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

I move amendment No. 21:

In page 8, between lines 27 and 28, to insert the following:

"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.".

As far as the public is concerned, one of the greatest scandals of the criminal justice system is when an accused person is freed from the courts on technical grounds. The public can be further scandalised when it becomes aware there were large volumes of evidence against the accused, painstakingly gathered by the Garda, and presented to the court.

When I was a law student, I viewed the scales of the justice as being historically weighed against the accused. In our colonial history, the weight of the British Establishment was brought down heavily to bear on people who were largely uneducated and without proper representation which mitigated against their opportunity to an adequate and proper defence. My historical sympathies would have been towards the development of a proper system of defence so that the scales of justice were more evenly balanced.

In more recent years, I have changed that view and believe the scales of justice have gone the other way. In many instances, the accused are reasonably educated with access to the best lawyers through large pots of ill-gotten gains that enable them to put up substantial defences. Sometimes they have far more money for lawyers than the State can afford.

The criminal justice system is not served by having people excused or not convicted of their crimes on the basis of evidence being excluded for purely technical reasons. The exclusionary rule is one of recent origin in this and other jurisdictions. I am impressed that in other countries, the rule has been tempered, which is the basis of these amendments. If we focused more on these issues, we would serve the country better.

I accept the need to be careful in changing the rule and not to go overboard. The distinguished chairman of the Criminal Law Review Group, Dr. Gerard Hogan, for whom I have the highest regard, made a minority recommendation on this issue with which I do not agree. There is scope for change and I agree with the group's majority recommendation to allow a "Court to 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". This is one area that requires attention when bringing our criminal justice system up to date.

These amendments were tabled on Committee Stage. I have tried to draw them up to ensure there are compelling reasons for obtaining evidence unconstitutionally. I do not want the Garda Síochána to be given a free run. These proposals would address serious cases and crimes. There would have to be proof that the evidence was obtained in good faith with no intentional breach of the accused person's constitutional rights. It would be in the interest of rebalancing the criminal justice system, making the public more confident in it. That confidence is eroded when persons accused of heinous and serious crimes walk out of the courts on the basis of technicalities.

See this speech in context