How difficult would it be to add a public interest / whistleblowing exemption to the

hatrickpatrick

Act abbreviated due to title length restriction, I am referring to the Criminal Justice Surveillance Act 2009.

This act is currently the centre of a court case involving RTE's Aras Attracta documentary last year.

http://m.rte.ie/news/2015/1005/732522-aras-attracta/

Essentially, the staff who are shown in the program contend that because the footage was not recorded by a party authorised to do so under the act, it should be inadmissible in court. This would effectively destroy the cases against all of the accused.

Clearly in this and many other cases there's an overriding public interest involved. Around the world, a great many crimes have been exposed and prosecuted where they would not have been without the aid of covertly obtained footage from fellow staff / whistleblowers at whatever organisation the wrongdoing took place. We could cite any number of cases - the Anglo tapes, footage of abuse at slaughterhouses and animal testing labs, photographs from places such as Abu Ghraib, and plenty of others.

Without such whistleblowing, a great many scandals would have gone unexposed and a great many vile acts would have gone unpunished.

Furthermore, if the argument is that they should have simply forwarded the footage directly to the authorities instead of publicly broadcasting it, the program itself detailed how the authorities' response to this situation was itself part of the problem and totally inadequate. So it stands to good reason that without a public scandal, given the known lethargy and apathy in our justice system, nothing would have happened at all.

Bearing all this in mind, how difficult would it be to amend the act for cases of national public importance such as this? Would a constitutional amendment be required or could it be achieved through legislation alone?

hullaballoo

Please bear in mind that this matter is sub judice at present and be careful about what you say.

hullaballoo

I don't think any amendment is necessary. Without reading the article (which I wouldn't believe, even if I did read it), surely the defence are objecting on the basis that the evidence was unlawfully obtained. There's already a well-established test to deal with such objections and the evidence can be deemed admissible notwithstanding that it may have been unlawfully obtained.

hatrickpatrick

hullaballoo wrote: »

I don't think any amendment is necessary. Without reading the article (which I wouldn't believe, even if I did read it), surely the defence are objecting on the basis that the evidence was unlawfully obtained. There's already a well-established test to deal with such objections and the evidence can be deemed admissible notwithstanding that it may have been unlawfully obtained.

Can you explain this a little? That is indeed the argument - that only the Gardai and the Revenue are allowed to secretly bug / film people and therefore that the entire backbone of the state's case - the recordings which were broadcast on Prime Time - are inadmissible.

What I'm suggesting is that if this is indeed the case, which of course we won't know until Friday, we should consider adding a clause to the law which states that if such footage, despite being obtained illegally, exposes something of such grave national importance as this, that it should be exempt from this aspect of the law which makes it inadmissible.

Of course, none of this matters if the court rules against the defence anyway - it's just that from my reading of the article, under the current law there doesn't seem to be much provision for the public interest / whistleblowing defence.

Peregrinus

The answer to the OP is that it would be quite easy to legislate to allow unlawfully-obtained evidence to be admissible in relation to a matter of "grave national importance" if the political will were there. Obviously, you'd need some definition of, or criteria for identifying, matters of "grave national importance", but you could work on that.

But it's not all all clear that it would be a good idea. Think about it. If that were the law, then when investigating matters of "grave national importance", the guards wouldn't need warrants, they wouldn't need to follow procedures, they wouldn't have to respect civil or personal rights. It wouldn't matter how they collected their evidence, because the evidence would be admissible anyway. So put the boot in, Seamus, and keep putting it in until the bastard talks.

I know that's not the outcome you want, but those are the incentives you're about to set up and with all legislation and public policy the outcome you get is not determined by the one you hope for, but by the structure you set up. The rule against admitting unlawfully-obtained evidence exists for a reason, and that is the reason.

So the real challenge is, can you devise an exception to the rule against admitting unlawfully obtained evidence which doesn't create an incentive for the authorities to obtain their evidence unlawfully? And that would be very hard, I think.