THE SUPREME COURT
[Appeal No. 398/2012]
DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice John MacMenamin delivered the 15th day of April, 2015
1. I agree with the judgments delivered by O’Donnell J. and Clarke J., on the second and main issue, but I would wish to add some brief observations of my own.
2. Two questions fall for determination in this appeal. The first relates to the jurisdiction of this Court to entertain an appeal pursuant to s.23 of the Criminal Procedure Act, 2010. This enactment provided for what is termed “with prejudice” appeals. The second, and main issue, for determination, assuming the Court has such jurisdiction, is as to the legal status of what is termed the “exclusionary rule”, as reformulated by this Court in DPP v. Kenny  2 I.R. 110. This arises in circumstances which are later described in this judgment. It is necessary first to consider the statute under which this appeal is brought.
Section 23 Criminal Procedure Act, 2010
4. Sub-section 11 of s.23 provides:
3 Section 23 of the Criminal Procedure Act, 2010 provides, insofar as relevant (the key elements are emphasised):
How is the Section to Operate?
5. Counsel for the Director submits that the matter falls within s.23(3)(a) of the Act. It is said a ruling was made which erroneously excluded “compelling evidence”. Clearly, parts of the section reflect thinking to be found in earlier sections of the 2010 Act, which seek to address a range of circumstances where, it is said, a retrial may be ordered. But these are in circumstances quite different from those which arise here (see sections 8 to 10 of the 2010 Act). The approach adopted in s.23 shows the problems inherent in a process of applying one legislative formula of words to a range of very divergent circumstances. In this appeal, perhaps fortuitously from the Director’s standpoint, there is no dispute in relation to the factual application of s.23(14) of the Act, in the circumstances accepted as pertaining here. On this basis, the Court has jurisdiction to entertain the appeal. By reference to s.23(14), therefore, it is accepted that the evidence, if admitted, would be “reliable”, of “significant probative value”, and would be such, that, when taken together with all the other evidence, might “reasonably” satisfy a jury “beyond a reasonable doubt” of J.C.’s guilt in respect of the offences. How the provisions would be applied in a case where these questions are in dispute is another matter. It is, presumably, intended to be a question for this Court to satisfy itself of these requirements. Each is fundamental to establishing jurisdiction. But it is not clear how such “compelling evidence” would be adduced, or assessed, before this Court; or how that necessary proof would be satisfied. The Act does not make clear whether there is to be any procedure for testing, or disputing, any of the three statutory requirements. The standard of proof for such determinations is unspecified, although, there is reference, in the third aspect, to the requirement of “reasonable doubt”. A consideration of the provisions of the section might suggest that, in order to vest itself with jurisdiction, this Court might have to place itself in the position of a trier of fact, so as to satisfy itself of these proofs. Apparently, the statutory compliance with such requirements is not intended to be a matter for a trial court. How is it intended that this Court should engage in these activities and upon what evidential material? This is a Court of Final Appeal, not a court of first instance. Trial courts are well equipped for the determination of such matters. How this Court would approach the issues, were they in dispute, is not clear. As the Act now stands, I do not believe these questions allow for ready, or easy, answers. I address now s.34 of the Criminal Procedures Act, 1967, as amended, for comparison purposes.
“(11) On hearing an appeal under this section the Supreme Court may -
(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 or the decision of the Court of Criminal Appeal, as the case may be.
(12) In determining whether to make an order under subsection (11)(a), the Supreme Court shall have regard to -
(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 a 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.
(14) In this section “compelling evidence”, in relation to a person, means evidence which -
(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.” (emphasis added)
A Contrast with Section 34 of the Criminal Procedure Act, 1967, as amended
6. By virtue of s.34 of the Criminal Procedure Act, 1967, as inserted by s.21 of the Criminal Justice Act, 2006, the law provides:
7. Sub-section 5 provides that:
“Where a person tried on indictment is acquitted … the Director of Public Prosecutions may, 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.” (emphasis added)
The Purpose of Section 23
8. In the light of this comparison, it is necessary then to further seek to construe section 23 of the 2010 Act. What precisely is its scope? A “question of law” arising during a trial may already be referred under the 1967 Act. The Oireachtas does not legislate in vain. Consequently, it must be taken as a given that s.23 has an intendment either different from, or broader than, that to be found in s.34 of the Criminal Procedure Act, 1967, as inserted by s.21 of the Criminal Justice Act, 2006. Is the intention to confer a review power in circumstances such as the present? I believe it must be. It seems to me then that, all other things being equal, and to avoid being an entirely superfluous provision, sections 23(1) and (3) of the 2010 Act require a broad interpretation. The legislative intendment, expressed in the section, must be assumed to encompass an “error” on a “point of law” arising during the trial. Thus, the 2010 Act must be taken as going at least as far as the predecessor Act. It is said here compelling evidence was excluded “erroneously” (s.23(3)(a)). In the present instance, it is contended that the “error” is as to whether the exclusionary rule, as enunciated in the Director of Public Prosecutions v. Kenny  2 I.R. 110 was correctly applied by the trial judge. If an inferior court applies a binding authority, which is then successfully challenged, can it be said the inferior court, albeit acting in good faith, “erred”? Adopting a broad and purposive interpretation, I believe it can. If it is found that a binding judgment was itself arrived at in error, then it appears to me that it can legitimately be said that the inferior court’s judgment, which hinged on the application of that authority, was also “erroneous”, as the legal principle relied on by that inferior court no longer forms part of the corpus of the law. I accept that this requires a broad interpretation of the word “erroneous” in the sense of “mistaken”. It must be accepted also that this interpretation hinges upon a finding that the decision of the inferior court was erroneous, by virtue of its application of the binding precedent now challenged. Thus far, I believe a broad interpretation is constitutionally legitimate, and is consonant with the provisions of the 1967 Act, as amended.
“The Supreme Court shall ensure, in so far as it is reasonably practicable to do so, that the identity of the acquitted person in proceedings under this section is not disclosed in connection with the proceedings unless the person agrees to the use of his or her name in the proceedings.”
9. I accept, too, it might be said that the trial judge applied the exclusionary rule as she was bound to do. Consequently, adopting the more expansive interpretation in order to impart meaning, I conclude that what is intended must, at least, be to allow this Court, if necessary, to review prior judgments of this Court, with a view to considering whether such decisions require review or reconsideration. I do not deny that the section is infelicitously drafted. However, to my mind, the word “erroneously”, as it occurs in s.23(3)(a), may thus be understood in this broader sense. Only in this way does the section have meaning. Read in any other way, it would appear otiose, save for the retrial provisions, to which I now refer, and which, adopting a neutral terminology, may be described as “innovatory”.
10. Seen in isolation, the power of the review, already presaged by the 1967 Act, appears unexceptionable. In that context, therefore, I am prepared to impart an expansive interpretation to the word “erroneous”. A statutory provision must, so far as possible, be given a constitutional interpretation. It is the duty of the Court to seek to impart such an interpretation to the provision in question. If there is doubt, or ambiguity, the section should be interpreted and sought to be applied in a manner consistent with the Constitution. I am not persuaded that the Act demands that there should be a retrial, as the matter is forcefully expressed elsewhere. The position is, I think, governed by s.23(12), where it is provided that the duty of this Court is to consider whether it is likely any retrial can be conducted “fairly”. The term “fairly” clearly has constitutional resonances. The Court is also under a duty to consider “any other matter which it considers relevant to the appeal”. I do not, therefore, read the provision as having a mandatory effect. I would add that the constitutionality of s.23 of the 2010 Act, and the question of any consequential order made thereunder, has not, to my mind, arisen or been fully argued. This would only arise for determination on the delivery of these judgments. In my view, a power to review an error does not, ipso facto, necessitate a power to retry. I therefore confine myself to expressing reservations, but go no further, about the power, said to be contained in s.23(11)(a) and s.23(12) of the 2010 Act, to direct a retrial of an accused person on the same charges in circumstances such as these.
