Michael McDowell (Dublin South East, Progressive Democrats)

I do not mean to put that thought in anyone's head. The Deputies should take a look at the rule on unforeseen consequences.

I once defended a person and the garda applied for a warrant for St. Audoen's House, an apartment complex, but the District court clerk, misreading the garda's handwriting wrote it out for St. Andrew's House and the case collapsed on that point. The garda knew what apartment they were going to, the clerk did not know the difference between the two and the case was thrown out on the basis that the garda did not have a valid warrant to search the apartment in St. Audoen's House, though they were acting in good faith.

Most people feel this is not a common sense approach. The American approach is better. Whether a person acts in good faith is of critical importance. Getting from where we are now to that point poses a challenge to us and I feel the best solution would be a single section Bill to begin in the next Dáil. This would require a good deal of care to ensure there are no unforeseen consequences but it would crystalise the issue. If the Bill was narrow, carefully planned and well balanced we could bring this matter back before the courts again. The exclusionary rule does not arise every day in the courts but it has a chilling effect. When mistakes are discovered the Director of Public Prosecutions is faced with the dilemma of dropping an otherwise perfectly good prosecution. In the case of Judge Brian Curtin the DPP was subject to judicial criticism for ploughing on in the face of a defect. This issue could be addressed on a cross-party basis in the next Dáil if there is cross-party consensus.

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