THE SUPREME COURT
IN THE MATTER OF THE CRIMINAL PROCEDURE ACT 2010, SECTION 23,
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Respondent JUDGMENT of Mr. Justice William M. McKechnie delivered on the 15th day of April, 2015
Setting the Scheme:
1. Over a short period of time in early 2011 there were three robberies in the Waterford City area with a sufficiently connected pattern to give the gardaí reason to believe, that the same individual or individuals were involved. The last one, which was no different in the manner of its execution to the others, occurred on the 5th day of May, 2011, at Supermac’s fast food restaurant in the city. Based on CCTV and other evidence the gardaí, very shortly thereafter, had reasonable grounds for suspecting that Mr. C., the respondent, had been heavily involved.
2. Detective Sergeant Donoghue (“D/Sgt Donoghue”) led the investigation team and Detective Garda Burke (“D/Gda Burke”) was also a member of it. The gardaí, as part of their ongoing inquiries decided to search the premises known as 256 Larchville, Waterford, which can be considered as Mr. C.’s constitutional dwelling house. For that purpose, D/Sgt Donoghue obtained from Chief Superintendent Murphy, a search warrant which was issued under s. 29 of the Offence Against the State Act 1939 (hereinafter “the s. 29 warrant” and “the 1939 Act” respectively). Chief Superintendent Murphy was also an integral part of that investigation team.
3. On the 10th day of May, 2011, D/Sgt Donoghue decided to execute the warrant which for that purpose, was addressed to him. Several members of the force were involved including D/Gda Burke who by then had been charged with the responsibility of arresting Mr. C. That was his sole purpose for being part of the team which on the morning of the same date, attended at the above address which the gardaí knew to be the dwelling house where the respondent was living.
4. Disregarding non-essential detail, on arrival the gardaí showed the search warrant to the sister of the respondent, who answered the door, and also informed her of the purpose of their visit which was to execute the said warrant. Some unspecified enquiry was made as to the whereabouts of Mr. C. who was in fact, as his sister informed the gardaí, in an upstairs bedroom at the time. Those whose purpose it was to search duly did so: as it happened no evidence of value was found and accordingly the search plays no further part in this case. D/Gda Burke however, given his discrete intention, immediately went upstairs and having asked Mr. C. to get dressed, duly arrested him under s. 30 of the 1939 Act for the unlawful possession of a firearm. No point has ever been taken on the reasonableness of the suspicion upon which this arrest was made.
5. Having been taken to Waterford Garda Station, Mr. C., during his subsequent detention, was the subject of a number of interviews, during the course of the following several hours. Nothing of probative value emerged until the final three interview sessions during which it is claimed that Mr. C. made a number of significant admissions which were recorded in written form and duly acknowledged by him. He was thereafter immediately charged with six offences relating to armed robberies and to the possession of an imitation firearm during the course thereof. His trial on indictment in respect of these charges came on for hearing before her Honour Judge Ring and a jury sitting at Waterford Circuit Criminal Court on the 18th of July, 2012.
6. After the accused was arraigned and pleaded not guilty, and having been put in the charge of the jury, both counsel informed the trial judge that an issue of law arose which required its determination by way of a voir dire. That issue centred on the lawfulness of Mr. C.’s arrest, which, depending on outcome, could have a significant bearing on the admissibility of the admissions allegedly made. The point asserted on his behalf was that the search warrant, upon which entry was based, was invalid by reason of this Court’s decision in Damache v. The Director of Public Prosecutions  IESC 11 (“Damache”) delivered in February, 2012.
7. In that case, the s. 29 warrant had been issued by a Superintendent, who like Chief Superintendent Murphy had also been closely involved in the underlying investigation, which involvement could not be separated from his role in issuing the warrant. That decision however, called for the exercise of an independent mind which could only be provided, by a member of the force, who was completely divorced from the investigating participants. As s. 29 of the 1939 Act legislated, ex facie, for the procedure adopted, the provision in that respect was found to be unconstitutional. It followed therefore that the warrant in this case could not be relied upon as constituting a lawful basis for the gardaí’s entry into, and presence in the dwelling house, on the occasion in question. As a result, it was argued that Mr. C. could not have been lawfully arrested as D/Gda Burke, like all other members of the search team, was a constitutional trespasser at the time. Therefore the admissibility of the interview evidence was challenged on the basis of what can be called the “exclusionary rule”, as declared by this Court in The People (Director of Public Prosecutions) v. Kenny  2 I.R. 110 (“Kenny”).
8. In the instant case, the circumstances in which the search warrant was issued were indistinguishable from those which existed in Damache: accordingly, the same was unquestionably invalid, a conclusion not sought to be resiled from or even argued either in the court of trial or in this Court. In the absence therefore of other lawful authority, of which in the judge’s view there was none, the gardaí were trespassers in Mr. C.’s dwelling house on the morning in question: in the process his Article 40.5 constitutional rights had been violated. In accordance therefore with the principles laid out in Kenny, the learned trial judge, on application being made to her in that regard, was legally compelled to exclude from the jury’s consideration any of the alleged admissions which the Director of Public Prosecutions (“DPP”) sought to rely upon. Having so ruled, and in the absence of any further evidence being offered, the jury, by direction, were instructed to return a verdict of not guilty on all charges in the case of Mr. C.
9. The DPP, despite the fact that she saw fit to make no submission to the contrary, which it must be said was grossly unfair to the trial judge, did not like the outcome: she saw however in hindsight, an opportunity to invoke the provisions of s. 23 of the Criminal Procedure Act, 2010 (“the 2010 Act”), which so far as I am aware had not been utilised prior to this appeal. In so doing, Mr. C. can consider himself most unfortunate, as the individual facts of his case could hardly be considered, as sufficiently striking to justify the manner in which the appellant has pursued this issue, thus far. Her ambition is clearly far greater: the target of her reach treats the respondent as a random casualty or by-product, of a favourable outcome. She seeks I am convinced, a re-trial of Mr. C., purely and solely because the section so demands. It truly matters not in the bigger picture. The real prize which is prayed for, stretches far beyond this case. I greatly regret to say that she has been much rewarded.
The Issues Arising:
10. Arising from these facts and based on the submissions, it appears to me that three broad issues, each of some significance, arise. The first is whether or not the arrest of the respondent on the 10th of May, 2011, was lawful: it is not being argued that the warrant can be relied upon for this purpose: rather, the search for lawful authority resides elsewhere. A decision on this issue in favour of the DPP would be determinative of the entire appeal. The second involves a consideration of the provisions of s. 23 of the 2010 Act itself, which in turn raises a number of distinct but also inter-related points. The final issue, which for many is really the only issue in the appeal, is in respect of a submission by the DPP that the decision of this Court in Kenny was wrong and wrongly decided and should be overturned: and in its place a more relaxed and accommodating rule, from her point of view, should be established. To these issues I now turn.
Issue No.1: Lawfulness of the Arrest:
11. Whilst it is accepted that by reason of the unconstitutionality of s. 29 of the 1939 Act, the presence of D/Sgt Donoghue and the other gardaí in the dwelling house of Mr. C. on the morning in question was illegal, nonetheless it is claimed that the status of the arresting officer was somehow different and that he should be disassociated from the rest of the team for this purpose. The factual basis relied upon for this argument is that D/Gda Burke had decided to arrest Mr. C. before leaving the garda station, that such was the sole purpose of his attendance at the premises on the 10th of May, 2011, that he took no part in the search, that the actual arrest was unconnected with any items found during its currency and finally, that the arrest was effected almost immediately upon the gardaí’s arrival at the house. Why any, or indeed all of these matters should, of themselves and without more, alter his prima facie status as a trespasser, remains unclear from the submission.
12. In any event it is said on the legal side that cases such as The People (Director of Public Prosecutions) v. Barry O’Brien  IECCA 68 and The People (Director of Public Prosecutions) v. Laide & Ryan  1 I.R. 209 (“Laide & Ryan”) are clearly distinguishable on their facts and that when properly understood they do not lend any support to the suggested unlawfulness of the arrest in this case.
13. It is also submitted that D/Gda Burke was as a matter of statute law entitled to be on the premises on the occasion in question: this pursuant to the provisions of s. 6(2) of the Criminal Law Act 1997 (“the 1997 Act”). It is claimed in this context that, where the gardaí attend at a dwelling house with a dual purpose, one of arrest and one of executing a search warrant, then legally speaking, their resulting presence on both fronts, is authorised by this particular provision.
14. Although there was no direct evidence that the gardaí, on arrival at the dwelling house had nominated any specific statutory provision as their authority for seeking entry and certainly there was no suggestion of entry by invitation, nonetheless Mr. C.’s sister was informed of their intention to conduct a search and also was told that they were seeking the whereabouts of her brother. This communication, it is said, is a sufficient compliance with what the Court of Criminal Appeal held in Laide & Ryan, which was that in like circumstances a householder, must simply be informed of the purpose of entry. That case, it is submitted, went no further and should not be read as having decided that the gardaí must also identify a particular provision or the precise source of power, being then relied upon.
15. The respondent denies that the position of D/Gda Burke can be so distinguished from the other gardaí who attended on the occasion in question. The evidence at the trial established the following, but no more:-
• On arrival at the house D/Sgt Donoghue showed the search warrant to the respondent’s sister and told her of his intention to execute it;
• D/Gda Burke who was present at the execution of the warrant, was there for the purpose of arresting the respondent under s. 30 of the 1939 Act;
• Enquiries were made at the door as to the whereabouts of Mr. C.: in response his sister informed the gardaí that he was still in bed at the time;
• The arresting officer then proceeded upstairs and within ten minutes from his initial arrival, had arrested Mr. C. pursuant to statutory provision last mentioned.
16. The evidence did not indicate that D/Gda Burke at any time invoked s. 6(2) of the 1997 Act nor did he explain on arrival, that the purpose of his visit was to effect an arrest. It is submitted that the underlying point made by the DPP, namely that an arresting garda does not even have to have in contemplation, the power which he proposes to invoke or rely upon, so as to legally justify his presence on a premises, is unsupported by authority, and is in fact, contrary to fundamental principles with regard to the exercise of garda power. Laide & Ryan is relied upon in this regard. Consequently, it is claimed that the position of the arresting officer was no different to that of the other members in attendance at the time and accordingly, that the purported arrest of Mr. C. was invalid.
Decision on Issue No.1:
17. Although I have titled this issue as the “Lawfulness of the Arrest”, the real point is the lawfulness of the preceding entry without which the arrest could not have taken place where it did. Therefore, much of the case law cited, such as Christie & Anor v. Leachinsky  A.C. 573, and The People (Attorney General) v. White  I.R. 247, which adopted the Christie decision, as representing the law in this jurisdiction, are not directly on point. It is accepted by all parties, that D/Gda Burke had a reasonable suspicion upon which to effect the arrest, that he informed the respondent of the purpose and reason for his arrest and that he did so, in clear, definite and adequate terms: it is also not denied that absent his questionable status at the time, he had power to do so under s. 30 of the 1939 Act. Therefore, the entry is the focal point of this issue.
18. On the evidence as given, it is irrefutable that the gardaí as a unit, believed their presence in the dwelling house on the morning of the 10th of May, 2011, was authorised by and rested solely on the s. 29 search warrant. The trial judge so stated:-
Her finding in this regard could not have been otherwise.
“In this case I am satisfied that the entry into…house on 10th May, 2011, was on foot of the warrant issued under s. 29 of the Offences Against the State Act 1939. This was the vehicle to get in the door both to search and to effect the arrest under s. 30 of the 1939 Act.” (Transcript, Day 1, p. 55)
19. This means, and it is I am satisfied, now accepted by the appellant, that D/Gda Burke never considered basing his entry on s. 6(2) of the 1997 Act or for that matter on any other provision, statutory or otherwise. This of course is entirely understandable as the gardaí had no reason to doubt the validity of the s. 29 warrant. The situation which unfolded therefore was not one giving rise to the more general grounds upon which an arrest is normally challenged or one involving some form of defective garda communication with the arrestee: rather it was one where the lawfulness of the entry started and ended, with the search warrant. In those circumstances I cannot see how s. 6(2) of the 1997 Act can now be invoked, to legally justify this particular garda’s entry into and presence in the dwelling house, on the morning in question.
20. In addition, there is no doubt but that the executing officer informed Mr. C.’s sister of his intention to search the dwelling house on foot of the search warrant: but equally so there is no doubt but that neither D/Gda Burke nor any other member of the team told her in any understandable language of their intention to arrest her brother. At most, his whereabouts were enquired into. This therefore could not be considered as having added any further information about the now alleged, dual purpose of the gardaí’s presence in the house, to that already communicated to Ms. C., by D/Sgt Donoghue.
21. Finally, I would note what the Court of Criminal Appeal said in Laide & Ryan (at p. 230):-
In the circumstances the arrest cannot be considered as having been lawfully effected.
“The finding that the warrant was bad has therefore removed the very foundation on which the entry was made, and in the absence of the gardaí informing the occupiers of the house that they had another purpose apart from searching, namely the arresting of the second accused, it is the view of this court that the power provided by s. 6(2) of the Act of 1997 cannot be relied upon since it was never invoked by the gardaí at the time. The fact that the power of entry exists does not mean, in view of this court, that the purpose of entry, namely the arrest of someone who resides in the house, does not have to be explained before entry is forced on foot of the power.”
Issue No. 2: - The Statutory Issue:
22. Section 23, in Part 4 of the 2010 Act, under the heading “Appeals and Matters Relating to Appeals”, makes provision in Chapter 1 for what is described as “With prejudice prosecution appeals”. This is the section invoked by the DPP in the instant appeal and is the particular route by which the issues addressed in this judgment come to this Court for consideration.
23. Section 23 insofar as is material, reads as follows:-
“23.-(1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.
(2) Where on or after the commencement of this section, a person’s conviction of an offence on indictment is quashed on appeal by the Court of Criminal Appeal and that Court makes no order for the re-trial of the person in respect of the offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24, appeal the decision of the Court of Appeal not to order a re-trial of the offence concerned on a question of law to the Supreme Court.
(3) An appeal under the section shall lie only where –
(4) An appeal under this section shall be made on notice to the person who is the subject of the appeal within 28 days, or such longer period not exceeding 56 days as the Supreme Court may…determine…
(11) On hearing an appeal under this section the Supreme Court may-
(12) In determining whether to make an order under subsection (11)(a), the Supreme Court shall have regard to –
(a) quash the acquittal or reverse the decision of the Court of Criminal Appeal as the case may be, and order the person to be re-tried for the offence concerned if it is satisfied –
(i) that the requirements of subsection (3)(a) or (3)(b) as the case may be, are met, and
(ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to do so,
(b) if it is not so satisfied, affirm the acquittal of the decision of the Court of Criminal Appeal, as the case may be.
(14) In this section “compelling evidence”, in relation to a person, means evidence which –
(a) whether or not it is likely that any re-trial could be conducted fairly,
(b) the amount of time that has passed since the act or omission that gave rise to the indictment,
(c) the interest of any victim of the offence concerned, and
(d) any other matter which it considers relevant to the appeal.
(13) (a) The Supreme Court may make an order for the re-trial under this section subject to such conditions and directions as it considers necessary or expedient (including conditions and directions in relation to the staying of the re-trial) to ensure the fairness of the re-trial.
(b) Subject to paragraph (a), where the Supreme Court makes an order for a re-trial under this section, the re-trial shall take place as soon as practicable.
(a) is reliable,
(b) is of significant probative value, and
(c) is 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.”
24. Before looking at the section in more depth, which involves a consideration of its contextual setting within the 2010 Act and also of its relationship with the provisions of Part 3 thereof, as well as having regard to the historical situation concerning double jeopardy, it would be quite wrong to think that this was some innovative provision by which the DPP for the first time, could get the opinion of this Court on a point of law, even one which she asserts but has in no way substantiated, to be of sufficient recurring importance as would justify the type of submission, made in this case.
25. Under s. 34 of the Criminal Procedure Act 1967, as substituted by expansion in s. 21 of the Criminal Justice Act 2006 (“s. 34 of the 1967 Act”), the Attorney General or the DPP as the case may be, may, where a person tried on indictment is acquitted, “…without prejudice to the verdict or decision in favour of the accused person, refer a question of law arising during the trial to the Supreme Court for determination…” (s. 34(1)). The scope of such question, which can relate to any matter and which can arise in any way during the trial, is for the Attorney General or the DPP to settle after consultation only with the trial judge. That provision was in place at all times relevant to the instant appeal. In fact it should be noted ,that ss. 20 and 28 of the 2010 Act did not seek to affect any rights of appeal or review which were in existence at the time.
26. After the recent establishment of the new court structure, s. 34 of the 1967 Act was amended by s. 47 of the Court of Appeal Act 2014. Whilst such amendment does not apply in this case, nonetheless the newly created situation is also, of interest to note. In future, the referral of such a question shall be to the Court of Appeal: subject however to the proviso that in respect of a person who is tried in the Central Criminal Court, the same prosecuting agencies (pls check) can “make application to the Supreme Court under Article 34.5.4 of the Constitution to refer a question of law arising during the trial to it for determination” (s. 34(1) of the 1967 Act). Consequently, as can be seen the opinion of the Court of Appeal can still always be sought, as can that of this Court, where the specified requirements are met. Therefore, it is abundantly clear that this advisory mechanism has been available at the instigation of the prosecuting bodies since 1967, and thus ever since there could never have been an occasion upon which the advice of this Court could not have been obtained. What is so significant about the 2010 provision however, is its naked pursuit of jeopardy which is sharply in contrast to the historical position existing, for so many years.
27. In addition to the statutory provisions as mentioned, it has also always been the case that the DPP or the Attorney General could seek clarity of the existing law, both as to its substance and application, in any case coming before the Court of Criminal Appeal: s. 29 of the Courts of Justice Act 1924, as amended, so provides.
28. The use of the s. 34 process in this case, would serve every purpose pursued by the DPP if the sole or indeed even principal reason for engaging with this Court, was legal clarity or legal certainty. It is, I think, not in doubt but that if such was the true motive in making the application, s. 34 of the 1967 Act, would by far have been the more appropriate way of proceeding, as of course it would have no impact or effect on, the preceding acquittal of the accused, who by then is a judicially innocent person, so declared. But clearly, by invoking s. 23 of the 2010 Act, the purpose is radically different which has grave consequences for the resulting situation.
29. In his judgment MacMenamin J. also takes the view that the two sections, as mentioned, are not coterminous in the remit of what they cover. He is of the opinion that the purpose of the 2010 provision was to extend this Court’s jurisdiction beyond the question of law which could be referred to it under s. 34 of the 1967 Act. Thus, to accommodate such enlargement and to avoid the provision being “entirely superfluous”, s. 23 should be given in his view, a broad interpretation which would, when applied, equate the meaning of “erroneous” with “mistaken”. In that way the learned judge holds that the trial court could be considered as having “erroneously” excluded the subject evidence, if this Court determines that Kenny was wrongly decided.
30. MacMenamin J.’s view of the section is also of interest for the serious misgivings which he has on the question of a re-trial, suggesting that whilst such a “hypothetical possibility” might exist, he would anxiously scrutinise the precise circumstances by which “an order for retrial might constitutionally be made” under the section (para. 12 of judgment). It is in his opinion, one thing to have power to review an error but quite another to have power to retry (para. 10 of judgment). Quite obviously therefore he sees a clear distinction within the section between the jurisdiction to answer the submitted question and the jurisdiction to make a follow-on order involving a re-trial: voicing, I think it is fair to say, a considerable legal and constitutional dislike of the latter, essentially because of its impact on the principle of double jeopardy. However, it is only his view on the focus of the section which for me is relevant at this point.
31. I regret that I am not in agreement with such a view of the section: I see little or no difference in substance between either s. 34 of the 1967 Act or s. 23 of the 2010 Act, as to what questions or issues may be considered by this Court. Rather, what is at the heart of the section can be clearly seen from the fact that, as previously noted, it is an appeal with prejudice from an acquittal decision by the trial court, or by the Court of Criminal Appeal in circumstances where no re-trial is ordered by that Court. A trial court for this purpose is a court presided over by a judge who is accompanied by a jury whose essential task is to determine guilt or innocence. If, as seems quite obvious, that obtaining a view of the law is not of itself the real purpose of the section, it must in my view inescapably follow, as it does from the wording of the provision itself and from the overall structure of parts 3 and 4 of the 2010 Act, which are inseparably connected to this end, that its core ambition is to have the acquitted person re-tried. Even if that should be his or her third trial, it appears to matter not. Unashamedly, in so doing, the sanctity once had of a judge/jury acquittal is thereby further eroded, increasingly undermined and at Oireachtas instigation, greatly devalued.
32. A consideration of part 3 of the 2010 Act, which runs from ss. 7 to 22 inclusive, is informative as to the legislative meaning of s. 23. With commendable transparency this part is headed “Exceptions to rule against double jeopardy”. Its provisions seek to deal with two situations admittedly different, but which are nonetheless inextricably linked by the common bond of previous acquittals.
33. Section 8 of the Act applies to a person who has been acquitted after a trial on indictment of a “relevant offence”, as described in numbers 1- 26 of the schedule. The DPP, in respect of such acquittal, may apply to the Court of Criminal Appeal, being the designated Court for this purpose, for a “re-trial order” where it is alleged that “new and compelling evidence” exists against the person in question, and where it is in the public interest to do so.
34. Section 9 of the Act applies to a person, who has been acquitted after a trial on indictment of “any offence”, but where he or any other person has been convicted of an offence against the administration of justice “relating” to the acquittal proceedings. In such situation, the DPP may likewise apply for a re-trial order if there is “compelling evidence” against the person and if it is in the public interest to do so.
35. As the operation of neither provision seems to depend on any “ruling” or “direction” of the trial judge being directly involved, it would appear obvious that an “acquittal” in this context means a verdict on merits, arrived at by jury deliberation: in fact s. 7 of the 2010 Act confirms that this is so. It also includes any order to the same effect obtained at appeal level or even at second appeal level (s. 14 of the Act and para. 38 infra). The phrases “new and compelling evidence” and “an offence against the administration of justice” are defined in s. 7 of the Act, as is “compelling evidence” in precisely the same way as it is for the purposes of s. 23 of the Act (subs. (14) thereof).
