398/2012

IpsofactoJ.com: International Cases [2015] Part 4 Case 7 [SCIre]


SUPREME COURT OF IRELAND

Coram

Director of Public Prosecutions

- vs -

J.C.

Denham CJ

Murray J

Hardiman J

O’Donnell J

McKechnie J

Clarke J

MacMenamin J

15 APRIL 2015


Judgment

O’Donnell J

  1. Ralph Waldo Emerson in his essay, “Compensation” (Essays: First Series; 1841), observed that eventually every secret is told, every crime punished, every virtue rewarded, and every wrong redressed:

    Commit a crime, and the earth is made of glass. Commit a crime, and it seems as if a coat of snow fell on the ground, such as reveals in the woods the track of every partridge and fox and squirrel and mole. You cannot recall the spoken word, you cannot wipe out the foot-track, you cannot draw up the ladder, so as to leave no inlet or clue.

  2. This may be the comforting classic template to which the detective story must conform, or at least refer, but it does not describe a modern criminal trial. In the criminal trial in this and other jurisdictions, an important part of the focus is increasingly on the exclusion of parts of the story, recalling the spoken word and wiping out the foot track. There are good reasons for this but, the function of any trial, civil or criminal, is to determine contested matters to a requisite standard of proof. In simple terms it is to determine, as far as humanly possible, whether on the balance of probabilities or beyond reasonable doubt, what did or did not happen. As a matter of both logic and pragmatism, the more information available about the event, the more likely it will be that an accurate determination can be made.

  3. Traditional rules of evidence did lead to the exclusion of some material, that after all is part of the function of the law of evidence. It determines what material, may and may not be presented in court. But that exclusion of evidence was based on views derived from experience, however contested and contestable, as to the reliability of the evidence and its capacity to assist in the determination of the controversy by dispassionate analysis of all available material, which was the hallmark of a fair trial. Increasingly in the latter part of the 20th century, in particular, courts in this and other jurisdictions have had to address the question as to the circumstances, if any, in which evidence, itself reliable, cogent and perhaps compelling, should nevertheless be excluded from consideration by a trial court, not because of what that evidence proves or does not prove, but rather because of how it has been obtained. This shift also involves a subtle change of focus away from an inquiry as to what it is alleged the accused did or did not do, to how the authorities behaved in investigating the alleged offence. There are good reasons for this modern focus on how evidence is gathered as well as on what it shows, but it is necessary to recognise that it raises different issues, and involves different value judgments to those which arise when the focus is merely on the question of reliability.

  4. It should be recognised at the outset that the exclusion of evidence of undoubted cogency extracts a significant price in terms of the capacity of the court to perform its primary function, and accordingly in terms of confidence in, and respect for, the legal system. Such a course must always be justified by considerations sufficient to pay that price. It is unavoidable that persons of experience and goodwill may differ as to the precise point at which the balance should tip, and experience may lead people to change their views. But it is essential, at least in my view, that courts do not seek to resolve this difficult issue as a contest between slogans, or by creating and then rejecting exaggerated and unrealistic arguments. It is important to identify the issues carefully, to seek to narrow, as far as possible, the area for disagreement and finally, where differences are unavoidable, to make plain the reasoning leading to the particular conclusion.

  5. In general it may be said that the area of illegally, including unconstitutionally, obtained evidence arises most naturally either where evidence is sought to be introduced consequent upon the arrest or detention of an individual, or, as here, consequent on the search of premises authorised by warrant or other authority. While these areas are closely related, and indeed the present case is something of a hybrid case in that the evidence sought to be excluded was obtained consequent on an arrest itself considered invalid as a result of being carried out on premises to which entry was obtained by the gardaí on foot of an invalid warrant, it is in my view undesirable to treat them as completely interchangeable. Accordingly, I consider it appropriate to deal only with the area of search warrants and while recognising that the principles established here are applicable to questions of evidence consequent upon arrest or detention, I would nevertheless prefer to withhold definitive determination of that issue until an appropriate case reaches this Court which would permit the Court to consider the argument in a precise factual context, and moreover, perhaps also with the benefit of experience developed in the light of this decision. There is much wisdom in the observation of Kingsmill Moore J. in The People (Attorney General) v O’Brien [1965] I.R. 142 (“O’Brien”) at p. 161, when he cautioned that:

    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.

  6. When in O’Brien garda officers sought and obtained access to 118 Captain’s Road, Crumlin, Dublin to search for stolen property, pursuant to a search warrant issued under s.54 of the Dublin Police Act 1842, but which described the premises as “118 Cashel Road, Crumlin”, they can hardly have anticipated the long running legal debate which would ensue. Nevertheless it has been suggested that the law on unconstitutionally obtained evidence is a matter of more academic dispute than practical significance, and at the hearing of this appeal, it was questioned whether the decision in The People (Director of Public Prosecutions) v Kenny [1990] 2 I.R. 110 (“Kenny”) had, in fact, any real impact. I accept that impressions may vary, but I have little doubt that the issue raised in this case is of real practical importance. It is useful, for the purposes of this case, to focus on real examples, not only to illustrate the recurrence of the legal issue, but also to place in a factual context the issue that is to be determined in this case:

    • A warrant was sought for 118 Captain’s Road. Inadvertently the warrant was issued in respect of 118 Cashel Road and existing premises. The error was not that of the gardaí. The warrant was executed and evidence obtained, as a result of which the occupiers of the premises were convicted.

    • Members of the gardaí sought and obtained a search warrant from a Peace Commissioner pursuant to s.26 of the Misuse of Drugs Act 1977 which permits the issuance of such warrants if a Peace Commissioner is satisfied based on the information on oath from a member of the gardaí that there is reasonable ground for suspecting that a person is in possession, on any premises, of a controlled drug. The warrant which was the then standard form recorded that the Peace Commissioner “being satisfied on the information on oath of Garda ....” issued the warrant. The warrant was executed and drugs found. Between the date of the search and the trial of the accused, the Supreme Court decided, in Byrne v Grey [1988] I.R. 31, that it must be demonstrated that the Peace Commissioner had inquired into the basis of the suspicion and thus exercised his judicial discretion to grant or withhold a warrant.

    • Gardaí entered on the premises then being searched pursuant to a search warrant issued by a senior garda officer pursuant to s.29 of the Offences Against the State Act 1939. Section 6 of the Criminal Law Act 1997, in addition, permits a garda, for the purpose of arresting a person, to enter premises and search those premises without warrant. The search found items connected to a robbery, the accused was arrested and made admissions. Between the search and the trial, the Supreme Court holds in separate and unconnected proceedings that s. 29 of the Offences Against the State Act 1939 is unconstitutional. It is argued that the evidence obtained should be excluded.

    • A warrant is issued on the afternoon of, for example, the 20th of April. Under the relevant legislation it is to be executed within seven days. It is executed on the morning of the 27th of April and evidence found. A court holds that the entirety of the day of issuance (including the portion prior to the issuance of the warrant) to is to be included in the seven day period, and accordingly that the warrant expired on the 26th of April. It is argued that the evidence must be excluded.

    • Under the same legislation a warrant is issued on, for example, the 26th of June, and is executed within seven days and evidence obtained. The accused is arrested at the scene and admissions made. However, the warrant is misdated on its face and contains a date of the 26th of May. The search is not carried out within seven days from the date on the warrant, albeit the search is carried out within seven days of the actual date of issuance. The warrant is held to be invalid. It is argued that the evidence obtained during the search must be excluded. If the warrant is invalid, the gardaí were consequently, technically, trespassers and the arrest was wrongful and, it is argued, the admissions should also be excluded.

    • A woman is attacked and raped in a public area. Evidence is obtained at the scene. A suspect is identified from CCTV footage. A garda sergeant immediately seeks and obtains a search warrant for the premises under s.10(1) of the Criminal Justice (Miscellaneous Provisions) Act 1997, as substituted by s.6(1)(a) of the Criminal Justice Act 2006. Evidence is obtained which on forensic analysis, links the accused to the crime. The warrant which was issued and executed follows the wording of the Criminal Justice (Miscellaneous Provisions) Act 1997 in recording that the District Justice was satisfied as a result of “hearing evidence on oath” rather than the words of the Criminal Justice Act 2006 providing for the issuance of the warrant upon “information on oath”. It is argued that the warrant is invalid. It is accepted that if invalidated on this basis, the evidence must be excluded.

    • A garda based in a Dublin garda station obtains evidence of drugs being supplied from a premises in an adjacent county. He attends before the District Justice for that area who has jurisdiction to and who issues a warrant for the premises. Erroneously, the form of the warrant bears the heading “Dublin Metropolitan District” and authorises a search of the named premises in the adjacent county described however as “within the said District” i.e. the Dublin Metropolitan District. Once again it is argued the warrant is invalid and the evidence must be excluded

    The decision in Damache v The Director of Public Prosecutions [2012] 2 I.R. 266 (“Damache”) which gave rise to the exclusion of the evidence in this case, has figured in a number of cases at appellate level where appellants have sought, some successfully, to obtain the benefit of that case which had been decided after their trials but before their appeals were heard : see The Director of Public Prosecutions v Patchell [2014] IECCA 6, The Director of Public Prosecutions v O’Connor [2014] IECCA 4, The Director of Public Prosecutions v Cunningham [2012] IECCA 64, The Director of Public Prosecutions v Bolger [2013] IECCA 6, The Director of Public Prosecutions v Hughes [2012] IECCA 69, The Director of Public Prosecutions v Timmons [2013] IECCA 86 and The Director of Public Prosecutions v Kavanagh [2012] IECCA 65. Furthermore, in two recent cases which have come before this Court, one of the incidental features has been that evidence was excluded consequent under the decision in Damache, applying the decision in Kenny and without that issue being the subject of any argument or appeal: see The Director of Public Prosecutions v Connolly [2014] IESC 28 and Byrne and Byrne v The Director of Public Prosecutions. I consider that it is probable that evidence is routinely excluded under Kenny in this way without becoming the subject of reported decisions.

  7. The examples outlined above are drawn from decided cases. They do not purport to be a comprehensive catalogue of recent cases in which Kenny has arisen and it is possible, without much effort, to imagine other cases. Some of the cases from other jurisdictions suggest other examples. In all but one of the cases set out above which followed O’Brien, the evidence obtained was excluded. This random survey of decided cases shows in my view, that this is an issue of real importance. When one considers that almost all decisions of exclusion of evidence occur at trial level, and that until relatively recently it was not possible to appeal from an order excluding evidence, then it seems probable that the impact of the Kenny decision at trial level has been considerable. It could hardly be otherwise. Cases in which possession is an ingredient of the offence, whether it be of drugs or child pornography, firearms or explosives, will regularly and necessarily be dependent on evidence obtained after a search. Kenny offers the opportunity to seek to have that evidence automatically excluded. It would indeed be surprising therefore if the point was not regularly deployed in criminal trials in the State. Furthermore, this case has involved a survey of the law of a number of jurisdictions where a similar question has arisen. The matter has been hotly debated both in judicial decisions and in extensive academic commentary. I think it unlikely that such debates and commentary would be generated if the matter was of no real or practical importance, and equally unlikely that Ireland would have a lower incidence of errors in the issuance or execution of search warrants than other comparable common law countries with similar systems.

  8. Again, it has been argued that the absence of a proper evidence based assessment of the rule in Kenny should somehow preclude this Court from addressing the issue in this appeal. I do not understand how such evidence could have been adduced or to what end, since it could not be said to be relevant to any of the issues at the trial, or the limited issues contemplated as establishing jurisdiction for this statutory appeal. One of the distinctions between a legislature making laws, and a court making decisions, is that the legislature specifically makes laws of general application for a wide range of circumstances, whereas a court makes a decision in an individual case, albeit which on occasions will have wider implications for similar cases. That incidental law making function is indeed a reason why a court should be cautious about making sweeping generalisations which extend beyond the particular issues of the individual case. But the core function of a court is to decide the case before it, not make generalisations about other situations. Whatever law a court makes must emerge from the facts and exigencies of the individual case. I also observe in passing that in neither O’Brien nor in Kenny was any evidence based assessment proffered or considered for the rule each of those cases proposed. This in my view, is not surprising. The issue for this Court is after all not whether the exclusionary rule in Kenny is inconvenient at a practical level, but rather whether as a matter of constitutional law it is right. In order to determine that issue it is necessary to consider the specific issue which arises on the facts of this case.

    Facts

  9. The facts in this case are quite simple. The gardaí in Waterford were investigating three robberies which took place at a bookmaker’s premises in Waterford between late April and early May 2011. On the 10th of May 2011 a Detective Garda Burke and a Sergeant Donohue attended at premises where the accused lived. As a result of inquires he already carried out, Detective Garda Burke intended to arrest the accused for the offences. There was no issue but that the Detective Garda had reasonable grounds for arresting the accused, and any such arrest would have been valid if carried out in a public place. The gardaí also had a warrant issued under s.29 of the Offences Against the State Act 1939 (“the 1939 Act”) to search the premises. Again there is no issue but that the warrant was valid on its face and issued in accordance with the requirements of the section and the general law relating to such warrants. The gardaí showed the warrant to the accused’s sister, and they were admitted to the premises without objection. Detective Garda Burke went upstairs, found the accused in bed, told him to get dressed, and then arrested him. Detective Garda Burke considered that he had entered the premises at 10.30 and the arrest recorded 10.40. A search was carried out by other gardaí, and produced nothing of evidential value. While the search was taking place, the accused was taken to Waterford Garda Station. There, having been appropriately cautioned, he made a number of inculpatory statements. Again, the statements were made while detained in the garda station, in accordance with the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 and 2006 (S.I. No 119/1987 and S.I. No 641/2006), and after receiving legal advice. Those statements were such, that at the trial in the Circuit Court, counsel for the accused accepted that “certain admissions in the last three interviews could reasonably lead to the conviction of J.C., for the offence for which he is charged”.

  10. Three days after the search and the arrest of Mr C., the High Court gave judgment in a constitutional challenge to the provisions of s.29 of the 1939 Act and the claim was rejected. However, on appeal to this Court, it was held that the section was unconstitutional (see Damache). By the time Mr C.’s case reached trial in Waterford Circuit Court, the decision of the Supreme Court was therefore the law. The prosecution accepted accordingly that any evidence obtained as a result of a search should be excluded but sought to argue that the admissions made in the garda station should still be admitted.

  11. It was pointed out that the arrest was not dependent on the warrant, or any item obtained as a result of the search consequent on the warrant. The only relevance of the warrant was that it justified entry on to the premises where the arrest took place. The arrest could just as easily have taken place in a public street since there was evidence connecting the accused to the offence, and therefore reasonable grounds to justify it. Furthermore s.6(2) of the Criminal Law Act 1997 permits gardaí to lawfully enter premises without a warrant for the purposes of effecting an arrest and in doing so, may also search the premises. The prosecution sought to argue therefore that since the warrant was not necessary or essential to either enter the premises or to effect the arrest, (and indeed to carry out a search) the evidence should be admitted, notwithstanding the unconstitutionality of s.29 of the 1939 Act and therefore the consequent invalidity of the warrant issued under it.

  12. It was argued on behalf of the accused that the search warrant had been the vehicle used to obtain entry and it was irrelevant that there might have been another unimpeachable legal source of the power to enter and to arrest. Since the section was unconstitutional, the warrant must be treated as invalid, even though issued prior to the decision of the Supreme Court. It was argued that the warrant could not authorise Detective Garda Burke’s presence on the premises and he was therefore acting as a trespasser; accordingly the arrest was invalid and, the statements made were made while in unlawful custody; the entry on to the premises, and the arrest, had been deliberate and conscious in the sense that each act was intentional, and that, therefore, they were a deliberate and conscious breach of his constitutional right to liberty, and his constitutional rights to inviolability of the dwelling home, and thus the court was obliged, applying Kenny, to exclude the evidence. The trial judge considered the matter carefully and accepted the arguments on behalf of the accused, and accordingly concluded that the evidence contained in the statement made in the garda station was inadmissible. The prosecution offered no further evidence and the trial judge directed the jury to enter a verdict of not guilty.

  13. The Director of Public Prosecutions now seeks to appeal that decision to this Court under the provisions of s.23 of the Criminal Procedure Act 2010 (“the 2010 Act”). The purpose of the appeal is to invite this Court to overrule its decision in Kenny. The case has been extensively and ably argued. However, the Court directed of its own motion that since the matter involved appeal against an acquittal in a criminal trial, and is only the second case which this Court has had occasion to consider under the provisions of the 2010 Act, it was necessary to specifically address the question whether the statutory criteria under s.23 had been established, and in particular whether the Court could be satisfied that the provisions of s.23(14) had been established. Accordingly, a further hearing was directed on this specific issue.

  14. This appeal was brought pursuant to s.23(3)(a) which provides that an appeal may lie only where a ruling has been made which “erroneously excluded compelling evidence”. Section 23(14) provides that such compelling evidence must be:

    (a)

    reliable;

    (b)

    of significant probative value and;

    (c)

    be 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.

    I am satisfied that there is before this Court enough evidence already upon which the Court can properly be satisfied that the statements ruled inadmissible came within the statutory term “compelling evidence”. In particular this follows from the proper acknowledgment of counsel for the accused at trial that the last three statements contained evidence which could “reasonably lead to the conviction of the accused”. Accordingly, I do not think it is necessary or desirable to address the question whether the position taken on behalf of the accused on this appeal, of not questioning compliance with s.23(14) and arguing the case on its legal merits, would itself mean that the Court should approach the case on the same basis, or whether, in any event, it would have been appropriate to accept evidence of either the Book of Evidence itself, or the individual statements sought to be advanced by the appellant, as late evidence on this issue.

  15. Consideration of s.23(14) does not therefore give rise to any particular difficulty in this case. It is however apparent that it is a section which might be difficult to operate in other cases. There is of course a drafting symmetry in including in s.23 a requirement of compelling evidence, since that is the standard which the same Act applies when it is sought to reopen and retry an accused after acquittal on the basis that compelling evidence has emerged (s.8). However, there are significant differences between that jurisdiction to be exercised by a trial court as a preliminary to a trial, and the purely appellate jurisdiction created by s.23(14). (I would also hesitate to draw conclusions as to the object of s23 (14) from an analysis of section s 8-10, not least because such an approach was not argued for, and all these areas are novel and contentious and must be addressed in due course when or if an issue arises. Section 23(14) appears to make this Court a primary decision maker on questions of reliability, probative value and as to whether a jury might reasonably be satisfied beyond a reasonable doubt on such evidence. Furthermore, it is clear that in cases where it is necessary to consider the evidence excluded in conjunction with the other evidence, it is only evidence “adduced in the proceedings concerned” which can be considered. Thus in this case, where the relevant evidence is excluded at an early stage in the trial and in consequence the trial is terminated, the other evidence contained in the book of evidence would not have been adduced, and therefore might not be capable of being considered for the purposes of the jurisdiction under s.23. The trial court’s jurisdiction is only to hear and determine matters relevant to the issue before it, and it could not proceed to hear evidence solely for the purposes of s.23, nor could it make determinations as to reliability, probative value and likelihood of satisfying a jury, which are only relevant to the jurisdiction under s.23, a jurisdiction conferred on this Court (and now the Court of Appeal). A further question might arise if, in a particular case, the respondent to an appeal wished to contest the reliability of the excluded evidence. In such circumstances would this Court or the Court of Appeal have to conduct an inter partes hearing? Again this is not something which can be dealt with at the trial court stage since such determinations are not within the jurisdiction of the court of trial ,or relevant to any issue which that court has to try. Furthermore, it is undesirable, at the very least, that this Court should be invited, indeed required. to express views as to the compelling nature of evidence (even if it may amount in law to nothing more than the same decision a trial judge may be called upon to make at the close of the prosecution case) in a case where the respondent to the appeal may face a trial on that evidence. It is sensible that the Act should not be capable of being operated merely on the exclusion of evidence in a trial court, and that the procedure should only come in to play if at all, when it is clear that the relevant evidence is significant in the context of the trial, but it is clear that s.23(14) may create unintended procedural difficulties in bringing the issue of law before this Court, or the Court of Appeal. It is now necessary to turn to the issue of law arising on this appeal, and in doing so to consider the development of the law in this area.

    Background to The People (Attorney General) v O’Brien [1965] I.R. 142

  16. I consider it useful to consider the development of the rule of exclusion of unconstitutionally obtained evidence in some detail, since that process illustrates what was decided in Kenny, and what therefore is at issue in this case. When O’Brien arose, the common law rule on the admissibility of the legally obtained evidence was that stated with almost brutal simplicity in the judgment delivered only a short time earlier in Kuruma v The Queen [1955] A.C. 197 (“Kuruma”) (p. 203):

    In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships’ opinion it is plainly right in principle.

    On the other hand, Scots Law had allowed the courts a discretion to exclude evidence obtained illegally. At the other end of the spectrum lay developing United States (“US”) federal jurisprudence commencing in Weeks v United States 232 U.S. 383 (1914) (“Weeks”), that evidence obtained in breach of the Federal Constitution’s guarantee against unreasonable search and seizure was automatically excluded. However, most criminal law in the US is state law and not federal. Weeks in fact, applied only to a small amount of offences against federal law, and its general impact was therefore limited.

  17. However, in the period between the argument in O’Brien and the delivery of that decision by this Court, the US Supreme Court decided the landmark case of Mapp v Ohio 367 U.S. 643 (1961) (“Mapp”). In that case the Supreme Court reversed the decision in Wolf v Colorado 338 U.S. 25 (1949) (“Wolf”) and held that the exclusionary rule was applicable to the states on the basis that the guarantee found to be contained within the 5th Amendment protection against unreasonable search and seizures, was itself part of the liberty protected by the 14th Amendment to the Constitution, and thus applicable not just to the federal government and officials, but also was binding on state courts and officials. Mapp is discussed in the judgments delivered in O’Brien. It appears that the reference to the US material was a product of the Supreme Court’s researches alone, since there is no reference to any US case in the argument of counsel. As it happened, Mapp turned out to be a controversial decision in US law marking the high point of jurisprudence of exclusion of evidence obtained on search and seizure. In due course it was qualified and then retreated from by subsequent Supreme Courts. However, at the time of the judgment in O’Brien, it was a fresh decision from a court to which the Irish courts increasingly looked for persuasive authority.

  18. It becomes apparent from the decision in O’Brien, that in confronting the issue of illegally and unconstitutionally obtained evidence, there were at least three options: an almost absolute rule of admission of evidence as outlined in Kuruma (albeit that that the Attorney General disclaimed any argument that evidence obtained by methods offending against the essential dignity of the human person would be admissible); an intermediate position where the court would have discretion to exclude but was not obliged to do so, as appeared to be the position in Scots Law; and, at least in the case of evidence obtained in breach of a constitutional right, a rule of absolute exclusion, which appeared to have been recently adopted across the US in Mapp.

  19. O’Brien produced impressively sophisticated judgments from both Kingsmill Moore J. (with whom Lavery and Budd JJ. agreed) and Walsh J. (with whom O’Dálaigh C.J. – who had become Chief Justice between the argument of the case and the delivery of the judgment – agreed). Since then much undergraduate and indeed professional time has been spent analysing the differences between these two important judgments. It will unfortunately be necessary to attempt that task once more. But concentration on the differences of language between the judgments of Kingsmill Moore J. and Walsh J., may distract attention from one important fact: the Court was unanimous as to the result. The appeal was dismissed, indeed dismissed after the hearing, with reasons to be given later. Whatever the differences in reasoning between the two judgments therefore, both must be read in the light of the result. Indeed, the outcome of the particular case appeared to pose no real difficulty for the court. Lavery J., who presided, put it most forcefully (p. 148):

    I feel it necessary to say that in my opinion this is not a suitable case in which to consider the question serious question of the admissibility of evidence obtained by illegal means.

    If a judge were to hold inadmissible the evidence in question in this case, or in any comparable case, his ruling would, in my opinion, be wrong to the point of absurdity and would bring the administration of the law in to well-deserved contempt.

    Indeed the Court of Criminal Appeal (Maguire C.J., McLoughlin and Teevan JJ.) had dismissed the appeal without requiring counsel for the attorney general to address the Court. The first of many warning lights generated by the decision in Kenny, is that if Kenny was correctly decided, it seems inescapable that the result in O’Brien, arrived at by every judge who considered the case, was necessarily wrong.

  20. In the light of the subsequent discussion of the decision in O’Brien in Kenny, it is important to consider precisely what was at issue in the earlier case, and what was decided. It seems plain that counsel for the appellant relied on the fact that the search was of the dwelling, and was unauthorised and was therefore a breach of the constitutional rights of the occupier, and that therefore the evidence obtained ought to be excluded. Point 6 of the points certified by the Court of Criminal Appeal, and by definition therefore, a point of exceptional public importance on which it is in the public interest that an appeal should be brought to the Supreme Court, was (p. 163):

    That the main body of the evidence put forward against the applicants was obtained in direct violation of Article 40, section 5, of the Constitution in that the residence of applicants, namely, 118 Captain’s Road, Crumlin, Dublin, was forcibly entered otherwise than in accordance with law and that property taken from there and put in evidence to support the convictions.

  21. The arguments of counsel for the appellant in the Supreme Court are recorded. While arguing for a rule of automatic absolute exclusion of illegally obtained evidence, or alternatively a rule which only permitted its admission if the illegality be condoned by reason of urgency or for some other good reason, counsel continued (pp. 146 – 147):

    If the method of obtaining evidence employed contravenes a constitutional right it ought not to be admitted in any circumstances. Evidence not rendered absolutely inadmissible as a result of the method by which it was obtained might be admitted at the discretion of the trial judge in each case.

    [emphasis added]

    It seems clear therefore that the exclusion of evidence obtained in breach of the constitutional right was squarely in issue in the proceedings, and as we shall see, was clearly considered by both judges who delivered the extensive main judgments in that case.

  22. In my view the difference between the judgments of Kingsmill Moore J. and Walsh J., particularly when read (as they must be) in the light of the conclusion to which they come in the case, illustrate differences of degree rather than fundamental principle. Perhaps the single point upon which there is most clear disagreement, was that Walsh J. was prepared to conclude that where evidence was obtained illegally, (but without any breach of constitutional right) there was no discretion to exclude it. He explained his reason for not adopting the Scots approach which had commended itself to Kingsmill Moore J. in a passage at page 167:

    The Scottish rule would appear to be based on the idea that the Courts must always try to reconcile to important interests, namely, the interests of the citizen to be protected against illegal (as distinct from unconstitutional) invasions of his home or liberty and the interests of the State to secure the bringing of criminals to justice. It is regrettable that these may sometimes be competing interests but the primary purpose of the rules of evidence is to ensure a fair trial of the person accused, and subject to what I have already said with regard to the more recently developed concepts relating to self-incrimination wrongly induced, the rules of evidence have never in this country been deflected to being used as weapons by the Courts to deter police illegalities. Every Judge in our Courts is bound to uphold the laws and while he cannot condone or even ignore illegalities which come to his notice, his first duty is to determine the issue before him in accordance with law and not to be diverted from it or permit it to be wrongly decided for the sake of frustrating a police illegality, or drawing public attention to it.

    This statement is consistent with the same judge’s view, expressed in The People v O’Kelly (1974) 108 ILTR 97 that the court had the right to every man’s evidence since it was the function of the court to administer justice, and in doing so to determine in any given case what had occurred.

  23. The majority judgment of Kingsmill Moore J. pointed out that some extreme positions had been canvassed. He rejected as revolting the concept that evidence obtained by personal violence would be received. On the other hand, he also rejected any absolute or near absolute rule of exclusion (p. 150):

    Such a rule would exclude evidence of a murder discovered by a man engaged in poaching; even, if confined to illegalities or irregularities committed by the police or State authorities, it might exclude vital evidence where but a slight and immaterial illegality was involved. So stated the principle is clearly too wide and would place unreasonable obstacles in the way of discovering and punishing criminal activities.

    He then cited with approval the decisions of the Scottish Courts and in particular the judgment of the Lord Justice-General in Lawrie v Muir (1950) J.C. 19 (pp. 26):

    From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict –

    (a)

    the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and

    (b)

    the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground.

    Neither of these objects can be insisted upon to the uttermost.

  24. At page 156 of the report, Kingsmill Moore J. reviewed the US authorities from Weeks to Wolf and the recently decided Mapp. He also had regard to the decision in Silverman v United States 365 U.S. 505 (1961), Fahy .v Connecticut 375 U.S. 85 (1963), the well known dissenting judgment of Holmes J. in Olmstead v United States 277 U.S. 438 (1928) (“Olmstead”) and the decision of the Supreme Court of Kentucky in Youman v Commonwealth 189 Ky. 152 (1920). These cases, it should be said, are all cases involving the question of an asserted constitutional right and some of the judgments put the case for an absolute or near absolute exclusionary rule in very strong terms. It cannot be doubted therefore, in my view, that Kingsmill Moore J. was alive to the argument that where the illegality complained of amounted to a breach of the constitutional rights, different considerations should apply. Nevertheless, he rejected an absolute rule of exclusion just as he had rejected the absolute rule of inclusion outlined in Kuruma's case. In relation to an absolute rule of exclusion he said (p. 159):

    The second answer would open up equal difficulties. The exclusionary rule laid down in Weeks v United States was not accepted in many of the State courts. An absolute exclusionary rule prevents the admission of relevant and vital facts where unintentional or trivial illegalities have been committed in the course of ascertaining them. Fairness does not require such a rule and common sense rejects it.

    Some intermediate solution must be found. As pointed out by the Lord Justice-General in Lawrie v Muir and by Holmes J. in Olmstead's Case a choice has to be made between desirable ends which may be incompatible. It is desirable in the public interest that crime should be detected and punished. It is desirable that individuals should not be subjected to illegal or inquisitorial methods of investigation and that the State should not attempt to advance its ends by utilising the fruits of such methods. It appears to me that in every case a determination has to be made by the trial judge as to whether the public interest is best served by the admission or by the exclusion of evidence of facts ascertained as a result of, and by means of, illegal actions, and that the answer to the question depends on a consideration of all the circumstances.

    Kingsmill Moore J. then set out a number of facts which he considered necessary to the exercise of that judgment. Applying those factors to the particular facts of O’Brien he found (p. 161):

    .... no evidence of deliberate treachery, imposition, deceit or illegality; no policy to disregard the provisions of the Constitution or to conduct searches without a warrant; nothing except the existence of an unintentional and accidental illegality to set against the public interest of having crime detected and punished.

    Accordingly he considered the evidence should be admitted.

  25. At page 162 of the report, Kingsmill Moore J. turned to the judgment to be delivered by Walsh J. It will be necessary to address that judgment in greater detail, but for present purposes it is enough to say that it is clear that Walsh J did not favour a broad based discretion, but rather took a more hard edged approach. Thus, evidence obtained by illegal means was always admissible, subject possibly to the concession made by the Attorney General, but since such circumstances would almost always amount to a deliberate and conscious breach of constitutional rights, the evidence would be inadmissible on that basis. By contrast, evidence obtained in “deliberate conscious breach” of the constitutional rights of the accused person was “absolutely inadmissible” where “no extraordinary excusing circumstances exist”. Kingsmill Moore J. addressed this conclusion, and set out his view of it in a passage which it is necessary to set out in its entirety (p. 162):

    Mr. Justice Walsh, in the judgment which he is about to deliver, is of opinion that where evidence has been obtained by the State or its agents 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 save where there are “extraordinary excusing circumstances,” and mentions as such circumstances the need to prevent an imminent destruction of vital evidence or rescue of a person in peril, and the seizure of evidence obtained in the course of and incidental to a lawful arrest even though the premises on which the arrest is made have been entered without a search warrant.

    Kingsmill Moore J. then went on to express broad if cautious agreement that in the circumstances outlined, evidence should be excluded (p. 162):

    I agree that where there has been such a deliberate and conscious violation of constitutional rights by the State or its agents evidence obtained by such violation should in general be excluded, and I agree that there may be certain “extraordinary excusing circumstances” which may warrant its admission.

    He then expressed a qualification driven it seems, by caution rather than fundamental disagreement (p. 162):

    I would prefer, however, not to attempt to enumerate such circumstances by anticipation. The facts of individual cases vary so widely that any hard and fast rules of a general nature seem to me dangerous and I would again leave the exclusion or non-exclusion to the discretion of the trial judge. The views expressed in this judgment may seem to be a departure from what has hitherto been considered the law or the initiating of a principle in a field where up to now our law has been undefined. The further development of that principle should await clarification in the light of actual cases. I have already given my reasons for considering that in this particular case the evidence should not be excluded. This case is not one of deliberate and conscious violation, but of a purely accidental and unintentional infringement of the Constitution. In such cases, as Mr. Justice Walsh indicates, the evidence normally should not be excluded.

  26. It is at this point useful to make a number of observations about the judgment of Kingsmill Moore J. First, it is in my view beyond doubt that the issue of evidence obtained in breach of a constitutional right was squarely in issue in the case, and was considered and addressed by him. Second, it is clear that he rejected the absolute exclusionary rule which then appeared to be the law in the US. Third, and usefully, he expressly addressed the central portion of the judgment Walsh J. and expressed his opinion on it. Fourth, the differences between the judgments of Kingsmill Moore J. and Walsh J. in this regard are differences of degree: where Walsh J. held that evidence obtained in a deliberate and conscious breach of a constitutional right should always be excluded save in extraordinary excusing circumstances, Kingsmill Moore J., consistent with his general view as to the discretion of the court, preferred to say that in such circumstances the evidence should “in general” or “normally” be excluded, and preferred to leave for another day the circumstances which would nevertheless justify the admission of evidence obtained in such deliberate and conscious breach of the constitutional rights of the accused. Finally, and importantly, this analysis was applied to the facts of the case. Kingsmill Moore J. considered that the entry of the premises with a warrant which did not authorise such an entry was not a case of “deliberate and conscious violation” but a purely “accidental and unintentional infringement of the Constitution” and that in such cases, the evidence should normally be admitted.

    The Judgment of Walsh J.

  27. The judgment of Walsh J. also deals at some lengths with the question of admission of illegally obtained evidence. That was the common law framework in which the case was presented to the Court. As already observed, Walsh J. came to the strong conclusion that there was no discretion to excluded evidence on the grounds that it had been illegally obtained. He observed (p. 169):

    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.

    However he did contemplate the possibility that matters might develop to such a stage that a court might find itself compelled to come to a conclusion that all the measures introduced had failed to secure compliance by the police with the law. In those circumstances he considered it would be preferable that there should be a rule of absolute exclusion rather than that each trial judge should be asked to adjudicate upon the question of whether the public interest could require the accused to go free without full trial rather than the police should be permitted the fruits of a lawless venture. Apart from the anomalies which might arise between the positions of individual judges, the (p. 169),

    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 the principle.

    This was however a hypothetical situation which lay, if at all, in the future and on the issue presented for decision in O’Brien, Walsh J. concluded that illegally obtained evidence was admissible.

  28. In the second paragraph on page 169 of the report, Walsh J. turned to deal with the constitutional issue. He pointed out that the guarantee under Article 40.5 was not a protection against forcible entry only. Instead it was a guarantee that the dwelling of the citizen was inviolable save for entry as permitted by law and that if necessary, such law could permit forcible entry. That right was engaged in this case. A breach of the Constitution was of far greater importance than an illegality which did not amount to such an infringement. The vindication of the protection of constitutional rights is a fundamental matter for all courts. Accordingly, he concluded that (p. 170):

    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.

    This reasoning was repeated and emphasised in the subsequent paragraph (p. 170):

    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.

    The position thus outlined was contrasted with what was conceived of as the logical corollary: that evidence obtained in breach of the constitutional right which was not obtained by a deliberate or conscious breach, was admissible. Indeed it followed from the view Walsh J. had outlined that there was no discretion in this regard (p. 170):

    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.

    These principles were then applied to the facts in O’Brien’s case (p. 170):

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

  29. I have set out extracts from the judgments in O’Brien at some length because it is important to understand precisely what was decided in that case, and indeed what was left for future decision. It is impossible to fully understand and analyse what was decided in Kenny, without understanding what the law was prior to that decision, and how Kenny treated it.

  30. It appears to me that a number of conclusions about the decision of the Court as a whole in O’Brien, are clear beyond argument. First, and perhaps most importantly, it is clear that the phrase “deliberate and conscious breach of the constitutional rights” which appeared for the first time in the decision in O’Brien and was used repeatedly by Walsh J. and Kingsmill Moore J., meant, and was understood to mean in that case, an intentional violation of the right. This is, most obviously, the natural meaning of the phrase, in the context in which it was used. But it also follows inexorably from the context in the judgments in which the phrase is used. Deliberate and conscious violation is contrasted with the antithesis, described in the judgment of Walsh J. as “an error of which the gardaí were unaware” and in the judgment of Kingsmill Moore J. as a “purely accidental and unintentional infringement”. Furthermore, this distinction is apparent not merely from a syntactical analysis of the text of the judgments, but is in my view part of the ratio decidendi of the case. The evidence in O’Brien’s case was admitted because it was not obtained by a deliberate and conscious breach of the constitutional rights of the occupiers of 118 Captain’s Road. Adopting the language of Walsh J., the evidence was obtained without a deliberate and conscious violation of the accused’s constitutional rights and was therefore not excludable by reason only of the violation of his constitutional rights. Finally, and if the matter was open to any doubt, the meaning of “deliberate and unconscious” in O’Brien was confirmed by a consideration of the related concept of extraordinary excusing circumstances as elaborated upon in the judgment of Walsh J. The principal examples given (the need to rescue a victim in peril, or to prevent the imminent destruction of vital evidence), occur most naturally in a context where there is a deliberate knowing breach of the constitutional right (in this case the inviolability of the dwelling) which is nevertheless justified by urgent circumstances. In the examples given, the gardaí, or any other actor, are aware that a search or an arrest is not normally authorised but consider that it is necessitated, and therefore justified, by the extraordinary excusing circumstances of the event.

  31. Second, it may be observed that the case is predicated upon an extremely clear distinction between evidence obtained as a result of an illegality, and evidence obtained as a result of a breach of a constitutional right. This is clear and sharp in the judgment of Walsh J., but it is also detectable in the judgment of Kingsmill Moore J. who accepted that breach of a constitutional right was a more serious matter and would normally lead to the exclusion of the evidence. Third, it is, I think, possible to identify the ratio decidendi of that case. What the court decided is clear: the evidence was admissible. Why the court decided that is also clear and it is apparent that the difference between the judgments is quite nuanced. The evidence here was obtained in breach of constitutional rights which was accidental. It was however obtained illegally. In such circumstances, evidence obtained should normally (Kingsmill Moore J.) or always (Walsh J.) be admissible. In this case, both judges considered the evidence had been properly admitted.

    Observations on the Decision in O’Brien

  32. The judgments in O’Brien are thoughtful, detailed and impressive. They address an issue which is only beginning to come to the fore in Irish law as indeed similar issues were arising in other common law jurisdictions. The judgments are, if anything, progressive and innovative when compared with the then contemporaneous decisions in other common law jurisdictions. Furthermore, the position arrived at is relatively cautious and moderate. It is clear that both judgments (and therefore the entire court) rejected an absolute rule whether of admissibility or exclusion. This is apparent from the judgment of Kingsmill Moore J., but it is also apparent on an analysis of the judgment of Walsh J. The position taken by him while, marginally more hard edged than that set out in the judgment of Kingsmill Moore J., is markedly short of an absolute rule of exclusion even though the Court was aware of, and had regard to, the persuasive authority of the decision in Mapp, and the preceding US jurisprudence which seemed to support an absolute rule of exclusion. In Walsh J.’s judgment however, only deliberate and conscious breaches of the Constitution (in the sense of a knowing and intentional breach) could give rise to a rule of exclusion, and even then such evidence obtained in such circumstances might be admitted if there were extraordinary excusing circumstances. O’Brien was undoubtedly a landmark decision, and the judgments were significant contributions to the development of Irish law.

  33. Looked at through the clear lens of hindsight and with the benefit of almost half a century of decisions, commentary and analysis on the question of illegally and unconstitutionally obtained evidence in this and other jurisdictions, it is now I think apparent that while the judgments in O’Brien marked a significant advance, there are flaws in the O’Brien approach. Assuming for the moment that the approach of Walsh J. was slightly more robust and radical than that of Kingsmill Moore J. and was likely to be adopted in time (as indeed it was), it still did not go very far. First, only deliberate and conscious breaches of constitutional rights could lead to exclusion of evidence. But the Constitution is a guarantee of rights against invasion and that guarantee is not limited to intentional breaches. Take the example of the related area of the tort of trespass. This is one the methods by which the State, by its laws, protects and vindicates the property rights of the citizen. The tort of trespass is complete when there is a physical entry or intrusion. There is no requirement of intent or any other mental element. An accidental trespass is still a tort and will, if necessary, be restrained or remedied by a court. Why then should the law on exclusion of evidence for breach of the Constitution be different? The constitutional concept of a right and a correlative duty to protect it, involves the focus upon the right interfered with, rather than a consideration of the intention of the wrongdoer. Intent may be relevant to the seriousness of the breach, but is not relevant to whether there was a breach or not.

  34. Second, even if some culpability is required it is arguable that capturing only deliberate breaches is insufficient. If there was a reckless breach of a constitutional right, would it still be permissible to admit the evidence? Third, the exception for extraordinary excusing circumstances is also somewhat problematic. It is not clear what constitutional justification there is for this. There are circumstances that the Constitution itself limits, or permits the limitation of, rights guaranteed by it. In such circumstances however, any action within the area of permitted limitation, does not constitute a breach of the constitutional right. It is not normal therefore for there to be a breach of the constitutional right, but for it to be excused, and the Constitution does not contain any general (or indeed specific) provision permitting a Court to excuse or overlook breach of its provisions. The Constitution contains its own balance, and once a right guaranteed by the Constitution is breached, the normal constitutional response, is a requirement to vindicate the right. It is not clear where the power to excuse the breach comes from, or its extent, and it is therefore problematical. It is not suggested in O’Brien that the capacity to excuse a breach of the Constitution comes from some provision in the Constitution itself. Accordingly, the concept of excusing breaches of constitutional rights gives rise to the possibility of undermining the protection required by the Constitution. As Professor Kelly perceptively pointed out in the second edition of Fundamental Rights in the Irish Law and Constitution, (Dublin; Allen Figgis; 1967; 2nd ed.) published shortly after the decision in O’Brien:

    It is hard to disagree with the court’s conclusion on the issue involved in this particular case, which seems sensible; but it might certainly be dangerous if the police felt it was now open to them to search any premises at their own discretion in the hope that their action could subsequently be covered by the plea that they wished to avoid e.g the imminent destruction of vital evidence. Such a power would go a long way to undermine the 200 year old principle against arbitrary searches laid down in the classic sense of Entick v Carrington.

    Furthermore, the justification offered for the exception of extraordinary excusing circumstances, while having a rhetorical appeal, is not convincing. It may be true that there is no constitutional right to destroy or dispose of evidence for example, but it is equally arguable that there is no constitutional right to possess stolen goods or dangerous drugs, but it cannot be suggested that a search for either would be permissible without a warrant. I would require careful and persuasive argument rooted in the Constitution before accepting in any real life situation that deliberate breaches of the Constitution can be excused by the Court’s say so, but would reserve my judgment on that issue until it arises in a concrete case.

  35. These are issues with the decision in O’Brien which arise at the level of principle. But addressing those issues could, indeed, give rise to further problems. For example, while the approach of mandatory exclusion of evidence advanced by Walsh J. is strong in principle, the narrow scope of application of the rule meant that the quantum of evidence excluded, or likely to be excluded, was quite small since it only captured evidence obtained by deliberate, conscious, intentional and knowing breach which was not otherwise excusable. If however, the scope of the exclusionary rule was widened then the impact of the rule would be dramatically extended, particularly if it was assumed that a mandatory exclusionary rule should apply without modification in any extended area of application.

  36. There are also conceptual issues at a slightly deeper level which were touched on but not explored in O’Brien. The protection offered by the Irish Constitution to the dwelling home is a contingent one. Whereas for example the US Federal Constitution protects against unreasonable searches and seizures, and thus provides some substantive protection, Article 40.5 makes the constitutional protection dependent on the existence or otherwise of a law (and the terms thereof). It is true, that any law must, in the words of Henchy J., not stoop to methods themselves inconsistent with the Constitution, but that still leaves a large area of permissible legal intrusion which, it appears, may be permitted with or without a warrant. The list of lawful entry authorised by statute is impressively, and on one view, depressingly, long. This has particular significance in the field of the exclusion of evidence. The judgment of Walsh J. in O‘Brien makes a sharp distinction between breaches of the law and breaches of the Constitution. At the conceptual level this is obviously valid. But in terms of Article 40.5 the distinction almost disappears: any breach of the law permitting entry onto a dwelling for Article 40.5 is arguably a breach of the constitutional guarantee. So long as evidence was excluded only in the relatively narrow case of deliberate and conscious breach subject to the possibility of excusing circumstances, this issue did not loom large since any deliberate, intentional and inexcusable breach of the law (let alone the Constitution) would be a serious matter. But if the test was removed or diluted, then the prospect arose of even trivial breaches of regulatory matters becoming, without more, breaches of the Constitution, and giving rise to presumptive, if not indeed automatic, exclusion of evidence obtained thereby.

  37. On the other hand, the fact that the constitutional protection is contingent on the terms of the law means that the substantive boundaries of what is permissible are by no means fixed. The law could determine what was lawful entry and could at least in theory, permit a wide range of entry with or without warrant, or indeed validate otherwise unauthorised entry at least for the purpose of the admission of evidence. The identification of the protection of the Constitution with a breach of the law thus raised the possibility of even trivial breaches of regulatory matters being treated as breaches of the Constitution (and consequently collapsing a distinction which seemed central in O’Brien) but there was the countervailing possibility that if the law did not treat an entry as unlawful there could be no separate question of unconstitutionality. None of this is satisfactory.

  38. It is of course not unusual for even landmark cases not to answer all potential questions or indeed not to provide perfect answers to the difficult questions first posed. In normal circumstances a steady stream of cases posing different facts and issues will contribute to an adjustment and refinement of the principle. However, for whatever reason, no warrant case reached the Supreme Court for 25 years until Kenny. In the meantime, the potential flaws in the O’Brien formulation were subjected to the stresses created by a series of cases related to unlawful detention, either by detention beyond a statutorily permissible period (The People (Director of Public Prosecutions) v Madden [1977] I.R. 336), detention in custody without being charged (The People (Director of Public Prosecutions) v O’Loughlin [1979] I.R. 85), or by denial of access to a solicitor who was present in the garda station (The People (Director of Public Prosecutions) v Healy [1990] 2 I.R. 73 (“Healy”)). It is important to note that in these cases the evidence obtained was held to be inadmissible either at trial, or on appeal, or at trial or both. These decisions are plainly correct, and are examples of the courts performing the function in ensuring that constitutional rights are respected, upheld and vindicated. Indeed Healy is a good example of the robust approach taken by the courts : at that time the law was that an accused person had a right of access to a solicitor, but did not have to be informed of the right and there was no prohibition on an accused person making a statement before the solicitor arrived at the garda station. In this case the client’s solicitor arrived and was denied access to his client. The court held that that was a violation of the rights of the accused. Accordingly his detention became unlawful as from the point of denial of access. However because it could not be shown that the statement had been made during the period of lawful custody (and before the point of denial of access) the entirety of the statement must be excluded.

  39. In their own terms, these are important cases on the criminal process. However, in the course of such cases, the argument was made on behalf of the prosecution that even if there was a breach of the legal requirement of detention it was not “deliberate and conscious” because the gardaí claimed they were unaware of the relevant provision or legal requirement rendering the detention unlawful. In no case did this argument succeed, but it highlighted a difficulty with the “deliberate and conscious” test, since that appeared to focus attention on the state of mind of the investigating gardaí, which obviously was unsatisfactory in cases like this. If it was accepted that the gardaí were unaware of the existence of the law, and therefore of the constitutional right to liberty, the application of the rule rewarded ignorance of the law by police and gave a perverse incentive to gardaí to assert lack of knowledge of the law that they were supposed to uphold. One solution might have been to modify the test so that the seriousness of the breach was the important factor, and the subjective state of mind of the gardaí only one component in that calculation, or to include recklessness as to the breach, or lack of knowledge of basic provisions protecting citizen’s rights, as themselves grounds for excluding evidence obtained in breach of constitutional rights. But as Jonathan Swift has observed, lawyers are very attached to precedent, and O’Brien’s case and the memorable phrase “deliberate and conscious breach of the Constitution” had been sanctified by repetition. It was effectively binding upon trial courts. Accordingly, the debate occurred, and a solution was sought, within that rubric.

  40. In no case was the Court of Criminal Appeal, or where relevant, the Supreme Court, prepared to accept protestations of lack of knowledge: as McCarthy J. observed in Healy, that would be to put a premium on ignorance, indeed ignorance of the law by law enforcement officers. The approach taken by a majority of the judges in the cases identified was simply to find that on the evidence there had indeed been a deliberate and conscious breach. The matter was perhaps put best by O’Hanlon J. in the Court of Criminal Appeal in Kenny (p. 119):

    It is clear from the decisions in The People v Madden [1977] I.R. 336, The People v Farrell [1978] I.R. 13, The People v O'Loughlin [1979] I.R. 85 and The People v Walsh [1980] I.R. 294, that knowledge of the common law and statute law, and of the constitutional guarantees, must – generally speaking – be imputed to the law enforcement agencies, and that if they are breached in a manner which infringes the constitutional rights of an accused person, it may be regarded as a deliberate and conscious violation without regard to the actual state of knowledge or bona fides of the garda officer or other person committing such violation.

    In other words, gardaí were deemed to know the relevant provisions, and consequently, breach thereof was deemed a deliberate and conscious breach giving rise to the exclusion of the evidence unless there were extraordinary excusing circumstances. As Mr Justice Mc Kechnie observes there was a certain lack of clarity in the jurisprudence, exemplified perhaps by the fact that Mc Carthy J appeared to take different views in DPP v Lawless CCA 28/11/85, Mc Carthy Keane and O’ Hanlon JJ, and in DPP v Healy. However, an increasingly influential view which can be traced to the dissenting judgment of Walsh J. in The People (Director of Public Prosecutions) v Shaw [1982] I.R. 1 (“Shaw”) (and perhaps further to the dissenting judgment of the same judge in The People (Director of Public Prosecutions) v Walsh [1980] I.R. 294 (“Walsh”)) was to the effect that deliberate and conscious breach merely meant that the act complained of was deliberate and intentional and it was irrelevant if the gardaí were entirely innocent and acting bona fide. The implication of this difference of approach was not perhaps immediately obvious. So long as a court was dealing with a breach of obvious provisions which ought to have been known, or could be deemed to have been known, then the difference of approach did not necessarily create a particular difficulty since both tests would lead to the same outcome and exclusion of the evidence. However, if an illegality was caused by a mere technicality or an error for which the gardaí could have no responsibility, and could not in any event possibly cure, then there was a possibility of conflict, since in such circumstances the two approaches could, potentially, lead to different outcomes. Such an issue arose in Kenny.

    The Decision in The People (Director of Public Prosecutions) v Kenny [1990] 2 IR 110

  41. The warrant in Kenny’s case was issued by a Peace Commissioner under s.26 of the Misuse of Drugs Act 1977. The warrant was issued on the 29th of September 1984 and the search took place on the 2nd of October of the same year. Drugs were found, the defendant charged, and a trial took place in the Dublin Circuit Criminal Court. At the trial there was a challenge to the validity of the warrant which was rejected and the evidence was admitted. It is not clear from the report of the decision when that trial took place. However, certainly before the appeal was heard, the High Court heard a challenge in a different case, Byrne v Grey. That case too concerned a search warrant issued under s.26 of the Misuse of Drugs Act 1977. The information and warrant were in the same standard form as that which had been used in Kenny. The High Court on a judicial review challenge held that the form used of the information was inadequate since it gave no basis for the belief of the individual garda that drugs were on the relevant premises. Accordingly, the Peace Commissioner could not be satisfied of that fact, and the search warrant was invalid. The point, it should be said, was one of some subtlety and had escaped the gardaí, court officers and lawyers, involved in many cases in which the same standard form had been used.

  42. It was plain that the relevant member of the garda in seeking the warrant, and in swearing the information, was using a standard form and acting in good faith as the Court of Criminal Appeal acknowledged at page 117 of the report. Indeed, a standard form is adopted presumably to seek to minimise the possibility of individual human error. The form was not drafted by the individual garda officer and there was no defect in the matters inserted by him. There was nothing he could have anticipated or done about the possible invalidity without an extraordinary feat of legal clairvoyance. The decision that an information in that form was inadequate and any consequent warrant invalid, lay far in the future at the time the warrant in Kenny was sought and obtained. In such circumstances, was the evidence obtained to be excluded on the ground that there had been a breach of the constitutional right to the inviolability of the dwelling? The Court of Criminal Appeal held first that the warrant was invalid and then directed further argument on the issue of the admissibility of the evidence. In a careful judgment of O’Hanlon J which reviewed the authorities, the Court held that there had been no deliberate and conscious breach of the constitutional right. Specifically the court rejected the argument that merely because the act of entry onto the premises was intentional that there was in consequence a deliberate and conscious breach of constitutional rights and a mandatory requirement of the exclusion of the evidence unless there were extraordinary excusing circumstances, which plainly did not arise in this case. Accordingly the Court of Criminal Appeal held that the evidence was admissible.

  43. One other thing had occurred in the period between the decision in O’Brien and that in Kenny: the US Supreme Court had confronted difficulties posed by the absolute exclusionary rule in Weeks and Mapp and in United States v Leon 468 U.S. 897 (1984) (“Leon”), found that there was a good faith exception to the exclusionary rule, the requirement to exclude evidence obtained did not apply to bar the use, in a prosecution case, of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate which was ultimately found to be invalid. The parallel with the situation in Kenny seemed clear, and O’Hanlon J. found the reasoning of the US Supreme Court persuasive and indeed to echo the observations of Kingsmill Moore J. in O’Brien.

  44. In Leon, White J. had reasoned that the fourth amendment of the US Federal Constitution did not itself preclude the admission of evidence obtained in breach of the amendment, and that the admission of evidence in the trial did not itself work any fresh violation of the amendment. Accordingly the exclusionary rule was a judicially crafted remedy designed to protect the fourth amendment right, rather than constituting a separate constitutional right in itself. The issue for the Court was the admission or exclusion of the evidence, and not the breach of the rights. The decision on admission or exclusion of evidence involved a balancing test. The absolute rule of exclusion exacted too high a price. The unbending application of the rule to enforce governmental rectitude would, the Court considered, impede unacceptably the truth finding function of the Court and an indiscriminate application of the rule might generate disrespect for the law and the administration of justice. Since the purpose of the rule was to deter wrongdoing, its operation should be focussed and targeted on the area where it would have this effect. It was intended to deter police misconduct, not judicial or clerical errors. Accordingly, there was no justification for applying the rule in a case where the police had not been guilty of any misconduct (however broadly defined) and the invalidity of the warrant was due to a simple error for which the police were not responsible.

  45. The Court of Criminal Appeal in Kenny certified that its decision involved a point of exceptional public importance, and accordingly the matter was appealed to the Supreme Court. That Court decided to allow the appeal by a majority of three to two and reversed the decision of the Court of Criminal Appeal. As already observed, it is unfortunate that there has not been a more steady stream of warrant cases since that might permit a more nuanced, gradual and refined development of the law. It is also unfortunate that the Kenny case was to some extent decided in the shadow of the debate on evidence obtained from persons in detention found unlawful. In the event, the majority of the court (Finlay C.J., Walsh and Hederman JJ.) held that ”deliberate and conscious breach” meant merely that the act (of entry to the premises in that case) was intentional. If so, there was a deliberate and conscious breach of the constitutional rights and the evidence must be excluded since there were no extraordinary excusing circumstances. Accordingly, the appeal was allowed.

  46. The single judgment of the majority in Kenny is that of Finlay C.J. First, he observed that the decision in Leon depended on a principle of deterrence rather than the absolute protection of constitutional rights. He considered that this had no echo in the judgment of Kingsmill Moore J. in O’Brien, the greater part of which he considered was concerned only with illegally as opposed to unconstitutionally obtained evidence. He considered that the only reference to the Constitution in O’Brien was a short passage at the end of the judgment of Kingsmill Moore J. The learned Chief Justice then expressed the view that (p. 131):

    The expression of opinion [by Kingsmill Moore J.] which formed the majority view of the Court in The People (Attorney General) v O’Brien  .... clearly leaves unresolved in relation to the admissibility of unconstitutionally obtained evidence the choice raised by the arguments in this case between the deterrent and absolute protection principles.

  47. The judgment then cited the extracts from the dissenting judgment in Walsh, the principles outlined in the judgment of Walsh J. in Shaw, and the decision in Healy. The essence of the court’s reasoning is to be found in a relatively short passage commencing at pages 133 – 134 of the report:

    The duty of the Court pursuant to Article 40, s.3, sub-s.1 of the Constitution is as far as practicable to defend and vindicate such rights.

    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 has, it seems to me, an obligation to choose the principle which is likely to provide a stronger and more effective defence and vindication of the right concerned.

    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”.

    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 [1982] 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.

  48. In concluding that a rule which only excludes evidence obtained by a person who knows that he is invading a constitutional right and intends to do so, was too limited a rule, the judgment was in my view quite correct, for reasons I have sought to set out. That limitation in the scope of the O’Brien principle had become apparent in the succeeding years. But in my view the judgment is much less persuasive in implicitly rejecting the approach of O’Hanlon J. in the Court of Criminal Appeal, and in particular in substituting for the O’Brien test, an absolute or near absolute rule of exclusion especially when that was achieved by using the same language and structure as the decision in O’Brien (deliberate and conscious breach, not unintentional or accidental and no extraordinary excusing circumstances) but assigning different meanings to the concepts involved. This maintained an impression of superficial consistency while undermining the reality of the test.

  49. While the decision refers to an absolute rule at certain points, the rule subsequently stated was in a more qualified form (p. 134):

    .... evidence .... 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 ....

    This appears therefore to be a more nuanced test, and a repetition of O’Brien. But now “accidental and unintentional” has an entirely different meaning to the same phrase when used, and more importantly, applied, in O’Brien. It is now only the act which must be intentional. But in the field of search warrants, this is no qualification at all. Every search and every entry pursuant to warrant is intentional. That is why a warrant is sought in the first place. Similarly, “extraordinary excusing circumstances” provides no substantial limit or qualification in the new definition. That phrase was adopted in O’Brien in the context of excusing what was a deliberate and conscious violation which was intentional. The circumstances contemplated involved normally, urgency which for example might make it impossible to comply with a legal requirement to obtain a warrant, before evidence was destroyed. But this would have no application where a warrant has already been obtained but some time later is subsequently ruled invalid. Thus the consequence of the new definition of “deliberate and conscious” looked at in the field of warrants is not only to enlarge significantly the scope of the exclusionary rule to cover all intentional acts, and therefore every entry pursuant to a warrant which transpires to be invalid or defective, but at the same time to render the apparent balancing qualifications of the rule (accidental and unintentional actions, and extraordinary excusing circumstances) devoid of any practical application. The new rule is, in practice, absolute. This analysis is confirmed if need be, by experience: in the years since Kenny there does not appear to have been any example of evidence obtained pursuant to an invalid warrant which was nevertheless admitted because the violation was either accidental in the Kenny sense, or, justified by excusing circumstances. Accordingly, one of the troubling features of Kenny is that it adopts a rule on its face qualified, but in reality absolute or near absolute, at least in the field of warrants. Moreover the absolute nature of the rule is not recognised and accordingly is not justified in the reasoning in the judgment.

  50. The treatment of the decision in O’Brien by the judgment in Kenny is a further difficulty. The decision in Kenny explicitly departed from and disapproved of the majority decision in Shaw. However it makes no determination or comment on the decision in O’Brien. Subsequent courts have struggled to reconcile the two decisions (see The People (Director of Public Prosecutions) v Balfe [1998] 4 I.R. 50, and The People (Director of Public Prosecutions) v Mallon [2011] 2 I.R. 544). However it was said in argument in the present case (and my experience in other cases in which warrant points were argued would seem to bear this out) that Kenny in effect overrules O’Brien, and has been so understood and applied by the profession, so that on the same facts, the warrant in O’Brien would now have to be held invalid and the evidence ruled inadmissible. The suggestion made in Kenny that O’Brien can be distinguished on the basis that the judgment of Kingsmill Moore J. was principally concerned with illegally obtained evidence is unpersuasive. It seems clear for the reasons set out at some length above, that the consideration of the constitutional point was more extensive than the Court in Kenny allowed and the constitutional question was fully considered, indeed decided, by Kingsmill Moore J. The question of whether there was a deliberate and conscious breach of the constitutional right of the citizen was essential to his decision in that case. It was because he considered that the breach of the constitutional right of the accused was not deliberate and conscious (“This case is not one of deliberate and conscious violation, but of a purely accidental and unintentional infringement of the Constitution”) that he was able to treat it as a case of illegally obtained evidence, which should be admitted.
    Furthermore, the choice between a deterrent exclusionary principle, and absolute protection principle was also firmly in view in O’Brien, and, on my reading of the decision, both judgments in that case rejected the absolute protection approach. Furthermore, the outcome in Kenny effectively collapses the distinction which seemed central in O’Brien between illegally obtained evidence which might (Kingsmill Moore J.) or must (Walsh J.) be admitted, and unconstitutionally obtained evidence which, if there are no extraordinary excusing circumstances, must normally (Kingsmill Moore J.), or always (Walsh J.), be excluded. One consequence of the Kenny decision, in particular in respect of warrants, is that any illegality which leads to invalidity will lead inevitably to exclusion. Indeed, since the entry under Article 40.5 of the Constitution must be “in accordance with law”, it can be argued that any illegality (even if not invalidating the warrant) leads to an unconstitutionality, and if Kenny is correct, to an automatic or near automatic exclusion of the evidence.

  51. I confess to real difficulty in accepting the interpretation of “deliberate and conscious breach” advanced first in the dissent in Shaw and adopted by the majority in Kenny. First, it is linguistically and grammatically implausible. The adjectives, ‘deliberate’ and ‘conscious’ qualify the noun, ‘breach’. The natural understanding of the phrase is that which was understood and applied until 1990, namely that it was the breach which had to be deliberate and conscious. Indeed that is, I think, plainly the manner in which it was understood – and applied – in O’Brien. The evidence was admitted (by all courts which considered the matter), because ultimately the error in the address, and the consequent invalidity of the warrant and unauthorised entry, was unintentional and accidental, rather than a deliberate and conscious breach of the constitutional guarantee. This was part of the ratio decidendi of that case. It would be surprising and noteworthy if a venerable decision of this Court in O’Brien was overturned both in its reasoning and its result with the effect that the conclusion rejected in that case as wrong to the point of absurdity, would become correct in law, but it is remarkable if all this is achieved sub silentio. This is not merely a matter of judicial politesse or ritual. Preceding decisions provide an important structure which either supports or tests the reasoning in subsequent cases. The careful and faithful analysis of precedent is an important discipline in contributing to the rigour of the argument.
    It is also an essential part of the concept of precedent which itself is part of the law and justice, which the Courts administer and uphold under the Constitution.

  52. The rationale for the new rule advanced in Kenny does not, at least in my judgment, withstand scrutiny. Leon is characterised as a decision on deterrence and the Kingsmill Moore J.’s judgment in O’Brien distinguished unpersuasively, and a choice posed between a rule based on deterrence, and one of absolute protection, the absolute protection rule being preferred. However, the analysis conducted by the Court seems to be based on a principle of deterrence. The apparent contrast between a negative deterrent and a positive encouragement is superficially attractive, but, at least in my view, is not convincing. The choice in Kenny was between a somewhat exclusionary rule and a more, indeed almost absolute, exclusionary rule. That is a choice between some deterrence and more deterrence. No reward or incentive is being offered to the State authorities for compliance with the rule other than the avoidance of the punishment of having otherwise cogent and possibly compelling evidence excluded. The description of the new rule as offering positive encouragement rather than negative deterrence does not therefore explain ,still less justify, its adoption. But if deterrence underpins the decision in Kenny then the question arises why it is appropriate to apply the rule when, as in this case, there is no misconduct to be deterred.

  53. This leads to a fundamental question as to what behaviour it is the rule in Kenny seeks to either encourage or deter. The answer given at one level of generality is easy: the rule seeks to ensure compliance with the Constitution and deter its breach. But that is not behaviour, it is a legal consequence of the behaviour. At a more specific level, because the combined effect of Article 40.5 of the Constitution and the decision in Kenny, is to collapse any distinction between legal validity and unconstitutionality, the expanded rule of exclusion in Kenny seeks apparently, at least in warrant cases, to punish technical, human and forgivable error, perhaps to encourage precision in the drafting and issuance of warrants, and in cases such as Kenny and the present case, to encourage a form of inspired legal clairvoyance in predicting decisions in future cases on points not yet raised, argued or decided, at the time the warrant is obtained. Insomuch as these may be worthy objects at all, they come at a high price in terms of resources, time, efficiency, the detection of criminal conduct, and in particular the exclusion of otherwise compelling evidence.

  54. A further unsatisfactory aspect that emerges through Kenny is that since the constitutional protection of the dwelling home is dependent on the terms of legal regulation (since inviolability is guaranteed “save in accordance with law”), it is possible by the law to alter the extent of protection of the dwelling home. Thus, and more recently, legal provisions seek to limit the consequences of failure to comply with them. Section 7 of the Criminal Justice Act 1984 establishing Custody Regulations, Order 38 Rule 1 of the District Court Rules on forms, and the provisions of s.12 of the Interpretation Act 2005, all seek to limit invalidity and thus cut off at source the possible argument that there has been an invalidity and therefore breach of a constitutionally protected right. This makes the exclusion of evidence for breach of the Constitution even more haphazard and unpredictable and removes the law on exclusion of evidence some distance from the substance of the right sought to be protected by the Constitution.

  55. Having considered the arguments made in this case and the range of cases referred to, I conclude that the test articulated in O’Brien, either by both judgments or a synthesis of the two, while a significant advance in the jurisprudence at the time, is not a complete or comprehensive statement of the circumstances in which evidence should be excluded. However, I am even more clearly of the view that the outcome of Kenny is a solution which is worse than the problem.

  56. It is necessary therefore to address the question afresh in the light of the scrutiny of O’Brien and Kenny and subsequent experience and practice. The first question which must be addressed is whether an absolute rule of exclusion such as that articulated in Mapp or in effect adopted in Kenny, is justifiable even if it results in the exclusion of evidence caused by technical, understandable, forgivable and sometimes unavoidable error? There are, I think, two plausible arguments in favour of such a rule. First, it might be said, and this is hinted at in Kenny, that the Constitution commands this outcome. On this argument, the balance has been set by the Constitution which has decided that the exclusion of such evidence in such circumstances is required by the obligation to vindicate the constitutional rights of the citizen, and the near absolute rule of Kenny merely applies that conclusion. The second argument is a more pragmatic variation of the first. It argues that an absolute rule can be justified because no more nuanced rule can be devised to permit the admission of evidence where the error is technical, accidental or excusable, which does not open up the possibility of permitting, and indeed encouraging, further breaches of the Constitution. A bright clear line may come with a cost, but, so the argument runs, it may be preferable in the long run.

  57. The issue raised here can usefully be addressed first as a matter of principle and constitutional analysis, second by consideration of relevant analogies in constitutional law, and finally by consideration of the manner in which it has been addressed in other countries with a similar legal system and similar commitment to fundamental rights

  58. In an admirably focussed and knowledgeable argument on behalf on the respondent, Mr Michael Delaney SC argued that the absolute exclusionary rule was required by the constitutional obligation to respect and vindicate the constitutional rights of the citizen. Accordingly it was, he argued, the Court’s function and indeed duty, to vindicate the right which had been breached. It is possible to elaborate on that basic argument in a number of ways. If it was possible to imagine a hypothetical judge present as the gardaí were seeking entry of a dwelling home under a defective and therefore invalid warrant (even if obtained in good faith) the judge would be bound to grant an injunction restraining entry. If, in a slightly more realistic scenario, a householder physically resisted entry, for whatever reason, and was arrested, but it transpired that the entry had been obtained on foot of an invalid warrant, he would, as I understand it, have committed no crime. If entry was obtained on a warrant subsequently found to be invalid, and the householder was to sue for trespass, then subject to special defences as contained in legislation such as the Constabulary (Ireland) Act 1863 (see Hanahoe v Hussey [1998] 3 I.R. 69) he would be entitled to succeed. The same reasoning should, it is argued, lead to the exclusion of evidence obtained as a result of a search carried out on the same warrant, not least since the very object of the entry was to obtain that evidence.

  59. This is an attractive argument, but for me ultimately unpersuasive. First, to adopt the approach of Leon, the Constitution does not itself address the question of the admissibility of evidence and the admission of evidence is not itself a breach of the inviolability of the dwelling. The question for a court is the admission of evidence. That itself is not a breach of Article 40.5. The example of injunction or other tortious remedies are useful but do not necessarily lead to the conclusion that an absolute rule of exclusion is required. Indeed the fact that there are statutory limits for recovery of damages on foot of invalid warrants and that similar provisions have been held to be consistent with the Constitution (Dillane v The Attorney General and Ireland [1980] I.L.R.M. 167) might suggest that the obligation on the court to vindicate the rights of the occupier of the dwelling is by no means absolute. Furthermore, as Barron J. pointed out in a thoughtful dissenting judgment in Simple Imports Ltd v The Revenue Commissioners [2000] 2 I.R. 243, it should not be assumed that the legal position at or before entry is identical to the situation which arises when entry has been obtained, evidence is found, and it is sought to have that evidence admitted at trial. Indeed, the example of the hypothetical judge supervising the execution of the warrant and empowered to grant relief is instructive in a different way. If such a hypothetical judge’s power extended to injunctions, then by the same reasoning it must also extend to a power of rectification or conceivably to grant a fresh warrant. In the circumstances considered in this judgment, where the defect is a mere error, it would therefore be possible to correct the error, authorise the search and obtain the evidence in a lawful way. The situation therefore is not by any means as clear cut as the examples given might suggest.

  60. The argument that an absolute rule is required by the strict compliance with the Constitution does not, indeed, support the approach taken in Kenny but would in fact go significantly further. The argument should mean that accidental breaches (even within the narrow and artificial interpretation adopted in Kenny) should also be excluded. Similarly, it is difficult to square the concept of extraordinary excusing circumstances with the theory of absolute exclusion mandated by the constitutional obligation to vindicate rights since the strength of the argument is that if the constitutional right is breached, it must be vindicated by the exclusion of the evidence. If however it is accepted that there are some permissible exceptions to a rule of absolute exclusion, even narrow, then it is no longer a matter of absolute principle, and becomes a matter of balance. If some exceptions are permitted, that can only mean that the constitution contemplates some factors as limiting the requirement to exclude evidence. If so, then there is no logical reason to exclude from the balance other factors particularly if they are rooted themselves in the Constitution.

