SCHOOL OF LAW

EVIDENCE II (2021)

Lecture 1

UNCONSTITUTIONALLY OBTAINED EVIDENCE

So far, we have looked at various circumstances in which evidence is liable to be excluded in

criminal trials, mainly because of a fear that its admission might be unreliable or unfairly
prejudicial to an accused person. That is why, for example, evidence of previous convictions
is generally inadmissible during trial. We now move on to consider a situation in which
evidence is excluded not because it is deemed unreliable (it may in fact be very reliable) or
because its admission would be unfairly prejudicial, but because of the manner in which it
was obtained. We are talking about the exclusion of unconstitutionally obtained evidence
which has been a matter of some controversy for the past 50 years or so. Essentially, the
question is whether evidence should be automatically excluded if it has been obtained in
breach of a person’s constitutional rights, irrespective of the probative value of the evidence
in question.

General judicial discretion to exclude prejudicial evidence

Before going further, we should not that, apart from the circumstances in which evidence
must be excluded (e.g. because it is hearsay or was obtained unconstitutionally), a judge
presiding at a criminal trial also has a general power to exclude evidence if its prejudicial
effect exceeds its probative value. This was confirmed by the former Court of Criminal
Appeal in People (DPP) v Meleady (No. 3) 4 I.R. 16 at 31. This principle is recognised in
Irish and English law and is well expressed in Keane and McKeown, The Modern Law of
Evidence, 6th ed (Oxford University Press), p. 48:

“The judge must balance on the one hand the prejudicial effect of the evidence against
the accused on the minds of the jury and on the other hand its weight and value,
having regard to the purpose for which it is adduced. Where the former is out of all
proportion to the latter, the judge should exclude it. In one sense, of course, all
relevant evidence adduced by the prosecution is prejudicial to the accused and the
greater its probative value the greater its prejudicial effect. In some cases, however,
there is a serious risk that the jury will attach undue weight to an item of evidence
which is, in reality, of dubious reliability, or of no more than trifling or minimal
probative value, and in these circumstances the judge should exclude it”.

The Court of Appeal very recently in People (DPP) v P.M. [2018] IECA 311 recently
confirmed that this rule remains part of Irish law and it confirmed that a “judge’s overriding
duty to ensure a fair trial includes a discretion to exclude otherwise admissible prosecution
evidence.”

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We now return to the question of excluding unconstitutionally obtained evidence.

Which constitutional rights might be breached?

The answer is that any constitutional right (express or implied) might potentially be at stake,
but those must likely to become engaged by the doctrine under discussions are:

- The right to personal liberty (art. 40.4)

- The inviolability of the dwelling (art. 40.5)
- Right to personal privacy, including privacy of communications.

The right to personal liberty would be breached if a person were arrested or detained in a
manner other than provided for by law.

The right to the inviolability of the dwelling (and remember this right applies only to
dwellings) would be breached if, for example, a public official, such as a member of the
gardai, entered somebody’s dwelling without authorisation. As a rule, the authorisation
necessary to enter a dwelling without the occupier’s permission is a valid search warrant.

The right to personal privacy might be breached if a person’s mail or telephone conversations
were unlawfully intercepted.

When has there been an unlawful entry into a dwelling or other building? The case of
search warrants

Whenever a question arises as to whether evidence should be excluded because it was

obtained in breach of the accused person’s right to the inviolability of the dwelling under Art.
40.5 of the Constitution, two important preliminary questions arise:

(1) Was the premises in question a dwelling?

(2) Was the entry unlawful?

As to the first of these questions, it is important to recall that Art. 40.5 applies solely to the
“dwelling” and not to any other buildings, such as shops, offices, stores and so forth. Of
course, any entry by an agent of the State (or by anyone else for that matter) into any
building, whether a dwelling or not, is unlawful unless it is legally authorised. Usually, entry
is lawful if it is gained with the genuine consent of the occupier, or because the person who
gains entry has a valid search warrant. Evidence is unlawfully obtained if it is gathered as a
result of an unlawful entry into any building, but it will be unconstitutionally obtained only
if the building in question is a dwelling. The distinction, as we shall see, is important.
Evidence that is unlawfully obtained may be admitted at trial at the discretion of the judge,
whereas evidence that is unconstitutionally obtained must ordinarily be excluded.

