Madam, - The real culprit in the débâcle of the Judge Curtin prosecution is the rule - invented by a bare majority of the Supreme Court less than 15 years ago in the case of The People v Kenny - that all evidence obtained in a way that breached a constitutional right of the accused must be excluded at his trial, even where the Garda acted in good faith and merely made a mistake.
It is a rule which has shifted the focus of the criminal trial from investigating whether the accused committed the crime to investigating whether gardaí made some error that allows the accused to go free on a technicality.
In February last year, another court case was front-page news. There was a public outcry at the possibility that hundreds of prosecutions for drunken driving would have to be dropped because the drivers had been unlawfully detained for a few minutes' observation before being "breathalysed". I wrote to you then to point out that the real culprit was the rule of excluding evidence. In that letter (published on February 26th, 2003), I quoted Mr Justice Lavery in the Supreme Court case of The People v O'Brien (1965), which first considered the issue. The case concerned a search warrant which had given a wrong address. He said: "If a judge were to hold inadmissible the evidence in question in this case, or in any comparable case, his ruling would. . .be wrong to the point of absurdity and would bring the administration of the law into well-deserved contempt."
Mr Justice Lavery's observation is as apposite now as it was then. The administration of justice is being brought into well-deserved contempt by the rule of excluding evidence. The rule ought to be reconsidered by the Supreme Court or, if necessary, changed by legislation or a referendum. We can only consider ourselves lucky that the evidence excluded so far has been Breathalyser results and photographs, and not corpses or bombs. Unless there is action, the rule will continue to cause injustice and to erode public confidence in the courts. - Is mise,
EMMET COLDRICK, Mecklenburgh Square, London WC1.
Madam, - If a body, rather than contaminated computer material, had been discovered in Brian Curtin's home, would the "evidence" still be found to be inadmissible due to a timing error in the search warrant?
Are clever semantics rather than common sense exclusive to Irish law? - Yours, etc.,
RUTH DAVIS, Blackwater, Co Wexford.