High Court of Ireland Decisions

Judgment Title: Dpp [At Suit of Detective Garda Barry Walsh] -v- Cash

Neutral Citation: [2007] IEHC 108


High Court Record Number: 2005 1088 SS

Date of Delivery: 28 March 2007

Court: High Court

“(1) Every photograph (including a negative), fingerprint and palm print of a person taken in pursuance of the powers conferred by section 6 and every copy and record thereof shall, if not previously destroyed, be destroyed as this section directs.

(2) Where proceedings for an offence to which s. 4 applies are not instituted against the person within the period of six months from the date of the taking of the photograph or print and the failure to institute such proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction shall be carried out on the expiration of that period.”

9. The learned district judge indicated that she was of the opinion that she could admit the match between prints 3, taken in the Garda station, and prints 2, taken at the scene of the burglary. She was uncertain in that determination and therefore stated the following case for the opinion of the High Court:-

“Whether I was correct in determining, on foot of the evidence before me, that the prosecution evidence be admitted and that the accused had a case to answer, in reaching this decision:-

10. The basic rules for arresting people on suspicion of criminal offences is now set out in s. 4 of the Criminal Law Act, 1997. These mirror the old common law rules. An arrestable offence is one which carries a potential maximum term of at least five years imprisonment. A citizen may arrest without warrant anyone who, with reasonable cause he or she suspects to be in the act of committing an arrestable offence. Where an arrestable offence has, as a matter of fact, been committed, a citizen may arrest any one whom they reasonably suspect to have committed that offence. The powers of the gardaí exceed that. A member of An Garda Síochána may, with reasonable cause, arrest anyone whom they suspect of having committed an arrestable offence; provided they reasonably suspect that such offence has been committed. Section 6 of the Act allows for entry by a garda into a dwelling or other premises, for the purposes of the garda effecting an arrest. Section 30 of the Offences Against the State Act, 1939, as amended, allows a member of An Garda Síochána to arrest persons who are suspected to have committed, or to be committing, or to be about to commit, an offence scheduled under that Act, or who are suspected to have information on such an offence. This schedule includes a wide range of explosive and firearms offences as well as the offences created by the Act itself, as amended. A s. 30 arrest can lead to a detention of twenty-four hours, often extended to a forty-eight hour period of detention; or, exceptionally, that can be extended further by a judge. The ordinary arrest for an arrestable offence, outside the Offences Against the State Act, 1939, as amended, usually leads to a detention under s. 4 of the Criminal Justice Act, 1984. The period of detention therein, usually six hours, often extended to twelve hours, can be further extended under different Acts, including the Criminal Justice (Drug Trafficking) Act, 1996, s. 2. Although s. 30 of the Offences Act Against the State Act, 1939, as amended, does not, as does s. 4 of the Criminal Law Act, 1997 require reasonable cause, the application of reason is implied by law into all administrative decisions including those related to arrest and detention.
11. Reasonable cause for arrest equates with the concept of reasonable suspicion. In that regard, a reasonable suspicion is one founded on some ground which, if subsequently challenged, will show that the person arresting the suspect acted reasonably in suspecting them. A suspicion communicated by one garda to another can be sufficient to constitute a reasonable suspicion, provided there is sufficient particularity provided as to why that suspicion should be held; The People (D.P.P.) v. McCaffrey [1986] I.L.R.M. 687. Information offered by an informer who was adjudged reliable can be sufficient to ground an arrest; Lister v. Perryman [1870] LR 4 HL 521, The People (D.P.P.) v. Reddin and Butler [1995] 3 I.R. 560. In Canada, greater experience with the perils attendant on relying on informers has led to the application of detailed rules to this situation which are set out in R. v. Debot [1989] 2 S.C.R. 1140. The Supreme Court of Canada considered in that decision when it was proper to rely on the word of an informer in an arrest. In that case, a reliable informer had told the police that the appellant, together with two other people, was going to a meeting to complete an illegal drug deal. This information had been obtained by the informer in conversation with one of the persons who was to be party to the deal. Acting on the information, the constable felt that he had reasonable and probable grounds, the relevant test in Canada, to believe that the appellant, was mixed up in this affair, and had a drug on him. He proceeded with a search as authorized by the relevant criminal statute. The Supreme Court indicated that the police may take action on the word of an informer where certain minimum standards are met. These include whether the information is compelling; is sufficiently specific; is obtained from a reliable source; is based on a source that has real knowledge of the information; and may, to a degree, if time allows, be verified; see pp. 1143-1144. The idea of informers is worth mentioning in this context as, of their nature, they are either a participant in criminal activity or are closely associated with those who are. If an informer is acting as an agent of the State, any illegal actions can be ascribed to his or her police controller; yet, their evidence has never been blocked for that reason. Even less has it been rejected because information from a dubious source, as regards its legality, has been seen as corrupting an entire investigation. Nor has it been held, in this context, that a spy reporting from within a criminal organization is infringing anyone’s constitutional right to privacy.
12. It has never been held that what would be found a reasonable suspicion in law, requires to be based on the kind of evidence that would be admissible under the rules of evidence during the hearing of a criminal trial. On the contrary, a reasonable suspicion can be based on hearsay evidence or can be inferred from discovering that an alibi which a suspect has given to the police turns out to be false. In Hussein v. Chong Fook Kam [1970] AC 942 the issue of the parameters of what was a reasonable suspicion came up before the Privy Council in the context of the criminal code of Malaysia. A car was travelling home one night with five people in it when, on passing a lorry, a log fell from that vehicle on to the car. One passenger was killed and another was injured. The lorry did not stop. A registration number had been obtained which resulted in the arrest of the driver and passenger of the lorry. On questioning, they denied they had driven past the place where the accident had occurred. The Privy Council explained that reasonable suspicion should not be equated with prima facie proof, as that concept is understood in the law of evidence. The police force was entitled to act on a lessor standard of reasonable cause, or reasonable suspicion. Lord Devlin offered the following analysis, which I would follow:-

