Last month’s Supreme Court judgment doing away with the so-called ‘exclusionary rule’ around evidence collection should make anybody concerned about justice in this country very, very worried. The judgment opens the door to all kinds of abuses, and expands the powers of An Garda Síochána in a range of ways, while removing them from oversight; something that should worry all of us, given all we’ve learned about that organisation over the past few years.
The judgment, in the case of DPP vs J.C., means that now, evidence obtained in a way that violates someone’s constitutional rights is admissible in court, so long as the person who obtained the evidence pleads that they ‘didn’t know’ they were violating someone’s rights while gathering that evidence.
The judgment overturns the so-called ‘exclusionary rule’ which was established in the case of DPP vs Kenny in 1990. The exclusionary rule held that evidence obtained in a way that violated someone’s constitutional rights would not be admitted into court.
The Court gave a 4:3 majority verdict in the case.
The Supreme Court was considering an application by the State (the DPP) to appeal the acquittal in 2012 of ‘J.C.’ by Judge Mary Ellen Ring. Ring had ruled in that case that evidence obtained by gardaí as a result of a search warrant was inadmissible, because the search warrant itself breached J.C.’s constitutional rights. J.C. was consequently acquitted, because of the exclusionary rule. The DPP appealed the acquittal to the Supreme Court, leading to last month’s judgment in the DPP’s favour, and the end of the exclusionary rule.
In his judgment in the case of DDP v Kenny (1990), which set out the rule, Kenny, in his judgment, stated that regardless of whether or not the person obtaining or gathering the evidence knew that the manner in which (s)he was obtaining or gathering it was unconstitutional, if an individual’s constitutional rights had been breached, the evidence was not admissible. End of story.
What’s changed with last month’s judgment is that now ‘inadvertent’ breaches of constitutional rights in evidence gathering are admissible as evidence.
This means, potentially, that gardaí can submit evidence that they gathered in a way that violated someone’s constitutional rights, and have that evidence accepted, so long as they say ‘I didn’t know’ when asked about violations.
The possible implications of this change for policing and justice in Ireland are quite serious, and are examined in more detail below, drawing extensively on the dissenting judgment in the case given by Supreme Court Justice Mr Adrian Hardiman.
Summary of the implications of the judgment
Supreme Court Justice Mr Adrian Hardiman said he was ‘horrified’ at the decision; a decision that he said had been ‘ardently desired by the State’. He called it ‘an absolutely retrograde step which I deeply deplore’.
He notes, in his dissenting judgment, that the decision would create a distinction between ordinary citizens and a ‘privileged and legally empowered group’ (An Garda Síochána). It would also give to An Garda Síochána ‘effective immunity from judicial oversight’ and offer them ‘a status of virtual, practical, unaccountability’.
He says: ‘If an 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.’
Favouring the State and handicapping citizens
Hardiman talks about the inevitable abuse the judgment will give rise to, saying, ‘If once “inadvertence” or mistake is acceptable as an excuse for ignoring, or deliberately failing to ascertain, the constitutional rights of ordinary citizens then “inadvertence” or mistake will be relied upon again and again.’
He goes on: ‘Experience of the Courts over the last forty years strongly suggests that “inadvertence” will be accepted very generally as a reason to allow to be proved in evidence the fruits of deliberate and conscious violation of citizens’ rights.’ In other words, gardaí will use the excuse of inadvertence to get evidence any which way they please, and that evidence will be accepted by the courts.
This change, he says, will, ‘in every single case favour the prosecution [the DPP] and handicap the defence’.
‘A premium on ignorance’
As Hardiman points out, doctors and accountants, in order to practice, have to prove to the State or to State bodies, that they are competent to do so. The same, obviously, should apply to gardaí. With this judgment, gardaí are being positively encouraged to cultivate ignorance of law and human rights, so that they can plead ‘inadvertence’ and submit evidence acquired by any means necessary. The defence of ‘inadvertence’, he writes, quoting C.J. Walsh, will ‘put a premium on ignorance’ amongst gardaí.