The second question is equally significant and it usually arises where the gardai have
conducted a search with the authority of a search warrant, which will usually have been

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issued by a District Court judge. A valid warrant is essential to render the search lawful. A
number of flaws might render a warrant invalid. For instance, warrants are usually expressed
to be valid for seven days from the date of issue, so if the gardai purported to carry out a
search based on a warrant issued 10 days earlier, the warrant would be invalid and therefore
the search would be unlawful (and unconstitutional if the premises happened to be a
dwelling). That much is clear. Difficulties, however, arise when there is some flaw on the
face of the warrant. Such flaws could take many forms. For instance, the address of the
premises to be searched might be misspelt or just wrong (e.g. 25 Main Street when it should
be 26 Main Street). Should any error, no matter how slight, be sufficient to invalidate the
warrant and thereby render the search unlawful (or unconstitutional in the case of a
dwelling)? There used to be conflicting authorities on the question. Some judgments
suggested that virtually any error should invalidate; others suggested the opposite. However,
the law is now reasonably clear as result of the Court of Criminal Appeal decision in People
(DPP) v Mallon [2011] 4 I.R. 544.

In Mallon, gardai executed a warrant under the Misuse of Drugs Act 1977 which had the
address “ 4 Marrowbone Close, Dublin 8” when it should have been “4 Marrowbone Lane
Close, Dublin 8”. The latter address, which was the correct one, was searched and a
significant amount of drugs was found. There was actually no such place as “4 Marrowbone
Close, Dublin 8”, the address that appeared on the warrant. The accused succeeded in having
the charges dismissed in the Circuit Court because of the incorrect address on the warrant.
The DPP appealed against this decision to Court of Criminal Appeal which held that the
warrant was not invalid because of the error in question. The following is an extract from the
Court’s judgment:

“It is important that a court should insist upon accuracy, particularly in addresses in
relation to warrants since they authorise forcible entry of premises, including dwelling
homes. But invalidation of every warrant on the ground of error and description does
not seem to serve any advance purpose in respect of the Constitution or even of
proper grammar, usage or clarity in communication. As the trial judge here observed,
there is a mistake, which is regularly made in everyday life. It is only necessary to
consider the variety of texts which go through professional editing processes, such as
newspapers, books and road signs, Acts of the Oireachtas and even sometimes
judgments in the official reports, to recognise that some level of error is almost
unavoidable. Furthermore, particularly so long as Irish law maintains an almost
absolute exclusionary rule for evidence obtained as a result of illegal and therefore
unconstitutional search of a dwelling house, courts should be slow to invalidate
warrants on the grounds of typographical, grammatical or transcription errors, which
are neither calculated to mislead, nor in truth do mislead, any reasonable reader of the
words.”

One result of this decision is that it is now more difficult to challenge successfully the
validity of the warrant on the basis that it contains some minor error, perhaps A typographical
error. The question now will usually be whether a reasonable person would be misled by the
error in question.

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Development of doctrine of exclusion of unconstitutionally obtained evidence

It began with People (Attorney General) v O’Brien [1965] I.R. 142 where gardai entered a
dwelling at 118 Captain’s Road, Crumlin in Dublin on foot of a search warrant which
erroneously gave the address as “118 Cashel Road” Crumlin. The question was whether this
error on the face of the warrant rendered the search unlawful and therefore the fruits of the
search inadmissible. In the Supreme Court, two judgments were delivered, one by Kingsmill
Moore J. (with whom two other members of the court agreed) and one by Walsh J. (with
whom one other member of the court, O Dalaigh CJ, agreed). In light of subsequent
developments, it is the latter judgment that is the more significant for present purposes as it
effectively developed the exclusionary rule. The key segment of his judgment reads as
follows:

“When the illegality amounts to infringement of a constitutional right the matter

assumes a far greater importance than is the case where the illegality does not
amount to such infringement. 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, such as the imminent destruction of vital evidence or the need to
rescue a victim in peril. A suspect has no constitutional right to destroy or dispose of
evidence or to imperil the victim. I would also place in the excusable category
evidence obtained by a search incidental to and contemporaneous with a lawful arrest
although made without a valid search warrant.

In my view evidence obtained in deliberate conscious breach of the constitutional

rights of an accused person should, save in the excusable circumstances outlined
above, be absolutely inadmissible. It follows therefore that evidence obtained without
a deliberate and conscious violation of the accused's constitutional rights is not
excludable by reason only of the violation of his constitutional right.

In the present case it is abundantly clear from the evidence that it was through an
error that the wrong address appeared on the search warrant and that the searching
officers were unaware of the error. There was no deliberate or conscious violation of
the right of the appellants against arbitrary intrusion by the Garda officers. The

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 evidence obtained by reason of this search is not inadmissible upon the constitutional
ground.

