The document summarizes changes to Ireland's exclusionary rule regarding unconstitutionally obtained evidence following the DPP v. JC Supreme Court decision. The new rule is more relaxed, allowing more improperly obtained evidence to be admitted if the breach was inadvertent. The prosecution now must prove beyond reasonable doubt that any constitutional breach was not deliberate or conscious, or that exceptional circumstances justify admission. Regulators using warrants must be aware of the refined test examining knowledge of investigators and officials involved in evidence gathering policies. There remains uncertainty around applying the new rule in practice.

1. Criminal Investigations and Evidence
Gathering after DPP v. JC
Brian Ormond | Associate
Public & Regulatory Law Department

2. Introduction to the Exclusionary Rule
• What is the rule?
– Rule to exclude unconstitutionally obtained evidence
• Why is it relevant to regulators?
– Regulators can get warrants when investigating
breaches
• What is the issue?
– Constitutional protection of the dwelling (Article 40.5)
– If warrant defective, entry not in accordance with the
law and is unconstitutional

3. Warrants in General
• Law Reform Commission Issues Paper on
Search Warrants (LRD IP 4-2014)
• Application Process
– Swear an Information
– Satisfaction as to necessity for warrant
• Scope for challenge

4. Invalidation of Warrants
• Incorrect address (O’Brien)
• Insufficient evidence in Information (Kenny)
• Wrong type of documents sought
(Competition Authority v. Dental Association)
• Warrant out of date (Curtin v. Dáil Éireann)
• Warrant granted by inappropriate person
(Damache)

5. Development of the Exclusionary Rule
• When to exclude evidence if obtained on foot
of an invalid warrant.
• O’Brien (1965), Kenny (1990) and JC (2015)
• O’Brien Test :
– Exclude evidence obtained as a result of a
deliberate and conscious violation of
constitutional rights unless there are
“extraordinary excusing circumstances”

6. Development of the Exclusionary Rule
• “Deliberate and Conscious”?
 Simply the actions in executing the warrant (exclude
evidence in more cases), or
 Knowing the invalidity and acting anyway (exclude
evidence in fewer cases)
– The People (DPP) v. Shaw (1982): relates to the
violation of the right – ie, being aware of the
breach and still proceeding.

7. Development of the Exclusionary Rule
• DPP v. Kenny (1990) (Supreme Court)
– Unconstitutional evidence must be excluded
unless the Court satisfied of extraordinary
excusing circumstances
– Knowledge of the breach is irrelevant - deliberate
and conscious means that the actions were not
accidental or unintentional.

8. The Decision in DPP v. JC
• Warrant obtained and executed before Damache
case decided.
• JC relied on Damache to argue unconstitutionality
- evidence excluded
• Appeal to Supreme Court – was DPP v. Kenny
correctly decided and if not, what is the
appropriate test?

9. The Decision in DPP v. JC
• 15 April 2015: Kenny no longer applies.
– Evidence admissible at trial where the prosecution
can prove that the breach was “inadvertent”.
– Knowing, reckless or grossly negligent breach of
constitutional rights will lead to exclusion, except
in exceptional circumstances.
– Deliberate and conscious: means knowledge of
unconstitutionality

10. The Decision in DPP v. JC
• New Test:
 If warrant challenged, prosecution must establish
 no unconstitutionality arose, or
 despite unconstitutionality, evidence is appropriate to be
admitted
 Prosecution to establish beyond reasonable doubt
 Evidence excluded if deliberate and conscious
violation of rights unless exceptional circumstances.
 Deliberate and conscious: knowledge of
unconstitutionality
 Assessment includes any senior official(s) involved in
evidence gathering policies

11. The Decision in DPP v. JC
 If not conscious or deliberate, presumption against
admission arises. If established that breach was
inadvertent or due to later legal developments,
admit the evidence.
 Evidence that could not have been constitutionally
obtained should be excluded, even if unaware of
absence of authority.
• Decision is balance between protection of
public and constitutional rights
• Refines “conscious and deliberate” test

12. The Decision in DPP v. JC
• Dissenting comments
– not just, fair or constitutional to permit a public
servant’s ignorance or incorrect application of the law
to allow breach of ordinary citizen’s constitutional
rights (Hardiman J).
– Kenny decision was neither to punish investigators or
benefit the accused – it was to vindicate the
constitution (Hardiman J).
– Will lead to lengthy admission arguments. Test only
on a case by case basis – little room for establishing
applicable precedence (McKechnie J).

13. Summary
• The key changes:
– Regulators who use warrants need to be aware of
the Rule
– The ‘new’ rule is more relaxed – more evidence is
likely to be admitted
– Detailed test to be satisfied by the prosecution to
a high standard
– Remains to be seen how application will work and
how many officers will be required to satisfy the
knowledge point

14. Conclusion
• Aim to avoid having to rely on the
Exclusionary Rule
– accuracy in warrant
– comprehensive Information is key
– compliance with warrant in execution

15. Brian Ormond
Associate, McDowell Purcell
E: bormond@mcdowellpurcell.ie
DD: 01 828 0695
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