  61. Perhaps the most fundamental objection to this line of argument is that it assumes that the question in issue is only the vindication of the citizen’s right of inviolability of the dwelling home, or other property, save in accordance with law. In an action for an injunction restraining trespass ex ante or seeking damages ex post that might indeed be the only question. Even then, as discussed above, there is no absolute rule. But the admission of evidence in a criminal trial occurs in a quite different context. The central issue there is not the question of breach of the rights of the householder, but rather the performance of the constitutional obligation of the administration of justice. That involves a determination of the guilt or innocence of an individual, something that is best performed with maximum relevant probative evidence whatever that evidence proves or suggests. As the discussions in O’Brien and Leon show, traditionally the administration of justice was robust, even ruthless, in requiring that all relevant evidence be available. Grounds for excluding reliable and probative evidence are few, and strictly construed. The administration of justice under the Constitution, its truth finding function and its requirement of the availability of all relevant evidence, is a factor weighing in favour of admission of evidence. Of course, there comes a point when the administration of justice may itself require that relevant evidence be excluded, for example where the evidence was obtained in circumstances offensive to the concept of justice itself. This would itself be offensive to the administration of justice which is the fundamental obligation of a court. However, that calculation involves a balance rather than an absolute rule. The fact that the Kenny approach to the issue is one dimensional and simply addresses the question of what is the most effective deterrent to a breach of the right is in my view, a central weakness in that decision. In my opinion, the approach in Kenny fails to locate the issue as a question arising in the course of the administration of justice, and accordingly, fails to give any weight to the interests involved in the administration of justice or indeed appreciate that a balance is involved. Instead the judgment treats the damage the rule effects to the administration of the justice as simply an unfortunate collateral consequence of an exclusionary rule.

  62. It remains to consider whether there is in principle any other more persuasive justification for the rule advanced in Kenny. One suggested justification is an echo of an argument touched on in the judgment of Walsh J. in O’Brien. On this argument, the justification for a bright line rule is pragmatism rather than principle. It is said that the price of the occasional exclusion of cogent evidence where a party seeking to admit the evidence has been blameless in the breach concerned, is nevertheless preferable to the risk that evidence would be too easily admitted because, it is said, given an option, courts will inevitably succumb to pressure to admit apparently cogent evidence of guilt.

  63. There are arguments in favour of general rules, particularly if the alternative is an unbridled discretion. As Lord Shaw of Dunfermline said “[t]o remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand” (Scott v Scott [1913] A.C. 417, p. 477). It is however a difficult argument to make here. The choice here is between two different rules. Furthermore, the argument that the exclusion of evidence is a price worth paying to avoid the improper inclusion of evidence is difficult, since there is no way of counting still less valuing, the costs of either side of the balance. In particular it is not possible to say that a substitute rule is too costly, in terms of the breach of rights occasioned, when that rule has not been articulated or operated to date. If this same calculation had been made in Kenny, then it might be possible to consider if experience had borne out the prediction implicit in the adoption of the rule. However, there is in my view, little doubt but that Kenny exacts a very heavy price not merely in terms of cases terminated and evidence excluded, but, just as importantly, in respect for the law itself.

  64. Furthermore particularly in the field of warrants with which this judgment is concerned, there is surely little risk of unjustified admission of evidence obtained by unconstitutional means by trial courts exercising an unreviewable discretion. In almost every invalid warrant case, the police have sought to comply with both the Constitution and the law by seeking and obtaining a warrant. The question rarely involves any subjective consideration of motive. The error or defect once identified is normally apparent, and the reasons clear. Accordingly a trial court has a very clear view on objective factors and its determination is equally open to review on appeal. It is a normal function of law and in particular case law, to seek to draw nuanced rules in an incremental fashion, and I do not consider that it is impossible to devise a rule which distinguishes clearly between those cases where a warrant is technically invalid but the evidence ought to be admitted, and those cases where evidence obtained in breach of the Constitution should be excluded. The experience of other common law jurisdictions also suggests this is so. It is in any event both offensive and self defeating to devise a judicial rule of absolute or near absolute exclusion on the basis that courts will not enforce rules of exclusion. In my view there is no reason in principle or pragmatism which requires the absolute or near absolute rule in Kenny.

    Analogous Areas

  65. It is noteworthy that in a number of areas Irish courts have confronted similar questions and rejected any absolute or nearly absolute rule. For example the Irish courts have never adopted the United States doctrine of “fruit of the poisoned tree”. It must be acknowledged that there is a logic to this doctrine and that it is consistent with the logic of Kenny. If the sole question for a court is the remedy of the breach of the constitutional right, and thus to seek to restore the person to a situation where the breach had not occurred, then the court should not merely stop at excluding evidence obtained directly as a result of an invalid search, but should exclude all evidence shown to flow from that search. Any such evidence would not have been available, or even known, had the illegal and unconstitutional search not taken place. But the Irish courts have never accepted this position (see Curtin v Dáil Éireann [2006] 2 I.R. 556). Similarly this Court has decided that unconstitutionally obtained evidence may nevertheless be a permissible basis for seeking a valid warrant (The Director of Public Prosecutions (Gda Walsh) v Cash [2010] I.R. 609). Once again, if the obligation were merely to vindicate the rights of the citizen, and to seek to restore them to a position where the breach had not occurred, then the evidence obtained should not be treated as being available for any purpose adverse to the householder.

  66. Another analogous area is that of appearance in court consequent on an initial invalid arrest. This Court has had occasion to deal with arguments made arising from an apparently invalid arrest and subsequent remands before the District Court. However, it is well established that the fact that an initial arrest was unlawful (and therefore unconstitutional) does not invalidate everything which follows even though it can properly be said that a person would not have been before a court, were it not for an initial invalid arrest which brought him or her on the first occasion before the court, from which he or she was then remanded. As long as the presence of the accused has not been obtained by deliberate and intentional breach of rights such as that which occurred in The State (Trimbole) v The Governor of Mountjoy [1985] I.R. 550, all further steps are valid. See the concurring judgment of McKechnie J. in Whelton v O’Leary [2011] 4 I.R. 544, where the law is helpfully analysed. It is plain therefore that the Kenny approach is not taken here.

  67. Another example occurred in the decision in Hanafin v Minister for the Environment [1996] 2 I.R. 321. There, it will be recalled, the Court had to deal with the consequences of unconstitutionality identified in McKenna v An Taoiseach (No. 2) [1995] 2 I.R. 10, where the government had been found to have acted unconstitutionally in expending public funds on one side of a referendum campaign. It was argued that the Court should apply the reasoning in Kenny, and invalidate the referendum result. That argument was rejected by the Court. O’Flaherty J. said at page 434:

    .... I do not think anything is to be gained by assigning a description of “deliberate and conscious violation” on the Constitution, as opposed to innocent wrong-doing, to the Government’s action. Either of those descriptions are more appropriate to police action by servants of the State and, in general, would be inappropriate to apply to Government action when the Government is exercising the executive power of the State.

  68. Finally, in A v The Governor of Arbour Hill Prison [2006] 4 I.R. 88, the Court rejected an argument that once an act had been declared unconstitutional it necessarily followed that all steps taken on foot of it were void. As Murray C.J., as he then was, observed, “the law is too old and too wise to be applied according to a rigid abstract logic or a beguiling symmetry”. In this and in other areas the life of the law has not been logic but experience. That may involve recognising that a number of different values are involved. It is of course possible to present an argument in favour of an absolute rule as somehow more simple and therefore (and more dubiously) a more principled approach, but there are many problems which are complex and which require nuanced solutions. As Albert Einstein is reputed to have said, things should be made as simple as possible, but not more so. Whether for this reason or others it is certainly the case, that the supposed remorseless logic of Kenny has not been applied in other immediately comparable areas of Irish law.

    International Authorities

  69. The judgment of Kingsmill Moore J. in O’Brien makes clear that this is an area where it is particularly appropriate to consider how this question has been dealt with in other common law countries sharing a comparable value system. Indeed it seems clear that the judgment in O’Brien was influenced by the decision of the Scottish court in Lawrie v Muir and the then recent decision of the US Supreme Court in Mapp. In considering this jurisprudence I do not lose sight of the argument made on behalf of the respondent that the constitutional provision in Ireland is not comparable to any other country, and that the Irish Constitution imposes a uniquely high standard upon the court in requiring it to vindicate the personal rights of the citizen in the case of an injustice done. However, as already noted, the Constitution does not specifically address the question of admission of evidence. Furthermore, Article 40.3.2 has been a constant while the law on admissibility of evidence has moved from near absolute admission prior to O’Brien, and a balancing test post O’Brien, to a new rule of near absolute exclusion post Kenny. It is difficult to argue therefore that any particular rule is mandated by the Constitution to the exclusion of all argument. There are clear resonances in the manner in which the question has been considered in other common law jurisdictions. In each jurisdiction courts have had to consider the admissibility of evidence obtained in circumstances amounting to a breach of rights considered fundamental. I consider it useful therefore to consider these cases while acknowledging that this is ultimately a matter for the Irish courts.

    The Law of the United States

  70. As addressed in part in Kenny itself, Mapp v Ohio, however it may have seemed in 1963, did not succeed in establishing itself as a fixed part of the jurisprudence of the US. It was criticised almost immediately, and the period since 1963 has seen considerable qualification and retrenchment of the absolute rule established in Mapp for all criminal prosecutions whether State or Federal. In a recent influential book by the late Professor William Stuntz The Collapse of the American Criminal Justice (Harvard; Harvard University Press; 2011) it was labelled one of the errors of the Warren court.

  71. In considering this jurisprudence it is relevant to remind ourselves, that the US courts exclude all evidence which can be shown to have been acquired as a direct result of evidence itself obtained in circumstances rendering it inadmissible. Such evidence is treated as the “fruit of the poisoned tree”. However the US courts have held that where evidence was obtainable from an independent source, or would inevitably have been discovered, it may be admitted. There is also a doctrine of attenuation which provides, that if there is any intermediate act which separates the violation of the right from the evidence obtained, the evidence may be admissible. Of course, in Leon, the Court also held that evidence held in good faith execution of a warrant subsequently found invalid, could be admitted. The scope of the rule has also been narrowed and it has been found inapplicable to civil tax proceedings, habeas corpus proceedings, deportation proceedings, and, in United States v Calandra 414 U.S. 338 (1974), to proceedings before a grand jury. The reasoning of Justice Powell in that case has been influential more generally (pp. 348 and 354):

    Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use illegally seized evidence in all proceedings or against all persons. 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.

    In the context of a grand jury proceeding, we believe that the damage to that institution from the unprecedented extension of the exclusionary rule urged by the respondent outweighs the benefit of any possible incremental deterrent effect.

  72. In Hudson v Michigan 547 U.S. 586 (2006), the court addressed the substance of the rule and whether evidence obtained in breach of the “knock and announce” requirement, should be excluded. Justice Scalia speaking for the Court held that such evidence should be admitted:

    Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates ‘substantial social costs,’ United States v Leon  .... which sometimes include setting the guilty free and the dangerous at large. We have therefore been ‘cautio(us) against expanding’ it,  .... and ‘have repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging (its) application’ .... We have rejected ‘[i]ndiscriminate application’ of the rule .... and have held it to be applicable only ‘where its remedial objectives are thought most efficaciously served’ .... that is, ‘where its deterrence benefits outweighs its substantial social costs’.

    In the influential comment in the Harvard Law Review, the editors of that review noted (120 Harv. L. Rev. 173 (2006)):

    The majority’s reasoning in Hudson represents a significant step toward eliminating the exclusionary rule.

  73. This prediction has been borne out by subsequent decisions. In Herring v United States (555) U.S. 135 (2009), the court dealt with an arrest made on the basis of a warrant listed on a neighbouring county’s database of warrants. It transpired that the warrant had been recalled months earlier, but the information had been not entered until after the date of the arrest. However on a search consequent to the arrest, the police found a gun and drugs. It was argued that this evidence ought to be suppressed because the arrest ought not to have been effected. Roberts C.J. observed:

    Our case establishes that .... suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.

    The court identified the matter of principle as follows:

    To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can deter and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.

    This is a useful analysis of the rationale of the rule and the limits that suggests. Significantly in the present context, it would mean exclusion for breaches which were reckless, grossly negligent and possibly systemically negligent, even if not deliberate and conscious.

  74. In 2011 the Court decided Davis v United States 564 U.S. (2011). While conducting a routine vehicle stop police arrested Davis, a passenger, for giving a false name. Having handcuffed him and secured the scene, the police searched the vehicle and found a revolver. The search was held to be unconstitutional but was in accordance with the law of the relevant circuit, at the time the search was carried out. A majority of the Court held that the evidence was admissible. Justice Alito said that the exclusionary rule:

    .... [A]lmost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment .... Our cases hold that society must swallow this bitter pill when necessary, but only as a ‘last resort’. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.

    I appreciate that there are dissenting arguments and other views expressed. It is not however necessary to express my views on the strengths or merits of the many different theories advanced. It is not necessary to accept all of the subsequent jurisprudence of the US Supreme Court anymore than it was necessary to accept Mapp. But the inescapable fact is that the US, which at one stage had the most far-reaching exclusionary rule, has long since abandoned an absolute or near absolute exclusionary rule.

    United Kingdom

  75. The law of evidence and criminal procedure was largely codified in the Police and Criminal Evidence Act 1984. Section 78(1) preserves the common law power to exclude evidence where its prejudicial value outweighs its probative value. Section 78(2) provides that a trial judge should have discretion to exclude evidence obtained from a search if its admission would render the proceedings unfair.

  76. It is particularly noteworthy that this balancing test has not been affected by the entering into force of the European Convention on Human Rights Act. In Attorney General’s Reference (No 3 of 1999) [2001] 2 A.C. 91, the judgment of Lord Cooke of Thorndon contains a useful analysis of the law of other common law countries, which he considered was broadly similar to the law under the European Convention (p. 120):

    It may be worth adding that just as in the European Convention law, as Lord Steyn has pointed out, there is no principle that unlawfully obtained evidence is not admissible, so there is no such general principle in Commonwealth countries. Approaches differ somewhat among the jurisdictions. Thus in Canada evidence obtained in breach of the Charter will be excluded if its admission is likely to bring the administration of justice into disrepute (R v Collins [1987] 1 SCR 265); in Australia the leading cases recognise a judicial discretion in which the competing demands of the public interest in the prevention and punishment of crime, on the one hand, and fairness to the accused, on the other, have to be weighed (Bunning v Cross (1978) 141 CLR 54; Ridgeway v The Queen (1995) 184 CLR 19); and in New Zealand, while it has long been held that the judicial discretion to exclude unfairly obtained evidence is wider than that recognised in England at common law in R v Sang (1980) AC 402 and Kuruma v The Queen [1995] AC 197, a line of cases has treated evidence obtained in breach of the semi-constitutional provisions of the Bill of Rights as prima facie inadmissible but subject to exceptions created by overriding demands of justice ....

    It should be noted that this passage states the law as of 1999, and in two of the countries surveyed, Canada and New Zealand, there has been a significant development of the law, and in each case in the direction of the greater admission of evidence.

    Canada

  77. The development of the jurisprudence of fundamental rights in Canada since the adoption in 1982 of the Charter of Fundamental Rights (“the Charter”) has been remarkable. Canadian jurisprudence represents an intersection between common law and constitutional rights which makes it a useful point of reference for Irish courts. Unusually, the Charter specifically addresses the consequence of the obtaining of evidence in breach of a Charter right. Section 24(2) of the Charter requires the court to exclude from a criminal trial any evidence obtained in a manner that infringed or denied a Charter right if, in all the circumstances, admission of the evidence could bring the administration of justice into disrepute. It is pointed out by the respondent that in so providing, the Charter excludes the possibility of an automatic absolute exclusionary rule such as that which briefly held sway when Mapp represented US law. However, this distinction, while valid, is not a convincing reason to disregard the Canadian jurisprudence. The definition of circumstances bringing the law into disrepute is a matter for the court, and accordingly, leaves a broad area for decision. It would in theory have been possible to argue that a near absolute exclusionary rule (subject to exceptions) was required to prevent the administration of justice being brought into disrepute. In any event, the discussion of the question of what constitutes the bringing of justice into disrepute is instructive, since the values considered are similar to those which are discussed in all jurisdictions including Ireland.

  78. The Canadian courts have adopted two broad tests as justifying exclusion, firstly, where the exclusion is required because it would otherwise effect the fairness of the trial, and second, where there has been a “serious violation” of the Charter rights. In the first case, evidence that could not have been collected but for the unconstitutional participation of the accused is regarded as affecting the fairness in the trial and would normally be excluded. In the second case, the gravity of the Charter violation may lead to exclusion, irrespective of the impact on the fairness of the trial. In such a case it becomes necessary to consider, in terms reminiscent of O’Brien, whether the breach of the Charter was deliberate or inadvertent. Where a violation of the Charter occurs in good faith, exclusion of evidence is not required. The Canadian Supreme Court has defined good faith widely to include reliance upon legislation, warrants, policy directives, prior cases, legal advice or accepted practice, which were later found to be unconstitutional. In R v Collins [1987] 1 S.C.R. 265 (“Collins”), which was referred to by Lord Cooke in the UK case of the Attorney General’s Reference (No 3 of 1999), the Supreme Court adopted a rule of presumptive exclusion. Lamer J. noted a number of factors which had been enunciated in the previous cases in the exercise of judicial discretion under s. 24(2) (para. 35):

    What kind of evidence was obtained?

    What Charter right was infringed?

    Was the Charter violation serious or was it of a merely technical nature?

    Was deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?

    Did it occur in circumstances of urgency or necessity?

    Were there other investigatory techniques available?

    Would the evidence have been obtained in any event?

    Is the offence serious?

    Is the evidence essential to substantiate the charge?

    Are other remedies available?

  79. Once again the similarity of these factors to those canvassed in other jurisdictions including Ireland, is instructive. Lamer J. indicated that this was not an exhaustive list and gave his own view that the final factor – the availability of other remedies – was not particularly relevant as it could never save the administration of justice from disrepute. While these factors are of obvious relevance in the current context, the Collins approach focussed on whether evidence could be said to be “conscripted from the accused and also sought to distinguish between real evidence and other evidence”. The rigidity of the test was criticised, and the Court returned to the issue in R v Stillman [1997] 1 S.C.R. 607 (“Stillman”). That case, as many of the cases in this area, concerned the admission in evidence of swabs and other real evidence taken from an accused in breach of his rights. In this case, the appellant was accused of the murder and rape of a teenage girl. At the time of his arrest he was 17 years old. At the police station the appellant’s lawyers informed the police by letter that he did not consent to providing bodily samples or giving any statements. Notwithstanding this, the police officers took scalp hair samples from him and he was required to pull out some of his own pubic hair. Teeth impressions were also taken and discarded tissue used by the appellant was seized from the waste basket. The trial judge found that the evidence was taken in violation of the appellant’s Charter rights. However he held the evidence to be admissible. The Court of Appeal upheld the accused’s conviction. The Supreme Court of Canada held however that the hair samples, buccal swaps and dental impressions should have been excluded. A new trial was ordered. However, the Court held that the evidence obtained from the discarded tissue was admissible. One of the significant features for the Court was the fact that the evidence obtained could have been obtained properly, and was not in any danger of disappearing.

  80. The law emerging from Stillman and Collins was criticised as creating an exclusionary rule which was a narrow bright line rule and did not permit effective consideration to be given to other relevant factors. In 2009 the Canadian Supreme Court decided R v Grant [2009] 2 S.C.R. 353 (“Grant”). This set a new analytical framework for considering whether evidence should be excluded (pp.357 – 358):

    When faced with an application for exclusion under s.24(2), a court must assess and balance the effect of admitting the evidence and society’s confidence in the justice system having regard to:

    (1)

    the seriousness of the Charter-infringing State conduct,

    (2)

    the impact of the breach on the Charter-protected interest of the accused, and

    (3)

    society’s interest in adjudication of the case on its merits.

    At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on these interests the greater the risk that admission of the evidence would bring the administration of justice into disrepute. At the third stage, a court asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of evidence and its relevance to the Crown’s case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case.

  81. In that case, Grant, the police had noticed the accused acting suspiciously and approached him. One of them obstructed him from walking forward and a conversation then took place during which he told the police that he had a “small bit of weed” and a firearm. He was then arrested and the gun and drugs were seized. The Court of Appeal held that he had been wrongfully detained in contravention of the Charter at the time in which he made the incriminating statements and was arrested. The Supreme Court held that the evidence although obtained in breach of a Charter right, was admissible. The infringement was not serious and the evidence cogent and important.

    New Zealand

  82. Perhaps the most interesting analysis from an Irish perspective, is that undertaken in New Zealand after the enactment of the New Zealand Bill of Rights Act of 1990. Initially, the courts in New Zealand had adopted the approach that evidence obtained as a result of breach of the rights guaranteed by the Bill of Rights was presumptively excluded unless the prosecution satisfied the courts that there was good reason for admitting the evidence. The prima facie rule was criticised as becoming unduly rigid and in R v Shaheed [2002] 2 L.R.C. 634 (“Shaheed”) the New Zealand Court of Appeal conducted a review of the approach in the light of experience since the enactment of the Bill of Rights. The prima facie exclusion was replaced with a balancing test.

  83. Shaheed was, like Collins, a case involving DNA evidence. However, whereas Collins involved the taking of samples from the suspect after the crime, Shaheed involved the failure to dispose of a sample taken earlier from which a critical DNA match was made.

  84. The case involved the abduction and rape of a 14 year old girl. While detained for a separate offence a year earlier, the defendant was asked for a blood sample from which a DNA profile could be extracted and retained. It was this sample which was matched to the DNA taken from the victim. That victim later identified the accused from a photo montage. However, it was conceded that the original DNA sample was not taken with the full consent of the accused, was therefore obtained unlawfully, and accordingly in breach of the rights guaranteed under the Bill of Rights. The matter however did not end there. An application was then made to the High Court to obtain a sample by court order, it being submitted that there was “good cause to suspect ” that the accused committed the crime. However the Crown did not in this application rely on either the earlier DNA sample or the identification. The application was granted and an issue arose then as to the admissibility of that evidence at the trial.

  85. By a majority of six to one, the Court of Appeal of New Zealand replaced the prima facie exclusionary rule with a balancing test consistent with that applied by the Privy Council in the Trinidad and Tobago case of Mohammed v The State [1999] 2 A.C. 111. There the evidence concerned a confession obtained in breach of a defendant’s constitutional right to be informed of a right to communicate with a legal advisor under the Constitution of Trinidad and Tobago. Lord Steyn held that a balancing test must be applied (p. 124):

    In such a case not every breach will result in a confession being excluded. But their Lordships make clear that the fact that there has been a breach of constitutional right is a cogent factor mitigating in favour of the exclusion of the confession. In this way the constitutional character of the infringed right is respected and accorded a high value. Nevertheless, the judge must perform a balancing exercise in the context of all the circumstances of the case. Except for one point their Lordships do not propose to speculate on the varying circumstances which may come before the courts. The qualification is that it would generally not be right to admit a confession where the police have deliberately frustrated a suspect’s constitutional rights.

    This echoes the approach taken in O’Brien in considering that deliberate breach would normally justify exclusion.

  86. The Court of Appeal of New Zealand in Shaheed recognised that there were arguments favouring a prima facie rule of exclusion. Principally these were that they recognised the importance of a guaranteed right, exclusion may be the only effective means of vindicating a breach, such a rule would diminish any appearance that the courts are deciding cases on the basis of ends rather than means, and it has the benefit of making clear to the police or investigating authorities that there is no utility in obtaining evidence via breach of rights. The Court of Appeal observed that there was much force in these arguments but there were other considerations (p. 683):

    But a balancing test in which, as a starting point, appropriate and significant weight is given to the fact that there has been a breach of a quasi constitutional right can accommodate and meet them. Importantly, a prima facie rule does not have the appearance of adequately addressing the interest of the community that those who are guilty of serious crimes should not go unpunished. That societal interest, in which any victim’s interest is subsumed, rather than being treated as a separate interest, will not normally outweigh an egregious breach of rights – particularly one which is deliberate or reckless on the part of law enforcement officers. But where the disputed evidence is strongly probative of guilt of a serious crime, that factor too must be given due weight. A system of failed justice will not command the respect of the community if each and every substantial breach of the accused’s rights leads almost inevitably to the exclusion of crucial evidence which is reliable and probative of a serious crime. The vindication will properly be seen as unbalanced and disproportionate to the circumstances of the breach.

  87. This is reminiscent of the observations Lavery J. made almost half a century earlier in the context of O’Brien. Blanchard J. observed that where a breach had been committed in deliberate or in reckless disregard of the rights of the accused, exclusion would often be the only appropriate answer. However, in considering what was a deliberate breach of a constitutional right, Blanchard J. expressly considered the decision of this Court in Kenny and refused to follow it (p. 684):

    We would not, however, subscribe to the Irish view of what constitutes deliberate breach, but would confine it to acts or omissions which are to the knowledge of the officers concerned a breach of rights. An action not known to be a breach of rights does not merit the same degree of condemnation as one which is known to be so, particularly if the police error arose from a genuine misunderstanding of a difficult legal complication.

    This is an important point. It is a valid observation, and on one view, criticism of the rule in Kenny, that it treats deliberate or reckless breaches of rights in exactly the same way as an error arising from a genuine misunderstanding of a legal complication or as in this case (and in Kenny) an error in anticipating a decision not yet made.

  88. The Court of Appeal of New Zealand took a different view from that of the Supreme Court of Canada in relation to the importance of real evidence. The New Zealand court was prepared to accord greater weight to the factor that such real evidence obtained may be of probative value (p. 685):

    .... where real evidence, like drugs or a weapon, have been found even as a result of a confession, the probative value of that discovery may be a weighty factor. The Supreme Court of Canada’s view of trial unfairness as encompassing even the use of real evidence of undoubted reliability should not be adopted in this country. A trial is not to be regarded as potentially unfair by reason of the admission of evidence unless that evidence might lead to an unsafe verdict.

  89. The decision in Shaheed was adopted in the New Zealand Evidence Act of 2006. Section 30 of that Act required that a judge determine whether on the balance of probabilities the evidence had been improperly obtained, and if so whether the exclusion of evidence was proportionate to the impropriety. In considering that matter, the Court may among other matters, have regard to the following (s. 30(3)):

    (a)

    the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

    (b)

    the nature of the impropriety, in particular, whether it was deliberate, reckless or done in bad faith:

    (c)

    the nature and quality of the improperly obtained evidence:

    (d)

    the seriousness of the offence with which the defendant is charged:

    (e)

    whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

    (f)

    whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:

    (g)

    whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:

    (h)

    Whether there was any urgency in obtaining the improperly obtained evidence.

    South Africa

  90. Since this case was argued I have had occasion to consider the decision of the constitutional court of South Africa in Estate Agency Affairs Board v Auction Alliance (Pty) Ltd (2014) Z.A.C.C. 3 (“Estate Agency Affairs Board”), which should be included in this survey if only for the purpose of completeness. It is a case which has some obvious resonances for this case. Of course, case law from any jurisdiction must be put in its proper context, and approached with a certain amount of caution. Further, the South African Constitution, and its role, is in some respects quite distinct, and the role of the constitutional court avowedly different to that of courts in other countries. In this case it is necessary to know that s. 172 of the South African Constitution permits the Court to make a variety of orders when a declaration of unconstitutionality is made. It may suspend the effect of the declaration and may limit its retrospective effect. It may also make such orders as it considers appropriate.

  91. In the Estate Agency Affairs Board case, the Board was a regulatory authority given statutory power to regulate the business of estate agencies. This was considered an important public objective because of the amount of money found to flow through such businesses. Section 32(A) of the Estate Agency Affairs Board Act of 1976 permitted the agency to conduct investigations and for that purpose, at reasonable times, to enter without warrant, any premises to search and retain documentation related to the investigation.

  92. The South African High Court held that such power was over broad and therefore unconstitutional. That finding was not challenged in the constitutional court and the principal focus of the decision was the consequential orders which were to be made. The Constitutional Court made an order that the declaration of invalidity should be prospective only, and furthermore should be suspended under s.172 for a period of 24 months to allow the legislature to amend the Act and to make it consistent with the constitutional principles and in particular by requiring the application to an independent authority for the grant of a warrant. The court also exercised its powers to read down certain statutory provisions to permit the issuance of a warrant in certain circumstances. The Court however, rejected an argument made on behalf of the Estate Agency Affairs Board that it could itself issue a warrant in the exercise of its full jurisdiction and thus validate the search in question.

  93. The important question remained however what should become of the evidence gathered under the unconstitutional search conducted pursuant to an invalid and unconstitutional warrant. The actual evidence itself had been retained and held pending the determination of the Court. It was argued on behalf of the respondent to the appeal that the evidence should now be returned to the defendant who could, if he wished, destroy it. The Court rejected that argument holding that the Board should be entitled to make an application for a search warrant and if granted would then be entitled to use the evidence. The relevant portion of the reasoning of the Court is set out at paragraphs 68 and 69 of the judgment:

    .... the board should be enabled to apply for the warrant it seeks under the provisions of the statutes as they appear after the reading in ordered below. For its part, Auction Alliance resisted affording the board this opportunity. It strongly urged that this would be unfair. It pointed out that it had resisted the board’s exercise of statutory powers, and its challenge had shown those powers to be unconstitutional and invalid. There must, it said, be some consequence. And the consequence is that the evidence to which the board seeks to gain access should be lost to it. That, counsel for Auction Alliance urged, was the price we pay for living in a constitutional democracy.

    But this is surely wrong. Constitutional litigation is not a game of win-or-lose in which winners must be identified for reward, and losers for punishment and rebuke. It is a process in which litigants and the courts assert the growing power of the constitution by establishing its meaning through contested cases. In practical terms, it was unrealistic to expect of the board that it should understand perfectly in advance that the powers it sought to exercise against Auction Alliance were or would be declared unconstitutional. It is not liable to a penalty because it tried to use statutory provisions this litigation has now determined are constitutionally invalid. (Compare Illinois v Krull (1987) 480 US 340 at 349 – 350, where it was deemed unnecessary to exclude evidence obtained under a statute authorising warrantless administrative searches where the search was performed in objectively reasonable reliance on the statute and the statute was only later declared unconstitutional.)

    Academic Consideration

  94. Until recently, notwithstanding the near absolute nature of the rule, and the considerable controversy in other jurisdictions the exclusionary rule did not receive much academic scrutiny in Ireland. That however has changed somewhat in recent times. The decision in Kenny was subjected to penetrating criticism in Charleton, McDermott & Bolger, Criminal Law, (Dublin; Butterworths; 1999), pp. 134-138, prefiguring the approach of Charleton J. in The Director of Public Prosecutions (Gda Walsh) v Cash [2008] I.L.R.M. 443). The matter is also addressed in two places in McGrath, Evidence, (Dublin; Thomson Round Hall; 2005; 1st ed.). In the foreword, Keane C. J. (as he then was) said that this was an area of law in need of “clarification or even radical reform”. He observed that (p. xviii):

    One can resist the proposition that in a case of what the law has sometimes called “real evidence”, such as illegal drugs found in a house, courts should not be obliged to decide the case without regard to the existence of such evidence, however it has been obtained. But there is surely room, in the case of trivial law and intended infringements of a person’s constitutional rights, for a process of balancing the need to uphold the rights of particular individuals the interest of the public in the prosecution of serious crime.

    The same work contains a very detailed analysis of the decisions in O’Brien and Kenny. At page 338 the author comments on Kenny as follows in a passage which it is worth quoting in full:

    A number of criticisms can be made of the decision of the majority in Kenny. The first and most obvious is the judgment .... is based on the false premise that the court was required to make a choice between two possible alternatives, the “deterrent principle” and the “principle of absolute protection”. Central to the judgment .... was the unstated proposition that, once the theory of vindication is accepted as the rationale for the exclusionary rule, it necessarily follows that all unconstitutional evidence must be excluded i.e. an “absolute rule of exclusion” must be adopted.

    However, this is not the case. In the first place, it is important to emphasise that the exclusionary rule is a judicially created remedy. It is open to the courts to decide the parameters of the rule and to hold that the compensatory effect of the rule should only be available where the person who has breached the constitutional rights of the accused has a particular intention or state of knowledge. Secondly, insofar as the vindication principle is founded on the provision of the Constitution and in particular Article 40.3, it is evident that the obligations imposed on the State by Article 40.3 are qualified by considerations of practicality and the State guarantees to defend and vindicate the personal rights of the citizen “as far as practicable” and to protect those personal rights “as best it may” from unjust attack. These limitations were adverted to in Moynihan v Greensmyth [1977] I.R. 55 where O’Higgins C.J. stated:

    The guarantee of protection given by Article 40.3.2 is qualified by the words “as best it may”. This implies circumstances in which the State may have to balance its protection of the rights as against other obligations arising from regard for the common good.

    Arguably the impairment of the truth finding function of the courts entrusted, under the Constitution, with the task of administering justice, places a limit on the practicality of vindicating the constitutional rights of the citizen. The courts could therefore, consistent with the text and underlying policy of Article 40.3, decide that the judicially created remedy of the exclusionary rule should be tempered in its application by regard to the constitutional rights of others such as the rights to life, bodily integrity and property, of the victims of the crime, or more generally the interests of the community in the prosecution of offenders. Thirdly, the exclusionary rule espoused in Kenny does not, in fact, provide an “absolute rule of exclusion” because [the court] endorsed the holding in O’Brien that that exclusionary rule would not apply if there was an extraordinary excluding circumstances. These exceptions, which as enumerated .... in O’Brien, include the imminent destruction of evidence and the need to rescue a victim in peril, are clearly predicated on the proposition that there are circumstances which the vindication of the constitutional right of the accused is not required because of competing constitutional rights of the public interest in the prosecution of offenders ....” Another criticism of the decision in Kenny is that the Court, having effectively reclassed the O’Brien exclusionary rule, failed to dispense with the requirement that a breach of constitutional rights be “deliberate and conscious”. Although the etymology of this formulation is evident, its retention is confusing and furthermore, its reinterpretation as meaning that the act constituting the breach was intentional is illogical. If the court .... is adopting an “absolute rule of exclusion”, then it would seem to be irrelevant whether the act that breached the constitutional right of the accused was “deliberate and conscious” because the application of the exclusionary rule would be triggered by the mere fact that the constitutional right had been breached. Thus, the retention of the requirement that the breach be “deliberate and conscious” does not make any sense and the only value in its retention would be its function as a quasi minimis qualification. Yet it performs this function only inadequately, and it would be much better to actually articulate a de minimis threshold.

    This passage is repeated and expanded on at paragraphs 749-774 of the 2nd edition (2014) of that work. The law, and recent developments are also helpfully discussed at pages 375-406 of Evidence in Criminal Trials, Heffernan and Ní Raifeartaigh, Bloomsbury, Dublin, 2014, which help survey the law and discusses the possibility of a tightly drawn de minimis exception to the exclusionary rule. These books were published since argument was completed in this case, and I mention them for the sake of completeness.

    Conclusion

  95. From this survey of the law of comparable jurisdictions and commentary in relation to Kenny it is possible to draw certain conclusions. First, it seems clear that Kenny represents a near absolute exclusion which is the most extreme position adopted in the common law world. Second, it is apparent that on analysis, the exceptions allowed for in Kenny have little or no scope for practical application particularly in the case of warrants. Viewed in that way, Kenny is perhaps worse than an absolute rule: it presents itself as superficially balanced while in practice always resulting in the exclusion of evidence. It also suffers from the defect, at least in my view, that it effects a very dramatic recalibration of the law, while purporting to maintain superficial consistency with the decision in O’Brien and adopting its language. Whatever justification there is for the result in Kenny it is unlikely that an acceptable test can be achieved by maintaining the superficial language and structure of O’Brien. Furthermore, whether viewed as a near absolute rule, or as a rule subject to limited exceptions, the reasoning in Kenny is simply not sufficient to justify either conclusion.

  96. On the other hand, I do not consider that the choice should be between Kenny (or some franker version of an absolute rule) and a return to O’Brien. It is I think, apparent that a rule which only excluded evidence obtained in deliberate breach of the constitutional rights is inadequate, and indeed it is this inadequacy which led in part to the result in Kenny. Any rule of exclusion should also exclude evidence obtained in reckless or grossly negligent disregard of the Constitution. Furthermore, while the foreign authorities and commentaries show an impressive consistency in rejecting any approach akin to Kenny, and suggesting that there should instead be a balancing approach, there is less consistency as to how that balance should be applied either in theory or in respective individual cases.

  97. It is necessary therefore to confront, at the level of principle, the question of whether an absolute rule is required by the Constitution, in particular Article 40.3.2. It is relevant that there does not appear to be any authority in Irish law, and no contemporary law of any common law country, for such a rule. It is of course the case that the Constitution does not require the exclusion of evidence in express terms, and indeed says nothing about the admission of evidence. As is often the case, it is important therefore to identify the correct question to be posed. If this issue is addressed solely in terms of the vindications of a right breached, then it is a short step to the exclusion of evidence. But in my view that is the wrong question. A court, whether criminal or civil, addressing the admissibility of evidence is not engaged in the question of remedying a breach of the right, as a court asked to grant an injunction to restrain a trespass might be. A criminal or civil trial is the administration of justice. A central function of the administration of justice is fact finding, and truth finding. Anything that detracts from the courts’ capacity to find out what occurred in fact, detracts from the truth finding function of the administration of the justice. As many courts have recognised, where cogent and compelling evidence of guilt is found but not admitted on the basis of trivial technical breach, the administration of justice far from being served, may be brought into disrepute. The question is at what point does the trial fall short of a trial in due course of law because of the manner in which evidence has been obtained? When does the admission of that evidence itself bring the administration of justice in to disrepute? This analysis leads inevitably to a more nuanced position which would admit evidence by reason of a technical and excusable breach, but would exclude it where it was obtained as a result of a deliberate breach of the Constitution. The challenge is to identify some dividing line between these two extremes and which gives clear guidance to courts faced with more difficult questions. But in my view, there is neither authority nor constitutional justification for an absolute rule or near absolute rule of exclusion.

  98. Furthermore, it only makes sense to adopt a bright line rule, where there is no alternative rule which is feasible. A rule of near automatic exclusion extracts a heavy price in the exclusion of evidence obtained as result of inadvertence, good faith or excusable error. If a rule can be devised which admits evidence in such cases while still excluding other evidence obtained as a result of a breach of constitutional rights, then there is no justification for an absolute rule. It may be argued however, that any exception will come to be exploited to allow for the routine admission of evidence particularly in difficult cases. I do not doubt the possibility of judicial error from a misguided approach to the law, an occasional lapse of judgment, or a lack of sufficient robustness, but I do not think that such frailty is limited to trial courts. However, it would be entirely dispiriting, and ultimately futile, to devise rules on the assumption that they would not be conscientiously followed by courts whose judges make the same declaration to uphold the Constitution that this Court does. The remedy for judicial error is the same in this field as elsewhere: a requirement that judges give reasoned rulings on issues, with the possibility of review and appeal. This provides an incentive in advance to rigorously scrutinise the facts and apply the law, and a remedy in the event that it is not done. This is the system which applies in all other fields of the law, criminal and civil, and I see no reason why it should not be adopted here.

  99. I am satisfied that the decision in Kenny is wrong in principle and should be overruled. I am conscious that this Court does not take such a course lightly. There is no doubt that this Court has the power to reverse an earlier decision (The Attorney General v Ryan’s Car Hire [1965] I.R. 642); that it should not do so in general, simply because it comes to a different conclusion, but only where the previous decision is clearly wrong, and moreover, cannot be said to have become inveterate, or become the basis of a shared understanding of the law, (Mogul of Ireland Ltd v Tipperary (North Riding) County Council [1976] I.R. 260), This principle does not apply with the same force in constitutional matters (per Keane J Denham J concurring in SPUC v Grogan [1998] 4 IR 343 ) but even there the doctrine of precedent has an important role which makes the court cautious in overruling its prior decisions. I should say that notwithstanding the views expressed by Mr Justice Mc Kechnie in his comprehensive and admirable judgment, which I respect, Kenny would seem a particularly inappropriate decision to benefit from this principle given the fact that it accords no such respect to the decision in O’Brien (which, on the view I take, it overruled implicitly), and the decision in Shaw, which on any view it explicitly overruled. However, having considered the matter carefully, I am satisfied that the decision in Kenny is wrong by any standard. I am however satisfied that it would not be appropriate to allow the law merely to revert to that outlined in O’Brien. For reasons I have sought to address at some length there are difficulties with that approach, which the intervening years have illustrated. I agree with the approach suggested in the judgment of Clarke J. Since I agree that it is desirable to have the maximum clarity in this area I do not consider it useful to seek to paraphrase that test or say more than appears to me to be consistent with my analysis of the law in this area.

  100. In the judgment which he has delivered, Mr Justice Hardiman holds that the right of prosecution appeal created by s. 23 of the Criminal Procedure Act 2010, does not permit the Court to consider whether or not Kenny was correctly decided. Mr Justice Murray and Mr Justice Mc Kechnie express a similar view. On this interpretation the appeal under s.23 is limited to cases which can be said to be examples of judicial error in the application of the existing law (a wrong application of law) but does not include a decision applying a precedent binding on that judge. Even if it is contended, and is the case, that on analysis, the precedent is wrong, even a wrong interpretation of the constitution (the application of wrong law) I respect the force with which this argument is advanced, and the skill with which the supporting materials are deployed, but I cannot agree that it represents sound law, logic or indeed history.

  101. It is in my view misplaced to seek to apply to the State parties in this appeal the stinging criticism applied by Lord Atkin to his colleagues in Liversidge v Anderson [1942] A.C. 206 (“Liversidge”) not least because the State did not advance any interpretation of s. 23 as part of its appeal since this point was not raised by either party. Counsel for the respondent politely but firmly disavowed any such argument, because he considered (correctly in my view) that it represented an unjustifiably narrow interpretation of the section. In any event, the analogy with Liversidge is misplaced in another respect; the interpretation of s.23 which permits in a prosecution appeal to raise all issues of law which would be open on a defendant’s appeal, is a straight forward and natural interpretation of the section. By contrast, the thrust of the contrary argument is that principles either embodied in the Constitution, or long established in the common law, require a narrower, more limited, and if I may say so, unnatural meaning to be given to the words of the section. I would have welcomed counsel’s researches and argument on this point had it been raised as one of the issues on this appeal. It is central to the adversarial system, which is a core part of the justice administered in these courts that a party should have the ability to address argument on any matter which might be decided adverse to him. I recognise the value which judicial researches may bring to a case, but I respectfully question the volume and range of materials deployed here to advance a proposition, not merely not advanced in argument but expressly disavowed, and which accordingly the opposing party has not had the opportunity of addressing in argument. Even in the absence of such argument however, it appears to me that there are fundamental objections to the interpretation advanced.

  102. Looked at first as a matter of principle, it is worth considering this issue from the point of view of a defendant who wished to appeal a conviction itself the consequence of what is contended to be the wrongful admission (or exclusion) of evidence by the trial judge in application of a binding precedent. There are at least three ways in which the ruling of the trial judge could be said by an aggrieved defendant to be ‘erroneous’ or ‘wrong’, and which he or she might seek to ‘appeal’. First, if the trial judge simply misapplied the relevant authority; second, if the trial judge misinterpreted the authority as applying (or not); and finally, if this Court or if the appeal court was persuaded that the relevant authority should be distinguished, departed from or overruled. As any lawyer knows, the line between these categories can be blurred. Sometimes appellate courts adopt novel interpretations of long standing authorities to the surprise of trial courts. Sometimes authorities are distinguished in a way which in practice amounts to a reversal. Arguably something like this occurred when the decision in Kenny purported to apply, but in reality overruled, the decision in O’Brien. Trial judges may legitimately grumble when a decision made in purported loyal application of a binding authority (with which the judge himself or herself might disagree if free to do so) is subsequently overturned because an appeal court, at whatever level in the system, has distinguished or overruled the prior authority. But until now, no one has doubted that an appellant, whether civil or criminal, is fully entitled to appeal a decision on the grounds that an error was made either because of the wrong application of a prior decision, or because of the application of a precedent which it was argued was wrong, and any point in between those two extremes. If it were otherwise, it is arguable for example, that Kenny could not have been decided in the way it was, and that it ought to have been a full answer to the argument in O’Brien, which absorbed the attention of the Supreme Court for so long, that the trial judge had merely applied the existing law. If accordingly, the words “appeal”, “error” and “wrong” can comprehend all such arguments when advanced on behalf of a defendant in a criminal trial (and indeed any party in a civil trial) it is clear, that at least prima facie, they have the same meaning included in a provision permitting for the first time the prosecution to appeal with prejudice from a ruling of a trial judge.

  103. It is perhaps possible to take a more concrete example from the facts of this case. It will be recalled that the search here took place before the challenge to the validity of the issuance of the warrant was decided in the High Court but the trial took place after this Court had upheld that challenge and reversed the High Court decision. But if the sequence was slightly different, and both the search and the Circuit Court trial had occurred after the High Court decision, and before the decision of this Court, and it was sought to exclude the evidence obtained on the grounds that the warrant was invalid and the search an unconstitutional violation of a dwelling home, the Circuit Court would, as I understand it, have been bound by the decision of the High Court in Damache v The Director of Public Prosecutions [2011] IEHC 197 and would have admitted the evidence. If the accused then appealed, I do not think it could be suggested that he was not entitled to rely on the Supreme Court decision and succeed in his appeal, merely because the trial judge had followed a decision then binding upon her.

  104. I can see no reason in logic therefore to give the concept of appeal or error or wrong, anything other than their natural and ordinary meanings, particularly as understood in the context of both criminal and civil procedure. In particular, if such a breadth of appeal is open to the defence, it is difficult to see why the ordinary meaning of the word should not be applied in the context of prosecution appeals, particularly if, as is suggested, this was an innovation introduced as part of what was described as a balancing, or rebalancing, of the criminal process, and allowing retrials in (one further) express departure from an absolute principle against double jeopardy whatever the merits or wisdom of that approach. Indeed given the fact that an erroneous but binding authority can do much more damage to the administration of justice than a single error by a trial judge, I see no reason why the legislature would seek to limit an appeal to the latter, and exclude the former. But if the legislature did see fit to do so, it would surely have said so explicitly, rather than left this conclusion to be deduced from straightforward language of apparently general application. If however in addition to the established rule that no behaviour shall be made criminal after the fact (see Article 15.5 of the Constitution and The Federalist Papers LXXXIV) there is a newly discovered principle that the common law in respect of evidence and every interpretation of statute is to be frozen as of the time of the trial or possibly the alleged offence, no matter at what level in the judicial hierarchy the decision was made, then the law would be atrophied, incapable of the sort of judicial development which has made the trial process fairer, and fully deserving of Jonathan Swift’s criticism that the rule of precedent was an exercise in finding the worst possible decision and repeating it ad infinitum. But since this is a question of interpretation I see no reason to assume the Oireachtas took this view without saying so explicitly, and can find no evidence that this limitation on the scope of appeal was contemplated.

  105. Leaving aside the statement of the Minister for Justice which is uninformative, and in any event probably excluded from our consideration by virtue of Crilly v T. & J. Farrington Ltd [2001] 3 I.R. 251, I agree that the official reports published and considered in the lead up to a change of the law, can assist in its interpretation. However, in my view the background extends well beyond the Final Report of the Balance in the Criminal Law Review Group (2007). In fact, the question of prosecution appeals with or without prejudice, have been a source of relatively active debate in Ireland not least because of the controversy that followed from the decision in The People (Director of Public Prosecutions) v O’Shea [1982] 1 I.R. 384 (“O’Shea”). As I understand it, prosecution appeals (both without prejudice and with prejudice) were considered and recommended by the 22nd Interim Report of the Committee on Court Practice and Procedure, Prosecution Appeals (Dublin; Stationery Office; 1993) and have been debated ever since. Most notable in the present context, is perhaps a very extensive Consultation Paper on Prosecution Appeals in Cases brought on Indictment which was published by the Law Reform Commission in 2002 (LRC CP19-2002), and a Final Report issued in 2006, Prosecution Appeals and Pre-Trial Hearings (LRC 81-2006) (in which, as it happens, I was involved, and which considered but did not recommend with prejudice prosecution appeals), and the Report of the Working Group, The Criminal Jurisdiction of the Courts (Dublin; Stationery Office; 2003). One thing these documents have in common is that to my mind they contain no hint of the distinction now sought to be made between the erroneous application of authority, and the application of erroneous authority. If this distinction was a live and plausible one which ultimately found expression in the 2010 Act, I think it is surprising that it would escape comment, particularly if it flows from long established principles of the common law asserted to have been embedded in the Constitution. The reports also show that the historical position in common law countries was rather more complex than some of the more emphatic judicial statements might suggest. It is in any event of particularly limited value to refer to nineteenth century statements of general principle uttered before appeal even by the defendant was a possibility, and when the outcome of a trial at first instance was binding and conclusive on both sides.

  106. Reg. (Giant’s Causeway & c., Tramway Co.) v Justices of Co. Antrim (1) [1895] 2 I.R. 603 is a dramatic case that makes for absorbing reading, not least because the member of the bench of local magistrates against whom the allegation of interest was made (not without some substance, it might be thought) was none other than Lord Macnaghten, then a member of the judicial committee of the House of Lords and regarded as a master of the common law. But it is I think dangerous, to read the judgments of Sir P. O’Brien C.J. and Johnson J. as authority for a sweeping and general proposition that in all criminal cases where “a prisoner or defendant is in danger of imprisonment, no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted” (p. 635: Lord Coleridge in The Queen v Duncan 7 Q.B.D. 198). Holmes J., who concurred in the result disagreed on that very point, and went to some lengths to establish that where an acquittal was made by a court acting in excess of jurisdiction (which of course was the nature of the very complaint made in that case) the High Court had power to quash such an acquittal. In Great Southern & Western Railway Co. v Gooding [1908] 2 I.R. 429 (“Great Southern & Western Railway Co.”), Palles C.B. expressed his opinion that Holmes J.’s observation on this point was “absolutely correct” and the Supreme Court, in the judgment of O’Dálaigh J. in The State (Attorney General) v Binchy [1964] I.R. 395 accepted the judgment of Holmes J. and would have applied it in that case if the verdict had not been simply recorded as “not guilty” simpliciter. It is perhaps for this reason, that the authoritative statement of Palles L.C.B. in R. (Kane) v Chairman and Justices of County Tyrone (1906) 40 I.L.T.R. 181, is qualified in the way it was (p. 181):

    The first principle is an elementary one – viz., that as a rule an acquittal made by a Court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other Court.

    [emphases added]

    In that case Palles L.C.B. also referred to the number of cases in which, even at that time, there was a statutory right of appeal from acquittals “given in several modern statutes”. As Walsh J. stated in The State (Tynan) v Keane [1968] I.R. 348 (p. 355):

    As a general proposition it is not correct to state without qualification that under our law no person can be prosecuted twice for the same offence.

  107. The qualifications envisaged by Walsh J. would relate not only to the prospect of quashing decisions on jurisdictional grounds, but also to statutorily permitted appeals such as that permitted by way of case stated as under the Summary Jurisdiction Act 1857. This is a particularly important example, not only because it is a venerable and well known provision, but it applies in the case of errors of law. In a sense s.23 can be seen therefore as the extension to trials on indictment of a provision long applied to summary trials. A different and more recent example is the provisions of s. 310(1) of the Fisheries (Consolidation) Act 1959 which permit a prosecution appeal from an acquittal in the District Court. This, it should be noted is a full appeal, and not merely one of a point of law. The constitutionality of the section was upheld in Considine v Shannon Regional Fisheries Board [1997] 2 I.R. 404 (“Considine”). Quite apart from the decision in Considine, the decision in O’Shea is of course (and whatever arguments might be made about its merits or wisdom none of which were advanced on this appeal), simply determinative ,at least for the time being, of any argument that the Constitution does not permit prosecution appeals, even full appeals in the case of acquittals.

  108. The true principle is I think that stated by Palles C.B. in (“Great Southern & Western Railway Co.”), namely that if a statute is to provide for an appeal against an acquittal, it must do so in clear language. But I do not understand that principle to be of much assistance in this case since it is accepted that the entire object of the provision in the 2010 Act is to permit prosecution appeals. Once that bridge is crossed, it is I think difficult to find any basis for interpreting the Act as limiting the nature of the appeal that could be brought. To take this case as an example, I cannot see any basis in the legislation for considering that the Oireachtas wished to permit an appeal where this Court considered that a trial judge had misinterpreted or misapplied Kenny, but not if the evidence was excluded because the trial judge followed Kenny but Kenny itself was wrong. If that was the case, it would also lead to the peculiar result where this Court’s jurisdiction would depend on its own decision on the substance of the appeal as to whether prior authority was wrong, or merely misunderstood or misapplied.

  109. The argument that s.23 appeals are limited to erroneous applications or interpretations of existing law depends not upon any grammatical reading of the section, but rather on imposing the interpretation on words of apparently general application. It means interpreting s.23 as permitting with prejudice appeals in such cases and permitting without prejudice appeals only under the Criminal Procedure Act 1967 (“the 1967 Act”) as amended in 2006 in cases where it is sought to reverse, rather than simply reinterpret, existing precedent. Such a clear demarcation is not apparent in either section. Indeed the 1967 Act procedure applies in any case and thus can be adopted in cases of mistake, misapplication and misinterpretation as well as where it is sought to directly overrule a prior precedent. It is clear therefore that there is very substantial overlap between the provisions and the suggested clear demarcation was neither intended nor effected. Nor is there any plausible basis on the language of the respective sections for suggesting that the overlap is only partial. Instead the most natural interpretation is that the 2010 Act took the significant step of allowing with prejudice appeals. Indeed as set out above that is very much in accordance with the terms in which the matter was discussed in the reports mentioned above.

  110. There are at least two textual arguments which also support this interpretation. First, s.23 permits but does not compel a retrial if the appeal is allowed. The Court is given a discretion under s.23(11) and given guidance under s.23(12). Where the Court decides the point of law in favour of the appellant, but does not quash the conviction and order a retrial, the position becomes functionally indistinguishable from a without prejudice appeal under the 1967 Act. This illustrates perhaps the fact that they were understood to have the same scope of application, and that the same issues could be raised in each. Second, s.23(1) permits an appeal on “a question of law” words which are in my view not just capable of encompassing this type of case, but are quite apt to do so. Section 23(3) contemplates two situations in which such a question may arise: first where a ruling is made erroneously excluding compelling evidence (subss.(3)(a)) which has been the section focussed on in this case and upon which the argument for a narrower scope of appeal is based, and where a direction is given which is “wrong in law”.(subss.(3)(b)). I do not think it can be plausibly argued that the argument that Kenny is wrong is not covered by this latter phrase. But if so there can be no basis for giving a narrower reading to the scope of subss.(3)(a) than subss.(3)(b).

  111. I understand, I hope, the objections to retrying a person after he has been acquitted on the basis of what was understood to be the existing law, and after a ruling that “compelling evidence” had been wrongly excluded. In retrospect I think this case might for example have been more suited to the 1967 Act procedure, since the concern is more to establish the existing law prospectively than to seek to reverse the outcome of this particular case, especially when others have benefited from the Damache case and the application of Kenny. I should say that unless persuaded to the contrary I would not consider that this was a proper case for a retrial. Quite apart from any question of the constitutional validity of the retrial provision which has not yet been tested (and somewhat ironically in the present context that it would involve a reconsideration and perhaps reversal of People v O’Shea), I do not see why it would be appropriate or indeed fair that this defendant alone of al the defendants at trial benefited from Kenny and that smaller but significant group who benefited from the intersection of Kenny and Damache, should be the subject of a retrial.

  112. I do not understand however how concerns with retrials generally, and the principle of double jeopardy can effect the issue of interpretation which is before us. There is no doubt that the section permits some prosecution appeals. Under the traditional doctrine of double jeopardy, an accused acquitted by an erroneous application of the law was just as entitled to the benefit of that acquittal, as one acquitted on the merits, or acquitted because of binding precedent. I can see no basis therefore, for concluding that the principle of double jeopardy leads to the distinction which is sought to be made on the interpretation of s.23. Nor with respect can I accept that these matters raise any matters of legal certainty. The parties in Kenny, and in Damache, and indeed in any case which makes new law, changes the law and/or overrules precedent, can to some extent say that the law has changed from what was understood before the first appearance in court, but any change is within a limited area and subject to clearly established and articulated rules. I appreciate that acquittals are different from convictions in a number of respects, but not surely as regards legal certainty. In any event it is not necessary to consider this further since no such issue was raised in this case, and I do not understand in any event how it can affect the question of the interpretation of the section.

  113. I agree that there are, or should be, prudential, and perhaps principled, limits to the range of decisions which a court can take in the development of the common law, and that there are matters which must be left to legislation. However, prior to this case, I would have considered that a decision on the admissibility of evidence, particularly when based on the interpretation of the requirements of the Constitution, was quintessentially a matter for decision by a court. It seems to me indeed, that this is a matter peculiarly inappropriate to be resolved by legislation. The Oireachtas is after all obliged by Article 15.4 not to enact any law in any respect repugnant to this Constitution or any provision thereof. So long as Kenny remains a binding statement of the law, then any purported legislative reversal of the decision would be ex facie unconstitutional, at least until such time as the decision in Kenny was reversed or overruled by this Court. I do not think the issue in this case should be avoided and the Oireachtas encouraged instead to legislate in the teeth of a decision of this Court merely for the purposes of inviting this Court to decide whether or not the decision in Kenny is correct and if so in what respect it could or should be modified, which is after all the issue now before us.

  114. I agree that the observations of Oliver Wendell Holmes as to the interstitial nature of judicial law making in the common law. The concepts of molar and molecular motions may have been clearer to the reader in 1926, but the sense of the passage is clear. Holmes was however, speaking in the context of the common law and the examples he gave were in the fields of contract and tort. It is inevitable that decisions on constitutional matters may, and will, be significant. See by way of example only, the decision of this Court in McGee v Attorney General [1974] I.R. 284. The potential impact of constitutional decisions should lead to an appropriate caution in decision making, and a willingness to review such decisions if it becomes apparent that they are impractical, misplaced, or simply wrong. I observe therefore, that Holmes J. was a participant in the decision in Weeks which established an exclusionary rule in cases within the federal jurisdiction, and dissented in Olmstead where he considered that evidence obtained by illegal wire tapping ought to have been excluded. If these decisions were permissible, I cannot see how this case breaches any boundary.

  115. It is possible also to make a simpler measurement on the Holmesian scale of the movement of the law in this case. Both O’Brien and Kenny made significant changes to the criminal process. While it may have been argued that each case was wrong in some respect, it has not been suggested, at least to my knowledge, that either represented an example of illegitimate judicial law making. Since the impact of the decision in this case is to reverse Kenny but not to restore O’Brien, and rather to seek out a point somewhere between the two (and rather closer to Kenny than to O’Brien), it must follow that whatever ‘motion’ has been made by the majority decision in this case, it is necessarily less than that which was made in Kenny. Indeed, if the change to the law made by the decision in this case somehow exceeds the permissible extent of change to be effected by judicial decision, then that in and of itself would be a reason to reverse Kenny. As I conceive, it is part of the proper function of this Court to adjust its prior decisions in the light of developments in the law, experience, and analysis. I am confident that every argument that can be marshalled in favour of the decision in Kenny has been advanced in this case. Having carefully considered the issue, I conclude, with great respect to my colleagues present and past who take or took a different view, that I do not believe that the decision in Kenny can withstand scrutiny. It is, in my view, plainly wrong. It is long past time that it was addressed and, so far as it is possible for us to do so, corrected.

    Justice Clarke

    1. Introduction

  116. This case involves a request to reconsider the so called exclusionary rule. The case also involves the scope of appeals which can be brought to this Court by the prosecutor/appellant ("the D.P.P.") under section 23 of the Criminal Procedure Act, 2010 ("section 23").

  117. Insofar as they are relevant, the facts of this case have been fully set out in other judgments of the Court, and it is unnecessary to repeat them in detail here. In summary, while the accused/respondent ("Mr. C.") was at trial before the Circuit Court (Her Honour Judge Ring), evidence was excluded on the basis of an application of the exclusionary rule as identified and defined by this Court in D.P.P. v Kenny [1990] 2 I.R. 110 ("Kenny"). There was no dispute on this appeal that, applying the exclusionary rule as so defined, Her Honour Judge Ring was obliged to exclude the evidence concerned. With the relevant evidence excluded, the case against Mr. C., in substance, collapsed.

  118. The D.P.P. has brought an appeal to this Court under section 23 seeking to review the decision to exclude the evidence in question. It would be fair to say that in so doing, the D.P.P. has invited this Court to take the view that Kenny was wrongly decided and that a different, and it might be said more nuanced, exclusionary rule should be applied. Two separate but connected issues arose on this appeal concerning the question of whether it was open to the D.P.P. to bring an appeal under section 23 in the circumstances of this case. The first stems from the fact that it is accepted that the trial judge had no option but to decide as she did given that she was bound by the decision of this Court in Kenny. That issue turns on the proper interpretation of section 23 and, in particular, whether it can be said that the trial judge had "erroneously excluded evidence" in circumstances where it is accepted that the trial judge was bound to follow Kenny and properly applied Kenny to the facts.

  119. So far as the second issue is concerned, it is first necessary to record the circumstances which led to that issue being considered by the Court. After the appeal had concluded and in the course of its deliberation it became clear to the Court that there was, potentially, a further issue concerning the availability of an appeal under section 23 which might, potentially, have application to this case. In those circumstances, the Court invited further written submissions and arranged for a further oral hearing to deal with that second issue. The question derives from the requirement, to be found in section 23 itself, that the evidence said to have been erroneously excluded must be "compelling" evidence. That term is defined in the section, and an issue arises as to whether, in the circumstances of this case, the evidence which was excluded by the trial judge can be said to be "compelling" evidence as so defined. It should also be recorded that, in the context of the further hearing to which I have referred, a motion was brought on behalf of the D.P.P. seeking to introduce further evidence on the appeal. That application was, in substance, a fallback position to the primary argument of the D.P.P., which was that there was sufficient material available to the Court, from the record of the proceedings before the Circuit Court, to enable this Court to conclude that the excluded evidence was "compelling evidence" as defined. I will turn shortly to the two questions which arise concerning the availability of an appeal under section 23.

  120. However, on the assumption that an appeal of the type identified does lie, then the substantive question which arises is, in effect, as to whether Kenny was correctly decided, and if not, as to what the appropriate test should be for the admission or exclusion of evidence obtained in circumstances where the method of taking the evidence concerned involves a breach of constitutional rights. While that question arises at the level of broad principle it is, of course, important to note that it arises on this appeal in the context of the specific issues and facts which are relevant to this case.

  121. Finally, for completeness, it should be noted that one of the issues which would arise, in the event that an appeal lies and that the D.P.P. successfully persuades the Court that evidence was wrongly excluded, is as to whether a retrial should be directed. For reasons which will become apparent, it does not necessarily follow that a retrial should be directed even if it is found that "compelling evidence" was erroneously excluded. It should be noted at this stage that counsel on both sides agreed that a decision on a retrial (if it arises) should be left over until after the substantive issues have been determined. For reasons with which I will deal in the context of the structure of section 23 itself, it is clear that, unless it is considered appropriate to direct a retrial, the D.P.P.'s appeal must be dismissed and the acquittal affirmed. It follows that it is only possible, at this stage, to determine whether, in the event that an appeal lies, the relevant evidence was erroneously excluded. Even if such a conclusion is reached it follows that it will not be possible to determine the result of this appeal until the Court has had an opportunity to decide whether a retrial should be directed.

  122. However, as it is clear that it would only be appropriate for this Court to embark on a consideration of the exclusionary rule if an appeal lies in the first place, I turn first to that question.

    2. Does an Appeal lie under Section 23?

  123. The backdrop to section 23 has to be the starting point. Historically, save for a brief period, no appeal lay from an acquittal in criminal proceedings. Immediately prior to the enactment of section 23, the only appeal which lay to this Court from an acquittal (whether in respect of the whole or part of an indictment) was a consultative appeal “without prejudice to the verdict or decision in favour of the accused person” which arose under s.34 of the Criminal Procedure Act 1967 (as now substituted by s.21 of the Criminal Justice Act 2006). Section 34 permits the Attorney General in any case, or, if he or she is the prosecuting authority in the trial, the D.P.P., to “refer a question of law arising during the trial to the Supreme Court for determination”.

  124. In that context, it is necessary to make a brief reference to The People (Director of Public Prosecutions v O'Shea [1982] I.R. 384. In that case, this Court was divided three to two. However, the majority view was that Article 34.4.3 of Bunreacht na hÉireann, which, as of the time of O'Shea, provided that this Court should "with such exceptions and subject to such regulations as may be prescribed by law" have appellate jurisdiction from all decisions of the High Court, overrode the common law position that there was no appeal from acquittal in criminal proceedings. So far as criminal proceedings in the Central Criminal Court (being the High Court exercising its criminal jurisdiction) were concerned, it was, therefore held that an appeal against acquittal lay. Indeed, one of the arguments put forward was that s.34 of the Criminal Procedure Act 1967, by providing for a without prejudice appeal, had impliedly limited this Court's appellate jurisdiction. That argument was rejected by the majority.

  125. It should, of course, also be noted that this Court, in People v Quilligan (No. 2) [1989] I.R. 46, was divided once again on the question of whether, after a successful appeal, a retrial could be directed. Henchy and Griffin JJ. took the view that the Court could not so direct in the absence of express statutory provision and, indeed, doubted whether such provision could be made in a constitutionally valid form. Walsh and McCarthy JJ., on the other hand, held that the right of appeal carried with it an inherent jurisdiction necessary to give effect to that right of appeal and, thus, to order a retrial. Hederman J. found it unnecessary to decide the issue of principle because he took the view that, on the facts, no retrial should be ordered. Before that issue was finally resolved, the right of appeal with prejudice by the prosecution from a decision of the Central Criminal Court was excluded by statute (see s. 44 of the Courts and Courts Officers Act 1995).

  126. While the matter is not free from doubt, it follows that there is at least a significant argument that the Constitution, at least in the manner in which it has been interpreted to date, actually permits a with prejudice appeal at least so far as criminal trials conducted in the Central Criminal Court are concerned. As long as such appeals were, however, excluded expressly by statute it was no longer necessary to give any further consideration to any of the issues which might arise in that context.

  127. However, in 2010, section 23 was enacted, which provides for a form of appeal which can, at least if this Court so directs, be with prejudice to the position of the relevant accused, for it can lead to a retrial carrying with it, obviously, the possibility that the accused might be convicted on that retrial. In material part, section 23 reads as follows:-

    (1)

    Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.

    ....

    (3)

     

    An appeal under this section shall lie only where—

    (a)

    a ruling was made by a court during the course of a trial referred to in subsection (1) or the hearing of an appeal referred to in subsection (2), as the case may be, which erroneously excluded compelling evidence, or

    (b)

    a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where—

    (i)

    the direction was wrong in law, and

    (ii)

    the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.

    ....

    (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,

    or

    (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.

    It will be seen that, in order for an appeal to lie under section 23(3), there must be an error on the part of the trial judge in the sense that evidence must have been erroneously excluded or a direction to the jury must be wrong in law. At the level of first principles it is possible to envisage three circumstances in which the D.P.P. might wish to appeal against an aspect of the decision of a trial judge in a criminal case.

  128. First, at a simple and straightforward level, it is possible to envisage a case where the D.P.P. wishes to suggest that the trial judge simply made an error in applying uncontroversial and well established legal principles to the circumstances of the case in question. There can be little doubt but that an appeal under section 23 lies in such circumstances. If the D.P.P. were to be proved to be correct then the trial judge would clearly have committed an error either by erroneously excluding evidence or by giving a direction to the jury which was wrong in law.

  129. Second, there may be a dispute, to a greater or lesser extent, as to the proper interpretation of the law applicable to some material aspect of the case. The D.P.P. may wish to invite this Court to overrule the view which the trial judge took. In cases where there may be a lack of clarity as to the legal position on the issue in question, it is difficult to see how there could be any question but that an appeal under section 23 lies. If a trial judge chooses a particular approach to the legal issue in question, with which this Court ultimately disagrees, then it is again difficult to see how that could be characterised as anything but an erroneous exclusion or a wrong direction (even if, in many cases, it may well be a wholly understandable error in the light of the uncertainty of the law on the topic in question). However, that is not the situation which arises here.

  130. This case is of a third kind. As noted earlier, the complicating factor, on the facts of this case, is that the law on this issue has appeared to be clear since the decision of this Court in Kenny. It is not, as has been pointed out, suggested by anyone that the trial judge did not correctly apply the exclusionary rule in the manner in which that rule is addressed in Kenny, or did not do so in a proper fashion. The argument, therefore, arises as to whether it can be said that the trial judge, in those circumstances, erroneously excluded the relevant evidence even if this Court were to take the view that Kenny was wrongly decided in a manner material to the issue of the admissibility of the relevant evidence in this case. In one sense, the issue can be put thus. Can it be said that a trial judge erroneously excluded the evidence in question if the trial judge properly applied the established case law of a higher court by which that trial judge was bound, even if this Court takes the view that the established case law in question requires to be revisited in a material respect?

  131. That is, indeed, an important question, for it has the potential to have a significant effect on the scope of appeals which are permitted under section 23. As already noted, there would not seem to be any doubt but that section 23 applies in a case where it is suggested that the trial judge has simply misapplied a clear and established legal principle. Likewise, there can be little doubt but that section 23 can be used to mount an appeal which seeks to clarify an area of law over which there may be legitimate doubt. However, if the suggestion that section 23 can not be used as a means of inviting this Court to reconsider clear previous authority which bound the trial judge in question is correct, then there could be no basis for the D.P.P. seeking to invoke that section in the circumstances of this case. It should be recorded that counsel for Mr. C. did not raise this argument in the written procedure and accepted in oral argument that an appeal did lie. The suggestion to the contrary came from questions put by the Court. Both counsel were, therefore, agreed that it can be said that a trial judge had erroneously excluded evidence even though the trial judge had properly applied case law by which that judge was bound. Nonetheless, it remains for the Court to interpret section 23 in the context of the issues sought to be raised by the D.P.P. on this appeal.

  132. It is of some importance, in my view, to note that the logic of the argument would appear to apply equally to a case where the D.P.P. sought to argue that this Court should depart from previously established case law of the Court of Criminal Appeal or, indeed, now the Court of Appeal. A trial judge is every bit as bound by the established case law of the Court of Appeal as of this Court. If a trial judge can not be said arguably to have been wrong (i.e. to have erroneously excluded evidence or given a direction which was wrong in law) when following the established case law of this Court, then it would equally follow that a trial judge could not be said arguably to have been wrong where the trial judge followed established case law of the Court of Appeal. If that is so, it would follow that no appeal under section 23 could arise in those circumstances either.

  133. In passing, it should be noted that, unlike section 23 which specifies the circumstances in which an appeal with prejudice will lie to this Court (in subsection (3)), s. 34 of the Criminal Procedure Act 1967 (in its current form) does not limit or make any reference to the subject matter or the circumstances where a “question of law” can be referred to the Supreme Court without prejudice to the verdict or decision in favour of the accused. In those circumstances it appears that, even if it was not open to the D.P.P. to appeal the acquittal of Mr. C. “with prejudice” on a question of law under section 23, it would be possible for the D.P.P. to refer a question of law to the Supreme Court “without prejudice” to the acquittal, under s. 34 of the Criminal Procedure Act 1967, as substituted.