11. The position, so far as the accused man, Mr. C, is concerned, is that, prima facie, he was tried and acquitted, in due course of law. This is not a situation where, for example, the trial outcome was tainted, or subject to fraud. There is no ‘new’ compelling evidence. The question, then, is whether the accused should be exposed to a retrial in the event that it is found that the judge “erred” in the sense described above? In Green v. United States, 355 U.S. 184 , the Supreme Court of the United States pronounced that the constitutional prohibition on double jeopardy was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offence. Black J. observed:
12. I do not preclude from consideration the hypothetical possibility of a new trial being ordered in certain of the circumstances outlined by the 2010 Act. Suffice it to say, however, I remain to be persuaded of the concrete situations where, by invocation of s.23 of the 2010 Act, an order for retrial might constitutionally be made. While not prejudging the issue, there are public interests in finality, in preventing the risk of wrongful conviction, in enforcing the need for efficient investigation, in obviating the risk of power imbalances, and avoiding hardship on an accused person. All these considerations may underlie the double jeopardy rule, as generally understood.
“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty.”
13. When a court is requested to address one fundamentally important constitutional issue, that is, (here), the exclusionary rule, it will be slow to implicitly accept, without sufficient deliberation, a further proposition which is no less important, and which would itself require extensive submissions and consideration. That ‘further proposition’ is the constitutional status of the principle of prohibition of double jeopardy, which precludes an accused being tried twice on the same offence. It is at least, arguable, that the same legal issue could have been considered by the simple invocation of s.34 of the 1967 Act, as amended. As the provisions of the 2010 Act, in their entirety, enjoy a presumption of constitutionality, I make no further comment.
14. As a preliminary to the second main issue, the following observations may be made. The Court is now asked to set aside DPP v. Kenny  2 I.R. 110, a decision of the full Supreme Court, given on a fully argued case. A decision of this Court is not lightly to be overruled, even if this Court might be inclined to have ruled otherwise (Mogul of Ireland v. Tipperary N.R. Co. Co.  I.R. 260). However, error is not to be reinforced by repetition or affirmation.
15. This Court has, in the past, been prepared to overrule earlier decisions which are said to be at variance with fundamental constitutional principles (See generally Re Employment Equality Bill, 1996  2 I.R. 321; the dissenting judgments of Keane and Denham JJ in S.P.U.C. Limited v. Grogan (No. 5)  4 I.R. 343; and the judgment of Keane J. in DPP v. Best  2 I.R. 17. In what is termed a “heavily footnoted dissent” in Burnet v. Coronado Oil & Gas Company, 285 US, 393, pp. 406 to 410 (1932), Justice Brandeis pithily observed (at pp. 406 to 408):
16. He continued (at p 410):
“But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions. The court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function. …”
17. These observations, albeit in dissent, are very much on point when what is in question (as here) is the application of constitutional rights. Time, context and attitudes are always relevant. The question, now, is whether there is available a better formulation of the exclusionary rule based on “better reasoning” or empirical experience? In fact, an example as to the manner in which the exclusionary rule can presently operate, lies before us in a concrete form on the facts of this case. The full circumstances are set out in other judgments.
“The reasons why this court should refuse to follow an earlier constitutional decision which it deems erroneous are particularly strong where the question presented is one of applying, as distinguished from what may accurately be called interpreting the Constitution. In the cases which now come before us there is seldom any dispute as to the interpretation of any provision. The controversy is usually over the application to existing conditions of some well-recognized constitutional limitation.”
18. There are clear arguments in favour of an exclusionary rule. But does such a rule create anomalies? And does experience now show that the balance of the anomalies outweigh the mischief the adoption of the exclusionary rule seeks to prevent? Are there now circumstances where the continuance of the rule is less warranted than at the time of its adoption?
19. Accepting that there is an issue of principle engaged here, it is not entirely irrelevant to that issue to point out that, during garda interviews, the accused apparently admitted involvement in the offence with which he was charged. The accused apparently admitted his involvement in the final three of six interviews. The Court has not been made aware of the circumstances in which these admissions were made. It was not, apparently, suggested during the trial voir dire, that there had been any garda misconduct in the sense of coercion or pressure in the conduct of interviews
20. Two further aspects of the facts are also peripherally relevant. First, it is arguable that the arrest in question would have been lawful had it been carried out in a public place. Second, it is also arguable that the gardai could have relied on s.4(2) of the Criminal Law Act, 1997 which could have permitted them to lawfully enter the house for the purpose of an arrest. It is only the fact that the arrest took place in a private dwelling that brings the facts into a different category. These factors are all, be it said, peripheral to, but not entirely extraneous, to the main issue arising on the facts of this case.
The Trial Judge’s Ruling
21. It is necessary only to briefly describe the circumstances of the case appealed. These are outlined in great detail in the other judgments. I gratefully adopt the description contained in O’Donnell J. and Clarke J.’s judgments. The judge heard legal submissions. She found that the entry into the premises for the purpose of the arrest was unlawful in accordance with the judgment of this Court in Damache. The Chief Superintendent had impermissibly issued the search warrant. The arresting member was, therefore, a trespasser on the premises. It followed immediately from this that the arrest was in breach of constitutional rights of the accused, in that, under Article 40.5 of the Constitution the dwelling of every citizen is inviolable and shall not be forcibly entered, save in accordance with law.
22. Applying the exclusionary rule, as it has been formulated, the trial court held that the fact that the arresting member believed he had lawful authority to enter the premises was not relevant, and held that there were no extraordinary excusing circumstances such as would allow the evidence arising from the arrest to be admitted. Thus, the court ruled all post-arrest evidence should be excluded. On the next day, the court was told, before the jury, that the prosecution, brought on behalf of the people of Ireland, had no evidence to offer on the charges. The judge directed the jury to find the accused not guilty on all six counts. The jury, therefore, had no role to play in the determination of guilt or innocence.
23. The question which arises, squarely, therefore, in this appeal, is whether, as presently applied, the principle of exclusion, as formulated in The People (DPP) v. Kenny  2 I.R. 110 is consistent with the prior judgments of this Court, and further, whether, in the sense outlined earlier, it was erroneous? Kenny, in its present formulation, is designed to promote good garda conduct and deter misconduct. If, hypothetically, an admission of guilt was, on the face of it, given in this case with full consent and without coercion, a number of questions arise. The first is whether the application of the Rule actually has the consequence of ‘promoting good conduct’ and ‘deterring misconduct’. Can it be said these considerations arise? Did the trial judge’s decision actually promote “good conduct” or deter “misconduct”? If they do not arise, how then is the rationale of Kenny to be assessed? The second question lies at the heart of this appeal: accepting the respect properly due to the eminence of the majority who pronounced and concurred in that judgment, can it be said that Kenny was correctly decided? Two of the rationales advanced for an exclusionary rule are first that it is better to let the guilty go free from time to time, rather than the innocent be wrongly convicted, and second that a judiciary lend itself to ignoble means adopted by the State’s agents used to achieve a conviction. Can it now be said that these considerations now provide a sufficient continuing basis for the retention of the rule?
