Evidence - Evidence Obtained By Unconstitutional Or Illegal Or Improper Means

Front 1

The People ( AG) v 0' Brien & Anor. [1965] 19-02)
IR 142 (SC)

("the O'Brien exclusionary rule")

Back 1

Evidence that is obtained in deliberate and conscious violation of an accused's constitutional rights is inadmissible against him, unless there are extraordinary circumstances excusing the violation.

In The People ( AG) v 0' Brien [1965] IR 142 (SC), the guards, on foot of a search warrant, searched the accused's dwelling at 118, Captain's Road, Crumlin. Due to an administrative error, which was pure oversight and not noticed by anyone before the premises were searched, the address on the warrant was 118, Cashel Road, Crumlin. Accordingly, the warrant was invalid. Article 40.5 of the Constitution reads, "[t]he dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law". (Emphasis added). Here, as the warrant was invalid, the accused's dwelling was not entered "in accordance with law". Accordingly, his constitutional right to the inviolability of his dwelling was violated.

Front 2

People (AG) v. O’Brien (1965)

Back 2

Facts

The two applicants were brothers. During their trial, the prosecution introduced stolen goods found at their family home as evidence.

The Gardaí had recovered the evidence on foot of a search warrant. The search warrant described the house as 118 Cashel Road, Crumlin, whereas the applicants lived at 118 Captain’s Road, Crumlin. This mistake rendered the search warrant invalid.

The applicants argued that this mistake rendered the evidence inadmissible.

Decision (SC):

1) Walsh J. distinguished between illegally and unconstitutionally obtained evidence.

2) Because of the breach of Article 40.5 (inviolability of dwelling), this was a case of the latter.

3) He held that : “The courts … must recognise the paramount position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist”.

4) Because the mistake on the search warrant had been accidental, Walsh J. held that there had been no deliberate and conscious violation of rights in this case, thus the evidence was admissible.

HELD: Walsh, J held that if evidence is obtained as a result of a deliberate or conscious breach of a constitutional right, it must be excluded, save in “Extraordinary Excusing Circumstances”.

Also HELD: “The defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence”

Evidence was allowed as there was no “conscious and deliberate” violation of Constitutional Rights.

Front 3

Rationale for the O'Brien exclusionary Rule

Back 3

Justification for the 0' Brien exclusionary rule is twofold. First, constitutional rights must be respected. In The People (AG) v 0' Brien [1965] IR 142 (SC), Walsh J said (at 170), "[t]he defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence. The courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights." ...

Secondly, the public interest demands the deterrence of unlawful investigative practices. In Spano v New York (1959) 360 US 315, Warren CJ said (at 320):

The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.

These remarks were endorsed by Finlay CJ in The People ( DPP) v Kenny [1990] 2 IR 110.

Front 4

Kennedy v The Law Society of Ireland [2002]

Back 4

The defendant, in investigating the accounts and practices of the plaintiff, had acted ultra vires, ie, in excess of its legislative powers. As a result of this investigation, a report was produced by accountants and considered by the defendant's Compensation Fund Committee. As neither the plaintiff nor the court could identify a constitutional right that had been violated, the O' Brien exclusionary rule was not engaged. But, the evidence had been obtained illegally, and the court exercised its discretion in favour of the plaintiff.

Front 5

The People ( DPP) v Lawless (1985)

Back 5

The Court of Criminal Appeal held that the O' Brien exclusionary rule does not apply in respect of evidence obtained subsequent to an unauthorised entry into or onto premises not belonging to, or being occupied by, the accused.

Front 6

Kennedy and Anor. v Ireland & Anor. [1988]

Back 6

The High Court (Hamilton J) recognised a right to privacy emanating from Article 40.1. This general right incorporates the specific right not to be subjected to covert telephone surveillance. However, Hamilton J said (at 476) that the general right is not absolute and "its exercise may be restricted by the constitutional rights of others, by the requirements of common good and ... [by] the requirements of public order and morality". (Emphasis added). Regarding the tapping of the plaintiffs' telephones by State agents without formal justification or recourse to safeguards previously declared by Ministers for Justice, he said (at 477), "[the] dignity and freedom of an individual in a democratic society cannot be ensured if his communications of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with".

Front 7

Section 98, Postal and Telecommunications Services Act, 1983

Back 7

Section 98, Postal and Telecommunications Services Act, 1983 prohibits the interception and recording of a telephonic message by any person without the agreement of both the caller (or the person on whose behalf the message is transmitted) and the person who is by him intended to receive the message.

Front 8

s. 2(1), Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993

Back 8

However, s. 2(1), Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993 provides that, upon an application to him for a warrant, the Minister for Justice may authorise such interception either for the purpose of the investigation of a crime or in the interests of State security.

Front 9

The People (DPP) v Dillon [2003]

Back 9

Hardiman J, for the Court of Criminal Appeal, held that answering someone else's telephone amounted to an interception as defined by s. 98, Postal and Telecommunications Services Act, 1983.

After arresting two men on suspicion of possession of controlled drugs, a guard took possession of a mobile phone belonging to one of the suspects. The telephone rang. The guard answered it, and pretended to be involved in activities related to controlled drugs. This he was, in truth; though not in the sense that the caller expected. An arrangement was then made for the guard and the caller, who was the accused, to meet up for the purpose of the criminal supply of controlled drugs at an agreed location. There, the accused was arrested in the possession of heroin.

Hardiman J held that the action by the guard was unlawful because the scheme of the two Acts excluded spontaneous actions of this kind, even in the investigation of crime. He said that, before he had answered the phone, the guard ought to have applied for a warrant to intercept the communication. He stated (at 514):

It seems to us that the decision to operate entirely outside the terms of the statute would be a grave difficulty in the way of the State's relying on extraordinary excusing circumstances. Counsel for the Director of Public Prosecutions asked rhetorically, "even if the statute were breached, what was the Inspector to do? Ignore the ringing telephone?" Forceful though these questions are, they do not address the decision to operate with any regard at all for the statute and the rights protected by it. The issue underlying these questions may point to a lacuna in the statute that this is not one
which the court can fill.

Hardiman J further stated that the criminal import of the call was not a bar to the application of the O' Brien exclusionary rule. If it was, he said, unlawful bugging and interception would recur with impunity.

Front 10

"Deliberate and conscious Violation"

Back 10

The right of an accused to have evidence obtained in violation of his constitutional rights is not absolute. The violation must have been deliberate and conscious. The decision in The People (AG) v 0' Brien [1965] IR 142 (SC), ie, that the evidence was admissible, suggests that a violation of a constitutional right is not deliberate and conscious if the person violating it is unaware of the violation. However, in Irish Laws of Evidence (Thomson Round Hall, 2004), Healy notes (at 326):

A majority of Irish decisions since O'Brien ... have chosen to interpret "deliberate and conscious" not by reference to an intention on the part of the gardai to infringe a constitutional right of the accused, but instead to their intention to act or behave in such a way that a constitutional right of the accused would be breached whether innocently or not.

And so, there are two possibilities here:

(i) A violation of a constitutional right is deliberate and conscious if the person violating the constitutional right intended to do so or knew that he was doing so.

(ii) A violation of a constitutional right is deliberate and conscious if the conduct constituting the violation is deliberate and conscious. In this context, "deliberate and conscious" can mean only "voluntary".

Front 11

"Violation of the constitutional Rights of the accused Person"

Back 11

It need hardly be stated that for the 0' Brien exclusionary rule to be applicable the court must
(i) identify a constitutional right enjoyed by the accused and (ii) be satisfied that it was
violated.

