Unlawfully Obtained

Unlawful v Unconstitutional

Where evidence is obtained illegally but not a breach of constitutional rights, the judge has discretion as to whether to exclude it.  In some cases, the legislation may provide specifically that the evidence is admissible or inadmissible.

In principle, evidence obtained unlawfully but not in breach of constitutional right may be admissible at the Judges distinction.  However, because the scope of constitutional rights has increased many unlawful breaches in the context of arrest, interview, access to lawyers, searching for evidence are likely to constitute a breach of constitutional rights.

Mere illegality, as opposed to breach of constitutional rights, may arise in the case of a warrant searching business premises as opposed to warrant searching a residence, the latter being subject to explicit constitutional protection.

The strictness of the rules has been criticised in some quarters.  In several cases, evidence has been excluded due to the technical invalidity of a warrant.  Some involved long-standing practices which were found to be technically defective.

The courts regularly admitted evidence that has been obtained in breach of the terms of the custody regulations.  This is specifically provided for in the regulations themselves.  The court may exercise discretion to exclude the evidence, if its admission may operate unfairly against the accused.

Evidence obtained in deliberate and conscious breach of constitutional rights must be excluded in the absence of extraordinary excusatory circumstances. An example of where evidence might be obtained in breach of constitutional rights is where a dwelling house is searched under an invalid warrant.

There have been different views as to what constitutes a deliberate and conscious breach.  The courts took different views as to whether the breach must be intentional or might be accidental.  Where the breach is due to official carelessness, it may be deemed a deliberate breach. In contrast, a genuine accident or omission or slip is not like to be deemed deliberate.

Excusing Circumstances

Unconstitutionally obtained evidence is admissible if there were extraordinary excusing circumstances, even if the breach is not inadvertent.  It has been held that attempts to rescue a victim in danger may justify what would otherwise constitute a breach.  The need to prevent evidence from destruction and the need to conduct a search without warrant incidental to arrest may suffice.  In a case where Gardai entered a house in hot pursuit of a person and there in discovered, evidence of stolen goods, the evidence was admissible.

Extraordinary excusatory circumstances may exist if

• there is a risk of destruction of important evidence.
• There is a risk to a victim in danger.
• there is a risk of harm to persons.
• if persons are caught and pursued red-handed and there is a danger to evidence.

Evidence obtained in breach of constitutional rights may include that obtained pursuant to an unlawful arrest; The Constitution prohibits detention other than in accordance with law.

Evolution of Law

In 1965 the Supreme Court famously held that evidence obtained in deliberate and conscious breach of constitutional rights of the accused shall be excluded save in very limited circumstances.

There was an exception where in good faith constitutional rights are not deliberately and consciously violated under the original rule.

The approach was interpreted in later cases in a different manner.  Initially, it was the violation of the constitutional rights and not the particular act in respect of which there had to be deliberate and conscious behaviour in order that the statement is excluded.

In 1990, the Supreme Court held that evidence obtained in breach of constitutional rights should be excluded other than in exceptional excusatory circumstances.  The rule in that case, an invalid warrant which was technically invalid and involved following customary practice was held invalid and evidence was excluded.  Two judges dissented.  However, the majority excluded the evidence.

25 years later, in 2015, the Supreme Court reversed this decision by four to three majority.  It allowed once again admissibility of evidence obtained in breach of constitutional rights where the breach was inadvertent.

Many of the cases on unlawfully obtained evidence relate to invalid search warrants.  Even before the 2015 Supreme Court case, minor errors in search warrants were not treated as a breach of constitutional rights.  Errors of a more serious type may invalidate the warrant and lead to the exclusion of the evidence.

JC v DDP April 2015, was an appeal by the DPP against a decision to exclude evidence.  The court held that the onus rests on the prosecution to establish the admissibility of all evidence.  Where admissibility of evidence is objected to on grounds of unconstitutionality, the prosecution must prove that the evidence was not gathered in circumstances of unconstitutionality or if it was, it remains appropriate for the court nonetheless to admit the evidence.

