapp represented US law. However, this distinction, while valid, is not a convincing reason to disregard the Canadian jurisprudence. The definition of circumstances bringing the law into disrepute is a matter for the court, and accordingly, leaves a broad area for decision. It would in theory have been possible to argue that a near absolute exclusionary rule (subject to exceptions) was required to prevent the administration of justice being brought into disrepute. In any event, the discussion of the question of what constitutes the bringing of justice into disrepute is instructive, since the values considered are similar to those which are discussed in all jurisdictions including Ireland.
78. The Canadian courts have adopted two broad tests as justifying exclusion, firstly, where the exclusion is required because it would otherwise effect the fairness of the trial, and second, where there has been a “serious violation” of the Charter rights. In the first case, evidence that could not have been collected but for the unconstitutional participation of the accused is regarded as affecting the fairness in the trial and would normally be excluded. In the second case, the gravity of the Charter violation may lead to exclusion, irrespective of the impact on the fairness of the trial. In such a case it becomes necessary to consider, in terms reminiscent of O’Brien, whether the breach of the Charter was deliberate or inadvertent. Where a violation of the Charter occurs in good faith, exclusion of evidence is not required. The Canadian Supreme Court has defined good faith widely to include reliance upon legislation, warrants, policy directives, prior cases, legal advice or accepted practice, which were later found to be unconstitutional. In R v. Collins  1 S.C.R. 265 (“Collins”), which was referred to by Lord Cooke in the UK case of the Attorney General’s Reference (No 3 of 1999), the Supreme Court adopted a rule of presumptive exclusion. Lamer J. noted a number of factors which had been enunciated in the previous cases in the exercise of judicial discretion under s. 24(2):
79. Once again the similarity of these factors to those canvassed in other jurisdictions including Ireland, is instructive. Lamer J. indicated that this was not an exhaustive list and gave his own view that the final factor – the availability of other remedies – was not particularly relevant as it could never save the administration of justice from disrepute. While these factors are of obvious relevance in the current context, the Collins approach focussed on whether evidence could be said to be “conscripted from the accused and also sought to distinguish between real evidence and other evidence”. The rigidity of the test was criticised, and the Court returned to the issue in R v. Stillman  1 S.C.R. 607 (“Stillman”). That case, as many of the cases in this area, concerned the admission in evidence of swabs and other real evidence taken from an accused in breach of his rights. In this case, the appellant was accused of the murder and rape of a teenage girl. At the time of his arrest he was 17 years old. At the police station the appellant’s lawyers informed the police by letter that he did not consent to providing bodily samples or giving any statements. Notwithstanding this, the police officers took scalp hair samples from him and he was required to pull out some of his own pubic hair. Teeth impressions were also taken and discarded tissue used by the appellant was seized from the waste basket. The trial judge found that the evidence was taken in violation of the appellant’s Charter rights. However he held the evidence to be admissible. The Court of Appeal upheld the accused’s conviction. The Supreme Court of Canada held however that the hair samples, buccal swaps and dental impressions should have been excluded. A new trial was ordered. However, the Court held that the evidence obtained from the discarded tissue was admissible. One of the significant features for the Court was the fact that the evidence obtained could have been obtained properly, and was not in any danger of disappearing.
“what kind of evidence was obtained?
what Charter right was infringed?
was the Charter violation serious or was it of a merely technical nature?
was deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?
did it occur in circumstances of urgency or necessity?
were there other investigatory techniques available?
would the evidence have been obtained in any event?
is the offence serious?
is the evidence essential to substantiate the charge?
are other remedies available?” (para. 35)
80. The law emerging from Stillman and Collins was criticised as creating an exclusionary rule which was a narrow bright line rule and did not permit effective consideration to be given to other relevant factors. In 2009 the Canadian Supreme Court decided R v. Grant  2 S.C.R. 353 (“Grant”). This set a new analytical framework for considering whether evidence should be excluded:
81. In that case, Grant, the police had noticed the accused acting suspiciously and approached him. One of them obstructed him from walking forward and a conversation then took place during which he told the police that he had a “small bit of weed” and a firearm. He was then arrested and the gun and drugs were seized. The Court of Appeal held that he had been wrongfully detained in contravention of the Charter at the time in which he made the incriminating statements and was arrested. The Supreme Court held that the evidence although obtained in breach of a Charter right, was admissible. The infringement was not serious and the evidence cogent and important.
“When faced with an application for exclusion under s.24(2), a court must assess and balance the effect of admitting the evidence and society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing State conduct, (2) the impact of the breach on the Charter-protected interest of the accused, and (3) society’s interest in adjudication of the case on its merits. At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on these interests the greater the risk that admission of the evidence would bring the administration of justice into disrepute. At the third stage, a court asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of evidence and its relevance to the Crown’s case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case.” (pp.357 – 358)
82. Perhaps the most interesting analysis from an Irish perspective, is that undertaken in New Zealand after the enactment of the New Zealand Bill of Rights Act of 1990. Initially, the courts in New Zealand had adopted the approach that evidence obtained as a result of breach of the rights guaranteed by the Bill of Rights was presumptively excluded unless the prosecution satisfied the courts that there was good reason for admitting the evidence. The prima facie rule was criticised as becoming unduly rigid and in R v. Shaheed  2 L.R.C. 634 (“Shaheed”) the New Zealand Court of Appeal conducted a review of the approach in the light of experience since the enactment of the Bill of Rights. The prima facie exclusion was replaced with a balancing test.
83. Shaheed was, like Collins, a case involving DNA evidence. However, whereas Collins involved the taking of samples from the suspect after the crime, Shaheed involved the failure to dispose of a sample taken earlier from which a critical DNA match was made.