  134. However, whatever may be the practical consequences, the scope of appeal which is permitted under section 23 depends on the proper construction of that section. If, under that section as properly interpreted, an appeal in certain circumstances does not lie, then the fact that there may be adverse consequences of so ruling is really neither here nor there. A person cannot be placed in jeopardy of a possible criminal conviction by being subjected to an appeal with the possibility of that appeal being successful and a retrial resulting in conviction unless the law so allows. The issue, therefore, comes down to one of statutory construction.

  135. The starting point has to be to assume, for the sake of argument, that Kenny was wrongly decided. It follows that a decision to exclude evidence on the basis of the precise exclusionary rule as defined in Kenny may be wrong. I say "may be" wrong, for, of course, it does not necessarily follow that the relevant evidence might not also be properly excluded by reference to whatever criteria or test this Court might identify as representing the proper constitutional balance.

  136. On the assumption that Kenny was wrongly decided, and that, applying the proper test, the relevant evidence should have been admitted, it is clear that the decision to exclude that evidence was wrong. However, even though the decision was wrong, it is suggested that it cannot be said that the trial judge, in making that decision, erroneously excluded the relevant evidence because the trial judge was, it is accepted, bound to apply Kenny.

  137. It might be said, in that context, that a reversal by this Court of a previous binding decision can have retrospective effect. There is a sense in which that is true. The need for a court to exercise some caution in revisiting existing case law has been addressed, in admittedly very different circumstances, by this Court in both M.R. v An tArd Chláraitheoir [2014] IESC 60 and H. v H. [2015] IESC 7. As noted in those judgments, one of the difficulties which can be encountered as a result of a significant change in case law is that legal theory in this jurisdiction suggests that the "new" position adopted was always the correct position.

  138. It is, of course, the case that the issues which arise on this appeal are, in substance, constitutional issues. The decision in Kenny is itself a determination of the proper balance to be struck in recognising and vindicating the constitutional rights and values at stake. Likewise, this Court is, in this case, concerned with the same question. Such constitutional issues are always subject to review in the light of prevailing circumstances, and any such review will have the potential to be retrospective at least so far as the case giving rise to the review itself is concerned.

  139. But perhaps of greater importance is the fact that the Court, on this appeal, is concerned with a question of the admissibility of evidence rather than with a substantive issue directly affecting the substantive rights, obligations and liabilities of individuals or bodies. The consequence of a reappraisal of the case law in respect of the law of evidence is, in my view, while important, potentially less significant than a similar reappraisal of substantive law. A person either has, or has not committed a criminal offence. A reappraisal of the ingredients of that offence could have very significant consequences. A person might, if such a reappraisal had retrospective effect, be found guilty of an offence of which that person could not, no matter what the evidence was, have been found guilty on the basis of the law as it was understood at the time when the events said to constitute the offence in question occurred.

  140. The Oireachtas is precluded, under Article 15.5 of Bunreacht Na hÉireann, from the enactment of retroactive penal legislation. A suggestion that the courts, by judicial reinterpretation, might achieve the same effect and, in the words of Article 15.5, "declare acts to be infringements of the law which were not so at the date of their commission" might well give rise to significant constitutional questions. However, this appeal is not concerned with retroactive penal legislation as such. Rather, this appeal is concerned with the law of evidence, albeit an aspect of that law which has significant constitutional influence.

  141. But a change in the law of evidence does not make something illegal which might have appeared to have been legal at the time of its occurrence. Rather, a change in the law of evidence may permit a party (or the prosecution in the criminal context) to be able to prove something which they might not have been able to prove under the law of evidence as it was previously understood. But if, in the light of the law as reinterpreted, there is now cogent and admissible evidence that an offence was actually committed, then all that the reinterpretation of the law does is to permit an existing offence to be proved when, under the previous interpretation of the law, it might not have been possible to do so. The constituents of the offence do not change in any way.

  142. While there is a sense in which such a course of action operates retrospectively, it seems to me that it does so in a very different way, and with significantly less constitutional difficulty than might arise if an attempt were made to redefine the elements of a criminal offence in a way which would render acts to be infringements of the law when those same acts would not have been considered to be such infringements on the basis of the law as it was understood at the time when those acts were committed. For those reasons, I do not consider that the element of retrospection which would arise from reconsideration by this Court of Kenny would be significant.

  143. On that basis, I return to the proper interpretation of section 23. If it was wrong to exclude the evidence in question, then, in my judgment, that is an error even if the trial judge was, by virtue of the hierarchy of the courts, bound to follow Kenny (unless and until it is overruled or redefined by this Court). The fact that a trial judge may have been bound to follow what transpires to be an erroneous decision of this Court does not prevent the trial judge from being properly described as having erroneously excluded relevant evidence. On that basis, I am satisfied that an appeal to this Court under section 23 lies.

  144. It is illustrative, in that context, to look at the situation which might arise in a case where the defence sought to invite this Court to revisit a material aspect of the jurisprudence. Assuming that it had to be accepted that a trial judge had correctly admitted evidence on the basis of the proper application of the existing case law of, for example, this Court, on what basis might it be said that an accused could then appeal to this Court against a conviction sustained on the basis of such evidence, and in so doing to invite this Court to revisit its own jurisprudence? There are only two possibilities. Either it is possible for an accused to appeal against a decision of a trial judge even though the decision of that trial judge was correct in the sense that the trial judge properly made the relevant decision in accordance with case law by which that judge was bound, or it is possible to regard a trial judge as being in error even if the trial judge applies case law by which that judge is bound in circumstances where this Court considers that the existing case law itself is erroneous. No other logical possibilities exist. The whole structure of any appellate system normally implies that the appellant has identified something which occurred in the trial court which was erroneous. I would qualify that observation by noting that there are, of course, exceptional cases where new and admissible materials have become available which may result in a successful appeal even though no error can be pointed to as to the manner in which the trial was conducted. But in the absence of such exceptional circumstances, how does an accused appeal in circumstances where the trial judge properly applied existing case law? I cannot see that it makes logical sense to treat the accused as having a right to appeal against a correct decision of a trial judge. But unless that is so, how may a decision, which is against the accused, but which is in accordance with established case law, to ever be the subject of an appeal unless such a decision is to be regarded as erroneous because the case law which was applied is, likewise, found to be binding but also erroneous?

  145. Indeed, in that context, it is instructive to consider what might have occurred had the trial of Mr. C. taken place after the decision of the High Court in Damache v D.P.P. [2012] 2 I.R. 266. The admissibility issue in this case stemmed from questions over the validity of warrants of the type used both in Damache and here. It must be recalled that the High Court, in Damache, upheld the validity of warrants of that type. Her Honour Judge Ring would have been just as bound by the decision of the High Court in Damache if that represented the state of the law when the matter came before her as she ultimately was bound by the decision of this Court in the same case. On what basis might Mr. C. have appealed in that scenario? It can hardly be doubted that, armed with the decision of this Court in Damache, had it been delivered by the relevant time, Mr. C. would have argued on appeal that the evidence against him was wrongly admitted and that his appeal should be successful. But in so doing he would, in substance, be arguing that the trial judge wrongly admitted the evidence even though the trial judge was applying a decision of the High Court by which that trial judge was bound.

  146. Indeed, in that context, mention should be made of the practice sometimes properly adopted by counsel of reserving their position to argue a point on appeal. Counsel adopt that position where forced to accept that a trial judge is bound to find against them on the relevant point by virtue of binding authority but where it may be perceived that a higher court, not so bound, might revisit the jurisprudence. Would counsel for an accused not be entitled to appeal against the admission of evidence even if adopting that practice in making a formal objection to the admissibility of the evidence concerned? Would the decision of the trial judge nonetheless be argued on appeal to have been erroneous? I do not see any legitimate basis for treating a decision in favour of the accused as not being erroneous but treating an almost identical decision against the accused as being erroneous.

  147. I am also strengthened in that view by a consideration of the relevant provisions of section 23 taken as a whole. As already noted, the circumstances in which an appeal lies under section 23 concern either the "erroneous" exclusion of evidence or the giving of a direction which is "wrong in law". If this Court were to come to the view that a previous decision of this Court was itself wrong, how then could it be said that a direction to the jury based on that previous case law was not itself "wrong in law"? The fact that it would have been more than appropriate for a trial judge to have directed the jury based on the case law of this Court would not prevent such a direction from being "wrong in law" if this Court were to ultimately conclude that its earlier case law needed to be revisited in a material respect. I do not see that there is any basis for interpreting the scope of appeals which lie in respect of directions to the jury (which must be said to be wrong in law) in a materially different way to the scope of the appeals which lie in respect of the exclusion of evidence (which exclusion must be said to be erroneous).

  148. Furthermore, I am not convinced that arguments about double jeopardy play any role in this debate. If an appeal properly lies, then it forms part of the same process as the trial itself. If there is a successful appeal and a retrial is directed, then that retrial, in turn, is part of the same process. Any earlier acquittal is, therefore, set at nought by a successful appeal by the D.P.P. under section 23 and it cannot, in my view, therefore, be properly regarded as an acquittal any more than any judgment and order of any court which is altered on appeal can be regarded as a binding judgment at all save in the limited historical sense that it was, up and until the time when it was overturned on appeal, the position adopted by a court of competent jurisdiction.

  149. The question of double jeopardy properly arises when whatever procedure is available for the trial of an accused in a relevant jurisdiction runs its natural course and results in an acquittal. The issue which then arises is as to the circumstances, if any, in which it may be permissible to commence an entirely new process or reopen a process which has come to a natural end. But such is not the case here. The issue does, of course, depend on the proper interpretation of section 23. However, there can be no doubt that section 23 must be taken to apply in some circumstances. In those circumstances, an accused can properly be convicted after a retrial which has been directed resultant on a successful appeal by the D.P.P. under section 23. It is not correct, in my view, to characterise such a retrial as being in any way affected by any principles against double jeopardy. Rather, such a retrial is part of a single, continuous process in which an appeal court has corrected the error of a trial court, directed a retrial, and the result of that retrial will stand as the proper determination of the criminal process in the case in question.

  150. That leads to the second issue which arises as to the scope of section 23, being the requirement that the excluded evidence be "compelling".

    3. Compelling Evidence

  151. First, it is clear that, by virtue of subsection (3), the basis of a successful appeal must be a finding that "a ruling was made by a court" .... "which erroneously excluded compelling evidence". Compelling evidence is defined in subsection (14) as meaning that the evidence is reliable, of significant probative value, and such that, when taken together with all other evidence adduced a jury might properly convict.

  152. It has to be said that this aspect of the section in its current form raises a number of potential difficulties. First, what is under consideration is evidence which was actually excluded at the trial. The potential for an appeal under section 23 in respect of an evidential ruling of the trial judge only arises where the trial judge does not permit the relevant evidence to be tendered. There may be significant differences, from one case to the next, as to the extent to which it may be clear from the record of the trial as to what the evidence, which was sought to be tendered, would have been had the trial judge ruled differently. In this case, the admissibility issue centred on certain statements made by Mr. C. while in garda custody. Thus the statement which the prosecution would, doubtless, have sought to prove in evidence was available in a written form. Although the evidence of that statement was not, precisely because the trial judge ruled it out, ever placed before the Court in a formal way, nonetheless it is possible to identify, on the facts of this case and from the record of the trial, certain features of the excluded evidence.

  153. However, that might not always be the case. An objection might be taken to the admissibility of evidence on the grounds of hearsay. Precisely because the objection succeeded, a trial judge might not allow the question to be answered, and thus there may be no record of what the witness would have said had the question been permitted. In such a case it might (but would not necessarily) be the case that the Book of Evidence may have given an indication of the answer which the relevant witness was expected to give. It might or might not be the case that counsel for either the prosecution or the defence might, in the course of argument in the absence of the jury, refer to the anticipated answer as part of the argument in favour or against the proposition that, in answering the question, the witness might be giving hearsay evidence. But if no, or no sufficient description of the anticipated evidence is to be found on the record of the trial then issues arise as to how this Court is to determine whether the excluded evidence was compelling evidence. Even if there is an adequate record of the evidence likely to have been given had it not been excluded, how is this Court to assess its reliability and probative value?

  154. Second, on the facts of this case, the evidence of a confession by Mr. C. had at least the potential to establish the case against him beyond reasonable doubt. If the statement evidence had been admitted, and provided that the defence had not persuaded the jury that they should have any material doubt about its reliability, a confession may have been sufficient to prove guilt. But in many cases, while the excluded evidence may be crucial in connecting an accused to an offence, it may, nonetheless, fall a long way short of being sufficient to prove the prosecution's case by itself. In the language of science, it may be a necessary, but not a sufficient piece of evidence. A simple example will suffice. The excluded evidence may be some item of forensic interest obtained during a raid on a premises where the raid in question may transpire to have been unlawful. All that the evidence obtained as a result of the raid concerned might demonstrate, of itself, is that clothing of the accused found in his home had certain materials on it. That piece of evidence, taken alone, would not establish anything. The prosecution might, however, be able to establish, most probably by other forensic evidence, that the material found on the accused's clothes associated him in some compelling way with the scene of a crime. The evidence might, in those circumstances, be reliable and of high probative value, but only when taken in conjunction with the rest of the prosecution’s case. But it is clear from subsection (14) that the other evidence necessary, in conjunction with the excluded evidence, to permit a jury properly to convict must be evidence "adduced in the proceedings". Therefore, in the example which I have given, does that mean that the prosecution, if it wished to keep alive the prospect of an appeal with prejudice under section 23, would be required to go through the motions of calling a great deal of evidence (after the exclusion of some vital link in the chain of the prosecution’s evidence) so that all of that evidence would have been "adduced" and a conclusion could be reached as to whether that evidence, together with the excluded evidence, would permit a jury to reasonably convict?

  155. It seems to me that what the Oireachtas most likely had in mind by the inclusion of subsection (14) was to ensure that there could not be a successful appeal under section 23 and a consequent retrial unless there was a reasonable prospect of a successful prosecution on that retrial without additional evidence which had not been tendered at the original trial. It must, however, be open to question as to whether the mechanism adopted in section 23 to achieve that end is effective. However, it also seems to me that, in the circumstances of this case, the potential problems which may well arise in applying section 23 just do not arise. In the course of the argument before the trial judge, on the admissibility issue which is the subject of this appeal, it was accepted on behalf of Mr. C. that the evidence which the prosecution sought to introduce, and to which objection was taken on behalf of Mr. C., involved "admissions .... (which) .... could reasonably lead to the conviction of (Mr. C.) for the offences which he is charged" [sic]. Thus, on the facts of this case, it appears to have been accepted that the admissions, which the prosecution sought to introduce, were both reliable and of probative value, for if they were not, it is impossible to see how they could reasonably lead to a conviction. Likewise, given that they were admissions, it seems to have been accepted that they could, had they been admitted, have been sufficient, without other evidence, to lead to a conviction.

  156. In that context, it is important to note the position adopted on behalf of Mr. C. when the matter was relisted for further argument directed towards this issue. Counsel drew attention to the fact that it is this Court which must be satisfied that the evidence excluded is compelling evidence within the definition contained in section 23(14). Counsel also accepted that, in the light of the materials contained in the record of the trial before the Circuit Court, it is open to this Court to be so satisfied. Counsel made the point that the statements made on behalf of Mr. C. during his trial did not create any form of estoppel or otherwise bind Mr. C., still less this Court, to the view that the evidence was compelling in its statutory sense. It is my understanding that counsel for the D.P.P. did not disagree with this view. In my view, both counsel were correct. What is said about evidence at a trial is both admissible and, potentially, important to any consideration which this Court must give as to whether the evidence concerned is "compelling" in the sense used in section 23(14), but it cannot bind either the accused or the Court. If, for example, it was clear that what was said at the trial was wrong, then this Court could not be "satisfied" about the status of the relevant evidence.

  157. However, in the circumstances of this case, I am satisfied that there is sufficient material available on the record of the trial before the Circuit Court to enable this Court to be satisfied that the evidence is "compelling" in the sense in which that term is used. There has been no suggestion made nor any argument put forward to suggest that counsel's depiction of the confession evidence did not accurately describe it as evidence which would have permitted the jury reasonably to convict. On that basis, it is, at least potentially, reliable, of probative value and sufficient to allow a jury reasonably to convict. It should be emphasised that that does not, of course, mean that a jury would be bound to convict, but rather that it would be open to a jury to convict on the basis of that evidence.

  158. Given that I have come to that view on the basis of the materials which were before the trial judge, it does not seem to me to be either appropriate or necessary to reach a conclusion on the motion brought on behalf of the D.P.P. seeking to introduce additional evidence. For the reasons which I have already sought to identify, there are, in my view, potential problems surrounding the mechanics of the operation of section 23 which may warrant consideration by the authorities if it is intended to seek to invoke this section again. Those problems focus very much on how it is intended that this Court, which is after all an appellate court, or indeed the Court of Appeal if it is carrying a similar role, is, in practice, to make an assessment of whether excluded evidence meets the test specified in section 23(14). If the legislation is not readdressed then it will be necessary to consider how appellate courts should exercise this jurisdiction in cases where the question of whether the evidence qualifies under subsection (14) may be a lot more difficult than in this particular case. However, having concluded that, in the circumstances of this case, an appeal under section 23 lies, it is necessary to turn to the core substantive issue which is as to whether Kenny was rightly decided.

    4. The Exclusionary Rule in D.P.P. v Kenny

  159. I should start by indicating my agreement with the analysis of the sequence of cases in this area identified by O'Donnell J. in the course of his judgment in this case. In those circumstances, I do not find it necessary to engage in a detailed review of that jurisprudence. I would confine myself to making a small number of observations.

  160. First, it seems to me to be clear that the net effect of the decision of this Court in Kenny was to overrule the previous decision of this Court in the People (Attorney General) v O'Brien [1965] I.R. 142 ("O'Brien"). It is true that this Court did not, in express terms, state that it was overruling O'Brien. Indeed, by adopting the phrase "deliberate and conscious violation" from O'Brien, this Court, in Kenny, might, on a superficial view, be seen to have been simply elaborating on the proper application of O'Brien. However, any true analysis of the situation leads inevitably to a different conclusion.

  161. It must be recalled that the error of the gardaí which arose in O'Brien stemmed from the fact that the address of the house in Crumlin, to which the relevant warrant related, was misdescribed. But there was no doubt, therefore, that the gardaí in question did not hold a valid warrant to search the house in which the relevant evidence was found. They held a warrant to search a different house on a close-by road with a similar but somewhat different name. The gardaí in question clearly "deliberately and consciously" entered a house in respect of which they did not hold a valid warrant. The house in question was a home with all of the constitutional rights which that attracts. On the facts of O'Brien, there clearly was a deliberate and conscious breach of constitutional rights if the term "deliberate and conscious" is to be applied, as this Court held in Kenny that it should, to the action of those carrying out the search as opposed to the knowledge of those persons that what they were doing was not authorised.

  162. It is impossible, therefore, to come to any conclusion other than that, if Kenny correctly states the legal position, O'Brien was wrongly decided.

  163. Indeed, it is convenient to set out the debate which is at the heart of this case by reference to the competing positions identified in both of those cases. While the various courts which dealt with O'Brien do not appear to have considered issues such as carelessness, there can be little doubt but that the facts of O'Brien do betray at least some lack of care on the part of the gardaí involved. It would not have taken a great deal of effort to have checked that the address on the warrant was the same as the address at which the search was about to be carried out. Thus, O'Brien may be seen to be at one end of a spectrum which suggests that evidence should be admitted unless it can be shown that those gathering the evidence in question actually knew that their actions were in breach of constitutional rights. Kenny may be seen to be at the other end of the spectrum, where all that it is necessary to show, so that evidence may be excluded, is that there was a breach of constitutional rights, irrespective of the knowledge or level of care of those involved, save in the highly unusual and exceptional circumstances mentioned in the case law.

  164. Viewed in that way, it seems to me to be clear that Kenny, in substance, overruled O'Brien, and moved the test to a point at very much the opposite end of the spectrum. The question for this Court is as to whether either O'Brien or Kenny are correct, or, indeed, whether the proper test requires some further refinement by identifying a point along that spectrum which is to be found neither in O'Brien nor Kenny.

  165. At this point I should also mention that I agree with the analysis set out in the judgment of O'Donnell J. of the international jurisprudence in this area and of its relevance to the issues which this Court has to decide, and I do not find it necessary to add anything to what is said in his judgment in that regard.

  166. In my view, there are two important and, at least to some extent, potentially competing principles involved. On the one hand is the principle that society, and indeed the victims of crime, are entitled to have an assessment carried out at a criminal trial of the culpability of an accused based on the proper consideration by the decider of fact (be it judge or jury) of all evidence, where that evidence is material to the question of guilt or innocence, is potentially probative of guilt, and is not potentially more prejudicial than probative in the sense in which those terms have come to be used in the jurisprudence. That principle is not, of course, an absolute requirement. However, there is, in my view, a high constitutional value to be attached to ensuring that all potentially relevant evidence, which meets the criteria which I have just sought to define, is considered at a criminal trial.

  167. In that context, it must be acknowledged that the exclusion of evidence which has the potential to establish guilt on grounds which are unconnected with its probative value can only lead to a risk of the acquittal of guilty persons without any corresponding effect on the likelihood of the conviction of the innocent. Much evidence is excluded on very different grounds. The circumstances in which evidence (such as an admission of guilt) has been obtained may lead to questions as to its reliability. A failure to establish a proper chain of evidence in respect of forensic samples and the results of forensic testing may lead to doubt as to the probative value of the evidence concerned. There are many other circumstances in which the reason for the exclusion of evidence is materially connected to the question of whether it has been shown that the evidence is truly probative or whether the risks of its admission outweigh its probative value.

  168. But the exclusionary rule is not concerned with such circumstances. The fact that evidence is found in a search of a dwelling house where no proper legal authority for entry has been established does not affect the probative value of the evidence thus found. The extent to which it may provide strong or only supportive evidence of the accused's guilt will depend on the objective, factual circumstances surrounding the evidence in question rather than the legal circumstances in which it came to be discovered or obtained. In this case, we are not, it must be strongly emphasised, dealing with questions of the admissibility of evidence where the question over the admissibility of that evidence stems from issues which may affect its probative value. Rather, we are dealing with questions of admissibility which stem solely from the circumstances in which the evidence was gathered. Thus, the exclusion of such probative evidence can only lead to the risk of the acquittal of guilty persons without any corresponding exclusion or diminution of the risk of the conviction of the innocent.

  169. However, on the other hand, there is also a significant constitutional value to be attached to the need to ensure that investigative and enforcement agencies (including An Garda Síochána) operate properly within the law. Why do we have elaborate laws concerning arrest, the power to enter premises, questioning and other means of what might be described as non-voluntary evidence gathering? We do so because there is a significant constitutional value in ensuring that there are clear rules which mark the limits of the powers of investigation and enforcement agencies in evidence gathering. Those limits are there to protect us all. There is a high constitutional value in ensuring that those limits are maintained. It follows that there should be consequences, and indeed significant consequences, where those rules are broken.

  170. But the question which this case throws into stark relief is as to whether those consequences must or should, in some or in all cases, involve the exclusion of probative evidence with the consequent risk that someone in respect of whom there is cogent evidence of guilt may be acquitted.

  171. If, even in the absence of the potentially contested evidence, there is sufficient evidence to prove the guilt of the accused beyond reasonable doubt then, doubtless, the accused will be convicted and whether the contested evidence was admitted or not will not turn out to have been decisive. Likewise, if, even with the benefit of the contested evidence, there is insufficient evidence to prove guilt to the criminal standard, then the accused will be acquitted. The issue only really arises in any truly material way where the contested evidence gives a real prospect of turning a case which could not be sustained into one where there is sufficient evidence to find the accused guilty. In such cases, where the contested evidence has the potential to make the difference between a finding of guilt or innocence, then it is fair to characterise the question of the admissibility of that evidence as being, likewise, potentially such as makes the difference between a finding of guilt or innocence. If the evidence is of that type, the question which must be asked is whether an accused, in respect of whom there is sufficient probative evidence to establish guilt, must nonetheless be acquitted as a consequence of the fact that some of the evidence necessary to bring the case against him over the threshold to where there is sufficient evidence to prove guilt to the criminal standard was obtained in questionable circumstances. In reality, that is the question which was before this Court in both O'Brien and Kenny.

  172. In O'Brien, the Court took the view that the accused should nonetheless be convicted even though the evidence was obtained in breach of rights where that breach was not deliberate or conscious in the sense that those who were guilty of the relevant actions did not know that they were committing such a breach. In Kenny, it was held that the accused must nonetheless be acquitted because the act of obtaining the evidence itself was deliberate, even though those involved were not conscious of the fact that they were breaching constitutional rights. In my view, neither position properly balances the legitimate competing interests involved.

  173. To say that evidence should be admitted in all cases except those where the enforcement and investigation authority concerned actually knew that they were acting in breach of constitutional rights is to place insufficient weight on the need to ensure or at least encourage such agencies to operate within the legal boundaries of their investigative powers. But it seems to me to be equally the case that to require, in substance, that an accused against whom there is sufficient evidence to establish guilt must, in all but the most exceptional circumstances, be acquitted where there has been an inadvertent breach of constitutional rights in the gathering of evidence crucial to the establishment of guilt is to place far too little weight on society's entitlement to secure the proper and legitimate conviction of those guilty of crime and, indeed, the rights of victims to ensure that those who commit crimes against them are brought to justice where there is sufficient probative evidence to establish the guilt of the person concerned to the criminal standard.

  174. In my judgement, O'Brien does not go far enough but Kenny goes too far. But that does not, of itself, answer the potentially difficult question of precisely how the balance should be struck. The question is difficult not least because it is important that any test be capable of consistent application. Absolute rules have at least the benefit of achieving an easy consistency in their application. Rules which are designed to effect an appropriate balance between two competing, but significant, factors may be more difficult to fashion in a manner which achieves the same level of consistency. However, for the reasons which I have sought to analyse, I am satisfied that it is necessary, despite those difficulties, to determine where the appropriate balance should lie.

  175. Before going on to address that point, I do not feel that I should leave this aspect of this judgment without dealing with one further argument. That the State, and in particular the courts, has a duty to vindicate the constitutional rights of all cannot be doubted. That there is an obligation to vindicate the rights of those who suffer as a result of the unconstitutional obtaining of evidence cannot, likewise, be doubted. But the real question which arises is as to the manner in which such rights should be vindicated.

  176. According to Article 40.3 of Bunreacht na hÉireann, the State guarantees in its laws to defend and vindicate the personal rights of citizens "as far as practicable". Furthermore, those rights are to be protected by the State "as best it may" in accordance with Article 40.3.2. It is necessary, therefore, to consider in each case where there has been a breach of constitutional rights as to how the relevant rights should be vindicated. As O'Higgins C.J. noted in Moynihan v Greensmyth [1977] I.R. 55 at p.71, there may be circumstances in which the State may have to balance its protection of rights against other obligations arising from regard to the common good.

  177. It does not seem to me to follow that it is necessary, in order to vindicate the right, for example, of integrity of the home, that in all circumstances a party in respect of whom there is sufficient evidence to establish their guilt to the criminal standard must be acquitted if the prosecution case must rely on evidence obtained during a search conducted in breach of that right. Indeed, it is, in passing, worth noting that the constitutional rights concerned may not even be those directly of the accused. Evidence obtained in a search of a home other than that of the accused may nonetheless be obtained in circumstances which breach the constitutional rights of the owner or occupier of the house in question. Is it necessary in those circumstances, in order to vindicate the rights of that home owner, that an accused, whose rights have not in any way been interfered with, is entitled to have his guilt or otherwise assessed without the benefit of potentially probative evidence?

  178. But even where the rights concerned are those of the accused, does it necessarily follow that the proper way in which those rights are to be vindicated is to acquit the accused of an offence, in respect of which there is sufficient evidence to prove their guilt? I do not think so.

  179. Of course, it is argued that investigation and enforcement agencies need to be encouraged to operate within the boundaries of their legal entitlements, and that any laxity in the rules concerning the admissibility of evidence obtained outside those boundaries will only encourage the same boundaries to be breached. There is no doubt that there is substance in that argument. There is no doubt that such laxity may, in some cases, lead to a breach of constitutional rights in circumstances which fall short of those where a deliberate and conscious breach can be established in the sense that those involved knew that they were breaching the rights concerned. The need to encourage compliance with important legal boundaries is, itself, a significant constitutional value.

  180. Indeed, it is clear from the judgment of Finlay C.J. (speaking for the majority in Kenny at pp. 133-134) that the need to provide what was described as a positive encouragement to those in authority formed an important part of the reasoning of the Court. I do not at all disagree with the analysis that such a need exists and that it forms an important part of the constitutional balance which needs to be achieved in this area. It is for that very reason that I am of the view that O'Brien does not go far enough. But to say that, potentially, an accused, in respect of whom there is sufficient evidence to prove guilt to the criminal standard, must go free in virtually all circumstances as a means of enforcement of the boundary of legitimate evidence gathering is, in my view, to go much too far in the other direction. What is required is an appropriate balance which respects the need to encourage enforcement agencies to remain within the boundaries of their legal powers but which does not, even in cases of inadvertence or, indeed, unknown and unknowable difficulties, lead in virtually all cases to the exclusion of otherwise probative evidence and the consequential acquittal of persons in respect of whom there is a sufficient case to prove their guilt beyond reasonable doubt.

  181. In the same context, I should record that I fully acknowledge the established difficulties which have, unfortunately, been found to have existed in relation to the conduct of some elements of An Garda Síochána. These matters are addressed in the judgment of Hardiman J. Likewise, I acknowledge that there may well have been a tendency, in cases of illegally, as opposed to unconstitutionally, obtained evidence, for courts to tend to exercise their adjudicative role in favour of the admission of such evidence. On that basis, it is suggested that the combination of established police malpractice and a judicial tendency to admit evidence provides an argument in favour of maintaining an almost absolute exclusionary rule. I am afraid I cannot agree.

  182. The solution to the existence of police malpractice in some cases is not to create an exclusionary rule which applies in all cases. The solution to what might be seen by some as an over-generous attitude of trial judges to the admission of evidence (where a power to admit exists) is not to take away the power to admit in its entirety.

  183. The proper solution to those problems is to define the law in terms which represent an appropriate balance of the constitutional rights and values at issue, to require trial courts to exercise vigilance to ensure that investigating agencies (such as An Garda Síochána) act in an appropriate fashion and to enable trial judges, having carried out such vigilant scrutiny, to apply a properly defined constitutional balance to the situation which then emerges. There is a further, and in my judgement very important, role to be filled by appellate courts. As O'Donnell J. points out in his judgment in this case, the solution to any general tendency to be over-generous in the admission of evidence, in circumstances where a trial judge has an adjudicative role in respect of that question, is to rely on appellate courts to redress any imbalance which may thus arise. The creation of technical reasons (unconnected with the merits of the case) by which evidence may be excluded or proceedings not progressed deflects from the true enquiry which is as to whether the prosecution case can be proved beyond reasonable doubt. Where those technical reasons impact on that enquiry itself, a very different result may be required. Sometimes a robust response to breaches of the evidence gathering process will be necessary to strike an appropriate balance. But it should not, in my view, be assumed that diverting the criminal process into the side roads of issues not materially connected with guilt or innocence is always an appropriate course to follow. Against that background, I turn to the question of how, in my view, an appropriate balance of the competing constitutional rights and values engaged in this case should be struck.

    5 The Balance

  184. I should start by dealing with what might seem to be something of a preliminary question but which, in my view, nonetheless remains a most important part of the overall approach which should be adopted. In any criminal trial the onus rests on the prosecution to prove guilt. It seems to me that, as part of that overall approach, the onus rests on the prosecution to establish the admissibility of any evidence in respect of whose admissibility a legitimate question is raised. The first part of any proper test must, therefore, state that:-

    The onus rests on the prosecution to establish the admissibility of all evidence.

  185. Next, it must be recorded that this judgment is concerned with questions relating to the admissibility of evidence arising out of circumstances which do not affect the integrity or probative value of the evidence itself. This judgment is not, therefore, in any way concerned with such questions as might arise where evidence is obtained under oppression or the like. In such cases the circumstances in which the evidence was gathered affects the integrity or probative value of the evidence itself. However, this case is not concerned with such evidence. For the avoidance of doubt, I would, therefore, add to the first part of the proper test the following clarification. "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".

  186. The next question, which is a connected question, concerns the application of the general rule in circumstances where objection is made to the admissibility of evidence on the grounds that the relevant evidence was obtained in circumstances of unconstitutionality. It seems to me to follow, from the earlier general proposition mentioned above, that the onus remains on the prosecution in such cases to establish the admissibility of the relevant evidence. In particular, it seems to me to follow that the onus rests on the prosecution to establish either:-

    (a)

    That the evidence concerned was not gathered in circumstances of unconstitutionality or;

    (b)

    That, if it was, it remains appropriate for the Court to nonetheless admit the evidence.

  187. As part of that obligation, it seems to follow that the onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places two separate obligations on the prosecution. The first is to put forward whatever argument or basis it is suggested nonetheless justifies the admission of the relevant evidence. Second, and of equal importance, there must rest on the prosecution an onus to establish any facts necessary to justify such basis. For example, and to the extent that it may be relevant, establishing that those involved in the relevant gathering of evidence were unaware of the unconstitutionality in question is a matter which the prosecution must establish. Likewise, to the extent that any aspect of the general facts surrounding the evidence gathering in question might be relevant to the adjudication of whether evidence is to be admissible, a clear onus rests on the prosecution to establish those facts. While that obligation stems principally from the general obligation which lies on the prosecution, it also seems to me to be strengthened by the fact that the accused will, in the vast majority of cases, have little or no knowledge of the circumstances which led to evidence being obtained in circumstances of unconstitutionality. To place any obligation on the defence to establish such circumstances would be to place an unfair, and in my view an impermissible, burden on the accused.

  188. Thus, it seems to me that the following must also form part of the test:-

    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.

    The onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places on the prosecution an obligation to assert 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.

  189. As part of the general obligation which rests on the prosecution to prove all aspects of a criminal case to the criminal standard (save in those limited circumstances where the law places an onus in a particular regard on the defence) it seems to me to follow that any facts which the prosecution needs to establish in order to discharge the onus on it, which is identified in the previous paragraphs, must be established beyond reasonable doubt. To take any other view would be impermissibly to lessen the burden on the prosecution to prove all matters to the criminal standard.

  190. Therefore, the test should contain the following element:-

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

  191. Next, it seems to me that the proper balance between the competing interests requires that evidence which is taken in conscious and deliberate breach of constitutional rights must be excluded save in the sort of special or exceptional circumstances already identified in the jurisprudence. However, for the purposes of such exclusion, the term "conscious and deliberate" must refer to knowledge of the unconstitutionality of the taking of the relevant evidence rather than referring to the acts concerned. It would truly require exceptional circumstances for the court to admit evidence which is obtained in circumstances where those gathering the evidence knew that they were acting in breach of constitutional rights. Such a situation has to be viewed by any court in the most serious light. In such circumstances, a court is not concerned with merely "encouraging" compliance by enforcement and investigation authorities with the boundaries of their legal powers. Rather, the court is concerned with circumstances where those authorities have taken a calculated decision to go ahead even though they knew that they would be infringing constitutional rights by so doing. The circumstances which could justify a court in admitting evidence taken in those circumstances must remain truly exceptional.

  192. It is also important to make it clear that the question of whether the taking of evidence is in deliberate and conscious breach of constitutional rights in that sense requires an analysis of the conduct or state of mind not only of any individuals "at the coal face" but also of any other senior official or officials within the relevant enforcement or investigation authority who were involved in a material way in the process. To take but a simple example, a senior investigating garda who is well aware that An Garda Síochána does not have authority to carry out a particular search cannot escape the consequences of a finding of a deliberate and conscious breach of rights simply by procuring that a less experienced or less informed member of the force actually carried out the search in question. In addition, where there is a systemic failure in the sense that senior gardaí are aware of and condone practices which are, to their knowledge, likely to lead to breaches of constitutional rights, then the fact that individual members of An Garda Síochána involved directly in evidence gathering may not have the same knowledge would not justify a finding that there was no deliberate or conscious breach of constitutional rights.

  193. The test, therefore, requires the following:-

    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 and state of mind not only of the individual who actually gathered the evidence concerned but also of any other senior official or officials within the investigating or enforcement authority concerned who are 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.

  194. Next, it seems to me to follow that, where evidence is taken in circumstances of unconstitutionality, but where the prosecution establishes that same was not conscious and deliberate in the sense already identified, the evidence should be admitted if the prosecution can also establish that the unconstitutionality concerned arose out of circumstances of inadvertence or by reason of developments in the law which occurred after the time when the relevant evidence was gathered.

  195. I consider that including an exception of this type properly meets the balance of interests engaged in this case. It is illustrative to look at the facts before us. As a result of a subsequent decision of the courts, it became clear that a particular form of warrant was invalid. That legal fact was not known at the time of the evidence gathering at issue in this case. It is true that some doubts had been expressed over the constitutional validity of the relevant measure, but it remained on the statute book and enjoyed the presumption of constitutionality. In what way could it be said that it would encourage enforcement and investigation authorities to remain within the boundaries of their legal power if evidence is to be excluded by reference to legal decisions not even taken at the time when the power in question was exercised?

  196. It seems to me that, likewise, inadvertence, such as that which was present in O'Brien, should not lead to the exclusion of otherwise probative evidence. It is true that imposing a rule of almost absolute exclusion (which rules out evidence even in cases of inadvertent breach of constitutional rights) might act as a somewhat greater encouragement to authorities towards strict compliance with their obligations. However, the price to be paid for that exceptionally high level of encouragement involves an inappropriate balancing of the interests concerned. On the other hand, if, short of a deliberate and conscious act, evidence is taken in circumstances of recklessness or gross negligence, then a different balancing exercise arises, for it is important that those involved in investigation and enforcement know that they cannot expect that reckless or grossly negligent actions will not have serious consequences for evidence gathering. To rule otherwise would be to place the level of encouragement to compliance at too low a level.

  197. It is important to make clear, in that context, that the term "inadvertent" cannot be said to include a case where any relevant person acted in a manner which was reckless or grossly negligent. There is one sense in which the word "inadvertent" simply means that a person did not advert to the problem. On that basis, a person who, even though grossly negligent, might not actually have "adverted" to the fact that they were acting in breach of constitutional rights might, nonetheless, be said to have acted inadvertently. It is important to emphasise that the term "inadvertent", in the sense in which it is used in this judgment, could not encompass such actions.

  198. On the other side of the equation, it does seem clear that inadvertence can include at least some circumstances which might be regarded as negligent in the broadest sense of that term. A professional person who, for example, fails to notice some material aspect of an issue on which they are to advise or in respect of which they are to act might well be said to have acted inadvertently but might, nonetheless, be found liable in negligence.

  199. It might be argued that permitting the admission of evidence taken in circumstances of inadvertent breach could place a premium on ignorance. Evidence obtained in conscious and deliberate violation of constitutional rights, in the sense in which I have used that term, will be excluded. It might be said that it is more easily determined that the knowledgeable were aware of what they were doing compared with those who may be ignorant of the relevant law. However, it is clear from the sense in which I have suggested that the term "inadvertence" should be used that investigative agencies cannot hide behind an unacceptable lack of knowledge appropriate to their task for the purposes of pleading inadvertence. It does not, therefore, seem to me that the test which I propose, when properly analysed, gives any comfort to those who might seek to rely on exaggerated ignorance of the law to escape a ruling in favour of the admission of evidence taken in breach of constitutional rights.

  200. An exclusionary rule which permits the admission of evidence obtained in circumstances of either inadvertence or where there are subsequent legal developments is sufficient to resolve this case. Doubtless the precise parameters of the point at which, in practice, inadvertence may be said to stop being an appropriate characterisation of events will be defined by further case law.

  201. Before leaving this aspect of the test I would add one further observation. It is suggested that, in formulating the test in this way, inadvertence is elevated to the status of providing a lawful excuse for unconstitutional action. I cannot, with respect, agree that such is an appropriate characterisation. As O'Donnell J. points out, the fact that there may have been a breach of constitutional rights by inadvertence does not excuse that breach. A claim in trespass, for example, would not fail simply because an enforcement officer entered onto premises without legal authority in circumstances where the officer concerned was unaware, due to inadvertence, of the absence of such proper authority. The trespass would not be excused by any inadvertence. Many other similar examples could be given.

  202. The issue here, however, is not as to whether the actions of the relevant investigating authorities are so excused. They are not. Rather, the issue is as to whether otherwise cogent and probative evidence is to be excluded from the court's consideration because of the manner in which it was gathered. To say that there may be circumstances where such evidence can properly be admitted, even though there may have been a breach of rights in the manner in which the evidence was gathered, is not to excuse or, as it is put, lawfully excuse, the conduct in question. Any sanction applying in the civil, or indeed, the criminal law for that breach will apply. But it is an entirely different question to consider whether evidence must be thereby excluded. As I suggested earlier, it is, in my judgement, to go much too far to suggest that a person against whom there is cogent evidence of guilt must necessarily escape conviction solely because there was an inadvertent breach of rights in the gathering of some essential piece of evidence which occurred in a way which does not affect either the integrity or the probative value of the evidence concerned. The focus of the trial of a person whose guilt or innocence might be affected by the evidence concerned is on whether that person is guilty or innocent of the offence as charged. The focus of that trial is not, or at least is not primarily, on whether otherwise cogent and probative evidence was properly gathered. To admit evidence in certain circumstances, even though it was not properly gathered, does not excuse or lawfully excuse any breach of rights concerned. It simply recognises that the evidence remains, notwithstanding the manner in which it was gathered, probative and cogent.

  203. It seems to me to follow, therefore, that the test should include the following:-

    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.

  204. There is one further refinement which, in my view, ought be added. It is important to distinguish between evidence gathering which occurs in circumstances where same could not have been constitutional in any circumstances, on the one hand, and evidence gathering which was capable of being lawful and would have been lawful were it not for the absence of some appropriate form of valid authorisation specific to the facts of the case in question. In that latter category, cases would also arise where there was an authorisation, but where there was some defect in the authorisation concerned. In that context, there is a difference between prosecuting authorities being able to rely, on the one hand, on evidence, the gathering of which was not authorised, but which could have been authorised, and where the absence, inaccuracy or invalidity of or in the relevant authorisation was not adverted to, and, on the other hand, evidence gathering which could never have been authorised at all.

  205. A final element of the test should, therefore, provide the following:-

    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.

  206. Before concluding this aspect of this judgment I would propose to make some final observations.

    6 Some Final Observations

  207. It bears noting that, while a significant amount of the recent focus in the jurisprudence in this area has concerned evidence obtained in circumstances of unconstitutionality, evidence obtained illegally is also a matter with which the courts should be significantly concerned. It is true that there is a particular onus on the courts to discourage unconstitutionality having regard to the constitutional imperative placed on the courts to uphold the Constitution and to vindicate constitutional rights. However, there is also an obligation on the courts to uphold the law and to discourage illegality.

  208. It should not, therefore, be taken that evidence obtained in circumstances of illegality should readily be admitted. Where the absence of legality arises in circumstances properly described as reckless or grossly negligent, then the relevant evidence should be excluded even if the illegality concerned does not result in a breach of constitutional rights.

  209. It does, however, seem to me that it would be appropriate for a court charged with deciding on the admissibility or otherwise of evidence in a particular case to have regard, in assessing whether the impugned actions of those who gathered the evidence in question were inadvertent, to the status of the rights which were shown to have been breached. Where evidence gathering might, in the absence of appropriate authority, give rise to a breach of constitutional, as opposed to legal, rights, then there is a greater obligation on those involved in gathering the evidence in question to ensure that they have proper legal authority for what they are doing. Given that greater obligation, a court might well more readily find fault beyond inadvertence in relation to a breach of constitutional rights rather then legal rights, for the greater the obligation of care, the easier it will be to determine that an absence of care was more severe. That being said, it must nonetheless remain the case that, where an issue as to the admissibility of evidence obtained or gathered in circumstances of illegality arises, the court must carefully scrutinise all the circumstances of the case to determine whether it is appropriate to admit the relevant evidence.

  210. The principles which I have sought to identify seem to me to be appropriate in all cases where there is a challenge to the admissibility of evidence on a basis connected with the manner in which the evidence was gathered or obtained as opposed to questions relating to the probative value of the evidence concerned. Those principles are, therefore, necessarily general in their terms. The precise application of those principles will need to be developed on a case by case basis. For example, and at the level of greatest generality, issues of this type most frequently arise in two different sets of circumstances. The first set of circumstances are cases, such as this, where evidence is gathered on foot of a search warrant or other statutory search authority, and where it is established that there was some problem with the relevant authority so that the search was not authorised. The other main category of cases concerns circumstances where a problem arises concerning the lawfulness of the custody of a suspect who is being questioned. In those latter cases, it is important to emphasise that this judgment is, as has been pointed out on a number of occasions, concerned with objection to the admissibility of evidence which is based simply on an alleged unconstitutionality in respect of the evidence gathering, rather than, as sometimes arises in custody cases, issues as to whether the relevant evidence can truly be regarded as appropriately probative having regard to the circumstances in which it was obtained.

  211. Obviously, the practical application of these general principles may differ somewhat as and between warrant or search authorisation cases, on the one hand, and custody cases on the other. As already noted, the precise application of the general principles is a matter which will need to be developed on a case by case basis.

    7. The Test

  212. 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.

  213. 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.

    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.

  214. 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.

    8 Application to the Facts of this Case

  215. As already noted, the potential issue concerning the admissibility of the relevant evidence in this case concerned the validity of a warrant of the type found invalid by this Court in D.P.P. v Damache [2012] 2 I.R. 266. At the time when the evidence in question was gathered, Damache had not been decided. The warrant was, therefore, issued on foot of a statutory provision which enjoyed the presumption of constitutionality and which had not, at the relevant time, been the subject of any judicial determination concerning its inconsistency with the Constitution. It is possible that different considerations might well arise in a case where there had been a relevant determination of the High Court (or the Court of Appeal) which would, if correct, render the relevant warrant invalid. Even where such a determination was under appeal it would represent the law as understood at the time in question.

  216. It is true that there had been some suggestions made in legal debate over the years which might have questioned the validity of the type of warrant used in this case and also in Damache. However, it does not seem to me that such debate can influence the proper approach to an assessment of the circumstances in which the warrant in this case was granted and executed. The substance of the factual underlay to this case is that the evidence in question was gathered on foot of a warrant which was prima facie valid on the basis of the law as it stood when that warrant was issued, and where the warrant was issued in furtherance of a statutory provision which enjoyed the presumption of constitutionality. In those circumstances, it seems to me that this case comes clearly within the category of case where the evidence should properly be admitted on the basis of the test which I propose. On that basis, it seems to me that, while the trial judge was, of course, bound by Kenny, her decision to exclude the evidence in question was necessarily erroneous in the sense in which that term is used in section 23. I would, therefore, so find.

  217. In the light of that finding, it is necessary to return to the structure of an appeal under section 23. Subsection (11) allows this Court to quash an acquittal and order a retrial if satisfied that the requirements of subsection (3)(a) or (3)(b) are met, and 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". The subsection goes on to specify that, if this Court is not satisfied of both of those matters, the court should affirm the acquittal.

  218. For the reasons already identified, I am satisfied that the requirements of subsection (3)(a) are met in that I am satisfied that compelling evidence was erroneously excluded as a result of a ruling made by the Court during the course of a trial. While that is a necessary condition to the reversal of an acquittal, it is not sufficient to that end. A final decision on whether the appeal should be allowed must, therefore, await a determination as to whether it is in the interests of justice, having regard to the matters specified in subsection (12), to quash the acquittal of Mr. C. As a consideration of those matters has been left over, it is not, therefore, possible at this stage to determine whether the appeal should be allowed or dismissed.

    9 Conclusions

  219. For the reasons analysed earlier in this judgment, I have come to the view that an appeal in relation to the exclusion of evidence can properly be brought under section 23, notwithstanding the fact that the trial judge who excluded the evidence in question properly applied existing case law by which that judge was bound. It seems to me that, where this Court concludes that such existing case law is, itself, wrong, then it follows that the exclusion of evidence based on such case law is also wrong and, therefore, "erroneous" provided that, of course, on the basis of the application of what this Court now determines to be the appropriate test, the evidence should have been admitted.

  220. In addition, for the reasons set out earlier in this judgment, I am satisfied that, on the facts of this case, it is appropriate to conclude that the evidence excluded by the trial judge is "compelling evidence" in the specific sense in which that term is used and defined in section 23. In those circumstances, I am satisfied that the appeal brought by the D.P.P. in this case comes within the scope of section 23 as properly interpreted.

  221. For the reasons analysed, most particularly in section 4 of this judgment, I am satisfied that both Kenny and O'Brien fail adequately to balance the competing constitutional rights involved. I set out, in sections 5 and 7 of the judgment, what seems to me to be the appropriate approach. Applying that approach to the facts of this case, I am satisfied, for the reasons set out in section 8 of this judgment, that the evidence which is the subject matter of this appeal was erroneously excluded by the trial judge in the sense in which that term is used in section 23.

  222. It follows that the first leg of the requirement of a successful appeal by the D.P.P. under section 23 has been met. As noted earlier in the course of this judgment, it was common case that the question of whether there should, in those circumstances, be a retrial was left over until after the substantive issues were determined. I would, therefore, propose that the matter should be relisted to hear counsel on the question of whether Mr. C.'s acquittal should be quashed and a retrial ordered, or whether his acquittal should be affirmed on the basis that it would not be in the interests of justice, in the light of the maters specified in section 23(12), to order a retrial.

    Justice John MacMenamin

    Introduction

  223. 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.

  224. 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 [1990] 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

  225. Section 23 of the Criminal Procedure Act, 2010 provides, insofar as relevant (the key elements are emphasised):

    (1)

    Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.

    ....

    (3)

     

    An appeal under this section shall lie only where –

    (a)

    a ruling was made by a court during the course of a trial referred to in subsection (1) or the hearing of an appeal referred to in subsection (2), as the case may be, which erroneously excluded compelling evidence, or

    (b)

    a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where –

    (i)

    the direction was wrong in law, and

    (ii)

    the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.

    [emphasis added]

  226. Sub-sections 11-14 of s.23 provide:

    23.

    (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,

    or

    (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]

    How is the Section to Operate?

  227. 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.

    A Contrast with Section 34 of the Criminal Procedure Act, 1967, as amended

  228. 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:

    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]

  229. Sub-section 5 provides that:

    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.

    The Purpose of Section 23

  230. 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 [1990] 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.

  231. 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”.

    A Reservation

  232. 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.

  233. 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 [1957], 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:

    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.

  234. 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.

  235. 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.  

    Stare Decisis

  236. 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 [1990] 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. [1976] I.R. 260). However, error is not to be reinforced by repetition or affirmation.

  237. 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 [1997] 2 I.R. 321; the dissenting judgments of Keane and Denham JJ in S.P.U.C. Limited v Grogan (No. 5) [1998] 4 I.R. 343; and the judgment of Keane J. in DPP v Best [2000] 2 I.R. 17. In what is termed a “heavily footnoted dissent” in Burnet v Coronado Oil & Gas Co, 285 US, 393, pp. 406 to 410 (1932), Justice Brandeis pithily observed (at pp. 406 to 408):

    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 ....

  238. He continued (at p 410):

    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.

  239. 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.

  240. 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?

  241. 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

  242. 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

  243. 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.

  244. 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.

  245. 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 [1990] 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

  246. 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 [1965] I.R. 142 at p. 169 where Walsh J. pointed out:

    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]

    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?

  247. 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.

  248. 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 [1990] 2 I.R. 110, specifically the protection of the suspect. It does not propose reversion to The People (A.G.) v O’Brien [1965] 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?

  249. 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 [1990] 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.

  250. 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:

    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.

  251. The judgment focused upon the protection of personal rights of the suspect. But, as DPP v Kenny [1990] 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.

  252. 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:

    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.

    This provision is considered later in this judgment.

    The Evolution of the Rule

  253. 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

  254. 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 [1955] 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 [1965] 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 [1965] I.R. 142

  255. The facts of The People (Attorney General) v O’Brien [1965] 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.

  256. The judgments in The People (A.G.) v O’Brien [1965] I.R. 142 involve the balancing of constitutional rights, just as in DPP v Kenny [1990] 2 I.R. 110, some 25 years later. The People (A.G.) v O’Brien [1965] I.R. 142, therefore, no less than DPP v Kenny [1990] 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 [1965] I.R. 142 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?

    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:

    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.

    He concluded at p. 161:

    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 ....

  257. In The People (A.G.) v O’Brien [1965] 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.

  258. There can be no doubt that Walsh J.’s language in The People (A.G.) v O’Brien [1965] 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:

    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, ....

  259. However, as Walsh J. pointed out in The People (A.G.) v O’Brien [1965] 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 [1965] I.R. 142 at 170). This was neither, therefore, a “deliberate nor conscious” act.

  260. It must be frankly accepted that in the three decades following The People (A.G.) v O’Brien [1965] 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 [1977] I.R. 336

  261. In the years following The People (A.G.) v O’Brien [1965] 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 [1977] 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.

  262. Nonetheless, as a result of The People (A.G.) v O’Brien [1965] I.R. 142, the principle generally applied, up to The People (DPP) v Madden [1977] 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 [1986] 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 [1982] I.R. 1

  263. In DPP v Shaw [1982] 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 [1990] 2 I.R. 110

  264. This necessarily selective narrative describing the formulation and application of the principles of admissibility leads us then to The People (DPP) v Kenny [1990] 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.

  265. Some analysis of the facts providing the background for DPP v Kenny [1990] 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:

    .... 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.

    The warrant to search stated, inter alia:

    Whereas I, the undersigned Peace Commissioner, being satisfied on the information on oath of Garda C ....

    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.

  266. 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 [1990] 2 I.R. 110

  267. 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 [1988] I.R. 31 (DPP v Kenny [1990] 2 I.R. 110), a judgment delivered by the High Court three years after the search warrant in DPP v Kenny [1990] 2 I.R. 110 was obtained.

  268. 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 [1965] I.R. 142; The People v Madden [1977] I.R. 226; The People v Farrell [1978] I.R. 13; The People v O’Loughlin [1979] I.R. 85; The People v Walsh [1980] I.R. 295; The State (Quinn) v Ryan [1965] I.R. 70, and the United States v Leon, 468, U.S. 897.

  269. 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 [1980] I.R. 295, at page 317, and The People v Shaw [1982] I.R. 1, at page 32.

  270. 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 [1990] 2 I.R. 110 at p. 117):

    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]

    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?

  271. 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:

    In such cases, as Mr. Justice Walsh indicates, the evidence normally should not be excluded ....

    Here O’Hanlon J. was referring back to a passage from Walsh J.’s judgment in The People (A.G.) v O’Brien [1965] I.R. 142 at pp 168 to 169) where he observed:

    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.

  272. The Court of Criminal Appeal (O’Hanlon J.), referred to a passage from The People v O’Loughlin [1979] 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:

    .... 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]

  273. Later, O’Hanlon J. said at p.123:

    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]

    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.  

    The Question of Intentionality

  274. 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.

  275. But it was three years later by the time the High Court delivered judgment in Byrne v Grey [1988] 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:

    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?

    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 [1983] 468 897, who expressed himself in the following terms, on the then extant United States exclusionary rule:

    .... 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 [2009] 555 U.S.; Davis v United States [2011] 131 S. Ct. 2419.]

  276. 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.

  277. 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

  278. The principles identified in the earlier judgments referred to herein were reformulated in The People (DPP) v Kenny [1992] 2 I.R. 110 It is of fundamental importance that The People (DPP) v Kenny [1992] 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 [1965] 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 [1965] 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.

  279. 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:

    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."

    A statement of high constitutional principle put in this way, and in its context, is not easily to be ignored or discarded. There is, however, one passage in the judgment of the majority which is troubling. There, Finlay C.J. observed at p. 134:

    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 [1982] 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]

  280. 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 [1990] 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.

  281. While there is no doubt that in DPP v Kenny [1990] 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 [2012] IESC 11, for the minority, observed in DPP v Kenny [1990] 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.

    He continued:

    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 [1990] 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.

  282. Seen from the perspective of today, can it now be said the State agents in DPP v Kenny [1990] 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.

  283. 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 [1990] 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 [1990] 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

  284. 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 [1965] I.R. 142, which DPP v Kenny [1990] 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. [1976] 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. [1976] 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

  285. 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.

  286. 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 [1990] 2 I.R. 110 was pronounced has, too, changed significantly and constitutional statutory protections for suspects are now considerably greater.

  287. 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 [1949]). I do not accept, either, that the choice, now, can be characterised as one simply between “expediency” and “principle”.

  288. 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 [1990] 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.  

    Clarity

  289. Insofar as it is said that DPP v Kenny [1990] 2 I.R. 110 brought clarity, it may be questioned whether this is so always? In the People (DPP) v Balfe [1998] 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.

    Anomalies

  290. 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.

  291. 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”.

  292. In Curtin v Clerk of Dail Eireann [2006] 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

  293. A further example of the elision between illegality and constitutionality is to be found in DPP v Yamanoha [1994] 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.  

    The Consequences

  294. 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?

  295. 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.

  296. 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.  

    Conclusion

  297. 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.

  298. 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 [2003] 3 I.R. 416. On balance, I think this process should be adopted in the present appeal.

  299. 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 [2006] 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.

  300. 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.

  301. 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.

    Justice John Murray

    Introduction

  302. Justice Owen Roberts of the United States Supreme Court warned that the then stance of his court in overturning contemporary constitutional precedent tended “to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance .... that the opinion announced today may not be shortly repudiated and overruled by justices who deem they have new light on the subject”. (Smyth v Allwright, 321, U.S. 649, 669 [1944]).

  303. This statement has a resonance in the present case, even if from a different perspective. In this case the respondent and his counsel relied at the trial in which he was acquitted on the law as laid down by this Court in DPP v Kenny concerning the exclusion of evidence obtained in breach of the accused’s constitutional rights. Under our constitutional structure the Supreme Court is the final interpreter of the law, statutes and the Constitution. Citizens rely on such definitive statements or interpretations of the law. That is what the respondent did in this case in the conduct of his, successful, defence to the charges against him. The trial judge relied and applied the law precisely as the Supreme Court said she should. She was bound to do so. At the trial the DPP did not take issue with the correctness of her decision, and accepts in this appeal, as she was bound to do so, that the trial judge applied the law correctly and as she was bound to apply it during the trial.

  304. A consequence of a successful appeal by the DPP in this case means that the established law, or if you like the ticket, on which the accused relied upon in this case, may have lasted the day but it is to be deemed, retrospectively, not even valid for the journey, since the prosecution seeks to obliterate the fact that the accused’s destination, an acquittal in a jury trial, was reached in accordance with that established law at the trial, and to return the respondent to the starting point of his journey in a new trial, with a new ticket with new restrictive conditions imposed retrospectively. This is the consequence of the DPP relying successfully on s.23 of the Criminal Procedure Act, 2010 by characterising the ruling of the trial judge in this case as retrospectively “erroneous”, because the majority of the Court today considers that the rule in the Kenny case should have a different ‘calibration’. Overruling established law, as set out in The People v Kenny, of this Court is only incidental to that consequence.

  305. A citizen who is tried and acquitted on a criminal charge tried before a judge and jury in accordance with established principles of law, which the trial judge applied and was bound to apply, could well expect that he could not be tried again for the same offence, least of all because the trial judge made an allegedly “erroneous” ruling on the law in the course of the trial. Yet this is what the DPP argued the Oireachtas intended to happen.

  306. Such a citizen might be reinforced in that expectation (and perhaps have a sense of frustration and even bitterness) because at his or her trial the People, in whose name the prosecution is brought by the DPP, accepted and approved of the trial judge’s ruling in law, and that it was one which the trial judge was bound to make. Yet the DPP argues in this case says that such a ruling by a trial judge may nonetheless be retrospectively characterised as “erroneous” and thus expose a citizen to being tried again for the same offence.

  307. It is one thing for the prosecution to have a right of appeal where a trial judge, in making a ruling at a trial on the admissibility of evidence, acted erroneously where it is claimed that the trial judge during a trial misinterpreted or misapplied the applicable law.

  308. It is altogether another matter when the trial judge has correctly applied the applicable law at the trial. This is what makes this case special.

  309. The entitlement of the DPP to appeal against an acquittal, a verdict of not guilty, in a trial on indictment is a break from the centuries old common law prohibition against double jeopardy, as applied to the prosecution for serious criminal offences.

  310. The legislature, within the limits of the Constitution and the principles of constitutional justice deriving from it, may provide for exceptions to the double jeopardy principle. But such statutory exceptions to fundamental principles must be stated clearly as explained later in this judgment.  

    Background Facts

  311. The facts and circumstances of the case are not in controversy. I would just set out succinctly the salient elements of the case. The respondent, J.C., was tried for certain robbery offences before a judge and jury at the Circuit Criminal Court. During the course of the trial, evidence which the prosecution sought to introduce, was excluded on the basis of an application of the exclusionary rule, as laid down by this Court in DPP v Kenny [1990] 2 I.R. 110. In an uncontroversial application of the law as laid down by this Court in the Kenny case, the trial judge excluded six statements made by the accused, three of which were inculpatory, because the accused at the time when the statements were made was unlawfully detained in custody by the gardai. It is not disputed by the DPP (and was not at the trial) that the trial judge was bound, as a matter of law, as laid down by this Court in Kenny, to exclude the evidence in question as inadmissible. Following the ruling of the trial judge the case proceeded without the prosecution offering any further evidence. There being insufficient evidence at the conclusion of the prosecution case on foot of which a jury could reasonably convict, the jury were directed by the trial judge to bring in a verdict of not guilty. No issue is raised concerning the correctness in law of the direction to the jury at that point, or the consequential verdict of acquittal of the respondent.

  312. That verdict of not guilty, by a court of competent jurisdiction in full accord with the law as applicable at the trial, is final and conclusive, or at least it would be if the rule against double jeopardy, which has been a fundamental principle of the common law, and other legal systems, for centuries (see below), continues to apply.

  313. The DPP, being dissatisfied with the existing rule of law, as laid down in Kenny, applied at the time by the trial judge, could have appealed to this Court on that question of law without prejudice to the verdict of not guilty, pursuant to s.34 of the Criminal Procedure Act, 1967 (as amended). This is considered further at paragraph 101 of this judgment.

  314. Instead, the DPP has appealed pursuant to s.23 of the Criminal Procedure Act, 2010. This permits, as an exception to the rule against double jeopardy, a ‘with prejudice’ appeal by the DPP to set aside a verdict of not guilty where, inter alia, the trial judge made an “erroneous” ruling “during the course of a trial”, excluding “compelling evidence” as specifically defined in that section.

  315. In this case, in seeking to rely on s.23, the DPP seeks to have the rule of law on the admissibility of certain evidence, as laid down in DPP v Kenny 15 years ago, overruled or limited in its application, so as to provide a basis upon which the evidence excluded by the trial judge at the first trial could be admitted at a second trial of the respondent on the same charges.

  316. Thus, the DPP asks the Court to retrospectively deem the correct ruling in law of the trial judge to be nonetheless an “erroneous” ruling.

    The First Fundamental Issue

  317. The fundamental issue which first arises in this case is whether s.23 of the Act of 2010 can properly be interpreted as giving the DPP a right of appeal in the circumstances of this case, where the trial judge is not alleged to have erroneously applied a rule of law which she was required by judicial decision to apply during the course of the trial, but the rule of law was subsequently changed by a judicial decision of this Court.

  318. The relevant provisions of s.23 of the Criminal Procedure Act, 2010 are as follows:

    23.

    (1)

    Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, .... may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.

    ....

    (3)

     

    An appeal under this section shall lie only where –

    (a)

    a ruling was made by a court during the course of a trial referred to in subsection (1) .... which erroneously excluded compelling evidence  ....

  319. The interpretative issue is whether the Oireachtas, in enacting s.23, creating a right of appeal on the basis of an erroneous ruling at the trial, intended it to apply to a case, such as this, where the trial judge made no error at the trial by applying the law as she was bound to do so. The DPP did not, and does not, argue that during the trial the judge misinterpreted or misapplied the applicable law governing the admissibility of evidence.

  320. As appears from s.23, an appeal under this section shall “only” lie where, inter alia, the ruling made by the judge “during the course of the trial” “erroneously excluded” the evidence in issue.

  321. The question is, therefore, whether the trial judge can in the circumstances of this case be deemed to have “erroneously excluded” evidence at the trial within the meaning of s.23.  

    Compelling Evidence

  322. Apart from the issue as to whether there truly was an erroneous decision excluding evidence on the part of the trial judge within the meaning of s.23 the Court must also be satisfied that the evidence was of a “compelling” nature. This is a question of fact based on an assessment of the quality of the evidence. Because the evidence was excluded as a matter of law it was not placed before the trial judge. Neither is any of that evidence before this Court. The term compelling evidence is defined in the section, although I do not consider it necessary to refer to it, since the Court has not been asked to evaluate the nature of that evidence for the purpose of determining whether or not it is compelling within the meaning of the section. However, counsel for the respondent in this appeal conceded as a matter of fact that the evidence excluded was indeed compelling evidence, and had effectively so acknowledged that fact in the course of argument at the trial. The reason for this was apparently that some of the admissions made by the respondent in statements while in custody was, on any factual assessment, objectively compelling within the meaning of the section. While I entertained some doubts about the matter, I am persuaded by the arguments of counsel for the DPP that in the circumstances of this particular case that the concession of fact made by counsel on this point is sufficient to fulfil the criterion of compelling evidence for present purposes.

  323. However, whether, as a matter of law, there was an erroneous ruling within the meaning of s.23 by the trial judge is a different matter. Insofar as counsel for the respondent conceded that the trial judge’s ruling could be treated as erroneous if this Court should decide to alter the rule of law laid down by Kenny this is not at all sufficient to dispose of the primary interpretative issue. It is purely a question of law, and it is for the Court to be satisfied that an appeal lies, as a matter of law, under the section, and cannot avoid this judicial responsibility, or set aside the verdict of a court, by relying on a concession on a point of law made by a party.  

    The Second Fundamental Issue

  324. The rule of law laid down in DPP v Kenny is, of course, the one which applies a near absolute exclusionary rule to the admissibility at a criminal trial of evidence which has been obtained in breach of the constitutional rights of the accused, to put it simply. Here the evidence was excluded by the trial judge on a proper application of the law in Kenny. The issue is whether the statement of law laid down by this Court in Kenny should now be restated or amended, or simply overruled, in a way that would accord to a trial judge greater discretion in admitting evidence obtained in breach of the constitutional rights of an accused, and to the extent that would permit a judge in a retrial of the accused in this case to exercise a discretion in favour of admitting at a second trial the evidence excluded at the first trial.

  325. If an appeal does not lie under s.23 of the 2010 Act because the trial judge’s ruling in accordance with law, and as she was bound to rule at the trial, could not be considered an erroneous ruling within the meaning of the section, then the second issue does not arise at all.  

    Context of First Issue

  326. There is no doubt that s.23 creates for the DPP a right of appeal which breaches the principle of protection against double jeopardy. Indeed, the long title to the Act itself speaks of providing “for exceptions to the rule against double jeopardy”. The first issue concerns not the existence of an exception, but the extent to which the Oireachtas intended that such exceptions to the rule against double jeopardy should apply.

  327. In my view, the interpretation of s.23 for which the DPP argues involves an extreme and wholly exceptional inroads to that centuries old and hallowed principle.

  328. The intention of the Oireachtas in this provision falls to be determined, as any provision of an Act does, by having regard to the ordinary and natural meaning of the words used, the nature and context of the body of law which it impacts upon, canons of construction, and the Constitution.

  329. As part of that context it is, I feel, important to have regard to the historical and venerated status of the rule against double jeopardy as embedded for centuries in the common law, and indeed other systems.

  330. I will, therefore, turn to consider the nature, status and role of that rule to which s.23 creates and exception, in order to place the first issue in its particular context, before going on to consider how the section should be interpreted for the purpose of this case.

    The Double Jeopardy Rule

  331. The principle of double jeopardy whereby a person cannot be prosecuted twice for the same offence, particularly following an acquittal, stretches back beyond the common law and is one which is at the heart of every system of justice based on the rule of law, and also expressed as the principle of non bis idem.

  332. “The rule against double jeopardy has traditionally been thought of as a hallowed canon of the common law, a golden rule which sits at the heart of all English common law systems. Double jeopardy is a revered principle “vital to the protection of personal freedom”. It is claimed that the rule underpins the legitimacy of the legal system because it recognises the incontrovertibility of verdicts, which are transformed, via the declared judgment, into a record of a “high nature”.” (M. Edgely, “Truth or Justice?”; Vol 7 No. 1 Queensland TLJJ 108, the author citing, inter alia, Lord Justice Auld of the U.K. Court of Appeal, and the Australian High Court)

  333. Palles C.B. in his judgment in G.S.W. Railway Company v Gooding [1908] 2 I.R. 429 approved the description which Colridge LCJ gave to the rule against double jeopardy (in R v Duncan [1881] 7 QPD 198) which was as follows:

    The practice of the courts has been settled for centuries and is that in all cases of a criminal kind where a prisoner or defendant is in danger of imprisonment no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted.

  334. Palles C.B. himself stated in the Gooding case (at 431):

    Now, I take it that there is nothing more settled in our law than that (where there is no express provision, such as is contained in the Petty Sessions Act, enabling an adjudication to be made without prejudice) if a person be once in peril in a criminal case, that is, if he be once tried before a court having jurisdiction to hear and determine, then if there be a determination of acquittal, the matter cannot be brought up a second time for adjudication.

  335. The protection against double jeopardy is enshrined in International instruments such as the United Nations International Covenant on Civil & Political Rights [1966] and the European Convention on Human Rights.

  336. It is a concept which is to be found in all legal systems and goes back in time to the early embryonic notions of justice. Many commentators point out that it was part of the judeo-christian tradition, and the passage in the old testament Book of Nahum was interpreted as sustaining a common law maxim “not even God judges twice for the same act”. Double jeopardy has been identified as one of the oldest legal concepts in Western civilisation. In 355 B.C. the Athenean Demosthenes said “[T]he law forbids the same man to be tried twice on the same issues.” (cf. Hunter “The Development of the Rule Against Double Jeopardy” 1984 Journal of Legal History). The principle was observed in Greek law and the law of the Roman Republic (cf. Bartkus v Illinois 359 US 121 at 151-152 (1959)).

  337. The principle or rule against double jeopardy, while not unique to the common law, is one which has been entrenched for many centuries with its own quality and parameters in the common law.

  338. In Bartkus v Illinois 359 US 121 (1959) Justice Black of the U.S. Supreme Court had this to say about the protection against double jeopardy:

    Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers. By the thirteenth century it seems to have been firmly established in England, where it came to be considered as a "universal maxim of the common law." It is not surprising, therefore, that the principle was brought to this country by the earliest settlers as part of their heritage of freedom, and that it has been recognized here as fundamental again and again. Today it is found, in varying forms, not only in the Federal Constitution, but in the jurisprudence or constitutions of every State, as well as most foreign nations. It has, in fact, been described as a part of all advanced systems of law and as one of those universal principles "of reason, justice, and conscience, of which Cicero said: ‘Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations it is the same.’