Front 12

The People (DPP) v McMahon & Ors. [1986]

Back 12

Article 40.5 of the Constitution, which enshrines the right to the inviolability of the dwelling, is not engaged if the guards unlawfully enter business premises, eg, a licensed premises.

Front 13

The People (DPP) v Madden [1977]

Back 13

s. 30, Offences Against the State Act, 1939, which, at the time, permitted a suspect to be detained for 48 hours. The accused was in the course of making a confession when that period expired. When it was put to a guard that the accused was in unlawful detention, the guard replied, "That's not for me". The guard also said that he did not think that the accused was in unlawful detention, as "he was making a statement during that time".

The Court of Criminal Appeal held that, in determining whether or not there was a deliberate and conscious violation of the accused's constitutional right to personal liberty, absence of mala fides on the guard's part is irrelevant. It was satisfied that the guard must have been aware of the lawful period of detention that applied in the case, and that he had deliberately and consciously determined that the taking and completion of the statement was of more importance than respecting the accused's constitutional right to personal liberty. In other words, the violation does not have to be deliberate and conscious. That is to say, the guards do not have to be aware of the violation. Rather, the conduct constituting the violation must be deliberate and conscious, which can only mean that it must be voluntary.

Front 14

The People (DPP) v Walsh [1980]

Back 14

If a man is consciously and deliberately kept in custody in a garda station or anywhere else without a charge being preferred against him and without being brought before a court as soon as reasonably possible, he is in unlawful custody and there has been a deliberate and conscious violation of his constitutional right to be at liberty. That this was the position in the present case is abundantly clear from the evidence given by the police officer at the trial. The fact that the officer or officers concerned may not have been conscious that what they were doing was illegal or that, even if they did know it was illegal, they did not think it was a breach of the Constitution does not affect the matter. They were conscious of the actual circumstances which existed.

Front 15

The People ( DPP) v Shaw [1982]

Back 15

The Supreme Court had to determine the consequences of the accused's unlawful detention while the guards were investigating the disappearance of two women. During that time the accused made an admission to the rape and
murder of one of the women. In his judgment, Walsh J, in summarising the law covering the arrest and detention of a suspect and the consequences of any breach of the rights of the suspect, stated (at 31):

8. Subject to paragraphs 9 and 10, evidence obtained as a result of deliberate and conscious violation of the constitutional rights of an accused person may not beadmitted at the trial of that person: The People (Attorney General) v O'Brien; The People v Walsh; The People v Madden.

9. There can be extraordinary circumstances (such as the imminent destruction of vital evidence or the need to rescue a victim in peril, or other extraordinary excusing circumstances) surrounding the conscious and deliberate violation of the constitutional rights of an accused which, in the opinion of the trial judge, may justify the admission of the evidence so obtained: The People (Attorney General) v O'Brien; The People v Walsh.

10. If the act which amounts to a breach of the constitutional rights of the accused person was committed unintentionally or accidentally, the evidence may be admitted at the discretion of the trial judge if it is otherwise admissible: The People (Attorney General) v O'Brien; The People v Walsh.

12. Where it appears that there has been a breach of the constitutional rights of the accused, the onus of establishing the existence of "extraordinary excusing circumstances" or of mistake, or lack of intention or accident is upon the party seeking to
adduce the evidence: The People v Madden; The People v Walsh.

13. When the act complained of was undertaken or carried out consciously and deliberately, it is immaterial whether the person carrying out the act may or may not have been conscious that what he was doing was illegal or, even if he knew it was illegal, that it amounted to a breach of the constitutional rights of the accused. It is the doing of the act which is the essential matter, not the actor's appreciation of the legal consequences or incidents of it: The People v Madden."

But Walsh J was in the minority. For the majority, Griffin J (Henchy, Kenny and Parke JJ concurring) said (at 55):

Nor do I find myself able to support the opinion that a person's statement is to be ruled out as evidence obtained in deliberate and conscious violation of his constitutional rights, even though the taker of the statement may not have known that what he was doing was either illegal or unconstitutional. I consider the authorities to be to the contrary effect.

For example, in The People (Attorney General) v O'Brien, Kingsmill Moore J. (who gave the majority judgment), having held that evidence obtained in deliberate and conscious violation of constitutional rights should be excluded except in "extraordinary excusing circumstances" (which he preferred to leave unspecified), excused as "a purely accidental and unintentional infringement of the Constitution" the violation complained of in that case: seep. 162 of the report. See also The People v Madden at p. 346, where a "factor such as an inadvertence" was recognised as capable of being one of the "extraordinary excusing circumstances" envisaged in O'Brien's case. In my opinion, it is the violation of the person's constitutional rights, and not the particular act complained of, that has to be deliberate and conscious for the purpose of ruling out a statement

Front 16

Byrne v Gray [1988]

Back 16

Upon an application for a search warrant, it is not sufficient for the issuing authority, who, usually, is a judge or Peace Commissioner, merely to "rubber stamp" the suspicion of the guard that evidence is to be found on the premises specified in the application for the search warrant. Rather, the issuing authority must itself be satisfied that there are reasonable grounds for the guard's suspicion. This means that it must conduct some inquiry before issuing a search warrant.

Front 17

People (DPP) -v- Kenny (1990)

Back 17

Facts:

The appellant’s flat had been under surveillance by the Gardaí.

They observed suspicious behaviour and obtained a search warrant under s. 26 of the Misuse of Drugs Act 1977.

On foot of the warrant they forced their way into the flat and found a quantity of drugs.

The appellant was duly convicted, albeit on an invalid warrant for the relevant offence.
Decision (CCA):

1) Found that the warrant was invalid.

2) However, they upheld the conviction (finding no breach of constitutional rights).

Decision (CCA):

1) Finlay C.J. for the majority recognised the two approaches outlined above.

2) He found that he could not follow the majority decision in Shaw, as he was under an obligation to opt for the approach which would most effectively vindicate the constitutional rights of the accused.

3) Rationale: Organs of the State should not be discouraged from being aware of the constitutional rights which they themselves should be protecting; instead, they should be encouraged to be aware of and protect them.

4) “To exclude only evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right is to impose a negative deterrent.”

5) “To apply, on the other hand, the absolute protection rule of exclusion whilst providing also that negative deterrent, incorporates as well as positive encouragement to those in authority over the crime preventions and detection services of the State to consider in detail the personal rights of the citizens as set out in the Constitution.”

Front 18

The People ( DPP) v O'Connell [1995]

Back 18

The Court of Criminal Appeal held that there was a deliberate and conscious violation of the accused's constitutional right to have reasonable access to legal advice whilst in the custody of the guards in circumstances where a guard had been mistakenly informed that the accused had already consulted a solicitor and who, therefore, failed to arrange consultation for the accused with his solicitor.

Front 19

The People (DPP) v Balfe [1998]

Back 19

Murphy J, for the Court of Criminal Appeal, distinguished Kenny. In words similar to those used by Kingsmill Moore J in O'Brien, Murphy J noted, "there was no evidence of deliberate treachery, imposition or deceit, no policy of disregard for the provisions of the Constitution or to conduct searches without a warrant". The circuit-court judge had exercised his discretion and admitted the evidence.

In a review of the cases, Murphy J noted that the jurisprudence on "deliberate and conscious" violations was still evolving. In O'Brien, despite the incorrect address on the search warrant, "there was sufficient validity in the warrant or order to justify the admission in evidence" of the goods that had been seized during the execution of the warrant. He commented that it would have been open to the accused in O'Brien to refuse entry to the guard.

