D.P.P. v. J.C.

AuthorAisling O'Connell
PositionBA, LL.B, LL.M
[2017] Irish Judicial Studies Journal Vol 1 66
Case Comment
D.P.P. v. J.C.
Aisling O’Connell, BA, LL.B (NUI Galway), LL.M(UCD)
What is the exclusionary rule?
The exclusionary rule defines the circumstances in which a court will exclude evidence on the
grounds that it has been obtained in violation of an accused’s constitutional rights. The rule
was first developed in The People (A.G.) v. O’Brien (“O’Brien”)
and it was further developed by
the Supreme Court in The People (D.P.P.) v. Kenny (“Kenny”).
Traditionally, evidence obtained as
a direct and conscious breach of constitutional rights was automatically excluded in the
absence of extraordinary excusing circumstances. Recently, this rule was revised in D.P.P. v. J.C.
such that unconstitutionally obtained evidence will no longer be excluded at trial if it
was obtained in circumstances in which the breach of constitutional rights was due to
inadvertence and there was no deliberate or conscious breach.
The meaning of “deliberate and conscious”
In O’Brien, the main issue before the Supreme Court was the admissibility of evidence that had
been obtained on foot of an invalid search warrant. The warrant incorrectly described the
premises and the applicants submitted that the main body of the evidence was obtained in
direct violation of Article 40.5 of the Constitution.
The Supreme Court dismissed the appeal.
Kingsmill Moore J., with whom Lavery and Budd JJ. agreed, held that where there has been a
deliberate and conscious violation of constitutional rights by the State or its agents, any
evidence obtained should be excluded unless there are extraordinary excusing circumstances
that warrant their admission.
Walsh J., with whom Ó Dálaigh C.J. agreed, held that evidence
obtained in deliberate and conscious breach of the constitutional rights of an accused should,
save in certain excusable circumstances, be inadmissible.
The ambit and the effect of the exclusionary rule was resolved by a five judge Supreme Court
in Kenny.
Finlay C.J., with whom Walsh and Hederman JJ. concurred, favoured an absolute
exclusionary rule. Although Finlay C.J. recognised that an absolute exclusionary rule could
limit the capacity of the courts to arrive at the truth, he held that this did not outweigh the
constitutional obligation placed on the courts to defend and vindicate, as far as practicable, the
personal rights of the citizen.
Thus, the correct principle was that:-
[2015] IESC 31, (Unreported, Supreme Court, 15th April, 2015).
Article 40.5 provides: “The dwelling of every citizen is inviolable and shall not be forcibly entered save in
accordance with law.”
[1965] I.R. 142, p. 162.
Walsh J. outlined the following as extraordinary excusing circumstances: “…the imminent destruction of
vital evidence or the need to rescue a victim in peril… I would also place in the excusable categor y evidence
obtained by a search incidental to and contemporaneous with a lawful arrest although made without a valid
search warrant.”; p. 170.
The People (D.P.P.) v Kenny [1990] 2 I.R. 110, p. 134.

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