Irish Supreme Court Overturns Absolute Exclusionary Rule for Unconstitutionally Obtained Evidence

On Wednesday, the Irish Supreme Court ruled by a majority of 4-3 that evidence obtained in criminal cases in breach of constitutional principles need not necessarily be excluded at trial, overturning a 24 year-old precedent on foot of which all such evidence was automatically excluded. The case is notable on a number of levels: it has obvious implications for the conduct of criminal trials, and raises interesting issues around the retrospective application of declarations of unconstitutionality. It also possibly marks the beginning of a more assertive period for the Irish Supreme Court, following two decades of marked restraint.

The position on the admissibility of unconstitutionally obtained evidence in criminal trials in Ireland was unsettled for some time, until the Supreme Court decision in People (DPP) v Kenny [1990] 2 IR 110 established that evidence obtained through a breach of a constitutional right is not admissible; to hold otherwise would constitute a breach of the requirement in Article 38.1 that criminal offences shall only be tried “in due course of law”. The key issue in the debate is whether the breach of constitutional rights was deliberate and conscious, or whether an inadvertent breach should still lead to the evidence being excluded. A 3-2 majority of the Supreme Court in Kenny felt that the evidence should be excluded either way, as “a positive encouragement to those in authority over the crime prosecution and detection services of the State to consider in detail the personal rights of the citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to rights” (per Finlay CJ at 133) ...

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