Front 20

"Extraordinary excusing Circumstances"

Back 20

Apart from the violation of the accused's constitutional right having to have been deliberate and conscious, there must have been no extraordinary circumstances excusing the violation. The People (AG) v O' Brien [1965]

The following have been held to be extraordinary excusing circumstances:

(a) Freeman v DPP [1996] (HC) - discovering a person in flagrante delicto - here, the accused was observed moving stolen property from a van into his dwelling.

(b) The People (DPP) v Delaney [1997] (SC) -the presence of a hostile crowd outside a building and threatening the people inside it.

The following have been held not to be extraordinary excusing circumstances:

(a) The People ( DPP) v 0' Loughlin [1979] IR 85 (CCA)- the imperative to investigate a crime;

(b) The People (DPP) v Healy [1990] 2 IR 73 (SC) - an unwillingness to disrupt questioning already underway when the detainee's solicitor arrives at the garda station.

Front 21

The People (AG) v O'Brien [1965]

Back 21

Walsh J (O'Dalaigh J concurring) gave (at 170) as examples of "extraordinary excusing circumstances"

(i) "the imminent destruction
of vital evidence" and

(ii) "the need to rescue a victim in peril".

He continued, "[a] suspect has no constitutional right to destroy or dispose of evidence or to imperil the victim". He "would also place in the excusable category evidence obtained by a search incidental to and contemporaneous with a lawful arrest although made without a valid search warrant".

Kingsmill Moore J " ... would prefer ... not to attempt to enumerate such circumstances by admission". He continued (at 162), "[t]he facts of individual cases vary so widely that any hard and fast rules of a general nature seem to me dangerous and I would again leave the exclusion or non-exclusion to the discretion of the trial judge".

Front 22

Freeman v DPP [1996]

Back 22

Discovering a person in flagrante delicto - here, the accused was observed moving stolen property from a van into his dwelling - was found to be an "extraordinary excusing circumstance".

Front 23

The People (DPP) v Delaney [1997]

Back 23

The presence of a hostile crowd outside a building and threatening the people inside it was found to be an "extraordinary excusing circumstance".

Front 24

The People ( DPP) v 0' Loughlin [1979]

Back 24

The imperative to investigate a crime; was found not to be an "extraordinary excusing circumstance".

Front 25

The People (DPP) v Healy [1990]

Back 25

An unwillingness to disrupt questioning already underway when the detainee's solicitor arrives at the garda station was found not to be an "extraordinary excusing circumstance".

Front 26

Walsh v District Judge O' Buachalla & Anor. [1991]

Back 26

X is arrested and detained on suspicion of drunk driving. He requests access to a solicitor. The request is refused. A doctor arrives at the station to take a urine sample. X is obliged by law to give such a sample. If he does not, he commits a crime. X gives a urine sample. The prosecution wants to admit the results of tests carried out on the sample ("the evidence") to prove that X was over the limit whilst driving. The question arises: was the evidence obtained as a result of a deliberate and conscious violation of X's constitutional right to have reasonable access to a solicitor?

The High Court (Blayney J) answered this question in the negative, reasoning that no amount of legal advice would have altered the fact that if X refused to give a urine sample he would have committed a crime. This reasoning was adopted by Finlay CJ, for the Court of Criminal Appeal, in The People (DPP) v Cullen unreported, Court of Criminal Appeal, March 30, 1993.

Front 27

Causation

Back 27

The deliberate and conscious violation of the accused's constitutional right must have resulted in the garnering of evidence. That is to say, there must have been a causal nexus between the violation and the garnering of evidence.

Front 28

The People ( DPP) v Finnegan (1997)

Back 28

Barrington J, for the Court of Criminal Appeal, considered the scope of the constitutional right to have reasonable access to a solicitor. It incorporates a right to a private consultation in person or over the telephone. Absent extraordinary excusing circumstances, if this right is deliberately and consciously violated, the suspect's detention becomes unlawful, and evidence harvested during such detention would be inadmissible.

Front 29

The People ( DPP) v Buck [2002]

Back 29

The Supreme Court rejected the argument that the right to have reasonable access to a solicitor is necessarily breached if a suspect requests access to a solicitor, but is questioned before the solicitor arrives at the Garda station.

In this case, in any event, the accused made a confession after he had consulted with a
solicitor. Accordingly, there was no causal nexus.

Front 30

DPP (Walsh) v Cash (2010)

Back 30

HELD: Clearly, Charleton, J deprecates the ease with which the defence can now seek to have evidence excluded based on accidental breaches of the Constitution. What suffers, according to Charleton, J, is the right of the citizen to be protected from crime, and the duty on the State to prosecute crime.

Charleton, J outlines 3 consequences of the Kenny decision:

1.“every error on the part of the agents of the State which takes their action outside the strict letter of the law causes the exclusion at trial of any evidence which directly results therefrom” – (see Curtin v The Clerk of Dail Eireann)

2.“Every breach of an accused person’s rights is always pleaded at trial as an infringement of the constitution”

3.It is nigh on impossible now to ascertain when Constitutional rights begin and end.

HELD: this case involved a question as to evidence that formed the basis of a ‘reasonable suspicion’ that led to an arrest. It did not involve the admission of evidence to help secure conviction, so Kenny did not apply.

APPEAL SUP CT: the evidence (fingerprints) did not form part of the prosecution case, therefore unnecessary to consider whether Kenny should be reviewed. Admissibility of evidence rule related to evidence actually being relied on during trial.

Front 31

DPP (Walsh) v. Cash (2010)

Back 31

The accused was arrested and detained on suspicion of committing a burglary. The case came on for hearing in the District Court. Evidence was given that fingerprints were found at the scene. Under cross-examination, the prosecuting garda agreed that the sole evidence grounding the arrest of the accused was a match between fingerprints found at the scene and those held on a computerised database in the garda technical bureau. The gardaí were unable to state whether those fingerprints held on the database had been lawfully taken or retained. Counsel for the accused sought a direction. The District Court Judge decided to state a consultative case to the High Court in which she posed, inter alia, the following question:-

"Whether, in circumstances where the basis of a garda investigation is a record of the accused's fingerprints, retained by gardaí which, on being so challenged by the defence, the gardaí are not in a position to 'stand over whether they were lawfully taken or kept', the evidence obtained during that investigation can form the legitimate basis for an arrest and subsequent detention pursuant to s. 4 of the Criminal Justice Act 1984?"

The High Court (Charleton J.) answered this question in the affirmative stating that a suspicion which gave rise to a reasonable cause for arrest did not have to be justified on the basis that every element of it arose solely on the basis of evidence that was properly obtained (see [2007] IEHC 108). The accused appealed the to the Supreme Court.

Held by the Supreme Court (Murray C.J., Denham, Hardiman, Geoghegan, Fennelly, Macken and Finnegan JJ.), in dismissing the appeal and affirming the order of the High Court,

1, that the accused had failed to establish that an onus rested on the prosecution to prove the lawful provenance of material relied upon by a member of An Garda Síochána to form reasonable cause justifying an arrest.
The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110 and Director of Public Prosecutions v. McCreesh [1992] 2 I.R. 239 distinguished; Hussien v. Chong Fook Kam [1970] A.C. 942, O'Brien v. Special Criminal Court [2007] IESC 45, [2008] 4 I.R. 514 , Oladapo v. Governor of Cloverhill Prison [2009] IESC 42, [2009] 2 I.L.R.M. 166 , Dunne v. Clinton [1930] I.R. 366 and The People (Director of Public Prosecutions) v. Shaw [1982] I.R. 1 considered.

2. That the lawfulness of an arrest and the admissibility of evidence at trial were different matters which were normally considered in distinct contexts.

