Michael McDowell (Dublin South East, Progressive Democrats)

One should always proceed by retrying something if possible, looking to the constitutional issue subsequently and so forth.

I agree with Deputy Ardagh in respect of the notion that a garda acting in good faith could be found to have objectively breached the Constitution, despite the garda not knowing that he or she had done so or believing that it was not a breach. The evidence obtained would be excluded in circumstances where the defendant had no merits of any kind whatsoever, but he or she would walk free, which is offensive to most people. The minority, or discretionary, view in the Kenny case was that a balance had to be struck between rights rather than a rigid view being taken. I would prefer if that view were reflected in the law — that is my personal preference. I am not sure how we can get there, however. If I were to come to the House some afternoon with a one-section Bill, and explain that I wanted to experiment in such a manner, Deputies would probably ask me what the Attorney General had to say about my plan.

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