THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor/Appellant
Accused/Respondent
JUDGMENT of Mr. Justice Hardiman delivered the 15th day of April, 2015.
INTRODUCTION
There is hardly a country in the world today which does not boast some form of Constitution, Charter, Bill of Rights or similar document which announces, and promises to respect the Civil and Human Rights of the citizens. But for the great majority of the world’s citizens, those plangent words are of no practical use at all. This is because, though according them verbal respect, most of the world’s courts will not actually enforce the rights which are guaranteed. In particular, they are reluctant to enforce them against their own country’s force publique. I use this phrase to signify not only the police force but the army, the tax collectors, the customs and revenue officials and the whole body of public officials who are vested with coercive and compulsory powers over ordinary citizens, their property, including their homes, their records and papers, their money and monies worth and other aspects of their lives. Even in the area occupied by States who are members of the Council of Europe, the records of the European Courts of Human Rights shows all too clearly that there are States whose courts are unable or unwilling to provide an actual solution to the difficulties of real people who are prejudiced by the unlawful acts of the force publique in the relevant country. Such people are left to seek a remedy in Strasbourg years later.
For many years Ireland was to be ranked amongst those countries, a minority in the world as a whole, whose courts really, and not merely theoretically, took the constitutional rights of its citizens seriously and ensured that they would be enforced immediately and without qualification, as Mr. Justice McCarthy put it in a passage quoted below, even against the force publique. This in turn was because, in the words of Chief Justice Ó Dálaigh:
“… it is not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of those rights”.
I am gravely apprehensive that the majority decision in this case, overruling the case of Kenny, one of the monuments of Irish constitutional jurisprudence, is a major step in the disengagement of this Court from the rights-oriented jurisprudence of our predecessors.
In Parts I, V and VI of my judgment I endeavour to illustrate the importance of Kenny and the reasons why I fundamentally dissent from its being cut down.
Perhaps even more importantly, I deprecate the manner in which this is done and I see in it the threat of further disengagement from the rights established in earlier decisions of this Court. I try to explain this in Parts II and III of the judgment.
The State have suggested, albeit very obliquely, that protections of the citizens such as those contained in Kenny are perhaps no longer necessary because of developments since 1990. I consider that this is entirely fallacious and have endeavoured in Part IV to give some examples of the serious causes for concern which presently exist, including the finding by a former President of the High Court that “proper discipline has been lost from An Garda Síochána”.
The rights of the ordinary citizen depend in the first place on the Government’s - successive Governments - being rooted in a tradition of legality and lacking any positive desire to cut down the citizens rights. We in Ireland have been fortunate in enjoying several generations of governance which shares this tradition of legality and respect for civil rights. If, almost impossible to imagine, a government were to come about which was not rooted in the tradition of legality then the writing down of the rights of the citizen which I believe this judgment represents would be all the more hazardous. Judicial care for the rights of the citizen must always take into account what Chief Justice Ó Dálaigh called the contingencies of an “improbable but not to be overlooked future”.
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The Director of Public Prosecutions charged Mr. J.C. with certain offences. On the 18th July, 2012 she brought him to trial for these offences in Waterford Circuit Criminal Court.
On the following day, 19th July, 2012, Mr. J.C. was acquitted of all of these charges. The prosecution dropped its case after a legal ruling by the learned trial judge, Her Honour Judge Mary Ellen Ring, S.C. The reasons why the learned trial judge so ruled are set out, in her own words, from the official transcript, at par. 50 of this judgment. This ruling is admitted to have been correct in law.
Nonetheless, the Director now purports to appeal to this Court against the acquittal of Mr. J.C., allegedly in pursuance of s.23 of the Criminal Procedure Act, 2010. I do not accept that this appeal lies, for the reasons set out in s.II of this judgment. The general background, legal and factual, is set out in Part I, and the important legal issues are surveyed there.
The prosecutor wishes to change the law by this appeal and then to retry Mr. C. in the new state of the law. I do not believe that this would be possible in any other State in the world. It would represent a total negation of the fundamental legal values which apply in Ireland up to the present day, and which have applied for centuries, as will be seen in Part II of this judgment.
Even apart from the foregoing, which itself represents a baneful change in the established constitutional jurisprudence of Ireland, this is profoundly saddening development as far as I am concerned. I discuss two especially threatening aspects of it in the following paragraphs. But before turning to them I wish to make it clear that the manner in which the State have suggested that the Court has jurisdiction in this matter is just as depressing, and just as saddening. It is, if possible, still more threatening for the future because it is based on a mode of construction of a statute - s.23 of the Criminal Procedure Act, 2010 - which is at variance with the ordinary meaning of the English language which, if more widely adopted, would mean that words have no specific meaning and therefore that rights, which are expressed in words, can be reduced to meaningless, to mere words on a page without any practical consequences. The State’s submissions in this regard were based on a sort of Orwellian dissonance which I cannot too strongly deplore. This most unfortunate aspect of the present case is dealt with below, at the end of Part II of the judgment.