Obiter dictum : That an arrest without reasonable cause or suspicion was an unlawful act and might give rise to damages.
Per Hardiman J.: That the questions posed by the District Court Judge lacked a sufficient evidential basis and were to that degree moot and thus inappropriate to be answered. The observations on the general topic of legally obtained evidence made by the High Court must be regarded as obiter and of no binding effect.

Front 32

Illegally and improperly obtained evidence

Back 32

The trial judge enjoys discretion as to whether or not to admit illegally-obtained evidence. Healy explains (at 329):

Evidence has been obtained illegally if the investigator acted without or beyond his lawful authority under statute or the common law, or if it was obtained by the commission of a crime, tort, or breach of contract. Evidence has been obtained improperly where the investigator exercised trickery, deception, bribery, or other ruse to obtain the evidence

Front 33

The People (AG) v 0' Brien [1965]

Illegally Obtained Evidence

Back 33

Kingsmill Moore J (Lavery and Budd JJ concurring) said that deciding whether or not to admit illegally-obtained evidence involves a balancing exercise:

It is desirable in the public interest that crime should be detected and punished. It is desirable that individuals should not be subjected to illegal or inquisitorial methods of investigation and that the State should not attempt to advance its ends by utilising the fruits of such methods. It appears to me that in every case a determination has to be made by the trial judge as to whether the public interest is best served by the admission or by the exclusion of evidence of facts ascertained as a result of, and by means of, illegal actions, and that the answer to the question depends on a consideration of all the circumstances.

He then enumerated some such circumstances:

... the nature and extent of the illegality have to be taken into account. Was the illegal
action intentional or unintentional, and, if intentional, was it the result of an ad hoc decision or does it represent a settled or deliberate policy? Was the illegality one of a trivial and technical nature or was it a serious invasion of important rights the recurrence of which would involve a real danger to necessary freedoms? Were there circumstances of urgency or emergency which provide some excuse for the action? .... The nature of the crime which is being investigated may also have to be taken into account.

He was not convinced that trickery was a ground for exclusion:

Lord Goddard in [Kuruma v R [1955] AC 197] mentions as a ground for excluding relevant evidence that it had been obtained by a "trick" and the Lord-Justice General in [Lawrie v Muir (1950) SC (J) 19] refers to an "unfair trick". These seem to me to be more dubious grounds for exclusion. The police in the investigation of crime are not bound to show their hand too openly, provided they act legally. I am disposed to lay emphasis not so much on alleged fairness to the accused as on the public interest that the law should be observed even in the investigation of crime.

He continued:

It would not be in accordance with our system of jurisprudence for this Court to attempt to lay down rules to govern future hypothetical cases. We can do no more than decide the case now before us, and to lay down that, in future cases, the presiding judge has a discretion to exclude evidence of facts ascertained by illegal means where it appears to him that public policy, based on a balancing of public interests, requires such exclusion.

Regarding the mistake in the case before him, he said:

The mistake was a pure oversight and it has not been shown that the oversight was noticed by anyone before the premises were searched. I can find no evidence of deliberate treachery, imposition, deceit or illegality; no policy to disregard the provisions of the Constitution or to conduct searches without a warrant; nothing except the existence of an unintentional and accidental illegality to set against the public interest of having crime detected and punished.

Walsh J (dissenting) said, " ... there is no discretion to rule [evidence] out by reason only of the fact that it was obtained by means of an illegal, as distinct from an unconstitutional, seizure".

Front 34

The People (AG) v Cummins [1972]

Back 34

The admissibility of improperly-obtained evidence was considered by Walsh J in The People (AG) v Cummins [1972] IR 312 (SC). He affirmed the discretionary rule.

Front 35

Competition Authority v Irish Dental Association (2006)

Back 35

Here a warrant had been issued to enable the Competition Authority to search and seize evidence on the premises of the defendant. The problem was that the warrant (for some reason) covered only the entry, search and seizure of documents, etc. relating to the business of selling, supplying or distributing motor vehicles.

McKechnie J. considered the Kenny decision and its reference to the acts in question being carried out consciously and deliberately and held that:

Applying those principles to this case for a moment, I am satisfied that the defendant
has constitutional rights and that such rights of freedom of expression, most certainly,
and probably also that of privacy, are not too remote so as to exclude their application
to the present circumstances.

McKechnie J. held that, notwithstanding the presence of "error", a deliberate and conscious
breach of constitutional rights had occurred.

McKechnie J. excluded the evidence.

Front 36

DPP -v- Laide and Ryan (2005)

Back 36

FACTS: The trial judge held that the search warrant, on foot of which Gardai entered a dwelling, was invalid.

HELD: The Court of Criminal Appeal held that the entry into the dwelling came

“within the concept of an intentional and deliberate action by members of An Garda Siochana, in the sense that it was not an accidental or unconscious act on their part. The fact that they believed that they had lawful authority to so enter is beside the point.

The Court went on to note that there were no extraordinary excusing circumstances which could justify admitting the evidence concerned.

Front 37

DPP -v- Martin Joyce (2008)

Back 37

The accused was convicted of the offence of keeping prohibited goods contrary to certain provisions of the Finance Act 1999 and was sentenced to two years imprisonment. Leave to appeal was refused. The goods in question had been seized on foot of a search warrant for a premises which was not a dwelling and was not owned by the accused at the time of the search. The warrant was issued pursuant to s. 136(5) of the Finance Act 2001 by a District Judge who had been assigned to the District Court area in which the premises was situated. However, the warrant was obtained during a court vacation at the District Judge's home, which was not situated in the District Court area to which he was assigned.

The accused sought leave to appeal. He maintained that the warrant was invalid and that the evidence obtained on foot of it should have been excluded. The prosecution maintained that the warrant was valid and that, even if it was not, there was no breach of any constitutional right of the accused such as to require the evidence to be excluded.

The prosecution further maintained that the evidence in question could, in any event, have been obtained by virtue of certain powers contained in the Finance Act 2001 without need for a warrant.

Held by the Court of Criminal Appeal (Macken, Murphy and de Valera JJ.), in treating the application for leave to appeal as the appeal, allowing the appeal and quashing the conviction,

1, that the power of a District Judge to issue warrants under the Act of 1999 had to be exercised in accordance with the Rules of the District Court, or, if there were no such rules, in accordance with the applicable provisions of the Courts of Justice Act 1924.

Creaven v Criminal Assets Bureau [2004] IESC 92,[2004] 4 I.R. 434 applied.

2. That unless a District Judge was "sitting", in the sense of being physically present in the District Court area to which he had been assigned, he did not have power to issue a search warrant, even one to be executed in the District Court area to which he was assigned.

Creaven v Criminal Assets Bureau [2004] IEHC 26, [2004] IESC 92, [2004] 4 I.R. 434 applied.

3. That the search warrant was therefore issued without authority and was invalid. The evidence obtained on foot of it could not lawfully have been admitted and the property concerned should ordinarily be returned.

The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110 , The People (Director of Public Prosecutions) v. Balfe [1998] 4 I.R. 50 and Creaven v Criminal Assets Bureau [2004] IESC 92, [2004] 4 I.R. 434 applied.

4. That the range of constitutional rights, a breach of which was necessary to trigger the operation of the exclusionary rule, was wider than that covering only the dwelling house of a citizen.

The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110 and The People (Director of Public Prosecutions) v. Balfe [1998] 4 I.R. 50 applied, The People (Attorney General) v O'Brien [1965] I.R. 142 distinguished.

5. That the warrant which issued was a free standing warrant which was required in circumstances where all the conditions in s. 136(5) of the Finance Act 2001 were fulfilled. There was no evidence that the materials seized could in fact have been lawfully seized without warrant pursuant to a combination of other provisions of that Act.

