The question of admitting unconstitutionally obtained evidence (and most unlawfully-obtained evidence falls into this category) is difficult and, with the onward march of rights in this area, likely to become more difficult.
The general principle is easy enough: where a well-known and long-established principle is broken, for instance a confession is obtained from a suspect, by force or fraud, then of course, it should not be used against him at his trial.But, as the rate of change accelerates, it becomes imperative for the gardaí or those advising them (it may be at all hours of the night) to keep on top of the changes. There is, for instance, the on-rush of case-law (usually drawn from the Constitution or European Convention of Human Rights); statute law (varying, for instance, according to whether the suspect falls under the Offences Against the State or another special law); or advances in technology, used by the Garda or criminals.
Yet, until this week, the law, as established, by a majority of three to two in Kenny 1990, was that the exclusion of improperly obtained evidence was absolute, even where there had been no unfairness to the defendant. But now, the Supreme Court in the case of JC has created an exception, where the prosecution can show that the infringement by the Garda Síochána was "inadvertent".
The main fact in the earlier case of Kenny was that the evidence had been obtained on the basis of a search warrant issued by a peace commissioner. And the warrant had been held to be invalid (in a linked case on which, to declare an interest, I wrote my PhD) because the commissioner had not inquired into the basis of the garda's suspicion and had failed to exercise the necessary judicial-type discretion. This judgment came as quite a surprise.
The practical operation of the new "inadvertent" test is something to which we must return. But what can certainly be said straightaway is that if the facts of Kenny were rerun, under the new law, it would be held that the garda's "error" in accepting the warrant signed by the peace commissioner was inadvertent and so the evidence could have been admitted.
It is fair to say that since this area of law first opened up, in the 1960s, there has been a good deal of judicial controversy and contradiction. Small wonder that the DPP was on the lookout for a case like JC, in the hope of moving the law authoritatively away from the earlier Kenny ruling.
Leading judgment
Giving what is taken to be the leading judgment of the
JC
majority of four judges to three, Mr Justice Frank Clarke identified two principles. He said the law should be grounded on a compromise between these two principles: “First, society and victims of crime are entitled to have a criminal trial of the culpability of an accused based on proper consideration of all evidence; on the other hand, there is a need to ensure that investigative and enforcement agencies operate properly within the law.” Notice the reference to the fact that victims have rights. This is a newish idea and one that many will consider was overdue.
Writing the leading dissent, Mr Justice Adrian Hardiman focused on the second half of Mr Justice Frank Clarke’s balance and went on to draw the conclusion that the law should not be altered. Given the conduct of the Garda Síochána in Donegal or Schull (or ranging outside the country, one might consider recent examples from the US), this point should not be undervalued. On the other hand, acquittal at a criminal trial is a curiously indirect way to discipline Garda misconduct. Surely better and more precise methods can be found.
The other line of Mr Justice Adrian Hardiman’s dissent was founded on his contention that “inadvertence” will in the future be accepted “very generally as a reason to allow to be provided in evidence, the fruits of deliberate and conscious violation of citizens’ rights”. But surely, this prognostication amounts to jumping to conclusions, at an Olympic standard. It is “a thin end of the wedge”. Moreover, it displays no faith at all in the independence or sophistication of the judges of the future. Although the headlines and newspaper accounts gave the lion’s share of attention to Mr Justice Hardiman’s judgment, a strong practical consideration was identified by another of the dissentients, Mr Justice Liam McKechnie. He wrote: “the modification of the rule suggested by the majority is unworkable and will add to the length, complexity and uncertainty of a trial”. When one considers the length of a major criminal trial and the costs of a retrial (in a situation in which an appeal court rules that evidence left to a jury should not have been regarded as admissible), here is a most practical problem. Undoubtedly, there will be a period of bumpiness before criminal court judges develop a consensus on how the key-concept of “inadvertence” is to be understood and applied.
‘Passionate and precise’
In this context, it is relevant that it was reported, as if it were commendable, that the judgments, "six altogether, running to several hundred pages, were by turns, trenchant and delicate, passionate and precise". But we are not dealing here with Under Milk Wood, but with a landmark in the law, to be relied upon as guidance, perhaps for a generation, by
gardaí, prosecutors deciding whether they have the evidence to bring a case and judges directing a jury on admissibility.
What these persons need is to be told precisely, not passionately, and as simply and above all, objectively, what is the law. Especially in the field of criminal law, the Constitution, the European Court of Human Rights and the Rule of Law require no less. Moreover, the judges, themselves, when they are appraising and commenting upon statute law expect the same. Surely what is sauce for the goose is sauce for the gander.
In view of this, in making such a major adjustment to the criminal law, would it have been too much to ask for the judges to organise themselves into two groups, the majority and the minority, each giving a single judgment? And each focusing on the key concept, “inadvertent”.
David Gwynn Morgan is an emeritus professor of law at University College, Cork