Ivana Bacik (Independent)

I propose, with the leave of the House, to share time with Senator Norris, who will take one minute at the end of my speech.

First, as a practising criminal barrister who has argued some of these issues before the courts, I declare my interest in this. I welcome the opportunity to argue in this debate and I welcome the Minister. While the Bill may appear somewhat technical in terms of its subject matter, this is a very important issue, as other speakers said. Indeed, there is an ongoing debate, as Senator Regan said, among criminal practitioners in particular and among those with an interest in the criminal justice system, about the nature of the exclusionary rule. I spoke at conferences on this issue. A seminar was held at the weekend in Trinity College Law School on the criminal justice system and recent developments, at which the exclusionary rule was discussed — Senator Regan referred to the fact that I was one of its organisers.

The balance in the criminal law review group in March 2007, to which the Minister and Senator Regan referred, took a comprehensive look at the working of the rule. I am grateful to Senator Regan for raising the issue, but I cannot support his Bill. I share the Minister's views on the flaws in drafting of the Bill. However, there are a number of other fundamental points and I will make those.

As the Minister said and the balance in the criminal law review group made clear, this Bill would be unconstitutional. Not alone did the chair of the review group, Dr. Gerard Hogan, dissent from the majority on the exclusionary rule and take the view that any legislative approach to change it would be unconstitutional, the majority of the group took the view that a "full frontal" assault through legislation on the exclusionary rule "would be likely to be held to be unconstitutional". I am quoting from page 162 of the report.

The Supreme Court is due to revisit this issue in the appeal of the Cash case, already referred to. That is the judgment in DPP (Walsh) v. Cash, a High Court judgment given by Mr. Justice Charlton on 28 March 2007. A Supreme Court appeal is due in that regard. To go to the substance of the Bill, it is too absolutist in its tone and mistakes the current rule. This is an exclusionary rule, as set out in The People v. O'Brien, as modified in The People v. Kenny, but not, as the Bill states, a rule that operates automatically to exclude in all circumstances. The Kenny case, although it has been construed as being utterly strict, allows for modification. I am indebted to Dr. Yvonne Daly of Dublin City University, who delivered a very useful paper on this at the weekend seminar. As she pointed out and as the Minister said in his speech, the discretionary rule as adopted in the O'Brien case and later in the Kenny case allows a judge, where evidence has been obtained illegally, to take into account varying issues when determining its admissibility. A different and stricter rule applies to unconstitutionally obtained evidence. Any evidence obtained in breach of constitutional rights must be excluded, unless it can be shown there were extraordinary excusing circumstances in existence. Even in its stricter sense, therefore, it is not an absolute rule.

The courts have modified the rules somewhat over the years. Both the case of DPP v. Buck in 2002 and the case this year of DPP v. A.D., in which Mr. Justice Finnegan made a judgment in the Court of Criminal Appeal, show that where there has been a breach — in both cases a solicitor had not been obtained for an accused under detention and being interviewed in a Garda station — there must be a causative link between the breach of constitutional rights and the making of the incriminating statement for the statement to be excluded. Therefore, there are modifications to the rule.

The case of Dillon, which is usually cited by those seeking to overturn or abolish the exclusionary rule, has been widely misinterpreted. I reread the judgment made by Mr. Justice Hardiman of 20 December 2002 again today. Senator Regan gave the facts of this case already. The Dillon case turned on the fact that gardaí in intercepting a phone call — as found by the Court of Criminal Appeal — were carrying out the offence of interception as defined in section 98 of the Postal and Telecommunications Act 1983. Gardaí were carrying out an illegal action in intercepting the phone call. The Court of Criminal Appeal therefore found the evidence obtained through that interception could only be admissible if there were extraordinary excusing circumstances because not alone was it an illegal interception, it also amounted to a breach of the constitutional right of privacy.

However, the Court of Criminal Appeal said it could not decide the issue whether there were extraordinary excusing circumstances because the trial judge had found that the act of the garda taking the phone call had not amounted to interception under the 1983 Act. That may sound highly technical, but it was not as clear cut a case as the court simply saying this was unconstitutionally obtained evidence and therefore could not be admitted. There were a number of steps that could have been taken and the evidence could have been admitted at trial had the trial judge found that the evidence was obtained either through illegal or unconstitutional means. The other issue to note about the Dillon case is that the sentence had already been served by the accused. The Court of Criminal Appeal mentioned this at the end.

With regard to the proposed Bill, one would be very wary of taking on a Bill that is constitutionally suspect or that purports to abolish outright a rule that has been developed and refined by the courts and that is more nuanced than is often understood. Also, while much has been said about the way in which the rule operates here — it is more absolute than in other common law jurisdictions — it must be said that in Ireland we have a much more absolute position on the other side of the scale also, in that we allow people to be convicted on the basis of secret evidence, the evidence of informers and the opinions of chief superintendents, particularly in the Special Criminal Court.

Balance in the criminal law does not always go the one way. I am of the view that the rights of victims should be given greater priority within our criminal justice system and there has been a move towards that generally, but in the context of the exclusionary rule, I would have to agree with Dr. Gerard Hogan, the chair of the balance in the criminal law review group, when he points out that the rule was developed not just to discipline gardaí or stop them from abusing their powers, but to protect the constitutional rights of individuals. He points out that the development of the exclusionary rule has been the logical corollary of a series of interlocking constitutional provisions. If we value the fundamental protections in our Constitution, we cannot seek to abolish or undermine so thoroughly this rule.