36. The power of the Court of Criminal Appeal on hearing either such application is contained in s. 10 of the Act. In its terms, it is not wholly dissimilar to s. 23 of the Act but of necessity is modified to reflect the circumstances by which it becomes engaged with those provisions. On a s. 8 application, if satisfied that “new and compelling evidence” exists and if, having regard to certain matters, it is in the interests of justice to do so, the Court “…shall make a re-trial order quashing the person’s acquittal and directing that the person be re-tried for the relevant offence…” (s. 10(1)). Likewise in respect of a s. 9 application: where the Court is satisfied that there is “compelling evidence” and where, having regard to certain matters if it is in the public interest to do so, it “shall make” a similar re-trial order (s. 10(2)).
37. Leaving aside whether if the statutory preconditions have been satisfied, the Court is mandated to make the order or whether there is some residual discretion to that end, what is strikingly clear from the provisions in question is that there is no separation intended or provided for between quashing the acquittal and ordering a re-trial, nor would it logically make any sense for that to be the case. To simply set aside an acquittal and nothing more would not achieve the legislative intent and in any event would be, at a constitutional level, seriously questionable. In my view, the essence of both a s. 8 and s. 9 application is the seeking of a re-trial order, as is the essence of the court’s power under s. 10. If in contemplation, such an order of necessity involves setting aside the acquittal: both are therefore inextricably linked: one cannot have the former without the latter. In addition, it would be an exercise in utter futility to simply quash an acquittal without more. Inescapably therefore in my view, the focus of these provisions, even if the background circumstances are different to those presenting on a s. 23 application, is to have a re-trial of an acquitted person. I see no difference therefore, in principle, in substance or in statutory motivation between the overriding purpose of those sections, and that of s. 23 of the 2010 Act.
38. Two other provisions of Part 3 of the Act are noteworthy. Firstly, an appeal shall lie to the Supreme Court from a decision made under s. 10 of the 2010 Act, if the Court of Criminal Appeal, or the Attorney General, or the DPP, certify that the determination involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to this Court (s. 14). To instigate such an appeal is not, as is evident from the section, confined to the authority of the Court of Criminal Appeal, but can quite independently of judicial involvement, be moved by either the State prosecuting agency or the constitutional officer mentioned.
39. Secondly, without District Court authorisation, An Garda Síochána are prohibited from taking certain steps and carrying out certain acts in relation to a person previously acquitted of a relevant offence, but who thereafter becomes the subject of an investigation into his suspected participation in that same offence. In this regard s. 15 of the 2010 Act requires District Court approval for the arrest or detention of such person, for the interviewing of him or her, for conducting any search of his person or of his property and for the taking of photographs, fingerprints and other forensic samples. What is however again most striking, is that if any such prohibited steps should nonetheless be taken without judicial approval, the same “shall not [of themselves] affect the admissibility of any evidence obtained” (s. 19(1) of the Act). True, this provision is “without prejudice to the power of the court to exclude evidence at its discretion” (emphasis added) (s. 19(2)), but of course such a test is distinctly different to that applying in a Kenny like situation. Consequently the section, at least at one level of interpretation, would appear to possibly impact at a most serious level on the principles set out in that decision.
40. In any event, I am entirely satisfied that both Parts 3 and 4 of the 2010 Act have in common as their key target, the re-trial of an acquitted person even if the circumstances underlying ss. 8 and 9 on the one hand, and those giving rise to the employment of s. 23 on the other, are different. This, in my view, explains the essential legislative distinction, between the intent of s. 34 of the 1967 Act, and that which underlies s. 23 of the 2010 Act.
41. These observations, whilst having a general context also have a particular significance in the specific circumstances of this case, where all parties, including the DPP, cannot dispute but that the acquittal of the respondent resulted from a trial impeccably conducted in due course of law. Of course subject to the Constitution, and any excepting or regulating legislation consistent therewith (s. 11 of the Criminal Procedure Act 1993: but see the Court of Appeal Act 2014), the State has a right to appeal a general acquittal from the High Court to the Supreme Court, even though the common law has stood its face against such for so long, recognising as I do that the provisions of Article 34.4.3 of the Constitution so provide (The People (Director of Public Prosecutions) v. O’Shea  I.R. 384) (“The People v. O’Shea”). In respect of such appeals from the District Court to the Circuit Court see Article 34.3.4 of the Constitution and Considine v. Shannon Regional Fisheries Board & Ors  2 I.R. 404 (“Considine”). However, that constitutional position has no particular bearing on the present issue, which is advanced solely at the legislative level. Accordingly, it is quite appropriate that my views on Part 3 of the 2010 Act should also inform my interpretation of s. 23 and in particular the jurisdiction of this Court under subs. (11) thereof, when either no decision on a re-trial has been made or when such has been refused.
42. Before dealing with specific aspects of that section, it is worth noting some general points about the provision, in addition of course to the particular wording of its heading (para. 23 supra):-
(1) Subsections (1) and (2) provide for what is termed “an appeal” to this Court:
(2) Subsection (3) states that an appeal shall lie under the section only where:-
(3) Subsection (11) provides that on the hearing of an appeal, this Court may quash the acquittal or reverse the decision of the Court of Criminal Appeal as the case may be, and order a re-trial if it is satisfied;
(4) “Compelling evidence” is defined as evidence which is “reliable” and of “significant probative value” and which, in addition, is such that when taken together with the other evidence “adduced” in the case, a jury might reasonably be satisfied to convict the person in question (subs. (14)).
(a) (i) that the requirements of either subs. (3)(a) or subs. (3)(b) are met, and
(a) (ii) that having regard to certain matters specified in
subs. (12), it is in the interests of justice to so do, or
(b) if not so satisfied, affirm the acquittal or decision of the Court of Criminal Appeal, as the case may be.
43. It is instructive to note that initially neither party gave the section a second glance: there is no mention of it in their original submissions. Not so however with this Court. During the course of oral argument a number of concerns were ventilated by it. Thereafter a further issue arose upon which the parties were invited to make submissions, which they did and which were received at an adjourned hearing: these were principally addressed to subs. (3) and then only in two distinct respects: firstly, how could this Court be satisfied that what was excluded was “compelling evidence” as defined in the Act, and secondly, did compliance with the subsection create a jurisdictional threshold?
44. The DPP argued in her additional submission that the documentary material already before the Court was sufficient to establish the existence of “compelling evidence”, but that in any event she would seek leave to furnish the entire Book of Evidence which included the relevant memoranda. The existing “evidence” relied upon, included the Notice of Appeal which asserted, by reference to each explicit element of the statutory definition, that the “memos of interviews” themselves, constituted such “compelling evidence”. The transcript of the hearing was also referred to, in particular where prosecuting counsel described those “memos”, as containing “full admissions” in relation to all charges and where in addition, defence counsel agreed that “the last three interviews could reasonably lead to the conviction”, of his client. None of these statements, but in particular that last mentioned, were ever subsequently disputed or resiled from. Finally it was also said that no objection was taken to the appellant’s counsel’s opening of the appeal, during which he stated that no issue arose on this particular point.
45. On the legal issue the DPP submitted that s. 23(3) of the 2010 Act, read as a whole, shows that the question of whether the excluded evidence is compelling, is not a condition precedent to the court’s jurisdiction under the section: rather it is a matter to be addressed as part of the substantive proceedings before it. The subsection, to borrow the language of Kingsmill Moore J. in The State (Davidson) v. Farrell  I.R. 438, at p. 455, “is not a preliminary to jurisdiction, (rather) it is of the essence of the jurisdiction imposed”. See also The State (Attorney General) v. McGivern (unreported;1961).
46. The respondent agreed that at no stage of the proceedings did he challenge the DPP’s characterisation of the “admission” evidence: nor did he dispute the statement attributable to his counsel, as appearing on the transcript, even though it is said that such should not be treated in the same way as if a formal admission had been made under s. 22 of the Criminal Justice 1984. Moreover, he was likewise in agreement with the DPP that this issue was not a precondition in the sense of being a jurisdictional barrier to this Court entertaining the appeal. What is asserted however was that the matters identified by the DPP did not “conclusively” establish that the disputed evidence must be regarded as “compelling evidence”.
47. It is further submitted that the jurisdiction conferred by s. 23 of the 2010 Act should be regarded as a “special jurisdiction”, and that in accordance with the wording of the section, this Court of itself must be satisfied that such evidence falls within the specified definition. In effect, whilst the respondent does not resile from the position adopted by him during the course of the trial or in the appeal up to now, he does however stress, that ultimately it is a matter for this Court to be satisfied as to the correct designation of such evidence.
Decision on Issue No. 2:
48. At the outset it would be helpful to clarify a point which was never quite cleared up at the hearing, which is whether the appeal is being pursued under the provisions of subs. (3)(a) or subs. (3)(b) of section 23 (para. 23 supra). In my view it must be taken to be the former as the jury direction given by the trial judge inescapably followed from the ruling previously made by her, to exclude the evidence in question. The acquittal therefore whilst technically resulting from this direction was in substance entirely the product of that ruling. Accordingly, I do not believe that subs. (3)(b) is directly in issue.
49. There are three aspects of s. 23 of the 2010 Act which from my perspective require consideration:-
But first I should turn to the question of interpretation.
(2) The second point is how it could be said that the decision of the trial judge was “erroneous”, as that term should be understood in the context of its use, given the fact that by common accord she was legally compelled by constitutional requirement to evidentially rule precisely as she did? (Point 2)
• The first matter is what constitutes “compelling evidence” for the purpose of subs. (3)(a), and how can this Court satisfy itself that such exists in this case?
• As noted, the term is defined in subs. (14): whilst the “reliability” and “probative value” requirements are easily understood, their establishment in practice however is quite a different matter.
• It is nevertheless the third aspect of its meaning which creates the most difficulty: that element is satisfied only where the court considers that all of the “evidence adduced in the proceedings” is such, “that a jury might reasonably be satisfied…of the person’s guilt in respect of the offence concerned” (subs. 14(c)). As these three matters are also cumulative each therefore must be so considered, but must also be viewed separately. (Point 1)
50. It is impossible on any interpretation of the 2010 Act, either specific or general, to treat it other than as a significant piece of legislation making a major encroachment on centuries old principles. The cases which ring-fence the sanctity of an acquittal made by judicial authority, in this case the jury, are legend: many of which are identified by Finlay P. in The People v. O’Shea at pp. 412-413 and by Henchy J. at pp. 433-444 of the same report. The law, for as long, has stridently rejected any attempt to force the declared innocent to perilously endure a re-trial.
51. As far back as 355 B.C., Demosthenes is reputed as having stated “the laws forbid the same man to be tried twice on the same issue” (1 Demosthenes 589 (Vance trans. 1962) cited in United States v. Jenkins 490 F.2d 868 (1973) at pp. 870-871). Some argue that this principle is as old as the common law itself (Sigler “A History of Double Jeopardy” (1963) 7 American Journal of Legal History 283 at p. 284). Certainly by 1725, one could hear Platt C.J. in King v. James 8 MOD 201 at p. 208 say that it was “never yet known that a verdict was set aside by which a defendant was acquitted in any case whatsoever, upon a criminal prosecution”. In this jurisdiction its longevity is equally established, but in more recent times the debate has centred on whether or not it also has a constitutional aspect. In different cases it has been described as variously being based, on natural justice (The People v. O’Shea – per O’Higgins J.) on “fundamental fairness of legal procedures, inherent in our Constitution” (The People (Director of Public Prosecutions) v. Quilligan (No.2)  I.R. 46 at p. 57, and on Article 38(1) (Feeney v. District Justice Clifford  I.R. 668). Whichever, it must be recognised that such principles are and have been seen as anchor pillars of the criminal justice system for a long time. Therefore, when the Oireachtas intervenes in such a pervasive way to circumscribe these principles, the provisions attempting to do so must at every level be strictly construed and rigorously critiqued.
52. Authority is hardly required for this proposition: it is so stated in every reputable textbook which deals with the issue and also in several cases from our courts, such as Inspector of Taxes v. Kiernan  I.R. 117 and C.W. Shipping Co. Ltd v. Limerick Harbour Commissioners  I.L.R.M. 416, to name but two. Others from the neighbouring jurisdiction include Cox v. Hakes  15 App. Cas. 506 at p. 522 and Great Southern and Western Railway Co. v. Gooding  2 I.R. 429 at p. 431, each cited with approval by Hamilton C.J. in Considine. There is therefore in my view, no scope for any other method of interpretation. Not only would any relaxation in this regard be without precedent, it would also constitute, by utterly insufferable means, an intolerable undermining of these very principles, so cherished for so long in our democratic society. Accordingly, in my view, s. 23 of the 2010 Act, cannot be read in the manner suggested by the DPP, unless by clear and unequivocal expression, one can only discover a legislative intention to so do.
Point 1 on Section 23: (Para. 49(1) supra)
Aspects (1) and (2) of Compelling Evidence (subs. (14)):
53. The first matter which I propose to consider is how can this Court evaluate the “compelling evidence” requirement of the section, in a trial such as that which occurred in this case? Disregarding the fortuitous circumstances in which the DPP finds herself on this point (paras. 44 and 46 supra), I would venture to suggest that this aspect of the section is almost unworkable, in several quite common situations like that experienced in the instant case.
54. It is worth reminding oneself of the circumstances in which the subject ruling came about in this trial, the conduct of which was not untypical of what might normally happen in most trial courts, when the judge is called upon to make a ruling or issue a direction of the type contemplated by subss. (3)(a) or (3)(b) of s. 23. Practices will of course vary but what happened here would not at all be that unusual.
55. Having pleaded not guilty on arraignment and having had a jury sworn to try the indictment, the learned judge was told, before any evidence was tendered, of a legal issue which required a voir dire to determine its outcome. The controversy, whilst technically one of mixed fact and law, raised, as the only contested matter the circumstances surrounding the entry of the gardaí into the respondent’s dwelling house on the occasion in question. The resolution of this point had nothing to do with the reliability or value of the evidence subsequently obtained during the course of interview, and thus it was perfectly understandable why such evidence formed no part of the hearing: as it equally was that other potentially excusing events which might separately have lead to its exclusion, or even simply to have cast doubts upon its cogency and weight, were likewise never explored.
56. The decision of the judge on this issue, whatever it might have been, would not have changed the dynamics of the run of the trial. As we know, she ruled that the evidence, as a matter of constitutional law, was inadmissible per se: it was therefore never lead in any meaningful way. If she had decided otherwise and held that the arrest was lawful it would have followed that the contested admissibility issue had been decided in favour of the DPP: in such circumstances the trial would have commenced before the jury and, inter alia, the interview evidence would have been given in the normal way with the accused being able to challenge its cogency and weight, if grounds existed therefor. However, if such had occurred, there would of course never have been a ruling or direction capable of a s. 23 appeal. As a result of what happened, a course adopted entirely at the behest of both counsel, the evidence which the DPP intended to place before the jury, upon which guilt or innocence would be determined, was never in fact adduced in the proceedings.
57. Notwithstanding these circumstances, this Court is being asked to satisfy itself that there exists in this case, evidence which meets the conditions of subs. (14) and thus constitutes “compelling evidence” for the purposes of s. 23 of the 2010 Act.
58. I entirely reject the effort made by the DPP to move a motion whereby the Book of Evidence would be laid before this Court as part of the appeal. Even if such was allowed, the book could not be said to constitute evidence by which the requirements of the section could be evaluated. I expressly reserve my position whether, if ever and if so on what conditions, evidence could firstly be laid before this Court on a s. 23 appeal, without having been previously tendered in the court of trial. In many respects being forced to resort to such a motion demonstrates how impractical the section is on an occasion such as this.
59. Were it not for what defence counsel put on the record regarding the potential force of what is apparently contained in the relevant memoranda of interviews (paras. 43 and 45 supra), I would unhesitatingly have decided that there was no material before the Court upon which the provisions of subs. (14) could be tested, let alone be satisfied. There simply would have been no evidential basis upon which the Court could even entertain the appeal. The same would therefore have had to be dismissed as “compelling evidence” could not be shown to have been excluded.
60. However, counsel did say what is recorded as being his, which is being relied upon without challenge. Whilst I do not in any way criticise him or her for so doing, as the submission in question was intended for an entirely different purpose, nevertheless it is there and effect must be given to it. Therefore, only by reason of these very unusual circumstances will I hold, that by concession there is in fact in existence, such evidence as satisfies the section.
61. Notwithstanding this conclusion however, I would like to further comment on subs. (14) of s. 23. In order to make this discussion understandable, I will do so on the assumption that during the voir dire the content of the subject memoranda were read into the record by the interviewing gardaí but that otherwise there was no further engagement with that evidence (see however, paras. 65 - 67 infra). In that context, could I firstly take the requirements of “reliability” and “probative value”. While such terms might be relatively well known, their application in practice can only be viewed in a concrete setting; that is within the run of a trial where the evidence is listened to, the surrounding circumstances outlined and the demeanour of witnesses observed. Furthermore, a critical element of such process is the right of an accused to challenge, or contest, the evidence as given.
62. In this case on the assumption made and on the further assumption that “contestability” had a much broader reach than in fact it had, one can only speculate in what way defence counsel might have interacted with the interviewing gardaí. This of course would have depended on what attitude the respondent might take to the alleged admissions. Several feasible and by no means fanciful options, might have been open, such as a denial that the admissions were made, that the same were accurately noted or recorded, that the surrounding circumstances were unfair or oppressive, that some threat or inducement might have been issued, or that they were not voluntary given. In addition, it may have been possible to suggest other circumstances which might have adversely impacted upon such evidence: or of course there may have been no challenge. However, as events unfolded, one will simply never know.
63. Matters of challenge such as those which I have mentioned, are essentially issues for the judge and not for the jury. The former determines admissibility if it arises, not the latter. Admissibility however, is not the statutory test. What is, are factors over which the jury has competence: and yet any exploration of these is highly unlikely (para. 65 infra). What thus could this Court make of the interview memos, even if viewed? In the absence of the concession mentioned, may I suggest terribly little, if anything. This real practical difficulty also feeds directly into both the next point and into a consideration of Point No. 3 on s. 23, which I will discuss at paras. 77 - 82 infra.
Aspect No. 3 of Compelling Evidence: (subs. (14) of s. 23)
64. As above noted, compelling evidence is that which is “reliable”, is of “significant probative value”, and is 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” (s. 23(14)(c)) (para. 22 supra). As is therefore clear, this Court must be satisfied that the excluded evidence complies with this statutory requirement in all respects. How can it be so satisfied?
65. The third element of s. 23(14) is also highly troublesome. As stated, it obliges this Court to satisfy itself that the excluded evidence, when taken together with the other evidence “adduced in the proceedings” is such, that a jury might reasonably be satisfied to convict. Again disregarding the concession which the DPP relies upon for a moment, it seems to me that in the absence of any evidence having been given, and thus challenged or tested on the question of guilt or innocence, this requirement is incapable of being evaluated and therefore is utterly inoperable in the statutory context.
66. Even however if the DPP had attempted to have the excluded evidence opened to the trial court during the voir dire application, what might have happened? It is quite likely, with some justification, that the judge would have considered such evidence as being irrelevant to the issue then for her decision, such issue being much narrower than the scope of the assumption made in para. 62 supra. Even however if allowed, it is even more difficult to see how any engagement by defence counsel with such evidence, would have helped her in solving that issue. In practice therefore, it is very demanding to see in a situation such as this, how subs. (14)(c) of the section can be operated. It would seem premature for the DPP to indicate her intention to appeal before the admissibility application is made or ruled upon. It would appear cumbersome and somewhat unreal to have the judge re-run the application purely to establish a foundation upon which a s. 23 appeal might theoretically be moved. Other options are difficult to imagine. I therefore do not see how it can work, at least without some major and quite disruptive modification to well established and well trusted trial practice.
67. In addition, even if the excluded evidence had been led in the sense of the memos being read into the record, I repeat rhetorically, what is this Court to make of such evidence at appeal level? It seems intuitively objectionable to ask the Court to embark upon such an exercise, which is quite unlike say what the Court of Criminal Appeal does when reviewing the trial evidence, so as to test the evidential basis upon which a jury might have convicted. Obviously the judge in the voir dire would have expressed no view on the capacity of the evidence to sustain a verdict: in fact it would be quite wrong for her to so do: what therefore is this Court expected to do? Look and read the memos, become assessors of fact or of inferences, at least to some degree, make a judgment on weight, probity and reliability without any opportunity being available to defence counsel to contest the evidence, or to act out the role of a jury in deciding that it might convict. May I respectfully suggest that in the circumstances outlined such a task is I think, one wholly unsuitable to this Court.
Point 2 on Section 23: (para. 49(2) supra)
68. As earlier stated I am satisfied that s. 23 of the 2010 Act should not be viewed in isolation or even only as part of the remaining provisions with which, it is directly linked: it must in my opinion be considered in conjunction with Part 3 of the Act, which includes ss. 8 – 10 thereof. In so doing it is I think important to keep in mind a distinction between what the provision seeks ultimately to achieve and how it proposes that result to be accomplished. When considered in this way, and having applied a strict method of interpretation, I am not satisfied that such a significant impairment of traditional and historical rights was intended, to be imposed in the circumstances which present themselves in the instant case. In other words, I do not accept that the ruling made by the trial judge can be correctly classified as being “erroneous”, for the purpose of s. 23(3)(a) of the 2010 Act.
69. The overall objective of the 2010 Act is patently obvious to me. As already explained ss. 8, 9 and 10 of the Act, are by express provision, intended to deprive those to whom they apply, of the protection afforded by the principle of double jeopardy. It is likewise, I am satisfied, with s. 23 of the Act, as its statutory heading makes quite clear. Therefore, the declared intention of these provisions is to attack, and have stood down the acquittal order, so that the individual in question can be re-tried. That much is, I think, evident and is entirely consistent with, and follows from the approach which I have above adopted, to the interpretation of the section.