“The test of reasonable suspicion prescribed by the Code is one that has existed in the common law for many years. The law is thus stated in Bullen and Leake, 3rd ed. (1868), p. 795, the "golden" edition of (1868):
“A constable is justified in arresting a person without a warrant, upon a reasonable suspicion of a felony having been committed and of the person being guilty of it”.
Their Lordships have not found any English authority in which reasonable suspicion has been equated with prima facie proof. In Dumbell v. Roberts [1944] 1 All E.R. 326, Scott L.J. said, at p. 329:
“The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called upon before acting to have anything like a prima facie case for conviction; …”.
There is another distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. There is a discussion about the relevance of previous convictions in the judgment of Lord Wright in McArdle v. Egan (1934) 150 L.T. 412. Suspicion can take into account also matters which, though admissible, could not form part of a prima facie case. Thus the fact that the accused has given a false alibi does not obviate the need for prima facie proof of his presence at the scene of the crime; it will become of considerable importance in the trial when such proof as there is is being weighed perhaps against a second alibi; it would undoubtedly be a very suspicious circumstance.”

“The judicial rules of evidence were never meant to be an indirect process of punishment. It is not only anonmolous to distort them to that end but it is improper (in the absence of express statute) to enlarge the fixed penalty of the law that of fine or imprisonment, by adding to it the fortfeiture of some civil right through loss of the means of proving it. The illegality is by no means condoned; it is merely ignored. For those reasons it has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been unable to obtain the evidence.”

“We have no Irish authorities to bind or guide us, and are free to consider the question from the point of view of principle. I take the view that the Courts should not confuse the purposes of substantive and adjective law. Substantive law regulates legal rights and determines what acts amounts to infringements. For any such infringement it provides a remedy. It determines what wrongful acts are to be dealt with and punished as crimes. The law of evidence is adjective law and confirms the rules which govern as a procedure of the Courts as to matters of proof and as to what evidence may be accepted or rejected. It is obviously inappropriate for the purpose of remedying civil wrongs or punishing criminal offences; and since it cannot deal with these matters properly, it should not allow them to affect its application. One must recognise a material disinclination to accept evidence which has been illegally procured. In sporting parlance, it is somewhat like allowing a goal or a try scored from an off-side position. The adminsitration of the law is, however, not a game. Accomplices and informers obtain the evidence which they are able to give as a result of participation in the offence with which the accused, against whom they give evidence, is charged; yet this does not affect the admissibility of this evidence. A person who is arrested upon an illegal warrant and brought before the court for trial may have very good reason to feel aggrieved, and to complain of the procedure, but the illegality of the process does not necessarialy affect the jurisdiction of the Court to try him… When a Court admits evidence which has been illegally obtained it does not excuse, condone or encourage the illegality; it merely ignores it. Its ruling in no way affects the right of the injured person to sue, or the right of the State to prosecute. If the illegality is deliberate the intention of a proper authorities should be directed to it; if this should prove ineffective there are surely means available, in a democratic country, for bringing proper pressure to bear upon such authority to take suitable action. I do not suggest that a judge, if in the course of trying a case he becomes aware of an offence or irregularity commited by, say, a police or prison officer, should be completely unconcerned as to whether the matter is properly dealt with. I do take the view that he should not try to deal with it indirectly by what I conceive to be a mis-use of the law of evidence.”

