Jim O'Keeffe (Cork South West, Fine Gael)

I move amendment No. 17:

In page 6, before section 5, but in Part 1, to insert the following new section:

"PART 2

EXCLUSIONARY RULE

5.—(1) Where evidence is obtained in contravention of a person's constitutional rights, whether numerated or unenumerated, such evidence may, having regard to the totality of the circumstances of the case and, in particular, the rights of the victim, be deemed by the court to be nonetheless admissible, unless—

(a) the evidence was not obtained in good faith, and

(b) the contravention of the person's constitutional rights was—

(i) intentional, and

(ii) significant in the context of the offence alleged.".

The last issue was a matter of practicality but with this amendment I am getting into an area of serious law, which I accept. Many issues annoy me in the criminal justice system, and seeing people accused of serious crimes walking out the door on the basis of technicalities is one of them. That brings the criminal justice system into disrepute. I know smart lawyers are paid big fees to find technical problems etc. and it is their job so I do not blame them. I wish the Tánaiste every success if he returns to that practice.

The general public loses confidence and faith in a system where this happens. This is where evidence is clearly available but there may be a basis for some technicality, such as a minor defect in a search warrant. I will not recall any particular case but I am sure all of us can remember cases of that nature. An accused can walk out the door on the basis of this technicality, even where there is considerable evidence against him or her.

I have been considering how one might change the law in this regard. I asked the Houses of the Oireachtas research service to examine the issue and I compliment those involved in that service. They are at long last providing an excellent function to members of the Opposition in particular, who do not have access to any similar support. I received an excellent paper on the issue towards the end of last year from Dr. Emma Fee of that particular service, and I compliment her and her colleagues on the service provided.

It shows that if we proceed carefully and cautiously, changes can be made which will not unduly entrench on the traditional historical rights of the accused to a fair trial. I was heartened by the consideration of this issue by the review group.

On page 147 of its report, the background of the exclusionary rule was traced and it appears it is of relatively recent origin. It has developed to an extent where, effectively, on any technicality prosecutions can fail. The most extreme example was in the Dylan Creavan v. Criminal Assets Bureau case. In that instance, as a result of the judge not being in his assigned area when the search warrant was signed, everything recovered in the course of the subsequent search was deemed to be improperly obtained. That makes the law an ass.

That provision was changed not by tackling the broader issue of the exclusionary rule but by a change introduced in the Criminal Justice Act we passed last year not requiring the judge to be physically present in his or her own district when a search warrant is signed. That closed that part of the loophole. The broader issue of what happens when the accused walks out the door on the basis of a technicality was not dealt with, but it has been dealt with in great detail by the Hogan committee. An opinion on it clearly emerges from the majority of the committee, although this majority excludes Dr. Hogan. It is one of the instances where I disagree with him. On page 161 the report states: "A majority of the Group is of the view that the current exclusionary rule is too strictly calibrated, and would wish to see a situation develop where the court would have a discretion to admit the evidence or not, having regard to the totality of the circumstances and in particular the rights of the victim."

In our approach to the whole criminal justice system in general and in particular in dealing with a Bill of this kind, we must be more cognisant of the rights of the victim.

The review group went on to look at the different possibilities, one of which is having the issue revisited by the Supreme Court. That would be to avoid our responsibilities, as the Oireachtas makes the law. We cannot wait around for the Supreme Court to be given a nod to reconsider the issue, and it would depend on an appropriate case coming before it anyway.

The group and the research paper looked at the scenario in other countries and arising from that I have tabled these amendments as to what should be admissible. The majority recommendation from the review group states:

We would wish to see a situation where the court would have a discretion to admit unconstitutionally obtained evidence or not, having regard to the totality of the circumstances and in particular the rights of the victim. In the first instance we suggest the approach of seeing whether a change in jurisprudence emerges following use of the appeal provisions of the Criminal Justice Act 2006. If not, the other options would then have to be examined and considered. As stated above, these other options include various legislative models or possibly constitutional change.

This is a menu. We should not wait around for the Supreme Court and we should avoid a constitutional change if at all possible. We should try to find a way forward within the parameters of legislation.

For that reason I tabled this amendment, which essentially provides: "Where evidence is obtained in contravention of a person's constitutional rights, whether numerated or unenumerated, such evidence may, having regard to the totality of the circumstances of the case and, in particular, the rights of the victim, be deemed by the court to be nonetheless admissible, unless [here we get into the safeguards and exceptions] the evidence was not obtained in good faith [that would be essential] and the contravention of the person's constitutional rights was intentional and significant in the context of the offence alleged." It is not a question of trampling on the accused's constitutional rights. Rather, it is a question of taking into account the circumstances in which he or she could claim a breach of those rights because of a technicality.

During my investigation of the issue, another situation emerged, namely, members of the Garda Síochána becoming aware of evidence, material or facts that could be used as evidence in a case or indicate to him or her that a crime has been or is likely to be committed. The garda would not have time to seek a search warrant. For example, he or she could be passing a door behind which he or she suspected criminal activity was under way.

I refer to this as the "plain sight" amendment. I do not claim to be reinventing the wheel, as this proposal stems from the law of other countries, but it is time to take it on board. It sounds ludicrous that a garda who sees or, on reasonable grounds, suspects criminal activity taking place must find a District Court judge to sign a search warrant to inspect and collect evidence. In 99 cases out of 100, the evidence is gone by the time the garda returns with the warrant. This is the basis for my proposal. How many amendments are we taking with amendment No. 17?

See this speech in context