70. How such objective is to be achieved however, differs as between ss. 8 and 9 on the one hand and s. 23 of the Act on the other. In the case of a s. 8 person, the gateway is through the discovery of “new and compelling evidence”, and in the case of a s. 9 person it is the existence of “compelling evidence” as well as establishing that the original trial was tainted. If such have been established then, having considered the interests of justice, the court is empowered to quash the original acquittal and make a re-trial order. No part of this process however involves impugning the manner and way in which the original trial was conducted or how the trial judge interpreted or applied relevant legal principles. The conditions which must be satisfied in the case of a s. 23 person are however different. As applicable to this case, the DPP must establish in effect that the impugned ruling, which led to the exclusion of the evidence, was made erroneously which can only mean that it resulted from an error of law on the part of the trial judge.
71. The majority of the Court so hold and they do so by re-examining Kenny and concluding that the exclusionary rule should be set aside and in substitution therefor, there should be a new test, containing the elements as specified in para. 7.2 of the judgment of Clarke J. They conclude therefore that the trial judge acted “erroneously” in applying Kenny, the effect of which can only be that instead, she should have applied the test as suggested by them. I find it impossible to accept that this scenario could have been within the contemplation of the Oireachtas when enacting s. 23. For such to be the case the legislature must have intended to stand down the cherished principles of legal certainty and acquittal finality, as well as providing for a re-trial of the declared innocent, even where firstly, as in a case such as this, the DPP acknowledged both the constitutional correctness of the law as applied by the trial judge and the constitutional obligation of her to so do, and secondly, where as a matter of fact it would have been impossible for her to apply the test as now espoused,. There is to my mind something entirely illogical about such a proposition and as the legislature could not be assumed to have enacted law with such effect, I am satisfied that in the circumstances of this case no appeal lies to this Court as the ruling cannot be said to have been made “erroneously”: or as the section requires, erroneously so made “during the course of the trial” (s. 23(3)(a) of the 2010 Act).
72. If it was otherwise, great ambiguity and confusion would be infused into the trial process which could jeopardise the confidence and conviction of those who are mandated to ensure compliance with fundamental rights, with fair procedures and with the due process provision of Article 38.5. This case was not one where some rule or statutory provision was overlooked, where some uncertainty existed in their meaning or application, where the law was unsettled or subject to inconsistent judgments, or even where some novel point was at issue. Further, the trial process provided for under the Constitution and given effect to by the Oireachtas and the judiciary is adversarial in nature, with the DPP deciding on what charges should be preferred in a criminal prosecution and on what evidence should be lead in support thereof. In addition, she is entitled to make submissions on every legal issue which arises, as of course is the accused person. As a result therefore, the trial judge should be in a position to precisely know what issues call for her determination and also to know the existence of any conflicting views, on relevant legal principles.
73. It is strikingly significant that the voir dire was argued solely on the basis of the lawfulness of D/Gda Burke’s presence in the premises on the occasion in question. Much debate was had on that issue including the provisions of s. 6(2) of the 1997 Act. It is however even more conspicuous to note that no submission of any description was made on behalf of the Director of Public Prosecutions, regarding the application of Kenny, in the event of the trial judge ruling against her submission on the lawfulness of the arrest. Counsel on behalf of the respondent advanced arguments on the exclusionary rule which were entirely consistent with the universally understood meaning of the decision in Kenny. Counsel on behalf of the DPP took no issue whatsoever with those submissions. In fact, Kenny never featured in any way or at any level in the prosecution’s response to the application as made.
74. It must therefore be asked how the trial judge could have known or ascertained that in applying Kenny she was in effect committing an error of law such that, would entitle the state to appeal her decision under s. 23 of the 2010 Act? Evidently, the DPP did not consider her application of the law to be in any way erroneous at the time. To have the right to fundamentally alter one’s position, almost immediately, with such far reaching consequences, is most objectionable, even unseemly: the least that the trial judge can expect and the law demand for her, is that if she rules in a certain way she must be told that she will, in that party’s submission, be acting in error. Without such protection, valuable safeguards for an accused person will be constantly undermined and liable to “hindsight” challenge, which inevitably will corrupt public confidence in the justice system.
75. In concluding as I have however, I wish to make clear that I do not in any way intend to challenge the normal practice, whereby a constitutional court, at review or on appeal, can decide that a judge had committed an error of law in any of the several ways in which such issues normally issue. My decision on this point relates only to s. 23 of the 2010 Act.
76. For the above reasons, I thus cannot accept that this aspect of s. 23 has been satisfied.
Point 3 on Section 23: para. 49(2) supra:
77. The final aspect of s. 23 of the 2010 Act which should be addressed, is to determine what jurisdiction this Court is given by virtue of subs. (11) of the section.
78. From the above analysis of s. 23 of the Act (paras. 31, 37, 40 supra), I make clear that in my view the pivotal target of the section is the seeking of a re-trial which, for the reasons previously explained, would, if made, of necessity involve quashing the preceding acquittal. That this is the focus of the provision, which is also supported by Part 3 of the Act, in particular by ss. 8 – 10 thereof, is evident from the specific wording of subs. (11) itself.
79. This subsection (para. 23 supra), empowers this Court to order a re-trial and quash an acquittal if it is satisfied as to the requirements specified in subs. (11)(a)(i) and (ii) of the Act. Those requirements are conjunctive and cannot be severed. The first is that as part of the trial or appeal process, a ruling has been made which erroneously excludes compelling evidence. That however is but one of twin requirements. The second is that in addition a re-trial is ordered. Unless the court is satisfied as to the existence of requirement one and requirement two, it must affirm the acquittal.
80. This interpretation is entirely consistent with what I believe to be the legislative motivation behind both Parts 3 and 4 of the 2010 Act. As previously stated, quashing a conviction without ordering a re-trial is an exercise in futility and at least, is constitutionally questionable. In the context of s. 23, for this Court to disassociate one condition from the other, leads to a highly suspicious and problematic result.
81. The lodging of an appeal to this Court is only permitted where the requirements of subss. (3)(a) or (3)(b) of the section have been satisfied. As noted, these involve a ruling which is erroneous and which has the effect of excluding “compelling evidence”, which term is defined as incorporating the three elements above discussed. One of those involves this Court concluding that but for the erroneous ruling, the entirety of the evidence adduced would have been such as might reasonably have led a jury to convict the person in question. If one therefore comes to that conclusion, explicit within it is a finding that the excluded evidence was reliable and of probative value and that the entire evidence, when viewed as a whole, was capable of sustaining, on its merits, a guilty verdict in respect of the accused person.
82. And yet, if no re-trial is ordered, the acquittal must be confirmed. Such a result in my view is entirely irrational and can only have the effect of seriously putting and forever keeping in issue the guilt of the respondent on the one hand, whilst nevertheless affirming in the same breath, his preceding acquittal on the other: an end point which in my view is intrinsically inconsistent. This Court should not endorse such contrivance. Accordingly, I do not accept that such an interpretation of subs. (11) is open. Futhermore, such a situation is intuitively objectionable and inherently offensive to deep rooted values of the criminal justice system. It is a frontal attack on the acquittal and is leaving a public stain on the character of the respondent who has no legal means of correcting that life lasting stigma. I, therefore, deeply object to such interpretation.
83. A final matter is that, in light of both parties agreeing that no jurisdictional issue arises by virtue of subs. (3) of s. 23 of the 2010 Act, I would propose to proceed on that basis without offering any independent view of my own on this provision. If and when the issue should become contentious, the same can at the appropriate time be dealt with.
84. Notwithstanding my conclusion that this appeal should be dismissed, I must however, in light of the importance of the majority judgment of this Court, express a view on the remaining issue, which clearly is one, of great moment.
Issue No. 3: Kenny:
85. For the purposes of this issue, Kenny does not suffer from the fact that the law so outlined was established by majority decision as distinct from unanimous judgment. If it was otherwise, any divergence of judicial view could be exploited to create an ever increasing level of uncertainty which might be harmful to the desirability of judges, fully and freely expressing their views on any given issue. Once delivered, even in the face of dissenting views, the judgment becomes the law. (Carron & Kane v. McMahon & Ors  1 I.R. 239 at p. 271 read in the light of Finucane v. McMahon & Ors  1 I.R. 165 at p. 207 (Finlay C.J.) and at p. 218 (Griffin J.). This is not to say of course that if such a majority judgment is later challenged as being distinctly wrong, the views of those dissenting may not be relevant: quite clearly they will or more accurately, they might be. This however is quite a different point from doubting the authority of the judgment, once given.
86. I do not see that the law has changed much over the years, when a previous decision of this Court is sought to be reviewed. The following of precedent as such, upon which a great deal of our justice system is based, is not what is in issue: and neither was it when the point was first authoritatively looked at in Attorney General & Anor v. Ryan’s Car Hire Limited  I.R. 642 (“Ryan’s Car Hire”). It was in fact the “rigidity” aspect of stare decisis; an aspect which at the time led the House of Lords, a strict adherent of the rule, to follow all of its earlier decisions on questions of law unless and until relieved from so doing, by legislative enactment (London Street Tramways Co. Ltd v. London County Council  A.C. 375). Even however with such a strong attachment to the rule, some relaxation was evident as early as 1928 (Robert Addie & Sons (Collieries) Ltd v. Dumbreck  A.C. 358), and the same has increasingly continued to this day.
87. In Ryan’s Car Hire, various expressions were used to indicate what would be an acceptable yardstick by which an earlier decision could be stood down and overruled. It was said that to do so, the court should be “convinced” and “clearly of the opinion” that the earlier decision “was wrong” or “clearly wrong” and had been erroneously made or arrived at. The approach was put thus by Kingsmill Moore J.:- “[w]here such a Court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases” (p. 654). If followed therefore that if a decision was found to be profoundly wrong, it “should not be reinforced by repetition or affirmation” (Mogul of Ireland Limited v. Tipperary (North Riding) County Council  I.R. 260 at 272) (“Mogul”). In short, no court should stand by and perpetuate such an error.
88. A short time before the decision in Ryan’s Car Hire, this Court in The State (Quinn) v. Ryan  I.R. 70, set the scene for what was to become an essential component of the review process: whilst agreeing that stare decisis was not universally binding in constitutional cases, nonetheless the court said that it would depart from an earlier decision of its own, only, for “the most compelling reasons” (p. 127).
89. In applying the correct approach, it would not be sufficient for the court to simply believe, that a viable alternative to the delivered decision was also available on the facts and law of the indexed case, or that a different outcome was equally feasible: or merely that the later court inclined or even preferred a different view or a different conclusion (Mogul: O’Higgins J. at p. 269). The gateway to review is not so lightly placed: there must be compelling reasons, fuelled by exceptional circumstances to justify the court’s intervention in this way.
90. Kingsmill Moore J., in Ryan’s Car Hire gave examples of what might be considered to be, “exceptional cases”. These included:-
These of course were but instances where the test might be satisfied. Evidently the same conclusion might be reached in quite different circumstances, depending on the particular facts of any given case.
(i) where some material statutory provision was overlooked;
(ii) where some such provision, although repealed, was applied; or
(iii) where some binding authority was ignored. (p. 654)
91. Mogul was a case where to hold with a submission that consequential loss could be recoverable in a malicious damage claim, the Court would have been obliged to overrule Smith v. The County Councils of the Counties of Cavan and Monaghan  I.R. 322, which held that no such heading of loss was recoverable. Both O’Higgins C.J., and Henchy J., who gave judgments, declined this invitation, being satisfied that the high point of the submission rested only on the basis, that a contrary view as to the statutes’ interpretation, might also be available.
92. Henchy J. at p. 273 stated:-
The learned judge also added the following:-
“We are concerned here with a pure question of statutory interpretation which was fully argued and answered in Smith’s case after mature consideration. There are no new factors, no shift in the underlying considerations, no suggestion that the decision has produced untoward results not within the range of that court’s foresight. In short, all that had been suggested to justify a rejection of that decision is that it was wrong. Before such a volte-face could be justified it would first have to be shown that it was clearly wrong. …In my opinion, counsel for the applicants have, at most, established no more than that the interpretation for which they contend might possibly be preferred to that which commended itself to the court in Smith’s case. This is not enough. They should show that the decision in Smith’s case was clearly wrong and that justice requires that it should be overruled. They have not so done. I would therefore decline the invitation to overrule the decision…”,
“Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand.” (p. 273)
93. The intervention route is not of course confined to cases involving questions of statutory interpretation or instances where the circumstances come within the examples given by Kingsmill Moore J. in Ryan’s Car Hire. That was not the intention of the judgment and there is nothing in Mogul to so restrict its use. Indeed, the case law shows a variety of factual and legal situations where this Court has entertained this type of application: on some occasions agreeing to overrule and on others declining to do so. These include:-
94. It can therefore be seen that there is a wide divergence of circumstances in which the rule has been engaged. In none of the cases as cited however, have the basic principles as outlined in Ryan’s Car Hire and Mogul been modified or altered in any substantive way nor have I seen any tendency by the court, to do so.
(i) The granting of a declaration that s. 62 of the Courts of Justice Act 1936 was constitutionally invalid, which had the effect of overruling The State (Shanahan) v. Attorney General & Ors  I.R. 239; (Costello v. Director of Public Prosecutions  I.R. 436).
(ii) The refusal to lift an injunction which depended for its validity, at the time of issue, on the correctness of Attorney General (The Society for the Protection of the Unborn Children (Ireland) Limited) v. Open Door Counselling Limited & Anor  I.R. 593, a case involving Article 40.3.3 rights as founded on the Fourteenth Amendment to the Constitution: (The Society for the Protection of the Unborn Children (Ireland) Limited) v. Grogan & Ors (No. 5)  4 I.R. 343): it was not however continued at appeal level in view of the constitutional and legislative changes, which had occurred in the intervening period.
(iii) The refusal to follow one aspect of an earlier decision given on an Article 26 reference in In the Matter of Article 26 of the Constitution and in the Matter of the School Attendance Bill 1942  I.R. 334 at p. 346, paving the way for the District Court to convict a mother for failing to send her child to school in circumstances where suitable elementary education was not otherwise being provided: (Director of Public Prosecutions v. Best  2 I.L.R.M. 17 – Keane J.).
(iv) The dismissal of an invitation to overrule the approach adopted by the court in De Rossa v. Independent Newspapers plc  4 I.R. 432 to the assessment of damages by a jury in defamation proceedings (O’Brien v. Mirror Group Newspapers Ltd & Ors  1 I.R. 1).
95. The question therefore is whether Kenny, when these legal principles are applied to that decision, was so clearly wrong in both outcome and reasoning, that unless overturned this Court would be lending its authority, to a decision which for compelling reason is, and can be seen to be, definitively incorrect? In order to arrive at a conclusion on this point it is evidently necessary to evaluate Kenny, which in turn requires a consideration of the case law going back to O’Brien and also that which emerged in the intervening period between both.
Was Kenny Wrongly Decided?
The Submissions of the Appellant:
96. The DPP begins her submission with effectively an expression of regret, that this Court did not address in Director of Public Prosecutions v. Cash  1 I.R. 609 the issues which she has with the absolute exclusionary rule, as she calls it: resiling only somewhat from that position, by conceding with reluctance that ultimately it was not necessary for the Court to so do. She now wishes to reiterate and restate many of those arguments for the purposes of inviting this Court, once again, to overrule the majority decision in Kenny. She complains in particular about the meaning which the majority judgment gave to the phrase “deliberate and conscious violation”: she says that it should be understood as referring to an act “which is deliberately unconstitutional”, and not as the Court decided. As the rule presently stands, she asserts, and this in reality is the sole and fundamental premise of her submission, that it has “insufficient regard for community interest in the prosecution of crime, and is at variance with the more balanced exclusionary rule observed in many other common law jurisdictions”. On this basis she seeks an overruling of Kenny.
97. On another reading of her submission there is a less venturous claim being advanced: it falls short of starting afresh and instead seems to graft onto the existing rule an exception, in the terms of this case. If acceded to, Kenny would not cover a situation where the officer in question had no reason to believe that the search or arrest were other than lawful and where the warrant facilitating either or both was duly and properly granted on foot of an Act of the Oireachtas, necessarily and properly presumed by all organs of the State, to be constitutional but which subsequently, was declared otherwise. In due course I will arrive at both submissions.
98. The DPP’s challenge, in a substantive way, commences with a review of The People (Attorney General) v. O’Brien  I.R. 142 (“O’Brien”). For present purposes, she recalls as the most striking and significant feature of the case, the fact that the search so carried out was both deliberate and unlawful. Having set out relevant extracts from both judgments of the Court, it is claimed by particular reference to the passage in the judgment of Walsh J. (p. 170), that the phrase “deliberate and conscious” was used by him in the sense of one knowingly breaching the constitutional rights of another. In its ordinary and natural meaning the phrase should also be understood in this way and if so, “some element of mens rea”, must exist. This understanding of the term is also deducible from the Court’s ultimate decision in finding that there had not been in the circumstances as outlined, any deliberate and conscious violation of the O’Briens’ constitutional rights.
99. This view, it is said, is supported by Kelly in the second edition of that great work, (J. M. Kelly, J.M. Kelly: The Irish Constitution (Dublin; Tottel Publishing; 1984) at p. 184), where ignorance of the error is offered as the reason why the exclusionary rule was not applied to the facts of that case. Reference is also made to The People (Director of Public Prosecutions) v. Lawless(1985) 3 Frewen 30, where a mistake in the address of the subject dwelling house, similar to that in O’Brien, was likewise overlooked. In particular however, much reliance is placed on the majority judgment in The People (Director of Public Prosecutions) v. Shaw  I.R. 1 (“Shaw”) (Griffin J.) which adopted and approved what the DPP says was the meaning given to the subject phrase in O’Brien. The understanding of Walsh J., who gave the minority judgment in Shaw, that O’Brien did not in any way suggest that the rule depended on the violator’s knowledge of constitutional law, or indeed of the ordinary law, was dismissed, as being misplaced. The DPP’s position, it is said, also reflects the invariable practice, not only of the judiciary but also of practitioners, during the intervening period (Director of Public Prosecutions (Walsh) v. Cash  IEHC 108 – Charleton J.).
100. It is fairly acknowledged, as it must be, that the majority decision in Shaw was expressly rejected in favour of Walsh J.’s understanding, by the Court in Kenny, where the issued search warrant was found to be invalid on the basis that the Peace Commissioner could not have satisfied himself as to a necessary statutory requirement. To those who believe that ignorance of the law should not be incentivised, the DPP refers to the decision of the Court of Criminal Appeal in that case, as offering some necessary comfort. It is however unclear to me, whether the relevant passage of that judgment, delivered by O’Hanlon J. (para. 158 infra), is being adopted by the DPP in the instant case and if so, whether she is suggesting that the same should be incorporated as part of a reformulated Kenny, if that should occur.
101. In addition to relying on Shaw, the DPP also urges upon this Court the dissenting views of Lynch J. which appear at pp. 141-142 of the Kenny judgment. These read as follows:-
The other minority judgment, that of Griffin J., is also being heavily pressed.
“Of course the gardai contributed to the error by adopting a form of information which was in fact inadequate but which had for many years been accepted by both District Justices and peace commissioners as adequate. To suggest that the gardaí deliberately withheld evidence of facts in their possession from the peace commissioner is to suggest that they deliberately imperilled the strength of their own case against the appellant without any reason whatever especially as the evidence in the trial demonstrates that if the peace commissioner had asked for evidence of facts there would have been no difficulty in furnishing him with such evidence so as to lead to the valid issue of the warrant which was in fact invalidly issued.
The adoption of such an inadequate form of information by the gardai is a far cry from a deliberate intention to violate the appellant's constitutional rights in relation to his dwelling and neither did it lead to any form of unfairness in the investigation or the trial.
The inviolability of the citizen's dwelling must be upheld but this does not mean that evidence obtained in breach of it must always be rejected however relevant it may be to the case at hearing. It must be rejected if there is any element of blame or culpability or unfairness (including any such element to be inferred by the reasonable application of the doctrine "ignorantia juris haud excusat" in relation to the breach of the right on the part of those who obtained the evidence unless there are adequate excusing circumstances. In all cases heretofore, where evidence has been rejected, including the recent case of …Healy… there was manifest and deliberate disregard of the accused's rights. Not only did the gardai deliberately do the acts complained of, but they did them knowing that they contravened the accused's legal, if not his constitutional, rights. I take the view that if the gardai deliberately do acts which they know or ought to know contravene the accused's legal rights, but not his constitutional rights, and if the rights are thereafter held to be constitutional rights, the exclusionary rule should apply, but there must be some such element of blame or culpability or unfairness to bring the exclusionary rule into operation. If there is no such element of blame or culpability or unfairness in relation to the breach of the constitutional right on the part of those who obtained the evidence then the evidence should be admitted and no question of excusing circumstances arises.
In my opinion…O'Brien… is on all fours with this case and I follow it. I also follow the majority judgment in…Shaw…which emphasises the importance of fairness or unfairness in the admissibility or inadmissibility of the evidence.”
The deterrent effect – justification for a strict exclusionary rule:
102. Under this heading, the DPP denies that there is any constitutional imperative supporting the absolute exclusionary rule as being either necessary or appropriate to best defend or uphold the inviolability of the dwelling house. The guarantee contained in Article 40.3 of the Constitution is to vindicate personal rights as “far as practicable” (3.1°), and to protect them from unjust attack “as best it may” (3.2°). This suggests that competing rights and obligations of citizens may have to be balanced on occasion. Where so arising there are “many other means” of vindicating rights, for example by civil action. Moreover much has changed in the legal and regulatory landscape since Kenny regarding garda conduct and the means by which lawless ventures can be corrected. Lynch v. The Attorney General Ors  3 I.R. 416 was a case where the Supreme Court rejected a suggestion that, extradition should be denied as having a deterring effect for garda misconduct, which had induced the subject person into giving information in return for a promise that the warrant would not be executed. The inter-state arrangements between the countries involved, had to be honoured.
