Ignorantia juris non excusat and the recent SC ruling on gardaí allowed to "inadvert

Carawaystick · 08-05-2015 08:17AM #1

Ignorantia juris non excusat and the recent SC ruling on gardaí allowed to "inadvertantly" breach constitutional rights

Given the SC said its grand for Gardaí to break the law if they do it by accident, shouldn't every defendant now try a bit of "I didn't know it was illegal judge"

I mean if a highly trained gard can't be expected to know the law, how can all citizens?

Pat Mustard · 08-05-2015 10:03AM

This is about 'the exclusionary rule' concerning the admissibility of (otherwise) illegally obtained evidence.

http://www.irishtimes.com/news/crime-and-law/supreme-court-judge-criticises-ruling-on-evidence-in-trials-1.2177451

According the new judgment, if the State can show that evidence which has been obtained in breach of constitutional rights but the breach was inadvertent, then the evidence will not be excluded. The judgment was a 4-3 judgment, which shows a significant dissenting opinion in the Supreme Court.

Hardiman J. cited the Minister for Justice, Frances Fitzgerald;

If the ordinary citizen were provided with a defence of ‘I didn’t mean it’ or ‘I didn’t know it was against the law’, then many parts of the law would become completely unenforceable

In my opinion, this is an imposition on people's rights and we are going to need legislation to correct it.

Carawaystick · 08-05-2015 10:49AM

I agree it's bad alright.
My point was does it weaken the "ignorance of the law is no excuse" principle?

Mr. Incognito · 08-05-2015 11:18AM

It's terrible law imo.

I cannot see it standing for as long as DPP v Kenny.

I have read all the judgments and the dissenting views seem much more appropriate to me.

Mr. Incognito · 08-05-2015 11:19AM

Carawaystick wrote: »

I agree it's bad alright.
My point was does it weaken the "ignorance of the law is no excuse" principle?

No, because it is confined to the admissibility of evidence. That's very narrow.

It doesn't allow you to raise it as a defence generally.

Little CuChulainn · 08-05-2015 11:38AM

Mr. Incognito wrote: »

No, because it is confined to the admissibility of evidence. That's very narrow.

It doesn't allow you to raise it as a defence generally.

Nor does it protect the Garda from disciplinary action or civil action for his mistake.

Actually, now that I think of it, unconstitutionally obtained evidence that is used in your trial to convict you can also by used in your civil case against the state for breach of your rights.

Pat Mustard · 08-05-2015 12:05PM

Carawaystick wrote: »

I agree it's bad alright.
My point was does it weaken the "ignorance of the law is no excuse" principle?

No, they are different concepts.

The exclusionary rule of evidence serves to exclude evidence which has been wrongfully obtained. This has now been significantly watered down, meaning that if mistakes are made by the State and if people's rights are breached as a result, the evidence arising out of such breaches may not be excluded. This is a significant intrusion upon people's rights.

The second concept means that a person cannot escape liability under the law because he did not know of that law. For example, the fact that somebody is not aware that bigamy is a crime does not mean that the person cannot be prosecuted for committing it. That is a long standing principle, which just makes sense because otherwise laws would be unenforceable; and there is no point in having unenforceable laws.

Little CuChulainn · 08-05-2015 01:08PM

Pat Mustard wrote: »

No, they are different concepts.

The exclusionary rule of evidence serves to exclude evidence which has been wrongfully obtained. This has now been significantly watered down, meaning that if mistakes are made by the State and if people's rights are breached as a result, the evidence arising out of such breaches may not be excluded. This is a significant intrusion upon people's rights.

How is it any more significant than before? There is no additional permission for a breach of rights granted. The person can presumably still take a civil action against the State for a breach of their rights. They just cannot rely on the breach to escape a conviction.

Carawaystick · 08-05-2015 01:55PM

Pat Mustard wrote: »

No, they are different concepts.

The exclusionary rule of evidence serves to exclude evidence which has been wrongfully obtained. This has now been significantly watered down, meaning that if mistakes are made by the State and if people's rights are breached as a result, the evidence arising out of such breaches may not be excluded. This is a significant intrusion upon people's rights.

The second concept means that a person cannot escape liability under the law because he did not know of that law. For example, the fact that somebody is not aware that bigamy is a crime does not mean that the person cannot be prosecuted for committing it. That is a long standing principle, which just makes sense because otherwise laws would be unenforceable; and there is no point in having unenforceable laws.

So if Gardaí broke into your home with a defective warrant, they could use evidence they gathered, but then be convicted of breaking and entering... Or could they use the inadvertent breach of the law excuse?

Pat Mustard · 08-05-2015 02:39PM

Carawaystick wrote: »

So if Gardaí broke into your home with a defective warrant, they could use evidence they gathered, but then be convicted of breaking and entering... Or could they use the inadvertent breach of the law excuse?

They wouldn't be charged in the first place, not to mind convicted.

Little CuChulainn wrote: »

How is it any more significant than before? There is no additional permission for a breach of rights granted. The person can presumably still take a civil action against the State for a breach of their rights. They just cannot rely on the breach to escape a conviction.

Unconstitutionally obtained evidence would have been excluded previously but this is no longer necessarily the case now, under DPP v C.

That is significant.

Carawaystick · 08-05-2015 03:24PM

Pat Mustard wrote: »

They wouldn't be charged in the first place, not to mind convicted.

Because Gardaí can break into peoples homes if they think they're allowed but aren't,

or because this is Ireland, and sher they're a great bunch of lads

Pat Mustard · 08-05-2015 03:46PM

Carawaystick wrote: »

Because Gardaí can break into peoples homes if they think they're allowed but aren't,

or because this is Ireland, and sher they're a great bunch of lads

This misses the point of the judgment in DPP v C.

It is not about Gardai committing unlawful acts but not being prosecuted because they didn't know that those acts were unlawful.

It's about evidence not being excluded where it has been obtained by unconstitutional means.

Ignorantia juris non excusat and the recent SC ruling on gardaí allowed to "inadvert

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