The Exclusionary Rule: From Incorrect Addresses on Search Warrants to the Retention of Phone Data
Introduction
The exclusionary rule has seen much development in Ireland, evolving from what was first conceptualised as a fundamental adjunct to the ‘rights and liberties of every citizen’,1 to what is now a much more tempered and conservative rule. The rule, which aims to prevent the admission of illegally and unconstitutionally obtained evidence, was first established in The People (AG) v O’Brien2 and was refined in DPP v Kenny.3 Kenny took a more fundamental and protectionist approach to the rule which, in 2015, was overruled by DPP v JC.4 Recently, in July 2024, Graham Dwyer’s appeal to the Supreme Court in DPP v Dwyer saw discussion of the exclusionary rule and illustrates its interplay with EU law.5 With that in mind, this discussion aims to tie together the Supreme Court’s recent judgment with the previously established case law.
The Origin of the Irish Exclusionary Rule
The exclusionary rule was first discussed during Irelands judicial activist days with the 1965 O’Brien case.6 Here, probative evidence was found on foot of an incorrect address on a search warrant.7 Upon appeal to the Supreme Court, it was held that the authorities were entitled to use the evidence, however, the Court split on the constitutional principles. The majority found that evidence obtained in a deliberate and conscious breach of a constitutional right should ‘in general’ and ‘normally’ be excluded.8 The minority judgement, written by Walsh J with Ó Dáiligh CJ concurring, was slightly more fundamentalist in thinking that evidence obtained in direct or conscious breach of a constitutional right should always be excluded except in extraordinary circumstances.9
Although the majority ruling won out in the end, it was not long until the position of Walsh J and Ó Dáiligh CJ was endorsed when the question of the exclusionary rule once again reached the Supreme Court.
Development of the Exclusionary Rule
In dealing with another incorrect search warrant, the Supreme Court accepted the minority O’Brien stance in the case of DPP v Kenny.10 A new Supreme Court, under Finlay CJ, favoured a largely absolute and protectionist exclusionary rule.11 Building on dicta from O’Brien, evidence procured by the State because of a ‘deliberate and conscious’ violation of the accused’s constitutional rights should be excluded where no extraordinary excusing circumstances exist. The phrase ‘deliberate and conscious’ referred to the conduct of the Gardaí as opposed to their state of mind, thereby significantly extending the scope of the rule.12 Although acknowledging the significance of the administration of justice, Finlay CJ held that no matter how important the detection of crime and conviction of perpetrators is, it ‘cannot outweigh the unambiguously expressed constitutional obligations’ on the Courts to ‘defend and vindicate the personal rights of the citizen.’13
The effect of the Kenny decision was that the respect of the accused was crystalised as a high-ranking right in the Irish constitutional order. The high aspirational standing of Kenny, however, was to be toppled over 25 years later.
The End of Kenny, the Beginning of JC
In 2015, the Supreme Court delivered the landmark judgment of DPP v JC which overruled Kenny.14 What is almost as significant as the overruling of the previous case law in this decision is the manner in which JC came before the Supreme Court. Here, JC’s dwelling was searched under a warrant issued by s 29 of the Offences Against the State Act 1939. However, s 29 was previously pronounced to be unconstitutional prior to JC’s trial before the Circuit Criminal Court.15Considering s 29’s invalidity, the trial judge found that inculpatory statements made by JC were inadmissible under Kenny.
However, the DPP appealed to the Supreme Court under s 23 of the Criminal Procedure Act 2010. Although all the members on the Supreme Court found that the trial judge had correctly applied Kenny, the majority accepted jurisdiction to hear the appeal under s 23 by contending that Kenny had been erroneously decided and accordingly exclusion of the evidence at JC’s trial, while precedent-compliant, was therefore incorrect.16
In replacing Kenny, the JC Court postulated that the meaning of ‘conscious and deliberate’ did not refer to the physical action of the Gardaí when breaching a suspect’s rights; rather the phrase is now confined to their state of mind.17 Hence, this limits the scope of the rule and allowed the majority to reach the conclusion that ‘evidence obtained in inadvertent breach of constitutional rights’ may be admitted so long as it is not a ‘knowing, reckless or grossly negligent breach.’18The majority believed that Kenny weighed disproportionately in favour of the rights of the accused to the hindrance of the authorities of justice.