    [emphasis added]

  339. By the end of the 18th Century, Blackstone referred to the right of a person to defend a second prosecution on the basis of a former acquittal as being “grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence. An hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime”. [Commentaries, 8th Edition, Part IV, CH. 26]

  340. Mr. Justice Michael Kirby, former justice of the highest court of Australia, summed up the nature and status of the rule against double jeopardy “.... as a principle of justice and a feature which civilised legal systems strive to uphold”.  

    Underlying Reasons for the Rule

  341. In Green v United States (355 U.S. 184: 1957), the U.S. Supreme Court summarised some of the policies underlying the notion of double jeopardy protection is stating:

    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 make repeated attempts to convict an individual for an alleged offence, thereby [1] subjecting him to embarrassment, expense and ordeal and [2] compelling him to live in a continuing state of anxiety and insecurity, as well as [3] enhancing the possibility that, even though innocent, he may be found guilty.

  342. As one can imagine there is a great deal of literature on the values underpinning the rule against double jeopardy. These have been well summed up by Mr. Justice Kirby in his paper ‘Carroll, Double Jeopardy & International Human Rights Law’ (2003, 27 Crim. L.J. 231). He referred to a range of separate grounds or explanations offered by the law for upholding the rule against double jeopardy. Leaving aside those specific to an Australian context, I consider it useful, with emphasis added, to cite the most salient of those considerations:

    (1)

    Controlling state power:

    It necessary to keep the power and resources of the state in proper check, given that, in every case, they will be greater than those of an individual accused of crime. Unless such controls are maintained by the law, there will be a risk that state power will be deployed to subject an accused "to embarrassment, expense and ordeal .... compelling him to live in a continuing state of anxiety and insecurity". Thus, the principle of double jeopardy is one that helps to define the kind of society that our law defends. In that sense, it is for the benefit of all people, not just the accused;

    (2)

    Upholding accusatorial trial:

    One of the "fundamental underpinnings" of the criminal trial process in common law countries is its accusatorial character. It is not, as such, a search for the truth of what occurred so much as a search for a conclusion on whether the prosecution, representing the state, has proved the guilt of the accused to the requisite standard. Many of the proponents of weakening the common law principle against double jeopardy, or providing an exceptional legislative basis for doing so, justify their contention on the footing that such modifications will ensure that, in the end, the courts get to the truth of particular events. Notions of this kind tend to undermine, and certainly to qualify, the basal accusatorial character of our criminal process. That feature is one that continues to give effect to Blackstone's precept that "It is better that ten guilty persons escape, than that one innocent suffer".

    ....

    (4)

     

    Desirability of finality:

    A criminal trial is a kind of public drama. It is intended to bring closure to a serious and potentially disruptive social event endangering the peace and order of society. This is why, especially in criminal trials before juries, great importance is attached to finality. Ordinarily, finality will be as much for the protection of victims or their families as of the accused and desirable from the point of view of society. The law embraces finality in this respect with open eyes, accepting its imperfections. In the Ampthill Peerage case, Lord Wilberforce explained:

    Any determination of disputable facts may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but in the interests of peace, certainty and security, it prevents further enquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide ....

    (5)

    Confidence in judicial outcomes:

    To the extent that convictions, but even more so acquittals, are effectively reopened and resubmitted to a fresh trial, community confidence in the outcomes of jury trial and judicial determination may be weakened or even undermined. This is why "orders and other solemn acts of the courts (unless set aside or quashed) [are] to be treated as incontrovertibly correct". Sometimes this rule will seem intolerable to those who continue to contest the correctness of the determination. They may have opportunities for appeal and possibly judicial review. Increasingly, they may have further opportunities for executive and judicial reconsideration. But when all these opportunities have been exhausted, continuing the challenges by reopening the orders solemnly arrived at in an earlier trial, weakens public confidence in the justice system. It also undermines the proper conservation of judicial resources and court facilities.

    ....

    (9)

     

    Increasing conviction chances:

    Self-evidently, the larger the number of prosecutions permitted by law, the greater "the possibility that even though innocent [the accused] may be found guilty". With each new prosecution, dealing in substance with the same alleged criminal deed, the Crown, with all of its resources, secures an increased chance of obtaining a conviction. Not only might this be a form of unjust harassment. It could tip the scales in a way inappropriate to the conventional role of the prosecution in our form of society.

    (10)

    Denial of basic rights:

    To allow a second proceeding that cast in doubt an earlier acquittal would also undermine the social acceptance of acquittals more generally. It would represent a departure from the fundamental rights hitherto enjoyed by Australian citizens. Although, subject to the Constitution, legislatures can so provide, they must do so, if they are to be successful, in clear terms.
     

    [emphasis added]

    Principal Reasons for the Rule

  343. It may in any event be adduced from the authorities and the literature that there are at least three essential principles or policies underlying the rule:

    1. Respect for the finality of decisions of a court,

    2. Protection against oppressive prosecutorial system,

    3. The integrity of the judicial process, and public confidence in it.

    Exceptions

  344. There are exceptions to the double jeopardy protection principle, including modern exceptions, but they are clearly identified and invariably require the prosecution to meet a high threshold, by reference to express criteria, before being entitled to bring an appeal. As Kirby J. pointed out, they do so, must do so, in clear terms. Such exceptions are, of course, different from a retrial arising from some fundamental flaw vitiating a first trial (such as an issue going to the jurisdiction of a court), so that the first trial cannot be considered to have been a trial at all.

  345. Among the exceptions to that principle is where the trial process has been factually tainted, such as by bribery or corruption of witnesses or jurors. Recently, the law changed in the 2010 Act to allow a retrial in clearly expressed circumstances, notwithstanding an acquittal, if subsequent to the acquittal verdict new evidence comes to light which would justify placing the accused on trial again. As acknowledgement of the importance of the principle this is clearly expressed and circumscribed by specifying a high threshold, such as that the evidence is new and must be cogent or compelling, of such a nature that, if accepted by a jury, they would be entitled to convict.

  346. An important aspect of the first interpretative issue in this case is not whether there ought to be exceptions to the double jeopardy principle, or even to the extent to which such exceptions are constitutionally permissible (since that has not been raised), but whether the exception created by s.23 of the Act of 2010 is sufficiently precise and clear as to apply in the circumstances of this particular case. It cannot be ignored that the rule against double jeopardy is regarded worldwide as a hallowed principle fundamental to the rule of law, and that exceptions which have been made to it have been clearly defined and clearly limited. All of this is material to any interpretation of s.23, and the extent of its reach as an exception to that rule. It counters any notion that a statute could be considered to implicitly whittle away the rule.  

    Interpretation of Section 23 of the Act of 2010

  347. As has been explained, the rule against double jeopardy is a hallowed and long evolved due process of protection of the citizen in a society based on the rule of law, and any whittling away of that protection should be approached with caution. More important, in the context of this case, any exception to that rule made by statute, including the ambit of any such exception, should be clearly defined so that the exception is not extended beyond that which is clearly and unambiguously intended.

  348. There is no doubt that s.23 expressly provides for exceptions to the rule against double jeopardy. There is equally no doubt, as one might expect, that it seeks to limit the circumstances in which such an exception can arise.

  349. To recall, the relevant provisions of s.23, are as follows:

    23.

    (1)

    Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, .... may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.

    ....

    (3)

     

    An appeal under this section shall lie only where –

    (a)

    a ruling was made by a court during the course of a trial referred to in subsection (1) .... which erroneously excluded compelling evidence ....

    [emphasis added]

  350. The key interpretative question is whether the Oireachtas intended that the correct ruling at the trial made in this case on the admissibility of evidence should retrospectively be treated as an “erroneous” ruling.

  351. The exception to the rule against double jeopardy is strictly limited, and such an appeal shall lie “only” where certain criteria are met. Those set out in sub-paragraph (a) of s.23 are the relevant ones for the purposes of this appeal, namely, whether the trial judge’s ruling was made “erroneously”.

  352. The criteria set out in sub-paragraph (a) is that:

    1. a ruling was made by a court,

    2. during the course of the trial, which

    3. was erroneous.

    Ordinary and Natural Meaning

  353. It strikes me as being rather evident that when one speaks of a trial judge making a “ruling” “during the course of a trial” as being erroneous in law, one is speaking of a trial judge who has misinterpreted the law or misapplied the law during a particular trial. In short, an erroneous interpretation or application of the applicable law during the time of the trial.

  354. It is clear that the Oireachtas intended that where a verdict of not guilty was arrived at by a jury following the exclusion at a trial by the trial judge of “compelling evidence” (as specially defined), and that exclusion arose from such a misinterpretation of the existing or applicable law, then the DPP should, as an exception to a fundamental principle, have a right of appeal against that verdict.

  355. Such an erroneous ruling during a trial can arise in various circumstances. The trial judge may just get the applicable law wrong. The law governing a particular issue or ruling may not always be clear or settled. It may also occur that the trial judge gives an interpretation to a provision of a statute not previously the subject of judicial interpretation, to which the DPP takes exception, and seeks to appeal on the grounds of an erroneous ruling. (Invariably, one would expect that the DPP in the course of the trial would have argued for a particular interpretation, not accepted by the trial judge, which is then pursued on such an appeal). On an appeal under the section, this Court may hold that the interpretation given to the law by the trial judge in his or her ruling, while not wholly unreasonable or was understandable, was nonetheless wrong and erroneous. That is not, however, to say that the ruling was not in error. It is only to say that it was an understandable error.

  356. The circumstances in this case are both different and special. This was not even a case of the trial judge applying some generally received understanding of the meaning of a law or statute, but involved the direct application of a rule of law as judicially defined by the Supreme Court.

  357. The ruling with which the DPP now takes issue is one where the trial judge ruled as inadmissible six statements made by the respondent to the investigating gardai while he was unlawfully detained in custody, in breach of his constitutional right to liberty. It is not in issue that at the time when the statements were made he was detained in unlawful custody. The ruling of the trial judge that the statements in question were not admissible in evidence at the trial was one which she was bound to make on the basis of established and settled law, as set out in The People (AG) v O’Brien [1965] I.R., and in particular DPP v Kenny [1990] 2 I.R. 110. Both are decisions of this Court. They contain statements of the law as judicially determined by the highest court in the land. The trial judge was bound, as a matter of law, indeed as a matter of constitutional law, to make the ruling which she did. The accused person relied on that law and his counsel conducted his defence accordingly. The DPP did not contest, does not contest, and could not contest, that the trial judge was bound, as a matter of law, to make the ruling she did.

  358. Moreover, if she made any other ruling, that is a ruling to admit the evidence in issue, it would have been then considered erroneous in law. That is only one of the ironies arising from the decision of the majority in this case.

  359. To assert, as the DPP now does, that during the course of the trial the trial judge made a ruling, which she was constitutionally bound to make, was an erroneous ruling seems to me to be a self-defeating assertion.

  360. Another irony in this case is that according to the criteria laid down by the majority for the admissibility of evidence obtained in breach of a citizen’s constitutional rights, such breach may be ignored where it “derives from subsequent legal developments”. Thus, the prosecution are to be excused for tendering unconstitutionally obtained evidence, as Mr. Justice Hardiman points out, in effect due to ignorance of the law. But a citizen is to be treated as having been erroneously acquitted notwithstanding that the trial court applied the law at the time of the trial as it was known and as it was bound to do so.

  361. More important is the question whether the Oireachtas, in enacting s.23, intended that the section should encompass an appeal by the prosecutor from an acquittal, on the basis of the law on which (i) the citizen was entitled to rely, and could not but rely upon, (ii) the prosecution were bound to accept, and did accept, and (iii) the trial judge was bound to apply and did apply, should nonetheless be the subject of an appeal whereby the verdict of acquittal given by the jury should be set aside and a retrial ordered.

  362. Synonyms for “error” include “mistake” and “incorrect”. Having applied the law at the trial, as she was bound to do, the trial judge could not, by reference to any ordinary meaning of the word “erroneously”, be said to have made a ruling which was in law mistaken, incorrect or in error.

  363. What the Court is required to do is to examine the quality of the ruling made at the trial. It is not whether the trial judge’s ruling could be labelled “erroneous” in the abstract, let alone whether it was “erroneous” from any selected point of view. The question is whether it was “erroneous” within the meaning of s.23 of the Act. In looking at the quality of the ruling as “made by a court during the course of a trial”, one must look at the quality of the decision as then made by the trial judge. Given that those rulings were made in a manner which the trial judge was legally and constitutionally bound to do, I cannot read into s.23 an intent by the Oireachtas that it should be treated as erroneous for the purposes of providing an exception to the protection against double jeopardy. I emphasise again that the trial judge was applying a principle of law as judicially determined by a higher court. I do not think that the Oireachtas at all had in mind that the quality of such a decision at a trial should be deemed to have changed because of a subsequent decision of the Supreme Court to change the law as declared in its earlier judgments, and as was applied at trial.

  364. Moreover, quite independent of the foregoing, it cannot be ignored that the provision of the section speaks clearly of an erroneous ruling of the trial judge “during the course of the trial”. That formulation, in my view, adds real strength to the interpretation which I consider flows from the ordinary and natural meaning of the words used in the section. In making reference to an erroneous ruling “in the course of a trial” the Oireachtas is envisaging the kind of error referred to earlier above, an error in the interpretation of the applicable law at the time of and during the trial. I do not consider that treating a ruling of law during a trial which the trial judge was, as a matter of law, bound to make, as retrospectively erroneous is consistent with what the Oireachtas had in mind.

  365. In short, the ruling made by the court “during the course of the trial” was correct. Nothing in the section suggests that parliament intended that such a ruling could be treated as erroneous by virtue of a later change in the law.  

    Constitutional Considerations

  366. I would add, that Article 38 of the Constitution provides that: “No person shall be tried on any criminal charge save in due course of law.” When a citizen is tried, as in this case, before a judge and jury, and this Court has laid down a rule of law which the trial judge is bound to follow, and does follow faithfully, I do not think it can be said that the citizen has received a trial other than “in due course of law”. This objective fact cannot, to my mind, be set aside or diluted by a subsequent decision of this Court to adopt a different view in contemporary circumstances, some 25 years after its earlier declaration in an earlier case, as to what the law should now be henceforth.

  367. The Oireachtas is entitled by virtue of Article 34.4.3, and Article 34.3.4, to make provision by law for appeals from the High Court to the Supreme Court, and from the District Court to the Circuit Court against acquittals in criminal cases (pace, recent amendments to Article 34 making provision for appeals to the Court of Appeal, enacted subsequent to the fact of this case). (See The People v O’Shea [1982] I.R. 384 and Considine v Shannon Regional Fisheries Trust [1997] 2 I.R. 404, at 422). Such legislation must, of course, conform with the Constitution as a whole and the principles of constitutional justice derived from it.

  368. In The People v O’Shea, O’Higgins C.J. (at 403) stated that “The phrase ‘in due course of law’ denotes fair and just procedures in the conduct of the trial and the due application of the relevant law; it denotes no more.” (emphasis added)

  369. In this case, the DPP prosecuted a trial – that it was conducted by the trial judge in accordance with fair and just procedure is not in doubt – but more important it was conducted “in the due application of the relevant law”, namely, as already emphasised, the law as declared by this Court which the trial judge was bound to apply. The trial judge, having duly applied the relevant law, cannot, in the light of Article 38, be said to have acted erroneously in the application of that law. Certainly, not unless a special, or artificial, meaning was given by the Act to the term “erroneously”. And even such a special meaning would be constitutionally questionable. There is no such definition in the Act. I think it would give an extraordinary meaning to an ordinary word to characterise the trial judge’s ruling in this case as “erroneous” within the meaning of s.23 of the Act of 2010. Such an interpretation would conflict with the constitutional notion of trial “in due course of law”, as explained by O’Higgins J., absent some clear and special meaning attributed by the Act itself to the word and phrase “erroneously” and “during the course of the trial”.

  370. In short, in looking at s.23, and in particular sub-section (3)(a), from the perception of its ordinary and natural meaning, I do not consider that the Oireachtas intended the limited application to “erroneous” rulings of that section to cover cases where the ruling of the trial judge during the course of the trial was precisely what the trial judge was bound in law and constitutionally to rule.

  371. I do not think that the Oireachtas intended to imply such an exception to the hallowed rule against double jeopardy “which civilised legal systems strive to uphold” (see Kirby J. above). Indeed, if the Oireachtas was to change the law after a trial and then seek to have a citizen retried on the basis of some new rule of law with a view to possibly getting a different verdict, it would not stand constitutional muster. Can anything different be said of a subsequent judicial change of a rule of law followed by a retrial of the same accused on the same charges under new and different rules? No issue has been raised in these proceedings concerning the constitutionality of s.23, an interpretation conforming with the Constitution and its principles is a factor to be taken into account in interpreting section 23.

  372. To my mind, an acquittal by a jury in due course of law is a final verdict.  

    Legal [Un]Certainty

  373. It is universally recognised that one of the fundamental aspects of the rule of law is legal certainty (see for example the judgment of the European Court of Human Rights in Bujnita v Moldova, cited below). The legal uncertainty, which I believe will be created by adopting the interpretation of s.23 argued for by the DPP, is another reason for concluding that in the absence of clear words saying so the Oireachtas did not intend a judicial ruling that was correct at the trial should be treated as erroneous by virtue of a subsequent change to an existing rule of law, as defined by a higher court. This uncertainty will arise both in relation to the issues of law during a trial as well as the status of what has always been considered as a final verdict of acquittal by a jury.

    Uncertainty at a Trial

  374. If the DPP is correct as to the scope of s.23, as regards a case such as this, one may well ask how a citizen, or his counsel, would conduct a defence to a serious criminal charge before a judge and jury if they have to provide for the contingency that any ruling of the trial judge excluding evidence in accordance with well settled law as declared by this Court, might yet result in an acquittal being called in question and potentially set aside if the DPP thought it might be a good idea to ask this Court, in an appeal under s.23, to review the meaning of that law, which the trial judge had been bound to apply. The concept of due process requires that trials be conducted in accordance with law. That is to say, the law as it is known and understood, and as the trial judge is bound to apply.

  375. As already pointed out, that is quite a different situation to where a trial judge makes a ruling, invariably contrary to what the DPP actually submits, which is found to be in error in itself. Interpreting s.23 in the manner advocated by the DPP, even where a trial has been conducted in accordance with the constitutional imperative of “due course of law”, will give rise inevitably to speculation from time to time by defence counsel as to whether some accepted rule of law, perhaps debated in academic circles, might be subject of an appeal by the DPP against an acquittal, even though the DPP at the trial would accept that the law as it then was had to be applied by the trial judge. For example, in a case such as this, where statements made by the accused are excluded because he was held in unlawful custody, could, at least in principle, give rise also to a number of other grounds for excluding the evidence, but which it would not be necessary and, indeed perhaps not even possible, to pursue at the trial. For example, where the evidence is excluded because the person is in unlawful custody, or due to some breach of constitutional rights a defence might also be in a position to challenge the admissibility on other and additional grounds, such as that the continuation of a person’s detention (as opposed to the initial arrest) for a period in excess of 24 or 48 hours was done deliberately and unlawfully and that it was during this period that the statements were taken and, therefore, had to be excluded. Alternatively, a defence may have grounds for impugning the admissibility of the evidence on the basis that either the accused was denied access to a solicitor, or that there was no solicitor present when the statements were taken. Again, the admissibility might be opposed on the grounds that they were involuntary, having been obtained by oppressive means, inducement or the like.

  376. The trial never reaches a point where these issues need to be raised by the defence, because law settled by this Court compels the trial judge to exclude the evidence at an earlier point. If a citizen has valid grounds, on the basis of judicially settled law, for excluding evidence being tendered by the prosecution, and that resolves the issue of admissibility on the basis of such law, the defence is nonetheless in a dilemma as to whether it should, or could, at the trial raise other entirely valid grounds for excluding the evidence, if the trial ever got that far. In such circumstances, a citizen could find him or herself in the situation that they had several valid grounds for excluding the evidence as inadmissible, but the trial never got to the point where they could rely on them, but nonetheless the trial judge’s ruling excluding the evidence is challenged by the DPP after the trial is over. In such a case he or she would have to wait a second trial to raise those other valid grounds and have the evidence then excluded.

  377. Moreover, although I do not think it affects the foregoing considerations, but underscores them, the DPP is under no obligation to give any notice or advance information of any possible appeal against a ruling which he does not contend at the trial was unlawful, and as far as one can see, none was given to the defence in this case. In any event, without raising any issue at the trial itself, the DPP may well post-trial decide that it would be just a good idea, or on the basis of some internal agenda, to circumvent an unsuccessful outcome by seeking to test the established law by way of appeal and claim that the trial judge had acted erroneously. How does a defence provide for such a contingency? The citizen must rely on the law as the judge is bound to apply it.

  378. It seems to me that a citizen who is put on trial before a judge and jury, who relies on a principle of law laid down by this Court (by which he or she is bound at the trial) and which the trial judge is bound to apply, and does apply faithfully, that citizen is entitled to expect that there will be a definitive ruling as concerns any verdict of acquittal. Only that is consistent with the “sacrosanct” and “hallowed” principle of protection against double jeopardy and trial in due course of law.

  379. I do not think it can be said from the language of the section that the Oireachtas intended to create such unfairness and uncertainties for a citizen when conducting his defence in a serious criminal charge on indictment.

    Uncertainty of the Verdict

  380. A citizen who is acquitted following a correct application of the law during a trial – in which prosecution evidence was excluded, and there are routinely many such cases, has, in principle, been accorded a final verdict. That is the end of the prosecution.

  381. Now, as a result of the interpretation being given to s.23, in such a case the finality of that verdict will depend on the discretion of the DPP, and whether the DPP feels that it might be worth having a go at persuading a higher court to change the established case law and thus win an opportunity to prosecute the accused again. Although s.2 of the European Convention on Human Rights Act, 2003 requires statutes to be interpreted in the light of the obligations created by the Convention, no issue or submission has been made in this case on behalf of the respondent in this respect. Therefore, I do not propose to consider whether, and to what extent, the Convention would, pursuant to s.2 of the Act of 2003, mandate a particular interpretation. However, while there is no case precisely in point with the special circumstances of this case, there are cases which have been decided by the European Court of Human Rights which highlight the importance of the finality of verdicts of acquittal and the need to have due respect for such finality in order to avoid a breach of the principle of legal certainty as guaranteed by Article 6(1) of the Convention. Accordingly, I propose to cite from one of the judgments of the Court of Human Rights, if only for the purpose of highlighting the kind of considerations which might arise in the exercise of the right of appeal argued for by the DPP and the special circumstances of this case would have for the legal certainty and respect for verdicts of acquittal given in accordance with “due course of law”.

  382. In Bujnita v Moldova (36492/02; 16/1/2007) the following passages usefully highlight the kind of issues that can arise when the prosecution is given a wide discretion as to the grounds upon which it may appeal against a verdict of acquittal:

    II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

    18.

    The applicant complained under Article 6 § 1 of the Convention about the quashing by the Supreme Court of Justice of the final judgment of the Court of Appeal of 30 October 2001 following a request for annulment lodged by the Prosecutor General's Office.

    19.

    The Government pointed out that the request for annulment in the present case had been made in accordance with the procedure prescribed by law. They further maintained that the applicant had had the necessary procedural safeguards during the request for annulment proceedings. Therefore, in the Government's opinion, there had been no violation of Article 6 § 1 of the Convention.

    20.

    The Court reiterates that the right to a fair hearing under Article 6 § 1 of the Convention presumes respect for the principle of the rule of law. One of the fundamental aspects of the rule of law is legal certainty, which requires that where the courts' judgments have become final their ruling should not be called into question (see Brumãrescu v Romania [GC], no. 28342/95, § 61, ECHR 1999-VII). This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts' power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v Russia, no. 52854/99, § 52, ECHR 2003-IX).

    21.

    However, although a mere possibility to re-open a criminal case is prima facie compatible with the Convention, including the guarantees of Article 6, certain special circumstances may reveal that the actual manner in which such a review was used impaired the very essence of the right to a fair trial. In particular, the Court has to assess whether, in a given case, the power to launch and conduct the request for annulment proceedings were exercised by the authorities so as to strike, as far as possible, a fair balance between the interests of the individual and the need to ensure the effectiveness of the system of criminal justice (see, mutatis mutandis, Nikitin, cited above, §§ 54-57).

    22.

    In the instant case, the request for annulment was initiated by the Deputy Prosecutor General. In the opinion of the Prosecutor General's Office, the first-instance and cassation courts had not observed the provisions of the CCP and had wrongly assessed the evidence and thereby reached the conclusion that the applicant had not had forcible intercourse with the victim.

    23.

    The Court notes that the grounds for the re-opening of the proceedings were based neither on new facts nor on serious procedural defects, but rather on the disagreement of the Deputy Prosecutor General with the assessment of the facts and the classification of the applicant's actions by the lower instances. The Court observes that the latter had examined all the parties' statements and evidence and their original conclusions do not appear to have been manifestly unreasonable. In the Court's view, the grounds for the request for annulment given by the Deputy Prosecutor General in the present case were insufficient to justify challenging the finality of the judgment and using this extraordinary remedy to that end. The Court, therefore considers, as it has found in similar circumstances (see, for instance, Savinskiy v Ukraine, no. 6965/02, § 25-27, 28 February 2006), that the State authorities failed to strike a fair balance between the interests of the applicant and the need to ensure the effectiveness of the criminal justice system.

    24.

    There has, accordingly, been a violation of Article 6 § 1 of the Convention.

    [emphasis added]

  383. While the circumstances giving rise to an appeal against a verdict of an acquittal in that case were different from those arising in this particular case, the passages cited do highlight the need for a balanced approach in limiting any legitimate exception which permits an appeal against a verdict of acquittal at a trial.

  384. It seems to me that these considerations are other grounds for concluding that if the Oireachtas intended that an appeal should lie under s.23 against a correct ruling of a trial judge, but which was to be subsequently treated as erroneous if the Supreme Court changed the law on which the ruling was based, it would have carefully and clearly said so. It is also a reason why, in my view, s.23, apart from its ordinary and natural meaning, should in any event be given a strict interpretation. There are also other reasons why is.23 should be given a strict interpretation.  

    Strict Construction

  385. As is self-evident, the statutory provision is one which relates to an acquittal of a citizen before a judge and jury in a criminal trial, and permits, in specified limited circumstances, a with prejudice appeal against such a verdict as an exception to the principle of protection against double jeopardy. As such, it is not in issue that this provision falls to be viewed as penal legislation and subject to the long established canon of strict construction. The principle or canon of strict construction applies to the provision as a whole and not simply to whether it permits or provides for an exception to the protection against double jeopardy (which it does). To approach it otherwise would be to artificially truncate the application of the canon of construction. It must also apply to the intended scope and ambit of the exception which the Oireachtas intended to create. To view it otherwise would simply avoid the issue.

  386. In DPP (Broderick) v Flanagan [1979] I.R. 256, at 276, Henchey J. underlined the importance of using clear and direct words in penal legislation, stating:

    .... a cardinal principle in the judicial interpretation of statutes that the range of criminal liability should not be held to have been statutorily extended except by clear, direct and unambiguous words. If the lawmakers wish to trench on personal liberty by extending the range of the criminal law, they may do so, within constitutional limitations; but an intention to do so should not be imputed to them when the statute has not used clear words to that effect ....

  387. In Mullins v Harnett [1998] 2 ILRM 304 O’Higgins J. quoted the following passage from Maxwell on the Interpretation of Statutes (12th edition):

    .... The strict construction of a penal statute seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly the words setting out elements of an offence; in requiring the fulfilment of the letter of the statutory conditions precedent to the infliction of punishment; and in insisting on a strict observance of technical provisions concerning criminal procedure and jurisdiction.

    [emphasis added]

  388. Although those passages related largely, but not entirely, to penal provisions creating criminal offences, it is clear that these considerations are of equal relevance and importance to penal provisions seriously detrimental to an accused and the trial process which he or she may have to undergo. To provide for an appeal against an acquittal, where that resulted from the exclusion of evidence of a ruling made in accordance with the law which the trial judge was bound by precedent of this Court to apply, on the grounds that it was somehow erroneous, would be to create an egregious exception to a principle and trial process that has been embedded in the jury trial process of this country since the foundation of the State. If the Oireachtas intended to create such an exception, I would have expect it to say so in certain clear and direct terms. It does not.

  389. At the very least, a limitation on appeals against an acquittal to cases where a ruling of the trial judge “during the course of a trial” was “erroneous” could hardly be said to clearly, directly or unambiguously convey that it applies to a ruling which the trial judge made in a manner which was constitutionally required at that trial.

  390. In Considine v Shannon Regional Fisheries Board, Hamilton C.J. when considering exceptions to the double jeopardy principle, cited with approval a passage from the judgment of Halsbury L.J. in Cox v Hakes [1890] 15 A.C. 506 at 522, in the following terms:

    Your Lordships are here determining a question which goes very far indeed beyond the merits of any particular case. It is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination upon that question may only be arrived at by the last court of appeal

    ....

    In the light of the above pronouncements, very clear statutory language would be needed to establish, by way of exception to the general rule, a right of appeal from a decision dismissing a criminal charge ....

  391. Hamilton C.J. then went on to cite a statement of Palles C.B. made in the course of his judgment in G.S. & W. Railway Co. v Gooding [1908] 2 I.R. 429 at 431 that:

    Now, I take it that there is nothing more settled in our law than that (where there is no express provision, such as is contained in the Petty Sessions Act, enabling an adjudication to be made without prejudice) if a person be once in peril in a criminal case, that is, if he be once tried before a Court having jurisdiction to hear and determine, then if there be a determination of acquittal, the matter cannot be brought up a second time for adjudication.

  392. Hamilton C.J. also referred to the citation with approval of Palles C.B. of a statement of Coleridge L.C.J. in another case, to the effect:

    If the legislature thinks fit to declare that the new trials shall be granted after acquittals for felonies, misdemeanours, or both, it may of course do so.

  393. Hamilton C.J. confirmed the view, previously expressed in The People v O’Shea (cited above), that a trial in due course of law did not necessarily involve the preclusion of a right of appeal in the event of an acquittal. However, he emphasised (at 421):

    It is clear from the foregoing, and many other, authorities that the common law rule that there should be no appeal from an acquittal of a criminal charge was subject to the right of the legislature to provide for such an appeal provided that such right was given in clear and unambiguous language ....

    [emphasis added]

  394. Again, putting it at its lowest, I do not think it can be assumed or simply inferred that when the Oireachtas limited with prejudice appeals against acquittals to cases in which the court had, during the trial, made an erroneous ruling that it intended the DPP’s right of appeal to apply to a ruling which the trial judge was bound constitutionally to make and which was binding on, and necessarily accepted at the trial, by the prosecution and the defence. Certainly, the principles cited above do not, in my view, permit allowing for such an appeal under some extended umbrella of broad interpretation.  

    Appalling Prospect

  395. The consequences of interpreting s.23(3)(a) as argued by the DPP are as follows:

    (a)

    A citizen relies in his defence to a criminal charge on the law as laid down by the Supreme Court;

    (b)

    The trial judge applies that law as she is constitutionally bound to do so, and excludes inadmissible evidence;

    (c)

    The DPP, who is prosecuting in the name of the People, acknowledges at all times that the trial judge was bound to apply that law and the accused entitled to rely upon it;

    (d)

    The citizen is then acquitted after a trial in due course of law, the trial judge not having made any ruling on the admissibility of evidence contested by the prosecution as erroneous and it had no basis in law for so contesting.

  396. Following such a verdict of acquittal, heretofore always considered final, the DPP appeals against that verdict under s.23 and seeks to set it aside on the grounds that although the trial judge applied the law, as declared by the Supreme Court, the Supreme Court should set aside its earlier declaration, which in this case was the law for 25 years, as to what the applicable law is. The Supreme Court should change the meaning or ambit or nuance of that law. Once changed, the ruling at the trial by the trial judge should retrospectively be considered “erroneous” in order to bring s.23 into play and allow the verdict to be set aside and a retrial ordered on the basis of the new law.

  397. This is to change the goalposts, not during the game, but after the game is over, except it is not about a game or a sport, it is about a criminal trial and justice which the Constitution requires shall be conducted in due course of law. That is to say, in due course of the “applicable law” as O’Higgins C.J. stated in The People v O’Shea, cited above.

  398. If a citizen cannot, with full confidence, rely upon a rule of law as laid down and defined by the Supreme Court, and applicable at the trial, in the conduct of his or her defence to a criminal charge, that is to say, without the risk that a verdict will be set aside because the law is changed by the Supreme Court after the trial, then the integrity of the judicial process is undermined. This is an appalling prospect.

  399. These concerns are not at all met by the provision of the section which grants an ultimate discretion to this Court in an appeal of this nature as to whether or not to order a retrial, even if the DPP succeeds on the question of law. The fact is that a verdict of acquittal arrived at in due course of law has been suspended and the accused placed again in the anxious and difficult position of having to put his or her life on hold with a view to a future possible retrial for the same offence. This can have tremendous and devastating consequences for the course of a person’s life while he or she awaits the outcome of an appeal to the Supreme Court and a decision as to whether he or she must then wait further for a retrial to take place.

  400. To my mind there is nothing in the wording of s.23 which suggests that such a far reaching and unfair consequence was intended by parliament by such a strained conversion of a trial ruling as mandated by the applicable law into a so-called “erroneous” ruling.

  401. It seems to me an extraordinary interpretation of s.23 to consider it as permitting the prosecution to appeal a verdict as erroneous on the basis that it may prove possible to persuade a higher court to change the existing and judicially established law. To do so tends to undermine at least some of the core values at the foundation of the rule against double jeopardy, particularly as concerns respect for the finality of decisions of a court, the integrity of the judicial process and public confidence in it.  

    Section 34 of the Criminal Procedure Act, 1967

  402. There is one other matter which I feel cannot be ignored in the context of an interpretation of s.23 of the Act of 2010. I refer to the provisions of s.34 of the Criminal Procedure Act, 1967, as inserted by s.21 of the Criminal Justice Act, 2006, which provides:

    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.

  403. This provision was left untouched and un-amended by the Act of 2010. As is evident from its terms, it is an appeals process (subject now to amendments arising from the establishment of the new Court of Appeal) which allows the State as prosecutor in cases of an acquittal to raise by way of appeal issues of law which arose in a criminal trial, which it may wish to see, for the purpose of future trials, clarified, corrected or even changed, through a refinement or evolution of existing case law, or an overruling of the existing case law. The section expressly provides that the verdict of acquittal remains intact.

  404. Accordingly, should the DPP feel that there is some principle or aspect of the criminal law, as applied in a court of trial, which from his or her perspective requires to be clarified, rendered certain or some case law which requires refinement or even overruling by a higher court, then this is a process provided for the DPP to do so. There is no requirement that any ruling in a trial was erroneous, or other provision that such an appeal will only lie if certain criteria are fulfilled. The only requirement is that it is a question of law which arose during a trial. It is, of course, without prejudice to the acquittal of the citizen concerned. It is, as in the case of the Bujnita cited above, an appropriate way of balancing the rights of the citizen, so that a citizen can rest peacefully with a verdict of acquittal and feel free to continue his or her life accordingly.

  405. In interpreting s.23, and in particular the meaning of the term “erroneously” in that section, it is well to bear in mind that the Oireachtas was fully aware that if the DPP was unhappy with the state of the existing case law, he has ample opportunity to have this clarified or even overruled for the purpose of future trials by recourse to s.34 of the Act of 1967, as amended. That is another reason why I feel it is counter-intuitive and contrary to the ordinary meaning of “erroneously” to assume that when the Oireachtas used that word in s.23 it was intended to encompass a ruling of a trial judge arrived at in accordance with a principle which he or she was bound to apply.

  406. It is true that s.23 confers a discretion on this Court, even where an appeal lies to this Court under the section, and even where the Court considers that a ruling was “erroneously” within the meaning of the section, to decline to set aside the acquittal and order a retrial. This Court may decline to make such orders under s.23 if it does not consider that in all the circumstances it is in the interests of justice to do so.

  407. However, such a discretion cannot gainsay the fact that an appeal under s.23 of the Act of 2010 puts in issue the acquittal accorded to the citizen at his or her trial, and leaves him or her in a state of uncertainty or limbo until the matter is resolved one way or the other by the appeal and, in the event, at a retrial. Moreover, the section clearly envisages that the Court should generally, on concluding that the ruling of the trial judge was erroneous within the meaning of s.23, set aside the acquittal and order a retrial. In any event, the fact that the DPP can appeal with prejudice against the verdict of acquittal and seek a retrial means that there cannot be any equation between s.34 of the Act of 1967, and s.23 of the Act of 2010. To approach the issues in this case on the basis that the two sections largely amounted to the same thing or the same process would be to relativise out of existence the legitimate interests and rights of a citizen in the finality of a verdict of acquittal arrived at in due process of law by a judge and jury.

  408. It seems to me that the appropriate and apt process for the DPP to raise the issues which he has in this case would have been to bring an appeal pursuant to s.34 of the Act of 1967.

  409. For the reasons stated above, I am of the view that an appeal does not lie under s.23 because the ruling of the trial judge, being one which she was bound as a matter of law to make, was not intended by the Oireachtas to be treated as an erroneous ruling within the meaning of s.23.

  410. The DPP is perfectly entitled to seek a without prejudice review under s.34 of the Court’s case law on the so-called near absolute exclusionary rule, as laid down in DPP v Kenny. The protection against double jeopardy is a notion or a concept that has been the subject of discussion and debate in different fora in this country and abroad with many learned and influential articles written on one side and the other.

  411. However attractive it may appear to the Court to embark on a review of the balance struck between competing rights in The People v Kenny under s.23, I feel that in doing so in this case the Court has been unable to resist plucking this tempting fruit from the wrong tree.

  412. Having concluded that no appeal lies within the meaning of s.23, I would dismiss the appeal. I agree with the conclusions of Hardiman J. and McKechnie J. to the same effect. In these circumstances, I do not consider it appropriate to address the second substantive issue.

    Justice Hardiman

    INTRODUCTION

  413. There is hardly a country in the world today which does not boast some form of Constitution, Charter, Bill of Rights or similar document which announces, and promises to respect the Civil and Human Rights of the citizens. But for the great majority of the world’s citizens, those plangent words are of no practical use at all. This is because, though according them verbal respect, most of the world’s courts will not actually enforce the rights which are guaranteed. In particular, they are reluctant to enforce them against their own country’s force publique. I use this phrase to signify not only the police force but the army, the tax collectors, the customs and revenue officials and the whole body of public officials who are vested with coercive and compulsory powers over ordinary citizens, their property, including their homes, their records and papers, their money and monies worth and other aspects of their lives. Even in the area occupied by States who are members of the Council of Europe, the records of the European Courts of Human Rights shows all too clearly that there are States whose courts are unable or unwilling to provide an actual solution to the difficulties of real people who are prejudiced by the unlawful acts of the force publique in the relevant country. Such people are left to seek a remedy in Strasbourg years later.

  414. For many years Ireland was to be ranked amongst those countries, a minority in the world as a whole, whose courts really, and not merely theoretically, took the constitutional rights of its citizens seriously and ensured that they would be enforced immediately and without qualification, as Mr. Justice McCarthy put it in a passage quoted below, even against the force publique. This in turn was because, in the words of Chief Justice Ó Dálaigh:

    .... it is not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of those rights.

    I am gravely apprehensive that the majority decision in this case, overruling the case of Kenny, one of the monuments of Irish constitutional jurisprudence, is a major step in the disengagement of this Court from the rights-oriented jurisprudence of our predecessors.

  415. In Parts I, V and VI of my judgment I endeavour to illustrate the importance of Kenny and the reasons why I fundamentally dissent from its being cut down.

  416. Perhaps even more importantly, I deprecate the manner in which this is done and I see in it the threat of further disengagement from the rights established in earlier decisions of this Court. I try to explain this in Parts II and III of the judgment.

  417. The State have suggested, albeit very obliquely, that protections of the citizens such as those contained in Kenny are perhaps no longer necessary because of developments since 1990. I consider that this is entirely fallacious and have endeavoured in Part IV to give some examples of the serious causes for concern which presently exist, including the finding by a former President of the High Court that “proper discipline has been lost from An Garda Síochána”.

  418. The rights of the ordinary citizen depend in the first place on the Government’s – successive Governments – being rooted in a tradition of legality and lacking any positive desire to cut down the citizens rights. We in Ireland have been fortunate in enjoying several generations of governance which shares this tradition of legality and respect for civil rights. If, almost impossible to imagine, a government were to come about which was not rooted in the tradition of legality then the writing down of the rights of the citizen which I believe this judgment represents would be all the more hazardous. Judicial care for the rights of the citizen must always take into account what Chief Justice Ó Dálaigh called the contingencies of an “improbable but not to be overlooked future”.

  419. The Director of Public Prosecutions charged Mr. J.C. with certain offences. On the 18th July, 2012 she brought him to trial for these offences in Waterford Circuit Criminal Court.

  420. On the following day, 19th July, 2012, Mr. J.C. was acquitted of all of these charges. The prosecution dropped its case after a legal ruling by the learned trial judge, Her Honour Judge Mary Ellen Ring, S.C. The reasons why the learned trial judge so ruled are set out, in her own words, from the official transcript, at par. 50 of this judgment. This ruling is admitted to have been correct in law.

  421. Nonetheless, the Director now purports to appeal to this Court against the acquittal of Mr. J.C., allegedly in pursuance of s.23 of the Criminal Procedure Act, 2010. I do not accept that this appeal lies, for the reasons set out in s.II of this judgment. The general background, legal and factual, is set out in Part I, and the important legal issues are surveyed there.

  422. The prosecutor wishes to change the law by this appeal and then to retry Mr. C. in the new state of the law. I do not believe that this would be possible in any other State in the world. It would represent a total negation of the fundamental legal values which apply in Ireland up to the present day, and which have applied for centuries, as will be seen in Part II of this judgment.

  423. Even apart from the foregoing, which itself represents a baneful change in the established constitutional jurisprudence of Ireland, this is profoundly saddening development as far as I am concerned. I discuss two especially threatening aspects of it in the following paragraphs. But before turning to them I wish to make it clear that the manner in which the State have suggested that the Court has jurisdiction in this matter is just as depressing, and just as saddening. It is, if possible, still more threatening for the future because it is based on a mode of construction of a statute – s.23 of the Criminal Procedure Act, 2010 – which is at variance with the ordinary meaning of the English language which, if more widely adopted, would mean that words have no specific meaning and therefore that rights, which are expressed in words, can be reduced to meaningless, to mere words on a page without any practical consequences. The State’s submissions in this regard were based on a sort of Orwellian dissonance which I cannot too strongly deplore. This most unfortunate aspect of the present case is dealt with below, at the end of Part II of the judgment.

  424. I object as strongly as I can to two aspects, in particular, of the proposed result of this case. The first is that it would permit a retrial for the same offence after a lawful acquittal on a trial for that self-same offence, and after the law itself had been changed by this Court to the advantage of the prosecution and the gross disadvantage of the defendant. If this is deemed permissible Ireland will, as far as I can see, be unique in the world in permitting it. It does not at all mitigate this concern that this Court may not actually order a retrial in the particular case of Mr. J.C.: a Rubicon has been crossed and the nature of a trial with “due course of law” has been altered for the immediate future and perhaps forever.

  425. The State strongly submitted on the hearing of this appeal that the Court should proceed first to resolve the issue of whether Judge Ring “erroneously” excluded evidence and only if that were so should proceed to a separate hearing on the question of whether or not there should be a retrial. This submission was based on tactical grounds. If no retrial is directed, the acquittal must be affirmed, see s.23(ii)(b). This appears to be agreed by the majority.

  426. Since I consider that this appeal is incompetent and does not lie (because it can “only” be entertained if there has been error by the trial judge and here there was no error by the Judge Ring) it follows that there can be no question of a retrial. Accordingly, I have felt free to express the opinion, in this judgment, which is obviously obiter, that a retrial in the circumstances of this case would be at variance with the Constitution and in breach of our international obligations. The reasoning behind this conclusion is set out at Part II. I adhere to this view even if no retrial is in fact ordered in the present case, on some discretionary ground.

  427. I believe that the foregoing raises serious questions as to whether s.23 of the Criminal Procedure Act of 2010 as construed in this case is consistent with the Constitution or with Article 6 of the European Convention on Human Rights. Neither of these points was argued, for reasons which I do not find easy to understand. I have not discussed the question of constitutionality in view of this omission. I do however conclude that a retrial of Mr. C. would not be a trial in due course of law as required by Article 38.1 of the Constitution. Having regard to the terms of the Human Rights Act of 2003, and its mandatory effect on the manner of construction of s.23, I have ventured briefly to discuss the relevant convention jurisprudence, notwithstanding that the point was not argued. But because of the omission, I have reached no conclusion on the matter. The question of whether the trial judge had erred was not the subject of argument by the respondent. I was more than surprised at this omission. But since the matter is one going to jurisdiction, I have not felt inhibited in addressing it.

  428. The second aspect of the result of this case to which I most profoundly object is the finding that “inadvertence” by public officials with coercive powers will sufficiently excuse a breach of a citizen’s constitutional rights to allow material obtained by such breach to be proved in evidence against that citizen. I regard this as a gratuitous writing down of the respect due to the Constitution, which is an absolutely retrograde step which I deeply deplore.

  429. This is a criminal case and a great many people, predictably, will turn from it thinking that it is irrelevant to their lives since they do not intend ever to involve themselves in crime. No doubt Mr. Frank Shortt F.C.A., a sixty year old chartered accountant, thought just like that until he was perjured into prison by some gardai who bore him no personal ill will, but simply wished to enhance their careers. This sorry tale which went on from 1992 to 2007 is summarised in Part IV of this judgment. The State first convicted Mr. Shortt on perjured evidence; then (years later) agreed to quash the conviction; bitterly opposed his claim that his conviction was a miscarriage of justice, and contested his claim to compensation.

  430. More generally, the criminal law has for centuries been the gold standard of the rights and entitlements of ordinary people. If the rights of the citizen in this context are notably diminished, as I believe they are as a result of this case, then the rights of the ordinary citizen in civil matters – contracts, mortgages, property, taxation, water charges and other levies, planning, and employment – will soon be gravely reduced as well. There have, in recent years, been several cases in which legislation and the workings of public bodies or public officials in Ireland seem determined to impose on the ordinary, competent and thoroughly respectable citizen a level of liability to punishment and public humiliation which is noticeably greater than has been found necessary in other similar jurisdictions. See, for example, Re Tralee Beef and Lamb Co Ltd. [2008] I.E.S.C. 1, [2008] 2 ILRM 420 as to an attempt to restrict a perfectly respectable chartered accountant from acting as a Company Director without giving any specific reason at all, but leaving him to prove why he should not be so restricted. The contrast with the position in England as established in Barings plc, In re (No 5)/ Baker v Secretary of State for Trade and Industry [2001] B.C.C. 273 is very striking. See also Corbally v The Medical Council [2015] IESC 9 (Supreme Court, as yet unreported, 4 February, 2015), where the suggestion was solemnly made by a statutory body that any error whatever by a medical practitioner, even an obvious and trivial one which had no consequences could constitute “poor professional performance”, thereby exposing a distinguished practitioner to public abuse in the media and to the risk of being struck off the register. Again, the contrast with comparable jurisdictions is very striking. See R. (Calhaen) v The General Medical Council [2007] EWHC 2606.

  431. It is in the area of criminal law that the safeguards for individual citizens have been earliest and most strongly developed. If the traditional entitlements of citizens in this regard – fully acknowledged by our own recent predecessors such as Ó Dálaigh C.J., O’Higgins C.J., Finlay C.J., Walsh J., MacCarthy J., Hederman J. and others – are now to be undermined, as the State’s appeal in this case barefacedly seeks to do; then it must not be expected that the citizens rights in other areas will remain unaffected.

  432. In the present case, the State is attempting to do something which, to my knowledge, has never been done in any other jurisdiction. In the case of a person who has been lawfully acquitted of certain criminal charges brought against him, it seeks to refer the matter to this Court, to have the law changed by this Court and then to have the citizen retried in this new state of the law which, of course, did not exist at the time of the first trial or at the still earlier time when the offence alleged was committed.

  433. If the Court complies with the Public Prosecutor’s request it will be doing something abhorrent to our own existing jurisprudence and to the jurisprudence of the Common Law which existed for centuries before the adoption of our Constitution in 1937. It will very likely conflict with our international obligations.

  434. The Director seeks to do this in a very specific manner which I believe, quite independently, to be absolutely inadmissible. The State does not allege that the learned trial judge herself made any relevant error of law. If the learned trial judge had made an error of law, then s.23, on the face of it, would certainly provide an appeal against such error. But no such error is alleged, because the learned trial judge meticulously followed the decisions of the Superior Courts which were binding upon her and which she was obliged to follow. Instead, the Director attacks one of these authorities itself, in absolutely express terms, and claims that this Court should proceed, and I quote (not verified):

    .... to overrule the decision of the majority in DPP v Kenny [1990] I.R. 110 so that it no longer forms part of Irish law.

    That form of “appeal” necessarily concedes, as is the case, that the leading authority of DPP v Kenny [1990] 2 I.R. 110 did indeed “form part of Irish law” when Mr. J.C. was tried, at the suit of the Director, in July, 2012.

  435. Accordingly, the prosecutor, whose decision it was to bring Mr. J.C. to trial in July, 2012, well knowing the law of Ireland at that time, seeks now, retrospectively to change that law, so that the main feature of it on which Mr. J.C. successfully relied should “no longer form part of Irish law.”

  436. This is not merely an academic exercise. The Director seeks first, to change the law of Ireland from what it was when Mr. J.C. was lawfully acquitted, by persuading this Court to order that DPP v Kenny [1990] 2 I.R. 110 should “no longer form part of Irish law”; secondly to quash his acquittal which was absolutely lawful when pronounced; and thirdly to order that Mr. J.C. be tried a second time, after the prosecution have succeeded in changing the law from what it was when they put him on trial.

  437. This is absolutely unprecedented and in my view no such retrial would be a trial in due course of law. See Part III below. Multiple trials until a conviction is obtained are a notorious form of oppressive misuse of power. A second or subsequent trial after the law has been changed so as to favour the prosecution and disadvantage the defendant is without any precedent, anywhere, to my knowledge.

  438. If the learned trial judge had made an error then s.23 would on the face of it provide a remedy for that error. But the proof of an error by the learned trial judge is essential to the existence of such a remedy. There has not been any proof that the learned trial judge erred in the course of the trial of Mr. J.C. Accordingly, this appeal is incompetent and does not lie. It is actually conceded by the majority that Judge Ring correctly applied the law which was binding on her.

  439. The right of a citizen not to be tried again in the same matter after he has been lawfully acquitted is more than well established. It was well established long before Ireland was an independent State and long before the adoption of the Constitution in 1937. It was part of what is meant by “due course of law” in Article 38.1 of the Constitution. This Article provides that:

    No person shall be tried on any criminal charge save in due course of law.

  440. It has been recognised for centuries, as the cases cited below will illustrate, that a right not to be tried again after an acquittal of the same offence is “an ancient and universally recognised constitutional right”. The prosecution ask the Court to cut down that right.

  441. In the submissions on behalf of the prosecutor, written and oral, very little was said, at least directly, as to why precisely this dramatic change in Irish law is demanded. At para. 46 of the State’s written submissions, however, there is a single paragraph which, insofar as I understand it, suggests, or at least hints at, a reason in the phrase that “in the years since the delivery of the judgment in DPP v Kenny [1990] 2 I.R. 110, there have been a number of significant changes in the legal and regulatory landscape in respect of An Garda Síochána ....”

  442. The entire paragraph is set out at para. 612 of this judgment, at the beginning of Part IV.

  443. If the appellant, the State, is contending the changes since 1990 in some way make the protection of constitutional rights provided by DPP v Kenny [1990] 2 I.R. 110 unnecessary, I absolutely reject this submission for the reasons set out in Part IV of this judgment. Part V of the judgment analyses the important phrase “deliberate and conscious” as it is used in DPP v Kenny [1990] 2 I.R. 110, in a passage which attracts the particular ire of the prosecutor; and in Part VI of the judgment I attempt an overview of DPP v Kenny itself.

  444. In Part IV I set out various most alarming events involving the Gardaí, every one of which happened since the decision of this Court in DPP v Kenny [1990] 2 I.R. 110 and some of which are absolutely current, indeed ongoing. These to my mind illustrate that, to put it at its mildest, the present is not an appropriate time to consider dispensing with the requirement that the force publique ensure that their actions towards individual citizens do not constitute deliberate and conscious violations of those citizens’ personal rights.

  445. I am horrified that it is proposed in the present case to make “inadvertence” a lawful excuse for State infringements of individuals’ constitutional rights. I would protest strongly about that proposal, even if I were alone in doing so. If once “inadvertence” or mistake is acceptable as an excuse for ignoring, or deliberately failing to ascertain, the constitutional rights of ordinary citizens then “inadvertence” or mistake will be relied upon again and again. I deeply regret to say that the experience of the Courts over the last forty years strongly suggests that “inadvertence” will be accepted very generally as a reason to allow to be proved in evidence the fruits of deliberate and conscious violation of citizens’ rights.

  446. Needless to say, it is not proposed to extend any parallel laxity to ordinary citizens. Earlier in this introduction I quoted two recent cases involving, respectively, a Chartered Accountant and a Medical Practitioner. It will easily be seen that ordinary life would be quite impossible if accountants and doctors could avoid liability for negligent or deliberate acts by claiming that they were the result of “inadvertence”. But that is precisely what is proposed to be done here in the case of State officials, not merely gardaí but that wider class of officials with compulsory powers – tax inspectors, planning officials, water meter installers, customs, and official enforcers of all kinds such as those employed by public bodies. In what follows, I sometimes refer to this wider legally empowered class generally as the “force publique”.

  447. When the State appoint a person to any position which gives him or her coercive, compulsory powers over other citizens, whether those powers are to arrest, to search, to imprison, to confiscate property or documents, levy fines or other charges or whatever, in my view there is an obligation upon the State to ensure that the people whom it chooses to appoint with such powers are fully instructed in the precise legal extent of those powers and in the proper legal manner of applying them. Few would dispute that the State has an obligation, directly or through other bodies, to ensure that people who practise medicine or accountancy (to take the professions involved in the cases cited above) are competent to do so and actually do so in a proper and careful manner. But this case, if the State’s demand is complied with by the Court, will say to members of the force publique that if they can show that their misdeeds are the result of “inadvertence” they will be excused. I regard this as an utterly retrograde step.

  448. Another baneful effect of this decision is that it will render it impossible for an ordinary citizen who was brought before a criminal court to rely with confidence in his or her defence on what were formerly the binding decisions of this Court and of the High Court. This means, to my mind, that such a citizen is deprived of legal certainty and is simply unable to know with confidence of the law under which he is tried. The absolute unacceptability of this undermining of legal certainty has been very comprehensively considered in the judgment of my colleague Mr. Justice Murray and I will only say that I agree with him. This is by no means the least significant aspect of this profoundly regrettable decision.

  449. Any decision of the Court which strengthens the hand of the force publique and exalts it into a position virtually immune from judicial constraint, is profoundly alarming. Part IV of this judgment sets out numerous and recent examples of what may happen even in the present state of the law in the context that, as the Morris Tribunal found “proper discipline has been lost from An Garda Síochána”.

  450. But some comfort might, perhaps, be taken from the deep seated tradition of legality in this country which has ensured that, for generations, governments of every stamp has discountenanced illegal behaviour by the force publique whenever they became aware of it. The risk inherent in judgments such as the present one would obviously be much greater if, almost impossible to imagine, a government came to pass which, or some significant portion of which, was not deeply rooted in the tradition of legality and respect for civil rights which we have been fortunate to enjoy for generations. Judicial decisions about civil and constitutional rights must consider not only the present state of affairs but also what Ó Dálaigh C.J. described in Melling v Mathghamhna [1962] I.R. 1 as the contingencies of an “improbable but not to be overlooked future”. It is important to bear in mind that the powers and immunities conferred on the force publique will continue to be enjoyed by it notwithstanding the changes of government and of political culture, and that the rights which the Courts must protect, must be sufficiently protected to endure even in the unpredictable contingencies of “an improbable but not to be overlooked future”.

  451. I have already indicated that I consider the case under direct attack by the State in these proceedings, DPP v Kenny [1990] 2 I.R. 110 to be a most important one, a monument of the revolution in Irish constitutional jurisprudence which took place approximately between the years 1965 and 1990, and an important case in the vital task of the protection of citizens rights which goes on day and daily in the Courts, both civil and criminal. In Part V of this judgment I make some attempt to describe the principled basis of that decision: in Part VI I attempt to explain the mechanism whereby the Kenny test for the admissibility of evidence obtained in an unconstitutional manner is implemented. In particular I expound, in the words of our distinguished predecessors, the reason why the alteration which the decision of the majority would bring about, the provision of a defence of “inadvertence”, would “put a premium on ignorance” and reduce the Kenny protections to incoherence.

  452. I want to express my dissent, in particular, from the new test proposed to address the question of the admissibility of evidence obtained by a deliberate and conscious unconstitutional Act. The revolution proposed in this regard is expressed in the sentence:

    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 this morning.

  453. This apparently anodyne form of words fatally undermines the rights-based and rights-respecting Kenny test. For the reasons set out years ago by McCarthy J., O’Higgins C.J., Walsh J. and Finlay C.J., amongst others, this change will “put a premium on ignorance of the law” (Walsh J.) and ensure that “the less a police officer knew about the Constitution and, indeed, of the law itself, the more likely he would be to have the evidence which he obtained in breach of the law and and/or of the Constituted admitted in Court (Ó Dálaigh C.J.).

  454. I survey this question in Part VI of the judgment.

  455. I protest, in particular, against the distinction, created by this part of the decision, between the ordinary citizen and the members of the privileged and legally empowered group whom I have designated the force publique. If the ordinary citizen were provided with a defence of “I didn’t mean it” or “I didn’t know it was against the law”, then many parts of the law would become completely unenforceable. I believe that the application of this rule to the force publique has the effect of exalting that group and conferring a status of virtual, practical, unaccountability upon it. I deeply regret that this is being done.

    [I]

    Overview

  456. This is as significant a case on criminal law and evidence as any that have come before the Court in the last twenty-five years. It affects in an important way the rights and liberties of every citizen. For that considerable length of time, the citizens of Ireland have been protected from prosecution on foot of unconstitutional, forcible or covert searches, arrests, surveillance, or telephone buggings, or other actions by public officials, gardaí or other members of the force publique, by DPP v Kenny [1990] 2 I.R. 110. The detailed effect of this case is discussed in the following parts of this judgment, especially in Part VI. Now, this essential protection is sought to be torn away at the suit of the Director. This is sought to be done without any proper, evidence-based assessment of the effect of the rule that DPP v Kenny [1990] 2 I.R. 110 lays down. It is sought to be done at the suggestion of the Executive branch of Government, by a procedure which excludes evidence-based inquiry, and which is meant merely to allow the correction of legal errors by trial judges. The trial judge in this case made no error: the target of the Executive is the established law of the land which the trial judge followed faithfully, as she was bound to do. DPP v Kenny [1990] 2 I.R. 110, a judgment of Finlay C.J., is one of the monuments of our jurisprudence. It is a case I had specifically in my mind when I undertook, as every judge must, “to uphold the Constitution”. I would protest, even if I did it alone, at the removal of an essential protection of the citizen by a subterfuge. I believe that the State’s demand, if complied with by the judges, will involve the jettisoning, not only of DPP v Kenny [1990] 2 I.R. 110 but of much of the best of our constitutional jurisprudence and of the Common Law of Ireland. I hope this will be clear from the citations in this judgment, and others that will occur to the reader.

  457. The present case appears to me directly to raise two questions of very great importance. These are:

    (i)

    If a citizen is put on trial by jury, and acquitted; is it open to the State, under s.23 of the Criminal Procedure Act of 2010, to have the law under which he was acquitted changed by this Court and then to have the citizen retried, for the same alleged offence, in the new state of the law?

    (ii)

    If the gardaí, or any other branch of the force publique, obtain evidence by a “deliberate and conscious” breach of a person’s constitutional rights, may the State use that evidence against the person, in a trial “in due course of law” before a judge who has undertaken that he or she will “uphold the Constitution and the laws”?

  458. As will appear in considerable detail later in this judgment, the answer to the first question has always been “no”, for many centuries before the Constitution was adopted, and after that, right up to our own time. The notion of retrying a person who has been acquitted, especially after the law has been changed to assist the prosecution, has been abhorrent for centuries, long before the development of modern Human Rights law, which also condemns it.

  459. At least since this Court decided DPP v Kenny [1990] 2 I.R. 110, the answer to the second question has been a resounding “no”, absent “extraordinary excusing circumstance(s)” which do not arise in the present case.

  460. I was deeply proud that this is so, that Ireland was a country in which the personal rights of the individual citizen are taken seriously. There are few countries, nowadays, which do not boast some form of Constitution or Charter of Rights which purports to recognise and honour the personal and human rights of the citizen. But there are far fewer countries where those rights are actually honoured in practice, even against the police force, army, tax collectors, planning inspectors, or other branches of the force publique. In most countries, the citizen’s rights are merely words on a page. In those countries where the personal rights of the citizen are not merely words on a page but real living rights, that is because they will be enforced by the Courts, fearlessly in discharging the constitutional judicial mandate which is necessarily independent of the Government (under the doctrine of the separation of powers). Where there is a “deliberate and conscious” breach of those rights by agents of the State then such breach; in a free country [1985] I.R. 550 at p. 585):

    .... will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned, whatever the consequences may be.

    The matter was put in this way by Mr. Justice McCarthy in The State (Trimbole) v The Governor of Mountjoy Prison [1985] I.R. 550 at p. 585. I regret that this has now ceased to be so. This, too, is one of the central bulwarks of freedom in this country, which this decision tears down. McCarthy J. was correct in what he said because, as Ó Dálaigh C.J. put it in The State (Quinn) v Ryan [1965] I.R. 70, at p.122:

    .... it is not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of those rights. As a necessary corollary it follows that no-one can with impunity set these rights at nought or circumvent them and that the Courts powers in this regard are as ample as the defence of the Constitution requires.

    The result of this case determines whether the words I have quoted, and the judgments of which they form part, will be relegated to mere shibboleths or whether they will continue to be accurate and meaningful statements of the law of Ireland upon which citizens can rely, precisely because the Courts will enforce them, and not merely pay them lip-service.

  461. In this case, the State is attempting, without any democratic process of legislation or referendum, drastically and quietly to change the constitutionally based law of evidence as it applies to criminal trials. This change, of course, would in every single case favour the prosecution and handicap the defence. The prosecutors seek to set aside the judgment of this Court in DPP v Kenny [1990] 2 I.R. 110. This was a decision of major constitutional importance, given in this Supreme Court by Finlay C.J. DPP v Kenny [1990] 2 I.R. 110 construed the Constitution itself to establish a principled and constitutionally mandated structure to deal with the not uncommon situation where agents of the State itself, the Garda Síochána or some other branch of the force publique, themselves breach the Constitution in seeking evidence on which to convict a citizen.

  462. The law of Ireland, derived from the Constitution and expressed in DPP v Kenny [1990] 2 I.R. 110, is that evidence obtained by a “deliberate and conscious” act of a public authority or official which breaches the Constitution, falls to be excluded from consideration as evidence at a trial conducted, as the Constitution requires, “in due course of law”. This is so unless the breach can be justified by “extraordinary excusing circumstances”. It is agreed that no such circumstances arise in the present case. This rule is essential if the rights conferred on citizens in the Constitution are to have any real existence in the lives of citizens, as opposed to being mere words on a page. This is recognised in DPP v Kenny [1990] 2 I.R. 110. In this case, Mr. C. has already been tried and lawfully acquitted. The State demands that this Court change the law laid down in DPP v Kenny [1990] 2 I.R. 110, and wants Mr. C. to be tried again after that has been done under some (as yet-undetermined) new law. This would be grotesquely wrong. The second trial would not be one “in due course of law”. The law of Ireland provides many instances, some discussed below, where the Crown or State have attempted to retry an acquitted person. Up to now, the judges have always prevented this. Now they are asked not only to do this, but to change the law to facilitate a conviction, before setting aside an acquittal and ordering a retrial after the law has been changed. In colloquial terms, we are asked first to move the goalposts and then to order the match, already won and lost, to be replayed with new rules, written by one side and imposed on the other.  

    The Exclusionary Rule – what is it?

  463. The Rule summarised above – that evidence obtained in breach of the Constitution must be excluded (and evidence obtained in breach of law may be excluded at the judge’s discretion) – is the Exclusionary Rule. Since such things as the improper obtaining of evidence have occurred, or are alleged to have occurred, quite frequently, the rule is the subject of much debate and litigation in every country which takes the fundamental rights of its citizens seriously. Up to now, Ireland was such a country.  

    An Example.

  464. An example of the Rule’s operation in practice in Ireland occurred in the DPP v Burke, Hickey, McEnery and Kissane tried in the Waterford Circuit Criminal Court in July 2011. The case illustrates that, while the rule is typically invoked by a defendant, it raises issues of much broader interest such as – is a public servant entitled to privacy in his or her telephone communications to, from, or with his office? The case is unusual in that it is related to the “bugging” and recording by An Garda Síochána of phone calls to and from a Garda Station, by gardaí, which bugging was objected to by other gardaí. But the principles apply to all citizens. But in the particular case, gardaí were bugging other gardaí. All the defendants were gardaí. Three were charged with a serious assault on a man in a public street in Waterford. A fourth garda was in charge of the operation of on-street video cameras one of which should have covered the location of the assault and all of which were controlled from the communication room of Waterford Garda Station. This fourth member was charged with acting with intent to impede the apprehension or prosecution of another person, and also charged with acting in a manner intended to pervert the course of justice.

  465. In the course of the trial, the prosecution wished to prove in evidence audio recordings of two phone calls, the first allegedly made by one of the accused from her private mobile phone to the fourth accused who answered the call in the communications room at Waterford Garda Station; and the second from the same accused, again to the fourth accused, but this time made from (a presumably state-owned) phone in the Garda Station. The defendants objected to the contents of these calls being proved in evidence on the grounds that the action of covertly recording them by An Garda Síochána was unlawful. The learned trial judge held that:

    The issue to be determined is the lawfulness or otherwise of the practice of An Garda Síochána at Waterford Garda Station in recording all incoming and outgoing calls on their public lines, and the admission of the evidence obtained under the use of such practices.

  466. There was, unfortunately, a stark conflict of sworn evidence between various garda witnesses called for the prosecution and the defence respectively as to whether the practice of recording the relevant calls had or had not been made known to members of the Garda Síochána serving in the relevant station. The learned trial judge held that:

    The fact that the calls were made, and indeed the content on the audio recordings, suggest to me that the defendants couldn’t have been aware that their calls were being recorded. The prosecution in my view has failed to establish beyond reasonable doubt that any of the parties to the phone calls were aware that their calls were being recorded and therefore .... could not have consented or even acquiesced in the interception of their calls. In the circumstances I am satisfied that the practice engaged in by the gardaí of recording all incoming and outgoing calls was in breach of the provisions of s.98 of the Postal and Telecommunications Service Act, 1983 as amended by s.1 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993. The prosecution have not opened any other authority which would empower the gardaí to carry out such practices, and indeed nor am I aware of any such authority. Further, I reject the prosecution’s contention that the third and fourth-named defendants, as servants or agents of An Garda Síochána, must have consented to the interception of the calls on the basis that they are fixed with the consent of their employer, who was engaged in this practice. It is therefore my view that the evidence obtained in such an unlawful manner cannot be admissible, and it would be dangerous and unsafe to do so.

  467. This case illustrates the operation of the Exclusionary Rule. The defendants claimed that certain telephone calls had been intercepted and recorded in a manner which was not only unauthorised by law but which actually amounted to a criminal offence. It was a case of unlawfully, rather than unconstitutionally, obtained evidence although the defendants did not debar themselves off from arguing, if necessary, that an illegal act of interception infringed their constitutional rights. But they were successful in excluding the relevant evidence on the ground of illegality. In the result, three of the defendants were convicted and one acquitted. It is pure co-incidence that, in this particular case of DPP v Burke. both the officials who intercepted and recorded the calls, and the defendants who objected to the evidence, were, all alike, members of An Garda Síochána. The principles are the same no matter who the victims of unconstitutional or unlawful acts by public officials are, and even if they are Public Officials themselves, as the garda defendants were in that case.  

    Issues and conflicting values.

  468. The case of DPP v Burke. is an unusual one in that evidence was excluded on the basis that it had been unlawfully rather than unconstitutionally obtained. It is most unusual to exclude evidence on the ground of mere illegality, but it was fully within the discretion of the trial judge to do so. The rarity of such exclusion was declared by Mr. Justice Hogan in his dissenting remarks in the Report of the Committee on Balance in the Criminal Law, referenced below. The case also illustrates the policy issues that often arise when considering the Exclusionary Rule. Some people would consider that all evidence, however obtained (except perhaps by torture) should be available to the Court or jury provided only that it is relevant or probative. Others would take the view that breach of the law by State officials, like a breach of the law by the humble citizen, must be noticed by the law and must have legal consequences.

  469. Accordingly, DPP v Burke. raised the issue of whether an employee, even a State employee, including a garda, shares with other citizens an expectation of privacy in her telephone communications (See Kennedy and Arnold v Ireland [1987] I.R. 587). A garda is entitled to the same rights in this regard as any other citizen. Neither a garda nor anyone else can have this right breached by the State and the result of the breach proved in evidence against her in a serious criminal case. If it were otherwise, the Constitution could be breached with impunity, the rights it assures not vindicated, and there would be no disincentive to a public authority or an individual public official simply ignoring the law and even defying the Constitution. The breach would actually be rewarded when its fruit or result is admitted as evidence on the side of those committing the breach of the Constitution. This is to set the Constitution itself at nought. It is to infringe the Constitution a second time. Those who take the first view (that all relevant evidence should be admitted, however obtained), might respond that it is not necessary for the vindication of the law and the Constitution that evidence obtained by a deliberate and conscious breach be excluded from the consideration of a court. Gardaí or others who breached the Constitution or the law, they point out, might be separately proceeded against and punished for doing so, without excluding the evidence they have gathered against the original defendant. This, of course, is theoretically possible but it is conclusively answered as an element in this discussion by the fact that, in the whole history of the State, no prosecution for breach of a citizen’s constitutional rights has ever been taken against a public official. This is so despite the fact that there are numerous examples in the judgments of the Court of illegal and unconstitutional activities by State officials. See, by way of example, The State (Trimbole) v Governor of Mountjoy Prison [1985] I.R. 550, DPP v Shortt [2002] 2 I.R. 696, and the material in the fourth section of this judgment, below. It now transpires that many thousands of hours of tape recordings of telephone calls to and from Garda stations were illegally recorded in recent years. [See below] Not one guard of any rank has been prosecuted for this. Save to the extent that they have been specifically raised by the State, (see Part IV below) – this Court is not concerned with the policy issues. It is common case, I believe, that either an illegality or unconstitutionality in the gathering of evidence requires some meaningful reaction from a judge before whom the issue is raised.