“It is desirable in the public interest that crime should be detected and punished. It is desirable that individuals should not be subjected to illegal or inquisitorial methods of investigation and that the State should not attempt to advance its ends by utilising the fruits of such methods. It appears to me that in every case a determination has to be made by the trial judge as to whether the public interest is best served by the admission or by the exclusion of evidence of facts ascertained as a result of, and by means of, illegal actions, and that the answer to the question depends on a consideration of all the circumstances. On the one hand, the nature and extent of the illegality have to be taken into account. Was the illegal action intentional or unintentional, and, if intentional, was it the result of an ad hoc decision or does it represent a settled or deliberate policy? Was the illegality one of a trivial and technical nature or was it a serious invasion of important rights the recurrence of which would involve a real danger to necessary freedoms? Were there circumstances of urgency or emergency which provide some excuse for the action? Lord Goddard in Kuruma’s Case mentions as a ground for excluding relevant evidence that it had been obtained by a “trick” and the Lord Justice-General in Lawrie’s Case refers to an “unfair trick”. These seem to me to be more dubious grounds for exclusion. The police in the investigation of crime are not bound to show their hand too openly, provided they act legally. I am disposed to lay emphasis not so much on alleged fairness to the accused as on the public interest that the law should be observed even in the investigation of crime. The nature of the crime which is being investigated may also have to be taken into account. Mr. McCarthy has called our attention to a decision of the Appeal Court of California, People v. Cahan , a prosecution for a gambling offence where microphones had been illegally concealed on private property and it was sought to give in evidence conversations overheard by this means. The Court, by a narrow majority applying the strict rule of exclusion, refused to admit the evidence. The case of Silverman v. U.S., already mentioned, where this same rule was applied, was also a gambling prosecution. I can, however, conceive that if a discretionary rule were applicable a judge might take a different review if the conversation revealed a conspiracy to murder or the activities of a narcotic organisation.
It would not in be in accordance with our system of jurisprudence for this Court to attempt to lay down rules to govern future hypothetical cases. We can do no more than decide the case now before us, and to lay down that, in future cases, the presiding judge has discretion to exclude evidence of facts ascertained by illegal means where it appears to him that public policy, based on a balancing of public interests, requires such exclusion. If he decides to admit the evidence an appeal against his decision should lie to a superior Court which will decide the question according to its own views and will not be bound to affirm the decision of the trial judge if it disagrees with the manner in which the discretion has been exercised, even if it does not appear that such discretion was exercised on wrong principles. The result of such decisions, based on the facts of its individual cases, may in time give rise to more precise rules.”

“I have already referred, in the earlier part of this judgment to what are sometimes, regrettably, the competing interests of the trial and conviction of criminals and the frustration of police illegalities. When the illegality amounts to infringement of a constitutional right the matter assumes a far greater importance than is the case where the illegality does not amount to such infringement. The vindication and the protection of constitutional rights is a fundamental matter for all the Courts established under the Constitution. That duty cannot yield place to any other competing interest. In Article 40 of the Constitution, the State has undertaken to defend and vindicate the inviolability of the dwelling of every citizen. The defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence. The Courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious violation of the constitutional rights of accused person where no extraordinary excusing circumstances exist, such as in the imminent destruction of vital evidence or the need to rescue a victim in peril. A suspect has no constitutional right to destroy or depose of evidence or to imperil the victim. I would also place in the excusable category evidence by a search incidental to and contemporaneous with a lawful arrest although made without a valid search warrant.
In my view evidence obtained in deliberate conscious breach of the constitutional rights of an accused person should, save in the excusable circumstances outlined above, be absolutely inadmissible. It follows therefore that evidence obtained without a deliberate and conscious violation of the accused’s constitutional rights is not excludable by reason only of the violation of his constitutional right.
In the present case it is abundantly clear from the evidence that it was through an error that the wrong address appeared on the search warrant and that the searching officers were unaware of the error. There was no deliberate or conscious violation of the right of the appellants against arbitrary intrusion by the Garda officers. The evidence obtained by reason of this search is not inadmissible upon the constitutional ground.”

