Evidence obtained illegally

OTK

Firstly, is it true that evidence obtained illegally is inadmissible in any court in Ireland?

If so, then why is this?

seamus

More-or-less, though I don't know any specifics on it.

I think of it in terms of "Two wrongs don't make a right". Just because Mr. A broke the law, that doesn't make it OK for Mr. B to break the law to catch him.

That said, afaik, evidence obtained illegally is only inadmissable in criminal cases. The same restrictions don't apply in civil cases (though the defendant has the right to take a counter-case about the illegally obtained evidence).

johnnyskeleton

Deliberately unconstitutionally obtained evidence (that is evidence obtained in conscious breach of the accused's constitutional rights) is almost always inadmissable as evidence against the accused, and is generally inadmissable in a civil trial too. Although there are many reasons used to justify these, the two I consider most important are 1) to deter the gardai from breaching citizens' rights in pursuit of criminals and 2) because evidence obtained in breach of a citizen's constitutional rights would cause unfairness and inequality at trial.

Incidental breaches, or breaches in exeptional circumstances may be admissable, but only when, in my view, the breach was minor in nature, and there was an important overriding purpose behind the breach (i.e. not just ignorance).

Breaches of a third party's constitutional right is an interesting arugment, but suffice it to say that it is not as significant as a breach of the accused's rights.

Illegally obtained evidence is admissable where the probative value outweighs the prejudicial effect. So where highly relevant evidence is obtained based on a technical illegality, it should be admitted. In civil cases there is, in my opinion, a general attitude that admissable evidence should be judged in the context of fairness between the parties, so unless the illegality causes unfairness the other party, I don't think it would be that great a bar to admissability.

Unfairly obtained evidence is judged based on a similar test as illegally obtained evidence. The only difference is that it is not in breach of a specific law, but is rather unfairness in all the circumstances (e.g. a garda bullying an accused in an interview).

Finally, a breach of the custody regulations (the statutory instrument guide for the detention of persons in police custody) and the judges rules (similar, but older, English and judicially created) is not, in itself, a reason to exclude evidence, but a culmination of several breaches might be.

OTK

What happens in a case where clear evidence such as a photo or recording of a very serious crime such as murder is obtained through clear illegality such as a police man breaking into a suspect's house without warrant? Can this evidence not even be used to acquit another suspect?

In a case where the police obtain evidence from a house without a valid warrant, can they be done for breaking and entering or burglary?

johnnyskeleton

OTK wrote:

What happens in a case where clear evidence such as a photo or recording of a very serious crime such as murder is obtained through clear illegality such as a police man breaking into a suspect's house without warrant?

Breaking into a suspect's home (e.g. primary residence) without a warrant is a violation of the sanctity of the suspect's dwelling, and as such any evidence, no matter how compelling, cannot be used against him. Note that forcefully entering a dwelling, even when there is a valid warrant requires a compelling reason, and where entry is forced based on an invalid warrant (as opposed to no warrant) it is illegally, rather than unconstitutionally obtained evidence, and so may be admitted as above.

Breaking into a person's other property does not necessarily have the same difficulties, but it depends on how the property is set up (e.g. partial dwelling).

OTK wrote:

Can this evidence not even be used to acquit another suspect?

This is a more interesting question.

Firstly, I would hope that the DPP would not prosecute someone knowing that they were innocent.

Secondly, it the person whose rights were violated consents, I don't see why the evidence could not be used.

Thirdly, exculpatory evidence is not the same as inculpatory evidence, so even if there is no consent from the person whose home was violated, it is possible that it could be introduced for the benefit of the third party. In this situation, I believe the admissability test is whether the probative value outweights the prejudicial effect. However, if the two persons were co-accused at the same trial it would not be admissable, and the correct approach would be to separate the trials.

This question is usually raised in cases such as a person being arrested on another's land, and the courts, in my respectful opinion, have decided on the facts of those cases that there was no actual breach of constitutional rights. However, I think that if there was an undeniable breach of another person's constitutional rights, any evidence obtained would not be automatically inadmissable, having regard to the policy reasons behind the rule.

OTK wrote:

In a case where the police obtain evidence from a house without a valid warrant, can they be done for breaking and entering or burglary?

Another interesting question, to which the practical answer is "do you think the police ever get done?".:D

However, it depends on the circumstances. Where there is an invalid warrant, it is not the same as having no warrant (see above). If they entered the premises with some over-riding concern (e.g. the protection of victims, the risk that the evidence would be destroyed etc) then this can sometimes justify them, but I should emphasise that it is very exceptional.

The gardai may also sometimes enter a premises without a warrant, e.g. when they are invited in or when they are chasing a suspect (in flagrante delicto).

However, if a gardai entered a building as a trespasser with the intention of committing an arrestable offence (theft, arson, robbery, rape etc) or if they, while there committed such an offence, it would be burglary. The taking of items is not theft unless it is dishonest, and so if the gardai are acting in bona fides they would probably be fine. If they were burlarising the house in the normal meaning of burglary (breaking in to steal something), then they are committing an offence.

Breaking and entering is an American offence, the nearest thing here, I suppose, is criminal damage. It is a good defence for a garda to say that they had a lawful excuse for damaging the property.

Tom Young

I have quite a bit of data on this but I will only comment that there are two key factors in this type of scenario:

1. The Legal Burden of Proof; and
2. The Evidential Burden of Proof.

The Burden always luys with the Prosecution.

At common law a peculiar knowledge principle comes into play, and if it exists here can/could reverse the onus of proof on the Defendant.

Some cases where CCTV footage has been problematic DPP v. Braddish, DPP v. Dunne. Either/both involved retention of the footage and identification of a given party.

In Irish Law there is a rule known as the O'Brien rule which generally leads to inadmissibility of illegally obtained Evidence, though there are a few exceptions to this particular case. The constitution of Ireland also provides for inviolability of the/a dwelling Art. 40.5 and it currently extends to entry unless a Garda suspects the commission of a serious crime or has grounds to enter under the Drug Trafficking or Offences Against the State Acts.

PS: Johnny's answer is better than mine.

OTK

Really interesting stuff all round. Thanks!