DPP v Patrick Quirke

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 28 July 2023
• Neutral Citation: [2023] IESC 20
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2022:000005 [2021] IECA 306 Central Criminal Court Bill CCDP0113/2017

Between

The People (DPP)

Prosecutor/Respondent

and

Patrick Quirke

Accused/Appellant

[2023] IESC 20

O'Donnell CJ

Dunne J

Charleton J

O'Malley J

Baker J

Woulfe J

Murray J

Supreme Court appeal number: S:AP:IE:2022:000005

Court of Appeal record number: 86/2019

[2021] IECA 306

Central Criminal Court Bill CCDP0113/2017

An Chúirt Uachtarach

The Supreme Court

Conviction – Murder – Admission of evidence – Appellant seeking a retrial – Whether the Supreme Court could rule on whether evidence should be excluded or admitted

Facts: In the principal judgment on the appeal (Quirke no 1), which challenged the search of the home of the accused/appellant, Mr Quirke, on 17 May 2013 in pursuit of a murder enquiry into the death of Mr Ryan, the Supreme Court declared that the search warrant enabling entry therein was lawful but that the seizure therefrom of computer devices for the purpose of exploring their content was unlawful. In that ruling, it was reasoned that the seizure of those computer devices for the specific purpose of searching within the digital space was unlawful, since nothing in the sworn information or draft warrant, seeking judicial authorisation to search, justified the potential seizure of computer devices for the purpose of any exploration into the digital sphere to which those devices were a portal and nor did the draft search warrant suggest that anything apart from that the personal effects of the victim of the crime might be found in the accused’s home: [2023] IESC 5. In consequence of the Court’s ruling in Quirke no 1, that the computer evidence was illegally obtained by the gardaí, the accused renewed his application for all of the evidence resulting from the search of his computer devices to be excluded. Exclusion or admission of evidence, the accused contended, could not be ruled on by the Court. In consequence of the prior judgment, the accused claimed that the conviction was unsafe and that any issue as to the admissibility of the evidence resulting from the computer devices should be the responsibility of the trial judge in the Central Criminal Court; that no appellate ruling on admissibility was possible. According to the accused, therefore, the Court must order a retrial. While the prosecutor/respondent argued to the contrary, that the Court may rule on whether the evidence should be excluded or admitted, the accused asserted that only an individualised enquiry, into the testimony of the officers responsible for the absence in the sworn information and the warrant, could possibly enable a judge to properly assess the nature of the defect which led to the absence of any reference to computer devices in the sworn information seeking the warrant and from the draft warrant presented by the gardaí. The Court, the accused asserted, was not entitled to embark on an enquiry whereby the evidence may be ruled to be admissible at a criminal trial; since an appellate court is not the trial court it is neither practical nor in accordance with law for such an appellate court acting on the basis of the transcript alone to properly analyse the evidential issues that arise.

Held by the Court that the admission by the trial judge of the evidence of what was on the computer devices seized from the home of the accused could and should be affirmed since the illegality attaching was due expressly to a new legal development in the law related to digital-space privacy. The Court found that there was, on the trial judge’s ruling, no dishonesty. The Court held that the mistake in the application on oath for the warrant and the resulting search warrant was due to honest inadvertence.

The Court held that the conviction of the accused for the murder of Mr Ryan should therefore be affirmed.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Friday 28 July 2023

1 In the principal judgment on this appeal, Quirke no 1, which challenged the search of the accused's home on 17 May 2013 in pursuit of a murder enquiry into the death of Bobby Ryan, this Court declared that the search warrant enabling entry therein was lawful but that the seizure therefrom of computer devices for the purpose of exploring their content was unlawful. In that ruling, it was reasoned that this seizure of these computer devices for the specific purpose of searching within the digital space was unlawful, since nothing in the sworn information or draft warrant, put before Judge Elizabeth McGrath on 13 May 2013, seeking judicial authorisation to search, justified the potential seizure of computer devices for the purpose of any exploration into the digital sphere to which these devices were a portal and nor did the draft search warrant, put before Judge McGrath, suggest that anything apart from that the personal effects of the victim of the crime might be found in the accused's home; The People (DPP) v Quirke [2023] IESC 5.

