INFORMATION NOTE

THE SUPREME COURT

1. This appeal raises two main issues:

(i) the scope of appeals which can be brought to this Court by the D.P.P. under s. 23 of the Criminal Procedure Act, 2010; and

(ii) the exclusionary rule.

2. The background to this appeal includes the fact that J.C., the accused/respondent, was on trial before the Circuit Criminal Court (Her Honour Judge Ring) when the trial judge decided to exclude evidence on the basis of the application of the exclusionary rule as stated by this Court in D.P.P. v. Kenny [1990] 2 I.R. 110. It was agreed that the Circuit Criminal Court was required to apply the rule in Kenny and to exclude the evidence in issue. The evidence having been excluded, the case against J.C. collapsed.

3. The D.P.P. brought an appeal under s. 23 of the Criminal Procedure Act, 2010, seeking a review of the decision to exclude the evidence.

4. A question which arose on the appeal was whether Kenny was correctly decided and, if not, what is the appropriate test for the admission or exclusion of evidence obtained in circumstances where the method of taking the evidence involved a breach of constitutional rights.

5. A preliminary question for the Court was whether an appeal lay under s. 23 of the Criminal Procedure Act, 2010. Historically no appeal lay from an acquittal in criminal proceedings. Prior to the enactment of s. 23, the only appeal which lay to this court from an acquittal was a consultative appeal without prejudice to the verdict or decision in favour of an accused person. However, s. 23 of the Criminal Procedure Act, 2010, provides for a form of appeal which, if the Court so directs, can be with prejudice to an accused, as it can lead to a retrial where an accused could be convicted.

6. Section 23 states that the D.P.P. may appeal an acquittal on a question of law, where a ruling was made during the course of a trial which erroneously excluded compelling evidence.

7. A significant issue on this appeal was whether the issue of the exclusionary rule could be raised properly under s. 23 of the Criminal Procedure Act, 2010.

8. A majority of the Court (Denham C.J., O’Donnell J., Clarke J. and MacMenamin J.) considered that the rule could be raised. However, MacMenamin J. was critical of s. 23 in his judgment.

9. Murray J. in a dissenting judgment held, for the reasons stated, that an appeal did not lie under s. 23 because the ruling of the trial judge, being one which she was bound as a matter of law to make, was not an erroneous ruling within the meaning of s. 23.

10. Hardiman J. dissents as to whether there is jurisdiction to entertain this appeal. He points out, and it is agreed, that in order to establish such jurisdiction, error on the part of the trial judge must be established. He says there was no such error by Judge Ring and that this is agreed by the majority. He says that a learned trial judge who follows a binding authority of which a higher court subsequently disapproves, does not commit any error.

Hardiman J. also dissents from the setting aside of the decision of this Court in Kenny. He regards that case as a monument of Irish jurisprudence, essential to the maintenance of the liberties of the citizen. He dissents in particular from the provision of an excuse of “inadvertence” on the basis of which a public official can excuse a breach of the Constitution and have the fruit of such breach admitted in evidence against a citizen. He is apprehensive about the consequences of the majority decision.

11. McKechnie J. in a dissenting judgment analysed in detail s. 23 of the Criminal Procedure Act, 2010, and concludes that the decision of the trial judge could not be said to be “erroneous” as that term should be understood, that in the absence of what has been described as a “concession” it would not have been possible to hold that “compelling evidence” existed but that in any event for the reasons given the section is in practice inoperable. Notwithstanding, he reviewed the Kenny decision, relevant case law both at home and abroad, and stated that he remains unwavering in his view that the justification offered for the rule in Kenny was correct. Moreover the decision itself in accordance with the review jurisdiction could not be said to be plainly wrong for compelling reason. Accordingly, he would dismiss the appeal.

12. A complicating factor in this appeal was that the law in issue appeared to be clear since the Kenny decision.

13. Thus, the Court had to consider whether it could be said that a trial judge erroneously excluded the evidence in question if the trial judge properly applied the established case law of a higher court, by which the judge was bound, even if this Court takes the view that the established case law required to be reviewed.

14. A majority of the Court (Denham C.J., O’Donnell J., Clarke J., MacMenamin J.) held that if it was wrong to exclude that evidence then it was an error, even if the trial judge, because of the hierarchy of courts, was bound to follow Kenny, unless Kenny was redefined by this Court.

15. It should be noted that counsel for both parties agreed that it could be said that a trial judge had erroneously excluded evidence even though the trial judge had properly applied the case law by which that court was bound.

16. The decision in Kenny was a determination of the proper balance to be struck in vindicating the constitutional rights and principles at stake. This Court is concerned with the same question.

17. At issue is a question of the admissibility of evidence.

18. O’Donnell J. has analysed, in his judgment, the sequence of cases in this area of law.

19. A majority of the Supreme Court determined that there should be described a clear test designed to affect an appropriate balance between competing factors.

20. Clarke J. set out a test, in his judgment, with which Denham C.J., O’Donnell J. and MacMenamin J. agreed.

21. The test is as follows:-

(i) The onus rests on the prosecution to establish the admissibility of all evidence. The test which follows is concerned with objections to the admissibility of evidence where the objection relates solely to the circumstances in which the evidence was gathered and does not concern the integrity or probative value of the evidence concerned.

(ii) Where objection is taken to the admissibility of evidence on the grounds that it was taken in circumstances of unconstitutionality, the onus remains on the prosecution to establish either:-


(a) that the evidence was not gathered in circumstances of unconstitutionality; or

(b) that, if it was, it remains appropriate for the Court to nonetheless admit the evidence.


The onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places on the prosecution an obligation to explain the basis on which it is said that the evidence should, nonetheless, be admitted AND ALSO to establish any facts necessary to justify such a basis.

(iii) Any facts relied on by the prosecution to establish any of the matters referred to at (ii) must be established beyond reasonable doubt.

(iv) Where evidence is taken in deliberate and conscious violation of constitutional rights then the evidence should be excluded save in those exceptional circumstances considered in the existing jurisprudence. In this context deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned. The assessment as to whether evidence was taken in deliberate and conscious violation of constitutional rights requires an analysis of the conduct or state of mind not only of the individual who actually gathered the evidence concerned but also any other senior official or officials within the investigating or enforcement authority concerned who is involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned.

(v) Where evidence is taken in circumstances of unconstitutionality but where the prosecution establishes that same was not conscious and deliberate in the sense previously appearing, then a presumption against the admission of the relevant evidence arises. Such evidence should be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or derives from subsequent legal developments.

(vi) Evidence which is obtained or gathered in circumstances where same could not have been constitutionally obtained or gathered should not be admitted even if those involved in the relevant evidence gathering were unaware due to inadvertence of the absence of authority.

23. A final decision on whether the appeal should be allowed awaits a determination as to whether it is in the interests of justice to quash the acquittal of J.C. This matter was left over until the other issues were determined.

24. The Court will relist this appeal to hear counsel on the issue as to whether J.C.’s acquittal should be quashed and a retrial ordered, or whether his acquittal should be affirmed on the basis that it would not be in the interests of justice, in light of the matters specified in s. 23(12), to order a retrial.

25. The judgments of the Court are delivered today.

The hearing of this appeal proceeded on the acceptance that both sides would have an opportunity to address the question of a retrial.

This matter will be listed shortly to address this and any other outstanding issues.