The Exclusionary Rule in other Jurisdictions:
103. From a survey of what the comparable position is in other common law jurisdictions with written Constitutions, it is submitted by the DPP that the absolute exclusionary rule does not apply in any other such country: in fact recent trends have favoured a more inclusive approach, to be arrived at via a balancing test by which various competing, or even conflicting factors, are assessed. Much emphasis has been placed on what the position is, in the United States (US), taking into account the latest case, as cited, which is Davis v. United States 180 L. Ed. 2d 285 (2011). This case, from my examination of the authorities (paras. 169 – 198 infra) is but one of many decided over the past thirty years during which what is described as the “substantial social cost” of exclusion, together with a much constricted view of the remedial effectiveness of deterrence, have both assumed an importance vastly greater than previously, with the result of severely impacting on the wider operation of the rule.
104. In Canada there is a specific statutory provision dealing with the exclusionary rule: it is contained in s. 24(2) of the Canadian Charter of Rights and Freedoms (“the Charter”). This section, in both its interpretation and application, has been reconsidered on several occasions over the past number of years with the latest review being conducted in R. v. Grant  S.C.C. 32. In short, the Court in determining whether to exclude the impugned evidence must consider what effect its admission would have on society’s confidence in the criminal justice system, having regard to:-
105. Furthermore, it is also said that whilst the focus of their individual approaches may differ to some extent, the current Canadian situation is not that dissimilar to the practised jurisprudence of both Australia and New Zealand, in this area of the law.
106. In conclusion therefore, it is submitted that Kenny stubbornly stands alone, against an ever increasing wave of recent reform: it should, it is said, yield and accept that at least some modification of its strict position, is appropriate.
Standing down Precedent:
107. The DPP seems to acknowledge that save in special circumstances and then only for “compelling reasons in exceptional cases”, should this Court stand aside the principle of stare decisis. It can however do so and in the past has on a number of occasions exercised such power. The relevant case law shows that when considering this matter:-
It is submitted that the instant case falls within “exceptional circumstances” and thus, this sparingly used jurisdiction should be invoked.
(i) The Court must clearly be satisfied that the earlier decision is wrong.
(ii) The Court when making that assessment may be influenced, on the issue of principle, by approaches adopted in other jurisdictions.
(iii) The nature of the issue, such as one having constitutional effect, may lend itself more readily to change than others, and finally
(iv) Departure from earlier precedent may be more easily justified where traditional means of judicial positioning, as for example, by distinguishing the case, is unsatisfactory.
108. As justification for this suggested departure from principle, the following is further offered:-
(i) Kenny, which cannot be reconciled with O’Brien, also fails to address the tension which it has created between that case and the majority view in Shaw;
(ii) Kenny’s rationale involves an error of reasoning in that the Constitution does not require absolute protection in the vindication of rights: further, to create a “good faith” exception would not be inconsistent with such vindication;
(iii) Kenny’s consequences are disproportionate to the objective sought to be achieved;
(iv) Kenny’s emphasis on what best defends personal rights and its focus on “positive encouragement” does not justify the weight given to those factors: a “good faith” exception would not impact on the integrity of the criminal justice system and neither would it adversely affect the objective of deterrence;
(v) Kenny can be overruled without disturbing any settled expectations; and finally,
(vi) Kenny’s decision and the consequences which flow from the absolutist theory of constitutional rights,sits uneasily with cases such as A. v. The Governor of Arbour Hill Prison  4 I.R. 88.
109. In consequence it is asserted that this Court would be justified in the instant case in overruling or modifying the Kenny decision.
The Respondent’s Submission:
110. At the outset the respondent takes objection to the characterisation of the rule as being one which operates on a “absolute” or “near absolute” basis. As has been pointed out on several decisions, an act which is committed “unintentionally or accidentally” is not captured by the rule and in addition, even where conduct falls within its province, the rule can be stood down in the face of extraordinary excusing circumstances. Those circumstances are not confined to the three examples as given by Walsh J. in his judgment in O’Brien (p. 170 of the judgment).
111. It is also incorrect to suggest that the majority view in Kenny did not have regard to other competing policy considerations. As Finlay C.J. pointed out, anomalies could indeed arise from the rule which he proposed, but even so:-
Thus, it is clear that the public interest which the DPP suggests was ignored in Kenny, was in fact expressly considered by the Court not only in its formulation of the rule, but of necessity in its rejection of any alternative formulae. Further, any attempt by the DPP to draw a parallel between the basis upon which evidence is excluded following the application of this rule and the circumstances considered by the Court in A. v. The Governor of Arbour Hill Prison  4 I.R. 88, is entirely misconceived.
“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’.” (p. 134)
The Rationale for the Rule:
112. In suggesting that the rule could have no deterrent affect in a situation where the relevant garda could have no knowledge that his actions were breaching constitutional rights, the appellant misunderstands the rationale for the rule which is not designed to address police misconduct. Rather, Finlay C.J. in Kenny, in favouring the stricter form of its application expressly refers to the necessity to provide “a positive encouragement” (p. 133), to all those involved in the prevention, investigation and detention of crime so that they should remain conscious of the personal rights of those who are subject to state laws, which must include even the investigators themselves. The State, for this purpose, includes the judiciary which is duty bound under Article 40 of the Constitution to defend and vindicate such rights. Essentially it was the furtherance of this obligation which prompted the Court in Kenny, to opt for the particular formation of the rule, which it did.
113. The respondent refers to the background constituting the Damache case, as proof in itself that such “positive encouragement” is necessary. He points out that the possible demise of s. 29 of the 1939 Act was expressly signalled in the “Burnfoot Module” of the Morris Tribunal which reported in 2006. The Court of Criminal Appeal, in Director of Public Prosecutions v. Cunningham  IECCA. 64 (“Cunningham”), described the procedure by which the section had been operated for many years, if not always, as representing “little more than a convenient and decorous formality which…was in truth often little better than a warrantless search of a private dwelling”. Cunningham also identified a number of earlier decisions where potential difficulties with this practice had been highlighted. Given the public attention therefore, which had been legally drawn to this matter, it seems quite clear that but for an element of institutional culpability, this unacceptable policy should have been terminated at executive level, rather than having to have that outcome imposed upon the garda force, by the Supreme Court in February, 2012. Accordingly, it is quite misleading to suggest that the obtaining of the warrant in this case and the resulting search were “acts duly and properly undertaken on the faith of an Act of the Oireachtas which is presumed to be constitutional”.
114. It is submitted that the central question on this appeal is whether the Supreme Court should give its sanction to the state of affairs which was so roundly condemned in Damache, involving as it did “the systematic” participation by a state agency in a seriously flawed process. To have in place any rule, other than one which absolutely rendered inadmissible the fruits of such a process, is in effect to support the State’s breach of the very rights which the Constitution obliges the same State, to protect and vindicate. Brennan J. dissenting in United States v. Leon 468 U.S. 897 (1984) and Holmes J. in Dodge v. United States 272 U.S. 530 (1926) at p. 532,were both apt (with the learned justice in Dodge) stating:-
Accordingly, there is every reason for this Court to fully endorse Kenny rather than to entertain even a modification, much less, an entire rewriting of it.
“If the search and seizure are unlawful as invading personal rights secured by the Constitution, those rights would be infringed yet further if the evidence were allowed to be used.”
The Benefit of Clarity:
115. There is no doubt but that the rule, in its present form, brings a great deal of legal certainty to the situation it is intended to cover. This is a matter of considerable importance to all those who engage with the criminal justice system in this context. Such certainty will be severely challenged with any balancing test as by any yardstick, a large element of subjectivity will inevitably follow. If, as the DPP suggests, factors such as those mentioned by Lynch J. in Kenny, (“blame, or culpability, or unfairness including any such element to be inferred by the reasonable application of the doctrine ‘ignorantia juris haud excusat’” (p. 142)) should become part of the examination, the same would involve lengthy and contentious fact finding inquiries by the trial court in order to determine whether, even if existing, the degree of culpability was such, as would warrant the exclusion of evidence. In any such process the rights of an accused, a constitutional victim at this stage, would be subsumed within a place of minor or even lesser importance.
The Social Cost of the Rule:
116. Despite the DPP’s claim that the rule “regularly” operates to “frustrate prosecutions” (para. 48 of the submissions), no empirical evidence of any description has been placed before the court, to support this assertion. On the contrary, the evidence available from the United States, before what the respondent says was “the erosion of the rule (commencing) with the judgment in United States v. Leon…” revealed that in the most serious forms of crime, namely murder, rape and other violent offences, the absolute rule was exceedingly rare in its application (Thomas Y. Davies ,“A Hard Look at What We Know (And Still Need to Learn) about the ‘Costs’ of the Exclusionary Rule: the NIJ Study and Other Studies of ‘Lost’ Arrests” (1983) American Bar Foundation Research Journal 611). It is therefore, not sufficient to merely so assert without offering in support, some tangible proof. In context, the reverse position could be considered and the question asked as to how many violations of key constitutional rights would have gone, without remedy, if the exclusionary rule was not in place.
117. The suggestion advanced by the DPP that there exists alternative remedies which if implemented would support the vindication of a rights basis to the rule, is entirely misguided. It is difficult to envisage how a garda, who inadvertently breaches the constitutional rights of an accused person, as for example, by acting on foot of a warrant which was invalid, could ever be subject to any form of meaningful disciplinary action. The possibility of a civil suit has never been regarded in any jurisdiction as an adequate alternative to the exclusion of evidence in a victim’s criminal trial. Furthermore, it might be very difficult indeed, to successfully frame or prosecute such an action unless the basis for it was specified by statutory provision, which is not currently the situation, in this jurisdiction.
The Rule in other Jurisdictions:
118. The position in the United States is discussed with the law as it stood immediately after Mapp v. Ohio 367 U.S. 364 (1961), being set out. Thereafter, in the respondent’s submission, the Supreme Court, by very narrowly focusing on deterrence as the sole objective of the rule, has stripped it of much of its effect and utility. This has continued through later cases such as Hudson v Michigan 547 U.S. 586 (2006), Herring v. United States 555 U.S. 135 (2009) and Davis v. United States (2011). Even prior to these cases, it is pointed out that one academic commentator, more than a decade ago, felt it appropriate to adapt Judge Cordoza’s oft-quoted criticism of the exclusionary rule, to observe that “nowadays the criminal only ‘goes free’ if and when the constable had blundered badly” (Professor Yale Kamisar, “In Defence of the Search and Seizure Exclusionary Rule”, 26 Harvard Journal of Law and Public Policy, 119 (2003), p. 133).
119. The Court has also been referred to the Canadian Charter by the respondent and in particular, to three significant cases, R. v. Collins  1 S.C.R. 265, R. v. Stillman  1 S.C.R. 607 and the more recent decision of R. v. Grant  S.C.C. 32. Likewise, the position in Australia and New Zealand has been touched upon in general terms, including the New Zealand Court of Appeal’s treatment of the issue in R. v. Shaheed  2 N.Z.L.R. 377 and the subsequent statutory codification of the rule in s. 30 of the New Zealand Evidence Act 2006.
120. In conclusion, it is submitted that this Court should not interfere with its previous decision in Kenny.
Discussion and Decision:
121. The issue for decision, is of course linked to the case of O’Brien, and to the several other judgments which have been given in the following twenty five year period, leading to Kenny. To understand the appellant’s submissions and to recognise the far reaching implications of what it entails, it is vital in the first instance to follow how the law developed during this period and to appreciate how it stood immediately before the decision in Kenny: as it is of course to understand precisely what that case decided. Accordingly, I propose to look at O’Brien and identify the issues which it decided, to review the decisions which followed, to set out what I believe Kenny established and finally on this aspect of the judgment, to summarise what the present legal position is.
The People (Attorney General) v. O’Brien:
122. The case concerned the validity of a search warrant which gave as the property’s address “118 Cashel Road”, Crumlin, instead of what was intended namely “118 Captain’s Road” Crumlin. It was unclear from the evidence whether the mistake was noticed prior to the search being carried out, but most likely it wasn’t and the Court so proceeded (para. 127 infra). The information sworn to obtain the warrant was accurate. The issue for the Supreme Court, on a certificate being granted by the Court of Criminal Appeal under s. 29 of the Courts of Justice Act 1924, despite its rather odd decision, in not even requiring to hear from the Attorney General, was whether the evidence obtained as a result of the search and upon which the conviction largely rested, should be excluded at the trial of both the O’Briens on charges of larceny and receiving stolen property, respectively.
123. The majority view on the ratio of the case was that a trial court had a discretion whether or not to receive “illegally” obtained evidence, which discretion involved a balancing test to be carried out on a case by case basis, by reference to the following factors:-
This approach on the illegality point largely remains undisturbed to this day.
(i) Nature and extent of the illegality,
(ii) Whether the breach was intentional or unintentional,
(iii) If intentional, whether the same resulted from an ad hoc situation or was part of a settled policy,
(iv) Whether the breach was trivial, technical or a serious invasion of important rights, the recurrence of which posed a real danger to necessary freedoms, and
(v) Whether there existed circumstances of urgency or emergency in the lead up to the search?
124. In essence, the Court held that the trial judge should ask himself or herself whether public policy, based on balancing public interest considerations, requires the exclusion of the evidence. Those interests were identified as involving on the one hand, the desirability of crime being detected and criminals being punished and to that end for the Court to have access to all available evidence, and on the other hand, the equally desirable objective of ensuring that individuals should not be subjected to illegal or inquisitorial methods of investigation and when they are, that the State should not be permitted to advance its own ends by utilising the fruits of such methods. Furthermore, the Court of Criminal Appeal, when called upon, could substitute its own views for those of the trial court on this issue, even if the discretion so vested in that Court, was not exercised on wrong principles.
125. On the particular facts of the case, the majority could find:
Describing the mistake as one of “pure oversight”, Kingsmill Moore J., representing that view was satisfied that the trial judge correctly exercised his discretion in receiving the evidence.
“…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)
126. Walsh J., who gave the minority judgment on the illegality issue, also spoke of the situation where in addition, the illegality in question violated one’s constitutional rights. Where that occurred the matter was much graver: if there was a “deliberate and conscious violation” of constitutional rights, then subject to some “extraordinary excusing circumstance”, the evidence should be “absolutely inadmissible”. He instanced three examples of such circumstances, namely the imminent destruction of vital evidence, the need to rescue a victim in peril and thirdly, where evidence had been obtained by search incidental to a lawful arrest, even though no search warrant was in place.
127. In that case however, the “wrong” alleged was but an error which remained unnoticed by the executing gardaí. There was therefore no deliberate and conscious violation of the constitutional right of the accused persons to the inviolability of their dwelling house (Article 40.5 of the Constitution) and accordingly, the evidence was not, “per se”, inadmissible.
128. Ó Dalaigh C.J. agreed expressly with the judgment of Walsh J.
129. At p. 162 of the report Kingsmill Moore J. in his judgment, expressed agreement with what had been stated by Walsh J. at the constitutional level (para. 126 supra). The learned judge was satisfied that where such a violation had occurred the evidence so obtained should “in general be excluded” and he also agreed that there may be certain circumstances which would warrant its admission. He did not however think it either possible or desirable to adumbrate by anticipation what circumstances might excuse, even a deliberate and conscious violation of rights, preferring to await individual cases for future development in this regard. He then concluded his judgment by saying:-
See para. 129 infra.
“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.” (emphasis added) (p. 162)
130. A number of points from O’Brien, which I think are not controversial and although obvious in themselves, are once again worth repeating:
Moreover, the Court’s reliance on the fact that “the error” in question, which can only relate to the factual mistake of the house address, went unnoticed prior to execution, begs the important question as to outcome, if that error, as distinct from its legal consequences, had in fact been noticed but ignored by the executing officer or by his team at the time. Knowledge of the law at any level of the legal system does not appear to have directly featured in the discussion.
(i) It is sometimes said that the decision was the foundation for what frequently is loosely and inaccurately referred to as the “absolute exclusionary rule”: such has never been the case and no such rule exists. (para. 167 infra)
(ii) A breach of a constitutional right, but not such as amounting to a conscious and deliberate violation of such right, would not be captured by the rule.
(iii) An error, purely “accidental” or “unintentional”, would not give rise to the resulting evidence being ruled inadmissible, solely on constitutional grounds.
(iv) Examples given of what might constitute “extraordinary excusing circumstances”, or for short, “excusing circumstances” were not intended to be prescriptive.
131. Some further observations on this case must however be made: indeed it is essential to do so. Firstly, the key point at issue was the test by which illegally obtained evidence should be measured by a trial court. The three options outlined by Kingsmill Moore J. (p. 159), cannot be read otherwise: for to do so is to withdraw all relevant context and to ignore the legal framework of the discussion then underway: one cannot isolate what he said from the reality. Secondly, whilst the argument of counsel may have ranged afar, an experience frequently witnessed by this Court, the law made is the judgment stated and not otherwise. Thirdly, if Kingsmill Moore J. intended to resolve O’Brien at a constitutional level, not only is the structure and sequence of his judgment most surprising but even more so, is his failure to lead any views of his own on the issue. For certainty one can proceed with the utmost confidence, that such an occasion of constitutional importance would not have passed him by, if that was the level at which, he intended to decide the case. So I do not accept for a moment that O’Brien can be treated as anything other than having been deliberated upon at a sub-constitutional level, much less that the ratio of the Court’s opinion can be further elevated as has been suggested. Therefore it follows from this reasoning, as it must also from the decision itself, that all references to the exclusionary rule, in a constitutional context, were obiter.
132. Whilst by now, some of the expressions referred to in the judgment are regarded as household phrases when used in context, it is significant to note that the Court did not in any explanatory or interpretative way, seek to attribute to them a defined meaning or otherwise signify by illustration or commentary, how what had been stated should in future be applied, in resolving contested issues. Apart from what is deducible from the result, matters were formulated and left stand at an entirely general level. Further, I can see no debate in the judgments which could possibly give rise to a claim, that the court was established a requirement of “intentionality” in the breach of a constitutional right, before the exclusionary rule became engaged. The passing reference by Walsh J. to the gardaí being unaware of the error could not sustain such a claim. Neither could the suggestion that the examples given of what constitutes “extraordinary excusing circumstances” were chosen deliberately, as inherently recognising a “conscious intent” to breach constitutional rights. If urgency is the common trend in the first and second examples, it may have no part whatsoever to play in the third (para. 126 supra): if in addition or separately, “deliberation” of gardaí activity is the point of the examples being referred to, it must be remembered that situations of operative urgency are most frequently responded to by immediacy of action and re-action where deep seated questions of legal knowledge are, at most, at that moment, considered incidental. Therefore, I do not accept that O’Brien expressly created any rule in this regard, certainly not one at binding level: accordingly, in my view it cannot correctly be said that Kenny overruled O’Brien in such regard.
133. With great respect, it also surprises me to read the suggestion that Kingsmill Moore J. was not supporting the exclusionary rule even where the circumstances by which evidence was obtained were those as outlined by Walsh J. at p. 170 of the report. If the learned judge was not, what was the point in offering any endorsement to the minority view on the constitutional issue? If his intention was to distance himself from the absolute rule, he must have had in mind some lesser threshold as a reference point by which the Court could determine admissibility. Whatever that might have been one can only speculate, but such must inevitably have involved some form of balancing test. If that is so, absent any contrary indication, it would strongly suggest a direct correlation between, if not an outright integration of that approach, with the one which he had previously appropriated to the illegality issue. That would have made no sense whatsoever in the constitutional context of the discussion: at least without the learned judge decisively stating that the exclusion proposed was being rejected. I am therefore of the view that the majority agreed with the application of the rule, in the manner suggested by Walsh J., when the circumstances so outlined by him, engaged its application.
134. In this same context I do not believe that those references in the judgment of Kingsmill Moore J., which I have emphasised at para. 129 above, offer any support to the view that the “absolutely” inadmissible element of the rule, was being departed from or stood down, even where the prescribed circumstances existed. In my view, the first such reference was intended to accommodate and reflect the situation, where “extraordinary excusing circumstances” were found to exist, and not otherwise. Again, if that was not the intention of the learned judge, such evidence would simply fall to be determined in exactly the same way as evidence obtained illegally but not unconstitutionally. That, as I have said, would not of itself have merited any approval of the minority view. The second reference relates solely to illegally obtained evidence and has nothing whatsoever to do with the constitutional argument. Consequently, I firmly believe that when appropriately engaged the absolute nature of the exclusion was endorsed by the majority in O’Brien and therefore obtained unanimous court approval.
135. Finally, it is imperative to point out another key issue raised but not determined in O’Brien: it was the premise upon which the suggested rule rested. The only judge to deal with the matter was Walsh J. who viewed such basis as being rooted firmly in the recognition, protection and vindication of constitutional rights. At p. 170 the learned judge said:-
This view, obviously obiter, does not appear to have been commented upon by the majority and accordingly, cannot be said to have formed part of the Court’s overall decision. What is significant however is that no dissenting, questioning or alternative view was advanced or advocated by the majority, whether deterrent driven or otherwise, and accordingly at a precedent level, the fundamental basis for the rule’s existence was left unresolved by O’Brien.
“The vindication and the protection of constitutional rights is a fundamental matter for all Courts established under the Constitution. That duty cannot yield place to any other competing interest. In Article 40 of the Constitution the State had undertaken to defend and vindicate the enviability of the dwelling of every citizen. The defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence. 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…”. (but see also p. 167 of the report)
From O’Brien to Kenny:
136. The decision in Kenny indeed had a background, one undoubtedly triggered by O’Brien but one by no means exclusively resting on that case. It is therefore instructive to see how key elements of the discussion in O’Brien had developed by 1990, and what exactly were the issues arising therefrom which remained in controversy at that time. I therefore propose to chase some important aspects of O’Brien, via the ongoing views of the Court as demonstrated in its decisions in the intervening period leading up to Kenny. These in general terms are as follows:-
As several of the cases overlap on these issues, it will be more convenient to designate authority to each point by way of summary at the end of this case review, rather than to do so, on an ongoing basis.
