The Exclusionary Rule Watered Down - How do we feel about this?

TinkledPink

Fascinated reading about this on the papers today and I couldn't find a thread on it here so starting one now.

Would you be for the new majority position or prefer the older Kenny/O'Brien rule?

Personally, I'm torn on this in many ways. We start on the premise that safeguarding Con rights is of utmost importance for the law. Yet time and again, defence counsels have twisted errors and inaccuracies into invalidities and illegalites and ultimately inconstitutionalities rendering probative evidence useless.

Yet It's arguably a bad day for civil liberties where evidence now gathered in breach of our rights may be used against us.

On the other hand, we've seen time and again mere clerical errors re names, dates or addresses usually on warrants which have lead to the collapse of many otherwise valid and viable cases. (I'm just thinking of every solicitor/barrister who's forged a career picking holes in hastily or lazily written warrants which has collapsed countless drink driving charges, rape cases and so on imaginably to the devastation of victims.)

So interestingly today is a good day for prosecutors and victims, but a bad day for defence teams and arguably all of us as citizens. Now the courts I assume will balance the interests re inclusion/exclusion of evidence, a process MacMenamin considers unworkable with Harriman appearing to envisage a quite generous good faith exception down the line which doesn't bode well for us. He clearly isn't convinced by the majs rationale and doctrinally I'd have to agree with him despite the fact he's always been a 'without clear rules, the game has no meaning kind of guy'.

But that being said, this decision I think has been on the cards for a while now. I remember a couple deputies submitted a Private Members Bill in 09 to abolish the exclusionary rule and although it was shut down quick enough many senators and tds agreed there were major problems with the rule.

And of course throw in now the whole, "this gives the gardai licence to act as dubiously as possible and later plead ignorance argument". And there is a lot of weight to this considering recent revelations.

I think today's decision will work out for the best so long as the courts are on the gardais arses the whole time re proper procedure whilst accepting mistake can occassionally be made. It will also allow the courts to adduce evidence that would otherwise be rejected.

Yet the problem remains. As a friend put it, we risk opening the doors to reducing the deterrence effect on police behaviour in a jurisdiction with a bad record on police oversight.

Interesting times ahead no doubt!

Mr. Incognito

If you cannot get the basic paperwork right then you do not deserve to be trusted with taking away someones life, reputation and liberty.

Period in my view.

TinkledPink

Mr. Incognito wrote: »

If you cannot get the basic paperwork right then you do not deserve to be trusted with taking away someones life, reputation and liberty.

Period in my view.

Agreed, but does that give us the right to deny victims of crimes the possibility of justice by having probative evidence heard and thus further the communities interest in seeing crimes prosecuted.

Policing accountability should always be high on the list but the exclusionary rule as it stood makes lawyers mere grammar Nazis (that Cashel Road address case), not people who held the gardai to account.

johnnyskeleton

TinkledPink wrote: »

Would you be for the new majority position or prefer the older Kenny/O'Brien rule?

Of coure, according to Mr. Justice O'Donnell, Kenny and O'Brien are inconsistent and so he did nothing other than reinstate the O'Brien rule. I think he went muh further than that, but that was his stated position.

On the other hand, we've seen time and again mere clerical errors re names, dates or addresses usually on warrants which have lead to the collapse of many otherwise valid and viable cases. (I'm just thinking of every solicitor/barrister who's forged a career picking holes in hastily or lazily written warrants which has collapsed countless drink driving charges, rape cases and so on imaginably to the devastation of victims.)

Im not sure I agree with this. Clerical errors as to names dates and addresses can be overcome as long as there is no ambiguity (dpp v. Mallon). Its only when the error goes to jurisdiction or a statutory precondition that an error invalidates a warrant. So a mistake in typing up the address is fine so long as it is reasonably clear what was meant, but a mistake as to the legal basis upon which the warrant was obtained is wrong.

Also, very few rape cases and drink driving cases will be affected by this decision. It is much more likely to affect drugs and stolen property type cases.

Dublinensis

johnnyskeleton wrote: »

Of coure, according to Mr. Justice O'Donnell, Kenny and O'Brien are inconsistent and so he did nothing other than reinstate the O'Brien rule. I think he went muh further than that, but that was his stated position.