84. The case involved the abduction and rape of a 14 year old girl. While detained for a separate offence a year earlier, the defendant was asked for a blood sample from which a DNA profile could be extracted and retained. It was this sample which was matched to the DNA taken from the victim. That victim later identified the accused from a photo montage. However, it was conceded that the original DNA sample was not taken with the full consent of the accused, was therefore obtained unlawfully, and accordingly in breach of the rights guaranteed under the Bill of Rights. The matter however did not end there. An application was then made to the High Court to obtain a sample by court order, it being submitted that there was “good cause to suspect ” that the accused committed the crime. However the Crown did not in this application rely on either the earlier DNA sample or the identification. The application was granted and an issue arose then as to the admissibility of that evidence at the trial.
85. By a majority of six to one, the Court of Appeal of New Zealand replaced the prima facie exclusionary rule with a balancing test consistent with that applied by the Privy Council in the Trinidad and Tobago case of Mohammed v. The State  2 A.C. 111. There the evidence concerned a confession obtained in breach of a defendant’s constitutional right to be informed of a right to communicate with a legal advisor under the Constitution of Trinidad and Tobago. Lord Steyn held that a balancing test must be applied:
This echoes the approach taken in O’Brien in considering that deliberate breach would normally justify exclusion.
“In such a case not every breach will result in a confession being excluded. But their Lordships make clear that the fact that there has been a breach of constitutional right is a cogent factor mitigating in favour of the exclusion of the confession. In this way the constitutional character of the infringed right is respected and accorded a high value. Nevertheless, the judge must perform a balancing exercise in the context of all the circumstances of the case. Except for one point their Lordships do not propose to speculate on the varying circumstances which may come before the courts. The qualification is that it would generally not be right to admit a confession where the police have deliberately frustrated a suspect’s constitutional rights.” (p. 124)
86. The Court of Appeal of New Zealand in Shaheed recognised that there were arguments favouring a prima facie rule of exclusion. Principally these were that they recognised the importance of a guaranteed right, exclusion may be the only effective means of vindicating a breach, such a rule would diminish any appearance that the courts are deciding cases on the basis of ends rather than means, and it has the benefit of making clear to the police or investigating authorities that there is no utility in obtaining evidence via breach of rights. The Court of Appeal observed that there was much force in these arguments but there were other considerations:
87. This is reminiscent of the observations Lavery J. made almost half a century earlier in the context of O’Brien. Blanchard J. observed that where a breach had been committed in deliberate or in reckless disregard of the rights of the accused, exclusion would often be the only appropriate answer. However, in considering what was a deliberate breach of a constitutional right, Blanchard J. expressly considered the decision of this Court in Kenny and refused to follow it:
“But a balancing test in which, as a starting point, appropriate and significant weight is given to the fact that there has been a breach of a quasi constitutional right can accommodate and meet them. Importantly, a prima facie rule does not have the appearance of adequately addressing the interest of the community that those who are guilty of serious crimes should not go unpunished. That societal interest, in which any victim’s interest is subsumed, rather than being treated as a separate interest, will not normally outweigh an egregious breach of rights – particularly one which is deliberate or reckless on the part of law enforcement officers. But where the disputed evidence is strongly probative of guilt of a serious crime, that factor too must be given due weight. A system of failed justice will not command the respect of the community if each and every substantial breach of the accused’s rights leads almost inevitably to the exclusion of crucial evidence which is reliable and probative of a serious crime. The vindication will properly be seen as unbalanced and disproportionate to the circumstances of the breach.” (p. 683)
This is an important point. It is a valid observation, and on one view, criticism of the rule in Kenny, that it treats deliberate or reckless breaches of rights in exactly the same way as an error arising from a genuine misunderstanding of a legal complication or as in this case (and in Kenny) an error in anticipating a decision not yet made.
“We would not, however, subscribe to the Irish view of what constitutes deliberate breach, but would confine it to acts or omissions which are to the knowledge of the officers concerned a breach of rights. An action not known to be a breach of rights does not merit the same degree of condemnation as one which is known to be so, particularly if the police error arose from a genuine misunderstanding of a difficult legal complication.” (p. 684)
88. The Court of Appeal of New Zealand took a different view from that of the Supreme Court of Canada in relation to the importance of real evidence. The New Zealand court was prepared to accord greater weight to the factor that such real evidence obtained may be of probative value:
89. The decision in Shaheed was adopted in the New Zealand Evidence Act of 2006. Section 30 of that Act required that a judge determine whether on the balance of probabilities the evidence had been improperly obtained, and if so whether the exclusion of evidence was proportionate to the impropriety. In considering that matter, the Court may among other matters, have regard to the following:
“…where real evidence, like drugs or a weapon, have been found even as a result of a confession, the probative value of that discovery may be a weighty factor. The Supreme Court of Canada’s view of trial unfairness as encompassing even the use of real evidence of undoubted reliability should not be adopted in this country. A trial is not to be regarded as potentially unfair by reason of the admission of evidence unless that evidence might lead to an unsafe verdict.” (p. 685)
“(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless or done in bad faith:
(c) the nature and quality of the improperly obtained evidence:
(d) the seriousness of the offence with which the defendant is charged:
(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others;
(h) Whether there was any urgency in obtaining the improperly obtained evidence.” (s. 30(3))
90. Since this case was argued I have had occasion to consider the decision of the constitutional court of South Africa in Estate Agency Affairs Board v. Auction Alliance (Pty) Ltd & Ors (2014) Z.A.C.C. 3 (“Estate Agency Affairs Board”), which should be included in this survey if only for the purpose of completeness. It is a case which has some obvious resonances for this case. Of course, case law from any jurisdiction must be put in its proper context, and approached with a certain amount of caution. Further, the South African Constitution, and its role, is in some respects quite distinct, and the role of the constitutional court avowedly different to that of courts in other countries. In this case it is necessary to know that s. 172 of the South African Constitution permits the Court to make a variety of orders when a declaration of unconstitutionality is made. It may suspend the effect of the declaration and may limit its retrospective effect. It may also make such orders as it considers appropriate.