Some Observations on the Process of Review
24. It cannot be denied that, in the past, this Court has, on occasion, engaged in the determination of what are matters of “judicial policy”. The judgment of this Court in Kenny is, in fact, one such decision. Its provenance can be traced back to an observation in The People (AG) v. O’Brien  I.R. 142 at p. 169 where Walsh J. pointed out:
What is noteworthy is that Walsh J. specifically countenanced the possibility of a “change in the existing law of evidence”. Such a process is by no means unique. The second question, no less vital, is whether the choice, now, can truly be said to be between “expediency” and “principle”. A third question, addressed in this and other judgments, is whether the choice is so stark as it is sometimes portrayed?
“If a stage should be reached where this Court was compelled to come to the conclusion that the ordinary law and police disciplinary measures have failed to secure compliance by the police with the law, then it would be preferable that a rule of absolute exclusion should be formulated rather than that every trial judge, when the occasion arises, should also be asked to adjudicate upon the question of whether the public good requires the accused should go free without full trial rather than that the police should be permitted the fruits of the success of their lawless ventures. Apart from the anomalies which might be produced by the many varying ways in which that discretion could be exercised by individual judges, the lamentable state of affairs which would call for such a change in the existing law of evidence would certainly justify absolute exclusion rather than a rule which might appear to lend itself to expediency rather than to principle.” (emphasis added)
25. In the last two decades, this Court has developed elsewhere an important supervisory jurisprudence, as to whether it was just to allow prosecutions to continue in exceptional cases, where the court considered it necessary, in the interests of justice, to stay such proceedings. Such circumstances arose with regard to the garda conduct of investigations, specifically in the areas of lost or missing evidence, or in the category of long delays in the prosecution of sexual offences. The Court has, too, significantly extended the right of a suspect to have access to a solicitor, even during garda interviews. The fact that these steps were sometimes characterised as a “development” or “review” of the law, did not detract from their legitimacy. But what occurred in each instance were, undoubtedly, significant reformulations of the investigatory duties of members of An Garda Siochana; significant recalibrations of the decision making role in bringing prosecutions of “old” cases; and a broadening of the right of access to legal advice to persons in custody. These arose in the context of balancing constitutional rights.
26. Here the Court is asked again to “formulate” better principles upon which evidence is excluded at a criminal trial. We are asked to rebalance the weighting of the constitutional issues at stake in a manner significantly less radical than that embarked on by the adoption of the exclusionary rule. What is at issue is not, to my mind, a collision of “opposites” but rather part of a process of recalibration. As can be seen from Clarke J.’s judgment herein, the reformulation, now proposed, owes much to the considerations which underlay DPP v. Kenny  2 I.R. 110, specifically the protection of the suspect. It does not propose reversion to The People (A.G.) v. O’Brien  I.R. 142. The majority of the Court does not here seek to adopt a view diametrically opposed to established precedent, but rather to arrive at a formulation, so as to establish a rule which operates proportionately, fairly, and having regard to each of the constitutional rights and duties which are at play. It is self-evidently not a rule of expediency. It is not a purely inductive rule driven by the exigencies of one case. It seeks to protect the rights of the suspect, and to deter police misconduct. I agree fully with the approach on the issue suggested in Clarke J.’s judgment. It is not useful to paraphrase that approach so as to achieve the maximum clarity. The role which the Court is asked to perform is undoubtedly one which falls within the judicial domain. The question is whether the principle, as presently identified, correctly balances the constitutional interests involved?
27. A rule of evidence may be subject to the same process of analysis and scrutiny as occurs frequently in the development of the common law. Ultimately, the justice of the principle, as expressed, must be tested empirically. We are not dealing here with a principle which is purely abstract. A significant aspect of the concerns, both in support, and in opposition to, the rule, shows the importance of context, and an assessment of police conduct in investigations. The choice is sometimes characterised as lying between two principles, which are described as “protection of the suspect”, and, on the other hand, a “negative deterrence of police misconduct”. In DPP v. Kenny  2 I.R. 110, as will be seen, in adopting the exclusionary rule, as therein formulated, the majority of this Court sought to couple both that negative deterrent with a positive encouragement to induce gardai to uphold the law. But, in the present judgments, the majority of this Court does not reject these considerations as being inconsistent with a recalibration, but rather seeks to identify a harmonious process, giving due recognition to the rights of protection, the duty of deterrence, and the considerations of public policy, and the rights of all citizens.
28. The issue is to be determined by asking whether it is better to “leave well alone”, or whether a different approach would be adopted, having regard to the rights to be found, not just in Article 40.3.1, but elsewhere in the Constitution also. In Kenny, this Court laid specific emphasis on Article 40.3.1, which provides:
29. The judgment focused upon the protection of personal rights of the suspect. But, as DPP v. Kenny  2 I.R. 110 shows, the exclusionary principle therein is not itself an absolute, but rather allows a court to determine where “extraordinary excusing circumstances” may apply so as to excuse the breach of the suspect’s Article 40.3.1 rights. We are assessing questions of degree.
“3 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
30. The question, to my mind, is the extent to which, if at all, the common good, other interests of justice, and specifically Article 40.3.2 should be weighed in the balance. Article 40.3.2 provides:
This provision is considered later in this judgment.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
The Evolution of the Rule
31. For the purposes of this concurring judgment, it is necessary only to briefly, and selectively, for the purposes of illustration, touch on certain points in the organic evolution of the present exclusionary rule. The point of the analysis which follows is to show that, in the law of evidence, there has been an evolutionary continuum. The rules of evidence have undergone an organic development over the past 60 years from the days when the Constitution had little or no role in the determination of admissibility of evidence to a time when it is, properly, an over-arching consideration. The decision which the Court delivers herein is merely the latest phase in the development of a constitutional process. There is no iron law which dictates that all processes of recalibration must necessarily and always move in one direction, when there are sufficient reasons for adjustment in the interests of justice. This in no way derogates from the principle that the public are entitled, under the Constitution, to a fair trial procedure in which the rights of the accused are fully vindicated.
The People (A.G.) v. McGrath (1960) I.L.T.R. 59
32. Prior to 1960, the law of evidence closely replicated its common law antecedents, permitting a near all-encompassing rule of inclusion (see Karuma v. R  A.C. 197). In The People (Attorney General) v. McGrath (1960) 99 I.L.T.R. 59, a divisional court of the High Court delivered a judgment which, it may be thought now, lay at the most distant end of the “protection” spectrum. In The People (Attorney General) v. McGrath (1960) 99 I.L.T.R. 59, Davitt P. quoted, with approval, Professor Wigmore’s strong dissent from the exclusionary rule, as it then stood in the United States. Wigmore observed that the judicial rules of evidence were never meant to be an indirect process of punishment of the police. It was not only anomalous to “distort” the rules to that end, Wigmore wrote, but improper to enlarge the fixed penalty of the law, that of fine or imprisonment, by adding to it the forfeiture of some civil rights through loss of the means of proving it. At trial, he suggested, the illegality of obtaining evidence was not condoned, it was merely ignored. Following this approach in The People (A.G.) v. McGrath, the Divisional High Court felt that the admissibility of evidence was not at all affected by the illegality of the means by which the party had been able to obtain that evidence. Davitt P. expressed the view that the court should not confuse the purposes of what he termed “substantive” and “adjectival” law. The first, substantive law regulated legal rights and determined what amounted to infringements. For such infringements the law provided a remedy. The law of evidence, on the other hand, was, to his mind, “adjectival”, and confirmed the rules which govern, as a procedure of the courts, matters of proof and as to what evidence may be accepted or rejected. The then President of the High Court expressed the view that the law was inappropriate for the purpose of remedying civil wrongs, or punishing civil offences by police. Since it could not deal with these matters directly, or fully, at the trial of an accused, it should not allow them to affect its application. This remarkably stark view was radically modified five years later by this Court in The People (A.G.) v. O’Brien  I.R. 142. The rebalancing was undoubtedly in the interests of protecting the suspect, but, as will be seen, introduced a flexible principle which had regard to the circumstances of the case.
