The Supreme Court has found that compelling evidence was erroneously excluded at J.C.’s trial, allowing the Director of Public Prosecutions’ appeal to proceed under section 23 of the Criminal Procedure Act 2010. The Court has not yet decided whether to quash the acquittal or order a retrial.
In a judgment delivered on 15 April 2015, Mr Justice Clarke said the trial judge had been bound by the Supreme Court’s 1990 decision in DPP v Kenny when excluding the evidence. Clarke J nevertheless concluded that an exclusion could be “erroneous” for the purposes of section 23 if the Supreme Court later found that the binding precedent was wrong and that the evidence should have been admitted under the proper test.
The evidence at issue consisted of admissions made by J.C. while in Garda custody. The trial judge excluded them under the Kenny rule, and the prosecution’s case substantially collapsed. In considering whether the evidence met section 23’s statutory definition of “compelling”, the Supreme Court relied on the trial record and submissions made at trial. Clarke J said the finding meant a jury could reasonably convict on the evidence; it did not mean a jury would be required to do so. The Court did not decide the DPP’s separate application to introduce further evidence, finding it unnecessary to do so.
Clarke J proposed a revised test for evidence challenged solely because of how it was gathered, where the challenge does not concern the evidence’s integrity or probative value. The prosecution bears the burden of establishing admissibility and must prove beyond reasonable doubt any facts relied on to justify admission. Evidence obtained through a deliberate and conscious violation of constitutional rights should generally be excluded, subject to exceptional circumstances. Here, “deliberate and conscious” refers to knowledge that the evidence gathering was unconstitutional, including relevant involvement by senior officials.
Where the breach was not conscious and deliberate, Clarke J said a presumption against admission arises. Evidence may be admitted if the prosecution establishes that the breach resulted from inadvertence or a later legal development. He added that reckless or grossly negligent conduct is not inadvertence, and that evidence gathered in circumstances where it could never have been constitutional should not be admitted even if the lack of authority was not noticed.
Applying that approach, Clarke J found that the warrant used to gather the evidence was treated as prima facie valid under the law at the time. The Supreme Court’s later decision in DPP v Damache had not yet been delivered. He therefore concluded that the evidence should have been admitted and that the section 23 requirements for an appeal based on erroneous exclusion of compelling evidence were met.
That finding satisfies only the first requirement for a successful prosecution appeal. The Court left the interests-of-justice question for a further hearing, where it will consider whether to quash the acquittal and order a retrial or affirm it. The appeal’s final outcome remains pending.