91. In the Estate Agency Affairs Board case, the Board was a regulatory authority given statutory power to regulate the business of estate agencies. This was considered an important public objective because of the amount of money found to flow through such businesses. Section 32(A) of the Estate Agency Affairs Board Act of 1976 permitted the agency to conduct investigations and for that purpose, at reasonable times, to enter without warrant, any premises to search and retain documentation related to the investigation.
92. The South African High Court held that such power was over broad and therefore unconstitutional. That finding was not challenged in the constitutional court and the principal focus of the decision was the consequential orders which were to be made. The Constitutional Court made an order that the declaration of invalidity should be prospective only, and furthermore should be suspended under s.172 for a period of 24 months to allow the legislature to amend the Act and to make it consistent with the constitutional principles and in particular by requiring the application to an independent authority for the grant of a warrant. The court also exercised its powers to read down certain statutory provisions to permit the issuance of a warrant in certain circumstances. The Court however, rejected an argument made on behalf of the Estate Agency Affairs Board that it could itself issue a warrant in the exercise of its full jurisdiction and thus validate the search in question.
93. The important question remained however what should become of the evidence gathered under the unconstitutional search conducted pursuant to an invalid and unconstitutional warrant. The actual evidence itself had been retained and held pending the determination of the Court. It was argued on behalf of the respondent to the appeal that the evidence should now be returned to the defendant who could, if he wished, destroy it. The Court rejected that argument holding that the Board should be entitled to make an application for a search warrant and if granted would then be entitled to use the evidence. The relevant portion of the reasoning of the Court is set out at paragraphs 68 and 69 of the judgment:
“… the board should be enabled to apply for the warrant it seeks under the provisions of the statutes as they appear after the reading in ordered below. For its part, Auction Alliance resisted affording the board this opportunity. It strongly urged that this would be unfair. It pointed out that it had resisted the board’s exercise of statutory powers, and its challenge had shown those powers to be unconstitutional and invalid. There must, it said, be some consequence. And the consequence is that the evidence to which the board seeks to gain access should be lost to it. That, counsel for Auction Alliance urged, was the price we pay for living in a constitutional democracy.
But this is surely wrong. Constitutional litigation is not a game of win-or-lose in which winners must be identified for reward, and losers for punishment and rebuke. It is a process in which litigants and the courts assert the growing power of the constitution by establishing its meaning through contested cases. In practical terms, it was unrealistic to expect of the board that it should understand perfectly in advance that the powers it sought to exercise against Auction Alliance were or would be declared unconstitutional. It is not liable to a penalty because it tried to use statutory provisions this litigation has now determined are constitutionally invalid. (Compare Illinois v Krull (1987) 480 US 340 at 349 – 350, where it was deemed unnecessary to exclude evidence obtained under a statute authorising warrantless administrative searches where the search was performed in objectively reasonable reliance on the statute and the statute was only later declared unconstitutional.)”
94. Until recently, notwithstanding the near absolute nature of the rule, and the considerable controversy in other jurisdictions the exclusionary rule did not receive much academic scrutiny in Ireland. That however has changed somewhat in recent times. The decision in Kenny was subjected to penetrating criticism in Charleton, McDermott & Bolger, Criminal Law, (Dublin; Butterworths; 1999), pp. 134-138, prefiguring the approach of Charleton J. in The Director of Public Prosecutions (Gda Walsh) v. Cash  I.L.R.M. 443). The matter is also addressed in two places in McGrath, Evidence, (Dublin; Thomson Round Hall; 2005; 1st ed.). In the foreword, Keane C. J. (as he then was) said that this was an area of law in need of “clarification or even radical reform”. He observed that:
The same work contains a very detailed analysis of the decisions in O’Brien and Kenny. At page 338 the author comments on Kenny as follows in a passage which it is worth quoting in full:
“One can resist the proposition that in a case of what the law has sometimes called “real evidence”, such as illegal drugs found in a house, courts should not be obliged to decide the case without regard to the existence of such evidence, however it has been obtained. But there is surely room, in the case of trivial law and intended infringements of a person’s constitutional rights, for a process of balancing the need to uphold the rights of particular individuals the interest of the public in the prosecution of serious crime.” (p. xviii)
This passage is repeated and expanded on at paragraphs 749-774 of the 2nd edition (2014) of that work. The law, and recent developments are also helpfully discussed at pages 375-406 of Evidence in Criminal Trials, Heffernan and Ní Raifeartaigh, Bloomsbury, Dublin, 2014, which help survey the law and discusses the possibility of a tightly drawn de minimis exception to the exclusionary rule. These books were published since argument was completed in this case, and I mention them for the sake of completeness.
“A number of criticisms can be made of the decision of the majority in Kenny. The first and most obvious is the judgment … is based on the false premise that the court was required to make a choice between two possible alternatives, the “deterrent principle” and the “principle of absolute protection”. Central to the judgment … was the unstated proposition that, once the theory of vindication is accepted as the rationale for the exclusionary rule, it necessarily follows that all unconstitutional evidence must be excluded i.e. an “absolute rule of exclusion” must be adopted”.
