Exclusion of evidence: DPP (Walsh) v Cash

In the arena of improperly obtained evidence the Irish courts have, for some time, operated one of the strictest, if not the strictest, exclusionary rules in the common law world where evidence is obtained in breach of constitutional rights. Through an interesting and intricate series of cases beginning in the mid-1960s with People (AG) v O’Brien [1965] IR 142 on to People (DPP) v Kenny [1990] 2 IR 110, and beyond, the legal basis for exclusion was established, considered and reconsidered. This case-note discusses the High Court and Supreme Court decisions in the latest in the line of such cases, DPP (Walsh) v Cash [2007] IEHC 108 (28 March 2007), [2010] IESC 1 (18 January 2010) and considers its impact on suspect rights and policing in the Irish pre-trial process

Unconstitutionally obtained evidence in Ireland: protectionism, deterrence and the winds of change

Introduction: The law on the admissibility of improperly obtained evidence in Ireland was first authoritatively considered and decided upon by the Supreme Court in the mid-1960s.While later courts have revisited, and to some extent refined, the law in this area, the original formulation of the so-called exclusionary rule largely remains in place today. The law on improperly obtained evidence in Ireland is thus well established, however, it is not without its detractors, and recent times have seen both criticism of the exclusionary rule from the bench, and calls for change from an independent advisory group set up by the Department of Justice.This group, the Balance in the Criminal Law Review Group ('the Group'), recommended that the stringent Irish rule in relation to the exclusion of unconstitutionally obtained evidence, specifically, ought to be replaced by a rule which allows discretion to the trial judge to admit or exclude such evidence based on the totality of the circumstances, with particular regard to the rights of the victim. While the Group put forward a number of interesting arguments for change, the main focus of this article is the claim that 'radical changes in the nature of policing in recent years' have superseded 'any contention that the [current] rule is necessary to ensure that the police comply with the relevant legal requirements'. It is submitted within this article that any suggestion that there might be a necessity or opportunity for change in the law on the exclusion of unconstitutionally obtained evidence in Ireland on the basis of recent innovations and advances in garda accountability and discipline involves a misperception of the reasoning behind the law on exclusion as formulated by the Irish courts. This article outlines the development and application of the exclusionary rule in Ireland and, importantly, clarifies the rationale for the specific rule in relation to unconstitutionally obtained evidence. The article then looks to developments in the United States where a change to the exclusionary rule has recently come about and finally concludes on the question of altering the Irish rule due to recent improvements in garda accountability and discipline

From legal advice to legal assistance: recognising the changing role of the solicitor in the Garda station

The primary aim of this article is to encourage reflection by those working in the criminal justice sector on how recent developments, in Europe and Ireland, have brought significant changes for the work and role of criminal defence solicitors. These changes require specific skills and training and thus we provide an account of the ‘SUPRALAT’ training being rolled out in Ireland. But these changes also need to be accounted for in police, prosecutorial and judicial decision-making and we hope this article contributes to a wider and much-needed discourse on the role of the police interview in the criminal justice process

Detained suspects, prepared statements and the right to silence: DPP v M [2018] IESC 21

The right to silence, or privilege against self-incrimination, which is protected by the common law, the Constitution, and the European Convention on Human Rights, requires that a jury in a criminal case should not usually be told about any failure or refusal of a detained suspect to answer garda questions or provide information to gardaí at the time of questioning. Exceptions to this general rule exist, in the form of specific statutory provisions which allow for the jury to be told about, and invited to draw inferences from, specific failures of the detainee. Outside of the circumstances delineated by statute, however, no inferences are to be drawn from an accused’s exercise of his right to silence. Indeed, no attention should generally be drawn at trial to the pre-trial exercise of the right, unless covered by the statutory inference-drawing provisions. The very practical question which arose for consideration before the Supreme Court in the 2018 case of DPP v M was whether a detained suspect who gave a prepared statement to gardaí was exercising his right to silence when he responded to subsequent garda questions by referring to the statement given and stating that he had nothing further to say, or, whether such responses should be viewed as relevant and probative evidence at trial. In this paper I outline the factual circumstances which gave rise to the case, the relevant principles and precedents which were engaged, the decisions at trial and in the Court of Appeal, along with the ultimate Supreme Court ruling. I provide some comparative context, looking specifically at the case of R v Knight from the English Court of Appeal, and I highlight some emerging patterns and practical realities of the modern criminal process. I conclude by looking to the future and to related areas of the criminal process which would benefit from clearer regulation