(i) What constitutes a “deliberate and conscious violation” of constitutional rights, either by inclusive or exclusive process,
(ii) What was the rationale behind the creation of the excusing provision of the rule and what circumstances, other than the examples given in O’Brien, could potentially fall within its meaning,
(iii) What were the distinguishing features of a constitutional violation, which on some occasions was said to amount to a deliberate and conscious breach, whilst on other occasions was described only, as being “unintentional” or “accidental”,
(iv) What different forms of justification, if any, were suggested in judicial thinking as the basis for the rule,
(v) Did the assessment of a breach or the consequences thereof differ, depending on whether committed by the executive branch of government or for which it was responsible, or by the judicial branch of government,
(vi) Did any divergence emerge in the application of the rule between confessional evidence and hard evidence or where the violation resulted from unlawful entry or illegal detention?
(vii) Where engaged and in the absence of excusing circumstance, what imperative consequences does the application of the rule demand?
The People (Director of Public Prosecutions) v. Madden  I.R. 336 (“Madden”):
137. At 6.40am on 21st June, 1975, the gardaí started to take a statement from Mr. Madden whose period of detention was due to expire 35 minutes later. There was no provision by which that period could be extended at the time, and no person could be held by the gardaí purely for questioning or to “help [them] with their inquiries”. The sole purpose of arrest was either to charge the individual or bring him before a court as soon as practicable.
138. The process of taking the statement did not end until some time between 10.00am and 10.30am later that morning. The admission of the resulting confession was challenged. The decision of the Court of Criminal Appeal was given by the then Chief Justice, O’Higgins C.J. He stated at p. 347 of the report:-
“What was done was, prima facie, done deliberately and, if so, consciously by the Garda officer concerned. Had there been any question of oversight or inadvertence with regard to the defendant’s constitutional rights, this would have become apparent at the trial. In fact no excusing circumstance was even suggested, apart from the assertion by Sergeant Brennan that the defendant was engaged in making a statement when the period of lawful detention expired. The court of trial appears to have sought an element of wilfulness or mala fides in the conduct of the Garda officer and, not finding such, to have concluded that the depravation of constitutional rights was not deliberate and conscious. In the view of this Court to adopt that approach is to misunderstand the decision in O’Brien’s case. …What was done or permitted by Inspector Butler and his colleagues may have been done or permitted for the best of motives and in the interests of the due investigation of the crime. However, it was done or permitted without regard to the right to liberty guaranteed to this defendant by Article 40 of the Constitution and to the State’s obligation under that Article to defend and vindicate that right. This lack of regard for, and failure to vindicate, the defendant’s constitutional right to liberty may not have induced or brought about the making of the statement, but it was the dominating circumstances surrounding its making. In the view of this Court this fact cannot be ignored.”
139. There are a number of points which emerge from this decision. Firstly, the act identified as being “deliberate”, was the continuation of Mr. Madden’s detention beyond the period lawfully provided for and secondly, the motives of the gardaí, even in one sense laudable, were not relevant. Therefore, the question of intention at least in this sense, was not a material factor in whether the act in question did or did not constitute a deliberate and conscious violation of liberty rights. Thirdly, the breach could not be explained by some “oversight or inadvertence”, and finally, the Court laid heavy emphasis on the protection of rights.
140. It is however also necessary to point out that in other parts of the Court’s judgment, O’Higgins C.J., seems to have suggested that by reason of his senior position within the force and thus being an experienced officer, Inspector Butler must have been aware of the expiry time of the detention period, and yet in defiance of what he should have done, he continued to question the appellant (pp. 344 - 346). Therefore, despite the endorsement of Madden by Walsh J. in The People (Director of Public Prosecutions) v. Raymond Walsh  I.R. 294 (“Raymond Walsh”) (pp. 317-318) as correctly interpreting O’Brien, it is not entirely free from doubt what part if any, knowledge by the Inspector of the legal position and even perhaps of the constitutional position of Mr. Madden, played in the judgment of the Court.
The People (Director of Public Prosecutions) v. O’Loughlin  I.R. 85 (“O’Loughlin”):
141. In the South East of the country, cattle rustling became a major problem in 1978. Mr. O’Loughlin was arrested on suspicion of being involved in such activity. The gardaí however chose not to charge him when they should have: rather, they continued his detention as part of their ongoing investigation . This was not due to any oversight or inadvertence on their part as those involved were, according to the judgment of the Court (O’Higgins C.J.) experienced gardaí with special knowledge of citizens rights, and thus would have been fully aware that the ongoing detention was unlawful: this could not be excused even if the purpose of continuing with their investigation was commendable. The evidence obtained during interviews was therefore excluded. Again however, like Madden, the judgment refers to “the act” of continuing the detention as well as “the knowledge” which the gardaí had or should have had, that such was in disregard of Mr. O’Loughlin’s rights. What is clear however from both Madden and O’Loughlin is that the justification for the exclusion was firmly rooted in the vindication of rights principle.
Decisiveness: Knowledge of act or law:
The People (Director of Public Prosecutions) v. Raymond Walsh:
Knowledge of Act:
142. The first issue in this case was whether or not Mr. Walsh was illegally detained at Store Street Garda Station at a time when his fingerprints were taken. If he was, it was accepted that such detention was a deliberate and conscious violation of his constitutional right to liberty and as a result, the evidence obtained by the use of such prints should be excluded. As it happened the majority took the view that at the critical time his detention was lawful: however, the case is of importance in the present context because of what Walsh J. had to say on the constitutional issue with which the other members of the Court agreed. In doing so the then Chief Justice, O’Higgins C.J., offered the following endorsement (p. 299):-
“I wish to say at once that this submission should succeed if the imprisonment or detention in Store Street cannot be justified in law. I have had the benefit of reading the judgment of Mr. Justice Walsh in which he reviews the authorities on this important aspect of constitutional law. I am in complete agreement with the manner in which he states the law”.
143. In his judgment, Walsh J. refers to what the Court had said in O’Brien and reaffirmed the vindication of rights basis for the existence of the exclusionary rule. He also rejected the existence of any residual discretion to admit the evidence where the breach had been deliberate and conscious. The learned judge then continued:-
So the Court in this case, Kenny J. agreeing with the Chief Justice, declared that the act of violation constituted the breach, with knowledge of its legal or constitutional consequences, not being necessary for this purpose.
“If a man is consciously and deliberately kept in custody in a garda station or anywhere else without a charge being preferred against him and without being brought before a court as soon as reasonably possible, he is in unlawful custody and there has been a deliberate and conscious violation of his constitutional right to be at liberty. That this was the position in the present case is abundantly clear from the evidence given by the police officer at the trial. The fact that the officer or officers concerned may not have been conscious that what they were doing was illegal or that, even if they did know it was illegal, they did not think it was a breach of the Constitution does not affect the matter. They were conscious of the actual circumstances which existed.” (p. 317)
The Alternative View:
144. Perhaps for the first time the divergent views on this aspect of the rule, which up to then might have been simmering only, became overtly obvious in The People (Director of Public Prosecutions) v. Shaw  I.R. 1 (“Shaw”), the facts of which are not highly material to the issue of principle. Walsh J., at pp. 31-32 of the report, summarised his view of the law as follows:-
“8. Subject to paragraphs 9 and 10, evidence obtained as a result of deliberate and conscious violation of the constitutional rights of an accused person may not be admitted at the trial of that person: The People (Attorney General) v. O’Brien: The People v. Walsh: The People v. Madden.
9. There can be extraordinary excusing circumstances (such as the imminent destruction of vital evidence or the need to rescue a victim in peril or other extraordinary excusing circumstances) surrounding the conscious and deliberate violation of the constitutional rights of an accused which, in the opinion of the trial judge, may justify the admission of the evidence so obtained: (The People (Attorney General) v. O’Brien: The People v. Walsh).
10. If the act which amounts to a breach of the constitutional rights of the accused person was committed unintentionally or accidentally, the evidence may be admitted at the discretion of the trial judge if it is otherwise admissible: (The People (Attorney General) v. O’Brien: The People v. Walsh).
11. The principles enunciated at Nos. 8, 9 and 10 apply to voluntary statement made by an accused person as well as to other types of evidence obtained: (The People v. Madden).
12. Where it appears that there has been a breach of the constitutional rights of the accused, the onus of establishing the existence of “extraordinary excusing circumstances” or of mistake, or lack of intention or accident, is upon the party seeking to adduce the evidence: (The People v. Madden: The People v. Walsh).
13. When the act complained of was undertaken and or carried out consciously and deliberately, it is immaterial whether the person carrying out the act may or may not have been conscious that what he was doing was illegal or, even if he knew it was illegal, that it amounted to a breach of the constitutional rights of the accused. It is the doing of the act which is the essential matter, not the actor’s appreciation of the legal consequences or incidents of it: The People v. Madden.”
145. Further in his judgment the learned judge added:-
“I might add that there is nothing whatsoever in O’Brien’s Case to suggest that the admissibility of the evidence depends upon the state or degree of the violator’s knowledge of constitutional law or, indeed, of the ordinary law. To attempt to import any such interpretation of the decision would be to put a premium on ignorance of the law. The maxim ingorantia legis neminem excusat does not permit an intentional and deliberate act or omission to be shorn of its legal consequences. It is appropriate to point out that the opinion of this Court on a similar subject was expressed as follows at p. 134 of the report of The State (Quinn) v. Ryan: –
To hold otherwise would be to hold what to many people would be an absurd position, namely, that the less a police officer knew about the Constitution and, indeed, of the law itself, the more likely he would be to have the evidence which he obtained in breach of the law (and/or the Constitution) admitted in court. If such indeed were the position, it could well lead to a demand that the interests of equality of treatment should permit an accused person to be allowed to be heard to the effect that he did not know that the activity of which he was charged, and which has been proved against him, amounted to a breach of the criminal law.” (pp. 33-34)
‘A belief, or hope, on the part of the officers concerned that their acts would not bring them into conflict with the courts is no answer, nor is an inadequate appreciation of the reality of the right of personal liberty guaranteed by the Constitution.’
Knowledge of Law Prevails:
146. Griffin J., with whom three other members of the Court agreed, took issue in a number of respects with what Walsh J. had said. It is sufficient for present purposes however, to note that in his view evidence could not be ruled inadmissible as having been obtained in conscious and deliberate violation of a constitutional right “…[where] the taker of the statement may not have known that what he was doing was either illegal or unconstitutional…” (p. 55). In his opinion the authorities were to the contrary effect. Accordingly, it was the violation of the person’s constitutional rights and not the carrying out of the particular act, which had to be deliberate and conscious, before the exclusionary rule applied: if otherwise the rule simply would have no application. Where however the breach is deliberate and conscious in the sense indicated, the evidence, subject to any excusing circumstances, must be excluded.
147. The majority also expressed considerable doubt as to whether, even if the rule was correctly engaged, it should be applied in the same manner to both confessional evidence and what might be termed “hard evidence”. Griffin J. took the view that the proper approach to the exclusion of inculpatory statements, even if voluntary, was to examine the manner and the circumstances in which the same were obtained, so as to determine whether such “fell below the required standards of fairness”. If they did, they should be excluded: the reason being “…that the minimum of essential standards must be observed in the administration of justice…” (p. 61). This particular issue however does not directly arise in the present case.
Matters at Constitutional Level Rested:
148. There were no further cases of major relevance at this level, bar one, before Kenny, but at a statutory level the precise invalidity issue which arose in the latter case had already been determined in Byrne v. Grey  1 I.R. 31, mention of which must now be made.
Byrne v. Grey & Ors  1 I.R. 31 (“Byrne v. Grey”):
149. To issue a search warrant under s. 26(1) of the Misuse of Drugs Act 1977, as amended, a judge of the District Court or a Peace Commissioner must be satisfied from information sworn by a member of An Garda Síochána, that there is reasonable ground for suspecting that a person on the subject premises has in his possession a controlled drug. Being so satisfied is a condition precedent to the exercise of the conferred power. Mr. Grey, a Peace Commissioner, issued such a warrant which when executed led the gardaí to find heroin on the premises of the accused person, who subsequently was charged with a number of drug related offences.
150. Prior to his trial Mr. Byrne sought an order of certiorari to quash the search warrant on the basis that the condition precedent had not been met. He alleged that given the evidence, the Peace Commissioner could not himself have been so satisfied. That evidence comprised the information on oath sworn to by the investigating officer which simply said:-
Hamilton P. held that a Peace Commissioner could not rely on the belief of a member of An Garda Síochána for s. 26 purposes. Rather, it was he himself who had to be satisfied as to the existence of a reasonable suspicion. In view of the evidence the Peace Commissioner could not have been so satisfied. In so finding the learned President adopted and applied the judgment of Lord Diplock in R. v. Commissioners of Inland Revenue, Ex parte Rossminster Ltd  A.C. 952 at p. 1008, which arrived at the same conclusion on a provision virtually identical to s. 26 for this purpose. Accordingly, the first named respondent had no jurisdiction to issue the warrant.
“…I am a member of the Garda Síochána and I have reasonable grounds for suspecting that…” (p. 37)
151. As the warrant had in fact been executed and thus was “spent”, the learned President saw no point in granting an order of certiorari. He left stand to the trial judge the decision whether or not to admit the evidence. Curiosity befalls me as to what ultimately happened, but as yet, twenty five years on, I have been unable to find out.
The People (Director of Public Prosecutions) v. Healy  2 I.R. 73 (“Healy”):
152. This is the only other case at the constitutional level which I intend mentioning before discussing Kenny. The central issue in argument here related to the right of a person detained in a garda station to have reasonable access to his solicitor on the latter’s arrival at the place of detention and on seeking an interview with his client. Mr. Dermot Morris, a well known solicitor at the time, arrived at Finglas garda station at 4.00pm on the 12th of March, 1986, and sought access to Mr. Healy. He protested at being told that he would have to wait as his client was being interviewed. At trial the Detective Superintendent in charge explained the refusal on the basis that, in his view, it would have been “bad manners” to interrupt the interview process. By unanimous decision, the Supreme Court dismissed an appeal by the DPP against a ruling given in the Central Criminal Court that the admissions made during the “denied period” were inadmissible.
153. Finlay C.J. with whom Walsh J. and Hederman J. agreed, said at pp. 81-82 of the report:-
“The test is whether the superintendent's refusal of access was a conscious and deliberate act, as it clearly was. The fact that he may not have appreciated that his refusal was a breach of the defendant's constitutional right is immaterial.
The failure… and the postponement both of the access to the solicitor and of the informing of the defendant of the presence of the solicitor until after the completion of the statement was, in my view, both a deliberate and conscious violation of the defendant's constitutional right…”.
154. McCarthy J. delivered a concurring judgment saying (pp. 87-88):-
“The Director has argued that there must be a balancing of constitutional rights between that of the prisoner and those of the public. In the making of this submission, it may have been overlooked that one major right of the public is to ensure that the constitutional rights of individual citizens are respected and enforced. Quite apart from the interest of the public in the investigation of, punishment for and suppression of crime, the public has a deep interest in ensuring that the individual citizen is not denied any personal right. In that sense, the public has as much an interest in the right of the defendant to have legal assistance and communication from his family as has the defendant himself.”
155. The learned judge continued:-
“In my view, if ‘conscious and deliberate’ is a term of art appropriate to be used in the context of constitutional rights and their violation, the only test is whether or not the act or omission that constituted such violation was itself a conscious and deliberate act; the fact that the violator did not realise he was in breach of a constitutional right is irrelevant. If it were otherwise, then if one jailor could distance himself from the others, as the superintendent did in the instant case, there need never be such a violation. It is not the state of mind of the violator that matters; it is the objective assessment of the conscious acts or omissions. A violation of constitutional rights is not to be excused by the ignorance of the violator no more than ignorance of the law can enure to the benefit of a person who, at common law, and by statute law (Criminal Justice Act, 1964, s. 4, sub-s. 2) is presumed to have intended the natural and probable consequences of his conduct. If it were otherwise, there would be a premium on ignorance.” (pp. 88-89)
156. So even though Healy only preceded Kenny by a few months, nevertheless by unanimous concurrence, this Court, in explicit and clear cut terms, rejected the requirement of legal knowledge, as a necessary incident to the establishment of a deliberate and conscious violation, of a constitutional right.
Kenny: The Court of Criminal Appeal:
157. The background circumstances of Kenny were very similar to those in Byrne v. Grey in that the information on oath laid before the Peace Commissioner to ground an application for a search warrant under s. 26(1) of the Misuse of Drugs Act 1977, as amended, was in identical form as was the resulting warrant which issued in October, 1984. Likewise, no further evidence was tendered on the application. Having been convicted in substantial part on the evidence resulting from the search, the Court of Criminal Appeal, in a judgment given in June, 1989, ruled that in accordance with Byrne v. Grey (judgment delivered in October, 1987), the warrant was invalid. However, with commendable foresight and no little expectancy, it said “that did not conclude the matter” (p. 117). Being entirely satisfied that the investigating officer who had sworn the information, acted at all times in good faith and that he had every reason to so believe, the Court invited further submissions on the question of whether or not, such circumstances could be described as constituting a “deliberate and conscious violation”, for the purposes of the exclusionary rule.
158. The second judgment of the Court (McCarthy, O’Hanlon and Lardner J.J.), was delivered by O’Hanlon J. on 30th November, 1989. O’Brien, Madden, O’Loughlin and Raymond Walsh, amongst other cases, were discussed. From these decisions it was clear, according to the Court:-
“…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)
159. The authorities last mentioned were each described as involving legal principles which were clearly established and equally so were clearly breached, with the prosecution failing to tender any satisfactory explanation as to why such had occurred. The decisions were therefore correct on their facts. The Court however continued:-
In the Court’s view the facts of Kenny could be regarded as an example of this type of situation.
“Different considerations may arise where the law has been generally interpreted and applied in a particular way, without challenge, over a substantial period of time and then, by reason of judicial interpretation, what was formerly regarded as being in accordance with law is found to have been based on an incorrect interpretation of the law and, accordingly, tainted with illegality.” (p. 120)
160. Having also considered the position in the United States, in particular by reference to The United States v. Leon  468 U.S. 897, which it was said “provided a close parallel” (p. 123) to the case at hand and which also in many ways “echoes what was said already by Kingsmill Moore J., in The People (Attorney General) v. O’Brien” (p. 125), the Court by way of conclusion was satisfied, that since the investigating officer took all steps believed to be necessary and appropriate, for obtaining a valid search warrant, and having such a warrant issued by a Peace Commissioner, ostensibly in the proper exercise of his functions under the Act, such matters were of themselves a “clear indication” that there was no deliberate and conscious violation of the constitutional rights of the appellant. The evidence therefore could not be rendered inadmissible on constitutional grounds.
Kenny: The Supreme Court
161. There were in my view two key points up for discussion before this Court in Kenny. One was the meaning of the phrase “deliberate and conscious”: did it relate solely to the actual act or omissions complained of, as suggested by the CCA in Madden and in O’Loughlin, by the Supreme Court in Raymond Walsh and in Healy and by Walsh J. in several other decisions where the issue arose: or, was knowledge, actual or imputed, and intention on the part of the state actor that the violation in challenge, amounted to a breach of the individual constitutional rights, as the majority said in Shaw, essential? The second issue was the underlying justification for the rule: was it addressed to the person who breached the right so that he and others would be deterred from such conduct in the future or did it rest on the state’s obligation to protect fundamental rights? Apart from either option, no other basis to my knowledge has ever been seriously suggested, as a justification for the rule.
162. Finlay C.J. saw little by way of comparison between O’Brien and The United States v. Leon, in which jurisdiction, the justification for the rule, in the context of Fourth Amendment breaches, was unquestionably based on deterrence. In his view, whatever controversy may exist regarding precisely what O’Brien had decided, it did not however at any remove authoratively speak to the basis supporting the rule. That issue fell squarely for consideration in Kenny.
163. At p. 133 of the report the Chief Justice said:-
In the process, and as would follow from this analysis of the issue, the Chief Justice expressly disapproved of the majority view set out in the judgment of Griffith J. in Shaw. Walsh J. and Hederman J. agreed with the judgment as delivered by the Chief Justice.
“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”.”
164. It seems to me that when this reasoning is considered in its entirety, it confirms the primacy of a rights based approach to the rule and does not in any way seek to instill into that justification a secondary value of equivalent significance. By express direction the Chief Justice opted for an approach which could offer “…[the] stronger and most efficient defence and vindication of the right concerned…”, which in his view the courts had a constitutional obligation to sustain. Evidently by so doing, this preference subsumed what he termed a “negative deterrent”, the reference to which however, although important in its own right, was essentially made so as to test how best rights could be preserved: certainly from my reading of the judgment I can see no indication that such interest was intended to rival that of upholding guaranteed rights, as a basis for the rule. The Chief Justice himself so stated when describing the issue which called for resolution, identifying in the process the choice raised “by the arguments in this case between the deterrent and absolute protection principles” (p. 131 of the report). Consequently, I am quite satisfied as to what was both intended and stated. It therefore follows that the essence of the rule is not “conduct” based, but of course conduct is embraced within it. This view of the decision is entirely supported by the conflicting positions which had been adopted in the preceding case law, the most important of which are above referred to.
165. There were two dissenting judgments, one by Griffith J. who in short, having reconsidered what he had previously stated in Shaw, reaffirmed his commitment to that decision. The second was by Lynch J. who felt that relevant evidence would not always have to be ruled out. He said:-
Referring to Healy, the learned judge was satisfied that the gardaí at least realised that they were contravening Mr. Healy’s legal rights if not his constitutional rights. He added:-
“It must be rejected if there is any element of blame or culpability or unfairness (including any such element to be inferred by the reasonable application of the doctrine “ignorantia juris haud excusat”) in relation to the breach of the right on the part of those who obtained the evidence unless there are adequate excusing circumstances.” (p. 142)
“I take the view that the gardaí deliberately do acts which they know or ought to know contravene the accused legal rights, but not his constitutional rights, and if the rights are thereafter held to be constitutional rights, the exclusionary rule should apply, but there must be some element of blame or culpability or unfairness to bring the exclusionary rule into operation. If there is no such element of blame or culpability or unfairness in relation to the breach of the constitutional right on the part of those who obtained the evidence, then the evidence should be admitted and no question of excusing circumstances arise.” (p. 142)
166. At para. 136 supra, I indicated the manner in which I proposed to chase how the law on this topic had developed from O’Brien to Kenny and to do so through key ingredients of the exclusionary rule. Having conducted this case survey, my conclusion from such an exercise, up to and including Kenny, which subject to this appeal represents current day law, is as follows:-
2. “Extraordinary Excusing Circumstances”:
1. “Deliberate and Conscious”:
(i) relates solely to the actual act or actions in question: knowledge by the violator as to its legal or constitutional consequences is not necessary: (Raymond Walsh: Healy and Kenny),
(ii) motive, of a kind well intended, laudable or admirable, is not material (Madden: O’Loughlin),
4. “Basis of the Rule” – Vindication of Rights:
3. “Unintentional”: “Inadvertent”: “Mistake”: “Oversight”:
(i) where an infringement of constitutional rights has been established the onus is on the DPP to prove the existence of such circumstances: these might include:
(ii) where victims are in peril, where the destruction of evidence is imminent and where evidence is obtained secondary to a lawful arrest even in the absence of a search warrant, (O’Brien):
(ii) these examples are illustrative and not exhaustive (O’Brien: Shaw:): but rather surprisingly the reach of this excusing provision has not been further developed,
(iv) the rationale for such provision is entirely consistent with the rule as properly understood and it has regard for the manner in which the State’s obligations to protect fundamental rights, is phrased in Article 40.3 of the Constitution.