“In the view of this Court to adopt that approach is to misunderstand the decision in O'Brien's case and, accordingly, to err in law. What was done or permitted by Inspector Butler and his colleagues may have been done or permitted for the best of motives and in the interests of the due investigation of the crime. However, it was done or permitted without regard to the right to liberty guaranteed to this defendant by Article 40 of the Constitution and to the State's obligation under that Article to defend and vindicate that right. This lack of regard for, and failure to vindicate, the defendant's constitutional right to liberty may not have induced or brought about the making of this statement, but it was the dominating circumstance surrounding its making. In the view of this Court this fact cannot be ignored”.

“The warrant being defective, because of the defective information, the entry into and search of the premises was unlawful. It is argued, further, that it was in breach of a constitutional right; if it was, such was not the right of the applicant but of the tenant of the flat in question and persons residing with him. On his own evidence, the applicant was not the tenant but had been asked by Noel Foy, “the owner of 60” to wait there for his, the applicant’s brother. The arrest there carried out of the applicant was an interference with his constitutional right to personal freedom, but no illegality attached to it; the Court is not satisfied that there was any breach of the constitutional rights of the applicant. Even if, however, there were such a breach in respect of inviolability of the home, or personal liberty, the Court is satisfied that there was no conscious violation of any constitutional right of the applicant. The act of Detective Sergeant O’Malley and his colleagues in entering the premises was, of course, a deliberate act. The omission of the necessary statutory foundation for the issue of the search warrant was a pure oversight; there was no evidence of deliberate deceit or illegality, no policy to disregard the provisions of the Constitution or to conduct searches without a warrant (see the observations of Kingsmill Moore J. at 161 in O’Brien’s case even if there was deliberate and conscious violation of the constitutional rights of an accused person, in the instant case there are “extraordinary excusing circumstances” - the need to prevent the destruction of imminent vital evidence. (See observations of Walsh J. at 170 in O’Brien’s case cited with approval by Kingsmill Moore J. at 162).
It is true that in this case the learned trial judge did not reach the stage of exercising a discretion to overlook a illegality or, fortiori, the conscious breach of constitutional rights, but the Court is satisfied that if he had done so, his discretion could only have been exercised one way, to admit the evidence.”

“Insofar as there was any fault leading to the invalidity of the warrant that fault must rest rather with the peace commissioner who is interposed between the garda authorities and the citizen to see that the citizen's dwelling is not entered without due cause and on whom s. 26 of the Act of 1977 imposes the duty of satisfying himself by proper evidence that there is due cause for such entry on the citizen's dwelling. The peace commissioner is independent of the gardaí and if not satisfied by proper evidence he must refuse the warrant unless and until he becomes so satisfied by additional evidence.
Of course the gardai contributed to the error by adopting a form of information which was in fact inadequate but which had for many years been accepted by both District Justices and peace commissioners as adequate. To suggest that the gardai deliberately withheld evidence of facts in their possession from the peace commissioner is to suggest that they deliberately imperilled the strength of their own case against the appellant without any reason whatever especially as the evidence in the trial demonstrates that if the peace commissioner had asked for evidence of facts there would have been no difficulty in furnishing him with such evidence so as to lead to the valid issue of the warrant which was in fact invalidly issued.
The adoption of such an inadequate form of information by the gardaí is a far cry from a deliberate intention to violate the appellant's constitutional rights in relation to his dwelling and neither did it lead to any form of unfairness in the investigation or the trial.
The inviolability of the citizen's dwelling must be upheld but this does not mean that evidence obtained in breach of it must always be rejected however relevant it may be to the case at hearing. It must be rejected if there is any element of blame or culpability or unfairness (including any such element to be inferred by the reasonable application of the doctrine "ignorantia juris haud excusat ") in relation to the breach of the right on the part of those who obtained the evidence unless there are adequate excusing circumstances. In all cases heretofore, where evidence has been rejected, including the recent case of The People (Director of Public Prosecution) v. Healy [1990] 2 I.R. 73 there was manifest a deliberate disregard of the accused's rights. Not only did the gardaí deliberately do the acts complained of, but they did them knowing that they contravened the accused's legal, if not his constitutional, rights. I take the view that if the garda deliberately do acts which they know or ought to know contravene the accused's legal rights, but not his constitutional rights, and if the rights are thereafter held to be constitutional rights, the exclusionary rule should apply, but there must be some such element of blame or culpability or unfairness to bring the exclusionary rule into operation. If there is no such element of blame or culpability or unfairness in relation to the breach of the constitutional right on the part of those who obtained the evidence then the evidence should be admitted and no question of excusing circumstances arises.
In my opinion The People (Attorney General) v. O'Brien [1965] I.R. 142 is on all fours with this case and I follow it. I also follow the majority judgment in The People v. Shaw [1982] I.R. 1 which emphasises the importance of fairness or unfairness in the admissibility or inadmissibility of the evidence.