However, this is not the case. In the first place, it is important to emphasise that the exclusionary rule is a judicially created remedy. It is open to the courts to decide the parameters of the rule and to hold that the compensatory effect of the rule should only be available where the person who has breached the constitutional rights of the accused has a particular intention or state of knowledge. Secondly, insofar as the vindication principle is founded on the provision of the Constitution and in particular Article 40.3, it is evident that the obligations imposed on the State by Article 40.3 are qualified by considerations of practicality and the State guarantees to defend and vindicate the personal rights of the citizen “as far as practicable” and to protect those personal rights “as best it may” from unjust attack. These limitations were adverted to in Moynihan v. Greensmyth  I.R. 55 where O’Higgins C.J. stated:
“The guarantee of protection given by Article 40.3.2 is qualified by the words “as best it may”. This implies circumstances in which the State may have to balance its protection of the rights as against other obligations arising from regard for the common good.”
Arguably the impairment of the truth finding function of the courts entrusted, under the Constitution, with the task of administering justice, places a limit on the practicality of vindicating the constitutional rights of the citizen. The courts could therefore, consistent with the text and underlying policy of Article 40.3, decide that the judicially created remedy of the exclusionary rule should be tempered in its application by regard to the constitutional rights of others such as the rights to life, bodily integrity and property, of the victims of the crime, or more generally the interests of the community in the prosecution of offenders. Thirdly, the exclusionary rule espoused in Kenny does not, in fact, provide an “absolute rule of exclusion” because [the court] endorsed the holding in O’Brien that that exclusionary rule would not apply if there was an extraordinary excluding circumstances. These exceptions, which as enumerated … in O’Brien, include the imminent destruction of evidence and the need to rescue a victim in peril, are clearly predicated on the proposition that there are circumstances which the vindication of the constitutional right of the accused is not required because of competing constitutional rights of the public interest in the prosecution of offenders …” Another criticism of the decision in Kenny is that the Court, having effectively reclassed the O’Brien exclusionary rule, failed to dispense with the requirement that a breach of constitutional rights be “deliberate and conscious”. Although the etymology of this formulation is evident, its retention is confusing and furthermore, its reinterpretation as meaning that the act constituting the breach was intentional is illogical. If the court … is adopting an “absolute rule of exclusion”, then it would seem to be irrelevant whether the act that breached the constitutional right of the accused was “deliberate and conscious” because the application of the exclusionary rule would be triggered by the mere fact that the constitutional right had been breached. Thus, the retention of the requirement that the breach be “deliberate and conscious” does not make any sense and the only value in its retention would be its function as a quasi minimis qualification. Yet it performs this function only inadequately, and it would be much better to actually articulate a de minimis threshold.”
95. From this survey of the law of comparable jurisdictions and commentary in relation to Kenny it is possible to draw certain conclusions. First, it seems clear that Kenny represents a near absolute exclusion which is the most extreme position adopted in the common law world. Second, it is apparent that on analysis, the exceptions allowed for in Kenny have little or no scope for practical application particularly in the case of warrants. Viewed in that way, Kenny is perhaps worse than an absolute rule: it presents itself as superficially balanced while in practice always resulting in the exclusion of evidence. It also suffers from the defect, at least in my view, that it effects a very dramatic recalibration of the law, while purporting to maintain superficial consistency with the decision in O’Brien and adopting its language. Whatever justification there is for the result in Kenny it is unlikely that an acceptable test can be achieved by maintaining the superficial language and structure of O’Brien. Furthermore, whether viewed as a near absolute rule, or as a rule subject to limited exceptions, the reasoning in Kenny is simply not sufficient to justify either conclusion.
96. On the other hand, I do not consider that the choice should be between Kenny (or some franker version of an absolute rule) and a return to O’Brien. It is I think, apparent that a rule which only excluded evidence obtained in deliberate breach of the constitutional rights is inadequate, and indeed it is this inadequacy which led in part to the result in Kenny. Any rule of exclusion should also exclude evidence obtained in reckless or grossly negligent disregard of the Constitution. Furthermore, while the foreign authorities and commentaries show an impressive consistency in rejecting any approach akin to Kenny, and suggesting that there should instead be a balancing approach, there is less consistency as to how that balance should be applied either in theory or in respective individual cases.
97. It is necessary therefore to confront, at the level of principle, the question of whether an absolute rule is required by the Constitution, in particular Article 40.3.2. It is relevant that there does not appear to be any authority in Irish law, and no contemporary law of any common law country, for such a rule. It is of course the case that the Constitution does not require the exclusion of evidence in express terms, and indeed says nothing about the admission of evidence. As is often the case, it is important therefore to identify the correct question to be posed. If this issue is addressed solely in terms of the vindications of a right breached, then it is a short step to the exclusion of evidence. But in my view that is the wrong question. A court, whether criminal or civil, addressing the admissibility of evidence is not engaged in the question of remedying a breach of the right, as a court asked to grant an injunction to restrain a trespass might be. A criminal or civil trial is the administration of justice. A central function of the administration of justice is fact finding, and truth finding. Anything that detracts from the courts’ capacity to find out what occurred in fact, detracts from the truth finding function of the administration of the justice. As many courts have recognised, where cogent and compelling evidence of guilt is found but not admitted on the basis of trivial technical breach, the administration of justice far from being served, may be brought into disrepute. The question is at what point does the trial fall short of a trial in due course of law because of the manner in which evidence has been obtained? When does the admission of that evidence itself bring the administration of justice in to disrepute? This analysis leads inevitably to a more nuanced position which would admit evidence by reason of a technical and excusable breach, but would exclude it where it was obtained as a result of a deliberate breach of the Constitution. The challenge is to identify some dividing line between these two extremes and which gives clear guidance to courts faced with more difficult questions. But in my view, there is neither authority nor constitutional justification for an absolute rule or near absolute rule of exclusion.