Actually, I think both O'Donnell J and Clarke J understand the new rule to be somewhere between Kenny and O'Brien:

O'Donnell J wrote:

115. Since the impact of the decision in this case is to reverse Kenny but not to restore O’Brien, and rather to seek out a point somewhere between the two (and rather closer to Kenny than to O’Brien), it must follow that whatever ‘motion’ has been made by the majority decision in this case, it is necessarily less than that which was made in Kenny.

Clarke J wrote:

4.16 In my judgement, O'Brien does not go far enough but Kenny goes too far.

FWIW, Hardiman J's judgment does not read like the judgment of a happy man.

hullaballoo

I haven't read the judgments in full but it seems to me now that the State is now entitled to rely on an argument in all cases, that the accused is almost never entitled to rely upon.

Now, where there is an issue surrounding unconstitutionally obtained evidence, the accused essentially maintains that the prosecution cannot rely on the fruit of it's unlawful actions. It's an accusation in itself. It seems now that that accusation can be defended by the State on the basis that the unlawful actions were inadvertent. Only in very exceptional cases can an accused person rely on inadvertence as a defence to an accusation.

In circumstances where there is already such disparity of resources comparing the State and the ordinary citizen, widening that disparity can only be dangerous for the individual.

As Hardiman J put it, it's effectively carte blanche for la policia. "Do what you want, Gard, then we'll decide whether the accused has any constitutional rights. If the evidence is good enough, don't worry, we'll just ignore the fundamental constitutional protections afforded to the individual."

Dublinensis

hullaballoo wrote: »

I haven't read the judgments in full but it seems to me now that the State is now entitled to rely on an argument in all cases, that the accused is almost never entitled to rely upon.

Now, where there is an issue surrounding unconstitutionally obtained evidence, the accused essentially maintains that the prosecution cannot rely on the fruit of it's unlawful actions. It's an accusation in itself. It seems now that that accusation can be defended by the State on the basis that the unlawful actions were inadvertent. Only in very exceptional cases can an accused person rely on inadvertence as a defence to an accusation.

In circumstances where there is already such disparity of resources comparing the State and the ordinary citizen, widening that disparity can only be dangerous for the individual.

As Hardiman J put it, it's effectively carte blanche for la policia. "Do what you want, Gard, then we'll decide whether the accused has any constitutional rights. If the evidence is good enough, don't worry, we'll just ignore the fundamental constitutional protections afforded to the individual."

I think the "ignorance of the law does not excuse" principle is a bit of a red herring in this context. That principle is, as I see it, primarily intended to prevent people from escaping (civil or criminal) liability, and nothing in this decision frustrates that intention: as Clarke J points out, the guards could not raise inadvertence as a defence if, say, you were to sue them for trespass. O'Donnell J notes that where a court excludes unconstitutionally obtained evidence it is not attempting to remedy the breach of the constitutional right. The exclusionary rule is just an extra incentive for the police to be careful on top of their ordinary legal responsibilities and potential liabilities.

hullaballoo

I never imputed that this has anything to do with the principle that ignorance does not excuse.

Dublinensis

hullaballoo wrote: »

I never imputed that this has anything to do with the principle that ignorance does not excuse.

I understood you to be referring to that principle when you said "Only in very exceptional cases can an accused person rely on inadvertence as a defence to an accusation." I may have been mistaken.

hullaballoo

Dublinensis wrote: »

I understood you to be referring to that principle when you said "Only in very exceptional cases can an accused person rely on inadvertence as a defence to an accusation." I may have been mistaken.

Well, maybe this misunderstanding is a microcosm of the issue at hand. It tends to highlight the sorts of semantics that are likely to be argued over this whole issue on a much larger scale.

Inadvertence and ignorance do not have anything like the same implications in the context of the within discussion.

Dublinensis

hullaballoo wrote: »

Well, maybe this misunderstanding is a microcosm of the issue at hand. It tends to highlight the sorts of semantics that are likely to be argued over this whole issue on a much larger scale.

Inadvertence and ignorance do not have anything like the same implications in the context of the within discussion.