The constitutional rights with which all these cases are concerned are personal rights, being either the right to liberty: Walsh's case; Madden's case; Shaw's case, or the inviolability of the dwelling: O'Brien's case and the instant case.
The duty of the Court pursuant to Article 40, s. 3, sub-s. 1 of the Constitution is as far as practicable to defend and vindicate such rights.
As between two alternative rules or principles governing the exclusion of evidence obtained as a result of the invasion of the personal rights of a citizen, the Court has, it seems to me, an obligation to choose the principle which is likely to provide a stronger and more effective defence and vindication of the right concerned.
To exclude only evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from acting in a manner which he knows is unconstitutional or from acting in a manner reckless as to whether his conduct is or is not unconstitutional.
To apply, on the other hand, the absolute protection rule of exclusion whilst providing also that negative deterrent, incorporates as well a positive encouragement to those in authority over the crime prevention 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 such rights.
It seems to me to be an inescapable conclusion that a principle of exclusion which contains both negative and positive force is likely to protect constitutional rights in more instances than is a principle with negative consequences only.
The exclusion of evidence on the basis that it results from unconstitutional conduct, like every other exclusionary rule, suffers from the marked disadvantage that it constitutes a potential limitation of the capacity of the courts to arrive at the truth and so most effectively to administer justice.
I appreciate the anomalies which may occur by reason of the application of the absolute protection rule to criminal cases.
The detection of crime and the conviction of guilty persons, no matter how important they may be in relation to the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional obligation "as far as practicable to defend and vindicate the personal rights of the citizen.
After very careful consideration I conclude that I must differ from the view of the majority of this Court expressed in the judgment of Griffin J. in The People v. Shaw [1982] I.R. 1. I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its (the court's) discretion”.

“It seems to us that the decision to operate entirely outside the terms of the statute would be a grave difficulty in the way of the State’s relying on extraordinary excusing circumstances. Counsel for the Director of Public Prosecutions asked rhetorically – “even if the statute were breached, what was the Inspector to do? Ignore the ringing telephone?” Forceful though these questions are, they do not address the decision to operate with any regard at all for the statute and the rights protected by it. The issue underlying these questions may point to a lacuna in the statute that this is not one which the court can fill.”

“The person who submits to having his finger-prints taken undergoes no test and brings no evidence into being. The evidence already exists upon his fingertips. There is nothing subjective involved, the process is purely mechanical, and his reactions are immaterial and cannot affect the matter in any way.

“I now turn to consider the alternative submission which is to the effect that the fingerprint evidence ought to have been excluded because the appellant was neither cautioned nor informed that he was not obliged to submit to having his fingerprints taken. It will be recalled that at Store Street the appellant had been informed of the reason for his arrest and had been cautioned. Some short time afterwards the appellant was told by the sergeant that he, the sergeant, proposed taking the appellant’s fingerprints and he was asked if he had any objection. Not only did the appellant not state any objection but he later acknowledged in writing that the prints had been taken with his consent. There was ample evidence to indicate that the fingerprinting was done with the consent of the appellant. However, the submission is that this is not enough. It is submitted that a warning or caution was required so that the appellant would know that he was not obliged to submit or consent and that he was entitled to refuse. I do not accept this submission.
The purpose of a caution in relation to a confession or a statement is to ensure that what is said or written is said or written voluntarily. An involuntary confession or statement, given out of fear or induced by hope, is tainted evidence of a quality not acceptable in our Courts. It is not so with a fingerprint. A fingerprint does not change. Whether the person concerned submits voluntarily to having his print taken or whether he fiercely objects and resists makes no difference to the probative value of the evidence obtained. His fingerprint remains the same and indicates always the same association or disassociation with the crime under investigation, irrespective of the circumstances under which it is obtained. Therefore, I cannot see why the administering of a caution, or anything resembling a caution, should be a necessary preliminary to the admissibility of fingerprint evidence. I think the correct view of the law in this respect was taken by the High Court in The People (Attorney General) v. McGrath: see the judgments of Davitt P. at p. 70 and of McLaughlin J. at p. 76 of the report of that case. What a court ought to be concerned about is whether the evidence sought to be admitted was or was not taken by illegal means. If illegal means were used (assuming these to fall short of a breach of constitutional rights), the trial judge would have to consider whether in the particular circumstances the public interest was best served by the admission or the rejection of such evidence: see the judgment of Kingsmill Moore J. at p. 160 of the report of The People (Attorney General) v. O’Brien.”