Quaere: Whether there might be circumstances in which a judge sitting within his own District Court area could, without offending any legal principle, issue a search warrant to be executed in another District Court area?

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DPP (Lavelle) -v- McCrae (2009)

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Facts:

On appeal by way of case stated, the accused had been charged with drink driving offences pursuant to the Road Traffic Act, 1994 as amended and requested to speak with his solicitor prior to providing a sample of his breath into an intoxilyser machine. The Garda operating the machine had asserted that the accused was obliged by law to provide the sample and would be able to talk to his solicitor afterwards.

The District Judge had dismissed the charge, holding that the Garda had mistakenly concluded that she would not be entitled to make another request of the accused if she broke the operating cycle of the intoxilyser machine and permitted the accused to consult a solicitor. The question stated to the High Court was as follows:

"Should the accused have been provided with access to a solicitor before the breath test procedure under s. 13 Road Traffic Act, as amended was completed?; (ii) If the answer to question 1 is "yes" was I correct in dismissing the prosecution on that basis?"

Held by Edwards J. that once his detention became unlawful that he was entitled to be released and to leave the Garda Station forthwith. It was not necessary that a causative link should exist between the breach of rights and the evidence required.

There was a need to reconsider the strict exclusionary rule in existence. It had not been established on the facts. The appropriate question was not whether a lawyer would have made a difference but rather whether a lawyer could have made a difference.

The District Judge had adopted the correct approach. Both of the questions posed in the case stated would be answered in the affirmative.

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DPP -v- David Lynch (2009)

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Article 40.5 of the Constitution provides:-

"The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law."

The accused was tried and convicted on three counts contrary to the Criminal Justice (Theft and Fraud Offences) Act 2001. The gardaí suspected that there was stolen property to be found at a flat which led them to search that place. The trial judge held the warrant used to effect the search was invalid.

Notwithstanding the invalidity of the warrant, the evidence of what was found was admitted by the trial judge on the grounds that the accused was a mere squatter or trespasser in the flat and therefore he held that it was not his dwelling within the meaning of Article 40.5 of the Constitution. Therefore, while the evidence had been obtained unlawfully, it had not been obtained unconstitutionally and the trial judge ruled that it should be admitted. The accused appealed to the Court of Criminal Appeal.

The application for leave to appeal concerned whether the flat in which the accused was a mere squatter or trespasser was, nonetheless, his constitutionally protected dwelling, when an invalid warrant was used to search it.

Held by the Court of Criminal Appeal (Fennelly, Murphy and de Valera JJ.) in allowing the appeal and quashing the conviction in respect of the first count:

1, that the absolute exclusionary principle applied if the constitutional rights of the accused to the inviolability of his dwelling were infringed by the search being conducted, even though unintentionally, on the basis of an invalid warrant. The search was deliberate and conscious, even if the breach of constitutional rights was not.

The People (Attorney General) v. O'Brien [1965] I.R. 142 and The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110 followed.

2. That the question of whether a place was the "dwelling" of a person for the purpose of Article 40.5 of the Constitution, at least in the context of the criminal law, was one of fact, a view reinforced by the Irish language version of the Constitution. This constitutional protection of the inviolability of a citizen's dwelling extended to a wide variety of people with dubious legal titles.

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DPP -v- Glen Creed (2009)

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Facts:

The applicant was convicted of offences relating to robbery and the use of a mechanically propelled vehicle. The issue arose on appeal as to whether there were significant gaps in evidence such that the case should have been withdrawn from the jury and whether the Gardai deprived the applicant of his constitutional right of access to a solicitor thereby rendering his detention unlawful and whether the treatment of exhibits including clothing was significant for DNA evidence purposes. An issue arose as to the admissibility of hair samples.

Held by the Court of Criminal Appeal (Geoghegan J; Budd and Edwards JJ):

That there was no deliberate and conscious violation of constitutional rights. It was a matter of discretion for the trial judge to rule upon the admissibility of the evidence.

Given that under the Criminal Justice (Forensic Evidence) Act 1990 that a hair sample could have been procured without consent, it would have been reasonable to assume that the applicant did not require a solicitor. The learned trial judge conducted a fair trial and his rulings were in order.

Leave to appeal would be refused.

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DPP -v- Derek Wade (2010)

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Facts:

The applicant sought leave to appeal in respect of his conviction for murder and attempted robbery. The main ground of appeal concerned the admissibility of fingerprint evidence.

It was also submitted that the court erred in refusing the requisitions sought on behalf of the applicant, and as to those it acceded to, the manner in which the learned trial judge recharged the jury was unfair and prejudicial. It was further submitted that the court erred in law in failing to direct the jury to return a verdict of not guilty in respect of the offence of murder.

The applicant's fingerprints were taken by the prison authorities whilst he was serving a sentence in respect of an earlier conviction imposed in 1999. Fingerprints lifted from the scene were matched with those fingerprints previously taken from the applicant and on that basis an arrest warrant was obtained and the applicant was subsequently arrested, charged, tried and convicted on both counts. It was submitted on behalf of the applicant that his fingerprints were taken illegally and unconstitutionally in that they were taken in breach of the provisions of the applicable statutory framework because those powers did not authorise the taking or retention of any fingerprints by the prison authorities, while the applicant was in prison serving a sentence. It was further argued that the prison authorities had no statutory authority either to take the fingerprints at all or to disseminate them to An Garda Siochana. It was further submitted that the Gardai did not have power to receive those fingerprints or retain them and the use of those fingerprints for the purposes of securing the arrest and detention of the applicant was unlawful.

Held by CCA; Macken J. (Budd, Herbert JJ) in refusing the application for leave to appeal on all grounds:

That it was not necessary to decide whether the power to take fingerprints prior to 1997, pursuant to the Prison Rules 1947 or the Regulations as to the Measuring and Photographing of Prisoners 1955, might have been ultra vires the Parent Acts of any of them. Both of those pieces of legislation were in force within the meaning of s. 19(8) of the Criminal Justice (Miscellaneous Provisions) Act 1997 in the passing of that Act. Sections 19(1) and 19(3)(g) of the Act of 1997 provided a valid legal basis for the making of rules for the taking of finger and palm prints of convicted persons during their detention.

In this case the applicant's fingerprints were lawfully made and taken while he was a convicted prisoner some years previously. Furthermore, there was no prohibition contained within the Regulations on the retention of those lawfully obtained fingerprints. In addition, section 19(4) of the 1997 Act provided a lawful basis for the handing over of those fingerprints by the prison authorities to An Garda Siochana.

By necessary implication the granting of power to the prison authorities to give the fingerprints, carried a reciprocal right in the Gardai to receive, hold and use that fingerprint evidence. Finally, it was lawful to use that fingerprint evidence as the basis for forming a "reasonable suspicion" upon the application for an arrest warrant and thus the arrest of the applicant was also lawful.

In any event the decision of the Supreme Court in the case of D.P.P. v Cash [2010] IESC 1 (Unreported, the Supreme Court, 18 January 2010) clearly showed that for the purposes of establishing a "reasonable suspicion" it is not necessary that the material relied upon be admissible in evidence at trial.

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The People (DPP) -v- Gareth Mallon (2011)

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Facts:

The appellant appealed pursuant to s. 4(7) of the Criminal Procedure Act 1967, as inserted by s.9 of the Criminal Justice Act, 1999 against the order of the learned trial judge dismissing the charges against the respondent.