Well, I'm only a lowly undergraduate with an abysmal work ethic, so I don't claim to know much.

I'm guessing, though I may again be mistaken, that inadvertence here refers to lack of knowledge that the particular acts in question were illegal/unconstitutional. I understand that that's conceptually different from ignorance of the law, but how is it different as regards the implications?

tiro

Dublinensis wrote: »

O'Donnell J notes that where a court excludes unconstitutionally obtained evidence it is not attempting to remedy the breach of the constitutional right. The exclusionary rule is just an extra incentive for the police to be careful on top of their ordinary legal responsibilities and potential liabilities.

That seems wrong though, doesn't it? It is a remedy for the breach of a constitutional right, and the existence of that remedy gives incentive to the police to pay attention to details and legal procedure in the way they conduct their investigations.

Dublinensis

tiro wrote: »

That seems wrong though, doesn't it? It is a remedy for the breach of a constitutional right, and the existence of that remedy gives incentive to the police to pay attention to details and legal procedure in the way they conduct their investigations.

O'Donnell J wrote:

A court, whether criminal or civil, addressing the admissibility of evidence is not engaged in the question of remedying a breach of the right, as a court asked to grant an injunction to restrain a trespass might be.

(at para 97)

You may be right: I think I may have been misled by the comma after "right".

Little CuChulainn

Mr. Incognito wrote: »

If you cannot get the basic paperwork right then you do not deserve to be trusted with taking away someones life, reputation and liberty.

Period in my view.

Isn't it the Judge that does that?

Manach

With Hullaballoo on this. Given the disportionate growth and power of the state, it behooves them to be as exact as possible and with the usual exceptional circumstances in mind, slopiness in gathering evidence points to slopiness in interpretion the facts thereof. Hence no a great ruling for constitutation liberty.

coylemj

When the British murderers and rapists Shaw and Evans were held for longer than the law allowed in a Garda station in Co. Galway in 1976, didn't the HC and/or SC do some serious legal acrobatics to retrospectively validate their detention?

I recall reading the judgement at the time and reckoning that if it had been a drink driving or burglary case, their trial would have been halted, the prosecution would have been given a flea in their ear and the two lads would probably have sued for deprivation of liberty and gotten a large settlement from the DoJ. It was simply unthinkable that they be released on that 'technicality' so the law was rewritten on the hoof to make sure that their detention was valid in order that their trial could proceed and that they be convicted.

Fred Swanson

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julie385

Could this not also benefit a defendant?

For example, if there was vital evidence withheld in a trial because it was illegally procured, that could possibly clear the defendant?

Little CuChulainn

Fred Swanson wrote: »

This post has been deleted.

Is that what the decision held? I haven't read it yet but I thought the new rule did not apply to deliberate and conscious breaches.

TinkledPink

julie385 wrote: »

Could this not also benefit a defendant?

For example, if there was vital evidence withheld in a trial because it was illegally procured, that could possibly clear the defendant?

The whole issue is about when evidence should be included or excluded from trial. The old position was evidence obtained in breach of the Constitution was automatically excluded (good for defendant). This is no longer the case. So it's really not to the benefit of defendant who obviously want as much evidence as possible excluded.

Note that there's a distinction too between evidence illegally obtained and evidence obtained unconstitutionally. There is certainly overlap between the two but the former isn't automatically excluded and the position now is that the later is no longer automatically excluded. The consequences of such an approach is what split the supreme court.

coylemj

julie385 wrote: »

Could this not also benefit a defendant?

For example, if there was vital evidence withheld in a trial because it was illegally procured, that could possibly clear the defendant?

Red herring.

The issue of it being 'illegally procured' only arises if it's proposed to be used by the prosecution i.e. against the defendant. If it might prove his innocence, the prosecution is legally bound to disclose it to the defence, regardless of how the information was obtained.

coylemj

Let's also remember that Judge Curtin had his house searched and a PC containing hundreds of paedophile images were found on the hard drive. The search was instigated because his credit card was used to purchase these images from a Texas website. Because of a cockup on the part of the Gardai (the search warrant had expired by a day when it was executed), the evidence was ruled inadmissible so his trial collapsed and he walked free. Thanks to good legal footwork on the part of his lawyers, he succeeded in delaying the process of impeachment by an Oireachtas committee until he qualified for a judicial pension at which stage he retired on health grounds, thereby frustrating and bringing to an end the impeachment process.