5. “Executive/Judicial Branch of Government”:
(i) which demand a consideration by An Garda Síochána, of the constitutional rights of the citizen, which may be affected by the exercise of their powers, including those of arrest, detention, search and interrogation: (Healy);
(ii) which also demand a consideration by the courts of their prime duty to enforce respect for fundamental rights and where breached to provide the most effective and appropriate remedy available: (Madden: O’Loughlin: Raymond Walsh and Kenny), and finally:
(iii) such basis will inevitably capture any infringement carried out in the knowledge of its legal or constitutional consequences.
7. “Effect of the Rule”:
6. “Hard/Confessional Evidence”:
(i) the principles as outlined apply to all state actors imposed with the constitutional duty of having regard to or of protecting, vindicating and respecting such rights.
(i) where applicable and in the absence of excusing circumstances the subject evidence is absolutely inadmissible with no residual discretion existing in that regard.
Description of Rule:
167. Before leaving the existing law it will have been observed that on occasions throughout this judgment I have variously referred to the rule as being the “exclusionary rule” or the “absolute exclusionary rule” or indeed by some other comparable expression. What is important to note however is that such are appropriate only as descriptive terms, because in substance they do not accurately identify precisely what the rule entails. In my view, it is not an absolute or even a “near” absolute exclusionary rule. This must be so, given the numerous circumstances in which the rule will have no application, some of which have been set out at paras. 126 and 130 supra. Further, it has always been necessary to establish a connection between breach and the obtained evidence and in addition, the protection offered applies only to an accused person who himself had been the subject matter of the infringement.
Accordingly, to understand, or judge or apply the rule by these terms only, without qualification, is seriously prone to mislead.
168. As part of my consideration of the substantive question, namely whether the demise of Kenny can be justified by reference to the principles set out in Ryan’s Car Hire and in Mogul, it is necessary to review the jurisprudence of other jurisdictions to which the Court has been referred, and having done so to indicate what influence, if any, such has on this major issue.
169. As part of its tour of nations the DPP has travelled to a number of countries, including the United States. It is highly instructive to note the rapid and profound retrenchment which the exclusionary rule has surgically undergone in the past 30 years, in that country. From a rich federal position in 1914 (Weeks v. United States 232 U.S. 383 (1914)) which was reinforced by its application to all States in 1961 via the Fourteenth Amendment (Mapp v. Ohio 367 U.S. 643 (1961)), the current position which in substance had its start point only as recently as 1984 (United States v. Leon 468 U.S. 897 (1984)) is such that the protection against unreasonable search and seizure, based purely on the Fourth Amendment, is thought by many, certainly if the apparent trend of recent court decisions continue, to be in real danger of having no effect or utility. Whilst of course this is a matter for that jurisdiction, nonetheless for me such a tendency is distinctly alarming and immensely disconcerting.
170. The real purpose however of referring to this changed and changing situation, and the importance of understanding the rule’s transformation through this journey, is that the net result as presently stands is urged upon us as being appropriate in this country. With respect, I deeply disagree and would greatly denounce any comparable disposition developing here. Unfortunately however, although possibly not intended, such cannot lightly be discounted given the majority view in this case.
171. Even though the justification for the rule in the United States, repeated so authoritatively and so frequently is exclusively deterrent based, which manifestly is intrinsically different from that existing in this country, and despite how such stated objective critically drives the focus and direction of its case law, nonetheless that differentiation, as significant as it is, offers little comfort to those who support Kenny, that the next 30 years will not see in this country a corresponding drift or tendency so developing.
172. As appears from judicial decisions, the general issue presently under discussion has for the most part been considered by the US courts in the context principally of the Fourth, but also of the Fifth and Fourteenth, Amendments to the US Constitution. These read as follows:-
One may also include that aspect of the Sixth Amendment giving a person a right to an attorney.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.
No person shall be held to answer for a capital or otherwise infamous crime,…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of live, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.
All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
173. In 1886 (Boyd v. United States 116 U.S. 616 (1886)) the Supreme Court held that the Fourth and Fifth Amendments “run almost into each other”, as it was put (p. 630), regarding the prohibition on unreasonable search or seizure, preserves at constitutional level the “sanctity of a man’s house and the privacies of life” (p. 630). The physical entry, even if gained by unauthorised force, was not the essence of the conduct sought to be condemned: rather, what lay at the heart of the right was that no state employee should, by such means, invade the “indefeasible right of personal security, personal liberty, and private property” of any man (p. 630). Moreover, the ultimate task of defending the citizen from such actions rested with the courts which should ever be so vigilant to that end (But now see Andersen v. Maryland 427 U.S. 463 (1976) re Fifth Amendment).
174. Justice Day in Weeks v. United States, when delivering the opinion of the Court and having cited with much approval from Boyd v. United States, stated that if letters and other private documents which the Federal Marshall of the United States had obtained from Mr. Weeks house, without a search warrant, could be tendered as evidence in his subsequent criminal trial:-
Essentially, in association with Mapp v. Ohio, the absolute exclusionary rule thus established, effectively remained the legal position in the United States for the next seventy years or thereabouts.
“the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavour and suffering which have resulted in their embodiment in the fundamental law of the land” (p. 393).
175. A number of states, almost two thirds in fact, which declined to apply the judgment in Weeks v. United States, a federal case, were very much encouraged in that regard by Wolf v. Colorado 338 U.S. 25 (1949) which it was said, was an authority that evidence, even if unconstitutionally seized, could be used in a subsequent trial of a householder from whose dwelling it was obtained. Mapp v. Ohio ended that particular argument by imposing the exclusionary rule, via the due process clause of the Fourteenth Amendment on all states. It also reiterated what the Court had said earlier, namely that “to deter…in the only effectively available way… (was)…by removing the incentive to disregard” (p. 656). The opinion of Justice Clark, concurred in by five other members, concluded by stating:-
Consequently, once a breach was established “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a State court” (para. 655). “To hold otherwise”, the court added would be to “grant the right but, in reality, to withhold its privilege and enjoyment” (p. 656). Therefore, at both federal and state level, the exclusionary rule had full application. That situation however was seriously subverted by the decision in United States v. Leon.
“Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and to the courts, that judicial integrity so necessary in the true administration of justice.” (p. 660)
176. An essential aspect of the Fourth Amendment is that a search warrant can issue only on “probable cause”, being established. The point raised in United States v. Leon (1984) was whether or not the exclusionary rule should be revised so as to allow in evidence that was obtained by the police, acting in reasonable reliance on a search warrant issued by a neutral judge, but ultimately not supported by probable cause. This, for brevity though certainly not accuracy, has become known as the “good faith” exception.
177. The Court decided that the rule could be so modified without jeopardising its ability to perform its intended function. Therefore, it should not be applied to “objectively reasonable law enforcement activity” (p. 919). In the instant case no deterrent effect could possibly influence police officers who genuinely believed that their actions were constitutionally compliant. This conclusion was justified almost entirely via a consideration of the exclusive basis upon which the rule is founded, namely to deter official misconduct by removing inducements to commit constitutional violations. Time and time again throughout the majority opinion delivered by White J., the same question is posed and the same challenge is asserted: will the extension, restriction, or application of the rule in its current form, deter police misconduct? will suppression further the remedial objectives of the rule? Answer: if the exclusionary rule does not “result in appreciable deterrence…then clearly its use…is unwarranted” (p. 909). Consequently, it is beyond debate but that this rationale is the key driver of the Supreme Court’s approach to this principle.
178. To appreciate a bit more fully my ultimate view that the US jurisprudence on this issue is of strictly limited value in our jurisdiction, it is important to realise in some detail the repositioning effect, which has been inflicted upon the rule, through the process of change which has taken place between the decisions in Mapp v. Ohio and United States v. Leon and which has further continued in Hudson v. Michigan 547 U.S. 586 (2006), Herring v. United States 555 U.S. 135 (2009) and Davis v. United States 180 L. Ed. 2d 285 (2011), all of which are next mentioned. Firstly however, some general points of note from the case law:-
(i) The harmful conduct which is condemned by the Fourth Amendment is, when in issue, a matter for consideration separate and distinct from the application of the exclusionary rule (Illinois v. Gates 462 U.S. 213 (1983)).
(ii) The Amendment itself contains no prohibition on the admissibility of evidence in criminal trials, even when obtained in violation of its terms: the use of such evidence does not create a new or further Fourth Amendment wrong (Arizona v. Evans 514 U.S. 1 (1995): United States v. Calandra 414 U.S. 338 (1974)).
(iii) The wrong identified in the Amendment is fully consumated once the unlawful search and seizure has ended: at that point the protection as given, is wholly exhausted. As a result it is said that the exclusionary rule is not intended to and does not cure the violation of a person’s rights, thereunder (Stone v. Powell 428 U.S. 464 (1976)).
(iv) This rule is “but” a judicially created remedy, designed to protect Fourth Amendment rights generally, and does so at a deterrent level: it is not a constitutional right of he who is violated (United States v. Calandra), and
(v) The sole and exclusive purpose of the rule is to deter future Fourth Amendment violations (United States v. Leon: Herring v. United States & Davis v. United States).
Hudson v. Michigan (2006):
179. Even though the case of Hudson v. Michigan related to the “knock and announce” aspect of the Fourth Amendment (so declared in Wilson v. Arkansas 514 U.S. 927 (1995)), and not to other facets which might also render a search and seizure unreasonable, nonetheless the opinion of Justice Scalia, joined in by four others, is informative as a further reminder of the Court’s continuing curtailment, of the exclusionary rule. In Mr. Hudson’s case the police officers had in their possession a valid search warrant but before its due and timely execution that Fourth Amendment violation had taken place, and admittedly so when the “knock and announcement” requirement was not adhered to. The issue was whether at the trial of the accused, the resulting evidence as discovered in the house, attracted the exclusionary rule and if so, whether by its application the evidence should be suppressed.
180. Much of what I have previously outlined regarding the general principles has been reiterated in the majority judgment: such as, that deterrence is essential but not determinative and in any event its real value is directly related to the strength of the incentive to misbehave. Viewed in that light “deterrence of knock-and-announce violations is not worth a lot” (p. 596). The social cost consideration of the rule featured prominently as did causality, both remote and direct, which it was said was imperative but never in itself sufficient. Therefore, even if the evidence would never have come to light “but for” the acts complained of, that situation would not necessarily, without more suppress the evidence. Further, even where the evidence by any yardstick was directly connected to the infringement there should still be no exclusion if the particular value guaranteed by the right would not be thereby secured. In other words, if the application of the rule would not vindicate such right, it should not apply.
181. New York v. Harris 495 U.S. 14, 110 Supreme Court 1640 109 L. Ed. 2d 13 (1990) is a good example of this point. Police arrested Mr. Harris in his home without a warrant in violation of his Fourth Amendment rights. Subsquently, he made several incriminating statements including one at the police station. Whilst acknowledging that this statement was the product of the arrest, nonetheless it was admissible, because to suppress it would not serve the purpose of the rule which was to protect the home and evidence found therein: not evidence obtained elsewhere. On occasions this line of approach is also expressed as a form of “attenuation”.
182. Having closely examined the “knock and announce” requirement of the Fourth Amendment, it was clear accordingly to the opinion of Scalia J. in Hudson v. Michigan, that of its three purposes (the protection of: life and limb; property; and some elements of privacy and dignity), none related to prohibiting state employees from collecting evidence “described in the warrant”, and from thereafter using such evidence in a criminal trial. He held that since the seizure of one’s papers from one’s dwelling house was a value not covered by that particular aspect of the Fourth Amendment, unlike for example a warrantless search, it could not be said that any duly protected interest had been thereby violated, and thus the exclusionary rule was simply inapplicable (p. 594).
Herring v. United States :
183. Mr. Herring was arrested on the basis of a belief by the arresting officer that there was in respect of the accused an extant warrant at the relevant time. Through a negligent act of a fellow colleague, the police officer in question had been given this information but the warrant relied upon had in fact been cancelled a number of months earlier. This should have been noted in the Sheriff’s office: it was not: instead the record still showed the existence of a live warrant.
184. On arrest, the accused was found to have illegally in his possession drugs and a handgun. When subsequently charged with related offences, he moved to have the evidence suppressed. Each state court at every level denied the motion on the basis that the officer, as to belief, had acted in good faith, and in so doing was entirely innocent of any wrongdoing or carelessness. The failure to update the system was negligent but such failure did not result from reckless deliberation or systematic collapse. As ruling the evidence inadmissible in such circumstances would only have marginal or even non-existent deterring effects, the same should not be excluded.
185. The Supreme Court so agreed; whilst accepting the establishment of a Fourth Amendment violation, nonetheless the evidence should be admissible.
186. The Court by way of majority opinion (Roberts C.J., joined by Scalia, Kennedy, Thomas and Alito JJ.) endorsed United States v. Leon and Hudson v. Michigan: emphasising the high level of focus on the efficacy of deterrence and even where existing, on the requirement that the benefits thereof be such, as must outweigh the cost of exclusion. Preferring the phrase, acting “in objective reasonable reliance” (p. 8) to acting in “good faith”, the Chief Justice pointed out that to trigger the exclusionary rule:-
As the error in the instant case did not rise to that level, the Court’s conclusion was as stated.
(1) the intent of the violater and the culpability of his misconduct and that of fellow officers if involved, are highly significant factors,
(2) the “…police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, 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”, and
(3) it must be shown “‘that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the … search was unconstitutional under the Fourth Amendment’.” (Illinois v. Krull 480 U.S. 340 at para. 348).
187. Finally, the analysis which underlies the issue of deterrence and culpability is one objectively based. Repeating United States v. Leon, the Chief Justice said:-
“We have already held that ‘our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances’.” (p. 10)
Davis v. United States (2011):
188. This is the latest decision from the United States’ Supreme Court, delivered by Alito J. and agreed with by five other justices, to which we have been referred. The Court in this case held that the rule did not apply where the search in question, of a motor vehicle as it happened, was conducted in “objectively reasonable reliance” on binding appellate precedent, even where such precedent was subsequently overturned. Suppression in such circumstances would have no deterrent effect: accordingly, that conclusion - “doom[ed] Davis’s claim” - (p. 296 of judgment).
189. In the court’s judgment the issue of police misconduct was further commented upon. It was said that:
Thus, it appears that even where such conduct is flagrant or egregious the evidence may still be admitted even however, if the odds are somewhat against it.
“When the police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. …But when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful, …or when their conduct involves only simple, ‘isolated’ negligence...the ‘deterrence rationale loses much of its force,’ and exclusion cannot ‘pay its way’.” (p. 295)
Summary of Position:
190. As appears from this overview, the Court, in evaluating any given case so as to determine whether the unconstitutionally obtained evidence should be suppressed, contrasts, as part of its assessment tools, what it calls the “substantial social cost” exacted by the rule, with the deterrent benefit which such exclusion might offer. By such a comparative process the following limitations, restrictions and exclusions (“restrictions”) have now been created:-
(I) By case type:
(II) By association in crime: standing, use, dissipation and independent source/inevitable discovery:
• Federal habeas corpus proceedings: where a person who is convicted with the help of illegally obtained evidence, which he challenged at trial level, cannot re-argue the exclusionary rule in subsequent habeas corpus proceedings (Stone v. Powell).
• Grand Jury proceedings: where a witness cannot refuse to answer questions arising out of evidence obtained by reason of an unreasonable search or seizure (United States v. Calandra).
• Parole Revocation proceedings: Pennsylvania Board of Probation and Parole v. Scott 524 U.S. 357 (1998); Deportation proceedings: INS v. Lopez-Mendoza 468 U.S. 1032 (1984); and, Civil Tax proceedings: United States v. Janis 428 U.S. 433 (1976),in which the rule is stood down.
• Federal Civil proceedings: where evidence obtained in breach of the Fourth Amendment is not solely, by reason thereof, inadmissible: United States v. Janis.
(III) By actor identity:
(IV) By good faith belief:
• Where unconstitutionally obtained evidence derived from co-conspirators or co-defendants will not be suppressed in the trial of a fellow accused, whose own rights have not been directly violated; Alderman v. United States 394 U.S. 165 (1968).
• Where the rule cannot be asserted save by a victim of the offending misconduct; Rakas v. Ilinois 439 U.S. 128 (1978).
• Where evidence, inadmissible in chief, may nonetheless be used to impeach the direct testimony of, or statements made by, an accused person, in response to cross examination reasonably suggested by such testimony or statement; United States v. Havens 446 U.S. 620 (1980).
• Where the connection between the police misconduct and the resulting evidence has become sufficiently dissipated or attenuated; United States v. Ceccolini 435 U.S. 268 (1978), “But for” causality is a necessary condition but of itself is not sufficient.
• Where the subject evidence has been obtained independently of the breach; Silverthorne Lumber Co. v. United States 251 U.S. 385 (1920) (“Silverthorne”), and/or would inevitably have been discovered in any event; Nix v. Williams 467 U.S. 431 (1984), Murray v. United States 487 U.S. 533 (1988), p. 542 and Davis v. United States.
(V) By following binding precedent:
• Where state employees acted in good faith, and were objectively reasonable in conducting the search or in affecting the arrest, on foot of a warrant subsequently invalidated or; if different in meaning or effect where they have so acted “in objectively reasonable reliance” on such warrant; Arizona v. Evans 514 U.S. 1 (1995): United States v. Leon; Herring v. United States.
• The flagrancy of official conduct will be particularly influential under this and the following heading: rising from mere negligence or an isolated act of the same type, to gross, deliberate or systematic behaviour.
(VI) By reach/objective:
• Where a search is conducted in reasonable reliance, objectively based, on binding appellate precedent even where subsequently such precedent is overturned; Davis v. United States.
• Where the protected constitutional interest would not be served by exclusion; New York v. Harris; Hudson v. Michigan.
191. As emerges from court precedent and as may be evident from the discussion, all of these restrictions on the remit and scope of the rule, are based on and stem from, an evaluation of the “costs and benefits” of its application (p. 8 of Hudson v. Michigan – Scalia J.). The Court has “repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives, presents a high obstacle for those urging [its] application” (Pennsylvania Board of Probation & Parole v. Scott 524 U.S. 1998, paras. 364 – 365 cited by Scalia J. in Hudson v. Michigan at p. 591). Those costs have had consequences in the Court’s view, of “setting the guilty free and the dangerous at large”, as amounting “in many cases to a get-out-of–jail-free card” (pp. 591 and 595, respectively, of Hudson v. Michigan) and as releasing “countless guilty criminals” (Bivens v. Six Unknown Federal Narcotic Agents 403 U.S. 388 (1971), p. 416). The benefits must always outweigh the costs: otherwise the rule is stood down. Based on such views the rule is now definitively said to be the court’s “last resort, not our first impulse” (p. 591 Hudson v. Michigan).
192. Before outlining my conclusion on the value of this exercise, one should make some, even if brief and therefore inadequate reference to the various minority views expressed by those justices who could not support the ultimate disposition in any of these type of cases. In all such cases, from United States v. Leon to Davis v. United States, there were strong dissenting opinions expressed. It would not however, be productive for this judgment to recite from each opinion, or indeed even from each case: rather I will take by example, Hudson v. Michigan which gives a flavour of commonality across all such views.
193. In Hudson v. Michigan, the minority opinion was given by Justice Breyer, with whom Justice Stevens, Justice Souter and Justice Ginsburg joined. In his view, the majority opinion was deeply troubling in that it was without authorative precedent and furthermore, it weakened, “perhaps destroy[ed]” (p. 605) much of the value of the “knock-and-announce” aspect of the Fourth Amendment.
194. In the first instance, it had long been decided that the “knock and announce” requirement was a factor in considering whether the resulting search and seizure was unreasonable. It was therefore an integral element of the essence of the Amendment itself: thus if other violations could attract the exclusionary rule, it was difficult to understand any logic for its entire dis-application in the circumstances of Hudson.
195. Having discounted any value in the alternative remedies suggested which might underpin the Fourth Amendment and having outlined the exceptions already created to the rule by multiple Court decision, the learned judge felt that in light of the majority opinion the “knock-and-announce” aspect of the Fourth Amendment had been rendered worthless and virtually to every extent futile, in its future use. He was of the opinion that if evidence could not be excluded, then police officers had nothing to fear and much to gain by taking the most expedient course available to them at any given time. This, quite evidently, could lead to a widespread pattern of abuse.
196. Accepting and thus proceeding on the basis that the justification for the rule was deterrent based (but see Brennan J. in United States v. Leon), Breyer J. nonetheless disagreed with the majority and was satisfied that the ongoing application of the rule in the presenting circumstances, would have a deterrent benefit such as would outweigh any “substantial social costs” involved (p. 614). This phrase in any event was not quite understood by him: it could only refer to the costs which were inherent in every case where the rule applied. Those were that the guilty might go free, that unmeritorious appeals might be mounted and that in some circumstances, the Court might find it difficult to adjudicate on such claims. These factors were not truly of significance when the value of the constitutional right was properly assessed.