Following a search of the respondent's dwelling home and the discovery of a quantity of diamorphine the respondent was charged with three offences under the Misuse of Drugs Act 1977, as amended. The search of the respondent's home was carried out on foot of a search warrant issued pursuant to s. 26 of the Misuse of Drugs Act 1977, as amended, which authorised the search of a premises described as "4 Marrowbone Close, Dublin 8".

The ground upon which the application for a dismissal of the charges was made and granted was that the address contained within the warrant was not the correct address of the premises searched. The correct address was "4 Marrowbone Lane Close, Dublin 8" and in fact there was no such address as "4 Marrowbone Close, Dublin 8".

It was argued on behalf of the respondent that the warrant had been issued for a premises which did not exist, and could not, therefore, authorise the search of the premises which was in fact searched. It was submitted that the search was illegal and consequently the search was a breach of the constitutional right to inviolability of the dwelling home. It was further submitted that the entry was a deliberate and conscious violation of the right of the citizen and consequently the evidence obtained must be excluded in the absence of any extraordinary excusing circumstances. The respondent relied on the Supreme Court decision in The People (DPP) v Kenny [1990] 2 IR 110. It was also submitted on behalf of the respondent that the decision of The People (DPP) v Balfe [1998] 4 IR 50 relied upon by the appellant no longer represented the law and was inconsistent with the Central Criminal Court decision of DPP v Henry Dunne [1994] 2 IR 537, which was approved of in the Supreme Court decision of The People (DPP) v Edgeworth [2000] 2 IR 131.

The learned trial judge stated that he was bound by the decisions in Henry Dunne and Edgeworth. However, he went on to state that he felt in this case the exclusionary type rule was a nonsense and that if he could and felt free to apply the Balfe decision then he would do so. The respondent submitted on this appeal that the decision in The People (AG) v O'Brien [1965] IR 142 no longer represented the law and had been overruled by the decision in The People (DPP) v Kenny [1990] 2 IR 110.

Held by the C.C.A; O'Donnell J. (Gilligan, O'Keeffe JJ) in allowing the appeal:

That this case raised the following issue; 'in what circumstances will a warrant be considered ineffective, or invalid so as to give rise to the argument that evidence obtained should be excluded?' It was notable that the approach taken by Carney J. in the Dunne case was not that any error invalidated the warrant, but rather the error, which related to a requirement of statute, had the effect that the warrant could not be read to make sense, and the warrant was thus invalid.

The Supreme Court when deciding the case of Edgeworth was not referred to the Balfe case and consequently Edgeworth could not be understood as disapproving of either the decision or the reasoning in that case, as the learned trial judge here seemed to think. It was clear, from a review of the case law, that a mere error will not invalidate a warrant, especially one which is not calculated to mislead, or perhaps just as importantly, does not mislead. The warrants found to be invalid in the cases mentioned below were those where there was no jurisdiction to issue the warrant because a statutory precondition had not been fulfilled or where the warrant on its face did not show that the preconditions had been satisfied. In such cases, the warrant had no validity in law, and entry onto premises consequent on the warrant was illegal. It was clear that not every error will lead to invalidation of the warrant. In particular, where the substance of the warrant as opposed to the form is not open to objection, invalidity will not necessary ensue. In such cases, the nature of the error or omission must be scrutinised to see if it is of a fundamental nature. Among the factors which may be taken into account are whether the error is a mere misdescription and whether it is likely to mislead. The review of the case law by the learned trial judge herein was insufficient and incorrect and the decision in Balfe was not overruled and was a valid and binding precedent. What was involved in the case before this court was a mere misdescription of the premises to be searched and the misdescription was not calculated to mislead and in fact did not mislead. The fact that there was no address in Dublin or elsewhere of the address stated on the warrant did not assist the respondent.

Once it was acknowledged that such a fact would be known to the potential addressees of the warrant then that only left the present premises as the likely subject of the warrant. Consequently, the court should not find an insuperable difficulty in understanding the warrant.

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Damache -v- DPP & Ors (2012)
- Decision

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An investigation commenced in 2009 into an alleged conspiracy to murder a Swedish cartoonist, who had depicted the Islamic prophet Mohammed with the body of a dog. It was suspected that the applicant was involved in this conspiracy and during the course of the investigation, Gardaí received intelligence. Following this, a search warrant was issued by a member of An Garda Síochána with the rank of Detective Superintendent under s.29(1) of the Offences Against the State Act 1939 (the “1939 Act”) (as inserted by s.5 of the Criminal Law Act 1976 (the “1976 Act”)) to a Detective Sergeant for the purpose of searching the applicant's dwelling. The applicant was subsequently detained and charged with an offence contrary to s.13 of the Post Office (Amendment) Act 1951 , as amended, namely sending a message by telephone which was of a menacing character. The applicant argued that the search warrant was issued by a member of An Garda Síochána who had directed the investigations in relation to the applicant for approximately six months prior to his arrest. It was argued that in any event the applicant was entitled, as a matter of natural and constitutional justice, to have the decision in relation to the search warrant made by a judge or, at the very least, by someone impartial and unconnected with the investigation. The applicant sought judicial review of the issuing of the search warrant, arguing that s.29 of the 1939 Act was unconstitutional. The applicant sought and was granted leave to apply for judicial review seeking, inter alia, a declaration that s.29 of the 1939 Act was repugnant with the provision of Bunreacht na hÉireann and a stay on any further step being taken in the prosecution as against the applicant. The applicant appealed the High Court's (Kearns P.) determination that the relevant section was in accordance with the provisions of Bunreacht na hÉireann to the Supreme Court.

Held, by the Supreme Court (Denham C.J.) in allowing the appeal and in declaring s.29 of the 1939 Act to be repugnant with the provisions of Bunreacht na hÉireann (Denham C.J., Murray, Hardiman, Fennelly, Finnegan JJ.):

1. The issuing of a search warrant is an administrative act; it is not the administration of justice. Thus a search warrant is not required to be issued by a judge. However, it is an action which must be exercised judicially.

2. The principle that a person issuing a search warrant should be an independent person is well established. Furthermore, such a person must be satisfied on receiving sworn information, that there are reasonable grounds for the issuing of such a search warrant.

3. In exceptional circumstances, such as urgent situations, provision has been made in statutes for a member of An Garda Síochána to issue a warrant, which usually has a short duration. The requirement of urgency is an important factor in determining the proportionality of legislation which may infringe a constitutionally protected right.

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Damache -v- DPP & Ors (2012)
- Comment

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The sole issue for the consideration of the Supreme Court was the constitutionality of s.29 of the 1939 Act, as substituted by s.5 of the 1976 Act, which provides as follows:

Where a member of the Garda Síochána not below the rank of superintendent is satisfied that there is reasonable ground for believing that evidence of or relating to the commission or intended commission of an offence under this Act or the Criminal Law Act, 1976 , or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act, or evidence relating to the commission or intended commission of treason, is to be found in any building or part of a building or in any vehicle, vessel, aircraft or hovercraft or in any other place whatsoever, he may issue to a member of the Garda Síochána not below the rank of sergeant a search warrant under this section in relation to such place.

It was clear that the difficulty of this provision arose in circumstances where the search warrant was issued to one member of An Garda Síochána to another, who is nevertheless part of an investigation and who cannot be said to demonstrate impartiality that may be expected by a District Judge or a Peace Commissioner.

Denham J. observed that the issuing of a search warrant was an administrative act, but one which must be exercised judicially. It was submitted by counsel for the applicant that there should be independent and impartial supervision of the issuing of the warrant. In most cases that impartial supervision was exercised by a District Judge or by a Peace Commissioner. It was accepted that under a limited number of statutes, members of the Gardaí have been granted statutory power to issue search warrants. It was submitted that these arose only in urgent situations, or if immediate action is needed, or as a last resort.

