Dermot Ahern (Louth, Fianna Fail)

I thank Senators Regan and Cummins for raising this issue.

The aim of the Bill before us is to revise the law of evidence in criminal proceedings. Its particular target is the exclusionary rule of evidence as enunciated by the Supreme Court in its 1990 judgment in the People v. Kenny. There is no doubt but that the impact of the Kenny judgment on criminal trials has been profound. While it is not appropriate for me as a member of the Executive to make any comment on the decisions of the Judiciary, I note that Mr. Justice Charleton said in respect of the Cash case of 27 March 2007 that "the entire focus is on the accused and his rights; the right of the community to live safely has receded out of view."

The operation of the rule affects not only the ability of the State to sustain prosecutions but also decisions to prosecute in the first instance. I agree that some relaxation of the rule needs to be considered and, therefore, I have some sympathy for the sentiments in this Bill. As Senator Regan stated, this view is reflected in An Agreed Programme for Government. I refer to the relaxation of the rule because I do not believe anyone would argue that all evidence should be admissible irrespective of how it was obtained. An exclusionary rule of evidence is now a feature of most common law countries and many civil law countries, and public debate centres on the scope of the rule rather than on the need for it. It is in this context that I welcome this Bill as a contribution to the ongoing debate on this issue. However, agreeing that the rule requires change is the easy part; it is a little more difficult to determine how that change is to be brought about.

Before commenting on the course of action proposed by this Bill or its detail, it would be useful to set out briefly how the current state of the law has come about. The origin of the rule has a direct bearing on how it might be changed. The rule in its current form was set out by the Supreme Court in the case of the People v. O'Brien in 1965. The facts of that case, a larceny case, are well known. The evidence against the two accused was obtained on foot of a search warrant which contained an error in respect of the address to be searched. The warrant referred to "118 Cashel Road, Crumlin" rather than "118 Captain's Road, Crumlin", a minor error that appeared to go unnoticed by the gardaí executing the warrant. The rule applied by the Supreme Court in concluding that the evidence obtained on foot of the warrant had been properly admitted was that evidence obtained as a result of the conscious and deliberate violation of the accused's constitutional rights is not admissible as evidence, unless there are extraordinary excusing circumstances. This remains the case today.

The Kenny case in 1990 gave us the present interpretation of the words "conscious and deliberate". That interpretation is at the core of the debate on this rule. This case, like the O'Brien case, also concerned the lawfulness of a search conducted on the basis of an invalid warrant. The error in this case was on the part of a peace commissioner. In the Kenny case, the Supreme Court held that the words "conscious and deliberate" qualified the actions of the garda rather than his state of mind in respect of the lawfulness of the search.

The court based its interpretation of the rule on the constitutional obligation on the State to defend and, as far as practicable, vindicate the personal rights of citizens and on the constitutional right to a trial in due course of law. Therefore, the rule in its current form appears to be constitutionally based.

The Bill before us this evening seeks to abolish this rule and replace it with a statutory rule. Sections 3, 4 and 5 of the Bill, in particular, appear to be premised on the proposition that it is possible to modify by statute the principle enunciated by the Supreme Court in the Kenny case. I am advised that such a course of action is constitutionally very doubtful. We must bear in mind that the provisions of the Constitution may be amended only by means of a decision of the people in a referendum.

As the House will be aware, this issue was very helpfully examined by the Balance in the Criminal Law Review Group established by my predecessor and chaired by Dr. Gerard Hogan, senior counsel. Its report was probably the first document I read when I took office in this Ministry. The chairman dissented on the question of amending the rule in any way but the remainder of the group took a cautious view in regard to how the issue should be addressed. The majority indicated they would wish to see circumstances in which "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." Essentially, the group recommended that, initially at least, the powers vested in the Director of Public Prosecutions under the Criminal Justice Act 2006 should be utilised, where appropriate, to refer the question back to the Supreme Court. Prior to the coming into force of section 21 of the 2006 Act on 1 August 2006, the director did not have any legal avenue to have the issue revisited by the Supreme Court. That section inserts a new section 34 in the Criminal Procedure Act 1967, which now provides such an avenue. A decision of a trial judge to exclude evidence on the basis of the decision in the Kenny case may now, in the event of an acquittal, be the subject of a reference to the Supreme Court. The decision as to whether such a referral should be made is a matter solely for the Director of Public Prosecutions.

I understand the sense of frustration that prompted this Bill. However, it is my firm view that, before this House embarks on a constitutionally suspect course of action, other options should be exhausted. In particular, time should be allowed for the counter arguments to the Kenny case to be ventilated before the Supreme Court in a suitable case. I believe there are strong arguments in favour of a recalibration of the exclusionary rule, including the failure of the rule to allow the trial judge to weigh the public interest in ensuring that constitutional rights are protected by the 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. This is a compelling argument for a relaxation of the rule, as is the failure of the rule to take into account whether the defect that occurred was caused by factors outside the control of the Garda Síochána and whether its members acted in good faith. A further argument is that the consequences flowing from the application of the rule, the unjust acquittal of the accused, is often out of all proportion to the trivial nature of the breach of the accused's rights in the first instance.

