Abstract
Irish courts, like those of England and Wales and the United States, originally did not ask how evidence was gathered, only whether it was relevant and material to the issues in criminal cases. However, in 1964, the Irish Supreme Court in the O’Brien case firmly held, in following the U.S. cases of Weeks and Mapp, that evidence gathered as a result of a deliberate and conscious violation of constitutional rights should not be admissible in criminal trials. In 1990 the Irish Supreme Court in the case of Kenny strengthened this rule and rejected the U.S. exception for “good faith” which had been formulated in a 1984 case. These were cases dealing with the right to privacy. The chapter traces this case law up to the present and also discusses the admissibility of evidence gathered during unlawful interrogations. In this area, Irish law, like the modern law of England and Wales, will exclude cases rendered involuntary by police use of force, threats, deception, etc., but, unlike in the U.S. with its Miranda case law, allows comment on and use of the silence of a suspect who does not speak with the police after being arrested. An exception to this, however, is when the suspect was not given access to a lawyer before being interrogated.
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Notes
- 1.
[1965] I.R. 142.
- 2.
See, in particular, Ryan v. A.G. [1965] I.R. 294, McGee v. A.G. [1974] I.R. 284 and Norris v. A.G. [1984] I.R. 36.
- 3.
These provisions have been qualified by various Criminal Justice and Criminal Law Acts such as the Criminal Justice Acts 1984 and 2007, and the Criminal Law Act 1997.
- 4.
See cases such as R v. Sang [1979] 2 All ER 1222 and R v. Rennie [1982] 1 All ER 385.
- 5.
232 U.S. 383 (1914).
- 6.
367 U.S. 643 (1961).
- 7.
Protected under Art. 40.5 Const.
- 8.
[1965] I.R.142 at p.170.
- 9.
Ibid.
- 10.
Ibid.
- 11.
Ibid.
- 12.
Ibid, 161.
- 13.
Ibid, 162.
- 14.
While there is some controversy as to the true ratio decidendi of the O’Brien case and as to which judgment delivered by the members of the Supreme Court ought to be regarded as the majority judgment, McGrath suggests that the matter is one of academic interest only at this juncture as the judgment of Walsh J. has generally come to be regarded as containing the ratio of the case: McGrath (2005, para. 7.07 fn.23). Although it is fair to say that this controversy has been concretized in more recent courts’ decisions, including D.P.P. (Walsh) v. Cash [2007] IEHC 108; [2010] 1 I.R. 609, by renewed and varied judicial interpretations as to its true meaning.
- 15.
[1977] I.R. 336.
- 16.
Under Art. 40.4.1 Const.
- 17.
[1977] I.R. 336, 347
- 18.
[1982] I.R. 1.
- 19.
Ibid, 31–32.
- 20.
Ibid, 33.
- 21.
Ibid, 54–56.
- 22.
See cases such as People v. Lynch [1982] I.R. 64, People (D.P.P.) v. Lawless (unreported, Court of Criminal Appeal, November 28, 1985) and People (D.P.P.) v. McMahon, McMeel and Wright [1987] I.L.R.M. 87.
- 23.
[1990] 2 I.R. 110; [1990] I.L.R.M. 569.
- 24.
468 U.S. 897 (1983). For a detailed discussion of Leon, see Cammack, Ch. 1, pp. 19–20.
- 25.
[2007] IEHC 108, at para. 23.
- 26.
[1990] 2 I.R. 110, 134; [1990] I.L.R.M. 569, 579 quoting Art. 40.3.1 Const.
- 27.
Ibid.
- 28.
[1998] 4 I.R. 50.
- 29.
Ibid, 59. It is questionable whether the learned judge is correct in asserting that the jurisprudence in this area is still evolving and seems arguable that such evolution was stopped in its tracks in Kenny or perhaps even in Shaw.
- 30.
[2005] 1 I.R. 209.
- 31.
There were also similarities with Freeman v. D.P.P. [1996] 3 I.R. 565 although that case was resolved by the application of the O’Brien rule.
- 32.
[2008] IECCA 53; unreported, Court of Criminal Appeal, April 21, 2008.
- 33.
[2009] IEHC 39; unreported, High Court, January 28, 2009, in which Edwards J, while applying the strict rule from Kenny, expressly endorsed Charleton J’s criticism thereof in the High Court in D.P.P. (Walsh) v. Cash [2007] IEHC 108. See also the Supreme Court judgment in D.P.P. (Lavelle) v. McCrea [2010] IESC 60.