“The Commission recommends that, as at present, where DNA evidence is obtained illegally, but not in breach of a person’s constitutional rights, the trial judge shall be empowered to determine as a matter of discretion, whether to admit it in evidence.”

“It is clear that a distinction is drawn between, on the one hand, the taking or securing of evidence, such as fingerprints or blood, and the procuring of confessions or admissions made by an accused on the other hand. The latter will most likely be subject to exclusion orders in the course of a trial, even if short of illegality, where there has been some conduct of which the prosecution ought not to be permitted to take advantage, such as a trick or a ruse, but the former, which do not change in nature depending on whether they have been procured voluntarily or involuntarily, have been admitted with their full probative value, even where they have been secured by some ruse or trickery, which the learned trial Judge properly found not to have been the case here.”

“It has long been the case that the prosecution are entitled to introduce such forensic evidence obtained from a person in custody at a trial provided it was obtained voluntarily and with the full consent of the person in custody. Provided consent is fully and voluntarily given and the person in custody is a full age and not otherwise suffering from any legal or other incapacity, they may give a forensic sample, including in response to a garda request, and the gardaí may take it or receive it. That is an essential part of the evidence gathering aspect of a criminal investigation provided it is done within the ambit of the law but it has not always been and is not necessarily dependent, as such, on the existence of express statutory powers to collect such voluntarily provided forensic evidence. In short, it is not unlawful to take voluntarily provided forensic samples from persons in custody… The court can find nothing in the Act which suggests that the Oireachtas intended to abolish the existing and valuable faculty of the gardaí to obtain or receive from persons in custody forensic samples that are voluntarily provided by such persons. It would indeed be extraordinary if the Oireachtas contemplated that any sample freely and voluntarily provided by a person in custody and then forensically examined by the gardaí which was lawful before the passing of the Act should be considered unlawful after the passing of the Act without any express provision to that effect, even though it was provided without any element of coercion and when the consequences of the refusal were nil from the point of view of an accused. The Act creates a distinct statutory regime fundamentally different in nature and consequences from the gathering of evidence under common-law rules or powers and does not the effect of abolishing the right or faculty of the gardaí to take or accept forensic samples from persons in custody that are voluntarily provided. It is an extension of the law rather than abrogation of the existing law. Although the learned trial judge decided that the provisions of the Act of 1990 did not apply to the circumstances of this case from a different legal perspective, the end result is the same. Since the Act does not apply and the blood sample was provided voluntarily he was bound to admit the relevant evidence.”

“It is not the applicant’s interests only which have to be considered. It is necessary to balance the applicant’s right to reasonable expedition in the prosecution of the offences with the community’s right to have criminal offences prosecuted. The community’s right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due process. If there is a real risk that the applicant would not receive a fair trial then, on the balance of these constitutional rights, the applicant’s right would prevail see D. v. Director of Public Prosecutions [1994] 2 I.R. 465 at pp. 473 and 4; Z. v. Director of Public Prosecutions [1994] 2 I.R. 476 at p. 506.”