  470. I consider the Exclusionary Rule to be absolutely sound, and indeed to follow logically from the terms of the Constitution itself. If the Constitution and the rights it guarantees to citizens are to be taken seriously and are to be more than a shibboleth, mere words on a page, it must follow that no official, no matter how high or how important the office which he holds in the State, may breach the terms of the Constitution, and impose on or suspend the constitutional rights of another citizen. No ordinary citizen may do this, and DPP v Kenny [1990] 2 I.R. 110 is authority for the proposition that officials of the State itself may not do it either. But the object of the present proceedings is to change all that and to permit unconstitutionally obtained evidence to be used at the discretion of a judge. As will appear below, experience shows that this discretion will almost always be exercised in favour of the State. The case of DPP v Burke (where by coincidence all the defendants were gardaí) is an outlier. It is to be hoped that an ordinary citizen would be treated in the same way.

  471. If the State have their way in this case, it will be possible to disregard breaches of the Constitution, and of constitutional rights and to admit the fruits of them in evidence just as if the Constitution had not been breached at all. In my opinion, that state of affairs, which is ardently desired by the State, would amount to “setting aside or circumventing” constitutional rights. In most cases, the engine of this would be a claim that the breach of constitutional rights was in fact simply inadvertent, a mistake, on the part of the members of the force publique. Experience shows that Courts are historically very receptive to such claims and extremely credulous of them. But a mistake of law, much less constitutional law, on the part of an ordinary citizen affords him no defence, even if he could establish it. I am ashamed that our State is bringing this situation about. I am not content that members of the force publique be privileged, and set apart from the citizens who pay them, in this way. I believe that once one breach of this kind is excused as “a mistake”, there would be many more “mistakes” occurring, and claiming to be excused in turn. The constitutional right will remain as words on a page, but all content will be sucked out of it. This result is absolutely foreseeable if the State succeed in its present demand. I am appalled that this Court, knowing all the material set out in Part IV of this judgment, and more, would bring this about.

  472. In the present case, that of Mr. C., the objective of the State is to change the law and then to have Mr. C., who has been tried and acquitted, retried under a law radically changed at the behest of the prosecution. I regard this as wholly impermissible in principle, a negation of the concept of due process of law. I view this with abhorrence. It contradicts a long line of principled legal thinking, and our own legal authorities going back to the foundation of the State. This will be discussed below. Nor can this difficulty be avoided by the Court simply deciding not to order a retrial in the instant case. The State claim that the Statute permits a retrial and it is that proposition that creates the negation, whether the power is exercised or not in any particular case. I have no doubt the State would readily sacrifice a retrial in this particular case to secure the right to retrial in very many others and the ability to avoid the necessity for retrial in still more cases.

  473. The mechanism whereby this change is sought to be brought about is almost equally controversial. It is that of an appeal permitted to the State only since the year 2010, and for a wholly different purpose. This right of appeal was permitted to the State against purported erroneous rulings of law by a trial judge. The trial judge in this case, made no error of law, but merely followed the prior decisions of the Superior Courts which were binding upon her. But the State dislikes these prior decisions in themselves, and DPP v Kenny [1990] 2 I.R. 110 in particular. The State is, in my opinion, misusing and abusing the limited right of appeal granted in 2010 for a purpose for which it was not intended and for which it is not in any way apt. If the law is to be changed, that is the role of the legislature or of the People. Nowhere in the parliamentary proceedings in Oireachtas Eireann was the prospect of an appeal such as this even hinted at. No-one reading s.23 in Bill form could have guessed that it could it could be read so as to permit what the State now purpose.

  474. I also consider that, contrary to what is specifically urged in the State’s submissions, the present time is not a suitable one to make the change of the kind proposed, specifically in light of grave and most alarming difficulties with the gardaí which are in the public domain. I would not have commented on this policy issue had not the State specifically raised it in their submissions. See Section IV, below.

  475. In 2010, the Oireachtas passed the Criminal Procedure Act of that year. Section 23 of this measure provides for an appeal by the prosecution against erroneous rulings on law by the Judge who presides at a trial. The Judge in this case of Mr. J.C. was Judge Mary Ellen Ring, a judge of the Circuit Court sitting in the Waterford Circuit Criminal Court. She followed the law as laid down in two cases decided by this Court, Damache v Ireland [2012] IESC 11, [2012] 1 I.R. 266 and DPP v Kenny [1990] 2 I.R. 110. In doing so she made no error. She followed the law as laid down by this Court as she was bound to do. The judgments in each case were those of the Chief Justice of Ireland at the time, Denham C.J. and Finlay C.J. respectively.

  476. But the prosecution dislike the law as laid down. By a grave abuse of a statute providing an appeal against errors of law by a trial judge, the Director of Public Prosecutions seeks to change that law itself. The Director can not allege that Judge Ring erred in following the law, or even that she could lawfully have done other than follow it, but asks this Court to change the law itself, and to have Mr. C., who has been acquitted on the law as it stands and stood, retried under a new law. This new law, whatever it might transpire to be, did not exist at the time the State put Mr. C. on trial, still less at the earlier time when the offences alleged against him were said to have occurred. If the trial judge had made an error, the retrial would take place under the law as it truly was at the time of the trial. But that is not the position here, and the new law will have been devised after the acquittal, at the request of those whose very purpose is that of setting that acquittal aside, and substituting a conviction for the same offence of which Mr. C. has been lawfully acquitted. This is ex post facto law, something the Common Law has condemned for centuries: see Section III below.

  477. I do not believe that such an appeal lies to this Court. I say this for the reasons set out below, in the second Section of this judgment. More particularly, I question if s.23 can be read to allow the Courts to force a citizen to stand trial, and be placed at risk of his liberty, perhaps for many years, in one state of the law and then, when the prosecution lose a properly conducted trial, force him to stand trial again, at the suit of the prosecution, for the same offence but in an altered state of the law, newly procured by the prosecution. And this after they lost a trial which they themselves choose to initiate against the citizen, well knowing exactly the state of the law at that time. This is gamesmanship of the worst and most cynical kind by public officials. It will not be approved in my name.

  478. I do not believe, for the reasons set out below, that the 2010 statute permits this, when properly and constitutionally construed. I believe that the prosecution is precluded, by the public prosecutor’s own action in forcing Mr. C. to trial, knowing the state of the law that offered an argument to the defence, from seeking a new and separate trial after the Director has arranged for the rules to be changed. Needless to say, no such right exists in the citizen who is brought to trial. He, just like the prosecution up to now, can appeal against errors in stating or applying the existing law made by the trial judge, but there is no mechanism available to him to bring about a change in the law itself. This position of gross inequality has been aptly described in the authorities as “an extraordinary imbalance between the rights and powers of the prosecution and those of the accused respectively”, by Finlay C.J., quoted below. It is totally at variance with the notion of “due process of law”. I wish to emphasise that the underlying rationale of DPP v Kenny [1990] 2 I.R. 110 is the constitutional necessity and obligation for the Courts to vindicate the words of the Constitution so that they have a practical meaning and are not simply words on a page.  

    The State’s case on jurisdiction.

  479. Having regard to the obvious statutory need (see below) for the State to show error by the trial judge, and to the finding that the learned trial judge in this case did no more than she was obliged in law to do i.e. was obliged in law to do what she did, the State faced obvious difficulty in showing jurisdiction to entertain this appeal. It sought to avoid this on the basis of a peculiar paradox cleverly and beguilingly advanced as representing the true state of the law by Mr. Brian Murray S.C., counsel for the appellants. The argument itself, however, must be attributed to the State and not to counsel personally: I say this because I believe the argument to be meretricious in a high degree. It was this:

    A trial judge who follows the precedent which is itself later found to be wrong by this Court, herself errs in doing so, even if the precedent was binding upon her so that she was obliged to follow it.

    [emphasis added]

  480. This is a sort of self-serving Catch 22 advanced by the State because of the need to show that Judge Ring “erred” in some sense in following DPP v Kenny [1990] 2 I.R. 110, even though she was obliged in law to follow that precedent and therefore correct in law in following it. This is a Catch 22 in the sense that, on the State argument, the learned trial judge would have erred no matter what she did. It is conceded that Judge Ring was “obliged” to follow DPP v Kenny [1990] 2 I.R. 110. Therefore she would have erred if she had not followed that case. As one of my colleagues says, she had no option but to follow it. But the prosecutor nonetheless contends that in following that case she erred because (the State anticipates confidently) this Court will shortly overrule DPP v Kenny at the request of the Director of Public Prosecutions.

  481. Once it is conceded or established that Judge Ring was “obliged” in law to follow DPP v Kenny [1990] 2 I.R. 110, it is obvious that she did not “err” in law in doing so. I do not understand the sense in which it can be said that a trial judge in a court of law who does what the law obliges her to do can nevertheless be said to err in law in doing so, nor how is it said that she erred? She is said to have erred because it is to be assumed that at some later day this Court will find that DPP v Kenny [1990] 2 I.R. 110 was wrongly decided.

  482. There can be no doubt that in July 2012, the date of Judge Ring’s ruling, DPP v Kenny [1990] 2 I.R. 110 was binding law which the judge was obliged to follow. This, indeed, is stated in the judgment of Clarke J. in this case, para. 130 of that judgment. At the place mentioned Mr. Justice Clarke says:

    It is not, as has been pointed out, suggested by anyone that the trial judge did not correctly apply the exclusionary rule in the manner in which that rule is addressed in Kenny, and did not do so in a proper fashion”.

    [emphasis added]

    Having conceded that, Mr. Justice Clarke continues, in the same paragraph:

    Can it be said that a trial judge erroneously excluded the evidence in question if the trial judge properly applied the established case Law of a higher court, by which that judge was bound .... ?

    [emphasis added]

    Earlier, at para. 117, Mr. Justice Clarke had the following to say:

    There was no dispute on this appeal that, applying the exclusionary rule as so defined. Her Honour Judge Ring was obliged to exclude the evidence concerned.

    That statement is self-evidently true. I therefore agree with it. The case, accordingly, must proceed on the basis that Judge Ring was “obliged” to follow DPP v Kenny [1990] 2 I.R. 110 and to exclude the evidence. Nevertheless the prosecution must contend, and do contend, that the Judge “erred” in following DPP v Kenny [1990] 2 I.R. 110 and in excluding the evidence. See the pithy statement by Mr. Murray S.C. set out above.

  483. Mr. Justice Clarke, in fact, goes further. At para. 118 on the draft previously mentioned he says:

    .... it is accepted that the trial judge had no option but to decide as she did given that she was bound by the decision of this Court in Kenny.

    [emphasis added]

    These propositions illustrate the complete bankruptcy of what I have called the “self-serving paradox” on which the State’s case on the jurisdiction issue is fundamentally based. Judge Ring was “obliged” to follow DPP v Kenny [1990] 2 I.R. 110; she “had no option” but to do so. But nevertheless, it was solemnly contended in the Supreme Court that she “erred” in doing that which she was obliged in law to do, that which she had no option but to do. If that were so the law would indeed be an ass. I am ashamed that our State has stooped to this argument.

  484. There is a famous passage in the English case of Liversidge v Anderson [1942] A.C. 206 in which the House of Lords in the neighbouring jurisdiction were asked to uphold the proposition that a power of detention during World War II which could be exercised “if the Home Secretary had good reason” to think that it was necessary to do so, should be read as meaning that a person could be detained without the Home Secretary having any demonstrable good reason to believe that, so long as that Minister sincerely believed that he had good reason. Shamefully, the House of Lords, with only one dissent, accepted this utterly illogical argument. Had the decision continued to hold sway, the entire of the subsequent development of Administrative Law in England would have been frustrated. In fact, of course, this embarrassing decision was, as inconspicuously as possible, abandoned over the following five decades. In a famous passage in the original case the sole dissenter, Lord Atkin, (the greatest British jurist of the mid-twentieth century), declined to accept that “if a man has” means the same thing as “if a man thinks that he has”, even if the man in question is the Home Secretary. In deconstructing the argument for the Crown, Atkin said at p. 241 that the only authority he could think of to support it was Humpty Dumpty’s assertion in Alice through the Looking Glass, “in rather a scornful tone” that “when I use a word it means just what I choose it to mean, neither more or less”. Atkin set out the passage in which that ludicrous statement occurs at some length.

  485. I have often thought of Lord Atkin’s citation but have never felt the need to set it out in a judgment, largely because it is so well known to lawyers that a mere mention of the case calls it to mind. I do not set out here, either, but for the quite different reason that there is nothing, even in Alice in Wonderland, Alice through the Looking Glass or elsewhere in the works of Lewis Carroll, which could be cited to justify so manifest a self-serving contradiction as that contained in the paradox which is the basis of the State’s case. But Liversidge v Anderson [1942] A.C. 206 shows that the State or Crown is as capable of a meretricious argument to suit its purpose as any other litigant. Joseph Heller’s “Catch 22” is the only authority I can think of to support the paradox which the State has advanced. That paradox, quoted above as Mr. Brian Murray advanced it to this Court on behalf of his client, means that Judge Ring was obliged to follow DPP v Kenny [1990] 2 I.R. 110; that she had “no option” but to follow DPP v Kenny [1990] 2 I.R. 110; that in following DPP v Kenny and excluding the relevant evidence she acted “correctly” and “in a proper fashion”. But despite this, the State are obliged and willing to argue, she “erred” in following DPP v Kenny.

  486. The reason why I say the State “were obliged to argue” this point is that, to quote Mr. Justice Clarke again:

    It will be seen that, in order for an appeal to lie under s.23(3) there must be an error on the part of the trial judge in the sense that evidence must have been erroneously excluded ....

    [emphasis added]

  487. In other words, in the view of Mr. Justice Clarke, and in my own view, an error “on the part of the trial judge”, must be established for jurisdiction to entertain this appeal being found to exist. Mr. Justice Clarke, indeed, goes on to say at par. 2.9:

    .... if the suggestion that section 23 can not be used as a means of inviting this Court to reconsider clear previous authority which bound the trial judge in question is correct, then three could be no basis for the D.P.P. seeking to invoke that section in the circumstances of this case.

  488. This passage concedes, or appears to me to concede, a number of points. The first is that DPP v Kenny [1990] 2 I.R. 110 is a “clear previous authority”. The second is that DPP v Kenny [1990] 2 I.R. 110 is an authority “which bound the trial judge”. It is perfectly true to say that if the argument for the respondent or jurisdiction is well founded then s.23 cannot be used as a means of revisiting DPP v Kenny. But there is no question of the prosecution being thereby stymied in their attempts to have DPP v Kenny revisited. At para. 133 of the draft of Mr. Justice Clarke’s judgment from which I have been working he says, and I agree that:

    .... it would be possible for the DPP to refer a question of law to the Supreme Court “without prejudice” to the acquittal, under s.34 of the Criminal Procedure Act 1967, as substituted.

    I cannot see why the point arising in the present case could not have been referred to the Court under the last mentioned Section. That would avoid what to me is the enormous difficulty, and rank illegitimacy, that we are being invited to change the law and then order a retrial in that changed state of the law. I do not believe that this is possible anywhere in the world. It need not have been proposed here. Equally, the employment of s.34 would avoid what I can only call the jesuitical paradox used to try to establish jurisdiction under s.23. There is no need, for the purposes of s.34, to establish any “error” by the trial judge, much less whether she “erred” in law by doing that which she was obliged in law to do. This is a quite unnecessary burden imposed by the DPP’s peculiar procedural choice.  

    Squaring the Circle.

  489. I now turn to the substance of the State’s submission and its acceptance in Mr. Justice Clarke’s decision on the jurisdiction point, set out in para. 135 of the draft from which I am working. His “starting point” is to assume, “for the sake of argument”, that DPP v Kenny [1990] 2 I.R. 110 was “wrongly decided”.

  490. It will be noted, therefore, that the mechanism of the decision is an “assumption”. The latter presumes that “.... Kenny was wrongly decided, and that, applying the proper test, the relevant evidence should have been admitted.” Therefore, the reasoning goes, “.... it is clear that the decision to exclude that evidence was wrong.” (par. 2.14)

  491. But Mr. Justice Clarke goes on to record (para. 136) that “even though that decision was wrong, it is suggested that it cannot be said that the trial judge, in making that decision, erroneously excluded the relevant evidence because the trial judge was, it is accepted, bound to follow DPP v Kenny [1990] 2 I.R. 110.

  492. The conclusion set out in the penultimate paragraph which is acquiesced in by the majority of the Court, involves squaring the circle just described by the negatively expressed finding (par. 2.21):

    The fact that a trial judge may have been bound to follow what transpires to be an erroneous decision of this Court does not prevent the trial judge from being properly described as having erroneously excluded relevant evidence.

  493. I believe this conclusion to be radically wrong. The most fundamental reason for this is that it wholly ignores the actual sequence of events. That is, it wholly ignores the fact that the learned trial judge made a decision at a particular time, and not at a hypothetical later time by which time the law had, it is assumed, been changed. The only vague acknowledgement of the temporal dimension is the phrase “what transpires to be”. But this is the heart of the matter. The argument, accepted by the majority, starts with an assumption, which I have generally found to be an unsound basis for argument. It is a mechanism for ignoring inconvenient facts. The assumption here is that DPP v Kenny [1990] 2 I.R. 110 “was” wrongly decided.

    But in July 2012, the date of Judge Ring’s ruling, DPP v Kenny [1990] 2 I.R. 110 was binding law which the learned trial judge was obliged to follow and “had no option” but to follow. Therefore she did not in fact err in following DPP v Kenny and, pace Clarke J., precisely because she did not actually err in following DPP v Kenny she cannot properly be described as having acted erroneously, by reason of the fact that she followed that case.

  494. Moreover, the rather tentative form of words in which the conclusion of the majority has been expressed – “does not prevent the trial court from being properly described as having erroneously excluded relevant evidence” – rather than “erred in excluding relevant evidence” (Clarke J., par. 2.21) seems to me to imply that the learned trial judge might also, or alternatively, be described with equal propriety as having acted correctly in excluding evidence because she was bound by DPP v Kenny [1990] 2 I.R. 110 to do so. Indeed, this conclusion seems inescapable because, as Clarke J. said in a passage already cited at par. 27 supra, “it has not been suggested that the judge did not apply the Exclusionary Rule in the manner in which that rule is addressed in DPP v Kenny [1990] 2 I.R. 110, and did not do so in a proper fashion”. (Clarke J., par. 2.8) This is a double negative (often a sign of discomfort), but its substance is that Judge Ring applied DPP v Kenny in a proper fashion. The State’s reasoning on this point, therefore, seems to me to have the absolutely extraordinary consequence that the learned trial judge was both correct (in excluding the evidence), because she was “obliged” to do so and “had no option” but to do so, but, at precisely the same moment, was also wrong in excluding the self-same evidence in the self-same ruling because of the assumed need to act on the basis that DPP v Kenny [1990] 2 I.R. 110 might, at an unspecified date some unspecified number of years later, be overruled by this Court. I believe that the foregoing mutually contradicting propositions follow inexorably from the self- contradictory paradox which is at the heart of the State’s case, and from the terms in which it was accepted by Clarke J. It must be borne in mind that what is before us is an appeal in a specific case, and not an academic proposition for theoretical discussion.

  495. The appeal is not a moot but is from a specific decision, that of Judge Ring in July 2012. We simply cannot, if we have any respect for the law and for our own processes, hold that Judge Ring was both right and wrong simultaneously, in the ruling she made, but that the fact that she was, in some sense, wrong, is enough to ground a s.23 jurisdiction even though she was, simultaneously, in another sense, right (because she was “obliged” in law to follow the precedent and “had no option” but to do so). There is nothing like this, even in Alice in Wonderland.

  496. In my view, the logical dilemma with which the State are confronted is sought to be resolved by ignoring the actual sequence of events. The question is not whether Judge Ring “erred” in some abstract, theological, out of time sense: it is whether she was wrong in making the specific ruling she did, on the day on which she did it, which was the 18th July, 2012. It was made on that day, and not on some later, different hypothetical day. The issue of whether or not she erred must be judged as of the 18th July 2012, and on the basis of the law as it then stood. Anything else is mere speculation, based on a foolhardy decision to ignore the actual, historic and unalterable sequence of past events.

  497. As of that date, two relevant features of the law existed and were binding upon Judge Ring. These were (a) the Supreme Court decision in DPP v Kenny [1990] 2 I.R. 110 and the decisions of the Superior Courts which followed from it and (b) the obligation, discussed elsewhere in this judgment, and in any event undisputed, on the learned trial judge to follow binding precedent in the form of DPP v Kenny [1990] 2 I.R. 110 and its derivatives.

  498. I wish to emphasise that, in my view, the need to follow binding precedent is not simply a matter of judicial comity or respect for the higher courts, or a matter of mere procedure. It is the existence of that duty, and the obligation to follow it which alone makes the law which is to be applied at all predictable and confers on it anything approaching legal certainty at the time of any particular trials. A trial under a law which lacks legal certainty is not a trial “in due course of law”. It is a lottery.

  499. I cannot too strongly dissent from the technique which was adopted of using as a “starting point” the assumption that DPP v Kenny [1990] 2 I.R. 110 was wrongly decided. If one “assumes”, in any circumstances, that either the law or the facts were different from what they manifestly were at the relevant time, some years previously, one will naturally and inevitably (even intentionally) come up with a conclusion that the decision made at the time was wrong. This “assumption” cannot be used to invalidate the decision of Judge Ring, or to stigmatise it as “error”, unless it is also held that Judge Ring was obliged, in July 2012, to “assume” that DPP v Kenny [1990] 2 I.R. 110 was wrongly decided. She was not so bound. Indeed, since it has been held that she was obliged to follow DPP v Kenny, she could not be so bound. I have to say that the State’s contention in this regard is nonsense on stilts, full of self-contradiction.

  500. In my view the State’s argument is both jesuitical and theological in the worst sense of these terms. It allows the maker to propound a theory which is manifestly at variance with the known facts on the basis of some a priori axiom, which the maker is bound by blind faith to accept. This is here expressed in an unargued assumption, and backdated, and said to apply retrospectively. This is a self-conscious departure from reality and I cannot acquiesce in it, especially not in order to deprive the citizen of the long established constitutional right, not to be retried after acquittal under a new law, but for the same offence. The known facts are that DPP v Kenny [1990] 2 I.R. 110 held what it did and was binding on Judge Ring in 2012 and Judge Ring was obliged to follow it in 2012. She had no option but to do so. But these facts are sought to be reduced to irrelevance, in the State’s argument, by ignoring the fact that DPP v Kenny [1990] 2 I.R. 110 was binding on Judge Ring in July 2012. This was done by the “assumption” that DPP v Kenny was wrong. This assumption is expressly made. But, to be any use to the State, we must further assume that DPP v Kenny was then wrong. There is not a word of argument directed to this second assumption. It is not even expressed. But once it is made, it permits as dramatic piece of result oriented jurisprudence as there has ever been in Ireland. It also sets the law dramatically at variance with common sense notwithstanding the well known dictum of Chief Baron Palles that the law and common sense “should walk hand in hand” [Reg. (Mackey) v Justices of Co. Limerick [1898] 2 I.R. 135]. I do not accept the “legal theory” mentioned at para. 137 of Clarke J.’s judgment. It is simply at variance with reality. Clarke J. does not himself go so far as expressly to endorse it.

  501. The categories of correctness, on the one hand, and error on the other, used in a legal sense, are as clear and as mutually exclusive as are, for example, the categories of “guilty” and the contrasting and inconsistent category of “not guilty”, or the category of those who are on the “right” or on the contrary on the “wrong” side of the public highway or the category of motorist who goes through a green light, and that other category who goes through a red light. In philosophical discussion it may be possible to debate whether a person may not be in some sense “guilty” and in some different sense “not guilty” of the same offence and so on. But this form of discussion is not admissible in law because the law is required to make a specific decision, about a specific individual, at a specific time and place, and then to act upon it. Equally, the law is required to be rigorously logical and not to indulge in unreal self- contradictory and overly clever paradox of the sort on which the State case is based.

  502. I do not believe that a judge presiding and making rulings at a criminal trial on indictment, with manifestly serious consequences for the defendant on conviction, can be regarded both as having erred, because the binding decision which she followed might at some unstated future time be found to be wrong; and at the same time be said to be correct because she was bound to follow that binding authority, she “had no option” but to do so. I repeat that I regard this argument as meretricious. I am deeply disappointed, indeed aghast, to see this line of argument employed to create an opportunity to override one of this Court’s previous decisions, to the detriment of a citizen who was lawfully acquitted in the State of the Law as it stood when the Public Prosecutor put him on trial, on 18th July 2012 and on no other day.

    [II]

  503.  This is a purported appeal by the prosecution against the acquittal of the defendant, Mr. C., after a trial with a jury in the Waterford Circuit Criminal Court (Her Honour Judge Mary Ellen Ring) on the 19th day of July 2012.

  504. It is a “with prejudice” appeal, to use a statutory phrase. That is, the prosecution claim to be entitled to have the defendant retried on the self-same charges on which he has been acquitted. There are other, “without prejudice” procedures available to the State, but they have, very deliberately, not been used. See s.34 of the Criminal Procedure Act of 1967, as inserted by s.21 of the Criminal Justice Act of 2006. Neither is it suggested that new or different evidence is available to the prosecution. A statutory right to appeal an “error” by a trial judge is being misused in order to change the law of the land, without any democratic mandate, and even though the trial judge made no error.

  505. This is the first attempt, under legislation dating from 2010, to have a defendant retried after an acquittal. Previous attempts to do so, prior to the Act of 2010, had failed. The attempt gives rise to a considerable number of difficulties and to major issues of principle.

  506. The first of these is as to whether this appeal lies at all. Irrespective of whether the finality of an acquittal is an aspect of the constitutional right to a trial “in due course of law” (Article 38.1) or to trial by jury (Article 38.5), it is a fundamental right at Common Law, “an ancient and universally recognised constitutional right” according to Lord Birkenhead, cited below. I do not believe that, apart altogether from questions of constitutionality which are not before us today, for reasons which I do not understand, the right of appeal created by s.23 of the Criminal Procedure Act of 2010 extends to an appeal such as this, where it is sought “to overrule the decision of the majority in DPP v Kenny [1990] 2 I.R. 110 so that it no longer forms part of Irish law”, and to have a retrial after an acquittal based on that overruling. I do not believe for a moment that a statutory right of appeal against an error in law by a trial judge extends to an attempt to overrule an established authority, decided twenty-five years previously, which was binding upon that trial judge. The State’s contention in this regard is every bit as contrived as was the Crown’s submission in Liversidge v Anderson [1942] A.C. 206 and can be justified only in the manner identified by Lord Atkin in that case.

  507. The foregoing is the most deep-rooted of the considerations which have led me to the conclusion that this appeal simply does not lie. But there are other reasons as well, consistent with the first. Based both on commonsense and on authority, there is no doubt that there is a power in a Common Law Court, in restricted circumstances, to arrive at conclusions which develop, or assist in the evolution of, the Common Law. But there is high authority, Irish, English and American, for the view that such development should be “interstitial” only: see below. Most relevant of all these is an Irish case, Hynes O’Sullivan v O’Driscoll [1988] I.R. 436. There, this Court was invited to amend the long standing Common Law defence to a defamation action, that of qualified privilege. The Court refused to do so for a number of reasons which are set out on pages 499-450 of the Report. The most immediately significant of these was that the proposed reform should more properly be affected by statute and that the public policy which would be represented by a new formulation of the law should more properly be found by the Law Reform Commission or some other body “in a position to take a broad perspective as distinct from what is discernable to the tunnel vision imposed by the facts of a single case”. The reform of the law of qualified privilege is an important matter. But it does not approach in general importance the issue we are concerned with here, whether a citizen whose constitutional rights have been breached, and evidence obtained by that breach, is liable to have the fruit of the breach adduced against him in a Court of Law, a Court whose presiding judge will have undertaken to uphold the Constitution. The s.23 procedure is an appeal on a point of law only. It lies, where it lies at all, direct to this Court. There is no scope for factual evidence or cross-examination on the question, for example, of whether policy laid down in DPP v Kenny [1990] 2 I.R. 110 was wrong, whether it has been overtaken by subsequent events, whether the costs of the Exclusionary Rule have come to outweigh its benefits. There is, in other words, no scope whatever for a fact-and-evidence based inquiry as to whether the conditions under which alone this Court can set aside one of its own previous decisions are met. I therefore find that, apart altogether from the jurisdictional difficulty which must be seen as fundamental, this procedure is inadmissible and should not be followed, unless one is to disregard the authority and the jurisprudence of Hynes O’Sullivan v O’Driscoll [1988] I.R. 436, as well as that of DPP v Kenny [1990] 2 I.R. 110.  

    Finality of Acquittal.

  508. There is no doubt that, since the enactment of the Constitution, and for centuries before that up to 2010, an acquittal on a criminal charge by a court of competent jurisdiction was final and conclusive. Non bis in idem: no one can, after acquittal, be again prosecuted for the same offence. This, as a historical proposition, is agreed by the Law Reform Commission, by the Committee on Balance in the Criminal Law, and is established in many judicial decisions. Trial after trial is an acute form of harassment, not least in Ireland where one can easily await trial for years, even in a simple case.  

    Ne bis in idem, across history, cultures and continents.

  509. Before considering the Irish, English and American cases on the principle that no person may be tried twice for the same offence, it is worth noting that the principle itself is of great antiquity and has been recognised across centuries and across many diverse cultures. The briefest account of the ancient roots of the tradition may put the more recent cases in context and may explain why, for many centuries, and even in cultures not renowned for their care of persons accused of criminal offences, this principle has been adhered to. In ancient Greek times, Demosthenes in his “Speech against Leptines” delivered circa 355BC, almost 2,500 years ago, declared that:

    The law forbids the same man to be tried twice on the same issue.

    The Romans codified this principle in Justinian’s “Corpus Juris Civilis”, between 529 and 534AD. See Olynthiacs, Phillippics (J.H. Vince, trans. Harvard, 1998) The principle survived the Dark Ages, notwithstanding the deterioration of other Greco-Roman legal traditions, through the Canon Law and the teachings of the early Christian writers. The Corpus Juris (ibid at 199) noted that “an acquittal by a magistrate in a criminal prosecution barred further proceedings of any kind against the accused”. This was so, then, in the fourth century before Christ, and in the sixth century after Christ, in the most civilised parts of the then known world. The canonical principle “ne bis in idem” is regarded as a principle of natural law based on St. Jerome’s commentary on the prophet Nahum who said in Part I of his Book which is part of the Old Testament (Nahun 1.9):

    Deus non Iudicat bis in id ipsum

    “God himself does not adjudicate twice in the same matter”.

  510. In Double Jeopardy: a reference guide to the United States Constitution by Professor David Stewart Rudstein (2004) at pages 3 and 4, the historical origins of the principle are taken on from Jerome’s commentaries on Nahum as follows:

    .... [A]round 1140, Gratian, a Camaldolese monk who taught in Bologna published his Concordantia Canoum, known as the Decretum

    This contained a massive citation of authorities from the past including Canons of Church Councils, scriptural passages and decisions of Popes. The Decretum contains at least two references to double jeopardy. The first, which seems to echo the dictum of Nahum as quoted above says “the scripture holds, God does not punish twice in the same matter”. The second states “whether one is condemned or absolved there can be no further action involving the same crime”. (ibid) According to this authority the Canon Laws prohibition against double jeopardy emanated from the interpretation of St. Jerome of Nahum 1.9. St. Jerome’s interpretation of the verse entered Church Canons by the year 847 and was stated as “not even God punishes twice for the same act”. See Bartkus v Illinois, 359 U.S. 121 (1959) (Black J.)

  511. Bartkus v Illinois 359 U.S. 121 (1959) was a case of a man who was tried in Federal Court on a charge of Bank Robbery. He was acquitted by a jury. A few days later he was tried on the same charge in the State Court of Cicero, Illinois. He was convicted and sentenced to imprisonment for life. His challenge to this failed on grounds to do with the State’s prerogatives against the Federal Government. But no-one dissented from the following historical summary of Justice Black in the U.S. Supreme Court (359 U.S. 121, at pp. 151 to 155):

    Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers. By the thirteenth century it seems to have been firmly established in England, where it came to be considered as a “universal maxim of the common law.” It is not surprising, therefore, that the principle was brought to this country by the earliest settlers as part of their heritage of freedom, and that it has been recognised here as fundamental again and again. Today it is found, in varying forms not only in the Federal Constitution, but in the jurisprudence or constitutions of every State, as well as most foreign nations. It has, in fact, been described as a part of all advanced systems of law and as one of those universal principles “of reason, justice, and conscience, of which Cicero said: ‘Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations it is the same’. While some writers have explained the opposition to double prosecutions by emphasizing the injustice inherent in two punishments for the same act, and others have str4essed the dangers to the innocent from allowing the full power of the state to be brought against them in two trials, the basic and recurring theme has always simply been that it is wrong for a man to “be brought into Danger for the same Offence more than once. Few principles have been more deeply “rooted in the traditions and conscience of our people.

    From there, the U.S. jurisprudence is surveyed in Benton v Maryland 395 U.S. 784 (1969) and other cases discussed in the judgment of Henchy J. in O’Shea v DPP [1985] I.R. 384, below. See also Kenneth G. Coffin: Double Take 85 Notre Dame L. Rev. 771 (2010).

  512. The state of the Common Law of England around the time of American Independence is well stated in Blackstone’s Commentaries as follows (Volume IV, Chp. 26, p. 265, par. 335, CAVENDISH Publishing Ltd., 2001) (ibid):

    The plea of autrefois acquit .... is grounded on this universal maxim of the common Law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence.

  513. This language of Blackstone is echoed in the Fifth Amendment to the United States Constitution which famously states:

    .... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.

  514. Precisely the same principle is found in Article 50 of the Charter of Fundamental Rights of the European Union:

    No-one shall be liable to be tried or punished again in criminal proceedings for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.

  515. Article 4 of Protocol 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms provides:

    1.

    No-one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

  516. Similarly, by Article 54 of the Convention Implementing the Schengen Agreement (2000) (CISA):

    A person whose trial has been finally disposed of in one Contracting State may not be prosecuted in another Contracting Party for the same acts ....

    From the foregoing material it is clear that the principle ne bis in idem has a history going back over thousands of years and was acknowledged in both the Judeo-Christian, Greek and Roman legal traditions, throughout the history of the Common Law, and is now, in our own time, trenchantly expressed in the law of the European Union, the Council of Europe, and the Schengen area. It is also enshrined in the United States Constitution and in Article 14 of the International Covenant on Civil and Political Rights.

  517. In Zoran Spacic ([2014] EUECJ, Case C129/14 PPU) the ECJ held that Article 50 of the CFREU, cited above, applied not only trans-nationally in the Member States but also internally within in the jurisdiction of a Member State. The ECJ noted that, by Article 52 of the same Instrument the European Union was permitted to provide “even more extensive protection” than the ECHR. It noted that the guidance notes for the CFREU regarded Article 50 of that Instrument as equivalent to Article 4 of Protocol 7 to the ECHR and specifically requires Member States to uphold Article 50, CFREU. Spacic was subject to prosecution in Germany for committing fraud against a German citizen following prosecution for the same facts in Italy. The ECJ upheld the condition in Article 54 CISA (above) which allowed subsequent prosecution where his sentence in Italy had not been executed. The ECJ held:

    Article 54 of the Convention implementing the Schengen Agreement .... is compatible with Article 50 of the Charter of Fundamental Rights of the European Union, in which that principle is enshrined.

    In Zoran Spacic [2014] EUECJ, Case C129/14 PPU), Advocate General Jaaskinen, in his Opinion to the court ([2014] EUECJ C-129/14_O), referred to the seminal ECHR case on Article 4 of Protocol 7, Zolotukhin v Russia [2009] ECHR 252, (2012) 54 EHRR 16, which held that the Protocol was equivalent to Article 50 of the Convention. He distinguished Article 4 of Protocol 7 from Article 54 CISA, on the basis that the former covered “.... both the prohibition of double prosecution and that of double punishment”. The Advocate General also noted that para. 2 of Article 4 allowed a case to be reopened in accordance with law if either there was new evidence or a defect in the proceedings. There is no suggestion that new evidence exists in the present case. It may well be that the mention, in s.23, of the need for “error” is designed to comply with the “defect in proceedings” requirement. In that regard, the Advocate General noted much difficulty and discussions around the concepts of “offence” and “finality”. He noted that in Zolotukhin v Russia [2009] ECHR 252, (2012) 54 EHRR 16 the Strasbourg Court clarifies the concept of offence or “idem” as “same set of facts”. In that case, the Strasbourg Court emphasised a harmonious approach to the definition of “idem” in line with Article 50 CFREU and the seminal United States case of Blockburger v United States 284 U.S. 299 (1932), as necessary to the principle of legal certainty. The Strasbourg Court continued at pars. 79 to 82:

    Such an approach would favour the perpetrator, who would know, once he had been found guilty and served his sentence or had been acquitted, he need not fear prosecution for the same act ....

    It reiterated that the Convention must be interpreted and applied in a manner which rendered its rights practical and effective, and not theoretical or illusory.

    Accordingly, the Court takes the view that Article 4 of Protocol 7 must be understood as prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same ....

    I am, accordingly, inclined to the view that the ne bis in idem principle prohibits retrial except in cases of fresh evidence or error. The State has no locus standi to bring a s.23 application in the absence of either of these exceptions and the Court has no jurisdiction to grant relief either.

  518. In the present case, the State itself does not submit that there is new evidence: for the reasons set out in this judgment I do no believe that there was error on the part of the learned trial judge”.

  519. In Van Bockel, “The Ne bis in idem Principle in EU Law” (2010) Kluwer Law International, the Netherlands, the learned author placed the rationale of the principle as follows, from the point of view of European Law:

    The principle of ne bis in idem is a fundamental principle of law, which restricts the possibility of a defendant being prosecuted repeatedly on the basis of the same offence, acts or facts. The principle has a long history: the earliest known reference to the ne bis in idem principle originates from approximately 355BC .... It is believe that the protection against double jeopardy the equivalent of the ne bis in idem principle at Common Law is as old as the Common Law itself. Although the ne bis in idem principle is universally recognised in its application within domestic legal systems, there is no rule of mandatory public international law offering international protection against double jeopardy in international situations. Because of this, conduct giving rise to criminal liability in more than one jurisdiction is traditionally regarded as constituting separate offences in each of the jurisdictions concerned .... the creation of an EU wide ne bis in idem rule would follow logically from the nature of European integration in general, and the increasing criminal law relevance of the EU in particular.

  520. In this judgment I do not offer a final or concluded view of this case of J.C. on the basis of European Union or Council of Europe Law. This is primarily because I have been able to conclude that this appeal is incompetent and does not lie on the basis of Irish law. It is also because the European Law, like Irish constitutional law, was not argued for reasons which I do not understand. In this instance, of course, the question of “final” acquittal may depend on the view one takes as to whether or not an appeal with the object of changing the law, and obtaining a retrial for the same matter in the changed state of the law, is or is not within s.23.

  521. The Court is of course quite free, if it thinks fit to do so, to distance itself from the accumulated wisdom of the European, American and Judeo-Christian cultures in this regard. I do not think that wise, proper or even prudent. If the Court does think it wise to take this serious step, it is to be hoped that Ó Dálaigh C.J.’s caution will be borne in mind. Safeguards like jury trial (and, I would say, like DPP v Kenny [1990] 2 I.R. 110) exist to guard against an “improbable but not-to-be-overlooked future” contingency. (Melling v Ó Mathghamhna [1962] I.R. 1)

  522. Oppression and imprisonment, torture, exile or worse without trial or with secret tribunals created by and beholden to some power-wielding body, have not existed in this State for generations. But if, at some stage in the future a government were to come about, difficult as it may be to imagine, without the established tradition of legality, restraint, and respect for Human Rights which have characterised our governments for generations, would the authoritarian tendency of such a government be assisted or hindered by the cutting down of DPP v Kenny [1990] 2 I.R. 110. I have no doubt it would be assisted, which is one reason why I will have no part in what is proposed.

  523. It is true that various countries, led by Great Britain, in the Criminal Justice Act (2003), have permitted retrial after acquittal in very restricted circumstances. These typically include, as in the case of Britain, a “tainted” acquittal i.e. one procured by threats or bribery, or a retrial based on “new and compelling evidence”, unavailable at the time of the first trial. Three Australian States have adopted some variant of the “new and compelling evidence” exception while Canadian provisions seem to focus on errors of law. But in no State that I have been able to find is a court empowered, as the prosecution claim we are, to change the law from what it was at the time of the previous acquittal, substitute a new law, and order a retrial to take place under that new law. This appears to me to be as abhorrent as it is unique, in the entire world, as far as my researches go.

  524. It is important to understand just how long and how strongly established the ne bis in idem principle is. Long before the adoption of Bunreacht na hEireann, the old Irish Court of Appeal, in The Queen v The Justices of County Antrim [1895] 2 I.R. 603 regarded the principle as “deep rooted” and “cherished”. There, a vagrant had been charged with trespassing on a railway line: he was acquitted, on the basis that the part of the railway line on which he was found was subject to a public right of way. The railway company was very upset about this result. It sought to challenge the acquittal on certiorari, on the basis that the Company claimed that one of the bench of magistrates had an interest in the matter. The Company also sought mandamus to compel the magistrates to re-hear the complaint.

  525. The judgment of the Irish Court of Appeal was given by O’Brien C.J., later Lord O’Brien of Kilfenora, LCJ. He said (The Queen v The Justices of County Antrim [1895] 2 IR 603 at p. 635):

    We are all of opinion that the conditional order cannot be sustained on any of the grounds advanced in support of it. One fatal objection presents itself in limine. The offence of which [the defendant] was charged is one punishable by fine and imprisonment, and the order sought to be quashed is one of acquittal. In the whole range of our law there is no precedent for the granting, or even the making, of such an application in a case where there has been an acquittal by the magistrates. Not only is the application unwarranted by precedent, but principle cannot be referred to in support of it; on the contrary, to grant this application for a writ of certiorari to quash an order for acquittal, and for a writ of mandamus to compel the magistrates to rehear the complaint, would be to act in disregard of one of the most deep rooted principles of the law. It would be a direct infringement of the principle that no-one is to be tried twice for one of the same offence. Nemo debet bis vexari pro unam et eadem causa is a maxim embodying one of the most cherished principles of our law .... In giving judgment in the case of The Queen v Duncan (1881) 7 QBD 198 Lord Coleridge said:

    The practice of the Courts has been settled for centuries, and that is that in all cases of a criminal kind, where a prisoner or defendant is in danger of imprisonment, no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted.

    The object of the application for a writ of certiorari and mandamus in this case is to deprive the defendant of the benefit of his acquittal, and to have him tried again for the offence in reference to which he has been acquitted. If, in the exercise of our discretion .... we quashed the order of acquittal, we would deprive the defendant of the status of a man innocent of the offence of which he was charged and if we sent the case back to the magistrates, it would be only on the basis that the case could be reheard, though the law says that no man shall be tried twice for the same offences.

    [emphasis added]

    Mr. Justice Johnson concurred with the judgment of O’Brien C.J. in terms that were equally unequivocal. He said (The Queen v The Justices of County Antrim [1895] 2 IR 603 at pp. 652 to 653):

    In R. v Russell (1854) 3 El. and Bl. 942, the defendant was tried on an indictment for a public nuisance by the erection and maintenance of a certain embankment. This was a charge of misdemeanour and a criminal proceeding. The defendant was acquitted and a conditional order was obtained for a new trial on the grounds that the learned judge .... had misdirected the jury and that the verdict was against the weight of the evidence. Cause was shown and allowed and the conditional order was discharged. In his judgment, Lord Campbell, C.J., says:

      The ground of my decision is that this is a criminal proceeding, and that the defendant ought not be twice put in peril for the same cause. That rests upon a maxim of English law which will, I hope, always be held sacred .... if there be an improper conviction it should be set aside, but I hope the same practice will never prevail in the case of an acquittal’.

  526. Similarly, in R (Kane) v Tyrone Justices (1906)40 ILTR 181, Palles C.B. held it to be “an elementary principle” that:

    [A]n acquittal made by a court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other court.

  527. Kane was a man who had been acquitted by magistrates on a charge of trespass in pursuit of game. The question was whether the prosecution could appeal to the old Court of Quarter Sessions by reason of a statutory provision providing such an appeal to “any party aggrieved by the determination of the Justices”. Palles C.B. held that it was the established policy of the law that a decision of acquittal by a court of competent jurisdiction could not again be brought before any other court. He further held, in a passage adopted in AG v Kennedy [1946] I.R. 517 below, that in order to show a right of appeal against an acquittal, statutory words must be “clear, express and free from any ambiguity”.

  528. Kane is described as “the leading Irish case” by Professor J.M. Kelly in Fundamental Rights in the Irish Law and Constitution. Speaking of the passage just cited Professor Kelly says:

    This doctrine has been consistently followed both in England and in Ireland where the matter was very fully discussed by the Supreme Court in connection with a State appeal against the quashing of a conviction in the case of A.G. v Kennedy [1946] IR 517.

    [emphasis added]

  529. Post Constitution Irish cases on the same, or cognate, topics will be discussed below. I have referred to cases in which the impossibility of retrying an acquitted person was established as a matter of Common Law (which is continued in effect by the Constitutions of 1922 and 1937) as it stood when Ireland was part of the United Kingdom. This was a time when, in general, the rights of individuals, especially criminal defendants, were less sedulously guarded than at a later date, at least up to the present day. We are creating a new law less favourable to the citizen than was the law prevailing when Ireland was ruled by the Crown.  

    Does this “appeal” lie?

  530. The Irish case referred to by Professor Kelly, AG v Kennedy [1946] I.R. 517 is of interest on the very relevant topic of the construction of statutes or instruments said to permit a prosecution appeal. There, the accused had been convicted by the Special Criminal Court on a number of charges, but the Court of Criminal Appeal had set the convictions aside. The Attorney General sought leave to appeal that order of the Court of Criminal Appeal to the Supreme Court, but was refused. The Attorney then had recourse to s.29 of the Courts of Justice Act 1924 which, he said, permitted a prosecution appeal. This section provided as follows:

    29.

    The determination by the Court of Criminal Appeal of any appeal or other matter shall be final, and no appeal shall lie from that Court to the Supreme Court, unless that Court or the Attorney General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court in which case an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive.

    In reliance on this provision, the Attorney General of the day issued a certificate to himself and purported to appeal to the Supreme Court.

  531. The Supreme Court dismissed the Attorney General’s appeal in limine, holding that it was incompetent and did not lie. Murnaghan J. said (A.G. v Kennedy [1946] I.R. 517 at 529):

    In my opinion, s.29, which allows an appeal in general words, does not mean that anyone whosoever can apply for a certificate and enter an appeal. It is only the person convicted .... who can make an appeal under the conditions stated in the Section. Similarly, any other person directly affected who can be said to have an appealable interest can, in my opinion, appeal. But .... I ask myself have the People, at the suit of the Attorney General, an appealable interest against the decision of a court entering an acquittal on a criminal charge where an appeal is given in general words, and the Attorney General is not specifically named.

    In my opinion this point has been decided in several cases in accordance with a long established course of practice. [He referred to R (Kane) v Tyrone Justices].

    .... In order to show a right of appeal the words must be clear, express, and free from any ambiguity ....

    I would apply this test in construing s.23(3) of the Criminal Procedure Act of 2010.

  532. When the Attorney General lodged his purported Notice of Appeal in, AG v Kennedy [1946] I.R. 517, Counsel for Kennedy applied to the Court to dismiss the appeal on the ground that it did not lie. Mr. John A. Costello S.C., having established the general non-appealability of an acquittal, argued that “Mere general words are not sufficient to justify interference by the Court with a fundamental right of an acquitted prisoner”.(unverified) He relied for this proposition on Secretary of State for Home Affairs v O’Brien [1923] A.C. 603. This case, which arose out of the Irish troubles which were ongoing at the time, is of particular legal interest because it states the Common Law as it stood at almost exactly the moment when that immemorial law was taken over by the Irish Free State by virtue of its Constitution. O’Brien was a man whom the Home Secretary in England had ordered to be arrested in that country and deported to Dublin, there to be interned. The English Court of Appeal granted an order nisi, for the issue of a writ of habeas corpus, because they held that the detention was illegal as the Home Secretary had no power to order a person to be interned in the Irish Free State. The Home Secretary was given a week to make his return to the writ. Before that time had elapsed, instead of making a return to the writ, he purported to appeal to the House of Lords. The House of Lords dismissed the appeal as incompetent, just as the Supreme Court was later to do in AG v Kennedy [1946] I.R. 517, above. The Home Secretary relied upon the generality of the words providing for an appeal to the House of Lords and said they were broad enough to capture an appeal in Secretary of State for Home Affairs v O’Brien [1923] A.C. 603. At p.610 Lord Birkenhead said that:

    It is certainly true that in terms the words are wide enough to give an appeal in such a matter as the present. But I should myself, if I approach the matter without the assistance of authority at all, decline utterly to believe that a section couched in terms so general availed to deprive the subject of an ancient and universally recognised constitutional right.

    [emphasis added]

    But, he said, the point was in any event covered by Cox v Hakes (1890) 15 App. Cas. 506, referred to below. At p.611 Lord Birkenhead declared:

    It follows .... from Cox’s case, that no appeal lies to the Court of Appeal where discharge has been ordered; and the language of the relevant statutes being for the present purpose indistinguishable, it equally follows by parity of reasoning that no appeal lies in the present matter to the House of Lords, unless upon some ground of principle the present case can be distinguished.

    Lord Dunedin, at p.622 of the Report referred to:

    .... what I have ventured to call the cardinal principle of the English law, that a person once found entitled to liberty should not be liable to have that determination again called in question.

    [emphasis added]

    I would be indeed sorry to think that the law of an independent Ireland, almost a century later, is less protective of the liberty of the citizen, than the law declared by Lord Birkenhead and his colleagues in 1923, who regarded the immunity of a citizen after acquittal as “an ancient and universally recognised constitutional right”, which was “the cardinal principle of the English law”. Cox v Hakes (1890) 15 App. Cas. 506 was followed by the Supreme Court in The State (Burke) v Lennon [1940] I.R. 136 and relied upon for the proposition that mere general words “would not suffice to abrogate a rule so important to the subject’s liberty as that by which the grant of Habeas Corpus was final”. However in The State (Brown) v Feran [1967] I.R. 147 Walsh J., with whom three judges agreed held that the Canons of Construction applicable to a statute are not the same as those applicable to the construction of a written Constitution, thereby limiting the authority of the Victorian case to statutory, as opposed to constitutional, construction.

  533. Statutory provision was made in Ireland, from 1967 onwards, for a reference of a point of law decided during a trial which ended in acquittal by direction, to be made to the Supreme Court. This procedure can clarify the law, but without prejudice to the acquittal of the defendant. See s.34 of the Criminal Procedure Act of 1967, as substituted by s.21 of the Criminal Justice Act of 2006.

  534. To summarise: a verdict of acquittal by a Court of Competent jurisdiction is at Common Law absolutely sacrosanct. In Britain, where Parliament reigned supreme, unfettered by any written Constitution or Bill of Rights, that position could of course be changed by legislation. The right not to be subjected to repeated trials is “an ancient and universally recognised constitutional right”; “one of the most deep rooted principles of the law”; “one of the most cherished principles of our law”. The principle of “no retrial after acquittal” had, as long ago as 1881, “been settled for centuries”, before the enactment of the Constitution. It might be charged by Statutes, in the UK, but in that event the statutory words “must be clear, express, and free from ambiguity”. So long established a right appears to me to be part of what is comprehended in the phrase “due course of law” or “due process of law” to use the phrase which the drafters of the American Constitution preferred but which, on high authority in this jurisdiction, is cognate to “due course of law”. This is guaranteed in Art. 38.1 of the Constitution. But the question of whether statutory provision for a retrial after an acquittal in the circumstances of this case can be consistent with the Constitution is not one raised before us and I do not discuss it.

  535. The major modern Irish Authority on this question is People v O'Shea [1982] I.R. 384, Henchy J. observed at p.434 that:

    The pre-Constitution refusal to entertain any breach of the autrefois acuit rule which continued to be firmly applied in the post –Constitution courts.

    He instanced several cases. One of these is The State (Attorney General) v Binchy [1964] I.R. 395. This was a case where a verdict of not guilty had been directed by a trial judge. In the unanimous view of the Supreme Court this direction had been wrong in law. But they concluded at p.416:

    To quash the present verdict of “not guilty” would not in any real sense be to quash a verdict of acquittal. Nevertheless, where the jury’s verdict is recorded as a verdict of not guilty simplicter, this Court should act on the record for what it said. It is entirely without precedent to go behind such a verdict, and it is now too late to create one.

    [emphasis added]

  536. Henchy J. at p. 437, concluded on this aspect:

    .... the authoritative Irish decisions in both the pre-Constitution and post-Constitution eras show that a plea of previous acquittal will always prevail (save in a statutorily allowed appeal by Case Stated) to defeat any appeal or other proceeding in which it is sought to make a person liable for an offence in respect of which he has already been acquitted within jurisdiction by a court of competent jurisdiction, even where such acquittal has been directed by the trial judge. There is nothing to show that before Conmey’s case it had occurred to any judge, counsel or academic writer that the rule had no application to acquittals obtained in the Central Criminal Court ....

  537. Henchy J. observed at p. 438 that:

    The Common Law Rule that verdicts of acquittal by juries, whether directed by the trial judge or not, should stand irreversible passed with the Common Law Jury to various jurisdictions throughout the world .... [t]he Common Law Rule .... passed to the United States of America and was given constitutional force there by the Fifth Amendment which provides ‘.... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb .... ’

    This prohibition of double jeopardy has been held by the United States Supreme Court to debar the prosecution from appealing against the jury’s verdict of acquittal ....

    The rationale of the constitutional prohibition against double jeopardy was stated as follows by Mr. Justice Marshall when delivering the opinion of the Supreme Court of the United States in Benton v Maryland (1969) 395 US 784:

    The fundamental nature of the guarantee against double jeopardy can hardly be doubted. Its origins can be traced to Greek and Roman times, and it became established in the Common Law of England long before this nation’s [i.e. the United States of America’s] independence .... As with many other elements of the Common Law it was carried into the jurisprudence of this Country through the medium of Blackstone who codified the doctrine in his Commentaries: ‘The plea of autrefois acquit, or a former acquittal, .... is grounded on this universal maxim of the Common Law of England, that no man is to be brought into jeopardy of his life more than once for the same offence’. Today, every State incorporates some form of the prohibition in its constitution or common Law, as this Court put it in Green v United States (355 U.S. 184 at 187 (1957))‘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 offence, 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’. This underlying notion has from the very beginning been part of our constitutional tradition. Like the right to trial by jury, it is clearly fundamental to the American scheme of justice.

    [emphasis added]

    Henchy J., having referred to that passage, said at p.439 “I see no reason why this Court should not reach the same conclusion as to the inviolability of such a verdict in the light of our Constitution”. I agree.

  538. Henchy J. was giving his judgment in the context of a claimed right to appeal by the prosecution against a directed verdict of not guilty in the Central Criminal Court. This claim was based on the general words of Article 34 of the Constitution, conferring a general jurisdiction to entertain appeals from all decisions of the High Court on this Court, unless removed by law. That is not, of course, the context of the present purported appeal but, in People v O'Shea [1982] I.R. 384, Henchy J. raised the question of what order the Supreme Court could make if it did entertain the appeal. He said at p.441:

    It could not order a retrial, for power to do so has been withheld from it, and if the Court were to take such a power to itself, it would be unconstitutionally legislating the abolition, for a restricted class of acquitted persons, to the right to plead a previous acquittal.

  539. As I have mentioned several times, no question of the constitutionality of s.23 has been raised here. But, having regard to the undisputed need at Common Law for any statute purporting to confer a right of appeal against an acquittal to be in clear and unambiguous words, s.23 must be closely analysed to see if, indeed, it permits the present purported appeal. I will shortly turn to this analysis.

  540. In People v O'Shea [1982] I.R. 384 at 414, Finlay P. came to the same conclusion as Henchy J.: that the appeal claimed by the prosecution did not lie. He approached the issue, at least in part, as an aspect of the constitutionally guaranteed right to trial by jury. At p.414ff of the Report he concluded in, a passage of great importance:

    .... that the right of trial with a jury provided for in the Constitution includes the right to a trial with a jury, one of the ingredients or essential characteristics of which is the fact that a jury’s verdict of not guilty is not subject to an appeal to any other court. I am satisfied that this right, expressly dealing with the question of criminal trial, must take precedence over the general right of appeal from decisions of the High Court to the Supreme Court and that, accordingly, an appeal such as is sought in the instant case by the appellant against an acquittal entered by a jury within its jurisdiction, even as a result of a direction from the trial judge, is not sustainable.

    [emphasis added]

  541. Although the opinions expressed by Finlay P. and Henchy J. were those of a 3-2 minority in People v O'Shea [1982] I.R. 384, the effect of the majority judgments, which were posited on the general words of Article 34 of the Constitution, was removed by statute. In People v O'Shea [1982] I.R. 384itself, the Court went on to dismiss the Director’s appeal on the merits, with costs to the Respondent.  

    Section 23.

  542. I turn now to the construction of s.23 which is relied upon to confer a right of appeal on the prosecution. I do so in order to see whether the present purported appeal is within its scope. If it is not within the scope of the section, then, clearly, the Court cannot entertain it. Section 23 of the Criminal Procedure Act 2010 introduced a momentous change. It permitted a with-prejudice prosecution appeal against an acquittal in certain circumstances. These circumstances are strictly delimited by the statute. The first point that logically arises on this appeal is whether the present purported appeal is within those strictly delimited circumstances. It may be useful to offer an overview of the questions arising on this issue before descending into the necessary detail. Section 23(1) permits the prosecutor “subject to subsection (3) and Section 24”, to “appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court”. It is convenient here to set out s.23(1), (2) and (3), which define the scope of the Section. The Section provides as follows:

    23.

    (1)

    Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, .... may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.

    ....

    (3)

     

    An appeal under this section shall lie only where—

    (a)

    a ruling was made by a court during the course of a trial referred to in subsection (1) or the hearing of an appeal referred to in subsection (2), as the case may be, which erroneously excluded compelling evidence, or

    (b)

    a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where—

    (i)

    the direction was wrong in law, and

    (ii)

    the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.

    [emphasis added]

    Requirement for “error”.

  543. Subsection (3) of the Section provides that an appeal shall lie “only” where a ruling was made by the Court in the course of a trial “which erroneously excluded compelling evidence”. (Emphasis added), or a direction to acquit was given by the learned trial judge and “the direction was wrong in law”. (Emphasis added). The need for an error of law, by the trial judge, to trigger the entitlement to appeal under s.23 is central to my view of the case.  

    The ruling of the trial judge in this case.

  544. I now set out the ruling of the learned trial judge which was given on the 18th July, 2012. I have, insofar as possible, edited irrelevant material in order to shorten the text. I have excluded, as I am required to do by statute, the name of the Respondent. The facts of the case appear, briefly but sufficiently, from the ruling of the Judge. The learned trial judge, having heard evidence and submissions ruled:

    .... we’ve all been left the consequences of the Damache ([2012] IESC11) judgment which perhaps be forever litigated until a final conclusion.

     .... Application was made to Chief Superintendent P.V. Murphy on the 10th May, 2011 for a search warrant pursuant to s.29 of the Offences against the State Act as substituted by s.5 of the Criminal Law Act of 1976 to search [premises in Waterford], the home of [the respondent].

    A number of gardaí went to this premises in or about 10.30am on the 10th May 2011. Included in the party of gardaí were two who gave evidence before the Court in the voir dire, Detective Sergeant Donoghue and Detective Garda Burke, both of Waterford Garda Station. Detective Sergeant Donoghue was in possession of the search warrant issued earlier by Chief Superintendent Murphy. At the premises, Detective Sergeant Donoghue was in possession of the search warrant issued earlier by Chief Superintendent Murphy. At the premises, Detective Sergeant Donoghue spoke with a sister of [the respondent] and explained to her why the gardaí were there and [she] was shown the search warrant in the possession of the gardaí. In the meantime Detective Garda Burke went upstairs in the premises to a front bedroom where [the respondent] was in bed and proceeded to arrest him after allowing [him] to get dressed. This was at 10.40am.

    Detective Garda Burke gave evidence that he was aware that Detective Sergeant Donoghue had a warrant to search the premises under s.29. He further said that he arrested [the respondent] under s.30 of the Offences against the State Act 1939, in relation to possession of firearms on the 5th May 2011 .... He cautioned [the respondent] and explained that he would be detaining him under the provisions of s.30 for twenty-four hours. He was aware of the search taking place, that’s Detective Garda Burke, and stated that it was his attention to arrest [the respondent] that morning at [the premises].

    The State accepts that nothing of an evidential nature arose as a result of the search of [the premises]. The issue here is the lawfulness of the arrest of [the respondent]. His resulting detention is at stake, as well as admissions made while in custody on foot of the arrest.”

    [emphasis added]

  545. The learned trial judge next discussed the scope of the powers of search under the Offences against the State Act and continued:

    The power to search a dwelling house under the 1939 Offences against the State Act was only permissible under Section 29 of that Act which permitted, on foot of the search warrant, that buildings, and I quote buildings from the Act, could be searched. Thus, entry into a private dwellinghouse to arrest under s.30 was done by obtaining a search warrant under s.29 of the 1939 Act and arresting once on the premises. It appears that a very convenient practice of issuing search warrants under s.29 of the 1939 Act to allow for searches and contemporaneous arrests under s.30 arose over the years. While the Offences against the State Act, 1939 was originally intended for, and I am quoting from the long title, amongst other things:

    Actions and conduct calculate to undermine public order and the authority of the State and for that purpose to provide for the punishment of persons guilty of offences against the State etc.

    The provisions of s.29 and s.30 were increasingly used over recent years for non-politically subversive crime. This was perhaps understandable where few other legislative alternatives to carry out searches and arrests for serious crime were available to the gardaí, but less excusable in more recent years, where laws have been enacted to give the gardaí greater powers of arrest, in particular, and search. Robbery or attempted robbery is the main allegation in all three offences before the Court. This is an arrestable offence within the meaning of s.4 of the Criminal Law Act of 1997. Like s.30, this gives the gardaí power of arrest without warrant in relation to offences where the penalty is five years or more. Robbery is one such offence. Section 6 of that Act gave powers of entry and search to gardaí either with or without warrants for the purpose of arresting the persons. Section 4 and s.6 of the Criminal Law Act 1997 would appear to be, in many ways, the non-subversive crime equivalent of s.29 and s.30 of the 1939 Act. Despite these provisions introduced in 1997, gardaí still rely, or more appropriately relied, on s.29 and s.30 of the 1939 Act, where scheduled offences were involved, most particularly firearm offences. One of the reasons would appear [to be] that s.29, in particular, was more convenient and offered greater scope for entry and search than s.6 of the Criminal Law Act of 1997.

    Matters came to a head in February of this year, 2012, as a result of the decision in the Supreme Court in the case of DPP v Damache ([2012] IESC 11). I’ve considered the submissions from both prosecution and defence in this case and the case law referred to and relied upon and in particular, to the cases of DPP v Laide and Ryan ([2005] IECCA 24) which is now reported in [2005] 1 IR 209 and the very recent decision of DPP v Barry O’Brien ([2012] IECCA 68), a decision that was handed down on 2nd July, 2012 in the Court of Criminal Appeal. Neither is on all fours with the case involving [the respondent]. The O’Brien case was heard before the Special Criminal Court and involved an allegation of membership of an unlawful organisation, while in the Laide case, there was no reliance at upon any portion of the Offences against the State Act, primarily because of the nature of the case .... under investigation in that matter. However, both deal with the issue of the inviolability of the dwellinghouse and the consequences that can arise as a result of a finding that entry into a dwellinghouse is unlawful.”

    [emphasis added]

  546. The learned trial judge, having heard the witnesses, and established the legal parameters of the application before her, proceeded to make certain findings, as follows:

    In this case, I am satisfied that the entry into [the respondent’s] house on the 10th May 2011 was on foot of the warrant issued under s.29 of the Offences against the State Act 1939. This was the vehicle to get into the door, both to search and to effect the arrest under s.30 of the 1939 Act. If [the respondent] had not been there, I’ve no doubt s.30 would have been employed otherwise, but that doesn’t arise because [he] was present and was arrested under the provisions of s.30. I’m not satisfied that the Criminal Law Act of 1997 ever figured in the consideration of the gardaí in this case. I note that the Damache ([2012] IESC 11)case was also based in Waterford and that the High Court decision in this case was given, in fact, two days later on the 13th May, 2011. It seems to me that the gardaí in Waterford, in particular, were more alert to possible issues surrounding the s.29 warrants than perhaps other colleagues in the country. So, I’m satisfied that the entry was unlawful and, as such, the gardaí were trespassers and that includes the arresting garda, Detective Garda Burke. Insofar as the consequences arise, I have regard to the decision in the Laide ([2005] IECCA 24) case and in particular the final – the penultimate paragraph on p.234 where the Court says:

    It follows in the present case that the act complained of, namely the entry upon the dwelling of a second accused on the 26th September 2000, comes within the concept of an intentional and deliberate action by members of An Garda Síochána in the sense that it was not an accidental or unconscious act on their part. The fact that they believe they had lawful authority so to enter is beside the point. There are no extraordinary excusing circumstances such as to allow the evidence to have been admitted and accordingly, this Court is satisfied that the evidence in question ought not to have been admitted at the trial.

    [emphasis added]

  547. The learned trial judge then concluded her remarks as follows:

    There doesn’t seem to be any extraordinary excusing circumstances relied upon by the prosecution in this case and it seems that the arrest, having been unlawful, the detention that flowed was unlawful and any interviews or any matters arising during the course of the detention cannot be relied upon and admitted as evidence in the trial against [the respondent].

    Findings of Fact.

  548. The learned trial judge gave the ruling quoted above after hearing, by way of voir dire, evidence called by the prosecution on the question of the admissibility of the evidence. She saw and heard the witnesses and arrived at the conclusions noted above. These include, relevant to the present issues, the following findings of fact:-

    1. “I am satisfied that the entry into [the respondent’s] house on the 10th May 2011 was on foot of the warrant issued under s.29 of the Offences against the State Act 1939”.

    2. “This [i.e., the warrant under s.29] was the vehicle to get into [recte, in] the door”, both to search and to effect the arrest ....”

    3. “I’m not satisfied that the Criminal Law Act of 1997 ever figured in the consideration of the gardaí in the case”.

    4. “I’m satisfied that the entry was unlawful and, as such, the gardaí were trespassers, and that includes the arresting guard, Detective Garda Burke”.

    5. “There doesn’t seem to be any extraordinary excusing circumstances relied upon by the prosecution in this case ....”

  549. All of the foregoing findings appear to me to be findings of fact made by the trial judge upon oral evidence, and having heard the witnesses who gave such evidence examined and cross-examined. Even if one disagreed with them, they could not be regarded as “erroneous” or “wrong”. But I wish to make it emphatically clear that I do not disagree with them in any way.

  550. The legal constituent of the finding of the learned trial judge was based on the decision of the Court of Criminal Appeal in DPP v Laide and Ryan [2005] IECCA 24, [2005] I IR 209, at 234, which itself was grounded on earlier authority, including DPP v Kenny [1990] 2 I.R. 110.  

    The Damache case.

  551. On the 23rd February 2012 the Supreme Court, (per Denham C.J.) held that s.29 of the Act of 1939, as inserted, was unconstitutional. The finding of the Court, contained in para. 59 of the judgment in DPP v Damache [2012] IESC 11[2012] 1 IR 266 is as follows:

    This Court will grant a declaration that s.29(1) of the Offences against the State Act 1939, as inserted by s.5 of the Criminal Law Act 1976, is repugnant to the Constitution as it permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person.

  552. A warrant under the invalidated s.29(1) was precisely what was relied upon by the gardaí to enter the respondent’s house in this case. One of the gardaí who was present on those premises on foot of the s.29 warrant arrested the respondent. The consequence of that was the issue for Judge Ring, and she ruled as above.  

    Grounds of the Appeal.

  553. The appellant appears to involve certain grounds of appeal which appear to me to be wholly excluded by the factual findings of the learned trial judge. These centre on the on the proposition that the arresting guard, unlike the other gardaí, was physically on the respondent’s premises on a basis that did not involve reliance on the s.29 warrant, which was admitted to be invalid. These factual findings of the judge cannot themselves be challenged since s.23 permits of appeal only for errors of law, or directions which are “wrong in law”. The finding “that the entry into the dwellinghouse was carried out on foot of the s.29 warrant for the purpose both of the search and the arrest” appears to me to be manifestly a finding of fact. In the voir dire at the criminal trial, the onus of establishing the admissibility of the evidence to which objection was taken rested on the prosecution. Accordingly the finding “I’m not satisfied that the Criminal Law Act of 1997 ever figured in the consideration of the gardaí in this case” is also clearly a finding of fact. The salient factual finding is that entry to the dwellinghouse for the purpose both of search and of arrest was obtained pursuant to a warrant, the s.29 warrant, which was issued under a section of a statute which was itself unconstitutional. That is the factual position for the purposes of this purported appeal.  

    A concession.

  554. It appears to me that the grounds on which an appeal is even potentially available relate entirely to the consequences of those factual findings. This is reflected in the concession, set out at para. 9 of the appellant’s submissions in the present case, that the appellant contended at the trial, and contends before this Court that whereas by reason of the unconstitutionality of the s.29 warrant Detective Sergeant Donoghue and the other gardaí involved in the search were on the premises unlawfully, Garda Burke was lawfully on the premises. It is therefore admitted by the State that all the gardaí, other than Garda Burke, were unlawfully on the respondent’s premises. Since the premises are a dwelling, they were unconstitutionally present there. See Art. 40.5 of the Constitution. But the learned trial judge found as fact that the entry of all guards including Garda Burke into the respondent’s premises was on foot of the s.29 warrant which was “the vehicle to get [in] the door both to search and to effect the arrest”. This excludes the possibility that one of the guards entered on some other basis or that the arrest was effected by a guard who was present on some other basis. Since this is a question of fact, and not of law, it cannot be the subject of an appeal by the prosecution. If it had been decided the other way, it could not have been appealed by the defence. Moreover, since it is a finding of fact made after hearing the oral evidence of witnesses, and after hearing their cross-examination, this Court cannot substitute another view of the facts for that of the learned trial judge who had seen and heard the witnesses.

  555. It is also important that, as stated in the remarks of the learned trial judge in delivering her ruling, the prosecution did not rely upon any “extraordinary excusing circumstances”, a phrase whose meaning will be discussed below. But it does not arise here, because it was not relied upon at the trial.

  556. It appears to me therefore that the only aspect of the appeal which is any way open, even on the State’s construction of s.23, is that set out first at para. 21 of the appellant’s submissions:

    .... [T]he appellant will invite the Court to consider again the content and effect of the exclusionary rule.

    In the following paragraph this is expressed as follows:

    Specifically, the appellant invites the Court to overrule the decision of the majority in DPP v Kenny [1990] 2 IR 110.

  557. At para. 62 of the submissions, under the heading “Conclusion”, the appellant states:

    By reason of the foregoing it is submitted that the strict exclusionary rule of evidence should no longer form part of Irish law.

