DPP v JC: is a Get Out of Jail card a balanced remedy for an unintentional unlawful entry of a premises?

FreeJailOn the morning of the 10th of May 2011, gardai called to JC’s home in Waterford as part of their investigations into burglaries at a commercial premises. They presented a warrant, issued under s 29 of the Offences Against the State Act 1939, and JC’s sister allowed them to enter the premises. The gardai arrested JC, who had been sleeping inside, and brought him to a garda station. They searched JC’s home but found nothing of evidential value. While in custody, under caution and after consulting with a solicitor, JC made inculpatory statements.

The warrant was valid on its face, and it was fully in compliance with s 29 of the 1939 Act and the general law on warrants. JC’s custody was in compliance with the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochána Stations) Regulations 1989 and 2006. The arrest would have been legal if conducted in a public place. And s 6(2) of the Criminal Law Act 1997 allows gardai to lawfully enter a premises to make  an arrest without a warrant, and to perform a search of the premises while there.

Three days after the search, in a separate case ,the High Court reject a challenge to the constitutionality of s 29 of the 1939 Act. That section allowed a senior garda to issue a warrant. It was argued in the High Court that, as a garda involved in an investigation could issue a warrant, there was not sufficient independent oversight of the process to guarantee the protection of constitutional rights. Before JC’s trial, though, the Supreme Court overturned that decision on appeal (Damache v. DPP [2012] 2 IR 266). The Court accepted Damache’s argument on independent oversight and held that s 29 0f the 1939 Act was unconstitutional.

In the intervening period, the DPP charged JC with offences relating to the burglaries. At trial, JC argued that, as s 29 of the 1939 Act was unconstitutional, the warrant was invalid. And, as the warrant was relied upon to gain entry to the premises to make the arrest, the gardai had breached his constitutional rights in making the arrest. Therefore, under the rule from DPP v Kenny [1990] 2 I.R. 110, any evidence recovered as a result was inadmissible—including the statement he made while in custody. The DPP argued that, although any evidence recovered in the search was inadmissible under the rule in Kenny, the arrest and detention was lawful and the statement was admissible. The trial judge accepted JC’s argument and ruled the statements were inadmissible. As the prosecution did not submit any other evidence, the judge directed the jury to find JC not guilty.

The DPP appealed the Circuit Court decision under s 23 of the Criminal Procedure Act 2010. That allows an appeal where the DPP believes that a trial judge has “erroneously excluded compelling evidence”. The case raised two issues:

  1.  could a trial judge be said to have erroneously excluded compelling evidence by applying the relevant precedent correctly, even if the precedent was overturned afterwards on appeal? And if so,
  2. was DPP v Kenny decided correctly?

Erroneous exclusion

The three dissenting justices (Murray, Hardiman and McKechnie JJ) argued that the trial judge could not be held to have erroneously excluded evidence where she applied the correct precedent is a correct manner. Murray J stated at [4]:

A citizen who is tried and acquitted on a criminal charge tried before a judge and jury in accordance with established principles of law, which the trial judge applied and was bound to apply, could well expect that he could not be tried again for the same offence, least of all because the trial judge made an allegedly “erroneous” ruling on the law in the course of the trial. Yet this is what the DPP argued the Oireachtas intended to happen.

Addressing the issue of whether an appeal under s 23 of the 2010 Act could be taken to challenge a precedent which was binding at the time of trial, Clarke J stated that, there may be constitutional issues where s 23 is used to challenge an issue of substantial law.  The Óireachtas is constitutionally precluded from enacting retrospective legislation. If, however, an appeal under s 23 will have the retrospective effect of making an act an offence which was not an offence at the time, it could be doing what the Constitution precludes the Óireachtas from doing. And that could have constitutional implications. But where, as here, the issue is in respect to the law of evidence the constitutional implications are less significant: a person has either committed a criminal act, or not; and overturning a decision that relates to the law of evidence does not make an action illegal which was legal at the time.

Clarke J stated that it is unlikely that the 2010 Act will achieve the Governments’s purpose without review.  McMenamin J expressed additional reservations at [12]: “I remain to be persuaded of the concrete situations where, by invocation of s.23 of the 2010 Act, an order for retrial might constitutionally be made”.

The majority, however, held that the fact that the trial judge was obliged to follow an erroneous precedent does not prevent an appeal arguing that she excluded the evidence in error. The Court, therefore, reviewed the decision in Kenny.

Kenny decision

O’Donnell J, writing for the majority (here) conducted a detailed analysis of both The People (Attorney General) v. O’Brien [1965] I.R. 142 and Kenny; and of the international jurisprudence on admissibility of evidence obtained in breach of fundamental rights. He found that the test in Kenny went further in excluding evidence than the rules in any other common law jurisdiction.