The prosecution must explain and justify the basis on which evidence should be admitted notwithstanding the circumstances of breach of constitutional rights.  Relevant facts must be proved beyond a reasonable doubt.  Where evidence is taken in deliberate and conscious violation of constitutional rights, it should be excluded except in exceptional circumstances.

In the existing case law, deliberate and conscious refers to knowledge of the unconstitutionality rather than the acts concerned.  The state of mind of the individual gathering the evidence and senior officials should be considered.

When the evidence is gathered in circumstances amounting to unconstitutionality, but the prosecution establishes that the same is not conscious and deliberate in that sense above, then a presumption against admission arises.  Evidence should be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or in accordance with the subsequent legal developments.

Evidence that is obtained or gathered in circumstances where the same could not have been constitutionally obtained or gathered should not be admitted even if those involved in gathering the evidence were unaware due to inadvertence of the absence of authority.

Modern Position

In 2015, the Supreme Court by a 4:3 majority overruled the absolute exclusionary rule in earlier cases.  Clarke J. set out the following test:-
“(i) The onus rests on the prosecution to establish the admissibility of all evidence. The test which follows is concerned with objections to the admissibility of evidence where the objection relates solely to the circumstances in which the evidence was gathered and does not concern the integrity or probative value of the evidence concerned.
(ii) Where objection is taken to the admissibility of evidence on the grounds that it was taken in circumstances of unconstitutionality, the onus remains on the prosecution to establish either:-
(a) that the evidence was not gathered in circumstances of unconstitutionality; or
(b) that, if it was, it remains appropriate for the Court to nonetheless admit the evidence.

The onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places on the prosecution an obligation to explain the basis on which it is said that the evidence should, nonetheless, be admitted AND ALSO to establish any facts necessary to justify such basis.
(iii) Any facts relied on by the prosecution to establish any of the matters referred to at (ii) must be established beyond reasonable doubt.
(iv) Where evidence is taken in deliberate and conscious violation of constitutional rights then the evidence should be excluded save in those exceptional circumstances considered in the existing jurisprudence. In this context deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned. The assessment as to whether evidence was taken in deliberate and conscious violation of constitutional rights requires an analysis of the conduct or state of mind not only of the individual who actually gathered the evidence concerned but also any other senior official or officials within the investigating or enforcement authority concerned who is involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned.
(v) Where evidence is taken in circumstances of unconstitutionality but where the prosecution establishes that same was not conscious and deliberate in the sense previously appearing, then a presumption against the admission of the relevant evidence arises. Such evidence should be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or derives from subsequent legal
developments.
(vi) Evidence which is obtained or gathered in circumstances where same could not have been constitutionally obtained or gathered should not be admitted even if those involved in the relevant evidence gathering were unaware due to inadvertence of the absence of authority.”

O’Donnell and MacMenamin JJ. agreed with the test proposed by Clarke J. O’Donnell J.

Arrest

The courts regularly admit evidence that has been obtained in breach of the terms of the custody regulations.  This is specifically provided for in the regulations themselves.  The court may exercise discretion to exclude the evidence, if its admission may operate unfairly against the accused.

An arrest can be undertaken without a warrant for arrestable offences and in many other cases and situations set out in statute.  Otherwise, a warrant for arrest is required.  The Gardai have broader powers or arrest than citizens. Where a citizen’s arrest is permitted the persons arrested must be brought to a Garda Síochána with reasonable expedition.  Failure to do so or failure to comply with the other strict conditions may render the arrest illegal.

Where a person has been arrested under one power, it is permissible even if he is also suspected of other offences, not covered by the power.  There must, however, be a genuine intention to pursue the offence in respect of which the arresting power exists.  If an arrest under one power is a sham, for the purpose of questioning under another power, the arrest may be unlawful.

Arrest & Constitutional Rights

Even if an arrest is lawful, a detention may become invalid and be in breach of constitutional rights if the requisite procedures are not followed.  Apart from detention for questioning powers, a person who is arrested must usually be brought before a court at the earliest opportunity.  If there is an excessive delay in doing so, the detention may become unlawful.