197. There were two further points made by the minority which should be noted. Firstly, as the majority said, it may well be true that the evidence in question could have been obtained in any event by the lawful execution of the search warrant which the police officers had, at the time. However, in the particular circumstances their entry into the house was not lawful, and thus the manner of such entry could not be divorced from what occurred inside. The unlawful behaviour of the police in this regard inescapably characterises their actual entry, which obviously had to take place before they could search for and seize any evidence within the dwelling house. That of necessity must have created the “but for” causative link, which in Justice Breyer’s view, having been so directly established would of itself merit the application of the rule. To separate “the manner” of entry from “the actual” entry, sliced the violation too finely.
198. The second point is his understanding of the inevitable discovery rule. The reference by Holmes J. in Silverthorne to “an independent source” exception (para. 392) was in his view, the foundation for this rule. The rule is not centred on what hypothetically would have occurred if the actions of the police had been lawful. That is not the critical point:-
In summary, the exception built upon from Silverthorne is justified by the principle that the purposes of the exclusionary rule would not be “served by suppressing evidence discovered through a ‘later, lawful seizure’ that is ‘genuinely independent of an earlier tainted one’ (Murray v. United States 487 U.S. 533, 542 (1988) (emphasis added).” It should not otherwise be understood.
“Rather, ‘independent’ or ‘inevitable’ discovery refers to discovery that did occur or that would have occurred (1) despite (not simply in the absence of) the unlawful behavior and (2) independently of that unlawful behaviour. The government cannot, for example, avoid suppression of evidence seized without a warrant (or pursuant to a defective warrant) simply by showing that it could have obtained a valid warrant had it sought one. …Instead it must show that the same evidence ‘inevitably would have been discovered by lawful means.’ Nix v. Williams 467 U.S., at 444 (emphasis added),‘What a man could do is not at all the same as what he would do.’ (Austin, Ifs and Cans. 42 Proceedings of the British Academy 109, 111-112 (1956).” (p. 13)).” (p. 13)
Influence on Irish Law:
199. It is abundantly obvious, even from this limited consideration of US jurisprudence, that since United States v. Leon, the rule in its fundamental living characteristics is unrecognisable from the species in which for the most part, it thrived for decades before that. Its major retrenchment and presently comatose state has resulted solely from court decision. Many shackles of legal ingenuity have been adroitly conceived for this purpose. Such include the creation of an entirely new landscape in which the only striking image is deterrence: even then a new script as to meaning has been crafted. Apart from the most appalling of police behaviour, where even then exclusion may not follow (Davis v. United States paras. 188 and 189 supra), it is exceedingly difficult for those justices of the court who dissent, to see much if any life left in the rule: or more accurately and even more disturbing as they put it, in the Fourth Amendment itself.
200. Let me immediately add that trespassing on US law or on its law making, is not intended. I would not dare to be so intrusive. What I have simply done is to read the case law and from afar have attended at a current preview performance of the Fourth Amendment and exclusionary rule in the State of Washington D.C.. This is what I have seen: as great as the show may be, it is not for me and I suspect not for a great number of others whose bedfellow is the 1937 Constitution of Ireland.
201. In the US an ever more restrictive view has developed as to when suppression will be a justifiable cost, to support the deterrent base. Many different methods have been deployed to achieve and now to further this end. In practical terms the outcome has resulted in the limitations, restrictions and exclusions above identified (para. 190 supra). Some have suggested that costs have grown to exaggerated heights (Brennan J. – United States v. Leon): others have said that the “causality link” has been distorted to accommodate such end means, as has the concept of “attenuation”, the meaning of which, according to Breyer J. in Hudson v. Michigan, has been grossly exploited to the same end. All of this, rather obviously, is a matter for that jurisdiction but insofar as the result is impressed upon this Court as being appropriate for this country, I would with deep respect markedly distance myself from such course.
202. This perspective is entirely justified for purely jurisprudential reasons, given the fact that deterrence, as the guiding justification, was by deliberation of judgment, rejected in Kenny. What Kenny did was to anchor the indispensible importance of the rule on the constitutional imperative imposed on all state employees within whose remit it falls, to substantiate fundamental personal rights, and to do so in respect of all citizens and at all times. In particular, it held that in the ultimate instance the court stands as the vanguard of such rights. Such focus is not the pre-requisite of the corresponding rule in the US. Therefore, to borrow but “recast” to an Irish setting, that what was said by Brennan J. (dissenting) in United States v. Leon, “the principles embodied in the exclusionary rule rest upon a far firmer constitutional foundation than the shifting sands of the Court's deterrence rationale” (p. 930). Accordingly, I cannot see how, with worthwhile benefit, this Court should absorb into its case law, jurisprudence which has been established on fundamentally different principles to those which Kenny applied. I therefore do not believe that much if any real assistance can be obtained in this case from the United States position.
New Zealand: Bill of Rights Act 1990:
203. Prior to the Bill of Rights Act (“the 1990 Act”), the approach of the Court of Appeal was to steer a middle ground between the common law position, as understood in that jurisdiction, and the absolute exclusionary rule in the form laid down in Weeks v. United States. That common law position as applied was in general that if evidence was relevant, it was normally admissible with the manner of “how” it was obtained, not seen as critical. The court always however had a discretion to exclude it: in the case of confessional evidence that would follow if the fairness of the trial would be impaired or if it had been obtained in unfair circumstances. In the case of hard evidence the discretion was more focused on the conduct of those who obtained the evidence. This involved the balancing of competing public interests, namely the prosecution of criminal behaviour on the one hand, as against protecting individuals from unlawful and unfair treatment on the other. An alternative way of describing the basis for this latter approach was to say that such evidence would be rejected where its admission would be calculated to bring the administration of justice into disrepute (R. v. Shaheed, paras. 37 and 64). Post 1990 there emerged a presumption of evidential exclusion if a right under the Act was breached but such could be displaced by the DPP establishing “good cause”. On at least two occasions R. v. Goodwin  2 N.Z.L.R. 153 (“Goodwin”) and R. v. Te Kira  N.Z.L.R. 257 (“Te Kira”), the court refused to travel where it would ultimately would go in R v. Shaheed. It did however in a number of cases emphasise that this prima facie rule was not one of automatic exclusion.
204. Throughout the 1990s, against the backdrop of evidence obtained in violation of a right protected by the Bill of Rights, being “automatically” excluded even where good cause was established, some debate, even disquiet, occasionally arose as to whether permissible restrictions could be imposed on the exercise of such rights, which in that form would not give rise to a breach finding or if it did, one that could be excused. Section 5 of the Act was the main source of inspiration in this regard as thereunder the rights so conferred were subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. This lead to some modification of the rule, the effect of which was that no reactive measures were necessary in circumstances where the right(s) had been waived, where the investigating officers were in physical danger or in situations of urgency such as that created by the risk of evidence destruction, or where the breach could be described as trivial.
205. Not all judgments of the court however were unanimous in their view on different aspects of the 1990 Act, as case specific decisions will show. This divergence of opinion existed at the level of principle in response to which for example Richardson J., in Goodwin, suggested three possible approaches which might underpin the future operation of the Act. The first was deterrence centred, as reflected in US jurisprudence. The second was rights centred, as illustrated by the Irish Supreme Court, with the third involving a balancing of the overall interests of justice, giving neither deterrence nor rights any particular primacy. The debate continued, without any decisive determination being reached or agreed upon.
206. Eventually the majority of the court in R. v. Shaheed (judgment by Blanchard J.), after reviewing the relevant case law and having looked at other jurisdictions, including Ireland, stood down the prima facie rule and in its place suggested an approach dominated by a judicial balancing test, involving multiple factors. Its main reason for this dramatic change was that the prima facie rule, in what was thought of as its mechanical application, did:-
“…not have the appearance of adequately addressing the interests 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 justice will not command the respect of the community if each and every substantial breach of an 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” (Blanchard J., para. 143).
207. Before however the court ever gets to this discretionary test, there will be a number of circumstances, where what is alleged to constitute a breach is not of itself sufficient so as to engage with the test: these will include a breach described as “trivial”: a situation of evidential discovery insufficiently connected, for whatever reason with the breach: an inevitable finding of such evidence by other legitimate means and where the accused person has waived his rights.
208. Where the test is engaged however, its exercise will commence by requiring as a starting point that appropriate and significant weight be given to the fact of the breach and will then proceed to determine whether exclusion is a proportionate response in the circumstances and whether such is demanded by the requirement for an effective and credible system of justice. At the level of specifics the most important, but not exclusive factors for consideration, will be as follows:-
(i) The value which the right protects and the seriousness of its intrusion;
(ii) Whether the breach has been committed deliberately or in reckless disregard of the rights, or in circumstances of gross carelessness;
(iii) Whilst bad faith in the commission of the violation will be highly relevant, good faith will of itself normally be merely a neutral factor;
(iv) Whether other investigatory techniques, not involving a breach of rights, were known by and available to the police, but not used by them;
(v) The nature and quality of the disputed evidence;
(vi) The centrality of that evidence as part of the prosecution’s presentation, and
(vii) The availability of alternative remedies, such as e.g., damages.
209. The Court emphasised that these matters should not be isolated and should be regarded as a group of composite measures. It would be to misunderstand what the majority had in mind to do otherwise (para. 145 of the judgment). Finally, it was noted that:
“all of the jurisdictions (as surveyed by the court) naturally require a sufficient causative link between the breach of a right and the discovery of the evidence in question. All also sensibly adopt the position that the evidence is admissible if it would have been discovered without any breach”.
210. In 2006 the New Zealand legislature codified by way of statutory provision the pertinent rules for the future application of the exclusionary principle. It did so in s. 30 of the New Zealand Evidence Act. That section reads:-
(2) The Judge must –
Influence on Irish Law:
211. As can be seen, the situation in New Zealand is currently represented by statutory legalisation which admittedly drew heavily, but not entirely, from the court’s decision in R. v. Shaheed. Both relate back to the rights conferred by the 1990 Bill of Rights Act. That Act, like the 2006 Act was an ordinary statute and not entrenched. It confers no power on the court to strike down inconsistent legislation or to refuse to apply “any provision of any enactment” (s. 4) by reason of its inconsistency with the Bill of Rights. Evidently therefore it did not have a constitutional status as that term is understood in this jurisdiction.
212. In addition, the decision in R. v. Shaheed and the Act which followed in setting out the factors for consideration when applying the required test, closely parallel in a number of important respects what Kingsmill Moore J. had said, in O’Brien when dealing with illegally, but not unconstitutionally obtained, evidence. To have such a comparable set of values in this jurisdiction, would in my view fail to properly recognise the elevated status which rights enjoy, at the highest level of our legal norm. Further, one must be quite careful in trying to interpret any foreign legislation given the fact that the cannons of construction in such country, may be quite different in terms of policy, direction, motivation and scope, than those which are normally applied in this jurisdiction. Moreover, it was said by Blanchard J., in R. v. Shaheed, that the reformulation of the rule “…should not lead in most cases to results different from those envisaged in earlier judgments…” on the same issue. That may or may not have turned out to be the case. I simply do not know. Finally, the decision has attracted some academic criticism (Optican and Sankoff, “The New Exclusionary Rule: A Preliminary Assessment of R v. Shaheed”  NZ Law Rev. 1,).
213. Overall therefore, I view the situation described in New Zealand as resting on a basis different to that pertaining in this country. That being so, I am not satisfied that such has any persuasive influence in helping to resolve the domestic issue, in accordance with domestic principles, as to whether Kenny should be upheld or overruled.
214. The Canadian Charter of Rights and Freedoms 1982 (“the Charter”) introduced a rule in Canada for the first time on the exclusion of illegally or improperly obtained evidence. Section 24(2) of the Charter provides that:
The Supreme Court of Canada has given judgment in several cases relating to this section of the Charter which has developed the established understanding of the section.
“Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
215. This provision firstly arose for consideration before the Canadian Supreme Court in R v. Collins  1 S.C.R. 265 (“Collins”). In this case a balloon of heroin was found on Ms. Collins person when she was searched: subsequently she was arrested for and charged with possession of narcotics. Ms. Collins claimed that the search and arrest were in violation of her section 8 Charter rights, because both had been conducted without a warrant and without reasonable grounds. Section 8 of the Charter provides that “Everyone has the right to be secure against unreasonable search or seizure”.
216. At trial, the judge found that there was a breach of Ms Collins’ Charter rights but held nonetheless that, having regard to the circumstances, the evidence should be admitted. This decision was upheld by the Court of Appeal but was overturned by the Supreme Court.
217. The Supreme Court identified a number of factors, in a non-exhaustive list, which should be considered when balancing “all of the circumstances” as required by section 24(2). These factors included: what kind of evidence was obtained; which Charter right was infringed; was the violation serious or merely of a technical nature; was it deliberate, wilful or flagrant, or inadvertent, or committed, in good faith; did it occur in circumstances of urgency or necessity; were other investigatory techniques available; would the evidence have been obtained in any event; how serious was the offence; was the evidence essential to substantiate the charge, and finally, whether other remedies were available (pp. 283-284).
218. The Court further stated that these factors could be arranged in such a way so as to form a three part approach to the operation of s. 24(2) of the Charter: this involved, in the first part, factors that go to determining the effect on the fairness of the trial, in admitting the evidence; in the second part, factors that go to establishing the seriousness of the violation; and in the third part, factors that go to determining the effects on the administration of justice, of again admitting the evidence.
219. A distinction was also drawn by the Court between real evidence and self-incriminating evidence. The admission of real evidence obtained in breach of Charter rights, would rarely in its view operate unfairly, for that reason alone. This was so because such evidence existed irrespective of the Charter breach. In the case of self-incriminating evidence however, where such was obtained in breach of the Charter rights of the accused, its admission would render any subsequent trial unfair. Such evidence would not exist irrespective of the breach: therefore in general, it should be excluded.
220. In determining the “fairness” aspect of the test, not only would the nature of the evidence be important but so also would be, the right involved. In analysing such right, consideration should be had to how it was violated, whether deliberately or not etc. In assessing the impact on the administration of justice, the Court said that the test was not whether the exclusion of the evidence “would” bring the administration of justice into disrepute but rather whether it “could” have that effect.
221. In the ten years after Collins some criticism was made of that decision as being somewhat confusing and being unnecessarily complicated. The court when reserving judgment in R v. Stillman  1 S.C.R. 607 (“Stillman”) announced that its decision would provide further clarity in the application of s. 24(2) of the Charter. In the case at hand the accused was charged with the rape and murder of a teenager. He was 17 years old at the time. Whilst in police custody bodily samples were taken from him and a tissue he had used and discarded was also collected. This took place despite the fact that the accused did not consent to providing such samples and that his lawyers had communicated this to the police beforehand.
222. The samples were found by the trial judge to have been obtained in breach of Mr. Stillman’s section 8 rights, but nonetheless, were admitted in evidence. The collection of the discarded tissue however, was not obtained in violation of that or any right and thus this evidence was also admitted. The accused was thereafter convicted by a jury of first degree murder. The Court of Appeal upheld the conviction but the Supreme Court found that the samples should have been excluded, whilst upholding the admissibility of the discarded tissue.
223. In their judgment, the majority of the court was particularly critical of the fact that the evidence in question, namely DNA evidence obtained from the samples, was not of a nature where there was any danger that it could be destroyed or lost. Samples could have been taken in accordance with the accused’s charter rights. The importance of the difference between “conscriptive” and “non-conscriptive” evidence was emphasised. It was held that where the evidence was conscriptive and was obtained in breach of the Charter, this would affect the fairness of the trial. “Conscriptive evidence” was explained as evidence which was obtained as a result of the accused being compelled to incriminate herself or himself in breach of his or her Charter rights. The Court held that there was a hierarchy of importance to the factors outlined in Collins and that as a result where the admission of evidence had an effect on the fairness of the trial, it would not be necessary to consider any other factor.
224. With regard to non-conscriptive evidence, which the Court explained as evidence which was created or obtained without compelling the accused to self- incriminate, a balancing exercise would have to be employed so as to determine whether its admission would affect the fairness of the trial.
225. In the case of Mr Stillman, the samples had been obtained by compelling the accused to provide them and thus to self-incriminate himself. This evidence was conscriptive. Therefore, these samples were inadmissible. The discarded tissue however, had been obtained without the accused having been compelled to incriminate himself. This evidence was non-conscriptive. Thus, it was admissible.
226. In the period which followed, both Collins and more recently Stillman were the subject of continuing criticism for various reasons including the failure of the court to provide clarity in this area, in providing a quasi-automatic exclusionary rule and in distinguishing within a hierarchy of rights.
227. As a result once again, the Supreme Court in R v. Grant  2 S.C.R. 353 (“Grant”) further considered section 24(2) and in so doing elaborated upon its developing understanding of the section. This case related to the arrest of Mr Grant after he had been noted acting suspiciously by police. When approached, Mr Grant told them that he had a small amount of weed on him and a firearm. He was arrested and subsequently charged. The trial judge held that the accused was not unlawfully detained when he made the incriminating statement and that the evidence was therefore admissible. The Court of Appeal reversed the finding of fact but, adhering to the Supreme Court’s interpretation of the section in Collins and Stillman, held that the evidence was correctly admitted as such admission did not affect the fairness of the trial.
228. The Supreme Court when giving judgment on the appeal, freely acknowledged that its decisions in Collins and Stillman had been the subject of justifiable criticism. It was stated that the law as found in those cases was difficult to apply and might lead to unsatisfactory results. A new framework was thus developed.
229. The Court set out a three stage test for the application of section 24(2) of the Charter. It stated that in assessing and balancing the affect of admitting evidence on society’s confidence in the justice system regard should be had to:
The Court then continued:
“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 the evidence and its importance 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. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.” (p. 258)
230. In applying the three stage test to the circumstances of Mr Grant’s case the court found that although the evidence was obtained in breach of his Charter rights, the evidence should not be excluded because it did not bring the administration of justice into disrepute.
Conclusion on Comparative Analysis:
231. The position in the three jurisdictions above discussed is certainly of interest to me in general terms. All are informative, instructive and are of real value so as to understand the manner in which other common law systems have grappled with similar complex legal issues, which arise in this case. However, as explained, the placement of the rule in both the United States and New Zealand has little in common with the constitutional and legal context of the Kenny principles. Likewise, with the Canadian situation. The principle and important reason for the latter, is section 24(2) of the Charter. In the Canadian Supreme Court’s consideration of the exclusion of illegally or improperly obtained evidence, the debate centres entirely, and naturally of course, on the interpretation of this important Charter section, which has no equivalent in Irish constitutional law. More specifically the evaluation concentrates heavily on the two last lines of that section:
The terms of this provision, and the resulting parameters within which that Court’s analysis has taken place, which is now in its third major revision since 1987, differs greatly from the context in which this matter has arisen in Ireland. Accordingly, in the final analysis, I have not been able to identify a rationale, from this study as distinct from a trend, which sufficiently impresses me as an authority which I should follow.
“…the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
The Major Question:
Is there a Condemnatory Justification for Kenny’s Demise?:
232. No matter how anxious one might be to have a certain viewpoint prevail, this Court in the several decisions cited at paras. 85 - 95 supra, has laid down determining principles by which a previous decision of its own, can only be set aside. Unless therefore, some objective justifiable basis can be authoritatively advanced, to conclusively demonstrate that Kenny was patently wrong, this Court should not engage with a jurisdiction which only in the most exceptional of circumstances, in any event it is minded to draw upon. Therefore, the question is whether the evidence in this case, supported by the submissions, is sufficiently persuasive or is of such a compelling nature, that Kenny should be overruled.
233. During the appeal debate much has been spoken of about O’Brien and rightly so, given that the judgments delivered constitute significant material which, at different levels of interest, is relevant to this important issue. However, in some respects I feel that O’Brien has been overly concentrated on, without appropriate regard being had to the case law which emerged thereafter and to how the principles as outlined, evolved over time. In addition, I do not doubt the value of examining O’Brien in order to test the correctness of Kenny, but it must not be forgotten that what this Court is being invited to do, is to stand down, not O’Brien, but Kenny. This is the essential purpose of the appeal. Therefore it is of the first importance, not only to focus on what in fact was decided in Kenny, which I have endeavoured to set out elsewhere, but also on what arguments were advanced and considered, what options were available and what policy considerations lay behind the court’s ultimate decision. Moreover of course as with any justiciable issue which arises in our adversarial system, it is necessary to determine its outcome principally, if not exclusively by reference to what the pleadings have defined and to the evidence and submissions advanced on either side, by the parties concerned.
234. It is for me of the utmost concern and of striking significance that the DPP has failed to identify, in any concrete context the problems which she suggests, at the highest level of generality, exists with Kenny. The exclusionary rule as therein announced is said by her “to frustrate prosecutions” and that it “regularly does (so) in practice”. Apart from this entirely unsupported assertion, nothing else is offered by way of empirical evidence. I do not accept for a moment that if such existed she would not have found a way to bring it to this Court’s attention, even if purely at submission level. Her office is by far the lead prosecutor in this country, and by its nature quite obviously, has a clear association with other agencies who in a variety of ways also prosecute criminal activity. It is therefore quite remarkable and utterly perplexing that she has not tabulated, in seriatim form, countless examples of people, “evidentially guilty”, but who by reason of the rule have escaped prosecution or have had charges withdrawn or abandoned or who by jury verdict or judge direction, have been discharged and set free.
235. In its absence therefore, how can this Court assess the incapacity of the administration of justice to get to the truth which for some, seems to be the holy-grail of the entire criminal justice system? I do not accept that this “truth seeking model”, with unbridled freedom is necessary for the orderly running of society. What is “the heavy price” which the majority suggests the Irish people have had to pay for Kenny, a phrase clearly associated with and presumably intended to replicate, the “substantial social cost” aspect, of the rule in U.S. jurisprudence. Where is the data? Where is the statistical proof that the exclusionary rule is having the effect as alleged? The DPP certainly has not enlightened us to any extent in this regard. She will therefore be grateful for the assistance which is offered by the majority view on this point.