The court noted that these submissions were argued in People (DPP) v Birney [2007] 1 I.R. 337 , where it was contended that a warrant issued under s.29 of the 1939 Act was invalid because it was not issued by a Superintendent independent of the investigation and the issuing of the warrant was in breach of the principle nemo iudex in causa sua . The Court of Criminal Appeal held that there was no preclusion on a Superintendent in charge of an investigation issuing a warrant. However, the issue of constitutional validity, which could not be addressed by the Court of Criminal Appeal, was now before the Supreme Court and which followed and accepted the ratio of Birney, namely s.29 of the 1939 Act allowed a Superintendent involved in an investigation issuing a search warrant in the absence of any independent supervision.

Denham J. was in no doubt that the principle that a person issuing a search warrant should be an independent person was a well-established one. Indeed, this issue had been considered by Barr J. in Ryan v O'Callaghan , unreported, High Court, July 22, 1987 where he stated in the context of s.42 of the Larceny Act 1916 :

“The investigating police-officer must swear on information that he has reasonable cause for suspecting that stolen property is to be found at the premises to be searched and he must satisfy a Peace Commissioner, who is an independent person unconnected with criminal investigation per se, that it is right and proper to issue the warrant.”

Counsel for the applicant contended that s.29 of the 1939 Act was invalid because it did not reflect, and provide for, the essential balance between the requirements of the common good and the protection of the applicant's individual rights.

In reply, counsel for the respondent submitted the relevant provision was not repugnant to the Constitution but in fact a legitimate part of the State's armoury to protect itself from offences against the State and offences against the justice system. In so far as s.29(1) of the 1939 Act could provide a person with less protection than a search warrant that was issued by an independent person such as a judge or a Peace Commissioner, it was submitted that any such diminution in rights was proportionate and lawful.

In the context of considering the argument that s.29(1) of the 1939 Act was unconstitutional, the Supreme Court necessarily had to consider a number of principles, namely the presumption of constitutionality as observed by Hanna J. in Pigs Marketing Board v Donnelly [1939] I.R. 413 and the double construction rule.

Denham J. agreed that the issuing of a search warrant was an administrative act, but it was an action that must be exercised judicially and further the legislation permitting the issuance of a search warrant should be construed strictly. In this regard two aspects of the issuance of search warrants were important. First, a search warrant could only be issued by an independent person. Secondly, such a person must be satisfied on receiving sworn information that there were reasonable grounds for a search warrant.

There were occasions, however, where statutory provision was made for members of An Garda Síochána to issue search warrants. These were considered to be used only in exceptional circumstances and the requirement of urgency was an important factor in determining the proportionality of legislation which may infringe such a constitutionally protected right. The protection of the dwelling was a well-recognised protection afforded under the Constitution, though subject to a specified caveat: “save in accordance with law”. In determining the limits of this issue, the Supreme Court was left with the question of whether the procedure for obtaining a search warrant under s.29 of the 1939 Act ignored the fundamental norms of the legal order postulated by the Constitution. Indeed, as Denham J. stated:

“The procedure for obtaining a search warrant should adhere to fundamental principles encapsulating an independent decision maker, in a process which may be reviewed. The process should achieve the proportionate balance between the requirements of the common good and the protection of an individual's rights. To these fundamental principles as to the process there may be exceptions, for example when there is an urgent matter.”

The application of these principles was illustrated from a number of cases in other jurisdictions, including Camenzind v Switzerland [1999] 28 E.H.R.R. 458 and Hunter v Southam Inc [1984] 2 S.C.R. 145 . In applying these principles the court concluded:

“The Court applies the following principles. For the process of obtaining a search warrant to be meaningful, it is necessary for the person authorising the search to be able to assess the conflicting interests of the State and the individual in an impartial manner. Thus, the person should be independent of the issue and act judicially. Also, there should be reasonable grounds established that an offence has been committed and that there may be evidence to be found at the place of the search.”

The circumstances of the instant case were that the warrant was issued by a member of An Garda Síochána who was part of the investigating team and was not independent on matters relating to the investigation. This Garda was not independent. In addition, the warrant authorised the search of the applicant's dwelling which was inviolable. Furthermore, no issue of urgency arose. In those circumstances the Supreme Court granted the declaration sought, namely s.29(1) of the Offences against the State Act 1939 (as inserted by s.5 of the Criminal Law Act 1976 ) and referred to as s.29(1) of the 1939 Act, was repugnant to the Constitution as it permitted a search of the appellant's home contrary to the Constitution, on foot of a warrant which was not issued by an independent person.

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DPP -v- Cunningham (2012) - Decision

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The appellant was convicted, following a 44-day trial, in respect of 10 counts of money laundering, contrary to s.31(1)(c) of the Criminal Justice Act 1994 , as inserted by s.21 of the Criminal Justice (Theft and Fraud Offences) Act 2001 . The most serious count alleged that the appellant “between the 20th December, 2004 and the 16th February, 2005 at Farran in the County of Cork knowing or believing that property, that is to say Sterling Cash to the value of £3,010,380, represented the proceeds of criminal conduct, namely a robbery at the Northern Bank Cash Centre, Donegal Square West, Belfast on the 20th December, 2004 or being reckless as to whether it was or represented such proceeds, possessed the said property.”

The appellant's home was searched on foot of a search warrant issued by a superintendent pursuant to s.29(1) of the Offences Against the State Act 1939 (the “1939 Act”). It was not seriously contested by the prosecution during the appeal that the superintendant was independent of the investigation. During the course of that search a sum of Sterling in the amount of £2,400,000 was found. It was agreed on hearing before the Court of Criminal Appeal that the validity of the warrant used to search the appellant's home would be dispositive of the appeal against the conviction on count 10 of the indictment, which was the principle count. This was due to the fact that the admissibility of the evidence of finding a very large sum of cash on the appellant's premises, at least so far as that particular count was concerned, was dependent on the validity of the warrant under which the search was conducted. The appellant's appeal against his conviction was approximately three years before the Supreme Court judgment in Damache v DPP , unreported, Supreme Court, Denham C.J., February 23, 2012. Nineteen grounds were set out in all, of which ground two made reference to the search warrant used in the search of the appellant's home. It was alleged that the warrant was defective because it did not identify the appellant's residence as the place to be searched and further because it was merely a “colourable device” to avoid the necessity of making an application for a warrant to a judge. Following the decision in Damache , the appellant lodged a notice of motion seeking bail and further lodged supplemental submissions. The court subsequently granted the appellant leave to amend ground two of his grounds of appeal to include reference to the decision in Damache .

Held , by the Court of Criminal Appeal (Hardiman J.) in quashing the conviction in respect of all counts and ordering a retrial in respect of counts one to nine (Hardiman, Moriarty, Hogan JJ.):

1. The appellant was entitled to invoke the judgment of the Supreme Court in Damache v DPP to the effect that s.29(1) of the Offences Against the State Act 1939 is inconsistent with the Constitution.

2. In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution on any ground that may in law be open to him, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful, notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional. A case has not reached finality when there is an outstanding appeal.