“The Constitution places upon the courts the obligation to enforce the protection given to the family and family life by the Constitution itself. That must necessarily include an obligation to enforce these protective provisions even against members of the family who are guilty or alleged to be guilty of injuries to members of the family.
It would be difficult to consider or to imagine any matter which would be more subversive of family life than sexual offences committed against his child by a spouse of the nature alleged in the present case particularly when the child in question is less than fully normal. It is obviously the duty of one spouse to protect the child or children against the other in cases of such abuse, and it would completely frustrate the obligation placed upon the State to protect the family if the very person upon whom the obligation is said to rest should be prevented or inhibited from testifying in a prosecution against the offending spouse. This is particularly so in the circumstances where a spouse whose testimony it is sought to introduce is a vital witness. Insofar as the justification sought for the existence of the rule is the prevention of family dissension, it can quite clearly have no validity in a situation where the application of the rule is so far from preventing dissension, is assisting in concealing in effect, and thus permitting to go unpunished, a serious offence committed upon members of the family by other members of the family, particularly sexual offences by a father upon his own daughter. In view of the sense of obligation placed upon this Court to assist insofar as it can in the protection of the family the Court must take the view that the maintenance of the common law rule relied on in this case would be a failure to comply with the obligations imposed by the Constitution. This is all the more so in cases of assault upon the children of the family by the parents. Such a case should not be more hampered in its proof by the existence or the enforcement of the rule than in the case of an assault by the husband upon the wife.”

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and impartial hearing within a reasonable time by an independent and impartial Tribunal established by law. Judgment shall be pronounced publicly by the press and the public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of private life of the party so require or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

“Counsel for the respondent was further compelled to concede that the construction adopted by the Court of Appeal leads to absurd consequences. Counsel for the Attorney General gave the following illustration. The police receive information from a forensic laboratory that X appears to have been responsible for a number of serial murders. The source of the information is derived from a sample which ought to have been destroyed pursuant to
s. 64(1) of PACE. The police can do nothing until a further crime is committed. Even a consequential confession by X or discovery of the murder weapon in the house of X could not be used. But one does not have to resort to hypothetical examples: on the interpretation of the judge and the Court of Appeal the case involving evidence of a very serious rape could never reach the jury and in Weir [Unreported, Court of Appeal, 26th May, 2000] a conviction for a brutal murder was quashed on the ground that the DNA evidence should not have been placed before the jury.”

“It must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family and the public. In my view the austere interpretation which the Court of Appeal adopted is not only in conflict with the plain words of the statute but also produces results which are contrary to good sense. A consideration of the public interest reinforces the interpretation which I have adopted.”

“It may be worth adding that just as in European Convention. law, as Lord Steyn has pointed out, there is no principle that unlawfully obtained evidence is not admissible, so there is no such general principle in Commonwealth countries. Approaches differ somewhat among the jurisdictions. Thus in Canada evidence obtained in breach of the Charter will be excluded if its admission is likely to bring the administration of justice into disrepute (R. v. Collins [1987] 1 SCR 265); in Australia the leading cases recognise a judicial discretion in which the competing demands of the public interest in the prevention and punishment of crime, on the one hand and fairness to the accused, on the other, have to be weighed (Bunning v. Cross (1978) 141 CLR 54; Ridgway v. The Queen (1995) 184 CLR 19); and in New Zealand, while it has long been held that the judicial discretion to exclude unfairly obtained evidence is wider than that recognised in England at common law in R. v. Sang [1980] AC 402 and Kuruma v. The Queen [1995] A.C. 197, a line of cases has treated evidence obtained in breach of the semi-constitutional provisions of the Bill of Rights as prima facie inadmissible but subject to exceptions created by the overriding demands of justice (Howden v. Ministry of Transport [1987] 2 NZLR 747; R. v. Grayson and Taylor [1997] 1 N.Z.L.R 399.”

“In Stone v. Powell, [428 U.s. 465 (1976)] the Supreme Court emphasised the high costs of enforcing the rule to exclude reliable and trustworthy evidence, even when violations had been technical or in good faith. It suggested that such use of the rule might well generate disrespect for the law and the administration of justice:
‘Particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system.’ (page 490).
United States Courts have accordingly to some extent in recent decades backed away from a very strict application of the rule although it still holds sway generally. It is established that evidence obtained following a wrongful search and seizure may be able to be used in a criminal trial if the prosecution has shown sufficient attenuation of the link between police misconduct and the obtaining of the evidence; there is no “but for” rule (Brown v. Illinois 422 US 590 (1975); Wong Sun v. United States 371 US 471 (1963)). In deciding whether exclusion is appropriate in a particular case the Supreme Court has applied a “dissipation of the taint” concept. This expression, first used by Frankfurter J. in Nardone v. United States 308 US 338 (1939), “attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.” (Browne and Illinois at p.609).