    [emphasis added]

    It is thereby admitted that the Exclusionary Rule was part of the law of Ireland at the time of the trial. (“no longer form part of Irish law”), and is so now. It is also clear from the State’s submissions that it is asking this Court itself to change the pre-existing law of the land, and order a new trial under a new, judge made, law whose content is at present uncertain. It is far from clear to me how this proposal is consistent with Art. 15.21 of the Constitution:

    The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas.

    This aspect of the appeal occupies fully two-thirds of the State’s written submissions. I believe it is the only part of the appeal which is even potentially statable. The other grounds come down to the proposition that the arresting guard, Garda Burke, was in a different position to the other gardaí whose presence on the respondent’s premises is admitted by the State to have been unlawful. This proposition is excluded by the findings of fact of the learned trial judge, from which no appeal lies.

  558. It is agreed by the prosecution that the learned trial judge, in excluding certain evidence, followed the established law and in particular the case of DPP v Laide and Ryan [2005] IECCA 24, [2005] 1 I.R. 209, which itself applied the well-known case of DPP v Kenny [1990] 2 I.R. 110.
    She did not grant the direction “wrongly” in point of law and she did not grant it “erroneously”. The prosecution do not complain of error by her in that regard: they complain of DPP v Kenny [1990] 2 I.R. 110 and wish to “overrule” it. But that appears to be manifestly outside the scope of an appeal which is limited to errors by the trial judge. They ask the Court to declare or arrange that DPP v Kenny “should no longer form part of Irish law”. But the learned trial judge was obliged to act as she did and had no option but to do so. This, as we shall see, is agreed. Therefore she did not err.

  559. The target of the prosecution on this appeal is not, therefore, any alleged error by the learned trial judge who followed the law as she was bound to do. Instead, the prosecutor’s target is that law itself. The prosecution in this appeal invite the Court to depart from its own previous decision in DPP v Kenny [1990] 2 I.R. 110. But that case, and, DPP v Laide and Ryan [2005] IECCA 24, [2005] 1 I.R. 20, were undoubtedly binding on the learned trial judge at the time of the acquittal. See below “Obligation of a trial judge to follow the law”.

  560. The question that now arises, in my view, is whether the prosecution can lawfully seek to set aside DPP v Kenny [1990] 2 I.R. 110 in an appeal pursuant to s.23 of the 2010 Act. The Section on the face of it is directed at “errors” by the trial judge. But no error by the trial judge is alleged or can be supported. She followed the law as she was obliged to do. If that is so, then this appeal is not within s.23, and is therefore incompetent and does not lie.

  561. As we have seen, conclusivity of a verdict of acquittal is a feature both of the Common Law which existed for centuries before the adoption of the Constitution, and of the Constitutional Order itself. Any alleged statutory deviation from it must be strictly construed and confined within the terms of the legislative enactment. This is the question that first arises. No question has (for whatever reason) been raised of the constitutionality of a departure from the common law and constitutional position, and I shall therefore make no comment on that issue. Section 23 of the Act of 2010 attracts a presumption of constitutionality.  

    Parliamentary History of s.23.

  562. Since this aspect of the case turns on the construction of s.23(1) (2) and (3) of the Criminal Procedure Act of 2010, it is useful to consider the traveaux préparatoires of that provision. Section 23 of the Criminal Procedure Act is the sole basis for this appeal, and it requires the State to show “an error” “by the trial judge”.

  563. As it happens, the background to the enactment of s.23 can be ascertained with unusual precision from the observations of the Minister who introduced it (Mr. Dermot Ahern, T.D.) and from the material to which he refers. On 29 June 2010, on the Committee stage of the Bill, the Minister said:

    Section 23 is intended to capture the recommendation of the Balance in the Criminal Law group that a with-prejudice right of appeal against acquittals following trials on indictment should be available to the prosecution in certain circumstances. The Review Group recommended that rights should be available in the case of erroneous rulings by a trial judge which resulted in a judge directing acquittal or weakened the prosecution case that is put to the jury. The report of the group emphasised that a jury acquittal, following receipt of all admissible evidence, should be impregnable under the regime.

    This requirement stems from the constitutional right to jury trial ....

    Both subsections are subject to new subsection (3), which contains the key changes to the [S]ection. It limits the circumstances in which appeals shall lie under subsections (1) and (2) to rulings by the Court which erroneously excluded compelling evidence, in para. (A), and in the case of Judge-directed acquittals, where the direction was wrong in law ....

    [emphasis added]

    From this statement there emerges clearly, in the first place, that the genesis of the Section is the report of the Balance in the Criminal Law group, and secondly, that the right to appeal was intended to be confined to the circumstances specified in the Report and in the Section, and further analysed below.  

    Balance in the Criminal Law Group Report.

  564. This document, which dates from 15 March 2007, was the product of a group chaired by Gerard Hogan, LLD SC, now the Honourable Mr. Justice Hogan, Judge of the Court of Appeal. The group was composed of legal and other figures including two persons employed in important positions in the legal services of the State. There were no other persons engaged predominantly in the practice of Criminal Law; the specialist defence Bar and Solicitors were not at all represented in the Group, for whatever reason.

  565. At pp. 196 to 198, the group made the following recommendation which, we know from what was said by the Minister, led to the enactment of the present s.23:

    We ultimately have come to the conclusion that a trial that founders on an error of law made by a trial judge cannot reasonably be described as a trial in due course of law. There must, logically, therefore be a “with-prejudice” right of address against erroneous decisions by a trial judge, whether that it is an interlocutory or evidential ruling .... or a directed acquittal .... the fact that such a trial judge error might be followed by a jury acquittal does not in our view mean that the principle of jury trial is any way compromised by allowing a with-prejudice appeal. The jury decision on the merits following reception of all admissible evidence is totally impregnable under our proposal. Only where the jury is directed as to its verdict, or wrongly prevented from considering admissible evidence, could the jury verdict be impugned.

    [emphasis added]

  566. At p.188 the Review Group noted that it:

    .... does not consider that any fundamental constitutional principle would be infringed by allowing erroneous rulings on law which result in an acquittal to be revisited ....

    [emphasis added]

    Only the trial judge, of course, can make such rulings. From these references it is quite clear that what the Section was intended to capture was “erroneous rulings by a trial judge which result in a judge directed acquittal”, or “erroneous rulings on law which result in an acquittal”, as the Balance in Criminal Law group put it, or “erroneous rulings by a trial judge which resulted in a judge directing acquittal” as the Minister who introduced the measure put it. The emphasis throughout is on erroneous rulings or “wrong” rulings by a trial judge i.e. the judge who presided over the trial which resulted in acquittal. The error or wrongness must be that of the trial judge and no-one else.  

    Construction of Section 23.

  567. The Criminal Law Procedure Act of 2010 does not offer any special definition of the words “erroneous” or cognate words, such as “erroneously”, nor of the term “wrong in law”. This is in no way surprising since the words are ordinary English words offering no great difficulty in definition. In the absence of any special definition they fall to be construed in their ordinary and natural meaning. I believe that the ordinary and natural meaning of “erroneously” and cognate words, is accurately stated in the Oxford English Dictionary (2nd Edition) Clarendon Press Oxford, 1991. This defines “err” in its relevant sense as:

    To go wrong in judgement or opinion; to make mistakes, blunders .... to be incorrect.

    This act of “erring” by s.23 to be that of the trial judge. No-one else.

  568. The term “error” is defined in the same source as:

    The condition of erring in opinion; the holding of mistaken notions or beliefs; an instance of this, a mistaken notion or belief ....

    The same source gives a special definition of the use of the term in a legal context:

    To determine or decide to be erroneous (a decision of a court).

    All of these acts are required by s.23 to be done by the trial judge. No-one else.

  569. The form of the word which appears in the Criminal Procedure Act of 2010, is “erroneously”. It will surprise no-one to learn that this means “in an erroneous manner .... in a misguided manner, otherwise than is the fact; “incorrectly”.

  570. The word “wrong” is of course a very common one. In its relevant sense, it means, according to the dictionary already cited “that has no legal right, title or claim; not legitimate; unlawful”. This meaning is indistinguishable from the statutory phrase “wrong in law”. All the words whose sense or senses are given above are verbs, adjectives or adverbs. The action connoted by the verb “to err” must be done by some person; the adjective “erroneous” must be applied to the action of some person; the adverb “erroneously” must be applied to an act of a person.

  571. When these terms are examined in the context of the first three subsections of s.23 of the Criminal Procedure Act of 2010, it is in my view clear beyond argument who precisely is the person to whose actions the terms “erroneously” or “wrong in law” are applied. The term “erroneously” where it appears in s.23(3)(a) is applied to “a ruling made by a court during the course of a trial .... which erroneously excluded compelling evidence”.

  572. The reference to “a court” is a reference to the Judge presiding at a trial, because the presiding Judge is the only person who can make a ruling excluding evidence. Similarly, the phrase “wrong in law” is applied to:

    A direction given by a court during the course of a trial ...., directing the jury in the trial to find the person not guilty.

    An appeal lies where such direction is “wrong in law”, by reason of an error by the trial judge and not otherwise.

  573. The term “court”, meaning an entity which is entitled to direct a jury to find a person on trial not guilty, can only be a reference to the judge at the trial. It can have no other meaning. No-one else can give such direction.  

    The effect of the foregoing.

  574. It appears to me that both a close verbal analysis of s.23(3), the subsection which creates the “only” circumstances in which an appeal of this kind is possible, and an analysis of the travaux préparatoire confirm the legislative intention, and that each approach leads to precisely the same conclusion. Section 23 is intended to create a right of appeal for the prosecution in the circumstances set out in the Section, and in those circumstances “only”. Those circumstances relate to, and presuppose, an erroneous act. This is not a reference to some theoretical generality of erroneous acts but to an erroneous act by the “court”. There is no doubt, for the reasons given above, that this phrase, “the Court” means the Judge who presides at the trial against whose error the prosecution wish to appeal. The judge’s act, which must be either “erroneous” or “wrong in law”, must be the act either of excluding compelling evidence from the consideration of the jury or, alternatively, the act of giving a direction to acquit, which direction is “wrong in law”. Only a judge can do either of those things, and only the trial judge, in this case Judge Ring.

  575. This is the result which follows from a detailed verbal analysis of the provision. It is absolutely consistent with the statements of the Minister who introduced the Bill which became the Criminal Procedure Act of 2010. The legislative intention was “to capture the recommendation of the balance in Criminal Law Group .... the Review Group recommended that rights should be available in the case of erroneous rulings by a trial judge.

  576. As we have seen, the Review Group at pages 196-98 of the Report recommended the provision of an appeal only on the basis of “an error of law made by a trial judge” or, “erroneous rulings on law”.

  577. This is the scope of the Appeal created by s.23. It provides an appeal against “erroneous” decisions by Circuit Court judges. In the present case there was no such appealable erroneous decision by Judge Ring.  

    Obligation of a trial judge to follow the law.

  578. The former Chief Justice, Finlay C.J., very aptly observed that, in the Irish legal system (as in every Common Law system) there is a hierarchy of courts, though not, he said, a hierarchy of judges. The Supreme Court and the High Court, which are created by the Constitution itself, are Superior Courts. The other ordinary trial courts, the Circuit Court and the District Court are courts of “local and limited jurisdiction”, created by statute. The great majority of the cases dealt with in the Courts of Ireland are dealt with in the Courts of local and limited jurisdiction. In the interest of consistency in the administration of the justice there is a doctrine of precedent which requires that, where a decision of the Superior Courts exists and is directly relevant, a lower court must follow it. I entirely agree with what is said on this topic by Byrne and McCutcheon in The Irish Legal System (5th Ed. 2009), at para. 12.30, under the heading:

    Lower Courts should follow the decisions of higher Courts.
  579. Under this heading, the learned authors say:

    The principal rule is that an inferior court must follow the earlier decision of Superior Courts. Accordingly, the High Court must follow the Supreme Court and the Circuit Court must follow both the High Court and the Supreme Court. The rule is so well settled that it has “seldom been questioned by an Irish Court.

    [emphasis added]

    The learned authors however go on to cite several Irish cases where the rule is affirmed, which it is unnecessary to set out here. The plain fact here is that Judge Ring was bound to follow the relevant decisions of the Superior Courts and, in this particular instance, the Supreme Court. It is clear from the long extract from her judgment above, that she did precisely this and made no error. This appeal simply does not lie.  

    Section 23 Procedure inappropriate.

  580. By reason of the foregoing, I do not believe that an appeal by the prosecution pursuant to s.23 lies at all when no appealable error by the learned trial judge can be shown and where she undoubtedly followed decisions of the Superior Courts. These decisions, indeed, were binding upon her. I believe, for the reasons set out above, that the right of appeal created by s.23 is strictly limited to the circumstances set out there and that that provision requires to be strictly construed. There is absolutely nothing in the wording of the statute, or in the traveaux préparatoires to suggest that the appeal created by the Section can be used for any purpose other than to correct errors by the trial judge or, in particular, that it can be used as an opportunity to revisit, with a view to setting aside, a previous decision of this Court, which has been authoritative for twenty-five years.

  581. Apart from this jurisdictional issue, I do not consider that the procedure under s.23, even if it were available, is a suitable framework within which to address the question whether we should depart from one of our own previous decisions. The jurisdiction is meant to correct errors in law by a trial judge. It is not a suitable jurisdiction in which to address the question of whether, to quote the State submissions “the strict exclusionary Rule of Evidence should no longer form part of Irish Law”. The established criterion for overruling or disregarding a previous decision of the Court is that the Court must be “clearly of opinion that an earlier decision was erroneous”. (A.G. v Ryan’s Car Hire Ltd. [1965] I.R. 642); or be “clearly of opinion that the earlier decision was wrong” (Mogul of Ireland v Tipperary (NR) County Council [1976] IR 260). It is difficult to see how such a conclusion could be reached without proposing an alternative view, which would not be “wrong” of the interpretation of the constitutional provisions relevant to this topic. The narrow statutory scope of the remedy provided by s.23 of the Act of 2010 is quite unsuitable for the devising of a new form of law to substitute for the one which has, up to now, been accepted. The case sought to be overruled, DPP v Kenny [1990] 2 I.R. 110, which is more fully analysed later on in this judgment, proceeded on the basis of an exegesis of the Constitution which, in all material respects, is unchanged since it was considered by our predecessors who adjudicated in DPP v Kenny [1990] 2 I.R. 110, in 1989. This being so, it is not obvious to me how their interpretation of the Constitution can be described as “wrong”. Later in this judgment I address what appears to me to be a rather bleak attempt, in the State’s submissions, to suggest; not that so much that DPP v Kenny [1990] 2 I.R. 110 was wrong when decided, rather that developments since DPP v Kenny, mainly developments affecting policing and the statutory control of An Garda Síochána, may have rendered the protections found to be constitutionally necessary in DPP v Kenny either unnecessary or less necessary. But the main finding in DPP v Kenny, that Article 40 of the Constitution imposes a duty on the judges to vindicate the constitutional rights of the citizens, and that that duty requires the stated action on the part of the judges when a citizen’s constitutional rights are breached, does not appear to me to be capable of attack as being “wrong” or “erroneous”. It is obviously (to use no stronger term) disliked by the public prosecutor but that is a different thing. No evidence or other rational ground for this dislike was advanced, or could be under the s.23 procedure which the State adopted.

  582. This difficulty was recognised in this Court in Hynes O’Sullivan v O’Driscoll [1988] I.R. 436. There, the Court was invited to amend the well established Common Law defence of qualified privilege. The Court refused to do so for a number of reasons, which are set out by Henchy J. at p. 450 of the Report. On the latter page he said:

    .... I am of the opinion that the suggested radical change in the hitherto accepted law should more properly be effected by statute. The public policy which a new formulation of the law would represent should more properly be found by the Law Reform Commission or by those others who are in a position to take a broad perspective as distinct from what is discernable to the tunnel vision imposed by the facts of a single case. That is particularly so in a case like this where the law as to qualified privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name. The articulation of public policy on a matter such as this would seem to be primarily a matter for the legislature.

    This topic will be further discussed below.

  583. For that reason, even if there were jurisdiction to do so in a s.23 appeal, which I find there is not, I would decline to endorse the proposed “radical change in the hitherto accepted law” on this appeal. Still less would I order a new trial of the very counts of which Mr. J.C. has been acquitted, in a new, radically altered, state of the law. I regard this prospect with total abhorrence, as it would negate a “cherished” “constitutional” right of free citizens, enjoyed for centuries, at Common Law, quite apart from the Constitution. It would reduce constitutional rights, which this Court is bound to defend and vindicate, to mere words on a page.

  584. It is of course true that there are circumstances in which the Courts are required, in the exercise of their proper role in the evolution of the Common Law, to develop Common Law principles to meet new surrounding circumstances. As one of my colleagues, Clarke J., has remarked in another case, “contract law which developed in the age of the mounted courier and the telegraph has had to adapt, largely without legislative assistance to the electronic age”. But, he continues “In many cases, law (whether the Common Law or Statute Law), which is outdated, no longer fit for purpose and at odds with developments in science, can only properly be changed by legislation”.

  585. It is plainly necessary for any Common Law judge confronted with the (often very seductive) temptation to change the law in the interests of what he or she perceives to be justice, to be very clear as to the legitimate scope of his ability to do so. Justice Oliver Wendell Holmes was Chief Justice of the General Court of Massachusetts and subsequently for twenty-five years a Justice of the United States Supreme Court. He was the author of a well-known treatise on “The Common Law”. He was a scholar, par excellence of the role of the Common Law judge and in particular of the scope for such a judge to develop or evolve that body of law. In Southern Pacific Company v Jensen 244 US 205(1917), he said in an influential passage at p.221 of the Report:

    I recognise without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say ‘I think the doctrine of consideration a bit of historical nonsense and I shall not enforce it in my court’. No more could a judge exercising the limited jurisdiction of admiralty say ‘I think well of the Common Law Rules of Master and Servant and propose to introduce them here en bloc’.

    We are being asked to dispose of DPP v Kenny [1990] 2 I.R. 110 in the same fashion that Justice Holmes’s was tempted to disapply the doctrine of consideration. Justice Holmes language is in part somewhat unusual. But “molar” means of or relating to a very large body or mass; molecular, on the other hand, connotes an almost infinitely small entity. This passage was adopted in Kleinwort Benson v Lincoln City Council [1999] 2AC 349 at p. 378, by the distinguished English jurist Lord Goff:

    When a judge decides a case which comes before him, he does so on the basis of what he understands the law to be. This he discovers from the applicable statutes, if any, and from precedents drawn from reports of previous judicial decisions .... In the course of deciding the case before him he may, on occasion, develop the Common Law in the perceived interests of justice, though as a general rule he does this ‘only interstitially .... ’ This means not only that he must act within the confines of the doctrine of precedent, but that the change so made must be seen as a development, usually a very modest development, of existing principle and so can take place as a congruent part of the Common Law as a whole. In this process, what Maitland has called ‘the seamless web’ and I myself .... have called the ‘mosaic’ of the Common Law is kept in a constant state of adaptation and repair, the doctrine of precedent, the ‘cement of legal principle’ providing the necessary stability.

  586. It must be very clear that what is proposed in the present case could not possibly be described as an “interstitial” development. This word means pertaining to, forming or occupying interstices, according to the Oxford English Dictionary. An interstice is “an intervening, usually empty, space, especially a relatively small or narrow space, a chink, a crevice”: the modest scope of the power described by this adjective is sufficiently suggested by that definition. What is proposed here is emphatically not something that can be done “within the confines of the doctrine of precedent”; indeed it proposes to set aside what is a modern binding precedent. It is in no sense a development of a “seamless web”; it is a proposal to extract a significant part from that web and replace it with something quite different. What is proposed here is plainly not interstitial in any conceivable sense. It is proposed to set aside a decision of this Court on a matter of high constitutional importance, which has been recognised as authoritative for a quarter of a century. The State’s claim is that the decision “should no longer form part of Irish Law”. This is an invitation to overrule DPP v Kenny [1990] 2 I.R. 110 and then to lay down law in the area left vacant, and to do so without any evidence-based assessment of the experience of DPP v Kenny’s operation. If the Court were to accede to the State’s invitation, it would lapse into illegitimacy.

  587. With great regret, and a deep consciousness of the responsibility I assume in doing so, I must protest that any action of this Court purporting to overturn DPP v Kenny [1990] 2 I.R. 110 would be quite illegitimate. This is firstly because s.23 of the Criminal Procedure Act of 2010 creates no power to do this. Secondly and just as fundamentally, the suggestion that the Court should amend the law of the land so as to ensure that the Exclusionary Rule “should no longer form part of Irish law” is quite inconsistent with the gradualist, minimalist and “interstitial” power of the Common Law judges to develop or evolve the law in light of changing circumstances. The objections are quite apart from the merits or demerits of the State’s claim which are discussed below.

  588. Mr. Justice Clarke, as we have seen, has referred to the need to develop the law of contract, which took its rise in its modern form “in the era of the mounted courier and the telegraph”, in light of the developments of the electronic era. I doubt if the mounted courier and the telegraph co-existed for very long but the mention of the first of these things indicates the great period of time over which this development has taken place. Further, the developments in question are not developments of principle, but developments intended to take account of the fact that communication, once confined to the speed of a rider on horseback, is now virtually instantaneous. But the principles remain the same.

  589. By contrast, what is proposed here is a revolution in principle, an alteration of fundamental decision which is based on exegesis of the Constitution itself. I believe that, for a court to change those principles in a s.23 appeal is quite illegitimate. The legislature may of course enact such a charge, subject to the Constitution or may hold a referendum and invite the people to do so.

  590. We have already seen, in Hynes, O’Sullivan v O’Driscoll [1988] IR 436 that this Court declined an invitation to change the long established Common Law defence to an action for defamation known as qualified privilege on the ground that the suggested change should more properly be effected by Statute. It said that the new public policy which a new formulation of the law would represent should be found by the Law Reform Commission or some other body “in a position to take a broad perspective as distinct from what is discernable to the tunnel vision imposed by the facts of a single case”.

  591. In my view, the above caution applies with all the greater force in an area where the constitutional rights of very many individual citizens are intimately involved.  

    Retrospectivity.

  592. There is another aspect of the jurisdiction claimed by the State in this case which argues against its existence or, if it exists, against its exercise. As we have seen on several occasions the demand of the State is to “overrule” a previous decision of this Court “so that it no longer forms part of Irish law”. The significance of this is very clear and very great. It is a demand to change the law as it was at the time when Mr. C. was tried. This demand was made under a statutory provision which permits, and permits only, an appeal against errors of law by the trial judge. If the law itself can be changed after a trial which resulted in acquittal then it follows that, at the time of the trial, there was no certainty as to what the law might be. If the claimed jurisdiction exists, and is exercised, then Mr. C. will have been forced to trial in an uncertain state of the law and will run the risk of having his acquittal set aside because the law has been changed years afterwards, by this Court. I believe that there is an entitlement in an accused person to know what the law under which he will be tried is before the trial starts. Only thus can he be properly advised as to his position; only thus can he make the tactical decisions which are required of every innocent person charged with a criminal offence. In any event, Mr. C. is not only entitled to know the law; he is presumed to know the law. This presumption and entitlement are made mockeries of if the State can have the law changed while the defendant remains in peril. Unlike the force publique, he cannot rely on his own “inadvertence”. I do not believe that a trial with an incident such as that outlined above is a trial in due course of law or represents due process of law. I do not believe that it is a proper resolution of Mr. C.’s criminal liabilities as envisaged in Article 6 of the European Convention of Human Rights. In Professor O’Malley’s book “The Criminal Process” (Round Hall 2009), on p.157 at par. 5.13, in his exposition of Article 7 of the Convention, he says that it requires, not simply “that only the criminal law may define a crime or prescribe a penalty” but also “that the criminal law must not be extensively construed to an accused person’s detriment”. (Emphasis added) Mr. C. is the accused person in this case. He was acquitted because DPP v Kenny [1990] 2 I.R. 110 was binding on the trial judge. I can think of no more dramatic a form of “extensive construction” of the law than to claim that that case does not, after all, apply and that he is now liable to be retried in a new and different state of the law, as yet unknown. Later in this judgment I shall be considering the American case of Bouie v City of Columbia 378 U.S. 347 (1964). There, a conviction was struck down because of an extensive construction of a law which prohibited entry on the premises after the owner had forbidden it so as to include the act of remaining on premises after the owner had requested departure. This resulted from a Civil Rights demonstration in the Deep South in the early 60s. The construction was not merely “extensive”, it was retrospective and so fell foul of what the Americans call the ex post facto clause. The present purported construction is equally retrospective, with regard both to the original trial and, still more so, to the alleged criminal act, and it is no less extensive. I repeat that this appeal appears to involve the Court in illegitimacy.

    III

  593. 138. The preceding Section of this judgment is concerned with a question of jurisdiction: whether this appeal lies at all or whether, as it is expressed in Attorney General v Kennedy [1946] IR 517, cited above, the purported appeal is incompetent and does not lie. I have concluded that Section 23 of the Criminal Procedure Act of 2010 provides an appeal to the prosecution only against an error of law by a trial judge. But here there is no error of law by the trial judge, Judge Mary Ellen Ring, who followed the law as laid down. Section 23 confers no right of appeal against a twenty-five year old decision of this Court, which is effectively what the State contend that it does.

  594. I now turn to a different but related issue. If the wholly novel jurisdiction invoked by the prosecution actually exists, would a second trial held pursuant to s.23 be a trial “in due course of law” as the Constitution requires (Article 38(1)). No other form of trial is admissible: “no person shall be tried on any criminal charge save in due course of law”. (ibid)

  595. If such a trial would not be a trial in due course of law, we ought not to hold that the jurisdiction to direct it in these circumstances is conferred by s.23. This is a corollary of the presumption of constitutionality enjoyed by the Act of 2010. In The State (Woods) v Attorney General [1969] IR 385 at p. 399, Henchy J. describes this “double construction rule” as a refinement of the presumption and compared our “double construction rule” with the American practice.

  596. In McDonald v Board na gCon [1965] IR 217, at 239, Walsh J. said:

    The Greyhound Industry Act of 1958, being an Act of the Oireachtas, is presumed to be constitutional unless the contrary is clearly established. One practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction.

    [emphasis added] 

    Trial in due course of law.

  597. Trial in due course of law is required by Article 38.1 of the Constitution. But the concept of “due course of law” is both an ancient one and an international one and this has been fully recognised in our cases on the topic. In Conroy v Attorney General [1965] IR 411 at p.415, Kenny J. said:

    I think that s.1 of the Article [Article 38] is an echo of a clause in the Great Charter of Ireland granted in 1216 .... This phrase “due process of law” was adopted by those who drafted the Fifth Amendment to the Constitution of the United States of America which prevents any person being deprived of life liberty or property without due process of law. I think that s.1 of the Article gives a constitutional right to every person to be tried in accordance with the law and in accordance with due course or due process of law.

    [emphasis added]

  598. Similarly, in Goodman International v Hamilton (No. 1) [1992] 2 IR 542 at 609, McCarthy J. said that the language of Article 38.1 was “an echo of the phrase ‘due process of law’ in the Fifth Amendment of the Constitution of the United States” and that for that reason the jurisprudence of the United States was particularly relevant.

  599. In The State (Healy) v Donoghue [1976] IR 325 at p. 335, Gannon J. discussed the phrase “due course of law” as follows:

    [It is] a phrase of very wide import and includes in its scope not merely matters of constitutional and statutory jurisdiction, the range of legislation with respect to criminal offences, and matters of practice and procedure, but also the application of basic principles of justice which are inherent in the proper course of the exercise of the judicial function.

    [emphasis added]

  600. Thus, in Enright v Ireland [2003] 2. I.R. 321 at p. 322 Finlay Geoghegan J. said that one of the rights guaranteed by Article 38 was the right:

    .... only to be punished for a crime in accordance with the law which existed at the date of the commission of the crime.

    [emphasis added]

    There are very few examples in this jurisdiction of an attempt after an acquittal, or after an acquittal had become inevitable, to retry a defendant before a different judge, thus opening the prospect of different rulings on evidence, and no precedent whatever for an attempt at all to do this in a judicially changed state of the law.

  601. The brutal and inherent unfairness in this situation was recognised thirty-seven years ago in The State (O’Callaghan) v O hUadhaigh [1977] IR 42. There, the defendant was brought up for trial in the Central Criminal Court. He entered a special plea in bar of the indictment. After legal argument the trial judge was clearly of the view that only one count of the eight count indictment was properly before the Court. The Director of Public Prosecutions then entered a nolle prosequi in respect of all the counts. The defendant was shortly afterwards re-arrested brought before the District Court, and charged with the same offences. He obtained an absolute Order of Prohibition restraining his trial. In the passages from the judgment of Finlay P. which follow, the defendant, in the language of the Judicial Review or “State side” procedures of the time, is referred to as “the prosecutor”, because he was the moving party in the claim for prohibition.

  602. Finlay P. (as he then was) said at pp. 53 to 54 of the Report:

    If the contention of the [Director] is correct, the prosecutor having undergone that form of trial, and remand awaiting trial, and having succeeded in confining the issues to be tried, would be deprived of all that advantage by the simple operation of a statutory power on the part of the Director of Public Prosecutions. In this way, the prosecutor would have the entire of his remand awaiting trial set at nought and he would have to start afresh to face a criminal prosecution in which the prosecution, by adopting different procedures, could hope to avoid the consequences of the learned trial judge’s view of the law. No such right exists in the accused; if the trial judge makes decisions adverse to the interest of the accused the latter cannot obtain relief from them otherwise by appeal to the Central Criminal Court, or by appeal or review in the case of an inferior court.

    It seems to me that so to interpret the provisions of s.12 of the Act of 1924 [the provision permitting the entry of a nolle prosequi] as to create such an extraordinary imbalance between the rights and powers of the prosecution and those of the accused respectively, and to give the Director such a relative independence from the decision of the Court in any trial, would be to concur in a proposition of law which signally failed to import fairness and fair procedures.

    [emphasis added]

  603. Finlay P. continued at p. 54 by observing that, if the Director’s contention were correct then:

    .... if it appeared likely that a contention of the prosecution would fail, there would be nothing to prevent the Director from entering a nolle prosequi and availing himself of the opportunity in a fresh prosecution, on additional or different evidence, to succeed where he had been about to fail: that situation might arise in a discretionary matter involving a decision of mixed law and fact which falls to be determined by the trial judge rather than by the jury – such as the admissibility of a statement alleged to have been made by an accused. Viewed in this light, the basic unfairness of such a contention appears to me to become clear.

    [emphasis added]

  604. I believe this case to be directly in point here. In The State (O’Callaghan) v O hUadhaigh [1977] IR 42, the prosecution planned to succeed at the second trial by “adopting different procedures”. Here they plan to succeed by changing the law itself. This is to subject Mr. C. to trial on an ex post facto revision of the applicable law, something quite outside the constitutional concept of trial in due course of law.

  605. It appears to me that the proposed use of the nolle prosequi procedure in The State (O’Callaghan) v O hUadhaigh [1977] IR 42 was found to be improper and unfair because it permitted the prosecutor unilaterally to deprive the defendant of an advantage he had obtained in litigation. Accordingly it was not permissible in a trial conducted “in due course of law”. What is attempted here is considerably more radical.

  606. The Courts have long held that retrospective or, to mention the phrase more common in the American cases, ex post facto law, cannot ground a prosecution. This is by reason of Article 15.5.1 of the Constitution.

  607. This Article was described in Magee v Culligan [1992] I.R. 223 at p. 272, [1992] I.L.R.M. 186 at p. 190 as constituting:

    .... an expressed and unambiguous prohibition against the enactment of retrospective laws declaring acts to be an infringement of the law, whether of the Civil or the Criminal law.

    Thus, in Doyle v An Taoiseach [1986] ILRM 693 at p.715 a levy on the proceeds of the sale of live cattle was introduced in 1979. Section 79 of the Finance Act, 1980 purported to confirm the validity of those levies. The Supreme Court held that if s.79 was held to have retrospective effect it would be to that extent unconstitutional. This was so, according to Henchy J. at p.715, because it would have the effect:

    .... of making, ex post facto, non-payment of the levy in 1979 an infringement of the law. Such a result would make s.79 invalid having regard to Article 15.5 of the Constitution.

    The Section was therefore treated as being prospective only in its effect. But the Article is silent as to judicial decisions which interpret or lay down the law, and whether or not they can have retrospective effect. In any view they can not. In the American case of Bouie v City of Columbia 378 U.S. 347 (1964), the United States Supreme Court recognised that ex post facto restrictions apply, through the Due Process Clause, not merely to the legislators but to the judges when they are interpreting criminal statutes. There, at the height of the civil rights era, two black Americans staged a protest – a sit in – in a branch of a shop which served black people in every department except the restaurant. This happened in Columbia, South Carolina. They were prosecuted under a South Carolina law which made it unlawful to enter on premises if one had been prohibited from doing so by the owner. This law was found in par. 16 – 382 of the South Carolina Code of 1960. But the two black men had not been prohibited from entering the premises: they had merely been asked to leave after a lawful entry. The trial court, and later the South Carolina Supreme Court, in an entirely novel view of the law, held that the statute or code extended to failing to leave premises after one had been asked to do so, as well as to entering after prohibition. But the Statute did not say so on its face. The Supreme Court of the United States set the convictions aside holding at p. 353 that (378 U.S. 347,353):

    If a State legislature is bound by the ex post facto clause from passing an ex post facto law, it must follow that the State’s Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.

    [emphasis added]

    I believe that this entirely logical conclusion applies in this jurisdiction as well. If that is so, then the purported setting aside of the acquittal of Mr. C. and any retrial in a new state of the law would clearly be void as being held under ex post facto, that is retrospective, law.

  608. The US Supreme Court in Bouie v City of Columbia 378 U.S. 347, 354 (1964), held that a judicial interpretation of a criminal statute may not be given retroactive effect “If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue’.” See also Hall, General Principles of Criminal Law (2d ed. 1960 at 58-59) cited in the US Supreme Court report, 378 U.S. 347, 354 (1964).

  609. The principle enunciated in Bouie v City of Columbia 378 U.S. 347(1964) is by no means confined to the interpretation of criminal statutes. The US Supreme Court (378 U.S. 347, 355 (1964)), also cited Brinkerhof-Faris Trust and Savings Company v Hill 281 U.S. 673 (1930). This was a case relating to taxation on a disposal of shares. Under the established judge made law of Missouri, an action in equity to restrain collection of a tax was the appropriate and only remedy “against a discriminating State tax violative of the Equal Protection Clause of the 14th Amendment of the US Constitution” ” (281 U.S. 673, 678(1930)). The State Supreme Court, overruling earlier decisions, denied that remedy on the ground that the party seeking it should first have exhausted an administrative remedy which, under the previous law, was never open to him. The judgment was found by the Supreme Court to violate due process of law in its primary sense of an opportunity to be heard in defence of one’s substantive right

  610. Justice Brandeis gave the judgment of the Supreme Court and held at pp 679 to 680:

    If the result above stated were attained by an exercise of the State’s legislative power, the transgression of the due process clause of the 14th Amendment would be obvious .... The violation is nonetheless clear when that result is accomplished by the State judiciary in the course of construing an otherwise valid State statute. The federal guarantee of due process extends to State action through its judicial as well as through its legislative, executive or administrative branch of government .... [w]hether acting through its judiciary or through its legislature, a State may not deprive a person of all existing remedies for the enforcement of a right, which the State has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it.

    [emphasis added]

  611. What was in issue in the last mentioned case was a procedural change in civil litigation, not a new interpretation of a criminal statute. The position in Bouie v City of Columbia 378 U.S. 347(1964), since it related to criminal statute, was a fortiori. The position in the present case, where what is proposed is the setting aside of a lawful acquittal and re-trial after the abolition of a constitutionally grounded right to the exclusion of evidence obtained by a deliberate and conscious act in breach of the Constitution, represents a stronger case still. The Oireachtas could not order Mr. C. retried under a new and retrospective law. Neither can this Court.

    IV

  612. 157. At paragraphs 45 to 48 of the appellant’s (that is, the States) submission there are a number of statements which are not entirely easy to understand. Very significantly, para. 46 consists in its entirety of the following statement:

    It is also of note that in the years since delivery of the judgment in Kenny, there have been a number of significant changes in the legal and regulatory landscape in respect of An Garda Síochána, including the video taping of interviews, the establishment of the Garda Síochána Ombudsman Commission, the introduction of new garda disciplinary regulations and the detailed statutory regulation of An Garda Síochána in the Garda Síochána Act, 2005.

    [emphasis added]

    These statements, so to speak, are left hanging. It is clear that the appellant thinks that changes since the delivery of the judgment in DPP v Kenny [1990] 2 I.R. 110 are relevant in the present case as well as simply being “also of note”. However, the nature of that relevance is left unstated, though perhaps not difficult to infer. Is the appellant contending that changes since 1990 in some way make the protection of constitutional rights set out in DPP v Kenny [1990] 2 I.R. 110 unnecessary; that the need for such protection has been rendered otiose by such developments?. If so, one would have thought that would have been said expressly. If not, it is difficult to know what relevance the changes mentioned have in the context of the present case. Is the appellant contending that the mere enactment of legislation or the establishment, for example, of the Garda Síochána Ombudsman Commission is relevant, or is the Court being invited to consider the efficacy of that body? In the penultimate sentence of the previous paragraph of its submissions, para. 45, the appellant contends that “there are many ways of vindicating the right to inviolability of the dwelling and to ensure that search warrants are correctly completed”.

  613. The first observation which it is important to make about contentions such as these is that they underline the fact that this s.23 procedure, providing for appeals against errors of law by a trial judge, are quite inappropriate to the assessment of arguments based on changes since 1990, or based on the availability of other equally effective methods of vindicating constitutional rights. As appears from the citation of Hynes-O’Sullivan v O’Driscoll [1988] I.R. 436 elsewhere in this judgment, arguments such as these are more appropriate to a parliamentary forum, or to a body such as the Law Reform Commission than to a court whose scope for intervention is limited to the correction of an error of law in a particular trial.

  614. But since arguments of this sort, the sort mentioned in para. 46 of the State submissions have been raised by the State appellant in this case, I must make it as clear as I can that I emphatically disagree with them.

  615. Since this matter has been raised by the appellant I have to make it clear that I do not consider that any changes, legal or otherwise, have taken place over the last twenty-five years which would make it desirable, or even safe, to make the change which the present appeal is designed to bring about. On the contrary, there have, during that time, been a considerable number of deeply disturbing developments both in relation to the Garda Síochána itself and to the arrangements for its oversight. These have been expressly acknowledged in impressive and authoritative sources, as will be seen.

  616. In the period in question there have been two Tribunals of Inquiry, each presided over by an eminent member of the judiciary, which have each reported in a profoundly disturbing manner, quite inconsistent with the submission at para. 46. The first report of the Morris Tribunal, published in 2004 (there were successive reports over the following years) related to bogus explosive finds by gardaí in County Donegal. The report observed, at p.448, that garda culture:

    .... generally militates against open and transparent cooperation with investigations both internal and external and manifests itself in a policy of ‘don’t hang your own’.

    This was said in a context of Gardaí “planting” explosives and then “finding” them.

  617. This last phrase quoted “don’t hang your own” came from evidence to the Tribunal by Garda Martin Leonard, a Garda Representative Association official, at p.448 of the report:

    It is the nature of the gardaí, we don’t name the names – we don’t want to get anybody into trouble in the Garda Síochána internal matters .... we do our best to make sure – we are not going to be hanging our people.

  618. Almost ten years later, in December 2013, the report of the Smithwick Tribunal stated:

    I regret to say .... that there prevails in An Garda Síochána today a prioritisation of the protection of the good name of the force over the protection of those who seek to tell the truth. Loyalty is prized above honesty.

    “The Wall of Silence”

  619. The several very detailed reports of the Morris Tribunal show why the very strong words quoted above were used. In the Morris Report “On the detention of suspects following the death of the late Richard Barron and related issues”, the Tribunal reported ((Vol. 3, p.1241, para. 16.01):

    .... the Tribunal was faced with gardaí who were determined to hide the truth of what happened. They made statements to their superiors which were in many instances minimalist in their detail and failed to give a fully truthful account; in a number of instances the statements were a complete fabrication. It was disturbing to find a deep seated reluctance to concede that a colleague had acted incorrectly or wrongfully or that the complaints made by the detainees were true – the wall of silence was maintained. Unfortunately this approach extended to and was encouraged by senior officers in this investigation and in the overall approach adopted by An Garda Síochána to external complaints. The Tribunal, however, was able to break through the wall of silence on occasion, sometimes with the assistance of gardaí who eventually admitted wrongdoing and on other occasions by persistent hammering on the wall.

    [emphasis added]

  620. Nor were the problems confined to Donegal:

    The deficiencies observed by the Tribunal in the manner in which An Garda Síochána acted in these matters, by their nature, are not peculiar to Donegal. Issues of accountability, tunnel vision, the proper investigation of offences, the treatment of persons in custody, and response to the leadership of criminal investigations, are all issues related to general policing. The deficiencies in these issues must be addressed throughout the force and at all levels within An Garda Síochána.

    [emphasis added]

  621. Subsequently, at pages 1254 – 1255, para. 16.33, it was stated:

    The Tribunal has already referred to the ‘wall of silence’ that has been experienced in dealing with policemen at home and abroad when they are faced with allegations of misconduct. This may be viewed with the other phenomenon of ‘garda speak’ which the Tribunal has encountered over the last number of years, and an understanding by gardaí that they are expected only to give the minimum amount of detail in respect of any controversy in which the gardaí are involved.

    [emphasis added]

  622. The Tribunal went on, in the same place, to consider the consequences of this for the State itself at p.1255:

    The State must act honourably and honestly in its dealing with plaintiffs in these circumstances. It cannot do so if it is told lies and half truths by the gardaí. This must stop. Senior officers in An Garda Síochána must show leadership in this regard. The difficulties are linked to difficulties faced by ‘whistle blowers’ who wish to tell the truth but fear the consequences from their colleagues or for their careers.

    [emphasis added]

  623. This section of the report ended with the statement that “It is regrettable that such a basic proposition in relation to telling the truth should have to be spelt out in this way”.

    .... proper discipline has been lost from An Garda Síochána.

  624. The fifth report of the Morris Tribunal also reported on the arrest and detention of seven persons at Burnfoot, Co. Donegal and said, at p.252, para. 6.05:

    It is obvious that for the security of the State and for the security of its citizens, there must be an effective police force. In the Tribunal’s opinion, what has been lost sight of is that police work requires the safeguard of strict internal discipline. An Garda Síochána cannot be compared in industrial relations terms, or in terms of its internal accounting, to a business .... In the Tribunal’s opinion, proper discipline has been lost from An Garda Síochána. Without a managing structure being restored to the gardaí based on strict compliance with orders, and immediate accountability, the danger is extreme that what the Tribunal has reported on in Donegal will be repeated; and such conduct will multiply if allowed to go unchecked.

    [emphasis added]

  625. At p. 254, para. 6.09 the Tribunal stated:

    The Tribunal has been staggered by the amount of indiscipline and insubordination it has found in the garda force. There is a small, but disproportionately influential, core of mischief making members who will not obey orders, who will not follow procedures, who will not tell the truth and have no respect for their officers ....

    Garda [name redacted], for example, was able to act almost at will: applying to arrest a colleague in an investigation in which he was not involved, not wearing his uniform, lying at will, and continuing testing the waters as to the vulnerability of his colleagues. The behaviour of Sergeant [name redacted] Garda [name redacted] and Detective Sergeant [name redacted] in all of this beggars belief; and yet it happened. In the course of a tribunal hearing that was so much extended by their dissimulation, the Tribunal was used as a sounding board for deceit in the hope that it would be inveigled into believing lies.

    [emphasis added]

  626. The report of the Smithwick Tribunal is just one year old. It is clear from the quotation from it given above that part of its significance is that it clearly demonstrates that there was little or no change in what the Morris Tribunal called “Garda culture” in the intervening period between the two reports. This impression is considerably strengthened by the detail of the latter Tribunal’s findings. For example, the reader will find the following at p.154, para. 10.6.11; of the Smithwick report:-

    Tom Curran retired as a senior officer of An Garda Síochána, and he struck me as an officer of the utmost integrity. I would have thought he is as deserving of the support of the Garda Commissioner as any other former officer. However, it seems to me that because he was giving evidence of which An Garda Síochána did not approve, such support was not forthcoming. I regret to say that this suggests to me that there prevails in An Garda Síochána today a prioritisation of the perfection of the good name of the force over the protection of those who seek to tell the truth. Loyalty is prized above honesty. My life experience tells me that such a culture is not unique to An Garda Síochána; all large organisations have to struggle with this issue. However, given that I have already concluded that political expediency and the prioritisation of the good name of the force contributed to suggestions of collusion in these killings not being properly investigated when they first arose, the fact that such a culture and attitude is still prevalent now, more than twenty years on, in the context of the work of this Tribunal, is disheartening and depressing.

    [emphasis added]

  627. At p.159, para. 11.2.11, the Smithwick Tribunal reported:

    I am drawn to the conclusion that a number of the garda witnesses before this Tribunal, including former and current senior gardaí were not fully forthcoming in their evidence to me ....I accept that any individual witness may not recall, or for some reason may never have encountered, the unease to which I have referred; the evidence of any one individual witness may therefore be truthful. What I find difficult to accept, what I cannot accept, is that so many of the garda witnesses from whom I have heard do not recall or have never encountered such unease. Regrettably, this suggests that there is an ingrained culture of prioritising loyalty to the good name of the force over the legal, moral, and ethical obligation owed to give truthful evidence to this Tribunal.

    [emphasis added]

    A summary.

  628. In the Morris Tribunal’s report on “the investigation into the death of Richard Barron and the Extortion calls to Michael and Charlotte Peoples” published 1st June, 2005, the Tribunal recalled that more than ten years had passed since its first enquiry, on bogus explosive finds. The Tribunal held that anybody who read all of its intervening reports would realise “that it has happened again”. The Tribunal concluded, at para. 9.03, pp. 597 to 598:

    The combination of gross negligence at senior level, amounting to the criminal negligence standard in law, and the lack of objectivity and corruption at levels lower than that, caused the scandalous situation to arise that has been detailed in this further report.

  629. In the following paragraph the Tribunal concluded at p. 598, par. 9.04 that:

    In common with the situation uncovered in 1993/1994, the situation through 1996 to 1998 shows appalling management coupled with the manipulation of facts and circumstances in order to present to Garda Headquarters, and to the world at large, an untruthful appearance of honesty and integrity in the Donegal Garda Division. The Tribunal reiterates that it has been lied to repeatedly by former, and serving, garda officers.

    [emphasis added]

  630. In the paragraph following that, par. 9.05, the Tribunal concludes that:

    It has been all too easy for the highest structure of An Garda Síochána to be hoodwinked and misled. In setting up enquiries in an attempt to discover the truth, Garda Headquarters has also been obstructed and lied to. It is obvious that where a situation reaches a point where wrongdoing has become hardened into a habit in certain sections of An Garda Síochána that people are not only unlikely to own up it, they are positively likely to lie about it.

    [emphasis added]

  631. With regard to the atmosphere within the Garda Síochána itself, the Tribunal concluded, at pp.612 to 613, para. 9.36:

    The Tribunal has noted with dismay the obvious reserve, amounting almost to hostility with which members of the gardaí that hold the rank of Sergeant and Garda display towards their superior officers.

  632. The Tribunal went on, in the following paragraph (par 9.37) to find:

    At first, it was hoped that this attitude was indigenous to the Donegal division; and perhaps only to a small section of that division towards specific officers. However, in evidence, and when submissions were made on behalf of some bodies representing sections of the Gardaí, it became apparent that this was not the case. Assuming that these submissions represent the attitude of members of the force of those ranks, then it would appear that there does not remain within the force any proper sense of loyalty or support for higher ranking officers.

    [emphasis added]

    Every single one of the events considered by the Enquiries mentioned took place since DPP v Kenny [1990] 2 I.R. 110 was decided.

    The Shortt case – “A pot of iniquity”.

  633. The case of DPP v Frank Shortt, [2002] 2 I.R. 696 and Shortt v Commissioner of An Garda Suiochána [2007] IESC, [2007] 4 I.R. 587 [2007] 3 J.I.C. 2102, which came before the Court of Criminal Appeal in 2002 and the Supreme Court, by way of appeal against the High Court’s assessment of the damages due to Mr. Shortt, in 2007, was an appalling example of a deliberate garda conspiracy to perjure an innocent man into prison for no better reason than to enhance the careers of certain gardaí. The President of the High Court (Finnegan P.), held that ([2005] IEHC 311):

    The plaintiff was sacrificed in order to assist the career ambitions of a number of members of the Garda Síochána.

    On the face of it, Mr. Frank Shortt seemed an unlikely victim of a garda conspiracy. At the time when the gardaí succeeded, by perjured evidence, in having sentenced to three years imprisonment, he was a 60 year old chartered accountant and businessman. He was a Fellow of the Institute of Chartered Accountants. He was a married man, the father of five children. What happened to him is aptly summarised in the judgment of Chief Justice Murray of the 21st March, 2007([2007] IESC 9, [2007] 4 I.R. 587 at pp. 591 to 592):

    The plaintiff, Mr. Shortt, has been the victim of disreputable conduct and a shocking abuse of power on the part of two garda officers, namely a superintendent and a Detective Garda. They both engaged in a conspiracy to concoct false evidence against the plaintiff which in turn resulted in perjured garda evidence being given at his trial for allegedly permitting drugs to be sold in his licensed premises in Co. Donegal in 1992. That perjury procured his conviction by a jury. What followed as a consequence for the plaintiff was a tormenting saga of imprisonment, mental and physical deterioration, estrangement from family, loss of business, public and professional ignominy and despair. Furthermore, as the learned High Court Judge put it, “the plaintiff was sacrificed to assist the career ambitions of a number of members of the Garda Síochána”.

    Despite the injustice of his situation he finally obtained an order setting aside his conviction from the Court of Criminal Appeal .... when the DPP, for reasons that were never disclosed to that Court, consented to such an order. Finally, in July 2002, the Court of Criminal Appeal certified that he had been the subject of a miscarriage of justice ....

    Unfortunately, the conduct of the garda officers before during and following the trial and the associated circumstances cannot but reflect negatively on the Garda Síochána ....

    Unfortunately, as experience in this country and other countries demonstrate, departures, sometimes the gravest of deviations, from normal standards of conduct and professionalism occur in police forces. Left unchecked there is always a risk that low standards will infect elements of such a force.

    [emphasis added]

    [The learned Chief Justice then referred to the Morris Reports, much quoted above in this judgment]. He then continued at p. 593:

    The conduct of those two members probably constitutes the gravest dereliction of duty and abuse of power that one could ever fearfully contemplate would be engaged in by servants of the State and officers of law and order. Partly, but by no means solely, because they have sullied the reputation of the Garda Síochána the gravest view must be taken of their conduct.

    This affair is regrettably a stain of the darkest dye on the otherwise generally fine tradition of the institution of An Garda Síochána. The facts and circumstances are a pot of iniquity which may be seen by some as reflecting on the Garda Síochána as a whole much to the potential demoralisation of upstanding members of the force which constitute the vast majority. Such a broad conclusion would be an unwarranted and disproportionate response to this affair however badly it may be viewed ....

    However, this affair cannot be bracketed as a couple of bad apples in the proverbial barrel. The misconduct penetrated the system of law enforcement too deeply and persisted over too long a period to be discounted in such a fashion. Concrete independent evidence of the wrongful conspiracy against Mr. Shortt only emerged in the course of an official garda investigation into affairs in Donegal. The matters concerning Mr. Shortt may only have been a rather small part of that investigation but the lack of immediacy or action in response to the evidence which emerged concerning his trial does raise questions as to whether there is some complacency at different levels in An Garda Síochána with regard to the exacting standards of integrity which must at all times be observed by its members. The cavalier manner in which those two members set about concocting evidence and subsequently persisted in trying to cover up their misdeeds, not entirely out of sight of other garda members, displayed a worrying confidence on their part that they could get away with it.

    [emphasis added]

    I have cited from the judgment of Chief Justice Murray at some length in order to emphasise the truly appalling nature of what happened to Mr. Frank Shortt. He was regarded by the gardaí involved as a worthless pawn whose life could be ruined with impunity in order to enhance their careers. He was eventually awarded the sum of €4,623,871.00 (four million, six-hundred and twenty-three thousand eight hundred and seventy-one Euros as damages against the State defendants. It was not a penny too much for several years in jail, a ruined business, a shattered career, gross stigmatisation, a damaged family life, and poverty which, due to age, he could have never hoped to remedy and above all for cynical perjury. In his judgment, Chief Justice Murray was keen to emphasise that the very great majority of members of the Garda Síochána are upright people, that not the least serious aspect of the activities of those gardaí who perjured Mr. Shortt into prison was the damage they inflicted on the reputation of the Garda Síochána itself; and that it would be wrong to conclude that such conduct is widespread or even current at all in the Gardaí Síochána as a whole. I hope this is true but am concerned about the “disproportionately influential” minority who ensure that a “wall of silence” is maintained and that “proper discipline” has been lost from An Garda Síochána. (see par. 125) I entirely agree that the numbers of gardaí, whether of garda rank or superintendent rank, who would deliberately connive at organised perjury is small indeed. What is worrying about this case, as well as others, is that no steps were taken from within the Garda Síochána, or from within the broader State structures, to remedy the grave wrong done to Mr. Shortt. As Murray C.J. said at p. 593, what the principle gardaí involved in did was done “not entirely out of the sight” of other gardaí. This is the most worrying aspect. The full details of what was done in the Shortt case are set out in the judgment of the Court of Criminal Appeal dated the 31st day of July, 2002 and reported at [2002] 2 I.R. 696. No doubt for reasons of space, the version in the Irish Reports does not replicate the full detail of the judgment and anyone seriously interested in the subject would be well advised to consult the original judgment, available from the Court of Appeal Office. For present purposes the salient features of the case itself are:

    1. It was frankly admitted by the State on the application by Mr. Shortt to have his conviction declared a miscarriage of justice that, at the time he was sent forward for trial, there was not, on the statements and other papers presented to the District Court, a sufficient case to put Mr. Shortt on trial.

    2. The guard who was directly responsible for the perjured evidence, Detective Garda Noel McMahon, stated that his understanding was that there was a “semi deal” whereby Mr. Shortt would plead guilty to one count, receive a fine and that would be the end of the matter. Incredibly, Detective McMahon blamed Mr. Shortt’s legal advisers for exposing a man of his age to a prison sentence by not accepting this “semi deal”, by pleading guilty to a crime of which he was innocent.

    3. Notwithstanding the absence of sufficient evidence Mr. Shortt was in fact sent forward for trial.

    4. In the run up to the trial on indictment (which was transferred to Dublin, at the State’s request), a number of gardaí, including the Superintendent, worked at improving Detective Garda McMahon’s statement of evidence. The Superintendent wrote in his own handwriting on the draft statement various suggestions or instructions for changes, absolutely without regard to whether or not they were true.

    5. It was a marked feature of the case that the Garda and the Superintendent were in fear of each other because each knew that the other had information which could destroy his career. The Garda kept the original version of his statement as altered by the Superintendent and told his wife that giving him the statement with the handwriting on it was the most stupid thing the Superintendent had ever done.

    6. Apart from the misdeeds, only some of which were acknowledged, by various gardaí, the other organs of the State emerge with no credit whatever from the DPP v Shortt (No 2) [2002] 2 I.R. 696 case. When the unfortunate victim of the conspiracy was lodged in jail he suffered a collapse, both mental and physical. While he was incarcerated his wife had to be hospitalised for emergency treatment. His family were left in the care of a teenager. He applied for compassionate leave from prison which was granted regularly to serious criminals, but it was refused, apparently on the recommendation of the Superintendent.

    7. Also while Mr. Shortt was incarcerated, he was made an offer apparently with the authority of the Minister for Justice. This was that he would be immediately transferred to an open prison and shortly thereafter released altogether. But this would take place only if he dropped his appeal. This was described in the evidence of Mr. Shortt in his High Court proceedings as follows, as recorded by the judge in Shortt v Commissioner of An Garda Siochána [2005] IEHC 311:

      In October 1995 his appeal was pending and a proposal was communicated to him. If he should drop his appeal the State would not proceed on six outstanding charges pending against him and he would be transferred to an open prison and shortly thereafter released to join his family. He did not accept the offer. At this time also the six outstanding charges were proceeding. By this stage he had lost some two and a half stone in weight, he attributed to stress anxiety and depression.

    8. In the plaintiff’s wife’s evidence she said that in the course of her visits to the plaintiff in prison she saw him deteriorate to the point “where he was an old man and like a zombie”. She said she did not think he would survive his prison term. When released from prison the plaintiff was in good form but later went into another state of depression as he was too old to go and look for a job. He had no income and no prospects. His sole income was disability allowance.

    9. Commenting on the plaintiff’s evidence just cited Murray C.J. said in Shortt v Commissioner of An Garda Siochána [2007] IESC 9, [2007] 4 I.R. 587 at 603:

      This is but one of the particularly nefarious aspects of the case. The prospect of early release was dangled in front of the plaintiff when he was most vulnerable and open to emotional blackmail. The intent can only have been to avoid any further judicial scrutiny of the case by pressuring the plaintiff to accept the finding of guilt in return for some sort of ‘deal’.

    10. In fairness, I should imagine that the Minister for Justice was advised that such a condition for early release was a normal one, or at least a justifiable one in the circumstances of Mr. Shortt’s case. But who so advised her?

    11. The State authorities opposed Mr. Shortt’s attempts to quash his conviction until quite suddenly, and without giving any reason, they consented to the conviction being quashed. This was in 2002, ten years since the gardaí first became involved in his life and seven years after he went to prison. The ordeal would last another five years.

    12. The State then opposed tooth and nail over a period of seventeen days in the Court of Criminal Appeal, Mr. Shortt’s application to have his conviction declared a miscarriage of justice. This too involved the concealment, and the non-production to the Court, of vital documentation discovered only during the hearing and when further concealment would have been useless.

    13. The State authorities contested Mr. Shortt’s application for damages and when he appealed to the High Court assessment, resisted that appeal in the Supreme Court. Very memorably, the State sought to minimise the damages by urging the Court to consider what sort of property Mr. Shortt could buy in Donegal with the amount awarded and specifically urged on the Court to remember that property was much cheaper in Donegal than elsewhere. In fairness, this submission was withdrawn the following day. But it was made, on the State’s instructions.

    14. The Shortt case, [2005] IEHC 311, [2007] IESC 9, [2002] 2 I.R. 696, might be regarded as having had a happy ending. But Mr. Shortt should never have been put on trial in the first place. It must be recorded, to the discredit, not simply of the gardaí but of the State itself, that his application to have his conviction deemed a miscarriage of justice – a perfectly normal request for an innocent man who had been perjured into prison – was resisted from start to finish.

    15. There is nothing in the tortuous history of the Shortt case, [2005] IEHC 311, [2007] IESC 9, [2002] 2 I.R. 696, which, even in its purely legal aspects, went on for fifteen years, to suggest that, since the handing down of the DPP v Kenny [1990] 2 I.R. 110 decision in 1990, there is less need for the protections which, up to the present day, that decision affords the ordinary citizen.

    New Enquiries.

  634. The Smithwick Tribunal reported in December 2013. On the 27th February, 2014, the Taoiseach, further to a decision of the government, asked Mr. Seán Guerin S.C. to hold a review into allegations made by Garda Sergeant Maurice McCabe and related matters. Mr. Guerin’s terms of reference required him to conduct an independent review and to undertake a thorough examination “of the action taken by An Garda Síochána pertaining to certain allegations of grave deficiencies in the investigation and prosecution of crimes, in the County of Cavan and elsewhere made by Sergeant McCabe and specified in a dossier compiled by him and furnished to An Taoiseach on the 19th February, 2014 and in a letter ‘understood to be from Sergeant McCabe’ dated 23rd January, 2012, part of which was furnished to An Taoiseach on the 21st day of February, 2014”.

  635. Mr. Guerin S.C. concluded, at p.331, par. 20.12 that:

    Having regard to the number, range and importance of the issues arising, it is desirable in the public interest that a comprehensive Commission of Investigation be established pursuant to the Commissions of Investigation Act 2004 to investigate the issues that remain unresolved arising out of the complaints made by Sergeant Maurice McCabe. Such a commission is, in my opinion, desirable in the public interest to ensure continuing confidence in the institution of An Garda Síochána and the criminal justice system.

  636. Mr. Guerin S.C. went on, at p. 332, to recommend thirteen specific topics which required investigation by the Commission.  

    “Not fit for purpose”.

  637. Following this, Dr. Varadkar, a member of the Government which is collectively responsible for policing, strongly criticised the Department of Justice for its failure to scrutinise the information passed to it by An Garda Síochána. The Minister said, on the 12th May, 2014:

    The Department of Justice is not fit for purpose. They accepted what the gardaí told them.

    [emphasis added]

  638. The Minister then observed, of the Government as a whole:

    The Government does get this. We do know there is a big problem with the gardaí and the justice system.

    [emphasis added]

  639. He went on to describe the Garda Síochána Ombudsman Commission, specifically mentioned in the appellant’s submissions in this case, apparently as a reassuring factor:

    GSOC is a toothless dog if ever there was one and they will admit that themselves.

    [emphasis added]

    It will be remembered that the existence of the Garda Síochána Ombudsman Commission was one of the specific reasons mentioned in the Public Prosecutor’s submissions in the present case said to favour the granting of the relief the State seeks in these proceedings. That submission is absolutely at variance with significant material quoted above and below.  

    “Fortress Garda”

  640. While this judgment was being drafted, on the 2nd October, 2014, there was published in the Irish Times on line an interview with Mr. Conor Brady, former editor of The Garda Review and of the Irish Times itself, and author of a history of the gardaí, Guardians of the Peace. Mr. Brady was one of the founding Commissioners of GSOC and the interview records that “his disillusionment is deep”. He said:

    The process for our appointment was even more rigorous than that applying to judges. We could only be removed by a vote of the two Houses for stated misbehaviour. We were appointed at the highest level that is within the State’s capacity to give. But I just could not move the rock. You could not get into Fortress Garda.

    [emphasis added]

    In light of comments such as these, it is very hard to know how, precisely, the State consider that the creation of a “toothless dog” which cannot “get into Fortress Garda” is any form of reassurance or comfort when the Court is asked to set aside one of its own previous decisions and thereby considerably reduce judicial control of unconstitutional forms of evidence gathering.

  641. Subsequent to Mr. Guerin S.C.’s report, by statement published on the 8th April, 2014, the government announced the terms of reference for a Commission of Investigation to be conducted by Mr. Justice Fennelly. According to this, the Commission is to investigate:

    The operation of telephone recording systems to record calls to and from garda stations other than 999 calls to the Emergency Call Answering Service, at a large number of garda stations over many years,

    The garda investigation into the death of Ms. Sophie Toscan Du Plantier in County Cork in December 1996,

    How these matters were dealt with by the appropriate authorities and

    The sequence of events leading up to the retirement of the former Garda Commissioner in March 2014.

  642. The Statement goes on to set out further details of what is to be enquired into including:

    Whether any information obtained from the said telephone recording systems by An Garda Síochána was used by it either improperly or unlawfully and, in particular, whether any recordings as may have been made by An Garda Síochána of solicitor/client telephone conversations were used for any purpose whatsoever.

  643. Also included in the list of matters required to be investigated is:

    .... the furnishing to the Minister [for Justice] of a letter dated 10th March, 2014 sent by the former Garda Commissioner, Mr. Martin Callinan, to the Secretary General of the Department of Justice and Equality.

  644. It is therefore clear, that there are now, and have been for many years, serious questions as to the veracity in certain circumstances of a small but “disproportionally influential” number of members of An Garda Síochána. There is the important issue of whether, indeed, discipline and control within the Forces has eroded to the alarming degree badly stated in the report of the Morris Tribunal and whether it is indeed true that, within the Force, loyalty to other members of the Force is prized above honesty.

    Most serious of all, is there “a wall of silence” in the Gardaí, as Judge Morris found, and is it true, as he also found, that “proper discipline been lost from An Garda Síochána”, so that there is an “extreme danger” that what the Tribunal reported on in Donegal will be repeated.

  645. Quite apart from the reports of the two Tribunals mentioned, there have in very recent days been a number of new and contemporary controversies affecting An Garda Síochána. Many of these arise from the revelations or allegations of a whistle blower, Sergeant Maurice McCabe. It is no exaggeration to say that, in the course of this last calendar year, Sergeant McCabe has become a household name. There have been demands from the Garda Representative Association that these allegations should be resolved by an independent body as soon as possible because of the reputational damage that gardaí are incurring. There has been much public debate as to whether an independent garda authority should be established to oversee the Gardaí and this matter does not appear to have been finally been decided upon as yet.

  646. All in all, in the words of the Government Minister quoted above “The Government do get this. We do know there is a big problem with the gardaí and the justice system”.  

    The Toland Report – “a deferential relationship”.

  647. There has been some official reaction to the Morris Report though whether it has gone so far as to make a practical difference to a person suspected of, or charged with, a criminal offence, has yet to be seen. But on 3rd June, 2014 the Minister for Justice, Francis Fitzgerald T.D., who was then newly appointed, established an Independent Review Group to look into the “performance, management and administration of the Department of Justice”. This was done, according to the report of the group, in light of the concerns identified “particularly” in the report of Mr. Seán Guerin S.C. The members of the Independent Review Group consisted of Chairman, Mr. Toland, Chief Executive of the Dublin Airport Authority and a former Chief Executive of Glanbia USA. The other members consisted of a former Attorney General and EU Commissioner; a management consultant, the Chief of Police of Seattle, Washington U.S.A.; an accountant and management consultant; and a former Secretary General of the Department of the Environment. The group concluded on p.20:

    Regarding the role, responsibilities and capabilities of the Department, including concerns in respect of the governance and oversight of external organisations identified particularly in the report of Mr. Guerin S.C., the review group believes that there is a lack of governance with respect to external agencies and bodies. The Department fulfils its statutory obligations but does not hold agencies to account or have real management oversight.

    [emphasis added]

    The “External Agencies” referred to include the Garda Síochána.

  648. Commenting specifically on the Department’s statutory role in relation to the gardaí, the group reported at para. 8(c) on p.10:

    The 2005 Garda Síochána Act was intended to reinforce and increase the power and authority of the Minister to set policies through and with the Commissioner. The Act, which was in response to the Morris Tribunal’s revelations, also altered the nature of accountability of An Garda Síochána through the establishment of the Garda Síochána Ombudsman Commission and the Garda Inspectorate. The implementation and operation of the Act is the responsibility of the Minister through his/her department and its Garda Division. The oversight role demands a delicate balance between accountability and respecting the independence of An Garda Síochána. In the view of the review group, there is a deferential relationship with An Garda Síochána and a lack of proper strategic accountability being brought to bear upon them by the department.

    [emphasis added]

    The “deferential relationship with An Garda Síochána”, referred to in the above quotation, is characterised by deference on the part of the Department to the Gardaí, and not the other way round.

  649. The next paragraph of the report, par. 9(a) on p. 10, discusses the legislation mentioned above, the Act of 2005 and concludes:

    A major impetus for the enactment of this legislation was provided by the Morris Tribunal Report which, amongst its many findings, warned that ‘An Garda Síochána is loosing its character as a disciplined force’. (para. 13.101) The 2005 Act has been diluted in its implementation. The Department has adopted a passive approach stepping back from taking the opportunity to exercise the necessary power and influence at its disposal to encourage improvements in its management and discipline.

    [emphasis added]

    This report was published on 11th July 2014. Its conclusions are arrived at as of that date. The “deferential relationship” obtained (pertained?) as of that date. Subsequent to the publication of the report, on 28th July, 2014 the Minister for Justice, Francis Fitzgerald T.D. welcomed the report and stated that:

    Given the significant recent disquiet over the administration and oversight of justice in this State, I believe this report presents another important step in this government’s justice reform programme.

    [emphasis added]

    I believe that this acknowledgement, by the Minister directly in charge of the justice area, that there is “significant recent disquiet over the administration and oversight of justice in this State” is an important part of the context of the present case. Given this disquiet, I really do not know how the complacent statements in the appellant’s submissions, quoted above, can be made. I consider it utterly unwise, to use no stronger word, to grant to the gardaí, in that context, the effective immunity from judicial oversight, which this case does. There is clearly no compensatory supervision or control by the Department. This may change. Equally it may not. Prudence suggests we might wait and see.

  650. The Independent Review Group, in summarising its own findings about the Department of Justice made five key findings. These are:

    (1)

    A closed, secretive, and “silo driven” culture.

    (2)

    Significant leadership and management problems.

    (3)

    Ineffective management processes and structures to provide strong strategic oversight of the key agencies both to hold them accountable and to ensure their effectiveness is maximised.

    (4)

    A management advisory committee that is neither sufficiently focussed on key strategic priorities .... nor ensuring that emerging that emerging issues with agencies or with political consequences are identified and managed proactively.

    (5)

    Relationships with key agencies tend to be informal and unstructured without strong central management from the Department.

  651. In this context, it appears to me to be nothing less than extraordinary for the State to submit that a change in the law which they so ardently desire can now somehow be the more easily conceded because of developments which have taken place since the decision in DPP v Kenny [1990] 2 I.R. 110. On the contrary, it appears to me that very serious problems of garda culture and practices have been revealed by Tribunals headed by two distinguished members of the judiciary and by the garda whistleblower, and have been expressly acknowledged by members of the Government. It would appear to me absolutely extraordinary, and very damaging to the very concept of due process of law, if, with these matters outstanding and awaiting resolution, this Court were to take a step which would considerably loosen the application of the law of the land, and indeed on the Constitution itself, to members of An Garda Síochána and to provide a positive incentive for them to ignore it. The matters invoked by the State appellant at paragraphs 45 to 47 of the submissions simply invite the Court to enter into an unreal, non-existent, world in which the authorities ever actually take civil or criminal proceedings against individual State officials for breach of citizens’ constitutional rights by groundless or warrantless searches. This simply does not occur. I am unaware of any such proceedings taken against any guard either at “coalface” or supervisory level for an infringement of a citizen’s constitutional right to the inviolability of his dwelling in the entire period since 1922. This is illustrated by the case which the Director cites, Lynch v Attorney General [2003] IESC 44, [2003] 3 IR 416. This was a case where a person was told by a State official (a guard) that an extradition warrant against him “would not be executed” if he gave information about other, quite different, matters.(at p. 416) The Court refused to restrain the person’s extradition to the United Kingdom on that basis. The Director’s submissions quote my judgment as follows (Lynch v AG [2003] IESC 44, [2004] 3 I.R. 416 at 435):

    A solemn, reasoned, finding of serious wrongdoing against a member of An Garda Síochána .... is not a light matter, either for the member concerned individually or for the Force as a whole.