98. Furthermore, it only makes sense to adopt a bright line rule, where there is no alternative rule which is feasible. A rule of near automatic exclusion extracts a heavy price in the exclusion of evidence obtained as result of inadvertence, good faith or excusable error. If a rule can be devised which admits evidence in such cases while still excluding other evidence obtained as a result of a breach of constitutional rights, then there is no justification for an absolute rule. It may be argued however, that any exception will come to be exploited to allow for the routine admission of evidence particularly in difficult cases. I do not doubt the possibility of judicial error from a misguided approach to the law, an occasional lapse of judgment, or a lack of sufficient robustness, but I do not think that such frailty is limited to trial courts. However, it would be entirely dispiriting, and ultimately futile, to devise rules on the assumption that they would not be conscientiously followed by courts whose judges make the same declaration to uphold the Constitution that this Court does. The remedy for judicial error is the same in this field as elsewhere: a requirement that judges give reasoned rulings on issues, with the possibility of review and appeal. This provides an incentive in advance to rigorously scrutinise the facts and apply the law, and a remedy in the event that it is not done. This is the system which applies in all other fields of the law, criminal and civil, and I see no reason why it should not be adopted here.
99. I am satisfied that the decision in Kenny is wrong in principle and should be overruled. I am conscious that this Court does not take such a course lightly. There is no doubt that this Court has the power to reverse an earlier decision (The Attorney General & Anor v. Ryan’s Car Hire  I.R. 642); that it should not do so in general, simply because it comes to a different conclusion, but only where the previous decision is clearly wrong, and moreover, cannot be said to have become inveterate, or become the basis of a shared understanding of the law, (Mogul of Ireland Ltd v. Tipperary (North Riding) County Council  I.R. 260), This principle does not apply with the same force in constitutional matters( per Keane J Denham J concurring in SPUC v Grogan  4 IR 343 ) but even there the doctrine of precedent has an important role which makes the court cautious in overruling its prior decisions. I should say that notwithstanding the views expressed by Mr Justice Mc Kechnie in his comprehensive and admirable judgment, which I respect, Kenny would seem a particularly inappropriate decision to benefit from this principle given the fact that it accords no such respect to the decision in O’Brien ( which, on the view I take , it overruled implicitly) , and the decision in Shaw , which on any view it explicitly overruled. However, having considered the matter carefully, I am satisfied that the decision in Kenny is wrong by any standard. I am however satisfied that it would not be appropriate to allow the law merely to revert to that outlined in O’Brien. For reasons I have sought to address at some length there are difficulties with that approach, which the intervening years have illustrated. I agree with the approach suggested in the judgment of Clarke J. Since I agree that it is desirable to have the maximum clarity in this area I do not consider it useful to seek to paraphrase that test or say more than appears to me to be consistent with my analysis of the law in this area.
100. In the judgment which he has delivered, Mr Justice Hardiman holds that the right of prosecution appeal created by s. 23 of the Criminal Procedure Act 2010, does not permit the Court to consider whether or not Kenny was correctly decided. Mr Justice Murray and Mr Justice Mc Kechnie express a similar view. On this interpretation the appeal under s.23 is limited to cases which can be said to be examples of judicial error in the application of the existing law (a wrong application of law) but does not include a decision applying a precedent binding on that judge. Even if it is contended, and is the case, that on analysis, the precedent is wrong, even a wrong interpretation of the constitution (the application of wrong law) I respect the force with which this argument is advanced, and the skill with which the supporting materials are deployed, but I cannot agree that it represents sound law, logic or indeed history.
101. It is in my view misplaced to seek to apply to the State parties in this appeal the stinging criticism applied by Lord Atkin to his colleagues in Liversidge v Anderson  A.C. 206 (“Liversidge”) not least because the State did not advance any interpretation of s. 23 as part of its appeal since this point was not raised by either party. Counsel for the respondent politely but firmly disavowed any such argument, because he considered (correctly in my view) that it represented an unjustifiably narrow interpretation of the section. In any event, the analogy with Liversidge is misplaced in another respect; the interpretation of s.23 which permits in a prosecution appeal to raise all issues of law which would be open on a defendant’s appeal, is a straight forward and natural interpretation of the section. By contrast, the thrust of the contrary argument is that principles either embodied in the Constitution, or long established in the common law, require a narrower, more limited, and if I may say so, unnatural meaning to be given to the words of the section. I would have welcomed counsel’s researches and argument on this point had it been raised as one of the issues on this appeal. It is central to the adversarial system, which is a core part of the justice administered in these courts that a party should have the ability to address argument on any matter which might be decided adverse to him. I recognise the value which judicial researches may bring to a case , but I respectfully question the volume and range of materials deployed here to advance a proposition, not merely not advanced in argument but expressly disavowed, and which accordingly the opposing party has not had the opportunity of addressing in argument. Even in the absence of such argument however, it appears to me that there are fundamental objections to the interpretation advanced.