- 34.
[2007] IEHC 108; [2010] 1 I.R. 609.
- 35.
Charleton (1980, 175).
- 36.
Ibid, 173.
- 37.
Ibid, 177.
- 38.
[2007] IEHC 108, para. 1.
- 39.
Ibid, para. 29.
- 40.
Ibid, para. 65.
- 41.
Ibid para. 66.
- 42.
Ibid para. 68.
- 43.
[2010] 1 I.R. 609, 626, per Fennelly J., quoting [2007] IEHC 108 at para. 12, per Charleton J.
- 44.
Ibid, 634, per Fennelly J.
- 45.
232 U.S. 383 (1914).
- 46.
[1990] 2 I.R. 110; [1990] I.L.R.M. 569.
- 47.
People (D.P.P.) v. Kenny [1990] 2 I.R. 110; [1990] I.L.R.M. 569., D.P.P. v. Fagan [1994] I.R. 555 or McCreesh [1992] 2 I.R. 239.
- 48.
468 U.S. 897 (1983).
- 49.
The right to privacy has been recognized as a constitutionally protected right (within Art. 40.3.1 Const.) in a number of cases including: McGee v. A.G. [1974] IR 284; Norris v. A.G. [1984] IR 36; Kennedy v. Ireland [1987] IR 587.
- 50.
Expressly protected under Art. 40.4.1 Const. and under Art. 5 ECHR.
- 51.
Interestingly, Hardiman J gave a sensible judgment in the Supreme Court in Cash, lamenting the lack of evidence in relation to unconstitutionality in the retention of the first set of fingerprints and accordingly holding that the matter would have to be remitted to the District Court and none of the questions which appeared to be raised could be answered.
- 52.
- 53.
Balance in the Criminal Law Review Group (2007, 166). Part, though not all, of the reasoning of the Group was based on improvements in garda accountability outside of the courts which might supersede any argument that the current rule is necessary to insist on garda compliance with legal requirements. An argument similar to this was made by the US Supreme Court in Hudson v. Michigan, 547 US 586 (2006), to admit evidence obtained in breach of the knock-and-announce requirements of the Fourth Amendment. As the US rule generally proceeds on a deterrence rationale, however, this argument may be more relevant in that jurisdiction than in Ireland.
- 54.
Balance in the Criminal Law Review Group (2007, 161–166).
- 55.
A similar argument was made by the US Supreme Court in rejecting a challenge to the Miranda rule in Dickerson v. United States, 530 U.S. 428 (2000). See Cammack, Ch. 1, pp. 27–28.
- 56.
Balance in the Criminal Law Review Group (2007, 287–288).
- 57.
Section 7(3) of the Criminal Justice Act, 1984 provides that a breach of the Custody Regulations 1987 does not provide grounds for an action, either civil or criminal, against a member of the Garda Síochána or of itself affect the lawfulness of a suspect’s detention or the admissibility of any statement made by him.
- 58.
People (D.P.P.) v. Finnegan, unreported, Court of Criminal Appeal, July 15, 1997.
- 59.
Balance in the Criminal Law Review Group (2007, 289). This issue is discussed further below in the context of the law on private dwellings and other premises and on confession evidence.
- 60.
Per Walsh J. in People (A.G.) v. O’Brien [1965] 1 I.R. 142 at p.170.
- 61.
McGrath has suggested that the courts wish to avoid undermining the exclusionary rule in relation to unconstitutionally obtained evidence and will therefore adopt a restrictive approach to extending the list put forward by Walsh J.: McGrath (2005, para. 7.46).
- 62.
Unreported, Court of Criminal Appeal, 28th November, 1985.
- 63.
The concept of extraordinary excusing circumstances has also been referred to in other cases such as People (D.P.P.) v. Shaw [1982] I.R. 1 and D.P.P. v. Michael Delaney [1997] 3 I.R. 453.
- 64.
A specific right to marital privacy was first recognised in McGee v. A.G. [1974] I.R. 284. A broader right to privacy was then recognized in Norris v. A.G. [1984] I.R. 36, in the context of a claim for the decriminalization of homosexual activity.
- 65.
[1987] I.R. 587.
- 66.
Purportedly under the authority of Section 56 of the Post Office Act 1908.
- 67.
Section 1 Criminal Justice (Surveillance) Act 2009.
- 68.
An arrestable offense is any offense which is potentially punishable by at least 5 years imprisonment: Criminal Law Act 1997, Section 2 (1), as amended by the Criminal Justice Act 2006, Section 8.
