Adrian Hardiman (top) and the judges of the Supreme Court, back row, from left: Peter Charleton, Mary Laffoy, Liam McKechnie, John MacMenamin, Frank Clarke and Elizabeth Dunne; and front row, from left: Adrian Hardiman, Nicholas Kearns, Susan Denham,  John Murray and Donal O’Donnell

A landmark Supreme Court decision [Director of Public Prosecutions v JC] delivered yesterday may give Gardai “effective immunity from judicial oversight”.

What on earth is it all about?

We asked Legal Coffee Drinker.

Broadsheet: “Legal Coffee Drinker, what’s it all about?

Legal Coffee Drinker: “It’s an appeal, brought by the Director of Public Prosecutions (the DPP) against the acquittal of a Mr JC (JC) for burglary on the basis that that the crucial evidence against him (his confession) was obtained as a result of a breach of constitutional rights and inadmissible.”

Broadsheet: “That sounds a bit rum.”

LCD: “The Supreme Court took the view that the trial judge had got it wrong in finding JC’s confession inadmissible and that it should have been admitted even though obtained in breach of constitutional rights. This was a big change from the position previously taken by the Supreme Court, which was that evidence obtained as breach of constitutional rights was inadmissible except in extraordinary excusing circumstances. The appeal against JC’s acquittal was allowed. Whether or not he’ll be retried is to be decided later.”

Broadsheet: “How exactly was the confession obtained?”

LCD: {pause] “There’s the thing. The confession was made by JC after he was arrested by the police in a house. The police had gained entry to the house by using a warrant issued under legislation subsequently found unconstitutional. This finding of unconstitutionality had retrospective effect, making the warrant invalid. The argument made at JC’s trial was that, because the initial entry leading to arrest had been as a result of an invalid warrant, everything obtained as a result of that warrant, including the confession, was invalid and should be excluded.”

Broadsheet: “But did they actually need the warrant in the first place? Isn’t there a general common law right to enter a house to arrest or somesuch?”

LCD: [drains coffee] “Yes, there is. And in fact the argument was made that, because of this, the confession wasn’t obtained as a result of an unconstitutionality, because it could have been obtained lawfully under the common law right of entry to arrest. However, it was felt that, because the Gardai had relied on the invalid warrant, rather than the common law right, the entry must be deemed unconstitutional.

Broadsheet: “Not the most glaring case of evidence obtained as a result of a breach of constitutional rights, in all fairness?”

LCD: “Maybe that’s one of the things which encouraged the majority of the Court to depart from previous law. There’s a saying that ‘hard cases make bad law’…”

Broadsheet: “And the ‘bad law’ made in this case?”

LCD: “Well, how ‘bad’ or ‘good’ it is remains to be seen, but it’s certainly an extremely significant change. The old law as laid down in the cases of The People v O’Brien [1965] IR 142 and DPP v Kenny [1990] 2 IR 110 was that evidence obtained as a result of a breach of constitutional rights was inadmissible except in extraordinary excusing circumstances. The majority in O’Brien did refer to this as applying only in relation to ‘deliberate and conscious’ breach, which caused some confusion. Kenny clarified matters by defining ‘deliberate and conscious’ breach very broadly so as to include unconstitutionalities resulting from a result of a deliberate and conscious act irrespective of whether or not the person breaching it had knowledge that the act was unconstitutional.”

Broadsheet: “Ignorance is no defence.”

LCD: “Ignorantia juris non excusat.”

Broadsheet: “Easy for you to say!”

LCD: [tops up cup] “But it seems that under the new law, as laid down by Clarke J in his judgment (O’Donnell J also delivered a majority judgment, overruling the old law, but left the exact definition of the new law to Clarke J), this is no longer the case, and that evidence obtained as a result of an inadvertent breach of constitutional rights will be admissible.
However, proving inadvertence is not going to be as easy as the officer concerned simply saying “I didn’t know”; According to Clarke J, a decision as to inadvertence requires an analysis of the conduct or state of mind not only of the individual who gathered the evidence 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. Also, evidence obtained or gathered in circumstances where it could not have been constitutionally obtained or gathered should not be admissible even where inadvertence is present.”

Broadsheet: “There are more than two judges on the Supreme Court, right? Did they all agree with the views of O’Donnell and Clarke?”

LCD: “No. There was a very impassioned dissenting judgment delivered by Hardiman J. There was also dissenting judgments delivered by Murray J and McKechnie J. However they were outvoted by a majority of four to three (Clarke J, O’Donnell J, McMenamin J and Denham J comprising the majority).
There’s a considerable difference in attitude between the majority and minority regarding the balancing of interests in the criminal process. O’Donnell J began his judgment by referring to the importance of the criminal investigation process, and that the rules of evidence should not be used to frustrate the process of crime prevention. Hardiman J, on the other hand, referred to the concept of the individual’s right to a fair trial, and the risk to the rights of the individual posed if unconstitutionally obtained evidence was admitted. Although both the majority and the minority came up with manifold reasons for their various conclusions, it appears that this basic difference in attitude coloured their approach to the law they were interpreting.”

Broadsheet: “What ramifications will the JC decision have?”

LCD: “Well, in one sense it shouldn’t lead to a different approach to crime investigation, since it only covers inadvertent breaches. A lot will depend however on how ‘inadvertence’ is interpreted in practice by trial judges. If a lax approach to this term is taken, then there will be a lax approach to possible breaches of constitutional rights in the investigatory process. In addition, the decision is likely to result in more attempts by the prosecution, in criminal trials, to get in evidence which would otherwise have been excluded.”

Broadsheet: “Anything else?”

LCD: “Yes. Two things. Firstly, it’s interesting that this decision was given just over a year after disclosure of possible bugging of conversations in garda stations. In a previous post questions were raised about the extent to which this could affect criminal convictions, by reason of making the detainee’s custody unlawful and any confession subsequently made by him inadmissible under the principles in O’Brien and Kenny. Because of the JC decision, it seems that this has become significantly less of a risk.”
The other interesting thing about the JC case is that its ramifications extend well beyond the criminal process. The majority approach, on its face, represents a backtracking from the view, previously endorsed by the Supreme Court, that the rights of the individual are paramount. Will it represent a more conservative approach to individual rights generally? We shall have to wait and see.”

Broadsheet: “Thank you Legal Coffee Drinker. That calls for a frappé.

LCD: “Excuse me?

Broadsheet: “We have some free vouchers. It’s a cold coffee with foam and interesting flav… ”

LCD: *click*

Supreme Court judge criticises ruling on evidence in trials (Ruadhán Mac Cormaic, Irish Times)

Previously: LCD Answers Your Garda Bugging Questions

(Sasko Lazarov/Photocall Ireland)