This approach as expressed by Walsh J. did not attract unanimity from all judges of the
superior courts. Some felt that it was preferable to leave trial judges with discretion as to
whether unconstitutionally obtained evidence should be admitted in light of the facts of each
particular case, rather than have a categorical rule.

It will be noted that Walsh J. mentioned two exceptional cases in which unconstitutionally
obtained evidence might be admitted: where the police had to act quickly, though facially
unlawfully, in order to prevent the destruction of evidence, and also where there was a need
to rescue a victim in peril. The latter situation arose in People (DPP) v Shaw [1982] I.R. 1.

Kenny case

Any uncertainty about the status of the exclusionary rule was removed in People (DPP) v
Kenny [1990] 2 I.R. 110 where it was endorsed by the Supreme Court by a majority of three
to two (the majority including Walsh J.). The majority judgment was given by Finlay C.J.
The appellant in that case was convicted of possessing drugs which were found in his flat.
The search was carried out on foot of a search warrant that had been issued by a peace
commissioner and it was issued in accordance with the law as it was generally understood to
be at the time. However, some years later, in a completely different case, Byrne v Grey
[1988] I.R. 31, it was held by the High Court that in order for a valid warrant to be issued, the
District Court or the Peace Commissioner, as the case may be, must be satisfied of the facts
which justify the issue of the warrant. This requirement had not been fulfilled by the issuer of
the warrant in Kenny. The question for the Supreme Court therefore was whether the search
in Kenny was unlawful and therefore unconstitutional. More specifically, the question was
whether the breach of the appellant’s constitutional rights was deliberate and conscious, as it
had to be under O’Brien before the evidence had to be excluded. There was a good argument
for saying that it was not deliberate and conscious because the gardai were not aware at the
time that there was anything illegal about the manner in which they obtained the warrant.
The question really boiled down to this: what had to be deliberate and conscious? Was it the
performance of the particular act, e.g. entering the premises? Or was it doing the act while
being aware of its illegality? The Supreme Court majority held that it was the first of these.
All that had to be shown was that the gardai were aware of what they were physically doing.
That is what made their act deliberate and conscious. In this instance, therefore, the act was
deliberate and conscious and therefore the evidence had to be excluded. This was also the
view taken by Walsh J. in People (DPP) v Shaw [1982] I.R. 1 where he said:

“When the act complained of was undertaken 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…”

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This was adopted by the majority in Kenny where Finlay C.J. said:

“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.

In the instant case there cannot be any question but that the acts of the gardai which
obtained the warrant by the submission to the peace commissioner of the sworn
written information in the form in which I have recited it, and which then forcibly
entered the dwelling house were neither unintentional nor accidental, and counsel for
the respondent agrees that there are no extraordinary excusing circumstances in this
case. Even though, then, I would accept that neither of the two gardai concerned had
any knowledge that they were invading the constitutional rights of the accused and
would also accept that they were carrying out the process of obtaining and executing
a search warrant in a manner which has been customary over a long period with the
gardai, I am satisfied that the evidence obtained as a result of the forcible entry into
the house should not have been admitted at the trial of the accused and that,
accordingly, the conviction of the accused should not have occurred.

I would, therefore, allow this appeal and I would quash the conviction entered against
the accused.”

The rationale for excluding unconstitutionally obtained evidence

Other jurisdictions have various kinds of exclusionary rule. It began, in effect, in the United
States in the early 20th century. In the United States in particular, the rationale for the
exclusionary rule (which has been much watered down in recent decades) is explicitly
deterrent. The idea is that police will be deterred from engaging in unlawful conduct when
investigating crime if they know that any evidence that they obtain unlawfully is likely to be
excluded at the trial itself. In Kenny, the Supreme Court here adopted what is usually known
as the protective principle, meaning that the exclusionary rule should apply in order to protect
individual constitutional rights. Persons should not have their rights violated and therefore it
followed, according to the court, that evidence obtained as a result of a constitutional rights
violation should not be admitted in the course of a criminal trial. In this regard, the majority
of the Supreme Court said:

“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.

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 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.”