In his dissent, Hardiman J was very forthright in expressing his disapproval of overturning Kenny, which he described as ‘one of the monuments of the constitutional jurisprudence in independent Ireland.’19 Dispensing with the Kenny judgment was a ‘revolution in principle’20 and indicates a disengagement with the ‘rights-oriented jurisprudence’ of the past.21 Furthermore, Hardiman J opined that the state of mind of the investigating officer is irrelevant; it is their actions that counts. He stated that it would not be ‘just, fair, or constitutional, to permit a public servant’s ignorance, or incorrect application, of the law of the land… to allow him to breach an ordinary citizen’s constitutional rights.’22
The decision by the Court has been widely criticised such to the extent that is has been described as ‘the most astounding judgement ever handed down by an Irish court.’23 The Supreme Court’s interpretation of s 23 of the 2010 Act has also been characterised as a display of ‘significant linguistic acrobatics’ that were used to justify the appeal.24
The majority decision also raises some questions as to the workability of the test, particularly on the ‘inadvertence’ front which affords the state with a defence of ‘I didn’t mean it’ or ‘I didn’t know it was against the law’ that is unavailable to ordinary citizens,25 and places ‘a premium on ignorance.’26 Research from the ICCL also has demonstrated that practitioners are unclear as to the ‘complexity’ of the JC application,27 and it now appears to be the case that when illegally obtained evidence reaches a trial, it is almost never excluded.28
Recent Application: DPP v Dwyer
The JC test was applied recently in Graham Dwyer’s appeal before the Supreme Court. In March 2015, Dwyer was sentenced to life imprisonment for the murder of Elaine O’Hara in 2012.29 The prosecution against Dwyer partly relied on evidence of text messages and traffic and location data relating to five mobile phones.30 Retention and access of this data was obtained by the Gardaí on foot of s 3 of the Communications (Retention of Data) Act 2011, which had given effect to the Data Retention Directive,31 which was later found to be invalid by the CJEU.32 During Dwyer’s trial in 2015, the Central Criminal Court rejected the argument that the data should be inadmissible, despite the invalidity of the Directive.33
In January 2015, Dwyer issued civil proceedings seeking declarations to the effect that the provisions of the 2011 Act were invalid.34 In 2019, O’Connor J of the High Court held that s 6(1)(a) of the 2011 Act, insofar as it relates to data ‘retained on a general and indiscriminate basis’ was inconsistent with EU law.35 At the European level, the CJEU ruled in GD v Commissioner of An Garda Síochána that, inter alia, national legislatures were precluded from retaining traffic and location data on a ‘general and indiscriminate’ basis, although questions of admissibility were to be determined by a national court.36 When the issue returned to the Supreme Court, it simply affirmed O’Connor J’s declaration and dismissed the appeal.37
After being dismissed by the Court of Appeal in 2023,38 Dwyer’s case received its judgment by the Supreme Court on 31 July 2024. On the admissibility front, Collins J, for the majority, based his examination on the Court’s recent decision in DPP v Smyth and DPP v McAreavey,39 which had ‘materially identical issues’.40 The Court held that the traffic and location data in those cases were rightly admitted in evidence by the Special Criminal Court.41 This was because even though the data was retained in breach of EU law, the breach was not ‘deliberate and conscious’ in the sense used in JC because it arose due to a ‘subsequent legal development’.42 This development, which was the combined effect of the CJEU’s judgment in GD and the declaration subsequently granted by the Supreme Court when the proceedings came back before it, meant that, in the circumstances, the data was prima facie admissible under JC.43
The Court reapplied the same rationale to Dwyer’s case. Collins J added that the determination of admissibility ‘engages compelling interests above and beyond the interests of the accused’, and an absolute exclusionary rule adversely impacts ‘on the administration of criminal justice.’44 Collins J notes further that GD held that the admissibility of the disputed data ‘is a matter of Irish law, subject to the principles of effectiveness and equivalence.’45 Because of the reasons decided in Smyth, Collins J stated that the question of admissibility is governed by JC, and therefore, ‘the application of the JCtest here leads to the conclusion that the evidence was admissible, notwithstanding that it was obtained in breach of the Charter.’46
