Michael McDowell (Dublin South East, Progressive Democrats)

The exclusionary rule is the rule that defines the circumstances under which a court will exclude evidence on the grounds that it has been obtained in violation of the accused's rights. This issue was examined in some detail by the Balance in the Criminal Law Review Group chaired by Dr. Gerard Hogan.

Customarily, the common law did not have an exclusionary rule and the courts allowed evidence to be admitted which had been obtained as a result of, for example, an illegal search, provided the evidence was otherwise admissible and relevant. Following the 1960s Supreme Court decision in the O'Brien case, the exclusionary test to be applied can be summarised as follows: evidence obtained as a result of a conscious and deliberate violation of the accused's constitutional rights is not admissible in evidence, unless there are extraordinary excusing circumstances. This remains the essential test today. If unlawfully obtained evidence does not fall to be excluded under this test, the court will then have a discretion whether to allow the evidence to be admitted.

The question of extraordinary excusing circumstances has not been an issue that has arisen frequently before the courts. Likewise, whether the right that had been infringed was a constitutional right or a common law right has not been a matter of great debate. The question as to what is meant by "conscious and deliberate" has, however, been hotly debated. The Supreme Court decided the issue in the case of Kenny in a manner that involves a significant extension of the exclusionary rule.

It is, however, interesting to note that the decision of the Supreme Court in Kenny was not a unanimous one. There were two strongly dissenting views to the three majority judgments.

One of the central problems of a strict exclusionary rule is that it does not allow the trial judge to weigh the public interest in ensuring that constitutional rights, including public rights, are protected by agents of the State as against the public interest in ensuring that crime is detected and punished and that the constitutional rights of victims are vindicated by the courts. Neither does a strict exclusionary rule allow the courts to have regard to whether a defect in a warrant is caused by factors outside the control of the Garda Síochána.

It is against this rule that the Balance in the Criminal Law Review Group developed its recommendations. The group considered three alternative approaches: a constitutional amendment, statutory regulation and the statutory provision of a list of factors which a court may take into account in deciding whether to exclude evidence.

The group measured these three options in detail. The recommendation by the majority of the group can be summarised as a desire 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. It should be noted that the chairman of the group, Dr. Gerard Hogan, senior counsel, did not concur with the majority recommendation. His dissenting view is appended to the Report of the Balance in the Criminal Law Review Group, which was published by me on 23 March.

During the course of the Committee Stage debate on the Criminal Justice Bill 2007 last week, I debated the exclusionary rule with Deputies Jim O'Keeffe and Ardagh and others before this House.

I know the rest of my answer will appear on the record. This is a very interesting topic but it is not one that is easily remedied on the hoof, so to speak.

Additional information not given on the floor of the House.

As I stated last Thursday my belief is one that would support the minority judgments in the Kenny case. 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. The question is how we can achieve this. We should think carefully in undertaking a possible constitutional amendment on such a complex issue. In the first instance, the approach should be to see whether a change in jurisprudence emerges following use of the appeal provisions in Part 4 of the Criminal Justice Act 2006. However, as was noted in last week's debate, that appeal procedure depends on a suitable case emerging that would lead to reconsideration of the law in this area. If not, the other options would then have to be examined and considered, including the question of legislation.

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