- 69.
Sections 4, 5 Criminal Justice (Surveillance) Act 2009.
- 70.
Section 7 Criminal Justice (Surveillance) Act 2009.
- 71.
Section 8 Criminal Justice (Surveillance) Act 2009.
- 72.
Section 14 Criminal Justice (Surveillance) Act 2009.
- 73.
Ibid.
- 74.
[1994] 1 I.R. 555. See also D.P.P. v. Rooney [1992] 2 I.R. 7, where the High Court examined the police power under Section 29 of the Dublin Police Act 1842 to stop, search and detain any person who may be reasonably suspected of having or conveying in any manner any thing stolen or unlawfully obtained.
- 75.
Ibid, 563.
- 76.
[1994] 3 I.R. 265.
- 77.
[1986] R.T.R. 41.
- 78.
Zander (1999, 164).
- 79.
[1994] 3 I.R. 265 at p. 286.
- 80.
[1987] I.L.R.M. 87.
- 81.
Notably, in D.P.P. v. Lynch [2010] 1 I.R. 543 it was held that a squatter/trespasser in a flat could claim a breach of constitutional rights when that flat was searched under the purported authority of what was in fact an invalid search warrant. Considering whether or not the applicant in this case could claim the protection of the constitutional right to the inviolability of the dwelling under Art. 40.5 Const., the Court of Criminal Appeal looked at the Irish-language version of the constitutional text, which refers to the English term “dwelling” as “ionad cónaithe” (living place). The Court held that the Irish version reinforced the view that it was a question of fact in each individual case as to whether a particular premises was someone’s dwelling.
- 82.
[1994] 2 I.R. 542.
- 83.
See also Freeman v. D.P.P. [1996] 3 I.R. 565.
- 84.
Per Herbert J. in D.P.P. v. O’Sullivan [2007] IEHC 248; unreported, High Court, Herbert J., 31 July, 2007 examining the earlier case of D.P.P. (Riordan) v. Molloy [2004] 3 I.R. 321. This alters the position established in cases such as D.P.P. v. McCreesh [1992] 2 I.R. 239 wherein an unlawful arrest was held to have occurred due to the fact that the gardaí arrested the accused on the driveway of his home. In McCreesh this was held to amount to a violation of Art. 40.5 Const. and the evidence against the accused was therefore excluded from evidence under the strict exclusionary rule in relation to unconstitutionally obtained evidence.
- 85.
In D.P.P. v. O’Sullivan [2007] IEHC 248; unreported, High Court, Herbert J., 31 July, 2007 Herbert J. declared himself bound by the earlier Supreme Court decision of D.P.P. (Riordan) v. Molloy [2004] 3 I.R. 321 but declared that he thought the rule to be “an affront to commonsense.”
- 86.
[1996] 1 I.R. 580, [1997] 1 I.L.R.M. 117, (2001) 33 E.H.R.R. 12, 264.
- 87.
In regard to the scheduling of offenses, Sections 35, 36 Offences Against the State Act 1939, provide that where “the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to offenses of any particular class or kind or under any particular enactment, the Government may by order declare that offenses of that particular class or kind or under that particular enactment shall be scheduled offenses”.
- 88.
Art. 46.1.1 Const. provides: “The State guarantees liberty for the exercise of the following rights, subject to public order and morality: – The right of the citizens to express freely their convictions and opinions…”
- 89.
(2001) 33 E.H.R.R. 334.
- 90.
Heaney and McGuiness v. Ireland (2001, 33 E.H.R.R. 12, 264, 278, § 40). See also Saunders v. United Kingdom (1997) 23 E.H.R.R. 313.
- 91.
Committee to Review the Offences Against the State Acts 1939–1998 (1999, para. 8.57).
- 92.
See Quinn v. O’Leary [2004] 3 I.R. 128 where the High Court held that the judgment of the ECtHR in Heaney did not have the effect of requiring the State to repeal or otherwise nullify legislation. This position is somewhat altered now as the European Convention on Human Rights Act 2003 which integrates the ECHR into Irish law at a sub-constitutional level was not in force when the Heaney decision was made.
- 93.
These include Section 30 Offences Against the State Act 1939, Section 2 Offences Against the State (Amendment) Act 1972, Section 107 Road Traffic Act 1961, and Sections 4, 15,16 Criminal Justice Act 1984. Failure or refusal to provide the relevant information under each of these legislative provisions amounts to an offense punishable by imprisonment, fine, or both.
- 94.