There are interesting aspects of Collins J’s judgment regarding the exclusionary rule. Firstly, although the applicable legal principles had mostly been decided by Smyth and McAreavey, those principles are significant because they are importantly different from the decision of the Court of Appeal. The Court of Appeal considered that evidence obtained in breach of a Directive had been illegally obtained pursuant to the 1965 O’Brien case.47 Alternatively, the Supreme Court found that the evidence had been procured in violation of the Charter, and that determinations of admissibility fell to be decided by the JC test.48
Another fascinating dimension to note was the effect that the CJEU decision in GD had on the Supreme Court’s recent decision. As the CJEU explained in that case, the admissibility of evidence gathered on grounds of invalid retention is ‘a matter for national law, subject to compliance, inter alia, with the principles of equivalence and effectiveness.’49Equivalence requires Member States not to discriminate between claims based on national law and claims arising out of EU law, while effectiveness requires that national rules do not make it impossible to exercise EU-based rights.50
It is interesting to see how the JC test here has been subjected to these EU principles. In written submissions on behalf of the appellant, it was asked of the Court whether the breach of the appellant’s Charter rights were equivalent to the breach of a constitutional right pursuant to the principle of equivalence and, relatedly, what then is the test for admissibility.51Accepting that Dwyer’s Charter rights were breached, the Court decided that the JC test was the correct test, as opposed to the O’Brien test, because of its stricter character. If the Court had used ‘any less-exacting test’, then they would not be acting in accordance with the principles of equivalence and effectiveness in that it would effectively accord rights guaranteed by the Charter a lesser status than rights protected by the Constitution.52 This may be of significance to criminal appeal cases where a claim is made that evidence was obtained in breach of a Charter right. In such an event, the correct test then is presumably the JC test since it does not place a Charter right lesser than a constitutional right.
Conclusion
There can be no doubt that the Irish exclusionary rule has undergone significant change throughout the years. From what was first seen as an ancillary fundamental right of the individual, especially in the Kenny case, it has developed into a much more conservative and tempered rule. In its most recent application, it has been fascinating to observe how the Supreme Court integrated the JC rule with the EU principles of effectiveness and equivalence. This may be of significance in further criminal appeal cases when it comes to Charter breaches because it suggests that JC will be the proper test for the exclusion of evidence.
While it has been said that the JC decision was a ‘watershed’ moment in Irish Constitutional history,53 it may also be equally argued that an absolute exclusionary rule restricts the administration of justice. In any case, while it is certainly vital for the State to be able to prosecute in serious criminal cases with probative evidence, it should not go astray that, among other things, there is an unambiguously expressed constitutional duty for the State to defend and vindicate the personal rights of the citizen.
Bibliography:
1 DPP v JC [2015] IESC 31 (Hardiman J) [1].
2 [1965] IR 142.
3 [1990] 2 IR 110.
4 [2015] IESC 31.
5 DPP v Dwyer [2024] IESC 39.
6 It is interesting to note that at the same time of Ireland’s increasing judicial activism, the US also experienced a convergence in growth of judicial enumeration with the Supreme Court expressively finding in Mapp v Ohio 367 US 643 an absolute exclusionary rule. For further insight See Ruadhán Mac Cormaic, The Supreme Court (London: Penguin, 2016) p 98; Claire Hamilton, ‘Interpreting Change Through Legal Culture: The Case of the Irish Exclusionary Rule’ (2020) 41Legal Studies 355, 358-360.
7 The People (AG) v O’Brien [1965] IR 142, 142.
8 [1965] IR 142, 162. The majority consisted of Kingsmill Moore J, with Lavery and Budd JJ concurring.
9 Ibid, at 170.
10 [1990] 2 IR 110.
11 Aisling O’Connell, ‘Case Comment: DPP v JC’ (2017) 1 Irish Judicial Studies Journal 66,66.
12 [1990] 2 IR 110, 131-133.
13 Ibid, at 134.
14 Aisling O’Connell, ‘Case Comment: DPP v JC’ (2017) 1 Irish Judicial Studies Journal 66,67.
15 Damache v DPP [2012] IESC 11.
16 Yvonne Marie Daly, ‘Overruling the Protectionist Exclusionary Rule: DPP v JC’ (2015) 19 International Journal of Evidence and Proof 270.