The People (A.G.) v. O’Brien  I.R. 142
33. The facts of The People (Attorney General) v. O’Brien  I.R. 142 are familiar. The accused was charged with receiving stolen clothing, which had been identified by the owners, as they were found in the course of a search by members of An Garda Siochana at 118 Captains Road in Crumlin. The search warrant obtained had stated the place to be searched was 118 Cashel Road, Crumlin. The gardai did not notice the mistake before going to the house to be searched. This Court held that as this mistake was pure oversight, and had not been noticed by any member of An Garda Siochana, the evidence should be admitted, absent any indication of illegality or mala fides, or bad faith.
34. The judgments in The People (A.G.) v. O’Brien  I.R. 142 involve the balancing of constitutional rights, just as in DPP v. Kenny  2 I.R. 110, some 25 years later. The People (A.G.) v. O’Brien  I.R. 142, therefore, no less than DPP v. Kenny  2 I.R. 110, is a constitutionally based judgment seeking to strike a balance between the values which are applicable. On the question of the admissibility of illegally obtained evidence, Kingsmill Moore J. identified three possible approaches; the first, that the evidence would always be admitted because its provenance in an illegal action could not cause it to be excluded, second, that such illegal acts should be ignored by the court as if they never existed, and third, that there should be a discretion vested in a trial judge to decide whether or not to admit illegally obtained evidence. Confessing that he was adopting an intermediate solution, to be found lying between desirable ends which might be regarded as incompatible, Kingsmill Moore J. considered that it was desirable in the public interest that crime should be detected and punished. It was also desirable that individuals should not be subjected to illegal or inquisitorial methods of investigation. Thus, the State should not attempt to advance its ends by utilising the fruits of such methods. Having pointed out that a determination as to admissibility should be ascertained, having regard to all the circumstances, he observed (The People (A.G.) v. O’Brien  I.R. 142 at p. 160):
Having considered the possibility of police actions amounting to a trick, which he considered might be acceptable, provided there was no illegality, Kingsmill Moore J. stated at p. 160:
“On the one hand, the nature and extent of the illegality have to be taken into account. Was the illegal action intentional or unintentional, and, if intentional, was it the result of an ad hoc decision or does it represent a settled or deliberate policy? Was the illegality one of a trivial and technical nature or was it a serious invasion of important rights the recurrence of which would involve a real danger to necessary freedoms? Were there circumstances of urgency or emergency which provide some excuse for the action?”
He concluded at p. 161:
“I am disposed to lay emphasis not so much on alleged fairness to the accused as on the public interest that the law should be observed even in the investigation of crime. The nature of the crime which is being investigated may also have to be taken into account.”
35. In The People (A.G.) v. O’Brien  I.R. 142, Kingsmill Moore J. expressed his agreement with Walsh J.’s judgment to the effect that, in the event that evidence had been obtained by the State, as a result of a deliberate and conscious violation of the constitutional (as opposed to the common law) rights of an accused person, it should be excluded, unless there were extraordinary excusing circumstances, such as the prevention of the imminent destruction of vital evidence, the need to rescue a crime victim in peril, or where evidence was seized incidental to a lawful arrest, but where the premises had been entered without a search warrant.
“It would not be in accordance with our system of jurisprudence for this Court to attempt to lay down rules to govern future hypothetical cases. We can do no more than decide the case now before us, and to lay down that, in future cases, the presiding judge has a discretion to exclude evidence of facts ascertained by illegal means where it appears to him that public policy, based on a balancing of public interests, requires such exclusion. If he decides to admit the evidence an appeal against his decision should lie to a superior Court which will decide the question according to its own views and will not be bound to affirm the decision of the trial judge if it disagrees with the manner in which the discretion has been exercised, even if it does not appear that such discretion was exercised on wrong principles. …”
36. There can be no doubt that Walsh J.’s language in The People (A.G.) v. O’Brien  I.R. 142 laid a different emphasis on the principle of protecting the rights of the suspect. He wrote to this effect at p. 170:
37. However, as Walsh J. pointed out in The People (A.G.) v. O’Brien  I.R. 142, there had been no deliberate or conscious violation of the appellant’s right in that case. This was true, even in the circumstance that what was in question was the search of a dwelling house. What had occurred was “an error that the wrong address appeared on the search warrant and that the searching officers were unaware of the error” (The People (A.G.) v. O’Brien  I.R. 142 at 170). This was neither, therefore, a “deliberate nor conscious” act.
“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 has undertaken to defend and vindicate the inviolability 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 of the constitutional rights of the accused person where no extraordinary excusing circumstances exist, …”
38. It must be frankly accepted that in the three decades following The People (A.G.) v. O’Brien  I.R. 142 the courts were called on more than one occasion to address situations where there was strong evidence that the constitutional rights of suspects in custody were imperilled by the consequences of serious garda misconduct. Much of the analysis during this period focused on the meaning of the terms “deliberate and conscious” violation of constitutional rights. I take the view that both these terms are matters of fact going to the state of mind of the actor. I do not consider they can be terms of art. They cannot be so characterised. Other judges took a different view, and the historical background forms an inescapable part of the explanation, chronology and narrative. The instances of garda misconduct lay behind the manner in which the terms “deliberate” and “conscious” were ultimately held to be understood. The courts have had to address allegations of police misconduct which, unfortunately, occurred in various categories of investigation, took various forms, and which, in the absence of designated custody officers, proper supervision, surveillance, monitoring and video taping in garda stations, and proper access to legal and medical advice were not always susceptible to proper sanction.
The People (DPP) v. Madden  I.R. 336
39. In the years following The People (A.G.) v. O’Brien  I.R. 142, therefore, the Court moved toward a “modified” rule of exclusion so as to impute a duty to members of An Garda Siochana. In The People (DPP) v. Madden  I.R. 336, this Court held that there was a positive duty on members of An Garda Siochana to vindicate the constitutional rights of all citizens, including suspects. O’Higgins C.J., at p.347, observed that the lack of regard for, and failure to vindicate, the defendant’s constitutional right to liberty, even though it may not have induced or brought about the making of an incriminating statement, were, nonetheless, in that case “the dominating circumstances surrounding its making”; and that this fact could not be ignored.
40. Nonetheless, as a result of The People (A.G.) v. O’Brien  I.R. 142, the principle generally applied, up to The People (DPP) v. Madden  I.R. 336, was that mistake or error might be excused, and evidence admitted, if there was no conscious violation of any constitutional right. The fact that an act consequential to the illegality, such as entering a premises, was intentional did not alter the situation. Thus, the fact that an omission of a statutory foundation for the issuing of a search warrant might have occurred as a pure oversight, was taken into account, but absent any evidence of deliberate deceit or illegality, or some policy to disregard the provisions of the Constitution, or to conduct searches without a warrant, the evidence was admissible, in circumstances, such as the need to prevent the imminent destruction of vital evidence (see The People (DPP) v. Lawless, Court of Criminal Appeal, 28th November, 1985) In DPP v. McMahon & Others  I.R. 393, in circumstances where gardai entered as trespassers a public house for the purposes of investigation of unlawful gaming machines without identifying themselves, or stating their purpose, and this Court held that “evidence obtained by illegal means not involving conscious and deliberate violation of constitutional rights shall be admissible unless the court, in its discretion, excludes it” per Finlay C.J. at page 399). In so holding the then Chief Justice made specific reference to Kingsmill Moore J.’s judgment in O’Brien.