236. Thereof, O’Donnell J., in his admirable judgment, but one which evidently I cannot agree with, outlines at para. 5, what he describes as “real examples”, so as to illustrate “inter alia the re-occurrence of the legal issue”. These are as follows:-
(1.) The situation in O’Brien:
(2.) The second example is Byrne v. Grey:
• Whilst I appreciate that what I am about to say has attracted little support, nonetheless it is for me, a matter of the most lavish indulgence that the garda involved did not even trouble themselves to read the issued warrant before execution, or if they did how conceivably they could have failed to pick up the error?
• Most search warrants are created from a widely used template which requires only the most minimal of human input, so as to complete their form and content. What would be required would include but not extend much further than, the relevant date, the address of the subject premises and the identity of the executing addressee. Of these the house address must be accorded at least the same if not more significance than the other items as mentioned.
• Where within the law, if O’Brien had stood still and in isolation, would there be found, any encouragement to respect property or personal rights, when the correctness of the address itself, has no constitutional implications? Even more so given the courts view that illegally obtained evidence should in general be admitted. Situations, like O’Brien, arise only in a very narrow context, namely where one’s dwelling, for constitutional purposes is involved: no other structure of any kind or type is included.
• Why therefore does not the law insist, at constitutional level, that search warrants and their execution be duly and legally compliant? The answer, which sustains the present situation is in my view, quiet unconvincing.
• However, and notwithstanding what is just said, O’Brien, in my view quite evidently offers no support to the DPP’s argument in this case: if anything it undermines her position: Outcome: O’Briens’ convicted.
• The narrow and immediate answer is to be found in the court’s refusal to grant an order of certiorari leaving it to the trial judge to decide on the admissibility issue: therefore outcome unknown.
• Secondly, the precise same view had been determined in our neighbouring jurisdiction a number of years previously.
• Further, the case preceded Kenny and in any event the court’s decision one must presume, put an immediate stop to the practice of the issuing authority, acting in effect as “an adjunct law enforcement officer”, instead of applying, as the only safeguard which the citizen has against random or arbitrary search and seizure, an independent mind making an objective and impartial decision, driven solely by legal principle.
(4.) Expiry of Warrant: Incorrectly dated and Incorrect Form used for District Court area:
• The circumstances of Damache, though presenting in a different context can very much be rationalised along the same basis as Byrne v. Grey.
• If the only, or even principal reason for the exclusionary rule related to gardaí conduct, there may be some substance in criticising these decisions: but as we know it is not: therefore the outcome in both cases is fully justified by the vindication of personal rights.
(5.) “Evidence” on Oath or “Information” on Oath:
• The following three situations, as described, give instances of where a warrant is executed outside the seven day limit period, where the date of issue is incorrectly inserted as being the 26th May instead of 26th June and where the gardaí used a warrant for “The Dublin Metropolitan District” when in fact the house address was in a different court area.
• These examples in my view offer compelling evidence as to the justification of the exclusionary rule if constitutional rights are to be judicially recognised as having any added value by reason of their express guarantee at the highest level of our legal order.
• No officer of the police force whom the judicial arm entrusts with the power of entry, forcibly if necessary, and of seizure, which it is intended will lead to self incrimination, should ever be the executing authority of such a warrant if he does not know and has not cared to find out what counts for a day in the context of this power: such has been set in law for decades if not longer.
• If the second example is to be seriously considered it seems to suggest that once any perfunctory step has been taken to obtain a warrant, the details thereof at the level of which I speak, are almost meaningless.
• Finally, the attitude of complete indifference in the last instance as stated, is a matter of even greater concern given its occurrence at the preparation stage of a court application and its undetectable continuation thereafter through and even beyond the final stage of the judicial process.
237. With the deepest of respect these illustrations fall significantly short of exposing the rule to the kind of just criticism which is sustainable in the constitutional context of its setting. They were prosecutions in all cases, with outcomes either favourable to the DPP or unknown. In any event, it would surely require much more cogent evidence of lost prosecutions before any worthwhile assessment could be undertaken as to the effect which the rule might be having on crime prevention.
238. It seems to me that this Court is being invited to act on pure surmise and conjecture to this end. Where is the evidence that the DPP has declined to exercise her power to prosecute, because of probable outcome based on evidential exclusion, or where is the evidence that prosecutions taken, have been lost for the same reason. In particular, what effect has the rule had, on serious crime against person, property or rights, for surely society is more concerned that those who perpetrate such criminality should face the justice system rather than pitching the debate across the whole spectrum of crime. Even if examples could be given of particular charges being lost, it would still be necessary to know, before one can consider what the rule might be costing the prosecuting side of justice, whether the same accused was charged or convicted of other offences and if so, what type of differential outcome can be directly attributable to the rule. In my view, it is only where such evidence is available that one could objectively suggest that society might possibly be paying an unjustifiable price for its operation.
239. It has been said in response to the lack of evidence, criticism, that it is difficult if not impossible to count, let alone value, the cost which the implementation of the rule has had, on the investigation and prosecution of crime: as it is they say to measure the cost to the enforcement of personal rights, if the rule was to be abdicated. Whilst the latter would indeed pose considerable difficulties, I do not accept that the former is in any way that complex, given the centrality of the DPP’s role, in advising the investigative agencies of the State, in evaluating and assessing evidence submitted to her, in formulating and prosecuting charges and evidently in being at the front line of outcome and the reasons therefor. Quite obviously her office is highly privileged in the knowledge which she is exposed to and which can be accumulated by reason of such involvement. Consequently, it is all the more surprising that on an application such as this, which if granted would effect a substantial change in deep rooted and historical law, the DPP has not sought to fill the obvious evidential gap which continues to exist. In my view, this void fatally impairs the ability of this Court to measure the cost or benefit of modifying Kenny.
Kenny: Rightly or Wrongly Decided?
240. The central issues decided upon in Kenny did not of course simply arise for the first time in that case. Those issues had been developing for many years in a variety of circumstances where the resulting court decisions were not always consistent or compatible, one with another. Much debate was had also at academic level about what was meant by the “absolute exclusionary rule”, and whether or not this or that particular view, should prevail. Judicial divergence continued to emerge through various judgments given, in different cases.
241. By Shaw however, if not earlier, it was certainly evident that this Court did not speak with one voice on some key aspects of the rule: in particular on the issue, which then moved centre stage and became hotly debated, as to what a “deliberate and conscious violation”, should entail. I cannot recall much, if any controversy on any other element of the rule, such as the meaning of “extraordinary excusing circumstances”, or what was meant by words such as “unintentional”, “inadvertent”, “mistaken”, or “trivial” or indeed even on the very foundation for the rule’s existence. I certainly know of no case in which the vindication of rights basis, as suggested by Walsh J., was questioned. The debate did not really seem so concerned about these matters: rather its central focus appeared to be whether the violator could only be said to have deliberately and consciously breached the constitutional rights of another, if he knew that the act relied upon had such legal consequences. Raymond Walsh espoused one view and Shaw another view. It would be quite wrong to suggest that on this constitutional point, the views of Walsh J. in the former case were not those of the court (para. 142 supra), as the same were expressly agreed upon by the other members. Healy a few months short of Kenny unequivocally endorsed Raymond Walsh. So it was not altogether surprising that however reluctant a court is, to have to decisively resolve an issue upon which different views have been expressed, such was the challenge facing Kenny.
242. Looking at the issue from the narrow perspective of the review jurisdiction involved, it is very difficult to see any obvious omission in the court’s consideration of the issues in Kenny. All relevant case law was looked at: the conflicting views which had arisen since O’Brien were cited with the court outlining its understanding of those views and of what they entailed: the jurisprudence in the US was opened: no apparent point of some telling significance was overlooked and no obsolete influence was accounted for. The court explained the rival contentions advanced in the submissions and analysed the foreseeable consequences of both.
243. In particular, it was concerned about the inadequacy of the resulting constitutional protection if in fact knowledge was a necessary ingredient for a constitutional violation. In the same breath it was also equally concerned about the impact which an absolute rule could have, on the detection and prosecution of crime. It recognised that the public had a vital interest in both (para. 163 supra). It cannot therefore be said that the court was not conscious of there being in place an effective criminal system: on the contrary it very much appreciated the consequences of its decision in that area. It was however a consequence which was both appropriate and proportionate to the value which the rule sought to underpin.
244. Though not distinctly discussed, the court must have considered how each of these interests could be accommodated, if possible, without disturbing the core integrity of either. As with all of its debate, it would have done so within the framework of the Constitution: in particular, having regard to the enforcement of rights, but not only, from that perspective. It was at all stages also acutely conscious of the truth seeking model in which the importance of “how” evidence was obtained would not feature, absent the most egregious circumstances, as being of itself a pure inadmissibility tool. Mention was made of the “marked disadvantage” which an exclusionary rule would impose on the capacity of the courts to “most effectively administer justice”. Clearly however, it did not come down and favour some form of regime where both interests could be reasonably accommodated. Given the discussion conducted by Finlay C.J. and the reasoning which led to his decision, it would in my view involve a misreading of his judgment, or at least a very narrow construction of it, to suggest that all available options were not considered and in particular, to conclude that the public interest in the detection and prosecution of crime, had not been appropriately assessed. So, having deliberated in depth on what approach the court might take, the majority concluded as it did and thus the law, as in Kenny, was pronounced.
245. It has been suggested that the central weakness in Kenny is its failure either to have given sufficient consideration to, or if it did, to have appropriately reflected in its decision, the public interest in all aspects of crime. I do not accept that this is correct: it is clear I think from what is previously stated that this matter was given deep consideration. I do acknowledge that the court identified problems with the solution it was about to declare, but that in my view can be regarded as a strength in the judgment and not as a weakness. Even with such difficulties it was still of opinion that in light of the constitutional imperative imposed upon the courts to vindicate rights, the adoption of the exclusionary rule was justified. I recognise of course that a different view might now be taken as to how the interests indentified, could be represented in a more accommodating model. That however was rejected in Kenny, a decision which the court in my view, was entitled to make.
246. Another argument advanced is that the rule in practice is effectively automatically applied and that it is unbending when engaged. The latter is correct: as with any rule once the prescribed circumstances for its application can be established, it applies. If this criticism is driven by the absence of any discretion in the court, it is utterly answered by the heightened status which constitutional rights enjoy over legal rights, and similarly so with the added protection accorded to them. The former criticism is either simply wrong or at least fails to fully reflect what the true position is. There are several circumstances which might be thought of, as attracting the rule but which do not, and equally so there are circumstances where the violation can be overlooked, from a constitutional perspective. These are set out elsewhere in this judgment, in particular at paras. 126 and 166 supra and consequently, their repeated assertion is not necessary. This argument therefore, like the description of the rule as being “absolute” or “near absolute”, cannot be accepted.
247. Whether one favours or dislikes the result in Kenny, it cannot be doubted but that all issues and matters of relevance were considered, that such issues were fully debated, that means of engaging with both interests were looked at and that reasons were given for the court’s ultimate conclusion. Moreover, by openly acknowledging that disadvantages or anomalies might result from the approach taken, the court must be credited with having been ever so mindful of the consequences which might flow from its decision.
248. The manner in which this issue was resolved in Kenny followed from the court’s view as to the justification for the rule. If that view should have reflected purely a deterrence approach, as in the United States, then adopting the principles in Shaw would have been entirely consistent with this. And certainly that was an option seriously in play, being one advocated by the DPP, and outlined in the judgment. The alternative choice, which incidentally did not involve an outright rejection of the deterrent view, was that such an approach was not in itself sufficient if the justification for the rule was the pre-imminent respect for constitutional rights. If the latter was the preferred choice, then quite logically Shaw could not prevail or at least not prevail in the absolute sense, of how the majority view, was always understood. Accordingly, a judgment value call was made in the context of these competing interests, being one heavily influenced by policy consideration.
249. Intrinsic to the Shaw judgment was a finding that, in the absence of the violator having knowledge, not simply at a legal level but also at a constitutional level, that the act which he had done breached one’s constitutional rights, then the rule did not apply. No debate was had within that decision about this question of “knowledge”, or of “intention” which sometimes is synonymously used with or for it. Read therefore literally, it would mean that for the DPP to successful dis-apply the rule, a trial court would simply have to be satisfied, that the officer in question was not aware of the legal jurisprudence dealing with for example, that aspect of Article 40.3 which guaranteed the right to liberty save in accordance with law, or that which guaranteed reasonable access to an attorney or which prevented entry into one’s dwelling house, without lawful authority. Whatever criticism may be made of the absolute rule, at least it had the merit of being thought through by the court, whereas it is difficult to see how with the contrary position, any constitutional right could retain credibility, at least without Shaw being substantially and extensively recast, on the knowledge question.
250. In any event, the court in Kenny was perfectly alive to the choice which it was about to make and in fact, as above stated, pointed to the “anomalous consequences”, which the adoption of the rule might have. Again, as pointed out I have no doubt but that if the intended purpose of the rule, could have been served with some modified formulae, the court would have more distinctly considered and debated it. However, evidently such a course was not seen as sufficiently protective: therefore it was rejected as the preferred outcome to reflect what the court truly sought to achieve. Consequently, despite it being unsatisfactory in some respects, such was the price which the court saw fit to pay for supporting the most critical rights, which a sovereign and democratic society gives to its citizen by way of its Constitution.
251. So why is that decision wrong, plainly wrong, and what are the compelling reasons advanced by the DPP, which would justify the application of the “overruling jurisdiction” above referred to? When one looks at the principles in Ryan’s Car Hire and Mogul, it is very difficult to see how it is, if one is to apply those principles in a detached and objective manner.
252. I remain unwavering in my stance that the primacy of rights basis, as offered for the rule in Kenny, is correct: as I do in respect of the rule itself, for if guaranteed fundamental rights, as specified in the Constitution are to be really meaningful in practical life, then that approach is justified. To apply the exclusion only, where the garda officer in question was fully au fait with the text of Kelly on the Constitution would be close to nonsensical. Even if some sort of presumption could be applied to officers above a certain rank, the vast majority of searches and arrests are carried out by those below that rank. The solution of imputing knowledge of the law to all such officers, as mentioned by O’Hanlon J. in the CCA’s decision in Kenny, was rejected by this court, on appeal. It clearly did not consider that an approach, even at that extent, was a sufficient underpinning of the fundamental ”rights” value, as demanded by the Constitution.
253. These rights were intended to have meaning, to have a living presence within and for the people: their value is at the highest level available: they cannot be let yield as the public has a major constitutional interest in seeing their full and effective enjoyment. How therefore can the courts permit the executive to prosper from the commission by it, of constitutional infringements? By entertaining the reception of evidence obtained thereby, they are in effect giving credence to such practices: for they cannot with integrity, disassociate themselves from the preceding activities of the gardaí in obtaining evidence, or from the DPP in deciding to prosecute on foot of it. What message does that deliver: what respect for the administration of justice does that command? Even if on occasion, in isolated cases, evidence, reliable and probative, is lost, the same is society’s price for the rule; which in any event is infinitely less harmful than the process of its destruction, which I fear has commenced.
254. Some vague suggestion has been made that new factors have emerged which would call for a review of Kenny: I can seen none: nor can I identify a shift in underlying considerations of such persuasive influence that would justify allowing this appeal. Whilst of interest, the international review conducted above does not demand a trend change in this jurisdiction. There have been no consequences which were unforeseen, at least so far as the evidence stands before this Court. At best it can be said that there exists an alternative view, which I both recognise and appreciate. Mogul makes clear that such is not sufficient. For the court to intervene purely on that basis would give rise to multiple and repeat applications, moved at the most opportunistic time, whenever it might be thought that a particular composition of the court might swing this way or that way. Great manipulative uncertainty would result, and much, much more.
255. There is another important reason why this Court should not intervene. As previously articulated, the arguments in Kenny were such as to suggest, that with a constitutional violation, an equivalence of approach to that which was applied in O’Brien to illegality, should be adopted. For reasons, which included strong compelling policy considerations, the court declined to do so. Where a decision is so influenced by such considerations, it is in my view incumbent on any review to have full regard to such matters and to depart therefrom only when the principles in Ryan’s Car Hire, Mogul and other such cases, clearly and unequivocally so demand. That has not been shown to exist in this case.
256. It is worthwhile once again in emphasising that the criminal justice system including the jurisdiction of each court which is engaged with the process, has demonstrated on several occasions a capacity to respond in a measured way to what might be considered as “landmark decisions”. The sky did not fall in on crime detection, prosecution or conviction following Kenny, or Damache or several other cases where on immediate reaction that might have been thought of, as the inevitable consequence. It has not happened and if by historical review one can at any level predict the future, it will not happen. Kenny has provided certainty, continuity and a level of predictability which has served the system well with very few exceptions. I believe if should so continue.
257. In addition to rejecting the DPP’s invitation to overrule Kenny by reference to the review jurisdiction, I am of the view that in principle the decision as of now, has legal justification and can be constitutionally supported. I have read with note the Final Report of the Balance in the Criminal Law Review Group, published on 15th March, 2007, whose task it was to review, analyse and offer a corrected version of the rule, if it thought fit. The majority in fact did so but the Chairman, Dr. Gerard Hogan S.C., now Mr. Justice Hogan of the Court of Appeal, issued a dissenting opinion. Its citation, at least in part, is justified:-
I respectfully agree with the views as outlined.
“Our society has committed itself to abiding by the rule of law and to respect and vindicate the fundamental freedoms enshrined in the Constitution. It behoves us to take these rights and freedoms seriously and if the occasional exclusion of otherwise relevant evidence is the price of respecting these constitutional rights, then that is a price society should be prepared to pay in the interests of upholding the values solemnly enshrined in our highest law, even if one unfortunate consequence is that a particular victim may feel that “their” case has not been fairly dealt with. The development of the exclusionary rule was the logical corollary of a series of inter-locking constitutional provisions. Article 34.5 of the Constitution requires that each judge, upon appointment, will make a formal declaration in open court that he or she “will uphold the Constitution.” Article 38.1 guarantees that the trial of any criminal offence will be “in due course of law.” Article 40.3.1 provides that the State will by its laws “as far as practicable….defend and vindicate the personal rights of the citizens.” How could a judge, who has made a solemn declaration to uphold the Constitution, receive and act upon evidence which he or she is aware has been obtained in breach of the very Constitution which he or she is committed to upholding? How, moreover, could it be said that such a trial was in “due course of law”, when, ex hypothesi, evidence has been obtained in breach of these constitutional guarantees? Likewise, if Article 40.3.1 requires the State to respect and, as far as practicable, to defend and vindicate these constitutional rights, how can it be said not to be “practicable” to disregard such evidence if this is in truth necessary to defend and vindicate these fundamental rights?” (p. 287-289)
258. Almost as an aside the DPP suggests that there are “many other means” of vindicating the constitutional right at issue in this case and of ensuring that search warrants are correctly completed, offering as the most obvious example a civil action in trespass. As far back as Youman v. Commonwealth 189 K.Y. 152, Carroll C.J. had the answer to this point, stating:
“…it is trifling with the importance of the question to say, as some courts have said, that the injured party has his cause of action against the officer, and this should be sufficient and satisfaction. Perhaps, so far as the rights of the individual are concerned, this might answer, but it does not meet the demands of the law abiding public, who are more interested in the preservation of fundamental principles than they are in the punishment of some petty offender…”
259. I believe that such sentiments are every bit as appropriate today as when spoken. It would be cold comfort to assure a victim of a constitutional violation, whose rights are no less than those of other persons, that he will have ample opportunity to institute such proceedings, whilst incarcerated, on evidence obtained by the State which in the first instance, should not have permitted the infringement to take place. Moreover, if such a remedy became the norm, evidence could in effect be purchased with the state no doubt, in defending the resulting civil action, informing the accused that in any event, was he not found guilty!
260. Other means have been suggested and in some jurisdictions applied, mostly leading to unsatisfactory results and being ended by either formal decision, or informal disuse. Amongst those mentioned have been disciplinary proceedings against members of the police force or charges preferred against them under the criminal law. If such disrespect has been shown to constitutional rights, as would warrant either course, it is very difficult to see how a court could do otherwise than disassociate the administration of justice from the resulting evidence. Conduct falling short of that would most likely attract very modest sums which would scorn fundamental principles, rather than anchor them. In the process therefore, I fundamentally reject this wholly inadequate suggestion for the upholding of fundamental rights.
The Majority View:
261. Given my opinion on the various issues as above stated, it is probably more preferable if I said little, if anything, about the new suggestion. There are many reasons for this, including a very strong belief that in no time, several issues will again come before the courts regarding its meaning but more significantly, its application. However, could I be permitted to mention, in particular, the following:-
(1) It is suggested that when a deliberate and conscious violation of constitutional rights is alleged, as that term is to be understood in its entirely redefined context, the court must embark upon an analysis of the “conduct or state of mind”, not only of the operative garda or gardaí who were involved in obtaining such evidence but also of – “…any other senior official or officials within the investigating or enforcement authority concerned who was involved either in that decision or decisions of that type generally, or in putting in place policies concerning evidence gathering of the type concerned”. (emphasis added)
(2) I confess to having very considerable difficulty indeed in seeing how in practice this assessment is going to take place or how it can be conducted in any meaningful way, so that both the significance of the constitutional right will be respected as well as the structural integrity of the trial being preserved.
(3) At a general level it is not at all beyond the bounds of reason that the voir dire could take a considerable amount of time and involve a good deal of penetrating inquiry, involving not only members of the garda station in question, but also others, in connected or related stations, either within or external to the district involved.
(4) This task might be manageable if it was limited to the circumstances of an individual case: but it may not be. What is to be done when the challenged act or omission stems from or is rooted in long established policy, perhaps altered or modified several times since?
(5) And what does “state of mind” mean? Where does “knowledge” of whatever type or description, fit in?
(6) Perhaps I am over pessimistic: I certainly hope so.
262. Perhaps I am over pessimistic in my concerns: but I fear not.
263. Finally, could I say that in operating the new test, it can only be done in my view on a case by case basis with little room for the establishment of principles at a general level; this for many concerned in the criminal justice system will be regretted and will make the discharge of their respective responsibilities all the more difficult.
264. As stated, for the above reasons, the appeal must be dismissed.