102. Looked at first as a matter of principle, it is worth considering this issue from the point of view of a defendant who wished to appeal a conviction itself the consequence of what is contended to be the wrongful admission (or exclusion) of evidence by the trial judge in application of a binding precedent. There are at least three ways in which the ruling of the trial judge could be said by an aggrieved defendant to be ‘erroneous’ or ‘wrong’, and which he or she might seek to ‘appeal’. First, if the trial judge simply misapplied the relevant authority; second, if the trial judge misinterpreted the authority as applying (or not); and finally, if this Court or if the appeal court was persuaded that the relevant authority should be distinguished, departed from or overruled. As any lawyer knows, the line between these categories can be blurred. Sometimes appellate courts adopt novel interpretations of long standing authorities to the surprise of trial courts. Sometimes authorities are distinguished in a way which in practice amounts to a reversal. Arguably something like this occurred when the decision in Kenny purported to apply, but in reality overruled, the decision in O’Brien. Trial judges may legitimately grumble when a decision made in purported loyal application of a binding authority (with which the judge himself or herself might disagree if free to do so) is subsequently overturned because an appeal court, at whatever level in the system, has distinguished or overruled the prior authority. But until now, no one has doubted that an appellant, whether civil or criminal, is fully entitled to appeal a decision on the grounds that an error was made either because of the wrong application of a prior decision, or because of the application of a precedent which it was argued was wrong, and any point in between those two extremes. If it were otherwise, it is arguable for example, that Kenny could not have been decided in the way it was, and that it ought to have been a full answer to the argument in O’Brien, which absorbed the attention of the Supreme Court for so long, that the trial judge had merely applied the existing law. If accordingly, the words “appeal”, “error” and “wrong” can comprehend all such arguments when advanced on behalf of a defendant in a criminal trial (and indeed any party in a civil trial) it is clear, that at least prima facie, they have the same meaning included in a provision permitting for the first time the prosecution to appeal with prejudice from a ruling of a trial judge.
103. It is perhaps possible to take a more concrete example from the facts of this case. It will be recalled that the search here took place before the challenge to the validity of the issuance of the warrant was decided in the High Court but the trial took place after this Court had upheld that challenge and reversed the High Court decision. But if the sequence was slightly different, and both the search and the Circuit Court trial had occurred after the High Court decision, and before the decision of this Court, and it was sought to exclude the evidence obtained on the grounds that the warrant was invalid and the search an unconstitutional violation of a dwelling home, the Circuit Court would, as I understand it, have been bound by the decision of the High Court in Damache v. The Director of Public Prosecutions & Ors  IEHC 197 and would have admitted the evidence. If the accused then appealed, I do not think it could be suggested that he was not entitled to rely on the Supreme Court decision and succeed in his appeal, merely because the trial judge had followed a decision then binding upon her.
104. I can see no reason in logic therefore to give the concept of appeal or error or wrong, anything other than their natural and ordinary meanings, particularly as understood in the context of both criminal and civil procedure. In particular, if such a breadth of appeal is open to the defence, it is difficult to see why the ordinary meaning of the word should not be applied in the context of prosecution appeals, particularly if, as is suggested, this was an innovation introduced as part of what was described as a balancing, or rebalancing, of the criminal process, and allowing retrials in (one further) express departure from an absolute principle against double jeopardy whatever the merits or wisdom of that approach. Indeed given the fact that an erroneous but binding authority can do much more damage to the administration of justice than a single error by a trial judge, I see no reason why the legislature would seek to limit an appeal to the latter, and exclude the former. But if the legislature did see fit to do so, it would surely have said so explicitly, rather than left this conclusion to be deduced from straightforward language of apparently general application. If however in addition to the established rule that no behaviour shall be made criminal after the fact (see Article 15.5 of the Constitution and The Federalist Papers LXXXIV) there is a newly discovered principle that the common law in respect of evidence and every interpretation of statute is to be frozen as of the time of the trial or possibly the alleged offence, no matter at what level in the judicial hierarchy the decision was made, then the law would be atrophied, incapable of the sort of judicial development which has made the trial process fairer, and fully deserving of Jonathan Swift’s criticism that the rule of precedent was an exercise in finding the worst possible decision and repeating it ad infinitum. But since this is a question of interpretation I see no reason to assume the Oireachtas took this view without saying so explicitly, and can find no evidence that this limitation on the scope of appeal was contemplated.
105. Leaving aside the statement of the Minister for Justice which is uninformative, and in any event probably excluded from our consideration by virtue of Crilly v. T. & J. Farrington Ltd & Ors  3 I.R. 251, I agree that the official reports published and considered in the lead up to a change of the law, can assist in its interpretation. However, in my view the background extends well beyond the Final Report of the Balance in the Criminal Law Review Group (2007). In fact, the question of prosecution appeals with or without prejudice, have been a source of relatively active debate in Ireland not least because of the controversy that followed from the decision in The People (Director of Public Prosecutions) v. O’Shea  1 I.R. 384 (“O’Shea”). As I understand it, prosecution appeals (both without prejudice and with prejudice) were considered and recommended by the 22nd Interim Report of the Committee on Court Practice and Procedure, Prosecution Appeals (Dublin; Stationery Office; 1993) and have been debated ever since. Most notable in the present context, is perhaps a very extensive Consultation Paper on Prosecution Appeals in Cases brought on Indictment which was published by the Law Reform Commission in 2002 (LRC CP19-2002), and a Final Report issued in 2006, Prosecution Appeals and Pre-Trial Hearings (LRC 81-2006) (in which, as it happens, I was involved, and which considered but did not recommend with prejudice prosecution appeals), and the Report of the Working Group, The Criminal Jurisdiction of the Courts (Dublin; Stationery Office; 2003). One thing these documents have in common is that to my mind they contain no hint of the distinction now sought to be made between the erroneous application of authority, and the application of erroneous authority. If this distinction was a live and plausible one which ultimately found expression in the 2010 Act, I think it is surprising that it would escape comment, particularly if it flows from long established principles of the common law asserted to have been embedded in the Constitution. The reports also show that the historical position in common law countries was rather more complex than some of the more emphatic judicial statements might suggest. It is in any event of particularly limited value to refer to nineteenth century statements of general principle uttered before appeal even by the defendant was a possibility, and when the outcome of a trial at first instance was binding and conclusive on both sides.