Senior Counsel Michael O’Higgins, in an interview on Newstalk after the judgment, echoed Hardiman’s concern that it could lead to abuses, saying it would give gardaí a ‘get-out clause’. He said, ‘If you can convince the court that you weren’t breaching someone’s rights where you were aware that you were doing it, there is a get-out clause now. Invariably, standards will slip. That’s inevitable.’
Crossing a Rubicon
Just as seriously, Hardiman points out in his judgment that ‘a Rubicon has been crossed’ with the judgment, in the sense that it creates a precedent for the State to retry defendants over and over again, after the law had been changed by the Supreme Court. In allowing this to happen, ‘Ireland will, as far as I can see, be unique in the world in permitting it.’
He describes the situation as one in which: ‘We are asked first to move the goalposts and then to order the match, already won and lost, to be replayed with new rules, written by one side and imposed on the other.’
He describes it as ‘gamesmanship of the worst and most cynical kind by public officials’. No such rights are available to ordinary citizens – they cannot apply to have the law changed, and their case or someone else’s case, retried. It is a gross abuse of State power. It is ‘as abhorrent as it is unique, in the entire world.’
Hardiman points out that, on top of all this, the precedent set by the State for retrying a defendant over and over again, changing the law as it goes, conflicts with Ireland’s international obligations.
During the Supreme Court hearing, the State argued that ‘there have been a number of significant changes in the legal and regulatory landscape in respect of An Garda Síochána [since 1990]…’ that make this change unproblematic. This is, of course, nonsense.
Hardiman outlines a number of cases involving the gardaí that ‘illustrate that, to put it at its mildest, the present is not an appropriate time to consider dispensing with the requirement that the [gardaí] ensure that their actions towards individual citizens do not constitute deliberate and conscious violations of those citizens’ personal rights.’
He cites the findings of the Morris Tribunal and the Smithwick Tribunal in support of this contention:
For example, the report of the Morris Tribunal states:
‘It is obvious that where a situation reaches a point where wrongdoing has become hardened into a habit in certain sections of An Garda Síochána that people are not only unlikely to own up it, they are positively likely to lie about it.‘
And from the Smithwick Tribunal: ‘There prevails in An Garda Síochána today a prioritisation of the perfection of the good name of the force over the protection of those who seek to tell the truth. Loyalty is prized above honesty.‘
To this organisational culture, in which ‘loyalty is prized above honesty’, one in which sections of An Garda Síochána ‘are positively likely to lie about’ wrongdoing, the State proposes to give unlimited powers to collect evidence by any means necessary in order to obtain a conviction? And the State sees this as unproblematic?
One of the ‘changes’ cited by the State in support of its contention that the exclusionary rule need no longer apply, is the establishment of GSOC. Hardiman observes, trenchantly, that ‘It is very hard to know how, precisely, the State consider that the creation of a “toothless dog” (Leo Varadkar) which cannot “get into Fortress Garda” (Conor Brady) is any form of reassurance or comfort when the Court is asked to set aside one of its own previous decisions and thereby considerably reduce judicial control of unconstitutional forms of evidence gathering.’
Hardiman quotes members of Government in highlighting the contradiction at the heart of the State’s contention that ‘events since 1990’ have made it unproblematic to grant to Gardaí unprecedented powers that lie beyond judicial oversight. He also notes that the problems extend beyond the Gardaí, and into the Department of Justice: ‘The view has been expressed by a member of the Government that the Department of Justice is, or was as of last May, “not fit for purpose”, that “there is a big problem with the Gardaí and the justice system”, and that the Minister for Justice acknowledges “significant recent disquiet over the administration and oversight of Justice in this State…” (28th July 2014).’
Says Hardiman, ‘I consider it utterly unwise, to use no stronger word, to grant to the gardaí, in that context, the effective immunity from judicial oversight which this case does.’
Mr Justice Adrian Hardiman is a Supreme Court judge, with, as he notes above, long years of experience of the criminal justice system. We should take his words seriously, and view this ruling with very serious alarm. And maybe, instead of worrying about voting on the age at which someone can become president, the Government should be more worried about voting on this huge change to Irish law, and voting to restore our constitutional rights.