A person has a constitutional right of access to legal advisers.  If a person is refused access to a legal adviser, his detention may become unlawful.

Where evidence has been obtained in breach of principles of fundamental fairness, it may be excluded.  This is a constitutional right part of the right to fair procedures and a trial in due course of law .

The Custody Regulations require that the accused is allowed a right of access to legal advice and that the right be brought to his attention.  The right is one to reasonable access. There is no absolute right as such to have a solicitor present during questioning.

There’s a constitutional right to the inviolability of the dwelling house.  Generally, a warrant is required to search a dwelling house.  There is an exception if it is not possible to obtain a warrant in time and the Garda has observed the person entering the dwelling house and with reasonable cause suspects that he will have absconded before a warrant of arrest may be obtained, or with reasonable cause suspects that before a warrant could be obtained the person may commit an arrestable offence.

Confession

A statement that is adverse to a person’s interest is an admission.  Generally, it is admissible as evidence in civil and criminal cases, as an exception to the hearsay evidence rules.

A confession is an admission made to a person in authority.  This made be the Garda Síochána but includes others in an equivalent position relative to the accused.

A confession need not be in writing nor signed.  It can be proved verbally.  Confessions or admissions by third parties are generally not admissible as hearsay.  The confession by a co-accused is not generally admissible as against another co-accused.

A confession should if possible, be corroborated.  If it is not corroborated the judge should draw the jury’s attention to this fact.

Exclusion of Confessions

Confessions alleged to have been made are often challenged in a trial.  An involuntary confession is not admissible.  If the confession is made as a result of a threat, inducement, or oppression from somebody in authority, it would be involuntary.

A confession may be obtained on the basis of a promise or threat.  The threat may be made to the person concerned or may be directed to family members.  The threat or inducement must have caused the confession.  If it would have occurred otherwise, it is not deemed involuntary.

If a person is told or it is implied to him that if he makes a statement, that things will be all right or that he will be released, this may be held to be a threat or inducement. Once a threat or inducement is shown, it is a matter for the prosecution to show that it did not influence or cause the confession.

It does not matter if the threat is true or that it is to do something legitimate  If it objectively constitutes the threat or promise, then its effect may be to exclude the confession.

Oppression is a broader ground.  Oppression may apply where questioning by its nature, duration, or circumstance, excites hope or fears which affects the minds of the suspect and causes his will to crumble.  Oppression can cover a range of circumstances and not just questioning.

The application of severe psychological pressure may constitute oppression. In cases where persons have been deprived of sleep, subject to physical or psychological pressure or prolonged interrogation,  there may be deemed to be oppression.

Access to Legal Advice

Access to legal advice may in some contexts be a fundamental constitutional right, so that in some circumstances, a breach may exclude evidence.  The courts have held in a number of cases that there hadn’t been a deliberate and conscious breach where attempts have been made to contact legal advisers even if the attempts were not necessarily been very thoroughgoing.

Evidence will be generally excluded if it is obtained by reason of the breach of constitutional rights.  Accordingly, if a person’s solicitor is obstructed from attending and evidence is given of incriminating admissions, then the evidence may be excluded.  If however, they were made before the solicitor would have attended in any event, the causative link would be broken.

Warrants

A statutory power for Superintendents and higher ranked officers was interpreted by the courts to be strictly limited to circumstances of urgency and that the general principle was that a warrant should be issued by an external authority.  He must be satisfied on sworn information that there are reasonable grounds for the search.

Warrants issued by members of An Garda Síochána investigating team, who were not independent were held invalid with the consequent exclusion of evidence. Several convictions were overturned in the Court of Criminal Appeal because of the use of such warrants.

The Criminal Justice (Search Warrants) Act 2012 Act allows for a member of An Garda Síochána not below the rank of Superintendent to issue a warrant provided he is independent of the investigation.  He must be satisfied the warrant is necessary for the proper investigation of the offence and that circumstances of urgency render it impracticable to apply to a District Judge.  It is to be effective for 48 hours only.