[1999] 3 I.R. 145; [1999] 1 I.L.R.M. 321. See also Saunders v. United Kingdom (1996) 23 E.H.R.R. 313.
- 95.
Section 19A of the 1984 Act as inserted by Section 30 of the 2007 Act. Similar provisions existed within the Criminal Justice (Drug Trafficking) Act 1996 (Section 7) and the Offences Against the State (Amendment) Act 1998 (Section 5) but they were confined to offenses specifically provided for under those statutes. Those provisions have now been repealed and replaced by Section 19A.
- 96.
Sections 18, 19, 19A Criminal Justice Act 1984 as inserted by ss 28, 29,30 Criminal Justice Act 2007.
- 97.
[1997] 3 I.R. 484; [1998] 2 I.L.R.M. 35.
- 98.
[1997] 3 I.R. 484, 501; [1998] 2 ILRM 35, 47 per Hamilton C.J.
- 99.
See R v. Betts and Hall [2001] 2 Cr. App. R. 257; R v. Howell [2005] 1 Cr. App. R. 1, [2003] E.W.C.A. Crim. 1; R v. Hoare and Pierce [2005] 1 W.L.R. 1804, [2005] 1 Cr. App. R. 22, [2004] E.W.C.A. Crim. 784; Averill v. United Kingdom (2001) 31 E.H.R.R. 839; Condron v. United Kingdom (2001) 31 E.H.R.R. 1; and Beckles v. United Kingdom (2003) 36 E.H.R.R. 13.
- 100.
133 lawyers objected to the introduction of the Criminal Justice (Amendment) Act 2009 by way of a letter to The Irish Times (“Criminal Justice (Amendment) Bill”, Irish Times, July 8 2009) and the President considered referring the Bill to the Supreme Court under Art. 26 Const. However, following consultation with the Council of State, the President signed the Bill into law on July 23 2009.
- 101.
Mr Collins was related to a man who had given evidence in a “gangland crime” trial 5 years previously.
- 102.
“Criminal organisation” is currently defined under Section 70 Criminal Justice Act 2006 as “a structured group, however organised, that has as its main purpose or activity the commission or facilitation of a serious offence”.
- 103.
Section 72A Criminal Justice Act 2006.
- 104.
Section 72A(7) Criminal Justice Act 2006.
- 105.
(1996) 22 E.H.R.R. 29.
- 106.
[1914] A.C. 599.
- 107.
[1927] I.R. 129; see also McCarrick v. Leavy [1964] I.R. 225.
- 108.
A.G. v. McCabe [1927] I.R. 129, 134 based on Ibrahim v. R [1914] A.C. 599, 609.
- 109.
[1999] 3 I.R. 145; [1999] 1 I.L.R.M. 321. See discussion above.
- 110.
(1965) 50 Cr. App. Rep. 183; [1966] Crim. L.R. 507.
- 111.
(1981) 2 Frewen 43 later affirmed in the Supreme Court in People (D.P.P.) v. Lynch [1982] I.R. 64; [1981] I.L.R.M. 389.
- 112.
(1981) 2 Frewen 57.
- 113.
[1972] 1 All E.R. 1114; [1972] 1 W.L.R. 260; 56 Cr. App. Rep. 151.
- 114.
[1972] 1 W.L.R. 260, 266 per Edmund Davies L.J.
- 115.
(1981) 2 Frewen 57, 82.
- 116.
[1982] I.R. 1.
- 117.
[2001] 3 I.R. 345.
- 118.
See also People (D.P.P.) v. Breen, unreported, Court of Criminal Appeal, March 13, 1995; People (D.P.P.) v. Paul Ward, unreported, Special Criminal Court, November 27, 1998.
- 119.
Recognised in Ryan v A.G. [1965] I.R. 294 as an unenumerated constitutional right.
- 120.
See Murray v. United Kingdom (1996) 22 E.H.R.R. 29 and Averill v. United Kingdom (2001) 31 E.H.R.R. 839.
- 121.
[1990] 2 I.R. 73; [1990] I.L.R.M. 313.
- 122.
[1990] 2 I.R. 73, 81; [1990] I.L.R.M. 313, 320.
- 123.
[1999] 2 I.R. 390.
- 124.
[1999] 2 I.R. 390: see also McGrath (2000, 233–35). See also the ex tempore judgment of Carney J. in the High Court in Barry v. Waldron Unreported, High Court, ex tempore, May 23, 1996.
- 125.
(2008) 49 E.H.R.R. 19, 421.
- 126.