DPP v. Shaw  I.R. 1
41. In DPP v. Shaw  I.R.1, where the majority and minority of this Court arrived at the same conclusion as to admissibility of evidence, but by different reasoning, Griffin J., speaking for the majority, held that the term “deliberate and conscious” was to be seen in the context of the violation of the rights of the accused, rather than the acts of the gardai. On this basis, therefore, evidence would only be excluded at trial where it was shown that the members of An Garda Siochana knew that they were breaching the rights of the suspect, and nonetheless continued to act in this way. In a clear harbinger for the future, Walsh J., then in the minority, held that the test was whether the action of a garda had been carried out deliberately and consciously, even if the policeman was not aware that the impugned conduct, or his actions, amounted to a breach of constitutional rights. But, he held, the garda concern for protecting the life of a victim of crime would provide extraordinary excusing circumstances for admitting the appellant’s statements into evidence.
DPP v. Kenny  2 I.R. 110
42. This necessarily selective narrative describing the formulation and application of the principles of admissibility leads us then to The People (DPP) v. Kenny  2 I.R. 110, where this Court held, by a majority of three to two, that it was immaterial whether a member of An Garda Siochana, was, or was not, aware that what he was doing was in breach of the constitutional rights of the accused.
43. Some analysis of the facts providing the background for DPP v. Kenny  1 I.R. 110is necessary. The appellant’s flat was searched by Garda Conway, pursuant to a search warrant issued under s.26 of the Misuse of Drugs Act, 1977. Samples of heroin were found. In his application for a search warrant, a Garda Conway had sworn an information before a Peace Commissioner which deposed that:
The warrant to search stated, inter alia:
“… I suspect, on the basis of information within my possession, that (a) a person is in possession on the premises … of a controlled drug, namely, Diamorphine or cannabis resin … I hereby apply for a warrant to search for and seize the articles named above.”
However, as the judgments of the Court of Criminal Appeal confirm, there was no evidence before the trial court that any enquiry had been made by the Peace Commissioner as to the basis of the garda suspicion. The admissibility of Garda Conway’s evidence concerning the search turned on the validity of the search warrant.
“Whereas I, the undersigned Peace Commissioner, being satisfied on the information on oath of Garda C …”.
44. It is beyond question that the procedure in obtaining a warrant adopted was a common-place one. The trial judge held that the warrant had been validly issued by the Peace Commissioner, and admitted the evidence as to the search. That ruling was the sole issue in the appeal.
The Court of Criminal Appeal in DPP v. Kenny  2 I.R. 110
45. On behalf of the applicant/appellant it was submitted to the Court of Criminal Appeal that the search warrant had been invalid and inadmissible, because it did no more than state that Garda Conway held a “suspicion”. It did not state the information that formed the basis of that suspicion. It was further submitted that no evidence had been led at the trial as to any further information which Garda Conway had put before the Peace Commissioner. In the first of two judgments delivered in the appeal, the Court of Criminal Appeal (McCarthy, O’Hanlon and Lardner JJ) held that the warrant was invalid, because there was no evidence that the Peace Commissioner had enquired into the basis of the garda suspicion. Accordingly, he had failed to exercise his judicial discretion and had failed to carry out his function under the Act. In so finding, the court relied on the judgment of Byrne v. Grey  I.R. 31 (DPP v. Kenny  2 I.R. 110), a judgment delivered by the High Court three years after the search warrant in DPP v. Kenny  2 I.R. 110 was obtained.
46. The court required further argument as to whether or not the deliberate and conscious act forcing admission into the appellant’s home was a violation of his constitutional rights, with the results that the fruits of the search were inadmissible in evidence. The second judgment of the court was delivered by O’Hanlon J. The court decided ultimately that the evidence was admissible. It held that while the procedure for obtaining a search warrant had been found to be invalid, and that the consequent entry on the premises was unlawful, there had been no deliberate or conscious violation of the appellant’s constitutional rights. Garda Conway had taken all steps believed to have been necessary for obtaining a search warrant; it had been issued by the Peace commissioner on the basis that there was compliance with the requirements of the Misuse of Drugs Act, 1977. The court held that the admissibility of the evidence obtained on foot of the invalid search warrant was a matter for the discretion of the court of trial. In so holding, the Court applied The People (AG) v. O’Brien  I.R. 142; The People v. Madden  I.R. 226; The People v. Farrell  I.R. 13; The People v. O’Loughlin  I.R. 85; The People v. Walsh  I.R. 295; The State (Quinn) v. Ryan  I.R. 70, and the United States v. Leon, 468, U.S. 897.
47. Applying a “state of mind” test, the court held that the concept of “extraordinary excusing circumstances” had only to be considered when the court was of the view that a deliberate and conscious violation of constitutional rights had taken place; otherwise the admissibility of the evidence was a matter for a trial court’s discretion. The court, therefore, did not follow the dicta of Walsh J. in The People v. Walsh  I.R. 295, at page 317, and The People v. Shaw  I.R. 1, at page 32.
48. A number of passages from the judgments of the Court of Criminal Appeal are noteworthy. The first is from the judgment of McCarthy J. pronounced at conclusion of the first hearing. Speaking for the Court, he held (DPP v. Kenny  2 I.R. 110 at p. 117):
Two inescapable points arise from these findings by the Court of Criminal Appeal. The first was that Garda Conway believed the warrant to be valid, and had every reason to so believe. The second (related) finding was that his good faith was not in question. In the light of these specific findings as to his state of mind, can it be tenably concluded that what was in question in the appeal to this Court was a “deliberate and conscious” violation of a constitutional right?
“In these circumstances, the Court is of opinion that the search warrant was invalid and that, accordingly, the evidence as to the search and the statement of the applicant at the time was admitted on an incorrect basis. That does not conclude the matter. Garda Conway believed the warrant to be valid. He had every reason to do so. His good faith was not in question, but having regard to the run of the case the question did not arise as to whether or not the deliberate and conscious act of forcing admission into the appellant's home was a violation of his constitutional rights with the result that the fruits of search consequent on such breach were inadmissible in evidence.” (emphasis added)
49. In the second judgment of the Court, O’Hanlon J. made a specific finding that the circumstances were “not one of deliberate and conscious violation, but of a purely accidental and unintentional infringement of the Constitution”. Then, speaking for the court, he stated at p. 119:
Here O’Hanlon J. was referring back to a passage from Walsh J.’s judgment in The People (A.G.) v. O’Brien  I.R. 142 at pp 168 to 169) where he observed:
“In such cases, as Mr. Justice Walsh indicates, the evidence normally should not be excluded. …”
50. The Court of Criminal Appeal (O’Hanlon J.), referred to a passage from The People v. O’Loughlin  I.R. 85 at p. 91, where O’Higgins C.J. had explicitly found that the gardai had held a witness for many hours in circumstances which in O’Hanlon J.’s words:
“In my judgment the law in this country has been that the evidence in this particular case is not rendered inadmissible and that there is no discretion to rule it out by reason only of the fact that it was obtained by means of an illegal as distinct from an unconstitutional seizure. Members of the police make illegal searches and seizures at their peril and render themselves liable to the law of tort and in many instances also to the criminal law. In my view it would properly be within the province of a Court which learns in the course of a trial that evidence proffered has been obtained as a result of an illegal search and seizure, whether on the property of the accused or any other person, knowingly and deliberately carried out by the police, to publicly draw attention to that fact and in that, though perhaps remote, way effectually to control the actions of the police. But to render the evidence inadmissible on that account only and for the purpose of controlling the police would be to prefer the latter purpose to the competing but primary one of conducting a fair trial.”