Prior judgment

2 The Quirke no 1 judgment ruled that computers and akin devices, such as smartphones and tablets, operate so as to enable a major intrusion into the privacy of those from whom these are seized. This is of a magnitude and dimension that the intervention of a judicial analysis and authorisation, in accordance with this Court's judgment in Damache v DPP [2012] IESC 11 at [51], [2012] 2 IR 266 at 283, was and is required so that a proper balance could be mediated as between the rights of the accused to keep private this vast sphere of digital information and the public's right to investigate and prosecute serious crime. Only by laying down the foundation of a reasonable suspicion and specifying the need to potentially seize such devices, on the basis of a reasonable belief, might a judge be enabled to decide if a warrant should properly and proportionately be issued for that purpose as well as for a general search of a home or premises.

3 On the appeal, therefore, a situation has emerged from Quirke no 1 whereby at trial an argument could have been proffered challenging admissibility on behalf of the accused to the trial judge, whereby the judge could have, on the basis of the law as this Court has now declared it to be, ruled that the seizure and digital analysis of the computer devices was contrary to law. What was found in consequence of the exploration of the digital space was a strand of circumstantial evidence proving that the accused had an interest in DNA and in the decomposition of bodies. It was the murder of the person, who had disappeared some two years previously, and whose remains were found on the farm rented by him, of which the accused was found guilty.

4 It should be recorded that, at trial, it was argued for the accused that the entire search of his home on this warrant had been unlawful. This was asserted to be so due to a lack of candour on the part of the gardaí in not specifying their undoubted intention to search for and access the digital space of the accused through seizing computer devices; it was further argued that there had been a failure to so specify before the issuing judge or to in any way seek judicial authorisation for such an intrusion. While less emphasis was focused at trial on the privacy issue, as elucidated by this Court in Quirke no 1, that general principle was closely related to, or incorporated by necessary implication, into what had been argued before the trial judge to seek the exclusion of the computer evidence.

Application

5 In consequence of this Court's ruling in Quirke no 1, that the computer evidence was illegally obtained by the gardaí, the accused now renews his application for all of the evidence resulting from the search of his computer devices to be excluded. Exclusion or admission of evidence, the accused contends, cannot be ruled on by this Court. In consequence of the prior judgment, the accused claims that the conviction is unsafe and that any issue as to the admissibility of the evidence resulting from the computer devices should be the responsibility of the trial judge in the Central Criminal Court; that no appellate ruling on admissibility is possible. According to the accused, therefore, this Court must order a retrial. While the prosecution argue to the contrary, that this Court may rule on whether the evidence should be excluded or admitted, the accused asserts that only an individualised enquiry, into the testimony of the officers responsible for the absence in the sworn information and the warrant, could possibly enable a judge to properly assess the nature of the defect which led to the absence of any reference to computer devices in the sworn information seeking the warrant and from the draft warrant presented by the gardaí to Judge McGrath. This Court, the accused asserts, is not entitled to embark on an enquiry whereby the evidence may be ruled to be admissible at a criminal trial; since an appellate court is not the trial court it is neither practical nor in accordance with law for such an appellate court acting on the basis of the transcript alone to properly analyse the evidential issues that arise.

6 Traditionally, as the analysis of the authorities which will follow demonstrates, a stricter rule applies potentially barring the admission of evidence in consequence of infringing the accused's constitutional rights, than is applicable where the merely a rule of law has been trespassed upon by the investigating authorities. Here, the prosecution argue, inventively, that while the Court has ruled in Quirke no 1 that what was involved in the seizure and analysis of computer devices was an invasion of privacy, a right protected by Constitution, the manner of infringement here amounts only to an illegality. The accused disagrees.

7 Central to the proper disposal of this appeal is the nature of the test for the exclusion of evidence obtained in breach of an accused's constitutional rights. On the appeal there remained some dispute as to whether that...