In O’Brien, gardai entered O’Brien’s home on foot of a warrant which had an error in the address. O’Brien argued that the warrant was invalid and entry was therefore in breach of his constitutional rights to the inviolability of the dwelling; and as a result, the evidence was inadmissible. The Supreme Court held that only a deliberate and intentional act which breached constitutional rights could warrant the exclusion of evidence. And as the error on the face of the warrant was not deliberate or intentional, the evidence was admissible.

In Kenny, gardai entered a premises, on foot of a warrant issued by a Peace Commissioner under s 26 of the Misuse of Drugs Act 1977, and recovered evidence. At trial, Kenny argued that, as the Peace Commissioner had not demonstrated that he made sufficient inquiries regarding the basis of the gardai’s suspicions that there was illegal drugs on the premises, the warrant was invalid, the search was in breach of the property owner’s constitutional rights and the evidence recovered was inadmissible. On appeal, the Court, citing O’Brien, held that as the gardai had deliberately and intentionally entered the premises on foot of an invalid warrant, the evidence was inadmissible. That interpretation of the rule from O’Brien has been binding on the courts until the decision in this case.

As both O’Donnell J and Clarke J (here) pointed out, though, if the interpretation of the deliberate and intentional action from Kenny was applied in O’Brien, the evidence in O’Brien would have been ruled inadmissible, as the gardai had deliberately and intentionally entered the premises on foot of an invalid warrant. Therefore, either O’Brien or Kenny was decided incorrectly, or Kenny overruled O’Brien without stating so. Whichever it was, the majority held that O’Brien did not adequately protect constitutional rights, and Kenny went too far in excluding evidence. Concurring, McMenamin (here) [77] stated that the rule in Kenny as it was applied was disproportionate, as it applied the same remedy regardless of the severity of the breach of rights.

Clarke J outlined the correct test which the majority held the courts must now apply in such cases ( see the Court’s Information Note here).

Murray J (here) did not believe that a review of Kenny could be conducted under a s 23 appeal, and he would have dismissed the appeal without considering the issue. But he did express his objection to overturning established authority–citizens rely on definitive statements and interpretations of the law, and overruling long-held authority could bring the administration of justice into disrepute.

McKechnie J said that Kenny was decided correctly and resolved the issue of conflicting judgments that had arisen since O’Brien. He also expressed his difficulty in accepting that the new procedure is workable.

Hardiman J (here) stated that “[f]or many years Ireland was to be ranked amongst those countries, a minority in the world as a whole, whose courts really, and not merely theoretically, took the constitutional rights of its citizens seriously and ensured that they would be enforced immediately and without qualification”. He went on to say that he is “gravely apprehensive that the majority decision in this case, overruling the case of Kenny, one of the monuments of Irish constitutional jurisprudence, is a major step in the disengagement of this Court from the rights-oriented jurisprudence of our predecessors”.

The majority, however, stated that the courts had to balance the sometimes competing interests of remedying infringements of rights and the courts’ duty to establish guilt or innocence in criminal trials. To do the latter, however, it is necessary to admit all relevant evidence. In addition, the exclusion of evidence which can establish facts for an inadvertant infringement of rights is not a balanced remedy. In many cases, such as this one, the exclusion of compelling evidence can lead to the complete collapse of a trial, even though the investigating gardai had complied fully with the law as it was at the time and did not intend to breach the accused’s rights. There are more appropriate and balanced remedies available to a citizen whose constitutional rights have been infringed, such an an action in tort.

The Court re-listed the case for argument whether a retrial should be permitted.

Possible future developments

O’Donnell J has given a clue to how the rule on admissible evidence could be recalibrated again in a suitable case. In relation to the exemption of extraordinary excusing circumstances, O’Donnell J, with whom three other justices concurred, stated at [34] that:

Furthermore, the justification offered for the exception of extraordinary excusing circumstances, while having a rhetorical appeal, is not convincing. It may be true that there is no constitutional right to destroy or dispose of evidence for example, but it is equally arguable that there is no constitutional right to possess stolen goods or dangerous drugs, but it cannot be suggested that a search for either would be permissible without a warrant. I would require careful and persuasive argument rooted in the Constitution before accepting in any real life situation that deliberate breaches of the Constitution can be excused by the Court’s say so, but would reserve my judgment on that issue until it arises in a concrete case.

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  3. DPP v JC (No 2): retrial would not be in the interests of justice | scoirl
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  6. DPP v McD: Court orders retrial, after acquittal, as trial judge had erroneously excluded compelling evidence | SCOIRLBLOG

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