17 Claire Hamilton, ‘A Revolution in Principle: Assessing the impact of the new evidentiary exclusionary rule’ (Maynooth University, Irish Council for Civil Liberties 2020), p 12.
18 DPP v JC [2015] IESC 31 (Clarke J) [5.11]-[5.23].
19 Ibid, (Hardiman J) [198].
20 Ibid, (Hardiman J) [134].
21 Ibid, (Hardiman J) [Introduction].
22 Ibid, (Hardiman J) [232].
23 Claire Hamilton, ‘Green Guards, Good Faith and the Exclusionary Rule’ (2015) Aug/Sep Gazette of the Incorporated Law Society of Ireland 20.
24 Murray J’s dissent in this case was concerned solely with the s 23 interpretation, which he thought did not apply here since the trial judge’s ruling was not erroneous, and he further thought that it was an appalling prospect that the law could be retrospectively changed by the Supreme Court after a citizen’s trial for a criminal offence [2015] IESC 31 (Murray J) [95]-[100].
25 Claire Hamilton, ‘A Revolution in Principle: Assessing the impact of the new evidentiary exclusionary rule’ (Maynooth University, Irish Council for Civil Liberties 2020), p 15.
26 DPP v Healy [1990] 2 IR 73, 89 cited by Hardiman J in DPP v JC [2015] IESC 31 (Hardiman J) [228].
27 In 2019, the ICCL, funded by the Irish Research Council, carried out a survey on new Irish evidentiary rules after the JC judgement. The survey was administered between July 2019 and March 2020 and was completed by 60 criminal law practitioners. Many of the practitioners expressed apprehension about the JC rules. For example, of the respondents, 65% of them believed that the new test had been applied in a predominantly inclusionary manner by the courts. 86% also believed that the test applies to all kinds of illegally obtained evidence, not just search warrants. See Claire Hamilton, ‘A Revolution in Principle: Assessing the impact of the new evidentiary exclusionary rule’ (Maynooth University, Irish Council for Civil Liberties 2020).
28 Gerard Hogan, ‘Note of Dissent on Exclusionary Rule’ in Balance in Criminal Law Review Group: Final Report (2007), 287, 289.
29 DPP v Dwyer [2024] IESC 39 (Collins J) [1].
30 Ibid, [4].
31 Directive 2006/24/EC. See [2024] IESC 39 (Collins J) [9].
32 CJEU held in the joined cases of C 293/12 and C 594/12 Digital Rights Ireland that the Directive was invalid, as a violation of the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter of Fundamental Rights of the European Union.
33 [2024] IESC 39 (Collins J) [13].
34 Ibid, [15].
35 Dwyer v Commissioner of An Garda Siochana [2018] IEHC 685.
36 Case C-140/20: GD v Commissioner of An Garda Síochána (ECLI:EU:C:2022:258; CJEU, Grand Chamber; 5 April 2022).
37 [2024] IESC 39 (Collins J) [19]. The Oireachtas subsequently passed the Communications (Retention of Data) (Amendment) Act 2022 to plug the gap created by the invalidity of s 6(1)(a).
38 DPP v Dwyer [2023] IECA 70.
39 [2024] IESC 22 and [2024] IESC 23 respectively.
40 [2024] IESC 39 (Collins J) [31].
41 Ibid, [32].
42 Ibid.
43 Ibid.
44 Ibid.
45 Ibid, [42].
46 Ibid.
47 DPP v Dwyer [2023] IECA 70 [131]-[133].
48 [2024] IESC 39 (Collins J) [32].
49 Case C-140/20: GD v Commissioner of An Garda Síochána (ECLI:EU:C:2022:258; CJEU, Grand Chamber; 5 April 2022) [127]-[128].
50 Case C-289/21: IG v Varhoven administrativen sad (ECLI:EU:C:2022:920; CJEU, Fifth Chamber; 24 November 2022 [33].
51 [2024] IESC 39 (Collins J) [28].
52 Ibid, [32].
53 Claire Hamilton, ‘A Revolution in Principle: Assessing the impact of the new evidentiary exclusionary rule’ (Maynooth University, Irish Council for Civil Liberties 2020), p 42.