The retreat from Kenny

Kenny remained the law for 25 years until the J.C. decision in 2015. There had been a great
deal of dissatisfaction with Kenny among prosecutors in the meantime, although it is by no
means clear how many prosecutions failed as a result of it. One of the more controversial and
high-profile cases, at trial court level, involving the exclusionary rule was People (DPP) v
Curtin in the early 2000s. The accused, who was actually a Circuit Court judge, was charged
with possessing child pornography on his computer. The computer was seized on foot of a
search warrant which, like virtually all search warrants, was valid for seven days. However
the warrant had not been executed, or the computer seized from the accused’s home, until the
eight day after the warrant was issued. This meant that the search was unlawful and, because
it was carried out at a dwelling, unconstitutional. The trial judge, therefore, had no option but
to dismiss the case against Curtin. At that time, there was no appeal against an acquittal. The
basic principle was that an acquittal was the end of the matter and the defendant could not be
put on trial again for the same offence. However, this changed as a result of legislation
introduced in 2006 and 2010 which permits the prosecution to appeal against an acquittal in
certain limited circumstances. Once this legislation was introduced, the prosecution was on
the lookout for a suitable case in which to challenge the exclusionary rule and they finally got
the opportunity in People (DPP) v J.C. (2105).

The J.C. case

In People (DPP) v J.C. [2015] IESC 31, [2017] 1 I.R. 417, decided in April 2015, the Supreme Court
revisited the scope of the exclusionary rule as set out in its two previous judgments, People (Attorney
General) v O’Brien [1965] I.R. 142 and People (DPP) v Kenny [1990] 2 I.R. 100. As already noted,
that rule provides that evidence which has been obtained in deliberate and conscious breach of
person’s rights must be excluded unless there are extraordinary excusing circumstances to justify its
admission. However there was a conflict between O’Brien and Kenny over the meaning of “deliberate
and conscious.” O’Brien suggested that a breach of rights committed through inadvertence should not
be regarded as deliberate and conscious, whereas the majority in Kenny had held, unambiguously, that
“deliberate and conscious” referred to the act itself (e.g. entering a person’s house) as opposed to an
awareness of the illegal quality of the act.

There were policy arguments to be made for each interpretation. In favour of the O’Brien
approach it could be said that it made little sense to exclude evidence which was obtained on
foot of, say, a search warrant which the gardai obtained in good faith and which all parties
concerned assumed to be valid, but which turned out, through a subsequent interpretation of
the law, to be invalid. In those circumstances, a breach of the person’s constitutional rights
had actually occurred, but could it truly be said to be “deliberate and conscious” such that it
had to be excluded.

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In favour of the Kenny it could be said that agents of the State are obliged to be familiar with
the law and to take all necessary steps to ensure that they are acting in compliance with the
law. If a defence of “inadvertence” were allowed to prevail, then it might put a premium on
ignorance, or so it was argued. Therefore, the only safe course of action is to exclude
evidence obtained as a result of conduct which actually amounted to a breach of a person’s
constitutional rights irrespective of whether the police concerned were aware of the illegality
of the conduct when they engaged in it.

The stark question for the Supreme Court in J.C. therefore was which of these interpretations
should be favoured. Essentially, the court, by a majority of four to three, held that Kenny was
wrongly decided in this respect. However, it is important to emphasise that the exclusionary
rule has been retained. There is no question therefore of reverting to a situation where
unconstitutionally obtained evidence may be admitted as a matter of discretion. All the
majority of the Supreme Court did was to carve out a carefully circumscribed “good faith
exception” to the extent of holding that evidence will not have been obtained in deliberate
and conscious breach of a person’s rights where it would not reasonably have been possible
for agents of the state to have known that what was being done was illegal or
unconstitutional.

Six judgments, running to well over 100 pages in all were delivered. However, the judgment
of Clarke J. may be treated as the majority judgment and, in the following passage, he sums
up the exclusionary rule as it is henceforth to apply.

“7. The Test

7.1 For the reasons which I have sought to analyse in section 5 of this judgment, it
seems to me that the elements of the test to be applied to the question of exclusion of
evidence taken in circumstances of illegality or unconstitutionality are those identified
in that section of the judgment.

7.2 In summary, the elements of the test are as follows:-

(i) The onus rests on the prosecution to establish the admissibility of all
evidence. The test which follows is concerned with objections to the
admissibility of evidence where the objection relates solely to the
circumstances in which the evidence was gathered and does not concern the
integrity or probative value of the evidence concerned.

(ii) Where objection is taken to the admissibility of evidence on the grounds

that it was taken in circumstances of unconstitutionality, the onus remains on
the prosecution to establish either:-

(a) that the evidence was not gathered in circumstances of

unconstitutionality; or

(b) that, if it was, it remains appropriate for the Court to nonetheless

admit the evidence.

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 The onus in seeking to justify the admission of evidence taken in
unconstitutional circumstances places on the prosecution an obligation to
explain the basis on which it is said that the evidence should, nonetheless, be
admitted AND ALSO to establish any facts necessary to justify such a basis.