In setting out these arguments against the rule as interpreted in the Kenny case, it is not my intention to diminish the principles underpinning the rule. Clearly, breaches of the constitutional rights of the accused must be treated seriously and sloppy police practices must not be tolerated. It is my view however, that a modified rule which would encompass a "good faith" exception or which would allow the trial judge to weigh the rights of the community at large and that of the victim against the rights of the accused, would continue to ensure that the guaranteed rights of the accused are treated seriously. It must also be recalled that changes in the operational practices of the Garda Síochána such as the video-recording of interviews with suspects and, of course, as Senator Regan said, the establishment of the Garda Síochána Ombudsman Commission, make the strict exclusionary rule less relevant as a protection against sloppy police work. As I said, my preference is that time be allowed for these arguments to be ventilated before the Supreme Court in a suitable case. I made my views in this regard known, in July this year, to the Attorney General who, I understand, in the context of the statutory consultations which take place from time to time between the Attorney General and the Director of Public Prosecutions, DPP, and permitted by section 2(6) of the Prosecution of Offences Act 1974, raised this matter in September.

I understand that the DPP is very conscious of the benefits of identifying cases in which the scope of the decision in the Kenny case can be argued so as to clarify the circumstances in which the rule applies. While the lodging of an appeal in any individual case is, of course, solely a matter for the DPP and appeals can take some time to be heard and adjudicated on, I believe this course of action should be allowed time to come to fruition. In the event that the arguments are put to the Supreme Court and it takes the opportunity to reaffirm the court's analysis in the Kenny case, we will need to think again and look at other options.

I have focused thus far on the overall aim of the Bill which, as I said, is constitutionally doubtful. There are, however, numerous defects in the drafting of the Bill which, were it not for this fundamental flaw, would make it unacceptable.

Section 2 defines "improperly or illegally obtained evidence" as evidence which is obtained by the Garda or other law enforcement agency in a manner which breaches an accused's rights which exist under or derive from common law, statutory criminal law or the Constitution. The section fails to distinguish between illegally obtained evidence and unconstitutionally obtained evidence. The strict exclusionary rule as enunciated in the Kenny case applies only to unconstitutionally obtained evidence — if unlawfully obtained evidence does not fall to be excluded under the Kenny test, the court has the discretion whether to allow the evidence to be admitted.

Section 3 seeks to abolish the exclusionary rule "whereby improperly or illegally obtained evidence, which may amount to a breach of the constitutional rights of the accused, is automatically excluded from criminal proceedings". This is not an accurate reflection of the exclusionary rule as enunciated in the Kenny case and applied by the courts. As I stated, unlawfully obtained evidence is admitted at the discretion of the courts. In circumstances where the court finds that evidence has been obtained in breach of the constitutional rights of the accused, the evidence may be admitted if the court considers that extraordinary excusing circumstances exist. While it is the case, as I have outlined, that the rule as set out by our courts is strict, it is not so strict as to require the automatic exclusion of evidence.

Section 4 requires the court, when determining the admissibility of improperly or illegally obtained evidence in criminal proceedings, to conduct a balancing exercise as between the rights of the accused, the constitutional rights of the victim of crime, including the right to life, bodily integrity and property, the public interest in the prosecution of crime and the public interest in the administration of justice. The section specifically provides for the constitutional rights of the victim but does not specify similar rights for the accused. This is a serious omission. Any attempt to modify the exclusionary rule must recognise the constitutional rights of the accused.

Section 5 presents a number of difficulties. For example, paragraph (c) suggests that the seriousness of the crime with which the accused is charged is an appropriate factor to be taken into account by the court in determining the admissibility of evidence obtained illegally or improperly. In differentiating between crimes of varying severity, this paragraph appears to conflict with Article 40.1 of the Constitution which guarantees that "All citizens shall, as human persons, be held equal before the law." Indeed, such a provision could arguably encourage double standards by the Garda in gathering evidence.

Section 6 provides that where it has been found that evidence was improperly or illegally obtained by a member of the Garda Síochána, a court may, where it is appropriate, refer the matter for investigation to the Garda Síochána Ombudsman Commission. I am doubtful about the usefulness of this proposal. The Ombudsman Commission already has, under section 102(4) of the Garda Síochána Act 2005, a discretionary power to investigate any matter that appears to indicate that a garda may have either committed an offence or behaved in a manner that would justify disciplinary proceedings. A complaint is not needed. Second, the Minister of the day can also refer any such matter to the commission.

These are just some of the difficulties with the Bill as drafted. They by no means constitute a complete list. To sum up, this Bill is based on a very shaky premise, that legislation can abolish a rule derived from the Constitution. My strong advice is that this is constitutionally suspect. In view of this, I am inclined to wait to see whether the new legal avenue opened up by the Criminal Justice Act 2006 will allow the counter arguments to the Kenny judgment to be ventilated before the Supreme Court.

I urge Senators to oppose this Bill, but I genuinely accept the sentiment and the bona fides under which Senator Regan brought it forward.