Jim O'Keeffe (Cork South West, Fine Gael)
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Question 5: To ask the Tánaiste and Minister for Justice, Equality and Law Reform if he will implement the recommendations of the Criminal Law Review Group on not allowing suspects in respect of serious crimes to escape justice on technical evidentiary grounds; and if he will make a statement on the matter. [13141/07]

Michael McDowell (Dublin South East, Progressive Democrats)
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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.

Jim O'Keeffe (Cork South West, Fine Gael)
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As a continuation of an amendment I tabled to the Criminal Justice Bill I wish to raise the following issues. Does the Minister accept that the public interest is not served and the mood of the public is aggravated by people who are charged with serious offences getting off on technical grounds? Does he accept that there is an onus on us to find a way to ensure justice is done? A person with a fair defence is entitled to an acquittal but without one, he or she should be convicted. It is up to us to put in place measures that ensure that a fair result emerges.

The majority recommendation of the Balance in the Criminal Law Review Group, chaired by Dr. Gerard Hogan, was to introduce a change and this has given us a lead. I note the dissenting view of Dr. Hogan and respect it as it relates to a concern about constitutional difficulties that may arise. Does the Minister agree that we must find a way to change this rule within the constitution? If necessary we can follow the recommendations of the debate last week that any such Bill be a single issue Bill and perhaps be referred by the President for constitutional proofing under Article 26.

Does the Minister accept that we should examine this matter in a broader way than the narrow confines the report of the Balance in the Criminal Law Review Group allow? We should examine the situation in Australia and I am indebted to the Oireachtas research service for finding these details. In Australia a discretionary approach is taken, in the United States a good faith exception exists and in Canada there is a three pronged approach involving a trial fairness test and other elements. The broader international context shows that this issue does not affect us only, solutions have been found in other countries and we can learn from them. I want to see a political commitment to a solution from all those with an interest in this issue and I want to see that solution put into effect as soon as possible in the next Dáil, whichever parties are in Government.

Michael McDowell (Dublin South East, Progressive Democrats)
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I agree with the Deputy and the minority view in the Kenny case. I am bound, as is every citizen, by the majority view of the Supreme Court but, had Deputy Jim O'Keeffe or I held the swing vote things might have gone the other way. However, we were not there and other people decided the case the way they did.

Jim O'Keeffe (Cork South West, Fine Gael)
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The decision certainly would have been different.

Brendan Howlin (Wexford, Labour)
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Is the Minister applying for a job?

Jim O'Keeffe (Cork South West, Fine Gael)
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That is another solution; we can map out the Minister's future.

Michael McDowell (Dublin South East, Progressive Democrats)
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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.