(iii) Any facts relied on by the prosecution to establish any of the matters
referred to at (ii) must be established beyond reasonable doubt.

(iv) Where evidence is taken in deliberate and conscious violation of

constitutional rights then the evidence should be excluded save in those
exceptional circumstances considered in the existing jurisprudence. In this
context deliberate and conscious refers to knowledge of the unconstitutionality
of the taking of the relevant evidence rather than applying to the acts
concerned. The assessment as to whether evidence was taken in deliberate and
conscious violation of constitutional rights requires an analysis of the conduct
or state of mind not only of the individual who actually gathered the evidence
concerned but also any other senior official or officials within the
investigating or enforcement authority concerned who is involved either in
that decision or in decisions of that type generally or in putting in place
policies concerning evidence gathering of the type concerned.

(v) Where evidence is taken in circumstances of unconstitutionality but where

the prosecution establishes that same was not conscious and deliberate in the
sense previously appearing, then a presumption against the admission of the
relevant evidence arises. Such evidence should be admitted where the
prosecution establishes that the evidence was obtained in circumstances
where any breach of rights was due to inadvertence or derives from
subsequent legal developments.

(vi) Evidence which is obtained or gathered in circumstances where same

could not have been constitutionally obtained or gathered should not be
admitted even if those involved in the relevant evidence gathering were
unaware due to inadvertence of the absence of authority.

7.3 In my view, the application of that test should also be informed by the matters
identified in sections 4 and 5 of this judgment. It is next necessary to consider the
application of that test to the facts of this case.”

Essentially, the J.C. principles are:

(a) If the defence claims that evidence has been unconstitutionally obtained,
the prosecution bears the burden of proving beyond a reasonable doubt
that either (1) the evidence was not in fact unconstitutionally obtained, or
(2) that if it was, it remains nonetheless appropriate for the court to admit
it.

(b) Evidence should not be admitted if it was obtained in deliberate and

conscious breach of a person’s constitutional rights, but “deliberate and

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 conscious” means being aware of the unconstitutionality of the action
taken. This reversed what was held in Kenny.

(c) Where evidence was gathered in circumstances which did not involve a
deliberate and conscious breach (as that term is now to be understood),
there remains a presumption against its admission, But, of course, a
presumption may be rebutted by the prosecution. Such evidence should be
admitted where it is established that the breach of constitutional rights was
due to inadvertence or because of subsequent legal developments.

There are doubtless questions still to be answered about the precise scope of the rule as it has
been recast in J.C. In the next class, we will look at some recent cases where it has been
applied.

The need for a causal link

An accused person cannot succeed in having evidence excluded (under whatever version of
the exclusionary rule applies) unless he or she can show that there is a causal connection
between the two. In other words, the evidence must have been obtained as a result of the
breach of a constitutional right. It could well happen that, at one or more points in the course
of an investigation, a person’s rights were breached. But the important question will always
be whether some particular item of evidence was obtained as a direct result of a breach of a
constitutional right. This was made clear in cases such as People (DPP) v Healy [1990] 2 I.R.
73 (which we will deal with later in another context, Walsh v O Buachalla [1991] 1 I.R. 56
and People (DPP) v O’Donnell [1995] 3 I.R. 551.

Possible alternatives to the exclusionary rule

Over the years in Ireland and elsewhere, possible alternatives to the exclusionary rule have
been canvassed. It is generally agreed that the constitutional rights of accused persons and
others must be respected, but opinions differ over whether excluding evidence is the best way
or, at any rate, a necessary way of protecting rights. Other options suggested from time to
time include:

Letting the accused person take a civil action against the police for a breach of
constitutional rights;

Disciplining members of the police who behave in a manner which breaches the
constitutional rights of others;

In the event that the accused is convicted, treating the breach of constitutional rights
as a mitigating factor at sentencing.

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However, it is unlikely that any of these would be effective deterrent, in so far as deterrence
is the objective.

Trial within a trial

As already noted in other contexts, whenever a question arises during a criminal trial as to
whether evidence should be excluded or admitted (on whatever ground), that becomes a
question of law to be decided by the judge in the absence of the jury. The jury will there be
sent out (or perhaps sent home) while the matter is being dealt with by the court. The jury
must not know of the material which is in dispute unless, of course, the judge decides to
admit it to them. Even then, the defence are entitled to renew their argument before the jury,
urging them to disregard the evidence in question. However, while the trial within a trial is
proceeding, all the jury can be told, and all the media can report, is that there are certain legal
issues being dealt with by the court. See People (DPP) v Conroy [1986] I.R. 460.

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