Ibid, 437, § 55. For more on the Salduz line of cases, see line of cases, see Ölçer, Ch. 16, pp. 395–397.
- 127.
It is notable, for example, that while the right to be advised of the right to legal advice exists at the statutory level in Ireland it has not been recognized as having constitutional status.
- 128.
Regulation 11 (6).
- 129.
[1986] I.R. 460.
- 130.
[1986] I.R. 460 at p. 479.
- 131.
Unreported, Court of Criminal Appeal, March 30, 1993.
- 132.
[2002] 2 I.R. 260; [2002] 2 I.L.R.M. 454.
- 133.
Unreported, Court of Criminal Appeal, June 17, 2002; [2005] 2 I.R. 206 (S.C.).
- 134.
For further analysis of this case see Daly (2006).
- 135.
(2008) 49 E.H.R.R. 421. For more on this see Heffernan (2011).
- 136.
Unreported, Court of Criminal Appeal, March 30, 1993; discussed in Butler and Ong (1995).
- 137.
A statutory scheme to provide legal aid to impecunious suspects at the trial stage operates separately, under the Criminal Justice (Legal Aid) Act 1962. The right to legal aid at the trial stage of the criminal process was placed on a constitutional footing in the case of State (Healy) v. Donoghue [1976] I.R. 325.
- 138.
Regulation 4. Audio-visual recording of interviews with suspects detained under Section 50 Criminal Justice Act 2007 does not seem to be specifically provided for in legislation or in the Regulations, though it does seem to be implied in Sections 56 and 57 of the 2007 Act and in Sections 18, 19 and 19A Criminal Justice Act 1984 as substituted by the 2007 Act..
- 139.
Section 27 Criminal Justice Act 1984.
- 140.
For example, People (D.P.P.) v. Holland, unreported, Court of Criminal Appeal, June 15, 1998.
- 141.
[2003] 2 I.R. 1.
- 142.
Unreported, Special Criminal Court, November 26, 2004 – see the Irish Times, “Basic fairness dictates that, where possible, interview of accused on IRA charge should be video-recorded”, Monday 17 January 2005.
- 143.
[2005] 3 I.R. 270.
- 144.
[1977] I.R. 336. See discussion above.
- 145.
[2005] 1 I.R. 209. See discussion above.
- 146.
See State (Quinn) v. Ryan [1965] I.R. 110; Attorney General v Ryan’s Car Hire Ltd [1965] I.R. 642; Mogul of Ireland Ltd v. Tipperary (North Riding) County Council [1976] I.R. 260.
Bibliography
Balance in the Criminal Law Review Group. 2007. Final Report, Dublin: http://www.inis.gov.ie/en/JELR/BalanceRpt.pdf/Files/BalanceRpt.pdf.
Butler, A.S., and D.K. Ong. 1995. Breach of the constitutional right of access to a lawyer and the exclusion of evidence – The causative link. Irish Criminal Law Journal 5(2): 156–172.
Charleton, P. 1980. Improperly obtained evidence and the constitution. Incorporated Law Society of Ireland Gazette 74(8): 169–177.
Committee to Review the Offences Against the State Acts, 1939–1998. 1999. Report, (Hederman Report), Dublin: http://www.inis.gov.ie/en/JELR/hederman%20report.pdf/Files/hederman%20report.pdf.
Daly, Y.M. 2006. Does the buck stop here?: An examination of the pre-trial right to legal advice in light of O’Brien v. D.P.P. Dublin University Law Journal 28: 345–362.
Daly, Y.M. 2011a. Exclusion of evidence: DPP (Walsh) v. Cash. International Journal of Evidence and Proof 15: 62–69.
Daly, Y.M. 2011b. Judicial oversight of policing: Investigations, evidence and the exclusionary rule. Crime, Law, and Societal Change 55: 199–215.
Heffernan, L. 2011. The right to legal advice, reasonable access and the remedy of excluding evidence. Criminal Law and Procedure Review 1: 111–129.
McGrath, D. 2000. Evidence. In Annual review of Irish Law 1999, ed. R. Byrne and W. Binchy, 233–235. Dublin: Thomson Round Hall.
McGrath, D. 2005. Evidence. Dublin: Thomson Round Hall.
Zander, M. 1999. Cases and materials on the English legal system, 8th ed. London: Butterworths.
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Cras, A., Daly, Y.M. (2013). Ireland: A Move to Categorical Exclusion?. In: Thaman, S. (eds) Exclusionary Rules in Comparative Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 20. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5348-8_2
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