    I reiterate that this is true as a matter of law and equally true in the moral sphere. But I regret to say that, as matters are presently organised, the finding had absolutely no effect in practice. There is no evidence whatever that the guard who behaved as outlined above actually suffered anything in the way of civil or criminal consequences. The Courts have from time to time made findings against individual guards in criminal proceedings, and in civil proceedings and of course there are many adverse findings in the reports of Tribunals of Inquiry, as we have seen above. I am unaware that any of these findings or remarks have had any actual legal effect. If it is true, and it is true as far as I am aware, that in the twelve years since Lynch v AG [2003] IESC 44, [2004] 3 I.R. 416 was decided no steps were taken against the garda in question, that tells its own tale. No steps, notoriously, were taken against either the gardaí or the individual United Kingdom policemen involved in gross misconduct as found in State (Quinn) v Ryan, [1965] I.R. 70 decided fifty years ago. I do not think that that policy of inaction and sedulous ignoring of the Courts findings has changed. As I have said, I believe that the State appellant’s submissions in this regard invite the Court to enter an unreal world, which I absolutely decline to do. In any event, how could the gardaí at the doorstep in the present case be made the subject of disciplinary proceedings, on the State’s own case? Is it remotely likely that the Chief Superintendent who issued the warrant, or any of the still higher authorities who directed the policy which led to the capacity to issue the warrant, will be the subject of proceedings? I repeat, this is simply unreal. It has never happened; it has not happened in this case, and it will not happen in any other case. It is not simply the Gardaí which “doesn’t name the names .... are not going to be hanging our people”, in Garda Martin Leonard’s phrase. It is the State’s policy as well.

  652. I wish to stress in particular that the Guerin Report thought it appropriate to recommend the establishment of a Commission of Inquiry into the matters set out above; that the Fennelly Commission has already been established with the remit to report, if possible; before the end of 2014 (now extended); that the Garda Representative Association has called for an inquiry into the matters of concern which have been raised about the gardaí; and that the view has been expressed by a member of the Government that the Department of Justice is, or was as of last May, “not fit for purpose”, that “there is a big problem with the Gardaí and the justice system”, and that the Minister for Justice acknowledges “significant recent disquiet over the administration and oversight of Justice in this State  ....” (28th July 2014) Against this indisputable factual background, the decision of the majority will virtually preclude judicial supervision of  the force publique, will make available to public servants with enormous powers over ordinary citizens a defence of carelessness or inattention, and will exalt already empowered public officials into a virtually impregnable position.

    V

    Kenny v DPP [1990] 2 I.R. 110.

  653. In my view, the case of Kenny v DPP [1990] 2 I.R. 110 (which the State seek to overrule) is one of the monuments of the constitutional jurisprudence of independent Ireland. It addressed a controversy which the Courts of many countries have been compelled to address. This is: what is to happen when evidence, unconstitutionally obtained by one or other of the coercive forces of the State, is offered in evidence against a citizen in a trial court. This situation immediately raises the question: how seriously are the Courts to take the Constitution which the people have adopted and the rights which are conferred on individuals by that document? Can State officials ignore the Constitution “by mistake” or through ignorance? And will the Courts wink at the ensuing breech of the Constitution?

  654. In my view, Kenny v DPP [1990] 2 I.R. 110 approaches that question in a principled, realistic, and moderate fashion. The result it arrives at, as I hope to show, is a middle-of-the road one. In the submissions made on behalf of the State in this case, Kenny v DPP [1990] 2 I.R. 110 has been cynically misrepresented as an extreme decision amounting to an “absolute” or “near absolute” (both terms are used) Exclusionary Rule. It is nothing of the sort.  

    The principled basis of Kenny v DPP [1990] 2 I.R. 110.

  655. Article 40 is the Article of the Constitution which deals with the personal rights of the citizen. The starting point of any discussion of Kenny v DPP [1990] 2 I.R. 110 must be Article 40.3.1 which provides:

    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.

    This is a solemn guarantee by the State. It imposes a special duty upon the Courts. In my view, the claim by the Public Prosecutor in this case would not only overrule Kenny v DPP [1990] 2 I.R. 110: it would reduce Article 40.3.1 to an empty formula. If that can be done in relation to one of the express personal rights of the citizen, the right to be secure and undisturbed in his dwelling house save in accordance with law, it can, by the same or a similar process, be done in relation to any other right.

  656. One of the other cases cited and followed by Judge Ring at the trial in the present case was that of Damache v DPP [2012] IESC 11, [2012] 2 I.R. 266, the case in which, by the judgment of Denham C.J., s.29 warrants were found to be unconstitutional by reason of a lack of independence in the State official issuing them. Judge Ring cannot be said, and is not said, to have erred in following this case.

  657. The first thing to be said about that case is that it was far from unexpected.

  658. Reference has already been made, at some length, to the several reports of the Morris Tribunal. In its report on the “Burnfoot Module”, published on the 23rd May 1998, the Tribunal addressed the question of s.29 warrants as follows at par. 6.22 on p. 269:

    The Tribunal is satisfied that in many cases the person who issued the warrant was the person who was involved in the investigation of this offence. This cannot instil any confidence in the independence of the decision made to issue the warrant.

    In the Ardara case, the Superintendent who was close to the investigation in Ardara was manipulated by Detective Sergeant White. The shocking circumstances as to the issue of the warrants for Burnfoot are detailed in Chapter III of this Report. The danger exists that the warrant would be issued automatically and without proper investigation of the matter by the Superintendent to whom the application is made if he or she is heading the investigation. There is a danger that the power to issue a s.29 warrant thereby becomes a mere formality in which the investigating Sergeant might as well be empowered to issue a search warrant to himself.

    [emphasis added]

  659. In DPP v Cunningham [2012] IECCA 64, [2012] 2 I.L.R.M. 406 at 418, the Court of Criminal Appeal referred to the passage quoted above and said that it [the Court] found it “difficult to avoid the conclusion that the s.29 warrant procedure represented little more than a convenient and decorous formality which, absent the fundamental safeguards we have described as third party supervision and documentation, was in truth often little better than a warrantless search of the dwelling”.

  660. The Court went on to observe at p. 418, that the result of Damache v DPP [2012] IESC 11, [20122] 2 I.R. 266could equally “be said to have been prefigured by earlier case law”. The Court referred in particular to Ryan v O’Callaghan (unreported) High Court, 22nd July, 1987; the judgment of Barr J. in King v The Attorney General [1981] IR 233 and DPP v Dunne [1994] 2 I.R. 537.

  661. Similarly, in DPP v Bolger [2013] IECCA 6 the Court of Criminal Appeal observed at par. 33 that:

    .... the conclusion in the Damache case was not an unexpected result.

  662. In giving the judgment of the Court in Damache v DPP [2012] IESC 11, [2012] 2 I.R. 266 itself, Denham C.J. at par.53 on p.284 also referred to the passage quoted above from the Morris Tribunal Report and went on:

    In other words, it was plainly stated in 2006 that the frailty of the Section raised an alarm as to its validity.

  663. The Court in Damache v DPP [2012] IESC 11, [2012] 2 I.R. 266 held, at par. 55 on p. 285, that to conduct a search of a private dwelling on foot of a s.29 warrant involved “stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution” [emphasis added].

  664. It may be significant that, at the trial in the present case, which led to Mr. C.’s acquittal, the prosecution did not call in evidence the Chief Superintendent who purported to issue the warrant, even though several other garda witnesses were called, all lower-ranking. There is, therefore, no account on the record of why the issuer thought fit to issue it. That being so, the characterisation of the search under a s.29 warrant as “stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution” must apply to this search. It is presumably not to be thought that a Chief Superintendent of An Garda Síochána was unaware of the contents of the reports of the Morris Tribunal which had been in the public domain for five years. Nor did he lay claim to ignorance or mistake, for he did not give evidence at all.

  665. One of the consequences of the DPP v Kenny [1990] 2 I.R. 110 decision is to promote and encourage a consideration of the rights of the citizen by the coercive powers of the State at the highest level. A strong Exclusionary Rule has a “tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement generally”, as Justice Brennan expressed it in the United State Supreme Court in U.S. v Leon, 468 US 897 at 953.

  666. But that tendency, important though it is, is not the fundamental principled basis underlying the Exclusionary Rule. That fundamental basis, clearly established in this jurisdiction at least, was precisely identified by Finlay C.J. in DPP v Kenny [1990] 2 I.R. 110 itself. Having fully acknowledged the disadvantages of an Exclusionary Rule, in certain cases, for the detection of crime, the learned Chief Justice went on to hold at p. 134:

    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 .... outweigh the unambiguously expressed constitutional obligation ‘as far as practicable to defend and vindicate the personal rights of the citizen’.

    [emphasis added]

  667. This chimes precisely with the well known and, to me, inspiring words of Justice Brennan in the United States Supreme Court in U.S. v Leon 468 US 897 at pp. 929 to 930:

    .... what the Framers understood then remains true today __ that the task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy. It was for that very reason that the Framers of the Bill of Rights insisted that law enforcement efforts be permanently and unambiguously restricted in order to preserve personal freedoms. In the constitutional scheme they ordained, the sometimes unpopular task of ensuring that the Government’s enforcement efforts remain within the strict boundaries fixed by the Fourth Amendment was entrusted to the courts.

  668. Similarly, Chief Justice Finlay spoke as he did notwithstanding that he had already recognised that (at p. 134):

    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 ....

  669. These passages are central to my view of the present case. The duty to exclude evidence obtained by a deliberate and conscious breach of the Constitution arises directly from the terms of the duty imposed on the Court by the Constitution itself, in Article 40.3.1. That is a solemn duty whose nature has not changed since DPP v Kenny [1990] 2 I.R. 110 was decided. If the powers that be consider that the terms of that duty should be changed, they can effect such a change by legislation and, if necessary, seek to refer such legislation to the Court under Article 26 of the Constitution. If it were held that such legislation was not consistent with the Constitution then it would be possible to remedy that difficulty by promoting a referendum to alter the terms of the Constitution itself. But the solemn duty imposed on the Court cannot be changed in the manner now attempted, which I believe to be a subterfuge, for the reasons set out in Part II of this judgment.  

    An absolute rule?

  670. The attack by the State on DPP v Kenny [1990] 2 I.R. 110 is sought to be carried through on the basis of very general, and very misleading, characterisations of that case. As I have already pointed out, it is described as being “absolute” or “near absolute”. This is quite simply false.

  671. The DPP v Kenny [1990] 2 I.R. 110 decision is in no way a crude, extreme or an unsophisticated one. It arrives at its conclusion that unconstitutionally obtained evidence must, in the absence of some extraordinary excusing circumstance, be excluded in a passage of unanswerable logic, summarised below. I note that one of my colleagues described this in another case as a process of “remorseless logic”, a phrase very different in tone but which seems to concede the central point. The result in DPP v Kenny [1990] 2 I.R. 110 followed inexorably from the terms of the Constitution itself.

  672. The judgment addresses, in a very careful and self conscious way, the principal objection to the conclusion it reaches. This is that, in some cases, it will deprive the Court of relevant evidence. It then sets out “the correct principle” in a manner which is manifestly not absolute.

  673. Chief Justice Finlay, at p.133, first identified “two alternative rules or principles” governing the exclusion of evidence obtained as a result of the deliberate invasion of the personal rights of a citizen. These correspond to the distinction drawn in the State submissions in the present case. The Chief Justice then made a number of very basic observations:

    1. “The duty of the Court pursuant to Article 40.3.1 of the Constitution is, as far as practicable to defend and vindicate such [i.e., personal constitutional] rights”.

    2. “As between two alternative rules or principles governing the exclusion of evidence obtained as a result of the invasion of the personal rights of the citizen, the Court has, it seems to me, an obligation to choose the principle which is likely to provide a stronger and more effective defence and vindication of the right concerned”.

    3. “To exclude 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, while providing also that negative deterrent, incorporates as well as 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 citizen as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights”.

    4. “It seems 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 a principle with negative consequences only”.

  674. I can see no break in this logical chain. I would not, therefore, depart from the conclusion, which is as follows (at p. 134):

    I am satisfied that the correct principle is that evidence obtained by an invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied either that 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 [the Courts] discretion.

    [emphasis added]

  675. I cannot see, with due respect to those who think otherwise, how a rule expressed so as to incorporate the exceptions set out in the foregoing passage by Chief Justice Finlay can properly be described as “absolute”. It is self evidently not absolute since it expressly provides for “extraordinary excusing circumstances”. The nature of such circumstances is, perhaps, prefigured by the judgment of Walsh J. in The People (Attorney General) v O’Brien [1965] IR 142 at p. 170, where he instances “the imminent destruction of vital evidence or the need to rescue a victim in peril”.

  676. Justice Oliver Wendell Holmes of the United States Supreme Court famously declared, in an extra-judicial lecture, that “The life of the law has not been logic: it has been experience”. The role of experience is perfectly exemplified in the exception which Chief Justice Finlay lay down to his own principle. Actual cases will throw up circumstances which could not possibly be anticipated by any process, however logical, before the event. It is for that reason that any jurist of experience will provide for un-anticipatable contingencies, as Chief Justice Finlay has done. But the very fact that he does so means that the principle he laid down is not absolute, or “near-absolute”

  677. It must also be recalled that, in one of the relatively early American unlawful search cases, Dodge v US 272 US 530 at 532, Justice Holmes declared that:

    If search and seizure are unlawful as invading personal rights secured by the Constitution, those rights will be infringed yet further if the evidence were allowed to be used.

    I very respectfully agree with that statement and indeed consider it to be self evident.

  678. One of the principal purposes of this excursus on DPP v Kenny [1990] 2 I.R. 110 has been to emphasise that the fundamental rationale of that case is not deterrence of unconstitutional activity by members of the force publique, though that may be a consequence of the Exclusionary Rule: it is the vindication of the individual citizen’s constitutional rights. Many of the most coherent espousals of this view are to be found in the United States jurisprudence, from the dictum of Justice Holmes above, through Mapp v Ohio 367 U.S. 643, to the more modern statements of Justices Stevens and Ginsberg. But I do not think that the fundamental rationale of the Exclusionary Rule, that of the obligation on the Courts to vindicate the citizen’s constitutional rights have ever been better expressed than in the passages from Chief Justice Ó Dálaigh and Mr. Justice McCarthy as set out at para. 5 of this judgment. I would in particular refer to the statement of Mr. Justice McCarthy that unconstitutional behaviour by gardaí or other public servants will not “result at most in a judicial rebuke, however severe. It will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned whatever the consequences may be”.

  679. I cannot see, how in a case where an individual’s constitutional rights have been trampled upon in order to obtain evidence against him, how those rights can be “immediately enforced, without qualification”, other than by exclusion of the evidence obtained by their breach. This is the most obvious, the most practical and indeed the only possible form of restitutio in integrum available in such circumstances.  

    VI

    “Deliberate and Conscious”.

  680. I have already pointed out that it is the State’s urgent desire in maintaining this appeal that evidence which has been obtained by a garda or other public servant in deliberate and conscious breach of a citizen’s constitutional right should nonetheless be capable of being used in evidence against the citizen. This is sought to be done in a number of different ways. The question of admissibility of the tainted evidence might be left to the discretion of the learned trial judge; experience suggests that this will rarely lead to its exclusion: see below. Or, the great object of achieving the admissibility of unconstitutionally obtained evidence might be achieved by redefining the established legal significance of the term “deliberate and conscious” in the manner suggested by the State in this case, so that a “mistaken” or inadvertent” trampling on a citizen’s rights will pass muster. This will radically dilute our Constitution’s protection of the citizen’s rights.

  681. For many years it has been clearly established that for an evidence-gathering action to be “deliberate and conscious” so as to trigger (absent “extraordinary excusing circumstances”) the Exclusionary Rule, the act itself must be deliberate and conscious but it need not be proved that the State official who committed it knew it to be unconstitutional. This sense of the phrase “deliberate and conscious” is indeed essential to any system of enforcing constitutional rights which has teeth. It is the law which applies to ordinary citizens who have no defence along the lines “It was just a mistake” or “I didn’t know it was illegal”, or “I thought I was entitled to act in that way”, much less “I was just inadvertent”.

  682. This topic was discussed by McCarthy J. in DPP v Healy [1990] 2 I.R. 73, at pp.88 to 89. He said:

    In my view if ‘conscious and deliberate’ is a term of art appropriate to be used in the context of constitutional rights and their violation, the only test is whether or not the act or omission that constituted such violation was itself a conscious and deliberate act; the fact that the violator did not realise that he was in breach of a constitutional right is irrelevant. If it were otherwise then if one jailor could distance himself from the others, as the Superintendent did in the instant case, there need never be such a violation. It is not the state of mind of a violator that matters; it is the objective assessment of the conscious acts or omissions.

    [emphasis added]

  683. The learned judge continued at p.89:

    A violation of constitutional rights is not to be excused by the ignorance of the violator no more than ignorance of the law can enure to the benefit of a person who, at Common Law, and by statute law is presumed to have intended the natural and probable consequences of his conduct. If it were otherwise there would be a premium on ignorance.

    [emphasis added]

    “A premium on ignorance”.

  684. I entirely agree with the conclusion expressed above by Mr. Justice McCarthy and with the reasoning which led him to that conclusion. It is most important to point out that every ordinary citizen is presumed to know the law and that ignorance of the law affords him no excuse. Thus, a person charged with failing to make a tax return cannot claim that he believed, or even that he was advised, that he did not need to make a tax return or to return some particular kind of income, or that he did not know that the tax return had to be made on a particular day. This maxim applies even to recondite and technical areas of the law such as the obligation to make a tax return or the obligation in certain circumstances to apply for planning permission. We have recently seen a case (DPP v Fitzpatrick, Dublin Circuit Criminal Court, March 2014) where persons charged with a highly technical offence under the Companies Act were not permitted to prove in evidence that they had been professionally advised that the course of action they were taking did not breach the Companies Act: they were presumed to know the law.

  685. It is easy to see why this maxim is essential to the administration of justice. If ignorance of the law were a defence then, as Mr. Justice McCarthy pithily put it “there would be a premium on ignorance”. Similarly if inadvertence to the law were an excuse, or mistake as to what the law is. But these are precisely what it is contended should excuse the “inadvertent” breach of an ordinary citizens constitutional rights by the force publique. This is what exactly what the State intend in this case: that if a garda or other member of the force publique, can establish that he did not know that his action was a breach of a citizen’s constitutional rights, the evidence he obtained by that breach may nonetheless be admissible. This, despite the fact that all gardaí now are highly educated, specifically in law, and are often awarded a diploma in law by their training establishment.

  686. The same topic was addressed by one of our most distinguished predecessors, Mr. Justice Walsh, in People v Shaw [1982] I.R. 1, at p.33. Walsh J. said:

    I might add that there is nothing whatever in People (Attorney General) v O’Brien [1965] I.R. 142 to suggest that the admissibility of evidence depends upon the state or degree of the violator’s knowledge of constitutional law or, indeed, of the ordinary law. To attempt to import any such interpretation of the decision would be to put a premium on ignorance of the law. The maxim that ignoratia legis neminem excusat does not permit an intentional and deliberate act or omission to be shorn of its legal consequences.

    [emphasis added]

    The opinion of this Court on a similar subject was expressed as follows at p.134 of the Report of the case State [Quinn] v Ryan, by Ó Dálaigh C.J.:

    .... a belief or hope on the part of the officers concerned that their acts would not bring them into conflict with the Courts is no answer, nor is an inadequate appreciation of the reality of the right of personal liberty guaranteed by the Constitution.

    To hold otherwise would to be hold what to many people would be an absurd position, namely, that the less a police officer knew about the Constitution and, indeed, of the law itself, the more likely he would be to have the evidence which he obtained in breach of the law and/or of the Constitution admitted in court. If such indeed were the position, it could well lead to a demand that the interest of equality of treatment should permit an accused person to be allowed to be heard to the effect that he did not know that the activity of which he was charged, and which has been proved against him, amounted to a breach of the criminal law.

    [emphasis added]

  687. I entirely agree with the whole of the foregoing quotation. I cannot consider that it is just, fair, or constitutional, to permit a public servant’s ignorance, or incorrect application, of the law of the land (especially constitutional law) to allow him to breach an ordinary citizen’s constitutional rights and then to use against that citizen evidence procured by that breach. I specifically agree with Chief Justice Ó Dálaigh that such a finding would call into question that aspect of the law which presumes an ordinary citizen to know the law in all its labyrinthine detail and prohibits him or her from mounting a defence on the basis that he did not know the law, perhaps because the State had taken no proper steps to draw to his attention. But the States coercive force publique may avail of just that excuse. I reject this.

  688. In The People v Madden [1977] I.R. 336, Chief Justice O’Higgins said, at p.347 of the Report:

    The Court of Trial appears to have sought an element of wilfulness or mala fides in the conduct of the garda officer and, not finding such, to have concluded that the deprivation of constitutional rights was not deliberate or conscious. In the view of this Court, to adopt that approach is to misunderstand the decision in O’Brien’s case and, accordingly to err in law. What was done and permitted to be done by Inspector Butler and his colleagues may have been done or permitted for the best of motives and in the interest of the due investigation of the crime. However it was done or permitted without regard to the right of liberty guaranteed to the defendant by Article 40 of the Constitution and to the State’s obligation under that Article to defend and vindicate that right.

    [emphasis added]

    Whose ignorance is to excuse the breach?

  689. I think it is fundamental that, in approaching the question of “deliberate and conscious” breach we should not confine our focus to the individual garda or other State official “at the coal face”, such as a garda on a doorstep, or a garda conducting an interrogation, or a garda directly supervising the custody of a suspect. It will nearly always be possible to make at least a plausible case of ignorance, or mistake or of bona fides in relation to such an individual, the man or woman at the very bottom of the ladder. Very often, indeed, this person will be obeying orders and exercise no personal discretion. It would, for example, be quite easy to accept that an individual guard in possession of a s.29 Search Warrant may have been totally ignorant of the Damache v DPP [2012] IESC 11 case or even of the numerous developments since at least 2006 giving reason to doubt the constitutionality of s.29 warrants. But that case is of course much less easy to make about the Chief Superintendent who issued the warrant. In the present case, indeed, that high official did not give evidence at the trial. A case of ignorance would be still less plausible for the higher officers of State who determined the policy in relation to s.29 warrants and for the law officers of the State itself who advised them, and T.D.s who voted the relevant provision through the Oireachtas. I think it is important in this regard to consider the words of Finlay C.J. in DPP v Kenny [1990] I.R. 110 at p. 133. Towards the end of that page the learned Chief Justice considered that the Exclusionary Rule:

    .... incorporates as well as 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 citizen set out in the Constitution ....

    [emphasis added]

    It appears to me that the underlined phrase in the last quotation expresses the scope of the class of person whose deliberation or consciousness in breaching the Constitution is to be considered. The question of whether a particular unconstitutional action is “deliberate or conscious” cannot be decided in the light of the state of mind of the lowest ranking State official involved. The effect of the Rule enunciated in DPP v Kenny [1990] 2 I.R. 110 was specifically directed “to those in authority over the crime prevention and detection services of the State”. It is unfair to the ordinary citizen at the receiving end of an unconstitutional act, and perhaps to the lowly public official who is at the end of a chain of events or of authority, to have his actions and his state of knowledge as the determining factor. The high official, the Garda Commissioner, a Garda Chief Superintendent, a high departmental official, the Attorney General, the DPP or even a government minister who initiates or permits a chain of events which is the subject of a complaint, and not the humble official who may have no discretion but to execute his superior’s orders, is the person whose state of knowledge requires to be considered.

    Justice William M. McKechnie delivered on the 15th day of April, 2015

    Setting the Scheme:

  690. Over a short period of time in early 2011 there were three robberies in the Waterford City area with a sufficiently connected pattern to give the gardaí reason to believe, that the same individual or individuals were involved. The last one, which was no different in the manner of its execution to the others, occurred on the 5th day of May, 2011, at Supermac’s fast food restaurant in the city. Based on CCTV and other evidence the gardaí, very shortly thereafter, had reasonable grounds for suspecting that Mr. C., the respondent, had been heavily involved.

  691. Detective Sergeant Donoghue (“D/Sgt Donoghue”) led the investigation team and Detective Garda Burke (“D/Gda Burke”) was also a member of it. The gardaí, as part of their ongoing inquiries decided to search the premises known as 256 Larchville, Waterford, which can be considered as Mr. C.’s constitutional dwelling house. For that purpose, D/Sgt Donoghue obtained from Chief Superintendent Murphy, a search warrant which was issued under s. 29 of the Offence Against the State Act 1939 (hereinafter “the s. 29 warrant” and “the 1939 Act” respectively). Chief Superintendent Murphy was also an integral part of that investigation team.  

  692. On the 10th day of May, 2011, D/Sgt Donoghue decided to execute the warrant which for that purpose, was addressed to him. Several members of the force were involved including D/Gda Burke who by then had been charged with the responsibility of arresting Mr. C. That was his sole purpose for being part of the team which on the morning of the same date, attended at the above address which the gardaí knew to be the dwelling house where the respondent was living.  

  693. Disregarding non-essential detail, on arrival the gardaí showed the search warrant to the sister of the respondent, who answered the door, and also informed her of the purpose of their visit which was to execute the said warrant. Some unspecified enquiry was made as to the whereabouts of Mr. C. who was in fact, as his sister informed the gardaí, in an upstairs bedroom at the time. Those whose purpose it was to search duly did so: as it happened no evidence of value was found and accordingly the search plays no further part in this case. D/Gda Burke however, given his discrete intention, immediately went upstairs and having asked Mr. C. to get dressed, duly arrested him under s. 30 of the 1939 Act for the unlawful possession of a firearm. No point has ever been taken on the reasonableness of the suspicion upon which this arrest was made.  

  694. Having been taken to Waterford Garda Station, Mr. C., during his subsequent detention, was the subject of a number of interviews, during the course of the following several hours. Nothing of probative value emerged until the final three interview sessions during which it is claimed that Mr. C. made a number of significant admissions which were recorded in written form and duly acknowledged by him. He was thereafter immediately charged with six offences relating to armed robberies and to the possession of an imitation firearm during the course thereof. His trial on indictment in respect of these charges came on for hearing before her Honour Judge Ring and a jury sitting at Waterford Circuit Criminal Court on the 18th of July, 2012.  

  695. After the accused was arraigned and pleaded not guilty, and having been put in the charge of the jury, both counsel informed the trial judge that an issue of law arose which required its determination by way of a voir dire. That issue centred on the lawfulness of Mr. C.’s arrest, which, depending on outcome, could have a significant bearing on the admissibility of the admissions allegedly made. The point asserted on his behalf was that the search warrant, upon which entry was based, was invalid by reason of this Court’s decision in Damache v The Director of Public Prosecutions [2012] IESC 11 (“Damache”) delivered in February, 2012.  

  696. In that case, the s. 29 warrant had been issued by a Superintendent, who like Chief Superintendent Murphy had also been closely involved in the underlying investigation, which involvement could not be separated from his role in issuing the warrant. That decision however, called for the exercise of an independent mind which could only be provided, by a member of the force, who was completely divorced from the investigating participants. As s. 29 of the 1939 Act legislated, ex facie, for the procedure adopted, the provision in that respect was found to be unconstitutional. It followed therefore that the warrant in this case could not be relied upon as constituting a lawful basis for the gardaí’s entry into, and presence in the dwelling house, on the occasion in question. As a result, it was argued that Mr. C. could not have been lawfully arrested as D/Gda Burke, like all other members of the search team, was a constitutional trespasser at the time. Therefore the admissibility of the interview evidence was challenged on the basis of what can be called the “exclusionary rule”, as declared by this Court in The People (Director of Public Prosecutions) v Kenny [1990] 2 I.R. 110 (“Kenny”).  

  697. In the instant case, the circumstances in which the search warrant was issued were indistinguishable from those which existed in Damache: accordingly, the same was unquestionably invalid, a conclusion not sought to be resiled from or even argued either in the court of trial or in this Court. In the absence therefore of other lawful authority, of which in the judge’s view there was none, the gardaí were trespassers in Mr. C.’s dwelling house on the morning in question: in the process his Article 40.5 constitutional rights had been violated. In accordance therefore with the principles laid out in Kenny, the learned trial judge, on application being made to her in that regard, was legally compelled to exclude from the jury’s consideration any of the alleged admissions which the Director of Public Prosecutions (“DPP”) sought to rely upon. Having so ruled, and in the absence of any further evidence being offered, the jury, by direction, were instructed to return a verdict of not guilty on all charges in the case of Mr. C.  

  698. The DPP, despite the fact that she saw fit to make no submission to the contrary, which it must be said was grossly unfair to the trial judge, did not like the outcome: she saw however in hindsight, an opportunity to invoke the provisions of s. 23 of the Criminal Procedure Act, 2010 (“the 2010 Act”), which so far as I am aware had not been utilised prior to this appeal. In so doing, Mr. C. can consider himself most unfortunate, as the individual facts of his case could hardly be considered, as sufficiently striking to justify the manner in which the appellant has pursued this issue, thus far. Her ambition is clearly far greater: the target of her reach treats the respondent as a random casualty or by-product, of a favourable outcome. She seeks I am convinced, a re-trial of Mr. C., purely and solely because the section so demands. It truly matters not in the bigger picture. The real prize which is prayed for, stretches far beyond this case. I greatly regret to say that she has been much rewarded.

    The Issues Arising:

  699. Arising from these facts and based on the submissions, it appears to me that three broad issues, each of some significance, arise. The first is whether or not the arrest of the respondent on the 10th of May, 2011, was lawful: it is not being argued that the warrant can be relied upon for this purpose: rather, the search for lawful authority resides elsewhere. A decision on this issue in favour of the DPP would be determinative of the entire appeal. The second involves a consideration of the provisions of s. 23 of the 2010 Act itself, which in turn raises a number of distinct but also inter-related points. The final issue, which for many is really the only issue in the appeal, is in respect of a submission by the DPP that the decision of this Court in Kenny was wrong and wrongly decided and should be overturned: and in its place a more relaxed and accommodating rule, from her point of view, should be established. To these issues I now turn.

    Issue No.1: Lawfulness of the Arrest:

    Submissions:

  700. Whilst it is accepted that by reason of the unconstitutionality of s. 29 of the 1939 Act, the presence of D/Sgt Donoghue and the other gardaí in the dwelling house of Mr. C. on the morning in question was illegal, nonetheless it is claimed that the status of the arresting officer was somehow different and that he should be disassociated from the rest of the team for this purpose. The factual basis relied upon for this argument is that D/Gda Burke had decided to arrest Mr. C. before leaving the garda station, that such was the sole purpose of his attendance at the premises on the 10th of May, 2011, that he took no part in the search, that the actual arrest was unconnected with any items found during its currency and finally, that the arrest was effected almost immediately upon the gardaí’s arrival at the house. Why any, or indeed all of these matters should, of themselves and without more, alter his prima facie status as a trespasser, remains unclear from the submission.  

  701. In any event it is said on the legal side that cases such as The People (Director of Public Prosecutions) v Barry O’Brien [2012] IECCA 68 and The People (Director of Public Prosecutions) v Laide & Ryan [2005] 1 I.R. 209 (“Laide & Ryan”) are clearly distinguishable on their facts and that when properly understood they do not lend any support to the suggested unlawfulness of the arrest in this case.  

  702. It is also submitted that D/Gda Burke was as a matter of statute law entitled to be on the premises on the occasion in question: this pursuant to the provisions of s. 6(2) of the Criminal Law Act 1997 (“the 1997 Act”). It is claimed in this context that, where the gardaí attend at a dwelling house with a dual purpose, one of arrest and one of executing a search warrant, then legally speaking, their resulting presence on both fronts, is authorised by this particular provision.  

  703. Although there was no direct evidence that the gardaí, on arrival at the dwelling house had nominated any specific statutory provision as their authority for seeking entry and certainly there was no suggestion of entry by invitation, nonetheless Mr. C.’s sister was informed of their intention to conduct a search and also was told that they were seeking the whereabouts of her brother. This communication, it is said, is a sufficient compliance with what the Court of Criminal Appeal held in Laide & Ryan, which was that in like circumstances a householder, must simply be informed of the purpose of entry. That case, it is submitted, went no further and should not be read as having decided that the gardaí must also identify a particular provision or the precise source of power, being then relied upon.  

  704. The respondent denies that the position of D/Gda Burke can be so distinguished from the other gardaí who attended on the occasion in question. The evidence at the trial established the following, but no more:-

    • On arrival at the house D/Sgt Donoghue showed the search warrant to the respondent’s sister and told her of his intention to execute it;

    • D/Gda Burke who was present at the execution of the warrant, was there for the purpose of arresting the respondent under s. 30 of the 1939 Act;

    • Enquiries were made at the door as to the whereabouts of Mr. C.: in response his sister informed the gardaí that he was still in bed at the time;

    • The arresting officer then proceeded upstairs and within ten minutes from his initial arrival, had arrested Mr. C. pursuant to statutory provision last mentioned.

  705. The evidence did not indicate that D/Gda Burke at any time invoked s. 6(2) of the 1997 Act nor did he explain on arrival, that the purpose of his visit was to effect an arrest. It is submitted that the underlying point made by the DPP, namely that an arresting garda does not even have to have in contemplation, the power which he proposes to invoke or rely upon, so as to legally justify his presence on a premises, is unsupported by authority, and is in fact, contrary to fundamental principles with regard to the exercise of garda power. Laide & Ryan is relied upon in this regard. Consequently, it is claimed that the position of the arresting officer was no different to that of the other members in attendance at the time and accordingly, that the purported arrest of Mr. C. was invalid.

    Decision on Issue No.1:

  706. Although I have titled this issue as the “Lawfulness of the Arrest”, the real point is the lawfulness of the preceding entry without which the arrest could not have taken place where it did. Therefore, much of the case law cited, such as Christie v Leachinsky [1947] A.C. 573, and The People (Attorney General) v White [1947] I.R. 247, which adopted the Christie decision, as representing the law in this jurisdiction, are not directly on point. It is accepted by all parties, that D/Gda Burke had a reasonable suspicion upon which to effect the arrest, that he informed the respondent of the purpose and reason for his arrest and that he did so, in clear, definite and adequate terms: it is also not denied that absent his questionable status at the time, he had power to do so under s. 30 of the 1939 Act. Therefore, the entry is the focal point of this issue.  

  707. On the evidence as given, it is irrefutable that the gardaí as a unit, believed their presence in the dwelling house on the morning of the 10th of May, 2011, was authorised by and rested solely on the s. 29 search warrant. The trial judge so stated (Transcript, Day 1, p. 55):-

    In this case I am satisfied that the entry into .... house on 10th May, 2011, was on foot of the warrant issued under s. 29 of the Offences Against the State Act 1939. This was the vehicle to get in the door both to search and to effect the arrest under s. 30 of the 1939 Act.

    Her finding in this regard could not have been otherwise.

  708. This means, and it is I am satisfied, now accepted by the appellant, that D/Gda Burke never considered basing his entry on s. 6(2) of the 1997 Act or for that matter on any other provision, statutory or otherwise. This of course is entirely understandable as the gardaí had no reason to doubt the validity of the s. 29 warrant. The situation which unfolded therefore was not one giving rise to the more general grounds upon which an arrest is normally challenged or one involving some form of defective garda communication with the arrestee: rather it was one where the lawfulness of the entry started and ended, with the search warrant. In those circumstances I cannot see how s. 6(2) of the 1997 Act can now be invoked, to legally justify this particular garda’s entry into and presence in the dwelling house, on the morning in question.  

  709. In addition, there is no doubt but that the executing officer informed Mr. C.’s sister of his intention to search the dwelling house on foot of the search warrant: but equally so there is no doubt but that neither D/Gda Burke nor any other member of the team told her in any understandable language of their intention to arrest her brother. At most, his whereabouts were enquired into. This therefore could not be considered as having added any further information about the now alleged, dual purpose of the gardaí’s presence in the house, to that already communicated to Ms. C., by D/Sgt Donoghue.  

  710. Finally, I would note what the Court of Criminal Appeal said in Laide & Ryan (at p. 230):-

    The finding that the warrant was bad has therefore removed the very foundation on which the entry was made, and in the absence of the gardaí informing the occupiers of the house that they had another purpose apart from searching, namely the arresting of the second accused, it is the view of this court that the power provided by s. 6(2) of the Act of 1997 cannot be relied upon since it was never invoked by the gardaí at the time. The fact that the power of entry exists does not mean, in view of this court, that the purpose of entry, namely the arrest of someone who resides in the house, does not have to be explained before entry is forced on foot of the power.

    In the circumstances the arrest cannot be considered as having been lawfully effected. 

    Issue No. 2: – The Statutory Issue:

  711. Section 23, in Part 4 of the 2010 Act, under the heading “Appeals and Matters Relating to Appeals”, makes provision in Chapter 1 for what is described as “With prejudice prosecution appeals”. This is the section invoked by the DPP in the instant appeal and is the particular route by which the issues addressed in this judgment come to this Court for consideration.  

  712. Section 23 insofar as is material, reads as follows:-

    23.

    (1)

    Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.

    (2)

    Where on or after the commencement of this section, a person’s conviction of an offence on indictment is quashed on appeal by the Court of Criminal Appeal and that Court makes no order for the re-trial of the person in respect of the offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24, appeal the decision of the Court of Appeal not to order a re-trial of the offence concerned on a question of law to the Supreme Court.

    (3)

    An appeal under the section shall lie only where –

    (a)

    a ruling was made by a court during the course of a trial referred to in subsection (1) or the hearing of an appeal referred to in subsection (2), as the case may be, which erroneously excluded compelling evidence, or

    (b)

    a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where –

    (i)

    the direction was wrong in law, and

    (ii)

    the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.

    (4)

    An appeal under this section shall be made on notice to the person who is the subject of the appeal within 28 days, or such longer period not exceeding 56 days as the Supreme Court may .... determine ....

    (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,

    or

    (b)

    If it is not so satisfied, affirm the acquittal of 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 the 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.

  713. Before looking at the section in more depth, which involves a consideration of its contextual setting within the 2010 Act and also of its relationship with the provisions of Part 3 thereof, as well as having regard to the historical situation concerning double jeopardy, it would be quite wrong to think that this was some innovative provision by which the DPP for the first time, could get the opinion of this Court on a point of law, even one which she asserts but has in no way substantiated, to be of sufficient recurring importance as would justify the type of submission, made in this case.

  714. Under s. 34 of the Criminal Procedure Act 1967, as substituted by expansion in s. 21 of the Criminal Justice Act 2006 (“s. 34 of the 1967 Act”), the Attorney General or the DPP as the case may be, may, where a person tried on indictment is acquitted, “.... 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 ....” (s. 34(1)). The scope of such question, which can relate to any matter and which can arise in any way during the trial, is for the Attorney General or the DPP to settle after consultation only with the trial judge. That provision was in place at all times relevant to the instant appeal. In fact it should be noted ,that ss. 20 and 28 of the 2010 Act did not seek to affect any rights of appeal or review which were in existence at the time.

  715. After the recent establishment of the new court structure, s. 34 of the 1967 Act was amended by s. 47 of the Court of Appeal Act 2014. Whilst such amendment does not apply in this case, nonetheless the newly created situation is also, of interest to note. In future, the referral of such a question shall be to the Court of Appeal: subject however to the proviso that in respect of a person who is tried in the Central Criminal Court, the same prosecuting agencies (pls check) can “make application to the Supreme Court under Article 34.5.4 of the Constitution to refer a question of law arising during the trial to it for determination” (s. 34(1) of the 1967 Act). Consequently, as can be seen the opinion of the Court of Appeal can still always be sought, as can that of this Court, where the specified requirements are met. Therefore, it is abundantly clear that this advisory mechanism has been available at the instigation of the prosecuting bodies since 1967, and thus ever since there could never have been an occasion upon which the advice of this Court could not have been obtained. What is so significant about the 2010 provision however, is its naked pursuit of jeopardy which is sharply in contrast to the historical position existing, for so many years.  

  716. In addition to the statutory provisions as mentioned, it has also always been the case that the DPP or the Attorney General could seek clarity of the existing law, both as to its substance and application, in any case coming before the Court of Criminal Appeal: s. 29 of the Courts of Justice Act 1924, as amended, so provides.  

  717. The use of the s. 34 process in this case, would serve every purpose pursued by the DPP if the sole or indeed even principal reason for engaging with this Court, was legal clarity or legal certainty. It is, I think, not in doubt but that if such was the true motive in making the application, s. 34 of the 1967 Act, would by far have been the more appropriate way of proceeding, as of course it would have no impact or effect on, the preceding acquittal of the accused, who by then is a judicially innocent person, so declared. But clearly, by invoking s. 23 of the 2010 Act, the purpose is radically different which has grave consequences for the resulting situation.

  718. In his judgment MacMenamin J. also takes the view that the two sections, as mentioned, are not coterminous in the remit of what they cover. He is of the opinion that the purpose of the 2010 provision was to extend this Court’s jurisdiction beyond the question of law which could be referred to it under s. 34 of the 1967 Act. Thus, to accommodate such enlargement and to avoid the provision being “entirely superfluous”, s. 23 should be given in his view, a broad interpretation which would, when applied, equate the meaning of “erroneous” with “mistaken”. In that way the learned judge holds that the trial court could be considered as having “erroneously” excluded the subject evidence, if this Court determines that Kenny was wrongly decided.  

  719. MacMenamin J.’s view of the section is also of interest for the serious misgivings which he has on the question of a re-trial, suggesting that whilst such a “hypothetical possibility” might exist, he would anxiously scrutinise the precise circumstances by which “an order for retrial might constitutionally be made” under the section (para. 234). It is in his opinion, one thing to have power to review an error but quite another to have power to retry (para. 232). Quite obviously therefore he sees a clear distinction within the section between the jurisdiction to answer the submitted question and the jurisdiction to make a follow-on order involving a re-trial: voicing, I think it is fair to say, a considerable legal and constitutional dislike of the latter, essentially because of its impact on the principle of double jeopardy. However, it is only his view on the focus of the section which for me is relevant at this point.  

  720. I regret that I am not in agreement with such a view of the section: I see little or no difference in substance between either s. 34 of the 1967 Act or s. 23 of the 2010 Act, as to what questions or issues may be considered by this Court. Rather, what is at the heart of the section can be clearly seen from the fact that, as previously noted, it is an appeal with prejudice from an acquittal decision by the trial court, or by the Court of Criminal Appeal in circumstances where no re-trial is ordered by that Court. A trial court for this purpose is a court presided over by a judge who is accompanied by a jury whose essential task is to determine guilt or innocence. If, as seems quite obvious, that obtaining a view of the law is not of itself the real purpose of the section, it must in my view inescapably follow, as it does from the wording of the provision itself and from the overall structure of parts 3 and 4 of the 2010 Act, which are inseparably connected to this end, that its core ambition is to have the acquitted person re-tried. Even if that should be his or her third trial, it appears to matter not. Unashamedly, in so doing, the sanctity once had of a judge/jury acquittal is thereby further eroded, increasingly undermined and at Oireachtas instigation, greatly devalued.

  721. A consideration of part 3 of the 2010 Act, which runs from ss. 7 to 22 inclusive, is informative as to the legislative meaning of s. 23. With commendable transparency this part is headed “Exceptions to rule against double jeopardy”. Its provisions seek to deal with two situations admittedly different, but which are nonetheless inextricably linked by the common bond of previous acquittals.  

  722. Section 8 of the Act applies to a person who has been acquitted after a trial on indictment of a “relevant offence”, as described in numbers 1- 26 of the schedule. The DPP, in respect of such acquittal, may apply to the Court of Criminal Appeal, being the designated Court for this purpose, for a “re-trial order” where it is alleged that “new and compelling evidence” exists against the person in question, and where it is in the public interest to do so.  

  723. Section 9 of the Act applies to a person, who has been acquitted after a trial on indictment of “any offence”, but where he or any other person has been convicted of an offence against the administration of justice “relating” to the acquittal proceedings. In such situation, the DPP may likewise apply for a re-trial order if there is “compelling evidence” against the person and if it is in the public interest to do so.  

  724. As the operation of neither provision seems to depend on any “ruling” or “direction” of the trial judge being directly involved, it would appear obvious that an “acquittal” in this context means a verdict on merits, arrived at by jury deliberation: in fact s. 7 of the 2010 Act confirms that this is so. It also includes any order to the same effect obtained at appeal level or even at second appeal level (s. 14 of the Act and para. 727 infra). The phrases “new and compelling evidence” and “an offence against the administration of justice” are defined in s. 7 of the Act, as is “compelling evidence” in precisely the same way as it is for the purposes of s. 23 of the Act (subs. (14) thereof).  

  725. The power of the Court of Criminal Appeal on hearing either such application is contained in s. 10 of the Act. In its terms, it is not wholly dissimilar to s. 23 of the Act but of necessity is modified to reflect the circumstances by which it becomes engaged with those provisions. On a s. 8 application, if satisfied that “new and compelling evidence” exists and if, having regard to certain matters, it is in the interests of justice to do so, the Court “.... shall make a re-trial order quashing the person’s acquittal and directing that the person be re-tried for the relevant offence ....” (s. 10(1)). Likewise in respect of a s. 9 application: where the Court is satisfied that there is “compelling evidence” and where, having regard to certain matters if it is in the public interest to do so, it “shall make” a similar re-trial order (s. 10(2)).  

  726. Leaving aside whether if the statutory preconditions have been satisfied, the Court is mandated to make the order or whether there is some residual discretion to that end, what is strikingly clear from the provisions in question is that there is no separation intended or provided for between quashing the acquittal and ordering a re-trial, nor would it logically make any sense for that to be the case. To simply set aside an acquittal and nothing more would not achieve the legislative intent and in any event would be, at a constitutional level, seriously questionable. In my view, the essence of both a s. 8 and s. 9 application is the seeking of a re-trial order, as is the essence of the court’s power under s. 10. If in contemplation, such an order of necessity involves setting aside the acquittal: both are therefore inextricably linked: one cannot have the former without the latter. In addition, it would be an exercise in utter futility to simply quash an acquittal without more. Inescapably therefore in my view, the focus of these provisions, even if the background circumstances are different to those presenting on a s. 23 application, is to have a re-trial of an acquitted person. I see no difference therefore, in principle, in substance or in statutory motivation between the overriding purpose of those sections, and that of s. 23 of the 2010 Act.  

  727. Two other provisions of Part 3 of the Act are noteworthy. Firstly, an appeal shall lie to the Supreme Court from a decision made under s. 10 of the 2010 Act, if the Court of Criminal Appeal, or the Attorney General, or the DPP, certify that the determination involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to this Court (s. 14). To instigate such an appeal is not, as is evident from the section, confined to the authority of the Court of Criminal Appeal, but can quite independently of judicial involvement, be moved by either the State prosecuting agency or the constitutional officer mentioned.  

  728. Secondly, without District Court authorisation, An Garda Síochána are prohibited from taking certain steps and carrying out certain acts in relation to a person previously acquitted of a relevant offence, but who thereafter becomes the subject of an investigation into his suspected participation in that same offence. In this regard s. 15 of the 2010 Act requires District Court approval for the arrest or detention of such person, for the interviewing of him or her, for conducting any search of his person or of his property and for the taking of photographs, fingerprints and other forensic samples. What is however again most striking, is that if any such prohibited steps should nonetheless be taken without judicial approval, the same “shall not [of themselves] affect the admissibility of any evidence obtained” (s. 19(1) of the Act). True, this provision is “without prejudice to the power of the court to exclude evidence at its discretion” (emphasis added) (s. 19(2)), but of course such a test is distinctly different to that applying in a Kenny like situation. Consequently the section, at least at one level of interpretation, would appear to possibly impact at a most serious level on the principles set out in that decision.  

  729. In any event, I am entirely satisfied that both Parts 3 and 4 of the 2010 Act have in common as their key target, the re-trial of an acquitted person even if the circumstances underlying ss. 8 and 9 on the one hand, and those giving rise to the employment of s. 23 on the other, are different. This, in my view, explains the essential legislative distinction, between the intent of s. 34 of the 1967 Act, and that which underlies s. 23 of the 2010 Act.  

  730. These observations, whilst having a general context also have a particular significance in the specific circumstances of this case, where all parties, including the DPP, cannot dispute but that the acquittal of the respondent resulted from a trial impeccably conducted in due course of law. Of course subject to the Constitution, and any excepting or regulating legislation consistent therewith (s. 11 of the Criminal Procedure Act 1993: but see the Court of Appeal Act 2014), the State has a right to appeal a general acquittal from the High Court to the Supreme Court, even though the common law has stood its face against such for so long, recognising as I do that the provisions of Article 34.4.3 of the Constitution so provide (The People (Director of Public Prosecutions) v O’Shea [1982] I.R. 384) (“The People v O’Shea”). In respect of such appeals from the District Court to the Circuit Court see Article 34.3.4 of the Constitution and Considine v Shannon Regional Fisheries Board [1997] 2 I.R. 404 (“Considine”). However, that constitutional position has no particular bearing on the present issue, which is advanced solely at the legislative level. Accordingly, it is quite appropriate that my views on Part 3 of the 2010 Act should also inform my interpretation of s. 23 and in particular the jurisdiction of this Court under subs. (11) thereof, when either no decision on a re-trial has been made or when such has been refused.  

  731. Before dealing with specific aspects of that section, it is worth noting some general points about the provision, in addition of course to the particular wording of its heading (para. 712 supra):-

    (1)

    Subsections (1) and (2) provide for what is termed “an appeal” to this Court:

    (i)

    In respect of a person’s acquittal either in the court of trial or in the appeal court where that court has declined or refused to order a re-trial.

    (ii)

    the reference to such appeal being on a point of law adds nothing to the section: all appeals to this Court are and can only be on that basis.

    (2)

    Subsection (3) states that an appeal shall lie under the section only where:-

    (i)

    a ruling was made by the trial court or the Court of Criminal Appeal which has the effect of erroneously excluding “compelling evidence” (subs. (3)(a)), or

    (ii)

    a direction, given to the jury to return a verdict of not guilty was wrong in law and where the evidence adduced in the proceedings was such that a jury might reasonably have been satisfied to convict the accused (subs. (3)(b)).

    (3)

    Subsection (11) provides that on the hearing of an appeal, this Court may quash the acquittal or reverse the decision of the Court of Criminal Appeal as the case may be, and order a re-trial if it is satisfied;

    (a)

    (i)

    that the requirements of either subs. (3)(a) or subs. (3)(b) are met, and

    (ii)

    that having regard to certain matters specified in subs. (12),

    It is in the interests of justice to so do, or

    (b)

    If not so satisfied, affirm the acquittal or decision of the Court of Criminal Appeal, as the case may be.

    (4)

    “Compelling evidence” is defined as evidence which is “reliable” and of “significant probative value” and which, in addition, is such that when taken together with the other evidence “adduced” in the case, a jury might reasonably be satisfied to convict the person in question (subs. (14)).

  732. It is instructive to note that initially neither party gave the section a second glance: there is no mention of it in their original submissions. Not so however with this Court. During the course of oral argument a number of concerns were ventilated by it. Thereafter a further issue arose upon which the parties were invited to make submissions, which they did and which were received at an adjourned hearing: these were principally addressed to subs. (3) and then only in two distinct respects: firstly, how could this Court be satisfied that what was excluded was “compelling evidence” as defined in the Act, and secondly, did compliance with the subsection create a jurisdictional threshold?

  733. The DPP argued in her additional submission that the documentary material already before the Court was sufficient to establish the existence of “compelling evidence”, but that in any event she would seek leave to furnish the entire Book of Evidence which included the relevant memoranda. The existing “evidence” relied upon, included the Notice of Appeal which asserted, by reference to each explicit element of the statutory definition, that the “memos of interviews” themselves, constituted such “compelling evidence”. The transcript of the hearing was also referred to, in particular where prosecuting counsel described those “memos”, as containing “full admissions” in relation to all charges and where in addition, defence counsel agreed that “the last three interviews could reasonably lead to the conviction”, of his client. None of these statements, but in particular that last mentioned, were ever subsequently disputed or resiled from. Finally it was also said that no objection was taken to the appellant’s counsel’s opening of the appeal, during which he stated that no issue arose on this particular point.

  734. On the legal issue the DPP submitted that s. 23(3) of the 2010 Act, read as a whole, shows that the question of whether the excluded evidence is compelling, is not a condition precedent to the court’s jurisdiction under the section: rather it is a matter to be addressed as part of the substantive proceedings before it. The subsection, to borrow the language of Kingsmill Moore J. in The State (Davidson) v Farrell [1960] I.R. 438, at p. 455, “is not a preliminary to jurisdiction, (rather) it is of the essence of the jurisdiction imposed”. See also The State (Attorney General) v McGivern (unreported; 1961).  

  735. The respondent agreed that at no stage of the proceedings did he challenge the DPP’s characterisation of the “admission” evidence: nor did he dispute the statement attributable to his counsel, as appearing on the transcript, even though it is said that such should not be treated in the same way as if a formal admission had been made under s. 22 of the Criminal Justice 1984. Moreover, he was likewise in agreement with the DPP that this issue was not a precondition in the sense of being a jurisdictional barrier to this Court entertaining the appeal. What is asserted however was that the matters identified by the DPP did not “conclusively” establish that the disputed evidence must be regarded as “compelling evidence”.  

  736. It is further submitted that the jurisdiction conferred by s. 23 of the 2010 Act should be regarded as a “special jurisdiction”, and that in accordance with the wording of the section, this Court of itself must be satisfied that such evidence falls within the specified definition. In effect, whilst the respondent does not resile from the position adopted by him during the course of the trial or in the appeal up to now, he does however stress, that ultimately it is a matter for this Court to be satisfied as to the correct designation of such evidence.

    Decision on Issue No. 2:

  737. At the outset it would be helpful to clarify a point which was never quite cleared up at the hearing, which is whether the appeal is being pursued under the provisions of subs. (3)(a) or subs. (3)(b) of section 23 (para. 712 supra). In my view it must be taken to be the former as the jury direction given by the trial judge inescapably followed from the ruling previously made by her, to exclude the evidence in question. The acquittal therefore whilst technically resulting from this direction was in substance entirely the product of that ruling. Accordingly, I do not believe that subs. (3)(b) is directly in issue.

  738. There are three aspects of s. 23 of the 2010 Act which from my perspective require consideration:-

     

    (1)

    The first matter is what constitutes “compelling evidence” for the purpose of subs. (3)(a), and how can this Court satisfy itself that such exists in this case?

    As noted, the term is defined in subs. (14): whilst the “reliability” and “probative value” requirements are easily understood, their establishment in practice however is quite a different matter.

    It is nevertheless the third aspect of its meaning which creates the most difficulty: that element is satisfied only where the court considers that all of the “evidence adduced in the proceedings” is such, “that a jury might reasonably be satisfied .... of the person’s guilt in respect of the offence concerned” (subs. 14(c)). As these three matters are also cumulative each therefore must be so considered, but must also be viewed separately. (Point 1)

     

    (2)

    The second point is how it could be said that the decision of the trial judge was “erroneous”, as that term should be understood in the context of its use, given the fact that by common accord she was legally compelled by constitutional requirement to evidentially rule precisely as she did? (Point 2)

     

    (3)

    The final issue is whether as a matter of law, the section, in particular subs. (11), permits the Supreme Court to be satisfied that the conditions of either subs. (3)(a) or subs. (3)(b) have been met and yet because no re-trial order is contemplated, to affirm the acquittal or the decision of the Court of Criminal Appeal as the case may be?

    Purely for the purpose of this issue, I am going to assume that no re-trial order will be made. This is entirely without prejudice to what the parties may later submit on the point. (Point 3)

    But first I should turn to the question of interpretation.

  739. It is impossible on any interpretation of the 2010 Act, either specific or general, to treat it other than as a significant piece of legislation making a major encroachment on centuries old principles. The cases which ring-fence the sanctity of an acquittal made by judicial authority, in this case the jury, are legend: many of which are identified by Finlay P. in The People v O’Shea at pp. 412-413 and by Henchy J. at pp. 433-444 of the same report. The law, for as long, has stridently rejected any attempt to force the declared innocent to perilously endure a re-trial.  

  740. As far back as 355 B.C., Demosthenes is reputed as having stated “the laws forbid the same man to be tried twice on the same issue” (1 Demosthenes 589 (Vance trans. 1962) cited in United States v Jenkins 490 F.2d 868 (1973) at pp. 870-871). Some argue that this principle is as old as the common law itself (Sigler “A History of Double Jeopardy” (1963) 7 American Journal of Legal History 283 at p. 284). Certainly by 1725, one could hear Platt C.J. in King v James 8 MOD 201 at p. 208 say that it was “never yet known that a verdict was set aside by which a defendant was acquitted in any case whatsoever, upon a criminal prosecution”. In this jurisdiction its longevity is equally established, but in more recent times the debate has centred on whether or not it also has a constitutional aspect. In different cases it has been described as variously being based, on natural justice (The People v O’Shea – per O’Higgins J.) on “fundamental fairness of legal procedures, inherent in our Constitution” (The People (Director of Public Prosecutions) v Quilligan (No.2) [1989] I.R. 46 at p. 57, and on Article 38(1) (Feeney v District Justice Clifford [1989] I.R. 668). Whichever, it must be recognised that such principles are and have been seen as anchor pillars of the criminal justice system for a long time. Therefore, when the Oireachtas intervenes in such a pervasive way to circumscribe these principles, the provisions attempting to do so must at every level be strictly construed and rigorously critiqued.  

  741. Authority is hardly required for this proposition: it is so stated in every reputable textbook which deals with the issue and also in several cases from our courts, such as Inspector of Taxes v Kiernan [1981] I.R. 117 and C.W. Shipping Co. Ltd v Limerick Harbour Commissioners [1989] I.L.R.M. 416, to name but two. Others from the neighbouring jurisdiction include Cox v Hakes [1890] 15 App. Cas. 506 at p. 522 and Great Southern and Western Railway Co. v Gooding [1908] 2 I.R. 429 at p. 431, each cited with approval by Hamilton C.J. in Considine. There is therefore in my view, no scope for any other method of interpretation. Not only would any relaxation in this regard be without precedent, it would also constitute, by utterly insufferable means, an intolerable undermining of these very principles, so cherished for so long in our democratic society. Accordingly, in my view, s. 23 of the 2010 Act, cannot be read in the manner suggested by the DPP, unless by clear and unequivocal expression, one can only discover a legislative intention to so do.

    Point 1 on Section 23: (Para. 49(1) supra)

    Aspects (1) and (2) of Compelling Evidence (subs. (14)):

  742. The first matter which I propose to consider is how can this Court evaluate the “compelling evidence” requirement of the section, in a trial such as that which occurred in this case? Disregarding the fortuitous circumstances in which the DPP finds herself on this point (paras. 44 and 46 supra), I would venture to suggest that this aspect of the section is almost unworkable, in several quite common situations like that experienced in the instant case.

  743. It is worth reminding oneself of the circumstances in which the subject ruling came about in this trial, the conduct of which was not untypical of what might normally happen in most trial courts, when the judge is called upon to make a ruling or issue a direction of the type contemplated by subss. (3)(a) or (3)(b) of s. 23. Practices will of course vary but what happened here would not at all be that unusual.  

  744. Having pleaded not guilty on arraignment and having had a jury sworn to try the indictment, the learned judge was told, before any evidence was tendered, of a legal issue which required a voir dire to determine its outcome. The controversy, whilst technically one of mixed fact and law, raised, as the only contested matter the circumstances surrounding the entry of the gardaí into the respondent’s dwelling house on the occasion in question. The resolution of this point had nothing to do with the reliability or value of the evidence subsequently obtained during the course of interview, and thus it was perfectly understandable why such evidence formed no part of the hearing: as it equally was that other potentially excusing events which might separately have lead to its exclusion, or even simply to have cast doubts upon its cogency and weight, were likewise never explored.  

  745. The decision of the judge on this issue, whatever it might have been, would not have changed the dynamics of the run of the trial. As we know, she ruled that the evidence, as a matter of constitutional law, was inadmissible per se: it was therefore never lead in any meaningful way. If she had decided otherwise and held that the arrest was lawful it would have followed that the contested admissibility issue had been decided in favour of the DPP: in such circumstances the trial would have commenced before the jury and, inter alia, the interview evidence would have been given in the normal way with the accused being able to challenge its cogency and weight, if grounds existed therefor. However, if such had occurred, there would of course never have been a ruling or direction capable of a s. 23 appeal. As a result of what happened, a course adopted entirely at the behest of both counsel, the evidence which the DPP intended to place before the jury, upon which guilt or innocence would be determined, was never in fact adduced in the proceedings.  

  746. Notwithstanding these circumstances, this Court is being asked to satisfy itself that there exists in this case, evidence which meets the conditions of subs. (14) and thus constitutes “compelling evidence” for the purposes of s. 23 of the 2010 Act.  

  747. I entirely reject the effort made by the DPP to move a motion whereby the Book of Evidence would be laid before this Court as part of the appeal. Even if such was allowed, the book could not be said to constitute evidence by which the requirements of the section could be evaluated. I expressly reserve my position whether, if ever and if so on what conditions, evidence could firstly be laid before this Court on a s. 23 appeal, without having been previously tendered in the court of trial. In many respects being forced to resort to such a motion demonstrates how impractical the section is on an occasion such as this.  

  748. Were it not for what defence counsel put on the record regarding the potential force of what is apparently contained in the relevant memoranda of interviews (paras. 43 and 45 supra), I would unhesitatingly have decided that there was no material before the Court upon which the provisions of subs. (14) could be tested, let alone be satisfied. There simply would have been no evidential basis upon which the Court could even entertain the appeal. The same would therefore have had to be dismissed as “compelling evidence” could not be shown to have been excluded.  

  749. However, counsel did say what is recorded as being his, which is being relied upon without challenge. Whilst I do not in any way criticise him or her for so doing, as the submission in question was intended for an entirely different purpose, nevertheless it is there and effect must be given to it. Therefore, only by reason of these very unusual circumstances will I hold, that by concession there is in fact in existence, such evidence as satisfies the section.  

  750. Notwithstanding this conclusion however, I would like to further comment on subs. (14) of s. 23. In order to make this discussion understandable, I will do so on the assumption that during the voir dire the content of the subject memoranda were read into the record by the interviewing gardaí but that otherwise there was no further engagement with that evidence (see however, paras. 65 – 67 infra). In that context, could I firstly take the requirements of “reliability” and “probative value”. While such terms might be relatively well known, their application in practice can only be viewed in a concrete setting; that is within the run of a trial where the evidence is listened to, the surrounding circumstances outlined and the demeanour of witnesses observed. Furthermore, a critical element of such process is the right of an accused to challenge, or contest, the evidence as given.  

  751. In this case on the assumption made and on the further assumption that “contestability” had a much broader reach than in fact it had, one can only speculate in what way defence counsel might have interacted with the interviewing gardaí. This of course would have depended on what attitude the respondent might take to the alleged admissions. Several feasible and by no means fanciful options, might have been open, such as a denial that the admissions were made, that the same were accurately noted or recorded, that the surrounding circumstances were unfair or oppressive, that some threat or inducement might have been issued, or that they were not voluntary given. In addition, it may have been possible to suggest other circumstances which might have adversely impacted upon such evidence: or of course there may have been no challenge. However, as events unfolded, one will simply never know.  

  752. Matters of challenge such as those which I have mentioned, are essentially issues for the judge and not for the jury. The former determines admissibility if it arises, not the latter. Admissibility however, is not the statutory test. What is, are factors over which the jury has competence: and yet any exploration of these is highly unlikely (para. 754 infra). What thus could this Court make of the interview memos, even if viewed? In the absence of the concession mentioned, may I suggest terribly little, if anything. This real practical difficulty also feeds directly into both the next point and into a consideration of Point No. 3 on s. 23, which I will discuss at paras. 766 – 771 infra.  

    Aspect No. 3 of Compelling Evidence: (subs. (14) of s. 23)

  753. As above noted, compelling evidence is that which is “reliable”, is of “significant probative value”, and 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” (s. 23(14)(c)) (para. 244 supra). As is therefore clear, this Court must be satisfied that the excluded evidence complies with this statutory requirement in all respects. How can it be so satisfied?

  754. The third element of s. 23(14) is also highly troublesome. As stated, it obliges this Court to satisfy itself that the excluded evidence, when taken together with the other evidence “adduced in the proceedings” is such, that a jury might reasonably be satisfied to convict. Again disregarding the concession which the DPP relies upon for a moment, it seems to me that in the absence of any evidence having been given, and thus challenged or tested on the question of guilt or innocence, this requirement is incapable of being evaluated and therefore is utterly inoperable in the statutory context.  

  755. Even however if the DPP had attempted to have the excluded evidence opened to the trial court during the voir dire application, what might have happened? It is quite likely, with some justification, that the judge would have considered such evidence as being irrelevant to the issue then for her decision, such issue being much narrower than the scope of the assumption made in para. 751 supra. Even however if allowed, it is even more difficult to see how any engagement by defence counsel with such evidence, would have helped her in solving that issue. In practice therefore, it is very demanding to see in a situation such as this, how subs. (14)(c) of the section can be operated. It would seem premature for the DPP to indicate her intention to appeal before the admissibility application is made or ruled upon. It would appear cumbersome and somewhat unreal to have the judge re-run the application purely to establish a foundation upon which a s. 23 appeal might theoretically be moved. Other options are difficult to imagine. I therefore do not see how it can work, at least without some major and quite disruptive modification to well established and well trusted trial practice.  

  756. In addition, even if the excluded evidence had been led in the sense of the memos being read into the record, I repeat rhetorically, what is this Court to make of such evidence at appeal level? It seems intuitively objectionable to ask the Court to embark upon such an exercise, which is quite unlike say what the Court of Criminal Appeal does when reviewing the trial evidence, so as to test the evidential basis upon which a jury might have convicted. Obviously the judge in the voir dire would have expressed no view on the capacity of the evidence to sustain a verdict: in fact it would be quite wrong for her to so do: what therefore is this Court expected to do? Look and read the memos, become assessors of fact or of inferences, at least to some degree, make a judgment on weight, probity and reliability without any opportunity being available to defence counsel to contest the evidence, or to act out the role of a jury in deciding that it might convict. May I respectfully suggest that in the circumstances outlined such a task is I think, one wholly unsuitable to this Court.

    Point 2 on Section 23: (para. 49(2) supra)

  757. As earlier stated I am satisfied that s. 23 of the 2010 Act should not be viewed in isolation or even only as part of the remaining provisions with which, it is directly linked: it must in my opinion be considered in conjunction with Part 3 of the Act, which includes ss. 8 – 10 thereof. In so doing it is I think important to keep in mind a distinction between what the provision seeks ultimately to achieve and how it proposes that result to be accomplished. When considered in this way, and having applied a strict method of interpretation, I am not satisfied that such a significant impairment of traditional and historical rights was intended, to be imposed in the circumstances which present themselves in the instant case. In other words, I do not accept that the ruling made by the trial judge can be correctly classified as being “erroneous”, for the purpose of s. 23(3)(a) of the 2010 Act.

  758. The overall objective of the 2010 Act is patently obvious to me. As already explained ss. 8, 9 and 10 of the Act, are by express provision, intended to deprive those to whom they apply, of the protection afforded by the principle of double jeopardy. It is likewise, I am satisfied, with s. 23 of the Act, as its statutory heading makes quite clear. Therefore, the declared intention of these provisions is to attack, and have stood down the acquittal order, so that the individual in question can be re-tried. That much is, I think, evident and is entirely consistent with, and follows from the approach which I have above adopted, to the interpretation of the section.  

  759. How such objective is to be achieved however, differs as between ss. 8 and 9 on the one hand and s. 23 of the Act on the other. In the case of a s. 8 person, the gateway is through the discovery of “new and compelling evidence”, and in the case of a s. 9 person it is the existence of “compelling evidence” as well as establishing that the original trial was tainted. If such have been established then, having considered the interests of justice, the court is empowered to quash the original acquittal and make a re-trial order. No part of this process however involves impugning the manner and way in which the original trial was conducted or how the trial judge interpreted or applied relevant legal principles. The conditions which must be satisfied in the case of a s. 23 person are however different. As applicable to this case, the DPP must establish in effect that the impugned ruling, which led to the exclusion of the evidence, was made erroneously which can only mean that it resulted from an error of law on the part of the trial judge.  

  760. The majority of the Court so hold and they do so by re-examining Kenny and concluding that the exclusionary rule should be set aside and in substitution therefor, there should be a new test, containing the elements as specified in of the judgment of Clarke J, para. 213 supra. They conclude therefore that the trial judge acted “erroneously” in applying Kenny, the effect of which can only be that instead, she should have applied the test as suggested by them. I find it impossible to accept that this scenario could have been within the contemplation of the Oireachtas when enacting s. 23. For such to be the case the legislature must have intended to stand down the cherished principles of legal certainty and acquittal finality, as well as providing for a re-trial of the declared innocent, even where firstly, as in a case such as this, the DPP acknowledged both the constitutional correctness of the law as applied by the trial judge and the constitutional obligation of her to so do, and secondly, where as a matter of fact it would have been impossible for her to apply the test as now espoused,. There is to my mind something entirely illogical about such a proposition and as the legislature could not be assumed to have enacted law with such effect, I am satisfied that in the circumstances of this case no appeal lies to this Court as the ruling cannot be said to have been made “erroneously”: or as the section requires, erroneously so made “during the course of the trial” (s. 23(3)(a) of the 2010 Act).  

  761. If it was otherwise, great ambiguity and confusion would be infused into the trial process which could jeopardise the confidence and conviction of those who are mandated to ensure compliance with fundamental rights, with fair procedures and with the due process provision of Article 38.5. This case was not one where some rule or statutory provision was overlooked, where some uncertainty existed in their meaning or application, where the law was unsettled or subject to inconsistent judgments, or even where some novel point was at issue. Further, the trial process provided for under the Constitution and given effect to by the Oireachtas and the judiciary is adversarial in nature, with the DPP deciding on what charges should be preferred in a criminal prosecution and on what evidence should be lead in support thereof. In addition, she is entitled to make submissions on every legal issue which arises, as of course is the accused person. As a result therefore, the trial judge should be in a position to precisely know what issues call for her determination and also to know the existence of any conflicting views, on relevant legal principles.  

  762. It is strikingly significant that the voir dire was argued solely on the basis of the lawfulness of D/Gda Burke’s presence in the premises on the occasion in question. Much debate was had on that issue including the provisions of s. 6(2) of the 1997 Act. It is however even more conspicuous to note that no submission of any description was made on behalf of the Director of Public Prosecutions, regarding the application of Kenny, in the event of the trial judge ruling against her submission on the lawfulness of the arrest. Counsel on behalf of the respondent advanced arguments on the exclusionary rule which were entirely consistent with the universally understood meaning of the decision in Kenny. Counsel on behalf of the DPP took no issue whatsoever with those submissions. In fact, Kenny never featured in any way or at any level in the prosecution’s response to the application as made.  

  763. It must therefore be asked how the trial judge could have known or ascertained that in applying Kenny she was in effect committing an error of law such that, would entitle the state to appeal her decision under s. 23 of the 2010 Act? Evidently, the DPP did not consider her application of the law to be in any way erroneous at the time. To have the right to fundamentally alter one’s position, almost immediately, with such far reaching consequences, is most objectionable, even unseemly: the least that the trial judge can expect and the law demand for her, is that if she rules in a certain way she must be told that she will, in that party’s submission, be acting in error. Without such protection, valuable safeguards for an accused person will be constantly undermined and liable to “hindsight” challenge, which inevitably will corrupt public confidence in the justice system.  