51. Later, O’Hanlon J. said at p.123:
“… could not have been due to either inadvertence or oversight. It was done by experienced Garda officers who must have had a special knowledge of citizens' rights in such circumstances. It would only have been the result of a deliberate decision by these officers who were aware of the applicant's rights. These rights were disregarded and swept aside because of the concern to continue the investigation into cattle-stealing. This was not such a special circumstance … as could excuse the violation of constitutional rights which took place.” (emphasis added)
To my mind, the findings, as to Garda Conway’s state of mind, and the Peace Commissioner’s conduct, were of fact. I am unable to find any basis for any alternative finding or characterisation.
“Where, however, what has taken place should not be regarded as a deliberate and conscious violation of the constitutional rights of the accused, then the question of the admissibility of the evidence can be considered as a matter of the court's discretion without having to consider whether "extraordinary excusing circumstances" existed.” (emphasis added)
The Question of Intentionality
52. It is clear that gardai who forcibly entered the house in question at No. 1 Belgrave Place in Rathmines, did so having obtained a warrant which was obtained from a Peace Commissioner in accordance with the procedure which was, at the time, lawful. However, there was no evidence that the Peace Commissioner, before the information was sworn, enquired into the basis of the garda suspicion. Thus, the Court of Criminal Appeal held that the Peace Commissioner had failed to exercise judicial discretion, and therefore failed to carry out his function under s.26(1) of the Misuse of Drugs Act, 1977/84. The offence was alleged to have taken place on the 2nd October, 1984, when a member of An Garda Siochana, armed with a search warrant dated the 29th September, 1984, forced entry into the flat, finding samples of heroin and other incriminating material.
53. But it was three years later by the time the High Court delivered judgment in Byrne v. Grey  I.R. 31 at p. 38. Byrne v. Grey determined that it would be necessary for a Peace Commissioner to exercise a judicial discretion when being “satisfied” that there was sufficient basis for issuing a search warrant. In the second Court of Criminal Appeal judgment (O’Hanlon J.) posed the following weighty and significant rhetorical questions:
These were pre-eminently questions of fact. Insofar as they were, I infer they allowed only for one answer on the evidence. O’Hanlon J. later quoted Justice White’s opinion in the United States v. Leon  468 897, who expressed himself in the following terms, on the then extant United States exclusionary rule:
“Can it be said that Garda Conway was guilty of deliberate and conscious violation of the constitutional rights of the appellant, by reason of his failure to anticipate the decision of the High Court in Byrne v. Grey delivered on the 9th October, 1987, and of this Court delivered on the 15th June, 1989? And if so, can the peace commissioner who issued the search warrant, in common with the other District Justices and peace commissioners who have acted on the faith of similar informations on oath since the enactment of the Act of 1977, also be regarded as having been parties to deliberate and conscious violation of the constitutional rights of the persons whose homes were entered in reliance upon warrants which must now be regarded as invalid?”
54. The Court of Criminal Appeal held, therefore, that there had been no “deliberate or conscious violation of the constitutional rights of the appellant”. This holding could only have been based on the fact that Garda Conway, applying the law as it stood, had taken all steps believe to be necessary and appropriate for obtaining a valid search warrant.
“… The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. "Our cases have consistently recognised that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury. United States v. Payner 447 U.S. 727, 734 (1980). An objectionable collateral consequence of this interference with the criminal justice system's truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favourable plea bargains. Particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. Stone v. Powell 428 U.S. at 490. Indiscriminate application of the exclusionary rule, therefore, may well "generate disrespect for the law and administration of justice.” Id., at 491. Accordingly, as with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. …
First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate …
We conclude that the marginal or non existent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” (The law in the United States has since further evolved, most recently Herring v. United States  555 U.S.; Davis v. United States  131 S. Ct. 2419).”
55. On application of counsel for the appellant, the Court of Criminal Appeal certified on these facts that the decision involved a point of law of exceptional public importance, and it was desirable in the public interest that an appeal be taken to this Court. The court, therefore, granted a certificate, pursuant to s.29 of the Courts of Justice Act, 1924. The point of law so certified was whether the forcible entry of the appellant’s home by members of An Garda Siochana, on foot of an invalid search warrant, constituted a deliberate and conscious violation of the appellant’s constitutional rights, such as to render any evidence obtained by the said members, in the course of the ensuing search, inadmissible at the appellant’s trial.
The Decision of this Court in Kenny
56. The principles identified in the earlier judgments referred to herein were reformulated in The People (DPP) v. Kenny  2 I.R. 110 It is of fundamental importance that The People (DPP) v. Kenny  2 I.R. 110 be contextualised. One cannot put out of one’s mind the respect due to judicial eminence of those who formed the majority. One cannot exclude from consideration either, why, inferentially, Walsh J.’s warning in The People (A.G.) v. O’Brien  I.R. 142 now came to crystallisation. The context and motivation has been described earlier in this judgment. This Court, therefore, held, by a majority of three to two, that it was immaterial whether the police, or a member of An Garda Siochana, was, or was not, aware that what he was doing was in breach of the constitutional rights of the accused. This departed from the earlier, The People (A.G.) v. O’Brien  I.R. 142 line of authority, to the effect that a “conscious and deliberate” violation of a person’s constitutional rights required that the act of violation should be done deliberately, with a consciousness that the effect of it would be to unlawfully invade a person’s dwelling, or to deprive them of liberty. There can be no doubt that the majority of this Court were, by then, and for significant reasons, persuaded of the desirability of introducing what might be termed an absolute exclusionary rule. This majority (Finlay C.J., Walsh, Hederman, JJ) were plainly persuaded that the hypothetical and “malign” scenario, as to police misconduct, as envisioned by Walsh J. in O’Brien, had become reality, and thus a more rigorous rule should be formulated.
57. Speaking for the majority, Finlay C.J. reasoned that the duty of the court, pursuant to Article 40, s.3, sub-section 1 of the Constitution, was so far as practicable, to defend and vindicate constitutional rights. He held that 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 had an obligation to choose the principle which is likely to provide a stronger and more effective defence, and vindication of the right concerned. He stated at pp. 133 to 134:
A statement of high constitutional principle put in this way, and in its context, is not easily to be ignored or discarded.
“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.””
There is, however, one passage in the judgment of the majority which is troubling. There, Finlay C.J. observed at p. 134:
58. The judgment then holds, as a matter of fact, that neither of the two gardai concerned had any knowledge that they were invading the constitutional rights of the accused. Nonetheless, the Court then held the evidence obtained as a result of the forcible entry into the house should not have been admitted at the trial. Accepting that every judgment is to be read its entirety, I nonetheless confess to difficulty in reconciling the passage just quoted and emphasised with the rule which the decision in DPP v. Kenny  2 I.R. 110 sought to propound. Were the acts constituting the breach not committed unintentionally or accidentally? The Court of Criminal Appeal also held, as a fact, that they were both unintended and accidental. It is difficult to see on what facts any other conclusion could be arrived at, viewing these acts in isolation.