Had the recent SC decision applied, assuming the error on the part of the Gardai was shown to be not a deliberate and conscious infringement of his constitutional rights, he could have been tried and jailed and the process of impeachment would have been a formality. Instead he is a man who technically hasn't a stain on his character and he continues to draw a judge's pension.

julie385

coylemj wrote: »

Red herring.

The issue of it being 'illegally procured' only arises if it's proposed to be used by the prosecution i.e. against the defendant. If it might prove his innocence, the prosecution is legally bound to disclose it to the defence, regardless of how the information was obtained.

The evidence may not be disclosed to the jury though if it was illegally procured? Even if the evidence is, in fact, of benefit to the defendant?

Fred Swanson

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Carawaystick

Wasn't the main thing there that the state had and still has no wqay of getting rid of district and circuit judges?
Like yer wan from Sutton convicted, would have had to go through the whole Oireachteas impeachment procedure last year or the year before?


Whats to stop a defence lawyer now saying in cross examination saying
" now gard, the law says you cannot do this, but did you do this anyway?"

Or bringing the unlawful nature actions of the gardaí to the juries attention in such a way as to conflate illegal and unconstitutional actions.


I presume its all up to gsoc now to defend our "rights"

julie385

To clarify my example.

Both the prosecution and defense are aware of evidence that is of significant benefit to the accused. However, the evidence can not be presented to the Jury because the evidence was obtained unconstitutionally. When the evidence was originally obtained, it was done so through error.

Will this new ruling have any impact on the above? - can it not also benefit the prosecution as well as the defense?

julie385

To clarify my example.

Both the prosecution and defense are aware of exculpatory evidence. However, the evidence can not be presented to the Jury because the evidence was obtained unconstitutionally. When the evidence was originally obtained, it was done so through error.

Will this new ruling have any impact on the above? - can it not also benefit the prosecution as well as the defense?

coylemj

julie385 wrote: »

The evidence may not be disclosed to the jury though if it was illegally procured? Even if the evidence is, in fact, of benefit to the defendant?

A fact is a fact and stands whether it was illegally obtained or not. The difference is that the prosecution is subject to the (admissibility) test of how it was obtained, the defence is not subject to the same standard which is part of the reason why the recent decision was handed down.

TinkledPink

coylemj wrote: »

A fact is a fact and stands whether it was illegally obtained or not. The difference is that the prosecution is subject to the (admissibility) test of how it was obtained, the defence is not subject to the same standard which is part of the reason why the recent decision was handed down.

So is Julie right in thinking exculpatory evidence albeit obtained unconstitutionally could be used be the accused?

234

julie385 wrote: »

To clarify my example.

Both the prosecution and defense are aware of evidence that is of significant benefit to the accused. However, the evidence can not be presented to the Jury because the evidence was obtained unconstitutionally. When the evidence was originally obtained, it was done so through error.

Will this new ruling have any impact on the above? - can it not also benefit the prosecution as well as the defense?

Where evidence is obtained illegally or unconstitutionally it can be excluded because of prejudice to the accused, not because as a matter of principle the court won't let a jury see evidence that might have been obtained through some impropriety. So no, there will almost never be a situation where it would assist the accused but nevertheless be excluded as the prosecution can't suffer prejudice and has no constitutional rights to protect.

The only situition where it might arise is where there are co-defendants who are blaming each other and evidence exculpating one was obtained in breach of the rights of the other. This would not be a common occurance.

So on the whole this is bad for defendants.

johnnyskeleton

TinkledPink wrote: »

So is Julie right in thinking exculpatory evidence albeit obtained unconstitutionally could be used be the accused?

Nothing is inherently unconstitutionally obtained. Instead, if a person asserts that it breached one of their own cobstitutional rights they can seek to exclude it as evidence against them. The evidence could still be used against a coaccused, for example.