“Exclusion will often be the only appropriate response where a serious breach has been committed deliberately or in reckless disregard of the accused’s rights or where the police conduct in relation to that breach has been grossly careless. A system of justice which readily condones such conduct on the part of law enforcement officers will not command the respect of the community. A guilty verdict based on evidence obtained in this manner may lack moral authority. Society’s longer term interests will be better served by ruling out such evidence. We would not, however, subscribe to the Irish view of what constitutes deliberate breach, but would confine it to acts or omissions which are to the knowledge of the officers concerned a breach of rights. An action not known to be a breach of rights does not merit the same degree of condemnation as one which is known to be so, particularly if the police error arose from a genuine misunderstanding of a difficult legal complication.”

“8. Everyone has the right to be secure against unreasonable search or seizure.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may applied to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

“There is much force in these arguments, although the last of them is of greater relevance to a deterrence-centred regime. But a balancing test in which, as a starting point, appropriate and significant weight is given to the fact that there has been a breach of a quasi-constitutional right, can accommodate and meet them. Importantly, a prima facie rule does not have the appearance of adequately addressing the interest of the community that those who are guilty of serious crimes should not go unpunished. That societal interest, in which any victim’s interest is subsumed, rather than being treated as a separate interest, will not normally outweigh an egregious breach of rights – particularly one which is deliberate or reckless on the part of law enforcement officers. But where the disputed evidence is strongly probative of guilt of a serious crime, that factor too must be given due weight. A system of justice will not command the respect of the community if each and every substantial breach of an accused’s rights leads almost inevitably to the exclusion of crucial evidence which is reliable and probative of a serious crime. The vindication will properly be seen as unbalanced and disproportionate to the circumstances of the breach. Nor does a presumptive rule seem entirely consistent with the concept of a specific tailoring of remedies to the circumstances of the particular case which this Court favoured in Simpson v. Attorney-General [Baigent’s Case] [1994] 3 NZLR 667.
A careful consideration of the experience in this country and the other broadly comparable jurisdictions is persuasive that the proper approach is to conduct a balancing exercise in which the fact that there has been a breach of the accused’s guaranteed right is a very important but not necessarily determinative factor. The breach of a right would be given considerable weight (the Privy Council in Mohammed called it a “cogent factor militating in favour of exclusion”). But it might, in the end, be held to be outweighed by the accumulation of other factors. In such a case, the conscientious carrying out of the balancing exercise will at least demonstrate that the right has been taken seriously.”

“1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
2. The powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”

It is the function of a judge in his charge to give to the jury such direction and warnings as may in his opinion be necessary to avoid the danger of an innocent man being convicted, and the nature of such directions and warnings must depend on the facts of the particular case. But, apart from the directions and warnings suggested by the facts of an individual case, judicial experience has shown that certain general directions and warnings are necessary in every case and that particular types of warnings are necessary in particular types of case.
Such accumulated judicial experience eventually tends to crystallise into established rules of judicial practice, accepted rules of law and statutory provisions. Thus the general directions which must be given in every case as to the onus of proof and the necessity of establishing guilt beyond reasonable doubt have arisen from experience of the fallibility of human testimony in general, whether due to mendacity, imperfect observation, auto-suggestion or other causes. The suggestibility and lack of responsibility of children of tender age find recognition in the statutory provision that their unsworn evidence shall not be sufficient to convict of an offence, unless corroborated by other material evidence implicating the accused, and even when such evidence is received under oath it is customary for judges to tell juries that they should not convict unless they have weighed the evidence with the most extreme care. Similarly the opportunities for giving false evidence afforded to an accomplice and to a person who alleges that a sexual offence has been committed against him or her, coupled with the extreme temptation to give false evidence frequently present in such cases, have given rise to the rule that a judge must warn the jury that it is always dangerous to convict on the evidence of such persons unless it is corroborated in some material particular implicating the accused.
The category of circumstances and special types of case which call for special directions and warnings from the trial judge cannot be considered as closed. Increased judicial experience, and indeed further psychological research, may extend it. It is submitted by Mr. Sorahan, counsel for the prisoner, that the time has come for such an extension, that accumulated experience has demonstrated the necessity for warning a jury as to the mistakes which can be made, and which have been made, in the identification by witnesses of persons accused and, in particular, that a jury should be told that an identification parade, though the best available method of confirming identification, is very far from infallible.