106. Reg. (Giant’s Causeway & c., Tramway Co.) v. Justices of Co. Antrim (1)  2 I.R. 603 is a dramatic case that makes for absorbing reading, not least because the member of the bench of local magistrates against whom the allegation of interest was made (not without some substance, it might be thought) was none other than Lord Macnaghten, then a member of the judicial committee of the House of Lords and regarded as a master of the common law. But it is I think dangerous, to read the judgments of Sir P. O’Brien C.J. and Johnson J. as authority for a sweeping and general proposition that in all criminal cases where “a prisoner or defendant is in danger of imprisonment, no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted” (p. 635: Lord Coleridge in The Queen v. Duncan 7 Q.B.D. 198). Holmes J., who concurred in the result disagreed on that very point, and went to some lengths to establish that where an acquittal was made by a court acting in excess of jurisdiction (which of course was the nature of the very complaint made in that case) the High Court had power to quash such an acquittal. In Great Southern & Western Railway Co. v. Gooding  2 I.R. 429 (“Great Southern & Western Railway Co.”), Palles C.B. expressed his opinion that Holmes J.’s observation on this point was “absolutely correct” and the Supreme Court, in the judgment of O’Dálaigh J. in The State (Attorney General) v. Binchy & Anor  I.R. 395 accepted the judgment of Holmes J. and would have applied it in that case if the verdict had not been simply recorded as “not guilty” simpliciter. It is perhaps for this reason, that the authoritative statement of Palles L.C.B. in R. (Kane) v. Chairman and Justices of County Tyrone (1906) 40 I.L.T.R. 181, is qualified in the way it was:
“The first principle is an elementary one – viz., that as a rule an acquittal made by a Court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other Court.” (emphases added) (p. 181)
In that case Palles L.C.B. also referred to the number of cases in which, even at that time, there was a statutory right of appeal from acquittals “given in several modern statutes”. As Walsh J. stated in The State (Tynan) v. Keane & Anor  I.R. 348:
107. The qualifications envisaged by Walsh J. would relate not only to the prospect of quashing decisions on jurisdictional grounds, but also to statutorily permitted appeals such as that permitted by way of case stated as under the Summary Jurisdiction Act 1857. This is a particularly important example, not only because it is a venerable and well known provision, but it applies in the case of errors of law. In a sense s.23 can be seen therefore as the extension to trials on indictment of a provision long applied to summary trials. A different and more recent example is the provisions of s. 310(1) of the Fisheries (Consolidation) Act 1959 which permit a prosecution appeal from an acquittal in the District Court. This, it should be noted is a full appeal, and not merely one of a point of law. The constitutionality of the section was upheld in Considine v. Shannon Regional Fisheries Board & Ors  2 I.R. 404 (“Considine”). Quite apart from the decision in Considine, the decision in O’Shea is of course (and whatever arguments might be made about its merits or wisdom none of which were advanced on this appeal), simply determinative ,at least for the time being, of any argument that the Constitution does not permit prosecution appeals, even full appeals in the case of acquittals.
“As a general proposition it is not correct to state without qualification that under our law no person can be prosecuted twice for the same offence.” (p. 355)
108. The true principle is I think that stated by Palles C.B. in (“Great Southern & Western Railway Co.”), namely that if a statute is to provide for an appeal against an acquittal, it must do so in clear language. But I do not understand that principle to be of much assistance in this case since it is accepted that the entire object of the provision in the 2010 Act is to permit prosecution appeals. Once that bridge is crossed, it is I think difficult to find any basis for interpreting the Act as limiting the nature of the appeal that could be brought. To take this case as an example, I cannot see any basis in the legislation for considering that the Oireachtas wished to permit an appeal where this Court considered that a trial judge had misinterpreted or misapplied Kenny, but not if the evidence was excluded because the trial judge followed Kenny but Kenny itself was wrong. If that was the case, it would also lead to the peculiar result where this Court’s jurisdiction would depend on its own decision on the substance of the appeal as to whether prior authority was wrong, or merely misunderstood or misapplied.
109. The argument that s.23 appeals are limited to erroneous applications or interpretations of existing law depends not upon any grammatical reading of the section, but rather on imposing the interpretation on words of apparently general application. It means interpreting s.23 as permitting with prejudice appeals in such cases and permitting without prejudice appeals only under the Criminal Procedure Act 1967 (“the 1967 Act”) as amended in 2006 in cases where it is sought to reverse, rather than simply reinterpret, existing precedent. Such a clear demarcation is not apparent in either section. Indeed the 1967 Act procedure applies in any case and thus can be adopted in cases of mistake, misapplication and misinterpretation as well as where it is sought to directly overrule a prior precedent. It is clear therefore that there is very substantial overlap between the provisions and the suggested clear demarcation was neither intended nor effected. Nor is there any plausible basis on the language of the respective sections for suggesting that the overlap is only partial. Instead the most natural interpretation is that the 2010 Act took the significant step of allowing with prejudice appeals. Indeed as set out above that is very much in accordance with the terms in which the matter was discussed in the reports mentioned above.
