A rebalancing of the rules of evidence in criminal trials in favour of the prosecution was called for by criminal law expert Paul Anthony McDermott. He was speaking at the seventh annual prosecutors' conference, organised by the Director of Public Prosecutions on Saturday.
"The criminal justice system will never be perfect and the public have enough common sense to appreciate that there are good reasons why sometimes evidence has to be excluded," he said. "But what the public cannot understand are irrational rules and procedures that have no place in reality."
Referring to a case that came before the Court of Criminal Appeal, where a garda who intercepted someone trying to do a drug deal on the phone had his evidence thrown out, he said: "One searches in vain for any consideration of the rights of the public to see serious alleged offences prosecuted. One searches in vain for any balancing of rights."
He said that the problem began with a Supreme Court ruling in a case (DPP v Kenny) where the court said that there should be an absolute exclusion of evidence obtained by the Garda while breaching a person's constitutional rights.
Though Mr McDermott did not refer to the Judge Brian Curtin case, the Kenny ruling was invoked by the defence when Judge Curtin faced charges of possessing child pornography. It was argued that the evidence seized under an out-of-date warrant should be excluded because it breached his constitutional rights. The evidence, including his computer, was excluded, and he was acquitted by direction of the trial judge.
There has been no real public debate about this rule, and the public is stuck with it unless it is judicially modified or there is a constitutional amendment, Mr McDermott said.
"In Canada the framers of the charter decided against an absolute exclusionary rule and chose a rule that would maintain some proportionality between the seriousness of the breach and the cost of excluding the evidence," he said. "Suspects in Canada are no more likely to have their rights infringed than suspects in Ireland."
Many of our rules of evidence stemmed from the theory that there was an imbalance between the prosecution and the defence in terms of resources, and that it was necessary to protect the defendant from the power of the State.
"In fact, nothing could be further from the truth. Under our system of criminal legal aid, the defence will have the same legal resources as the prosecution."
He also suggested a reconsideration of the "reasonable doubt" charge given to the jury in trials. The prosecution, as well as the judge and the defence, must remind the jury that any doubt must be given to the accused. "After listening to all this one wonders if the jury are even aware that they are allowed to convict if they want to."
One of the most unfair things to all sides at the moment were the inherent delays in the system, he said, which was even more acute when a retrial was ordered, which could come years and years after the original event. By this time witnesses' memories have faded and the defence can benefit since the prosecution is no longer able to prove its case beyond reasonable doubt.