Criminal Investigations and Evidence Gathering after DPP v. JC

Brian Ormond | AssociatePublic & Regulatory Law Department

Introduction to the Exclusionary Rule

• What is the rule?– Rule to exclude unconstitutionally obtained evidence

• Why is it relevant to regulators?– Regulators can get warrants when investigating

breaches • What is the issue?– Constitutional protection of the dwelling (Article 40.5)– If warrant defective, entry not in accordance with the

law and is unconstitutional

Warrants in General

• Law Reform Commission Issues Paper on Search Warrants (LRD IP 4-2014)

• Application Process– Swear an Information– Satisfaction as to necessity for warrant

• Scope for challenge

Invalidation of Warrants

• Incorrect address (O’Brien) • Insufficient evidence in Information (Kenny)• Wrong type of documents sought

(Competition Authority v. Dental Association)• Warrant out of date (Curtin v. Dáil Éireann)• Warrant granted by inappropriate person

(Damache)

Development of the Exclusionary Rule

• When to exclude evidence if obtained on foot of an invalid warrant.

• O’Brien (1965), Kenny (1990) and JC (2015)• O’Brien Test : – Exclude evidence obtained as a result of a

deliberate and conscious violation of constitutional rights unless there are “extraordinary excusing circumstances”

Development of the Exclusionary Rule

• “Deliberate and Conscious”? Simply the actions in executing the warrant (exclude

evidence in more cases), or Knowing the invalidity and acting anyway (exclude

evidence in fewer cases)

– The People (DPP) v. Shaw (1982): relates to the violation of the right – ie, being aware of the breach and still proceeding.

Development of the Exclusionary Rule

• DPP v. Kenny (1990) (Supreme Court)– Unconstitutional evidence must be excluded

unless the Court satisfied of extraordinary excusing circumstances

– Knowledge of the breach is irrelevant - deliberate and conscious means that the actions were not accidental or unintentional.

The Decision in DPP v. JC

• Warrant obtained and executed before Damache case decided.

• JC relied on Damache to argue unconstitutionality - evidence excluded

• Appeal to Supreme Court – was DPP v. Kenny correctly decided and if not, what is the appropriate test?

The Decision in DPP v. JC

• 15 April 2015: Kenny no longer applies. – Evidence admissible at trial where the prosecution

can prove that the breach was “inadvertent”. – Knowing, reckless or grossly negligent breach of

constitutional rights will lead to exclusion, except in exceptional circumstances.

– Deliberate and conscious: means knowledge of unconstitutionality

The Decision in DPP v. JC

• New Test: If warrant challenged, prosecution must establish

no unconstitutionality arose, or despite unconstitutionality, evidence is appropriate to be

admitted Prosecution to establish beyond reasonable doubt Evidence excluded if deliberate and conscious

violation of rights unless exceptional circumstances. Deliberate and conscious: knowledge of unconstitutionality Assessment includes any senior official(s) involved in

evidence gathering policies

The Decision in DPP v. JC If not conscious or deliberate, presumption against

admission arises. If established that breach was inadvertent or due to later legal developments, admit the evidence.

Evidence that could not have been constitutionally obtained should be excluded, even if unaware of absence of authority.

• Decision is balance between protection of public and constitutional rights

• Refines “conscious and deliberate” test

The Decision in DPP v. JC

• Dissenting comments– not just, fair or constitutional to permit a public

servant’s ignorance or incorrect application of the law to allow breach of ordinary citizen’s constitutional rights (Hardiman J).

– Kenny decision was neither to punish investigators or benefit the accused – it was to vindicate the constitution (Hardiman J).

– Will lead to lengthy admission arguments. Test only on a case by case basis – little room for establishing applicable precedence (McKechnie J).

Summary

• The key changes:– Regulators who use warrants need to be aware of

the Rule– The ‘new’ rule is more relaxed – more evidence is

likely to be admitted– Detailed test to be satisfied by the prosecution to

a high standard– Remains to be seen how application will work and

how many officers will be required to satisfy the knowledge point

Conclusion

• Aim to avoid having to rely on the Exclusionary Rule– accuracy in warrant– comprehensive Information is key– compliance with warrant in execution

Brian OrmondAssociate, McDowell PurcellE: bormond@mcdowellpurcell.ie DD: 01 828 0695

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