Judicial oversight of policing: Investigations, evidence and the exclusionary rule

Police procedures and practices in the investigation of crime are shaped by many things. One particularly important constituent part of the development of investigative procedures and practices is the approach of the courts to the admissibility at trial of evidence obtained in a certain manner. While a judge can only address the specifics of whatever cases are brought before him, the judiciary as a whole have a significant role to play in terms of police accountability and governance through their development and application of any exclusionary rules of criminal evidence. This article examines the judicial oversight of policing by way of the exclusion of improperly obtained evidence at trial. Its central focus is on the development and operation of the exclusionary rule in Ireland, though relevant law in other jurisdictions, including England and Wales, the United States, Canada and New Zealand, is also considered. Particular attention is paid to the recent Irish Supreme Court decision of DPP v Cash, and its ramifications for judicial oversight of policing

Commentary on the report of the tribunal of inquiry into ‘The Kerry Babies Case’

This Commentary accompanies the "feminist judgment" on the so-called "Kerry Babies case" in "Northern/Irish Feminist Judgments: Judges' Troubles and the Gendered Politics of Identity" (Hart, 2017). The Commentary sets out briefly the social and factual context of the case and considers the feminist features of the related "judgment" by Dr Vicky Conway. It also examines the public outpouring of support for the woman at the centre of the case, Joanne Hayes, and her experience before the Tribunal of Inquiry, placing this in the context of female credibility in courtroom proceedings

Overruling the protectionist exclusionary rule: DPP v JC

In April 2015 the Irish Supreme Court held, in DPP v JC [2015] IESC 31, that the rather strict exclusionary rule relating to unconstitutionally obtained evidence which had operated in that jurisdiction for the past twenty-five years should no longer be applied. A majority of the Court held that the seminal case in which the rule was set out (People (DPP) v Kenny [1990] 2 IR 110) was erroneously decided and, accordingly, overruled that precedent and reformulated the relevant rule. While the previous rule had operated on a rationale of protectionism, the newly-stated rule is based on principles of deterrence such that evidence will not be excluded where the relevant breach of constitutional rights is inadvertent. This is a major change of approach for the Irish criminal justice system and this case note explores the background to the change, the judgments of the Supreme Court, and the potential impact of what Hardiman J (dissenting) referred to as this “revolution in principle” ([2015] IESC 31 per Hardiman J. at [134])

“A Revolution in Principle”? The Impact of the New Exclusionary Rule

The 2015 Irish Supreme Court case of DPP v JC has been described as ‘the most astounding judgment ever delivered by an Irish court.’ Reflecting primarily on the passionate dissent of Hardiman J in the case, Fennelly says that ‘DPP v JC has everything: law, literature, history, polemic and vast learning but also emotion, horror, anger, even shame.’ In JC, a 4:3 majority of the Court removed and replaced the exclusionary rule in relation to improperly obtained evidence which had been in operation in this jurisdiction for 25 years. The old rule, set out in People (DPP) v Kenny, was viewed by the majority as operating in an overly strict manner, excluding evidence obtained in breach of constitutional rights even where such breach was inadvertent, in the sense that the person whose actions constituted the breach did not realise, or in some cases could not possibly have realised, that a breach would result. The new rule ensures that evidence obtained in inadvertent breach of constitutional (or other) rights may be admitted at trial. It further provides that where any apparent unconstitutionality arises as a result of subsequent legal developments (e.g. a judicial finding that a statutory garda power is unconstitutional), the evidence obtained may yet be admitted