A Supreme Court appeal concerning evidence excluded after an unlawful arrest has exposed a dispute about how Irish courts should treat evidence obtained in breach of constitutional rights. In a concurring judgment delivered on 15 April 2015, John MacMenamin J said he would allow the Director of Public Prosecutions’ appeal on the exclusionary-rule issue, while reserving his position on whether a retrial could be ordered.
The prosecution appealed under section 23 of the Criminal Procedure Act 2010 after the trial judge excluded all post-arrest evidence. The judge had ruled that entry to premises for the arrest was unlawful under the Supreme Court’s decision in Damache, and that the arrest breached the accused’s constitutional rights. Applying the rule in DPP v Kenny, the judge found no extraordinary excusing circumstances that would permit the evidence to be admitted. The prosecution then offered no evidence before the jury, and the jury was directed to find the accused not guilty on all six counts.
MacMenamin J said the parties accepted that, if admitted, the excluded evidence met the statutory definition of “compelling evidence”. He concluded that this gave the Supreme Court jurisdiction to hear the appeal. He also read the 2010 Act broadly enough to allow the Court to review whether Kenny had been wrongly decided, while describing the statutory wording as infelicitous.
On the main issue, MacMenamin J agreed with Clarke J’s proposed reformulation of the exclusionary rule. He considered that the existing approach could treat an unintended mistake as a deliberate and conscious constitutional breach, and said its application could be disproportionate. He argued that courts should balance the protection of suspects and deterrence of police misconduct with other constitutional interests, including the administration of justice and the community’s interest in prosecution.
His account of the underlying case included statements in which the accused apparently admitted involvement during the final three of six Garda interviews. He noted that the circumstances of those admissions were not before the Court and that coercion or pressure had apparently not been alleged at the trial hearing on admissibility.
MacMenamin J did not decide that a retrial should take place. He said the constitutionality of the retrial provision had not been fully argued, expressed reservations about ordering a retrial in the circumstances, and said he would await submissions on that question. This is his individual judgment; it does not, by itself, state the full Court’s final orders.