110. There are at least two textual arguments which also support this interpretation. First, s.23 permits but does not compel a retrial if the appeal is allowed. The Court is given a discretion under s.23(11) and given guidance under s.23(12). Where the Court decides the point of law in favour of the appellant, but does not quash the conviction and order a retrial, the position becomes functionally indistinguishable from a without prejudice appeal under the 1967 Act. This illustrates perhaps the fact that they were understood to have the same scope of application, and that the same issues could be raised in each. Second, s.23(1) permits an appeal on “a question of law” words which are in my view not just capable of encompassing this type of case, but are quite apt to do so. Section 23(3) contemplates two situations in which such a question may arise: first where a ruling is made erroneously excluding compelling evidence (subss.(3)(a)) which has been the section focussed on in this case and upon which the argument for a narrower scope of appeal is based, and where a direction is given which is “wrong in law”.(subss.(3)(b)). I do not think it can be plausibly argued that the argument that Kenny is wrong is not covered by this latter phrase. But if so there can be no basis for giving a narrower reading to the scope of subss.(3)(a) than subss.(3)(b).
111. I understand, I hope, the objections to retrying a person after he has been acquitted on the basis of what was understood to be the existing law, and after a ruling that “compelling evidence” had been wrongly excluded. In retrospect I think this case might for example have been more suited to the 1967 Act procedure, since the concern is more to establish the existing law prospectively than to seek to reverse the outcome of this particular case, especially when others have benefited from the Damache case and the application of Kenny. I should say that unless persuaded to the contrary I would not consider that this was a proper case for a retrial. Quite apart from any question of the constitutional validity of the retrial provision which has not yet been tested (and somewhat ironically in the present context that it would involve a reconsideration and perhaps reversal of People v O’Shea), I do not see why it would be appropriate or indeed fair that this defendant alone of al the defendants at trial benefited from Kenny and that smaller but significant group who benefited from the intersection of Kenny and Damache, should be the subject of a retrial.
112. I do not understand however how concerns with retrials generally, and the principle of double jeopardy can effect the issue of interpretation which is before us. There is no doubt that the section permits some prosecution appeals. Under the traditional doctrine of double jeopardy, an accused acquitted by an erroneous application of the law was just as entitled to the benefit of that acquittal, as one acquitted on the merits, or acquitted because of binding precedent. I can see no basis therefore, for concluding that the principle of double jeopardy leads to the distinction which is sought to be made on the interpretation of s.23. Nor with respect can I accept that these matters raise any matters of legal certainty. The parties in Kenny, and in Damache, and indeed in any case which makes new law, changes the law and/or overrules precedent, can to some extent say that the law has changed from what was understood before the first appearance in court, but any change is within a limited area and subject to clearly established and articulated rules. I appreciate that acquittals are different from convictions in a number of respects, but not surely as regards legal certainty. In any event it is not necessary to consider this further since no such issue was raised in this case, and I do not understand in any event how it can affect the question of the interpretation of the section.
113. I agree that there are, or should be, prudential, and perhaps principled, limits to the range of decisions which a court can take in the development of the common law, and that there are matters which must be left to legislation. However, prior to this case, I would have considered that a decision on the admissibility of evidence, particularly when based on the interpretation of the requirements of the Constitution, was quintessentially a matter for decision by a court. It seems to me indeed, that this is a matter peculiarly inappropriate to be resolved by legislation. The Oireachtas is after all obliged by Article 15.4 not to enact any law in any respect repugnant to this Constitution or any provision thereof. So long as Kenny remains a binding statement of the law, then any purported legislative reversal of the decision would be ex facie unconstitutional, at least until such time as the decision in Kenny was reversed or overruled by this Court. I do not think the issue in this case should be avoided and the Oireachtas encouraged instead to legislate in the teeth of a decision of this Court merely for the purposes of inviting this Court to decide whether or not the decision in Kenny is correct and if so in what respect it could or should be modified, which is after all the issue now before us.
114. I agree that the observations of Oliver Wendell Holmes as to the interstitial nature of judicial law making in the common law. The concepts of molar and molecular motions may have been clearer to the reader in 1926, but the sense of the passage is clear. Holmes was however, speaking in the context of the common law and the examples he gave were in the fields of contract and tort. It is inevitable that decisions on constitutional matters may, and will, be significant. See by way of example only, the decision of this Court in McGee v. Attorney General & Anor  I.R. 284. The potential impact of constitutional decisions should lead to an appropriate caution in decision making, and a willingness to review such decisions if it becomes apparent that they are impractical, misplaced, or simply wrong. I observe therefore, that Holmes J. was a participant in the decision in Weeks which established an exclusionary rule in cases within the federal jurisdiction, and dissented in Olmstead where he considered that evidence obtained by illegal wire tapping ought to have been excluded. If these decisions were permissible, I cannot see how this case breaches any boundary.
115. It is possible also to make a simpler measurement on the Holmesian scale of the movement of the law in this case. Both O’Brien and Kenny made significant changes to the criminal process. While it may have been argued that each case was wrong in some respect, it has not been suggested, at least to my knowledge, that either represented an example of illegitimate judicial law making. Since the impact of the decision in this case is to reverse Kenny but not to restore O’Brien, and rather to seek out a point somewhere between the two (and rather closer to Kenny than to O’Brien), it must follow that whatever ‘motion’ has been made by the majority decision in this case, it is necessarily less than that which was made in Kenny. Indeed, if the change to the law made by the decision in this case somehow exceeds the permissible extent of change to be effected by judicial decision, then that in and of itself would be a reason to reverse Kenny. As I conceive, it is part of the proper function of this Court to adjust its prior decisions in the light of developments in the law, experience, and analysis. I am confident that every argument that can be marshalled in favour of the decision in Kenny has been advanced in this case. Having carefully considered the issue, I conclude, with great respect to my colleagues present and past who take or took a different view, that I do not believe that the decision in Kenny can withstand scrutiny. It is, in my view, plainly wrong. It is long past time that it was addressed and, so far as it is possible for us to do so, corrected.