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DPP -v- Cunningham (2012) - Comment

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The issue that then that arose for the consideration of the court was whether it was open to the appellant to rely upon Damache and secondly whether it was dispositive of the appeal. The proposition that s.29(1) of the 1939 Act was repugnant to the Constitution was not raised in the court of trial. Indeed, as Hardiman J. observed, it could not have been raised as the Circuit Criminal Court has no jurisdiction to entertain such an application, such jurisdiction being confined to the High Court and the Supreme Court on appeal. It was also common case that the appellant had not, either before or after Damache , instituted proceedings claiming that the relevant section was repugnant to the Constitution. Counsel for the respondent argued that this further ground of appeal was an afterthought, inserted in the knowledge that the Supreme Court would soon dispose of the appeal in Damache and inserted with a view to putting the appellant in a position to avail of that decision if it were favourable to his position.

Counsel for the respondent argued that it was simply not open to the appellant to rely on the declaration of repugnancy of s.29(1) of the 1939 Act. It was agreed that the appellant could not have raised this point in the court of trial but he argued that he could have raised it by plenary proceedings or by judicial review either before or after the trial but did not do so. It was submitted that the appellant was now attempting to “piggyback” on Damache and that this has never been permitted. In this regard, the respondent relied heavily on A. v The Governor of Arbour Hill Prison [2006] 4 I.R. 88 . In that case the Supreme Court unanimously decided that the appellant was not retrospectively entitled to the benefit of the decision in the slightly earlier case of C.C. v Ireland [2006] 4 I.R. 1 , to the effect that s.1(1) of the Criminal Law (Amendment) Act 1935 (the “1935 Act”) was inconsistent with the Constitution.

Counsel for the appellant argued that the A. case was manifestly distinguishable on its facts from the instant case. In particular, it was submitted that by the time the relevant section had been found unconstitutional in C.C ., A. had no appeal extant. Hardiman J. was in no doubt that there were many significant factual differences between the case of A. and that of C.C . A. had pleaded guilty, had not appealed, and had never challenged the constitutionality of s.1(1) of the 1935 Act. A never challenged the validity of the section, or the interpretation of the section during the trial process or on appeal. His case was finally completed or concluded at the time C.C . obtained the declaration of inconsistency, the time for appeal having expired. In Hardiman J.'s view this was a major point of contrast between A case and the present case. The appellant's appeal was still extant and undecided. Accordingly, the appellant's case had not reached finality. The significance of this appears from a consideration of what was said by Murray C.J. in the concluding section of his judgment in A. :

“In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution on any ground that may in law be open to him, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful, notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional. That is the general principle”.

This passage plainly excluded the prospect of any challenge made after “the case reaches finality on appeal or otherwise”. It therefore necessarily implies that a case has not reached finality when there is an outstanding appeal. In the view of the Court of Criminal Appeal that finding was fatal to the principal submission of the respondent in the instant case.

The court could not agree with counsel for the respondent's submission that s.29 of the 1939 Act had been in force for some 73 years, more or less without hindrance. Whereas the original version of s.29 required that the warrant be issued by a chief superintendent to an officer not below the rank of inspector, the 1976 version permitted the warrant to be issued by a superintendent to a sergeant. The original version of s.29 was confined to a reasonable suspicion in relation to documentary evidence, but the 1976 version extended this to all evidence, and not merely documentary evidence. Moreover, the range of the original s.29 was confined to offences arising under the 1939 Act and treason, however, this was later extended in 1976 to offences which were scheduled for the purposes of Pt V of the 1939 Act and to offences arising under the Criminal Law Act 1976 which was a much wider category. In addition, it was noted that the result in Damache cannot have come as a surprise. Indeed, the Morris Tribunal Report (2008) was expressed in stringent and uncompromising terms as to the circumstances in which the section 29 procedure had been grossly abused.

Hardiman J. observed that appeal in the instant case did not share the distinctive features of cases such as Corrigan v Irish Land Commission [1977] I.R. 317 , State (Byrne) v Frawley [1978] I.R. 326 or A. v Governor of Arbour Hill Prison [2006] 4 I.R. 88 . These were all cases where the applicants had either acquiesced in or benefited from, or elected to proceed with, a state of affairs which either directly or indirectly acknowledged the validity of the particular course of conduct or law which was subsequently put at issue. In Frawley , the applicant was aware, or at least had that knowledge imputed to him, that the Supreme Court had just ruled that the pre-existing legislation governing jury composition was unconstitutional. He nonetheless elected to continue with his ongoing trial and did not object to the composition of the jury.

Counsel for the respondent further urged the Court of Criminal Appeal to treat the Damache point as having been implicitly waived by the accused by reason of the fact that the appellant did not seek to have the warrant quashed in judicial review proceedings or to have challenged the constitutionality of the statute by means of plenary summons. However, absent a knowing and deliberate election—such as, in Byrne , deliberately electing to proceed with an unconstitutional jury—Hardiman J. did not think that the fact an accused can be faulted if he or she elects to proceed in the first instance by means of an appeal to the Court of Criminal Appeal.

The judgment in the instant case provides welcome clarification as to how an appellant can rely on issues of law that only come to light following conviction and further provides helpful guidance on the earlier Supreme Court decision in A. v Governor of Arbour Hill Prison . It is suggested that the court would probably have reached a different conclusion had other elements such as a guilty plea been present.

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People (DPP) -v- Barry O'Brien (2012)

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Facts: The appellant had been arrested following a search of his property in 2004 in regards of suspected involvement In Irish Republican Army ("IRA") activity. The search had been authorised by a warrant under s.29 of the Offences against the State Act 1939. Following his conviction by the Special Criminal Court in 2010 of IRA membership, the Supreme Court in the case of Damache v Director of Public Prosecutions [2012] IESC 11 (" Damache") had found s.29 to be unconstitutional. The appellant now sought to appeal his conviction.

Held by Hardiman J, the Court would first have to determine whether the Damache ruling applied, before considering whether it would support the appellant's submissions.

Recent case law in the Court of Criminal Appeal had detailed that appellants could benefit from a finding of unconstitutionality when they had made submissions to that effect at their trial, and where criminal proceedings in the matter were still live. As the appellant met both these conditions, the Damache ruling would apply. People (Director of Public Prosecutions) v Cunningham [2012] IECCA 64 and People (Director of Public Prosecutions) v Kavanagh [2012] IECCA 65 considered.

Going on to consider the relevance of the Damache ruling, the Court found that clear and explicit language would be required in any provision passed by the Oireachtas before the court would accept any infringement of rights under art 40 of the Constitution. In the absence of this language in s. 30 justifying arrest notwithstanding any unconstitutionality of a warrant under s. 29, the Court would therefore allow the appeal, and remit the case for a re-trial. Damache v Director of Public Prosecutions [2012] IESC 11 followed, People (Director of Public Prosecutions) v Laide [2005] 1 IR 209 applied.

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DPP -v- Thomas Hughes (2012)

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Facts: The appellant had been convicted in 2011 after pleading guilty to a number of charges relating to possession of a firearm and an explosive substance. Following his conviction, the Supreme Court in the case of Damache v Director of Public Prosecutions [2012] IESC 11 (" Damache") had found s.29 to be unconstitutional. The appellant now sought an extension of time to appeal his conviction claiming he had not been able to instruct solicitors in due time as a result of his imprisonment in Portlaoise.

Held by Hardiman J, that the appellant had had ample opportunity to lodge an appeal in time, and the Court considered that the appellant only formed his intention to file an appeal after the decision in Damache was handed down.

Notwithstanding the tardiness of the appeal, the Court proceeded to consider the relevance of the Damache case to the appellant. The appellant had taken legal advice before pleading guilty to charges, and in doing so had accepted the allegations made against him. The Court considered that in the interest of legal certainty, having pled guilty and having not challenged the offending provision at trial the appellant could not now seek to challenge a decision intended to be final due to a much later development in the law. Damache v Director of Public Prosecutions [2012] IESC 11 considered.