  764. In concluding as I have however, I wish to make clear that I do not in any way intend to challenge the normal practice, whereby a constitutional court, at review or on appeal, can decide that a judge had committed an error of law in any of the several ways in which such issues normally issue. My decision on this point relates only to s. 23 of the 2010 Act.

  765. For the above reasons, I thus cannot accept that this aspect of s. 23 has been satisfied.

    Point 3 on Section 23: para. 49(2) supra:

  766. The final aspect of s. 23 of the 2010 Act which should be addressed, is to determine what jurisdiction this Court is given by virtue of subs. (11) of the section.  

  767. From the above analysis of s. 23 of the Act (paras. 31, 37, 40 supra), I make clear that in my view the pivotal target of the section is the seeking of a re-trial which, for the reasons previously explained, would, if made, of necessity involve quashing the preceding acquittal. That this is the focus of the provision, which is also supported by Part 3 of the Act, in particular by ss. 8 – 10 thereof, is evident from the specific wording of subs. (11) itself.

  768. This subsection (para. 710 supra), empowers this Court to order a re-trial and quash an acquittal if it is satisfied as to the requirements specified in subs. (11)(a)(i) and (ii) of the Act. Those requirements are conjunctive and cannot be severed. The first is that as part of the trial or appeal process, a ruling has been made which erroneously excludes compelling evidence. That however is but one of twin requirements. The second is that in addition a re-trial is ordered. Unless the court is satisfied as to the existence of requirement one and requirement two, it must affirm the acquittal.  

  769. This interpretation is entirely consistent with what I believe to be the legislative motivation behind both Parts 3 and 4 of the 2010 Act. As previously stated, quashing a conviction without ordering a re-trial is an exercise in futility and at least, is constitutionally questionable. In the context of s. 23, for this Court to disassociate one condition from the other, leads to a highly suspicious and problematic result.

  770. The lodging of an appeal to this Court is only permitted where the requirements of subss. (3)(a) or (3)(b) of the section have been satisfied. As noted, these involve a ruling which is erroneous and which has the effect of excluding “compelling evidence”, which term is defined as incorporating the three elements above discussed. One of those involves this Court concluding that but for the erroneous ruling, the entirety of the evidence adduced would have been such as might reasonably have led a jury to convict the person in question. If one therefore comes to that conclusion, explicit within it is a finding that the excluded evidence was reliable and of probative value and that the entire evidence, when viewed as a whole, was capable of sustaining, on its merits, a guilty verdict in respect of the accused person.  

  771. And yet, if no re-trial is ordered, the acquittal must be confirmed. Such a result in my view is entirely irrational and can only have the effect of seriously putting and forever keeping in issue the guilt of the respondent on the one hand, whilst nevertheless affirming in the same breath, his preceding acquittal on the other: an end point which in my view is intrinsically inconsistent. This Court should not endorse such contrivance. Accordingly, I do not accept that such an interpretation of subs. (11) is open. Futhermore, such a situation is intuitively objectionable and inherently offensive to deep rooted values of the criminal justice system. It is a frontal attack on the acquittal and is leaving a public stain on the character of the respondent who has no legal means of correcting that life lasting stigma. I, therefore, deeply object to such interpretation.  

    Miscellaneous:

  772. A final matter is that, in light of both parties agreeing that no jurisdictional issue arises by virtue of subs. (3) of s. 23 of the 2010 Act, I would propose to proceed on that basis without offering any independent view of my own on this provision. If and when the issue should become contentious, the same can at the appropriate time be dealt with.

  773. Notwithstanding my conclusion that this appeal should be dismissed, I must however, in light of the importance of the majority judgment of this Court, express a view on the remaining issue, which clearly is one, of great moment.

    Issue No. 3: Kenny:

    Review Jurisdiction:

  774. For the purposes of this issue, Kenny does not suffer from the fact that the law so outlined was established by majority decision as distinct from unanimous judgment. If it was otherwise, any divergence of judicial view could be exploited to create an ever increasing level of uncertainty which might be harmful to the desirability of judges, fully and freely expressing their views on any given issue. Once delivered, even in the face of dissenting views, the judgment becomes the law. (Carron & Kane v McMahon [1990] 1 I.R. 239 at p. 271 read in the light of Finucane v McMahon [1990] 1 I.R. 165 at p. 207 (Finlay C.J.) and at p. 218 (Griffin J.). This is not to say of course that if such a majority judgment is later challenged as being distinctly wrong, the views of those dissenting may not be relevant: quite clearly they will or more accurately, they might be. This however is quite a different point from doubting the authority of the judgment, once given.  

  775. I do not see that the law has changed much over the years, when a previous decision of this Court is sought to be reviewed. The following of precedent as such, upon which a great deal of our justice system is based, is not what is in issue: and neither was it when the point was first authoritatively looked at in Attorney General v Ryan’s Car Hire Limited [1965] I.R. 642 (“Ryan’s Car Hire”). It was in fact the “rigidity” aspect of stare decisis; an aspect which at the time led the House of Lords, a strict adherent of the rule, to follow all of its earlier decisions on questions of law unless and until relieved from so doing, by legislative enactment (London Street Tramways Co. Ltd v London County Council [1898] A.C. 375). Even however with such a strong attachment to the rule, some relaxation was evident as early as 1928 (Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] A.C. 358), and the same has increasingly continued to this day.

  776. In Ryan’s Car Hire, various expressions were used to indicate what would be an acceptable yardstick by which an earlier decision could be stood down and overruled. It was said that to do so, the court should be “convinced” and “clearly of the opinion” that the earlier decision “was wrong” or “clearly wrong” and had been erroneously made or arrived at. The approach was put thus by Kingsmill Moore J.:- “[w]here such a Court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases” (p. 654). If followed therefore that if a decision was found to be profoundly wrong, it “should not be reinforced by repetition or affirmation” (Mogul of Ireland Limited v Tipperary (North Riding) County Council [1976] I.R. 260 at 272) (“Mogul”). In short, no court should stand by and perpetuate such an error.  

  777. A short time before the decision in Ryan’s Car Hire, this Court in The State (Quinn) v Ryan [1965] I.R. 70, set the scene for what was to become an essential component of the review process: whilst agreeing that stare decisis was not universally binding in constitutional cases, nonetheless the court said that it would depart from an earlier decision of its own, only, for “the most compelling reasons” (p. 127).  

  778. In applying the correct approach, it would not be sufficient for the court to simply believe, that a viable alternative to the delivered decision was also available on the facts and law of the indexed case, or that a different outcome was equally feasible: or merely that the later court inclined or even preferred a different view or a different conclusion (Mogul: O’Higgins J. at p. 269). The gateway to review is not so lightly placed: there must be compelling reasons, fuelled by exceptional circumstances to justify the court’s intervention in this way.  

  779. Kingsmill Moore J., in Ryan’s Car Hire gave examples of what might be considered to be, “exceptional cases”. These included (p. 654):-

    (i)

    where some material statutory provision was overlooked;

    (ii)

    where some such provision, although repealed, was applied; or

    (iii)

    where some binding authority was ignored.

    These of course were but instances where the test might be satisfied. Evidently the same conclusion might be reached in quite different circumstances, depending on the particular facts of any given case.

  780. Mogul was a case where to hold with a submission that consequential loss could be recoverable in a malicious damage claim, the Court would have been obliged to overrule Smith v The County Councils of the Counties of Cavan and Monaghan [1949] I.R. 322, which held that no such heading of loss was recoverable. Both O’Higgins C.J., and Henchy J., who gave judgments, declined this invitation, being satisfied that the high point of the submission rested only on the basis, that a contrary view as to the statutes’ interpretation, might also be available.  

  781. Henchy J. at p. 273 stated:-

    We are concerned here with a pure question of statutory interpretation which was fully argued and answered in Smith’s case after mature consideration. There are no new factors, no shift in the underlying considerations, no suggestion that the decision has produced untoward results not within the range of that court’s foresight. In short, all that had been suggested to justify a rejection of that decision is that it was wrong. Before such a volte-face could be justified it would first have to be shown that it was clearly wrong .... In my opinion, counsel for the applicants have, at most, established no more than that the interpretation for which they contend might possibly be preferred to that which commended itself to the court in Smith’s case. This is not enough. They should show that the decision in Smith’s case was clearly wrong and that justice requires that it should be overruled. They have not so done. I would therefore decline the invitation to overrule the decision ....,

    The learned judge also added the following (p. 273):-

    Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand.

  782. The intervention route is not of course confined to cases involving questions of statutory interpretation or instances where the circumstances come within the examples given by Kingsmill Moore J. in Ryan’s Car Hire. That was not the intention of the judgment and there is nothing in Mogul to so restrict its use. Indeed, the case law shows a variety of factual and legal situations where this Court has entertained this type of application: on some occasions agreeing to overrule and on others declining to do so. These include:-

    (i)

    The granting of a declaration that s. 62 of the Courts of Justice Act 1936 was constitutionally invalid, which had the effect of overruling The State (Shanahan) v Attorney General [1964] I.R. 239; (Costello v Director of Public Prosecutions [1984] I.R. 436).

    (ii)

    The refusal to lift an injunction which depended for its validity, at the time of issue, on the correctness of Attorney General (The Society for the Protection of the Unborn Children (Ireland) Limited) v Open Door Counselling Limited [1988] I.R. 593, a case involving Article 40.3.3 rights as founded on the Fourteenth Amendment to the Constitution: (The Society for the Protection of the Unborn Children (Ireland) Limited) v Grogan (No. 5) [1998] 4 I.R. 343): it was not however continued at appeal level in view of the constitutional and legislative changes, which had occurred in the intervening period.

    (iii)

    The refusal to follow one aspect of an earlier decision given on an Article 26 reference in In the Matter of Article 26 of the Constitution and in the Matter of the School Attendance Bill 1942 [1943] I.R. 334 at p. 346, paving the way for the District Court to convict a mother for failing to send her child to school in circumstances where suitable elementary education was not otherwise being provided: (Director of Public Prosecutions v Best [2000] 2 I.L.R.M. 17 – Keane J.).

    (iv)

    The dismissal of an invitation to overrule the approach adopted by the court in De Rossa v Independent Newspapers plc [1999] 4 I.R. 432 to the assessment of damages by a jury in defamation proceedings (O’Brien v Mirror Group Newspapers Ltd [2001] 1 I.R. 1).

  783. It can therefore be seen that there is a wide divergence of circumstances in which the rule has been engaged. In none of the cases as cited however, have the basic principles as outlined in Ryan’s Car Hire and Mogul been modified or altered in any substantive way nor have I seen any tendency by the court, to do so.

  784. The question therefore is whether Kenny, when these legal principles are applied to that decision, was so clearly wrong in both outcome and reasoning, that unless overturned this Court would be lending its authority, to a decision which for compelling reason is, and can be seen to be, definitively incorrect? In order to arrive at a conclusion on this point it is evidently necessary to evaluate Kenny, which in turn requires a consideration of the case law going back to O’Brien and also that which emerged in the intervening period between both.

    Was Kenny Wrongly Decided?

    The Submissions of the Appellant:

  785. The DPP begins her submission with effectively an expression of regret, that this Court did not address in Director of Public Prosecutions v Cash [2010] 1 I.R. 609 the issues which she has with the absolute exclusionary rule, as she calls it: resiling only somewhat from that position, by conceding with reluctance that ultimately it was not necessary for the Court to so do. She now wishes to reiterate and restate many of those arguments for the purposes of inviting this Court, once again, to overrule the majority decision in Kenny. She complains in particular about the meaning which the majority judgment gave to the phrase “deliberate and conscious violation”: she says that it should be understood as referring to an act “which is deliberately unconstitutional”, and not as the Court decided. As the rule presently stands, she asserts, and this in reality is the sole and fundamental premise of her submission, that it has “insufficient regard for community interest in the prosecution of crime, and is at variance with the more balanced exclusionary rule observed in many other common law jurisdictions”. On this basis she seeks an overruling of Kenny.

  786. On another reading of her submission there is a less venturous claim being advanced: it falls short of starting afresh and instead seems to graft onto the existing rule an exception, in the terms of this case. If acceded to, Kenny would not cover a situation where the officer in question had no reason to believe that the search or arrest were other than lawful and where the warrant facilitating either or both was duly and properly granted on foot of an Act of the Oireachtas, necessarily and properly presumed by all organs of the State, to be constitutional but which subsequently, was declared otherwise. In due course I will arrive at both submissions.  

  787. The DPP’s challenge, in a substantive way, commences with a review of The People (Attorney General) v O’Brien [1965] I.R. 142 (“O’Brien”). For present purposes, she recalls as the most striking and significant feature of the case, the fact that the search so carried out was both deliberate and unlawful. Having set out relevant extracts from both judgments of the Court, it is claimed by particular reference to the passage in the judgment of Walsh J. (p. 170), that the phrase “deliberate and conscious” was used by him in the sense of one knowingly breaching the constitutional rights of another. In its ordinary and natural meaning the phrase should also be understood in this way and if so, “some element of mens rea”, must exist. This understanding of the term is also deducible from the Court’s ultimate decision in finding that there had not been in the circumstances as outlined, any deliberate and conscious violation of the O’Briens’ constitutional rights.  

  788. This view, it is said, is supported by Kelly in the second edition of that great work, (J. M. Kelly, J.M. Kelly: The Irish Constitution (Dublin; Tottel Publishing; 1984) at p. 184), where ignorance of the error is offered as the reason why the exclusionary rule was not applied to the facts of that case. Reference is also made to The People (Director of Public Prosecutions) v Lawless(1985) 3 Frewen 30, where a mistake in the address of the subject dwelling house, similar to that in O’Brien, was likewise overlooked. In particular however, much reliance is placed on the majority judgment in The People (Director of Public Prosecutions) v Shaw [1982] I.R. 1 (“Shaw”) (Griffin J.) which adopted and approved what the DPP says was the meaning given to the subject phrase in O’Brien. The understanding of Walsh J., who gave the minority judgment in Shaw, that O’Brien did not in any way suggest that the rule depended on the violator’s knowledge of constitutional law, or indeed of the ordinary law, was dismissed, as being misplaced. The DPP’s position, it is said, also reflects the invariable practice, not only of the judiciary but also of practitioners, during the intervening period (Director of Public Prosecutions (Walsh) v Cash [2007] IEHC 108 – Charleton J.).  

  789. It is fairly acknowledged, as it must be, that the majority decision in Shaw was expressly rejected in favour of Walsh J.’s understanding, by the Court in Kenny, where the issued search warrant was found to be invalid on the basis that the Peace Commissioner could not have satisfied himself as to a necessary statutory requirement. To those who believe that ignorance of the law should not be incentivised, the DPP refers to the decision of the Court of Criminal Appeal in that case, as offering some necessary comfort. It is however unclear to me, whether the relevant passage of that judgment, delivered by O’Hanlon J. (para. 847 infra), is being adopted by the DPP in the instant case and if so, whether she is suggesting that the same should be incorporated as part of a reformulated Kenny, if that should occur.  

  790. In addition to relying on Shaw, the DPP also urges upon this Court the dissenting views of Lynch J. which appear at pp. 141-142 of the Kenny judgment. These read as follows:-

    Of course the gardai contributed to the error by adopting a form of information which was in fact inadequate but which had for many years been accepted by both District Justices and peace commissioners as adequate. To suggest that the gardaí deliberately withheld evidence of facts in their possession from the peace commissioner is to suggest that they deliberately imperilled the strength of their own case against the appellant without any reason whatever especially as the evidence in the trial demonstrates that if the peace commissioner had asked for evidence of facts there would have been no difficulty in furnishing him with such evidence so as to lead to the valid issue of the warrant which was in fact invalidly issued.

    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.

    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 .... Healy .... there was manifest and 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. If there is no such element of blame or culpability or unfairness in relation to the breach of the constitutional right on the part of those who obtained the evidence then the evidence should be admitted and no question of excusing circumstances arises.

    In my opinion .... O'Brien .... is on all fours with this case and I follow it. I also follow the majority judgment in .... Shaw .... which emphasises the importance of fairness or unfairness in the admissibility or inadmissibility of the evidence.

    The other minority judgment, that of Griffin J., is also being heavily pressed.

    The deterrent effect – justification for a strict exclusionary rule:

  791. Under this heading, the DPP denies that there is any constitutional imperative supporting the absolute exclusionary rule as being either necessary or appropriate to best defend or uphold the inviolability of the dwelling house. The guarantee contained in Article 40.3 of the Constitution is to vindicate personal rights as “far as practicable” (3.1°), and to protect them from unjust attack “as best it may” (3.2°). This suggests that competing rights and obligations of citizens may have to be balanced on occasion. Where so arising there are “many other means” of vindicating rights, for example by civil action. Moreover much has changed in the legal and regulatory landscape since Kenny regarding garda conduct and the means by which lawless ventures can be corrected. Lynch v The Attorney General [2003] 3 I.R. 416 was a case where the Supreme Court rejected a suggestion that, extradition should be denied as having a deterring effect for garda misconduct, which had induced the subject person into giving information in return for a promise that the warrant would not be executed. The inter-state arrangements between the countries involved, had to be honoured.  

    The Exclusionary Rule in other Jurisdictions:

  792. From a survey of what the comparable position is in other common law jurisdictions with written Constitutions, it is submitted by the DPP that the absolute exclusionary rule does not apply in any other such country: in fact recent trends have favoured a more inclusive approach, to be arrived at via a balancing test by which various competing, or even conflicting factors, are assessed. Much emphasis has been placed on what the position is, in the United States (US), taking into account the latest case, as cited, which is Davis v United States 180 L. Ed. 2d 285 (2011). This case, from my examination of the authorities (paras. 169 – 198 infra) is but one of many decided over the past thirty years during which what is described as the “substantial social cost” of exclusion, together with a much constricted view of the remedial effectiveness of deterrence, have both assumed an importance vastly greater than previously, with the result of severely impacting on the wider operation of the rule.  

  793. In Canada there is a specific statutory provision dealing with the exclusionary rule: it is contained in s. 24(2) of the Canadian Charter of Rights and Freedoms (“the Charter”). This section, in both its interpretation and application, has been reconsidered on several occasions over the past number of years with the latest review being conducted in R. v Grant [2009] S.C.C. 32. In short, the Court in determining whether to exclude the impugned evidence must consider what effect its admission would have on society’s confidence in the criminal justice system, having regard to:-

    1. The seriousness of the infringement;

    2. The impact of the breach on the protected rights of the accused; and

    3. Society’s interest in determining prosecutions on merit.

  794. Furthermore, it is also said that whilst the focus of their individual approaches may differ to some extent, the current Canadian situation is not that dissimilar to the practised jurisprudence of both Australia and New Zealand, in this area of the law.  

  795. In conclusion therefore, it is submitted that Kenny stubbornly stands alone, against an ever increasing wave of recent reform: it should, it is said, yield and accept that at least some modification of its strict position, is appropriate.  

    Standing down Precedent:

  796. The DPP seems to acknowledge that save in special circumstances and then only for “compelling reasons in exceptional cases”, should this Court stand aside the principle of stare decisis. It can however do so and in the past has on a number of occasions exercised such power. The relevant case law shows that when considering this matter:-

    1. The Court must clearly be satisfied that the earlier decision is wrong.

    2. The Court when making that assessment may be influenced, on the issue of principle, by approaches adopted in other jurisdictions.

    3. The nature of the issue, such as one having constitutional effect, may lend itself more readily to change than others, and finally

    4. Departure from earlier precedent may be more easily justified where traditional means of judicial positioning, as for example, by distinguishing the case, is unsatisfactory. It is submitted that the instant case falls within “exceptional circumstances” and thus, this sparingly used jurisdiction should be invoked.

  797. As justification for this suggested departure from principle, the following is further offered:-

    1. Kenny, which cannot be reconciled with O’Brien, also fails to address the tension which it has created between that case and the majority view in Shaw;

    2. Kenny's rationale involves an error of reasoning in that the Constitution does not require absolute protection in the vindication of rights: further, to create a “good faith” exception would not be inconsistent with such vindication;

    3. Kenny's consequences are disproportionate to the objective sought to be achieved;

    4. Kenny's emphasis on what best defends personal rights and its focus on “positive encouragement” does not justify the weight given to those factors: a “good faith” exception would not impact on the integrity of the criminal justice system and neither would it adversely affect the objective of deterrence;

    5. Kenny can be overruled without disturbing any settled expectations; and finally,

    6. Kenny's decision and the consequences which flow from the absolutist theory of constitutional rights,sits uneasily with cases such as A. v The Governor of Arbour Hill Prison [2006] 4 I.R. 88.

  798. In consequence it is asserted that this Court would be justified in the instant case in overruling or modifying the Kenny decision.

    The Respondent’s Submission:

  799. At the outset the respondent takes objection to the characterisation of the rule as being one which operates on a “absolute” or “near absolute” basis. As has been pointed out on several decisions, an act which is committed “unintentionally or accidentally” is not captured by the rule and in addition, even where conduct falls within its province, the rule can be stood down in the face of extraordinary excusing circumstances. Those circumstances are not confined to the three examples as given by Walsh J. in his judgment in O’Brien (p. 170 of the judgment).  

  800. It is also incorrect to suggest that the majority view in Kenny did not have regard to other competing policy considerations. As Finlay C.J. pointed out, anomalies could indeed arise from the rule which he proposed, but even so: (p. 134)-

    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’.

    Thus, it is clear that the public interest which the DPP suggests was ignored in Kenny, was in fact expressly considered by the Court not only in its formulation of the rule, but of necessity in its rejection of any alternative formulae. Further, any attempt by the DPP to draw a parallel between the basis upon which evidence is excluded following the application of this rule and the circumstances considered by the Court in A. v The Governor of Arbour Hill Prison [2006] 4 I.R. 88, is entirely misconceived.

    The Rationale for the Rule:

  801. In suggesting that the rule could have no deterrent affect in a situation where the relevant garda could have no knowledge that his actions were breaching constitutional rights, the appellant misunderstands the rationale for the rule which is not designed to address police misconduct. Rather, Finlay C.J. in Kenny, in favouring the stricter form of its application expressly refers to the necessity to provide “a positive encouragement” (p. 133), to all those involved in the prevention, investigation and detention of crime so that they should remain conscious of the personal rights of those who are subject to state laws, which must include even the investigators themselves. The State, for this purpose, includes the judiciary which is duty bound under Article 40 of the Constitution to defend and vindicate such rights. Essentially it was the furtherance of this obligation which prompted the Court in Kenny, to opt for the particular formation of the rule, which it did.  

  802. The respondent refers to the background constituting the Damache case, as proof in itself that such “positive encouragement” is necessary. He points out that the possible demise of s. 29 of the 1939 Act was expressly signalled in the “Burnfoot Module” of the Morris Tribunal which reported in 2006. The Court of Criminal Appeal, in Director of Public Prosecutions v Cunningham [2012] IECCA. 64 (“Cunningham”), described the procedure by which the section had been operated for many years, if not always, as representing “little more than a convenient and decorous formality which .... was in truth often little better than a warrantless search of a private dwelling”. Cunningham also identified a number of earlier decisions where potential difficulties with this practice had been highlighted. Given the public attention therefore, which had been legally drawn to this matter, it seems quite clear that but for an element of institutional culpability, this unacceptable policy should have been terminated at executive level, rather than having to have that outcome imposed upon the garda force, by the Supreme Court in February, 2012. Accordingly, it is quite misleading to suggest that the obtaining of the warrant in this case and the resulting search were “acts duly and properly undertaken on the faith of an Act of the Oireachtas which is presumed to be constitutional”.  

  803. It is submitted that the central question on this appeal is whether the Supreme Court should give its sanction to the state of affairs which was so roundly condemned in Damache, involving as it did “the systematic” participation by a state agency in a seriously flawed process. To have in place any rule, other than one which absolutely rendered inadmissible the fruits of such a process, is in effect to support the State’s breach of the very rights which the Constitution obliges the same State, to protect and vindicate. Brennan J. dissenting in United States v Leon 468 U.S. 897 (1984) and Holmes J. in Dodge v United States 272 U.S. 530 (1926) at p. 532, were both apt (with the learned justice in Dodge) stating:-

    If the search and seizure are unlawful as invading personal rights secured by the Constitution, those rights would be infringed yet further if the evidence were allowed to be used.

    Accordingly, there is every reason for this Court to fully endorse Kenny rather than to entertain even a modification, much less, an entire rewriting of it.

    The Benefit of Clarity:

  804. There is no doubt but that the rule, in its present form, brings a great deal of legal certainty to the situation it is intended to cover. This is a matter of considerable importance to all those who engage with the criminal justice system in this context. Such certainty will be severely challenged with any balancing test as by any yardstick, a large element of subjectivity will inevitably follow. If, as the DPP suggests, factors such as those mentioned by Lynch J. in Kenny, (“blame, or culpability, or unfairness including any such element to be inferred by the reasonable application of the doctrine ‘ignorantia juris haud excusat’” (p. 142)) should become part of the examination, the same would involve lengthy and contentious fact finding inquiries by the trial court in order to determine whether, even if existing, the degree of culpability was such, as would warrant the exclusion of evidence. In any such process the rights of an accused, a constitutional victim at this stage, would be subsumed within a place of minor or even lesser importance.  

    The Social Cost of the Rule:

  805. Despite the DPP’s claim that the rule “regularly” operates to “frustrate prosecutions” (para. 48 of the submissions), no empirical evidence of any description has been placed before the court, to support this assertion. On the contrary, the evidence available from the United States, before what the respondent says was “the erosion of the rule (commencing) with the judgment in United States v Leon ....” revealed that in the most serious forms of crime, namely murder, rape and other violent offences, the absolute rule was exceedingly rare in its application (Thomas Y. Davies ,“A Hard Look at What We Know (And Still Need to Learn) about the ‘Costs’ of the Exclusionary Rule: the NIJ Study and Other Studies of ‘Lost’ Arrests” (1983) American Bar Foundation Research Journal 611). It is therefore, not sufficient to merely so assert without offering in support, some tangible proof. In context, the reverse position could be considered and the question asked as to how many violations of key constitutional rights would have gone, without remedy, if the exclusionary rule was not in place.  

    Alternative Remedies:

  806. The suggestion advanced by the DPP that there exists alternative remedies which if implemented would support the vindication of a rights basis to the rule, is entirely misguided. It is difficult to envisage how a garda, who inadvertently breaches the constitutional rights of an accused person, as for example, by acting on foot of a warrant which was invalid, could ever be subject to any form of meaningful disciplinary action. The possibility of a civil suit has never been regarded in any jurisdiction as an adequate alternative to the exclusion of evidence in a victim’s criminal trial. Furthermore, it might be very difficult indeed, to successfully frame or prosecute such an action unless the basis for it was specified by statutory provision, which is not currently the situation, in this jurisdiction.  

    The Rule in other Jurisdictions:

  807. The position in the United States is discussed with the law as it stood immediately after Mapp v Ohio 367 U.S. 364 (1961), being set out. Thereafter, in the respondent’s submission, the Supreme Court, by very narrowly focusing on deterrence as the sole objective of the rule, has stripped it of much of its effect and utility. This has continued through later cases such as Hudson v Michigan 547 U.S. 586 (2006), Herring v United States 555 U.S. 135 (2009) and Davis v United States (2011). Even prior to these cases, it is pointed out that one academic commentator, more than a decade ago, felt it appropriate to adapt Judge Cordoza’s oft-quoted criticism of the exclusionary rule, to observe that “nowadays the criminal only ‘goes free’ if and when the constable had blundered badly” (Professor Yale Kamisar, “In Defence of the Search and Seizure Exclusionary Rule”, 26 Harvard Journal of Law and Public Policy, 119 (2003), p. 133).  

  808. The Court has also been referred to the Canadian Charter by the respondent and in particular, to three significant cases, R. v Collins [1987] 1 S.C.R. 265, R. v Stillman [1997] 1 S.C.R. 607 and the more recent decision of R. v Grant [2009] S.C.C. 32. Likewise, the position in Australia and New Zealand has been touched upon in general terms, including the New Zealand Court of Appeal’s treatment of the issue in R. v Shaheed [2002] 2 N.Z.L.R. 377 and the subsequent statutory codification of the rule in s. 30 of the New Zealand Evidence Act 2006.  

  809. In conclusion, it is submitted that this Court should not interfere with its previous decision in Kenny.

    Discussion and Decision:

  810. The issue for decision, is of course linked to the case of O’Brien, and to the several other judgments which have been given in the following twenty five year period, leading to Kenny. To understand the appellant’s submissions and to recognise the far reaching implications of what it entails, it is vital in the first instance to follow how the law developed during this period and to appreciate how it stood immediately before the decision in Kenny: as it is of course to understand precisely what that case decided. Accordingly, I propose to look at O’Brien and identify the issues which it decided, to review the decisions which followed, to set out what I believe Kenny established and finally on this aspect of the judgment, to summarise what the present legal position is.  

    The People (Attorney General) v O’Brien:

  811. The case concerned the validity of a search warrant which gave as the property’s address “118 Cashel Road”, Crumlin, instead of what was intended namely “118 Captain’s Road” Crumlin. It was unclear from the evidence whether the mistake was noticed prior to the search being carried out, but most likely it wasn’t and the Court so proceeded (para. 816 infra). The information sworn to obtain the warrant was accurate. The issue for the Supreme Court, on a certificate being granted by the Court of Criminal Appeal under s. 29 of the Courts of Justice Act 1924, despite its rather odd decision, in not even requiring to hear from the Attorney General, was whether the evidence obtained as a result of the search and upon which the conviction largely rested, should be excluded at the trial of both the O’Briens on charges of larceny and receiving stolen property, respectively.  

  812. The majority view on the ratio of the case was that a trial court had a discretion whether or not to receive “illegally” obtained evidence, which discretion involved a balancing test to be carried out on a case by case basis, by reference to the following factors:-

    1. Nature and extent of the illegality,

    2. Whether the breach was intentional or unintentional,

    3. If intentional, whether the same resulted from an ad hoc situation or was part of a settled policy,

    4. Whether the breach was trivial, technical or a serious invasion of important rights, the recurrence of which posed a real danger to necessary freedoms, and

    5. Whether there existed circumstances of urgency or emergency in the lead up to the search?

    This approach on the illegality point largely remains undisturbed to this day.  

  813. In essence, the Court held that the trial judge should ask himself or herself whether public policy, based on balancing public interest considerations, requires the exclusion of the evidence. Those interests were identified as involving on the one hand, the desirability of crime being detected and criminals being punished and to that end for the Court to have access to all available evidence, and on the other hand, the equally desirable objective of ensuring that individuals should not be subjected to illegal or inquisitorial methods of investigation and when they are, that the State should not be permitted to advance its own ends by utilising the fruits of such methods. Furthermore, the Court of Criminal Appeal, when called upon, could substitute its own views for those of the trial court on this issue, even if the discretion so vested in that Court, was not exercised on wrong principles.  

  814. On the particular facts of the case, the majority could find (p. 161):

    .... no evidence of deliberate treachery, imposition, deceit or illegality: no policy to disregard the provisions of the Constitution or to conduct searches without a warrant; nothing except the existence of an unintentional and accidental illegality to set against the public interest of having crime detected and punished.

    Describing the mistake as one of “pure oversight”, Kingsmill Moore J., representing that view was satisfied that the trial judge correctly exercised his discretion in receiving the evidence.

  815. Walsh J., who gave the minority judgment on the illegality issue, also spoke of the situation where in addition, the illegality in question violated one’s constitutional rights. Where that occurred the matter was much graver: if there was a “deliberate and conscious violation” of constitutional rights, then subject to some “extraordinary excusing circumstance”, the evidence should be “absolutely inadmissible”. He instanced three examples of such circumstances, namely the imminent destruction of vital evidence, the need to rescue a victim in peril and thirdly, where evidence had been obtained by search incidental to a lawful arrest, even though no search warrant was in place.  

  816. In that case however, the “wrong” alleged was but an error which remained unnoticed by the executing gardaí. There was therefore no deliberate and conscious violation of the constitutional right of the accused persons to the inviolability of their dwelling house (Article 40.5 of the Constitution) and accordingly, the evidence was not, “per se”, inadmissible.  

  817. Ó Dalaigh C.J. agreed expressly with the judgment of Walsh J.  

  818. At p. 162 of the report Kingsmill Moore J. in his judgment, expressed agreement with what had been stated by Walsh J. at the constitutional level (para. 815 supra). The learned judge was satisfied that where such a violation had occurred the evidence so obtained should “in general be excluded” and he also agreed that there may be certain circumstances which would warrant its admission. He did not however think it either possible or desirable to adumbrate by anticipation what circumstances might excuse, even a deliberate and conscious violation of rights, preferring to await individual cases for future development in this regard. He then concluded his judgment by saying (p. 162):-

    This case is not one of deliberate and conscious violation but of a purely accidental and unintentional infringement of the Constitution. In such cases as Mr. Justice Walsh indicates, the evidence normally should not be excluded.

    [emphasis added]

  819. A number of points from O’Brien, which I think are not controversial and although obvious in themselves, are once again worth repeating:

    (i)

    It is sometimes said that the decision was the foundation for what frequently is loosely and inaccurately referred to as the “absolute exclusionary rule”: such has never been the case and no such rule exists. (para. 167 infra)

    (ii)

    A breach of a constitutional right, but not such as amounting to a conscious and deliberate violation of such right, would not be captured by the rule.

    (iii)

    An error, purely “accidental” or “unintentional”, would not give rise to the resulting evidence being ruled inadmissible, solely on constitutional grounds.

    (iv)

    Examples given of what might constitute “extraordinary excusing circumstances”, or for short, “excusing circumstances” were not intended to be prescriptive.

    Moreover, the Court’s reliance on the fact that “the error” in question, which can only relate to the factual mistake of the house address, went unnoticed prior to execution, begs the important question as to outcome, if that error, as distinct from its legal consequences, had in fact been noticed but ignored by the executing officer or by his team at the time. Knowledge of the law at any level of the legal system does not appear to have directly featured in the discussion.

  820. Some further observations on this case must however be made: indeed it is essential to do so. Firstly, the key point at issue was the test by which illegally obtained evidence should be measured by a trial court. The three options outlined by Kingsmill Moore J. (p. 159), cannot be read otherwise: for to do so is to withdraw all relevant context and to ignore the legal framework of the discussion then underway: one cannot isolate what he said from the reality. Secondly, whilst the argument of counsel may have ranged afar, an experience frequently witnessed by this Court, the law made is the judgment stated and not otherwise. Thirdly, if Kingsmill Moore J. intended to resolve O’Brien at a constitutional level, not only is the structure and sequence of his judgment most surprising but even more so, is his failure to lead any views of his own on the issue. For certainty one can proceed with the utmost confidence, that such an occasion of constitutional importance would not have passed him by, if that was the level at which, he intended to decide the case. So I do not accept for a moment that O’Brien can be treated as anything other than having been deliberated upon at a sub-constitutional level, much less that the ratio of the Court’s opinion can be further elevated as has been suggested. Therefore it follows from this reasoning, as it must also from the decision itself, that all references to the exclusionary rule, in a constitutional context, were obiter.

  821. Whilst by now, some of the expressions referred to in the judgment are regarded as household phrases when used in context, it is significant to note that the Court did not in any explanatory or interpretative way, seek to attribute to them a defined meaning or otherwise signify by illustration or commentary, how what had been stated should in future be applied, in resolving contested issues. Apart from what is deducible from the result, matters were formulated and left stand at an entirely general level. Further, I can see no debate in the judgments which could possibly give rise to a claim, that the court was established a requirement of “intentionality” in the breach of a constitutional right, before the exclusionary rule became engaged. The passing reference by Walsh J. to the gardaí being unaware of the error could not sustain such a claim. Neither could the suggestion that the examples given of what constitutes “extraordinary excusing circumstances” were chosen deliberately, as inherently recognising a “conscious intent” to breach constitutional rights. If urgency is the common trend in the first and second examples, it may have no part whatsoever to play in the third (para. 815 supra): if in addition or separately, “deliberation” of gardaí activity is the point of the examples being referred to, it must be remembered that situations of operative urgency are most frequently responded to by immediacy of action and re-action where deep seated questions of legal knowledge are, at most, at that moment, considered incidental. Therefore, I do not accept that O’Brien expressly created any rule in this regard, certainly not one at binding level: accordingly, in my view it cannot correctly be said that Kenny overruled O’Brien in such regard.  

  822. With great respect, it also surprises me to read the suggestion that Kingsmill Moore J. was not supporting the exclusionary rule even where the circumstances by which evidence was obtained were those as outlined by Walsh J. at p. 170 of the report. If the learned judge was not, what was the point in offering any endorsement to the minority view on the constitutional issue? If his intention was to distance himself from the absolute rule, he must have had in mind some lesser threshold as a reference point by which the Court could determine admissibility. Whatever that might have been one can only speculate, but such must inevitably have involved some form of balancing test. If that is so, absent any contrary indication, it would strongly suggest a direct correlation between, if not an outright integration of that approach, with the one which he had previously appropriated to the illegality issue. That would have made no sense whatsoever in the constitutional context of the discussion: at least without the learned judge decisively stating that the exclusion proposed was being rejected. I am therefore of the view that the majority agreed with the application of the rule, in the manner suggested by Walsh J., when the circumstances so outlined by him, engaged its application.

  823. In this same context I do not believe that those references in the judgment of Kingsmill Moore J., which I have emphasised at para. 818 above, offer any support to the view that the “absolutely” inadmissible element of the rule, was being departed from or stood down, even where the prescribed circumstances existed. In my view, the first such reference was intended to accommodate and reflect the situation, where “extraordinary excusing circumstances” were found to exist, and not otherwise. Again, if that was not the intention of the learned judge, such evidence would simply fall to be determined in exactly the same way as evidence obtained illegally but not unconstitutionally. That, as I have said, would not of itself have merited any approval of the minority view. The second reference relates solely to illegally obtained evidence and has nothing whatsoever to do with the constitutional argument. Consequently, I firmly believe that when appropriately engaged the absolute nature of the exclusion was endorsed by the majority in O’Brien and therefore obtained unanimous court approval.  

  824. Finally, it is imperative to point out another key issue raised but not determined in O’Brien: it was the premise upon which the suggested rule rested. The only judge to deal with the matter was Walsh J. who viewed such basis as being rooted firmly in the recognition, protection and vindication of constitutional rights. At p. 170 the learned judge said:-

    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 had undertaken to defend and vindicate the enviability 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 ....

    [But see also p. 167 of the report.]

    This view, obviously obiter, does not appear to have been commented upon by the majority and accordingly, cannot be said to have formed part of the Court’s overall decision. What is significant however is that no dissenting, questioning or alternative view was advanced or advocated by the majority, whether deterrent driven or otherwise, and accordingly at a precedent level, the fundamental basis for the rule’s existence was left unresolved by O’Brien.

    From O’Brien to Kenny:

  825. The decision in Kenny indeed had a background, one undoubtedly triggered by O’Brien but one by no means exclusively resting on that case. It is therefore instructive to see how key elements of the discussion in O’Brien had developed by 1990, and what exactly were the issues arising therefrom which remained in controversy at that time. I therefore propose to chase some important aspects of O’Brien, via the ongoing views of the Court as demonstrated in its decisions in the intervening period leading up to Kenny. These in general terms are as follows:-

    1. What constitutes a “deliberate and conscious violation” of constitutional rights, either by inclusive or exclusive process,

    2. What was the rationale behind the creation of the excusing provision of the rule and what circumstances, other than the examples given in O’Brien, could potentially fall within its meaning,

    3. What were the distinguishing features of a constitutional violation, which on some occasions was said to amount to a deliberate and conscious breach, whilst on other occasions was described only, as being “unintentional” or “accidental”,

    4. What different forms of justification, if any, were suggested in judicial thinking as the basis for the rule,

    5. Did the assessment of a breach or the consequences thereof differ, depending on whether committed by the executive branch of government or for which it was responsible, or by the judicial branch of government,

    6. Did any divergence emerge in the application of the rule between confessional evidence and hard evidence or where the violation resulted from unlawful entry or illegal detention?

    7. Where engaged and in the absence of excusing circumstance, what imperative consequences does the application of the rule demand?

    As several of the cases overlap on these issues, it will be more convenient to designate authority to each point by way of summary at the end of this case review, rather than to do so, on an ongoing basis.

    Case Review:

    The People (Director of Public Prosecutions) v Madden [1977] I.R. 336 (“Madden”):

  826. At 6.40am on 21st June, 1975, the gardaí started to take a statement from Mr. Madden whose period of detention was due to expire 35 minutes later. There was no provision by which that period could be extended at the time, and no person could be held by the gardaí purely for questioning or to “help [them] with their inquiries”. The sole purpose of arrest was either to charge the individual or bring him before a court as soon as practicable.  

  827. The process of taking the statement did not end until some time between 10.00am and 10.30am later that morning. The admission of the resulting confession was challenged. The decision of the Court of Criminal Appeal was given by the then Chief Justice, O’Higgins C.J. He stated at p. 347 of the report:-

    What was done was, prima facie, done deliberately and, if so, consciously by the Garda officer concerned. Had there been any question of oversight or inadvertence with regard to the defendant’s constitutional rights, this would have become apparent at the trial. In fact no excusing circumstance was even suggested, apart from the assertion by Sergeant Brennan that the defendant was engaged in making a statement when the period of lawful detention expired. The court of trial appears to have sought an element of wilfulness or mala fides in the conduct of the Garda officer and, not finding such, to have concluded that the depravation of constitutional rights was not deliberate and conscious. In the view of this Court to adopt that approach is to misunderstand the decision in O’Brien’s case .... What was done or permitted by Inspector Butler and his colleagues may have been done or permitted for the best of motives and in the interests of the due investigation of the crime. However, it was done or permitted without regard to the right to liberty guaranteed to this defendant by Article 40 of the Constitution and to the State’s obligation under that Article to defend and vindicate that right. This lack of regard for, and failure to vindicate, the defendant’s constitutional right to liberty may not have induced or brought about the making of the statement, but it was the dominating circumstances surrounding its making. In the view of this Court this fact cannot be ignored.

  828. There are a number of points which emerge from this decision. Firstly, the act identified as being “deliberate”, was the continuation of Mr. Madden’s detention beyond the period lawfully provided for and secondly, the motives of the gardaí, even in one sense laudable, were not relevant. Therefore, the question of intention at least in this sense, was not a material factor in whether the act in question did or did not constitute a deliberate and conscious violation of liberty rights. Thirdly, the breach could not be explained by some “oversight or inadvertence”, and finally, the Court laid heavy emphasis on the protection of rights.  

  829. It is however also necessary to point out that in other parts of the Court’s judgment, O’Higgins C.J., seems to have suggested that by reason of his senior position within the force and thus being an experienced officer, Inspector Butler must have been aware of the expiry time of the detention period, and yet in defiance of what he should have done, he continued to question the appellant (pp. 344 – 346). Therefore, despite the endorsement of Madden by Walsh J. in The People (Director of Public Prosecutions) v Raymond Walsh [1980] I.R. 294 (“Raymond Walsh”) (pp. 317-318) as correctly interpreting O’Brien, it is not entirely free from doubt what part if any, knowledge by the Inspector of the legal position and even perhaps of the constitutional position of Mr. Madden, played in the judgment of the Court.  

    The People (Director of Public Prosecutions) v O’Loughlin [1979] I.R. 85 (“O’Loughlin”):

  830. In the South East of the country, cattle rustling became a major problem in 1978. Mr. O’Loughlin was arrested on suspicion of being involved in such activity. The gardaí however chose not to charge him when they should have: rather, they continued his detention as part of their ongoing investigation. This was not due to any oversight or inadvertence on their part as those involved were, according to the judgment of the Court (O’Higgins C.J.) experienced gardaí with special knowledge of citizens rights, and thus would have been fully aware that the ongoing detention was unlawful: this could not be excused even if the purpose of continuing with their investigation was commendable. The evidence obtained during interviews was therefore excluded. Again however, like Madden, the judgment refers to “the act” of continuing the detention as well as “the knowledge” which the gardaí had or should have had, that such was in disregard of Mr. O’Loughlin’s rights. What is clear however from both Madden and O’Loughlin is that the justification for the exclusion was firmly rooted in the vindication of rights principle.

    Decisiveness: Knowledge of act or law:

    The People (Director of Public Prosecutions) v Raymond Walsh:

    Knowledge of Act:

  831. The first issue in this case was whether or not Mr. Walsh was illegally detained at Store Street Garda Station at a time when his fingerprints were taken. If he was, it was accepted that such detention was a deliberate and conscious violation of his constitutional right to liberty and as a result, the evidence obtained by the use of such prints should be excluded. As it happened the majority took the view that at the critical time his detention was lawful: however, the case is of importance in the present context because of what Walsh J. had to say on the constitutional issue with which the other members of the Court agreed. In doing so the then Chief Justice, O’Higgins C.J., offered the following endorsement (p. 299):-

    I wish to say at once that this submission should succeed if the imprisonment or detention in Store Street cannot be justified in law. I have had the benefit of reading the judgment of Mr. Justice Walsh in which he reviews the authorities on this important aspect of constitutional law. I am in complete agreement with the manner in which he states the law.

  832. In his judgment, Walsh J. refers to what the Court had said in O’Brien and reaffirmed the vindication of rights basis for the existence of the exclusionary rule. He also rejected the existence of any residual discretion to admit the evidence where the breach had been deliberate and conscious. The learned judge then continued (p. 317):-

    If a man is consciously and deliberately kept in custody in a garda station or anywhere else without a charge being preferred against him and without being brought before a court as soon as reasonably possible, he is in unlawful custody and there has been a deliberate and conscious violation of his constitutional right to be at liberty. That this was the position in the present case is abundantly clear from the evidence given by the police officer at the trial. The fact that the officer or officers concerned may not have been conscious that what they were doing was illegal or that, even if they did know it was illegal, they did not think it was a breach of the Constitution does not affect the matter. They were conscious of the actual circumstances which existed.

    So the Court in this case, Kenny J. agreeing with the Chief Justice, declared that the act of violation constituted the breach, with knowledge of its legal or constitutional consequences, not being necessary for this purpose.

    The Alternative View:

  833. Perhaps for the first time the divergent views on this aspect of the rule, which up to then might have been simmering only, became overtly obvious in The People (Director of Public Prosecutions) v Shaw [1982] I.R. 1 (“Shaw”), the facts of which are not highly material to the issue of principle. Walsh J., at pp. 31-32 of the report, summarised his view of the law as follows:-

    8.

    Subject to paragraphs 9 and 10, evidence obtained as a result of deliberate and conscious violation of the constitutional rights of an accused person may not be admitted at the trial of that person: The People (Attorney General) v O’Brien: The People v Walsh: The People v Madden.

    9.

    There can be extraordinary excusing circumstances (such as the imminent destruction of vital evidence or the need to rescue a victim in peril or other extraordinary excusing circumstances) surrounding the conscious and deliberate violation of the constitutional rights of an accused which, in the opinion of the trial judge, may justify the admission of the evidence so obtained: (The People (Attorney General) v O’Brien: The People v Walsh).

    10.

    If the act which amounts to a breach of the constitutional rights of the accused person was committed unintentionally or accidentally, the evidence may be admitted at the discretion of the trial judge if it is otherwise admissible: (The People (Attorney General) v O’Brien: The People v Walsh).

    11.

    The principles enunciated at Nos. 8, 9 and 10 apply to voluntary statement made by an accused person as well as to other types of evidence obtained: (The People v Madden).

    12.

    Where it appears that there has been a breach of the constitutional rights of the accused, the onus of establishing the existence of “extraordinary excusing circumstances” or of mistake, or lack of intention or accident, is upon the party seeking to adduce the evidence: (The People v Madden: The People v Walsh).

    13.

    When the act complained of was undertaken and 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: The People v Madden.

  834. Further in his judgment the learned judge added: (pp. 33-34)-

    I might add that there is nothing whatsoever in O’Brien's Case to suggest that the admissibility of the evidence depends upon the state or degree of the violator’s knowledge of constitutional law or, indeed, of the ordinary law. To attempt to import any such interpretation of the decision would be to put a premium on ignorance of the law. The maxim ingorantia legis neminem excusat does not permit an intentional and deliberate act or omission to be shorn of its legal consequences. It is appropriate to point out that the opinion of this Court on a similar subject was expressed as follows at p. 134 of the report of The State (Quinn) v Ryan: –

    A belief, or hope, on the part of the officers concerned that their acts would not bring them into conflict with the courts is no answer, nor is an inadequate appreciation of the reality of the right of personal liberty guaranteed by the Constitution.

    To hold otherwise would be to hold what to many people would be an absurd position, namely, that the less a police officer knew about the Constitution and, indeed, of the law itself, the more likely he would be to have the evidence which he obtained in breach of the law (and/or the Constitution) admitted in court. If such indeed were the position, it could well lead to a demand that the interests of equality of treatment should permit an accused person to be allowed to be heard to the effect that he did not know that the activity of which he was charged, and which has been proved against him, amounted to a breach of the criminal law.

    Knowledge of Law Prevails:

  835. Griffin J., with whom three other members of the Court agreed, took issue in a number of respects with what Walsh J. had said. It is sufficient for present purposes however, to note that in his view evidence could not be ruled inadmissible as having been obtained in conscious and deliberate violation of a constitutional right “.... [where] the taker of the statement may not have known that what he was doing was either illegal or unconstitutional ....” (p. 55). In his opinion the authorities were to the contrary effect. Accordingly, it was the violation of the person’s constitutional rights and not the carrying out of the particular act, which had to be deliberate and conscious, before the exclusionary rule applied: if otherwise the rule simply would have no application. Where however the breach is deliberate and conscious in the sense indicated, the evidence, subject to any excusing circumstances, must be excluded.  

  836. The majority also expressed considerable doubt as to whether, even if the rule was correctly engaged, it should be applied in the same manner to both confessional evidence and what might be termed “hard evidence”. Griffin J. took the view that the proper approach to the exclusion of inculpatory statements, even if voluntary, was to examine the manner and the circumstances in which the same were obtained, so as to determine whether such “fell below the required standards of fairness”. If they did, they should be excluded: the reason being “.... that the minimum of essential standards must be observed in the administration of justice ....” (p. 61). This particular issue however does not directly arise in the present case.  

    Matters at Constitutional Level Rested:

  837. There were no further cases of major relevance at this level, bar one, before Kenny, but at a statutory level the precise invalidity issue which arose in the latter case had already been determined in Byrne v Grey [1988] 1 I.R. 31, mention of which must now be made.  

    Byrne v Grey [1988] 1 I.R. 31 (“Byrne v Grey”):

  838. To issue a search warrant under s. 26(1) of the Misuse of Drugs Act 1977, as amended, a judge of the District Court or a Peace Commissioner must be satisfied from information sworn by a member of An Garda Síochána, that there is reasonable ground for suspecting that a person on the subject premises has in his possession a controlled drug. Being so satisfied is a condition precedent to the exercise of the conferred power. Mr. Grey, a Peace Commissioner, issued such a warrant which when executed led the gardaí to find heroin on the premises of the accused person, who subsequently was charged with a number of drug related offences.  

  839. Prior to his trial Mr. Byrne sought an order of certiorari to quash the search warrant on the basis that the condition precedent had not been met. He alleged that given the evidence, the Peace Commissioner could not himself have been so satisfied. That evidence comprised the information on oath sworn to by the investigating officer which simply said (p. 37):-

    .... I am a member of the Garda Síochána and I have reasonable grounds for suspecting that ....

    Hamilton P. held that a Peace Commissioner could not rely on the belief of a member of An Garda Síochána for s. 26 purposes. Rather, it was he himself who had to be satisfied as to the existence of a reasonable suspicion. In view of the evidence the Peace Commissioner could not have been so satisfied. In so finding the learned President adopted and applied the judgment of Lord Diplock in R. v Commissioners of Inland Revenue, Ex parte Rossminster Ltd [1980] A.C. 952 at p. 1008, which arrived at the same conclusion on a provision virtually identical to s. 26 for this purpose. Accordingly, the first named respondent had no jurisdiction to issue the warrant.

  840. As the warrant had in fact been executed and thus was “spent”, the learned President saw no point in granting an order of certiorari. He left stand to the trial judge the decision whether or not to admit the evidence. Curiosity befalls me as to what ultimately happened, but as yet, twenty five years on, I have been unable to find out.  

    The People (Director of Public Prosecutions) v Healy [1990] 2 I.R. 73 (“Healy”):

  841. This is the only other case at the constitutional level which I intend mentioning before discussing Kenny. The central issue in argument here related to the right of a person detained in a garda station to have reasonable access to his solicitor on the latter’s arrival at the place of detention and on seeking an interview with his client. Mr. Dermot Morris, a well known solicitor at the time, arrived at Finglas garda station at 4.00pm on the 12th of March, 1986, and sought access to Mr. Healy. He protested at being told that he would have to wait as his client was being interviewed. At trial the Detective Superintendent in charge explained the refusal on the basis that, in his view, it would have been “bad manners” to interrupt the interview process. By unanimous decision, the Supreme Court dismissed an appeal by the DPP against a ruling given in the Central Criminal Court that the admissions made during the “denied period” were inadmissible.  

  842. Finlay C.J. with whom Walsh J. and Hederman J. agreed, said at pp. 81-82 of the report:-

    The test is whether the superintendent's refusal of access was a conscious and deliberate act, as it clearly was. The fact that he may not have appreciated that his refusal was a breach of the defendant's constitutional right is immaterial.

    ....

    The failure .... and the postponement both of the access to the solicitor and of the informing of the defendant of the presence of the solicitor until after the completion of the statement was, in my view, both a deliberate and conscious violation of the defendant's constitutional right ....

  843. McCarthy J. delivered a concurring judgment saying (pp. 87-88):-

    The Director has argued that there must be a balancing of constitutional rights between that of the prisoner and those of the public. In the making of this submission, it may have been overlooked that one major right of the public is to ensure that the constitutional rights of individual citizens are respected and enforced. Quite apart from the interest of the public in the investigation of, punishment for and suppression of crime, the public has a deep interest in ensuring that the individual citizen is not denied any personal right. In that sense, the public has as much an interest in the right of the defendant to have legal assistance and communication from his family as has the defendant himself.

  844. The learned judge continued (pp. 88-89):-

    In my view, if ‘conscious and deliberate’ is a term of art appropriate to be used in the context of constitutional rights and their violation, the only test is whether or not the act or omission that constituted such violation was itself a conscious and deliberate act; the fact that the violator did not realise he was in breach of a constitutional right is irrelevant. If it were otherwise, then if one jailor could distance himself from the others, as the superintendent did in the instant case, there need never be such a violation. It is not the state of mind of the violator that matters; it is the objective assessment of the conscious acts or omissions. A violation of constitutional rights is not to be excused by the ignorance of the violator no more than ignorance of the law can enure to the benefit of a person who, at common law, and by statute law (Criminal Justice Act, 1964, s. 4, sub-s. 2) is presumed to have intended the natural and probable consequences of his conduct. If it were otherwise, there would be a premium on ignorance.

  845. So even though Healy only preceded Kenny by a few months, nevertheless by unanimous concurrence, this Court, in explicit and clear cut terms, rejected the requirement of legal knowledge, as a necessary incident to the establishment of a deliberate and conscious violation, of a constitutional right.

    Kenny: The Court of Criminal Appeal:

  846. The background circumstances of Kenny were very similar to those in Byrne v Grey in that the information on oath laid before the Peace Commissioner to ground an application for a search warrant under s. 26(1) of the Misuse of Drugs Act 1977, as amended, was in identical form as was the resulting warrant which issued in October, 1984. Likewise, no further evidence was tendered on the application. Having been convicted in substantial part on the evidence resulting from the search, the Court of Criminal Appeal, in a judgment given in June, 1989, ruled that in accordance with Byrne v Grey (judgment delivered in October, 1987), the warrant was invalid. However, with commendable foresight and no little expectancy, it said “that did not conclude the matter” (p. 117). Being entirely satisfied that the investigating officer who had sworn the information, acted at all times in good faith and that he had every reason to so believe, the Court invited further submissions on the question of whether or not, such circumstances could be described as constituting a “deliberate and conscious violation”, for the purposes of the exclusionary rule.  

  847. The second judgment of the Court (McCarthy, O’Hanlon and Lardner J.J.), was delivered by O’Hanlon J. on 30th November, 1989. O’Brien, Madden, O’Loughlin and Raymond Walsh, amongst other cases, were discussed. From these decisions it was clear, according to the Court (p. 119):-

    .... that knowledge of the common law and statute law, and of the constitutional guarantees must – generally speaking – be imputed to the law enforcement agencies, and that if they are breached in a manner which infringes the constitutional rights of an accused person, it may be regarded as a deliberate and conscious violation without regard to the actual state of knowledge or bona fides of the garda officer or other person committing such violation.

  848. The authorities last mentioned were each described as involving legal principles which were clearly established and equally so were clearly breached, with the prosecution failing to tender any satisfactory explanation as to why such had occurred. The decisions were therefore correct on their facts. The Court however continued (p. 120):-

    Different considerations may arise where the law has been generally interpreted and applied in a particular way, without challenge, over a substantial period of time and then, by reason of judicial interpretation, what was formerly regarded as being in accordance with law is found to have been based on an incorrect interpretation of the law and, accordingly, tainted with illegality.

    In the Court’s view the facts of Kenny could be regarded as an example of this type of situation.

  849. Having also considered the position in the United States, in particular by reference to The United States v Leon [1983] 468 U.S. 897, which it was said “provided a close parallel” (p. 123) to the case at hand and which also in many ways “echoes what was said already by Kingsmill Moore J., in The People (Attorney General) v O’Brien” (p. 125), the Court by way of conclusion was satisfied, that since the investigating officer took all steps believed to be necessary and appropriate, for obtaining a valid search warrant, and having such a warrant issued by a Peace Commissioner, ostensibly in the proper exercise of his functions under the Act, such matters were of themselves a “clear indication” that there was no deliberate and conscious violation of the constitutional rights of the appellant. The evidence therefore could not be rendered inadmissible on constitutional grounds.

    Kenny: The Supreme Court

  850. There were in my view two key points up for discussion before this Court in Kenny. One was the meaning of the phrase “deliberate and conscious”: did it relate solely to the actual act or omissions complained of, as suggested by the CCA in Madden and in O’Loughlin, by the Supreme Court in Raymond Walsh and in Healy and by Walsh J. in several other decisions where the issue arose: or, was knowledge, actual or imputed, and intention on the part of the state actor that the violation in challenge, amounted to a breach of the individual constitutional rights, as the majority said in Shaw, essential? The second issue was the underlying justification for the rule: was it addressed to the person who breached the right so that he and others would be deterred from such conduct in the future or did it rest on the state’s obligation to protect fundamental rights? Apart from either option, no other basis to my knowledge has ever been seriously suggested, as a justification for the rule.  

  851. Finlay C.J. saw little by way of comparison between O’Brien and The United States v Leon, in which jurisdiction, the justification for the rule, in the context of Fourth Amendment breaches, was unquestionably based on deterrence. In his view, whatever controversy may exist regarding precisely what O’Brien had decided, it did not however at any remove authoratively speak to the basis supporting the rule. That issue fell squarely for consideration in Kenny.

  852. At p. 133 of the report the Chief Justice said:-

    The duty of the Court pursuant to Article 40, s. 3, sub-s. 1 of the Constitution is as far as practicable to defend and vindicate such rights.

    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 has, it seems to me, an obligation to choose the principle which is likely to provide a stronger and more effective defence and vindication of the right concerned.

    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.

    In the process, and as would follow from this analysis of the issue, the Chief Justice expressly disapproved of the majority view set out in the judgment of Griffith J. in Shaw. Walsh J. and Hederman J. agreed with the judgment as delivered by the Chief Justice.

  853. It seems to me that when this reasoning is considered in its entirety, it confirms the primacy of a rights based approach to the rule and does not in any way seek to instill into that justification a secondary value of equivalent significance. By express direction the Chief Justice opted for an approach which could offer “.... [the] stronger and most efficient defence and vindication of the right concerned ....”, which in his view the courts had a constitutional obligation to sustain. Evidently by so doing, this preference subsumed what he termed a “negative deterrent”, the reference to which however, although important in its own right, was essentially made so as to test how best rights could be preserved: certainly from my reading of the judgment I can see no indication that such interest was intended to rival that of upholding guaranteed rights, as a basis for the rule. The Chief Justice himself so stated when describing the issue which called for resolution, identifying in the process the choice raised “by the arguments in this case between the deterrent and absolute protection principles” (p. 131 of the report). Consequently, I am quite satisfied as to what was both intended and stated. It therefore follows that the essence of the rule is not “conduct” based, but of course conduct is embraced within it. This view of the decision is entirely supported by the conflicting positions which had been adopted in the preceding case law, the most important of which are above referred to.  

  854. There were two dissenting judgments, one by Griffith J. who in short, having reconsidered what he had previously stated in Shaw, reaffirmed his commitment to that decision. The second was by Lynch J. who felt that relevant evidence would not always have to be ruled out. He said (p. 142):-

    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.

    Referring to Healy, the learned judge was satisfied that the gardaí at least realised that they were contravening Mr. Healy’s legal rights if not his constitutional rights. He added (p. 142):-

    I take the view that the gardaí deliberately do acts which they know or ought to know contravene the accused 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 element of blame or culpability or unfairness to bring the exclusionary rule into operation. If there is no such element of blame or culpability or unfairness in relation to the breach of the constitutional right on the part of those who obtained the evidence, then the evidence should be admitted and no question of excusing circumstances arise.

    Summary:

  855. At para. 825 supra, I indicated the manner in which I proposed to chase how the law on this topic had developed from O’Brien to Kenny and to do so through key ingredients of the exclusionary rule. Having conducted this case survey, my conclusion from such an exercise, up to and including Kenny, which subject to this appeal represents current day law, is as follows:-

    1.

    “Deliberate and Conscious”:

    (i)

    relates solely to the actual act or actions in question: knowledge by the violator as to its legal or constitutional consequences is not necessary: (Raymond Walsh: Healy and Kenny),

    (ii)

    motive, of a kind well intended, laudable or admirable, is not material (Madden: O’Loughlin),

    2.

    “Extraordinary Excusing Circumstances”:

    (i)

    where an infringement of constitutional rights has been established the onus is on the DPP to prove the existence of such circumstances: these might include:

    (ii)

    where victims are in peril, where the destruction of evidence is imminent and where evidence is obtained secondary to a lawful arrest even in the absence of a search warrant, (O’Brien):

    (iii)

    these examples are illustrative and not exhaustive (O’Brien: Shaw:): but rather surprisingly the reach of this excusing provision has not been further developed,

    (iv)

    the rationale for such provision is entirely consistent with the rule as properly understood and it has regard for the manner in which the State’s obligations to protect fundamental rights, is phrased in Article 40.3 of the Constitution.

    3.

    “Unintentional”: “Inadvertent”: “Mistake”: “Oversight”:

    (i)

    a violation, so caused, will not result in the application of the rule (O’Brien: Madden: Raymond Walsh:), but will fall to be dealt with as illegally obtained evidence:

    (ii)

    other situations, which might be similarly viewed, have not been actively identified.

    4.

    “Basis of the Rule” – Vindication of Rights:

    (i)

    which demand a consideration by An Garda Síochána, of the constitutional rights of the citizen, which may be affected by the exercise of their powers, including those of arrest, detention, search and interrogation: (Healy);

    (ii)

    which also demand a consideration by the courts of their prime duty to enforce respect for fundamental rights and where breached to provide the most effective and appropriate remedy available: (Madden: O’Loughlin: Raymond Walsh and Kenny), and finally:

    (iii)

    such basis will inevitably capture any infringement carried out in the knowledge of its legal or constitutional consequences.

    5.

    “Executive/Judicial Branch of Government”:

    (i)

    the principles as outlined apply to all state actors imposed with the constitutional duty of having regard to or of protecting, vindicating and respecting such rights.

    6.

    “Hard/Confessional Evidence”:

    (i)

    applies to hard evidence, but there remains some uncertainty as to whether,

    (ii)

    it applies to confessional evidence. (Shaw: but see Healy and Kenny).

    7.

    “Effect of the Rule”:

    (i)

    where applicable and in the absence of excusing circumstances the subject evidence is absolutely inadmissible with no residual discretion existing in that regard.

    Description of Rule:

  856. Before leaving the existing law it will have been observed that on occasions throughout this judgment I have variously referred to the rule as being the “exclusionary rule” or the “absolute exclusionary rule” or indeed by some other comparable expression. What is important to note however is that such are appropriate only as descriptive terms, because in substance they do not accurately identify precisely what the rule entails. In my view, it is not an absolute or even a “near” absolute exclusionary rule. This must be so, given the numerous circumstances in which the rule will have no application, some of which have been set out at paras. 126 and 130 supra. Further, it has always been necessary to establish a connection between breach and the obtained evidence and in addition, the protection offered applies only to an accused person who himself had been the subject matter of the infringement. Accordingly, to understand, or judge or apply the rule by these terms only, without qualification, is seriously prone to mislead.

    Comparable Jurisdictions:

  857. As part of my consideration of the substantive question, namely whether the demise of Kenny can be justified by reference to the principles set out in Ryan’s Car Hire and in Mogul, it is necessary to review the jurisprudence of other jurisdictions to which the Court has been referred, and having done so to indicate what influence, if any, such has on this major issue.

    United States:

  858. As part of its tour of nations the DPP has travelled to a number of countries, including the United States. It is highly instructive to note the rapid and profound retrenchment which the exclusionary rule has surgically undergone in the past 30 years, in that country. From a rich federal position in 1914 (Weeks v United States 232 U.S. 383 (1914)) which was reinforced by its application to all States in 1961 via the Fourteenth Amendment (Mapp v Ohio 367 U.S. 643 (1961)), the current position which in substance had its start point only as recently as 1984 (United States v Leon 468 U.S. 897 (1984)) is such that the protection against unreasonable search and seizure, based purely on the Fourth Amendment, is thought by many, certainly if the apparent trend of recent court decisions continue, to be in real danger of having no effect or utility. Whilst of course this is a matter for that jurisdiction, nonetheless for me such a tendency is distinctly alarming and immensely disconcerting.  

  859. The real purpose however of referring to this changed and changing situation, and the importance of understanding the rule’s transformation through this journey, is that the net result as presently stands is urged upon us as being appropriate in this country. With respect, I deeply disagree and would greatly denounce any comparable disposition developing here. Unfortunately however, although possibly not intended, such cannot lightly be discounted given the majority view in this case.  

  860. Even though the justification for the rule in the United States, repeated so authoritatively and so frequently is exclusively deterrent based, which manifestly is intrinsically different from that existing in this country, and despite how such stated objective critically drives the focus and direction of its case law, nonetheless that differentiation, as significant as it is, offers little comfort to those who support Kenny, that the next 30 years will not see in this country a corresponding drift or tendency so developing.  

  861. As appears from judicial decisions, the general issue presently under discussion has for the most part been considered by the US courts in the context principally of the Fourth, but also of the Fifth and Fourteenth, Amendments to the US Constitution. These read as follows:-

    Amendment IV

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.

    Amendment V

    No person shall be held to answer for a capital or otherwise infamous crime, .... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of live, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    Amendment XIV

    Section 1

    All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    One may also include that aspect of the Sixth Amendment giving a person a right to an attorney.

  862. In 1886 (Boyd v United States 116 U.S. 616 (1886)) the Supreme Court held that the Fourth and Fifth Amendments “run almost into each other”, as it was put (p. 630), regarding the prohibition on unreasonable search or seizure, preserves at constitutional level the “sanctity of a man’s house and the privacies of life” (p. 630). The physical entry, even if gained by unauthorised force, was not the essence of the conduct sought to be condemned: rather, what lay at the heart of the right was that no state employee should, by such means, invade the “indefeasible right of personal security, personal liberty, and private property” of any man (p. 630). Moreover, the ultimate task of defending the citizen from such actions rested with the courts which should ever be so vigilant to that end (But now see Andersen v Maryland 427 U.S. 463 (1976) re Fifth Amendment).  

  863. Justice Day in Weeks v United States, when delivering the opinion of the Court and having cited with much approval from Boyd v United States, stated that if letters and other private documents which the Federal Marshall of the United States had obtained from Mr. Weeks house, without a search warrant, could be tendered as evidence in his subsequent criminal trial (p. 393):-

    the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavour and suffering which have resulted in their embodiment in the fundamental law of the land.

    Essentially, in association with Mapp v Ohio, the absolute exclusionary rule thus established, effectively remained the legal position in the United States for the next seventy years or thereabouts.

  864. A number of states, almost two thirds in fact, which declined to apply the judgment in Weeks v United States, a federal case, were very much encouraged in that regard by Wolf v Colorado 338 U.S. 25 (1949) which it was said, was an authority that evidence, even if unconstitutionally seized, could be used in a subsequent trial of a householder from whose dwelling it was obtained. Mapp v Ohio ended that particular argument by imposing the exclusionary rule, via the due process clause of the Fourteenth Amendment on all states. It also reiterated what the Court had said earlier, namely that “to deter .... in the only effectively available way .... (was) .... by removing the incentive to disregard” (p. 656). The opinion of Justice Clark, concurred in by five other members, concluded by stating (p. 660):-

    Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and to the courts, that judicial integrity so necessary in the true administration of justice.

    Consequently, once a breach was established “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a State court” (para. 655). “To hold otherwise”, the court added would be to “grant the right but, in reality, to withhold its privilege and enjoyment” (p. 656). Therefore, at both federal and state level, the exclusionary rule had full application. That situation however was seriously subverted by the decision in United States v Leon.

  865. An essential aspect of the Fourth Amendment is that a search warrant can issue only on “probable cause”, being established. The point raised in United States v Leon (1984) was whether or not the exclusionary rule should be revised so as to allow in evidence that was obtained by the police, acting in reasonable reliance on a search warrant issued by a neutral judge, but ultimately not supported by probable cause. This, for brevity though certainly not accuracy, has become known as the “good faith” exception.  

  866. The Court decided that the rule could be so modified without jeopardising its ability to perform its intended function. Therefore, it should not be applied to “objectively reasonable law enforcement activity” (p. 919). In the instant case no deterrent effect could possibly influence police officers who genuinely believed that their actions were constitutionally compliant. This conclusion was justified almost entirely via a consideration of the exclusive basis upon which the rule is founded, namely to deter official misconduct by removing inducements to commit constitutional violations. Time and time again throughout the majority opinion delivered by White J., the same question is posed and the same challenge is asserted: will the extension, restriction, or application of the rule in its current form, deter police misconduct? will suppression further the remedial objectives of the rule? Answer: if the exclusionary rule does not “result in appreciable deterrence .... then clearly its use .... is unwarranted” (p. 909). Consequently, it is beyond debate but that this rationale is the key driver of the Supreme Court’s approach to this principle.

    General Points:

  867. To appreciate a bit more fully my ultimate view that the US jurisprudence on this issue is of strictly limited value in our jurisdiction, it is important to realise in some detail the repositioning effect, which has been inflicted upon the rule, through the process of change which has taken place between the decisions in Mapp v Ohio and United States v Leon and which has further continued in Hudson v Michigan 547 U.S. 586 (2006), Herring v United States 555 U.S. 135 (2009) and Davis v United States 180 L. Ed. 2d 285 (2011), all of which are next mentioned. Firstly however, some general points of note from the case law:- <