“After very careful consideration I conclude that I must differ from the view of the majority of this Court expressed in the judgment of Griffin J. in The People v. Shaw  I.R. 1. I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its (the court's) discretion.” (emphasis added)
59. While there is no doubt that in DPP v. Kenny  2 I.R. 110 the actual entry of the dwelling house was neither “unintentional nor accidental”, nor can there be doubt that Garda Conway, and indeed the Peace Commissioner, had entirely in good faith, and in accordance with the law, as then understood. Having considered the form of information used before the Peace Commissioner, Lynch J., obviously speaking at a time well before the judgment of this Court in Damache v. DPP  IESC 11, for the minority, observed in DPP v. Kenny  2 I.R. 110 at 142:
“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.”
60. Seen from the perspective of today, can it now be said the State agents in DPP v. Kenny  2 I.R. 110 , acting bona fide, and in the prosecution of crime, and applying the law, as it was then understood, had acted in “deliberate and conscious” violation of the Constitution? I find difficulty with this proposition also. I believe the judgment of the majority erred.
“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 The People (Director of Public Prosecutions) v. Healy  2 I.R. 73 there was manifest a 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.”
61. I do not say that the more recent establishment of a wide range of institutions to protect the public against garda misconduct are, necessarily, and in themselves, a rationale for reformulating the principle as formulated in DPP v. Kenny  2 I.R. 110 . But what Walsh J. in The People (A.G.) v. O’Brien was calling for was, in modern day terms, the need for a change of police “culture”. It is true, of course, that to reformulate DPP v. Kenny  2 I.R. 110 runs the risk that all misconduct may be deemed excusable. But the duty of judges, under the Constitution, is to protect the proper administration of justice, including vindication of the rights of accused persons, properly so characterised, in the circumstances of the case. The constitutional imperative underlying that duty is no less in the event that the rule is reformulated. The logic of the present rule is that it can lead to the consequence that an inconsequential and unwitting error may lead to an “imputed”, deliberate and conscious breach of constitutional rights, rather than mere mistake or error. To my mind, such a consequence is disproportionate.
Kenny Overruled O’Brien in Effect
62. There can be no doubt that the deterrence principle is now a fundamental part of our law. It may be characterised as the underlying theme in Attorney General v. O’Brien  I.R. 142, which DPP v. Kenny  2 I.R. 110 effectively overruled. I would observe here that the majority judgment in Kenny does not appear to refer to the principles identified by this Court in Mogul of Ireland v. Tipperary N.R. Co. Co.  I.R. 260. This is to be seen as coupled with Walsh J.’s indication in O’Brien, referred to earlier, that it might be necessary to “change” the law. What is at issue here are matters of constitutional principle. This Court is entitled to review or to re-analyse such matters in the light of experience. I do not regard the omission of a reference to Mogul of Ireland v. Tipperary N.R. Co. Co.  I.R. 260.as itself being an error, but rather a recognition that, in the context of constitutional rights, the Court is entitled to engage in a careful calibration of the balancing process, such as it did in DPP v. Kenny, and such as now occurs in the present case.
Deterrence and the Balance of Rights and Duties
63. The deterrence principle is both a “private” and a public good precept. It deters individual misconduct by protecting the suspect. It maintains a public good in a police force that operates under the rule of law. The rule, as at present formulated, vests in the suspect constitutional rights under Article 40.3.1 of the Constitution. The intent in such exclusion of evidence, unconstitutionally obtained, is to deter misconduct. But Article 40.3, seen across its entirety, does not ignore the rights of the citizen, or the public interest, or the common good. Moreover, Article 38 of the Constitution provides that no person shall be tried save in due course of law. A trial of serious offences is to be before a jury of citizens. Are these constitutional considerations presently placed in the balance of rights? The duty of a court, in all constitutional questions, is not to isolate, or focus on one constitutional consideration, but rather to arrive at an appropriate balance between the relevant rights and duties. The question which must now be faced is whether, at present, underlying the jurisprudence, there is a dichotomy leading to the fallacy of ignoring other relevant constitutional values, which the courts are also duty-bound to uphold. I do not believe Article 40.3.1 of the Constitution can be then isolated from Article 40.3.2. The inclusion of relevant constitutional considerations is not an approach of ‘expediency’; provided the values are maintained in accordance with the values outlined in the Constitution, including the judicial duty of upholding the law.
64. One of the rationales for an exclusionary rule is that it vindicates rights that cannot elsewhere be vindicated. Is this now true in this State? One cannot ignore that since DPP v. Kenny, in 1990, significant cultural changes have occurred, and attitudes to garda misconduct have certainly altered. Figures provided by the Department of Justice for the period 2002 to 2012 show that during that decade, many millions of Euro were paid out by the State in awards settlements and costs. The fact that this has taken place is hardly consistent with a climate where, at other times and in other jurisdictions, cases involving allegations of police misconduct routinely went un-investigated and civil actions were hard to prove in court before sometimes hostile juries. We are no longer living in a climate where there is no redress for police misconduct. Both branches of the legal profession, under a State funded system of legal aid, act consistently and competently to protect and vindicate the rights of suspects. Cases where challenges are made to competence of counsel are rare if not unknown. Some hundreds of complains are made to the Garda Siochana Ombudsman Commission each year. By contrast to the United States, the judiciary, the prosecution service and senior garda officers do not stand at five yearly intervals for elective office. The context in which DPP v. Kenny  2 I.R. 110 was pronounced has, too, changed significantly and constitutional statutory protections for suspects are now considerably greater.
65. It is said nonetheless, the absence of a strong exclusionary rule poses a threat to judicial integrity, and that courts may lead themselves to condoning misconduct if there are strong indications of guilt in the evidence irregularly obtained. But the task of a constitutional, independent, judiciary is to uphold the Constitution, including the rights of a suspect and an accused. The integrity of the prosecution and the trial process is fundamental. The interests of justice are surely not diminished by the reformulation of a constitutionally based balancing test, whereby all the constitutional rights engaged may be more properly balanced, having regard to the circumstances. The context in which the courts operate are very far removed from the circumstances pertaining when many of the earlier judgments of the Supreme Court of the United States, favouring a broad exclusionary rule, were pronounced. We no longer must make a Manichean choice between an exclusionary rule, on the one hand, and “no sanction at all” (per Murphy J. in Wolf v. Colorado 38 US 25, 31 ). I do not accept, either, that the choice, now, can be characterised as one simply between “expediency” and “principle”.
66. It is necessary now to look at a number of specific issues. Put briefly, the questions now considered are, the extent to which DPP v. Kenny  2 I.R. 110 brought clarity in the law, whether it has brought anomalies, whether it has created an “elision” between illegality and unconstitutionality, and whether there is a degree of logical disconnect between the interests which are sought to be vindicated and, finally, whether the context changed.
67. Insofar as it is said that DPP v. Kenny  2 I.R. 110 brought clarity, it may be questioned whether this is so always? In the People (DPP) v. Balfe  4 I.R. 50, Murphy J., speaking for the Court of Criminal Appeal, considered that the Kenny and O’Brien rules were mutually exclusive alternatives to one another. That court relied on O’Brien, holding that the principles enunciated in there were to be applied where a mistake was apparent on the face of a warrant; and Kenny was to be applied where a warrant was issued without lawful authority. The Court of Criminal Appeal did not address any subject, other than warrants, however, in its judgment. But the Court did not hold that O’Brien had been overruled by Kenny. Nor did the latter judgment explain why O’Brien might have been wrongly decided.
68. As the circumstances of the current appeal show, the range of application of Kenny is quite wide, and, in this case, apparently led to the out-ruling of evidence wherein, without any suggestion of garda misconduct, save in obtaining the warrant, the appellant admitted his guilt in statements.
69. In this appeal, no statistics have been adduced by either side, nor have case histories been cited to illustrate an over-prevalence of acquittals by direction, as a result of the Rule. It is strange that no such studies are apparently available. Now, with the benefit of hindsight, it is possible to identify a number of instances where, as presaged by Walsh J. in O’Brien, and Finlay C.J. in Kenny, the consequence of the application of the rule as formulated, has been to produce certain anomalies. In his judgment herein, O’Donnell J. considers a range of judgments in the Court of Criminal Appeal where the question of exclusionary rule has arisen. One or two further examples are apposite, only in that they illustrate the extent to which a breach, amounting to illegality, reflected through the prism of the rule, becomes magnified and is distorted, in effect, into “unconstitutionality”.
70. In Curtin v. Clerk of Dail Eireann  IESC 14, one issue for consideration by this Court was the validity of the procedures decided on by the Oireachtas for the purpose of undertaking impeachment of a serving judge of the Circuit Court. In the prior criminal trial, the judge’s house had been searched under a warrant which, at the time of the search, had “just” expired by efflux of time (“just” here is used in the sense of “only just”). No garda apparently noticed this fact. The exploration of the judge’s computer taken in that search led to a charge being preferred against the judge for possession of images of child pornography. The trial judge in Curtin, however, bound by Kenny, was constrained to rule that the evidence taken in consequence of the search amounted to a “deliberate and conscious violation” of the accused’s constitutional right to the inviolability of his dwelling under Article 40.5 of the Constitution. There was no doubt that the expiration of the warrant, at a time very shortly before the search, was a simple error on the part of the garda officer. There was no evidence to suggest that anyone had adverted to in any way prior to the search. Even if they had, it would have been possible to apply for another warrant. This Court had no hesitation in pronouncing in its decision that the trial ruling did not immunise the material for all purposes. Whether the outcome enhanced public confidence in the rule, as formulated, might be open to question. When this Court ruled in favour of the Oireachtas Committee, it was on the basis that the trial ruling did not, in fact, render the material immune for all purposes. Public confidence in the law is a fundamental value, especially in terms of rapid social and economic change.
DPP v. Yamanoha
71. A further example of the elision between illegality and constitutionality is to be found in DPP v. Yamanoha  1 I.R. 565. The accused was detected by members of An Garda Siochana in possession of a very large quantity of cocaine, contrary to the Misuse of Drugs Act, 1977. She was found in a hotel room in Jurys Hotel (this treated for this purpose as “private dwelling”, and thereby protected under the Constitution) wrapping packages, consistent with having been strapped to her body coming through customs. The defect which was found to have occurred was that the Detective Sergeant who had come into confidential information and who was aware that surveillance had taken place by members of An Garda Siochana over a number of hours, provided this, and additional information to a Peace Commissioner, but omitted to swear that information on oath. The consequence was that the evidence was deemed to have been unconstitutionally obtained, in that the appellant’s right of privacy, in a hotel room, temporarily occupied by her, on payment of a charge, had been invaded, and was in breach of her rights of privacy and the inviolability of the dwelling guaranteed by the Constitution. Other such cases have arisen.
72. The consequence of the exclusionary rule has been that, in its application, an unintended mistake or “illegality” becomes elided with an imputed deliberate or conscious “unconstitutionality”. The action impugned was the “deliberate” entry to a dwelling. But there was no deliberate or conscious violation in that entry. There is, surely, a logical disconnection between a bona fide action taken (that of entry or arrest), and an imputed “disregarding” of constitutional rights. Can it be then said that there is proportionality between the protection of the right, and the remedy? I think these questions only allow for one answer; but the response must be measured and proportionate. What is necessary is a readjustment, but with the recognition that the protection of the rights of the suspect consideration must remain a constitutional duty for a trial judge.
In Whom Should Rights be Vested?
73. At the level of principle, it seems that as a consequence of the exclusionary rule, the proper public interest in the maintenance of an orderly public police force itself, subject to the rule of law, becomes a vested right in an accused person. That is, of course, the consequence of a deterrence principle. I do not criticise this consequence. But constitutional rights must be seen in the context of the range of other rights which are inherent in the process of protecting order in society. The rights, which are to be vindicated in a manner which is “as far as practicable”, are not simply those of the State and the accused, but rather encompass a broader range of interests and rights, including the right of the community to have crime prosecuted when offences have been committed, and the interests of victims of crime. An exclusionary rule broadly applied militates against these considerations being taken into account.
74. The history of events after the judgment in O’Brien is a complex one. I adhere to the observation of Brandeis J. quoted earlier, that if it transpires, on the basis of experience, that a rule which can produce lack of clarity, or dis-proportionality or anomalies, it is appropriate for this Court to review it. On balance, I think this is such an occasion.
75. The declaration on entering office for each judge is to execute the office without fear or favour or ill will. The duty of a judge is to uphold the Constitution and the laws with prior requirements in mind. The guarantee contained in Article 40.3 of the Constitution is to vindicate the personal rights of every citizen, as far as practicable. Under the Constitution justice is to be administered in courts established under the Constitution.
76. At other times, this Court has carefully segregated reprehensible conduct on the part of gardai, on the one hand, from the relief claimed on the other, that is, the extradition of the applicant. See Lynch v. Attorney General  3 I.R. 416. On balance, I think this process should be adopted in the present appeal.
77. A consequence of the adoption and application of the rule, as it stands, is disproportionate. It applies as much in the case of trivial and unintended infringements as in those more serious. It should not be said that there should be no exclusionary rule. But the phrase “deliberate and conscious”, as now applied, should not, and cannot, encompass steps properly taken on foot of Acts of the Oireachtas, or otherwise, in a bona fide, genuine, and well-founded belief as to their legality. The application of the rule, as it now operates, runs foul of the dictum of Murray C.J. in A v. Governor of Arbour Hill Prison  4 I.R. 88, to the effect that the application of the Constitution should not be distorted by focusing on one constitutional principle to the exclusion of all others. Finally, it may be said that the application of the exclusionary rule in our jurisdiction stands out from, and is not consistent with, the approach to the admissibility of unconstitutionally obtained evidence adopted in other common law jurisdictions, which also have written constitutional guarantees on inviolability of the dwelling, or like provisions. This is considered in other judgments of the majority.
78. The reputation and integrity of the system of justice should not be adversely affected by properly and faithfully applied good faith exception to the rule, constitutionally applied here, as in other jurisdictions. The bar set by the majority judgments herein is significantly higher than that to be found elsewhere in the common law world. It is in no way inconsistent with the ECHR (Schenk v Switzerland (1991) 13 E.H.R.R. 242). It redresses the balance so as to encompass community interests, while ensuring that egregious breaches of a suspect’s rights and police misconduct are checked. It restores meaning to the terms “deliberate and conscious” which have caused a lack of clarity in the law.
79. For these reasons, I would allow the appeal on this issue. As indicated earlier, however, I do so specifically in the context of constitutional application of s.23 to the extent it may be invoked in this application. I am satisfied that the requirements of s.23(3)(a) are met. I am unaware, at present, of circumstances in this case in which a retrial might be ordered, but will await submissions on the question. As the constitutionality of the “retrial” provision has not been fully argued I go no further.