I object as strongly as I can to two aspects, in particular, of the proposed result of this case. The first is that it would permit a retrial for the same offence after a lawful acquittal on a trial for that self-same offence, and after the law itself had been changed by this Court to the advantage of the prosecution and the gross disadvantage of the defendant. If this is deemed permissible Ireland will, as far as I can see, be unique in the world in permitting it. It does not at all mitigate this concern that this Court may not actually order a retrial in the particular case of Mr. J.C.: a Rubicon has been crossed and the nature of a trial with “due course of law” has been altered for the immediate future and perhaps forever.
The State strongly submitted on the hearing of this appeal that the Court should proceed first to resolve the issue of whether Judge Ring “erroneously” excluded evidence and only if that were so should proceed to a separate hearing on the question of whether or not there should be a retrial. This submission was based on tactical grounds. If no retrial is directed, the acquittal must be affirmed, see s.23(ii)(b). This appears to be agreed by the majority.
Since I consider that this appeal is incompetent and does not lie (because it can “only” be entertained if there has been error by the trial judge and here there was no error by the Judge Ring) it follows that there can be no question of a retrial. Accordingly, I have felt free to express the opinion, in this judgment, which is obviously obiter, that a retrial in the circumstances of this case would be at variance with the Constitution and in breach of our international obligations. The reasoning behind this conclusion is set out at Part II. I adhere to this view even if no retrial is in fact ordered in the present case, on some discretionary ground.
I believe that the foregoing raises serious questions as to whether s.23 of the Criminal Procedure Act of 2010 as construed in this case is consistent with the Constitution or with Article 6 of the European Convention on Human Rights. Neither of these points was argued, for reasons which I do not find easy to understand. I have not discussed the question of constitutionality in view of this omission. I do however conclude that a retrial of Mr. C. would not be a trial in due course of law as required by Article 38.1 of the Constitution. Having regard to the terms of the Human Rights Act of 2003, and its mandatory effect on the manner of construction of s.23, I have ventured briefly to discuss the relevant convention jurisprudence, notwithstanding that the point was not argued. But because of the omission, I have reached no conclusion on the matter. The question of whether the trial judge had erred was not the subject of argument by the respondent. I was more than surprised at this omission. But since the matter is one going to jurisdiction, I have not felt inhibited in addressing it.
The second aspect of the result of this case to which I most profoundly object is the finding that “inadvertence” by public officials with coercive powers will sufficiently excuse a breach of a citizen’s constitutional rights to allow material obtained by such breach to be proved in evidence against that citizen. I regard this as a gratuitous writing down of the respect due to the Constitution, which is an absolutely retrograde step which I deeply deplore.
This is a criminal case and a great many people, predictably, will turn from it thinking that it is irrelevant to their lives since they do not intend ever to involve themselves in crime. No doubt Mr. Frank Shortt F.C.A., a sixty year old chartered accountant, thought just like that until he was perjured into prison by some gardai who bore him no personal ill will, but simply wished to enhance their careers. This sorry tale which went on from 1992 to 2007 is summarised in Part IV of this judgment. The State first convicted Mr. Shortt on perjured evidence; then (years later) agreed to quash the conviction; bitterly opposed his claim that his conviction was a miscarriage of justice, and contested his claim to compensation.
More generally, the criminal law has for centuries been the gold standard of the rights and entitlements of ordinary people. If the rights of the citizen in this context are notably diminished, as I believe they are as a result of this case, then the rights of the ordinary citizen in civil matters - contracts, mortgages, property, taxation, water charges and other levies, planning, and employment - will soon be gravely reduced as well. There have, in recent years, been several cases in which legislation and the workings of public bodies or public officials in Ireland seem determined to impose on the ordinary, competent and thoroughly respectable citizen a level of liability to punishment and public humiliation which is noticeably greater than has been found necessary in other similar jurisdictions. See, for example, Re Tralee Beef and Lamb Company Ltd.[2008] IESC 1, [2008] 2 ILRM 420 as to an attempt to restrict a perfectly respectable chartered accountant from acting as a Company Director without giving any specific reason at all, but leaving him to prove why he should not be so restricted. The contrast with the position in England as established in Barings plc, In re (No 5)/ Baker v. Secretary of State for Trade and Industry [2001] B.C.C. 273 is very striking. See also Corbally v. The Medical Council [2015] IESC 9 (Supreme Court, as yet unreported, 4 February, 2015), where the suggestion was solemnly made by a statutory body that any error whatever by a medical practitioner, even an obvious and trivial one which had no consequences could constitute “poor professional performance”, thereby exposing a distinguished practitioner to public abuse in the media and to the risk of being struck off the register. Again, the contrast with comparable jurisdictions is very striking. See R. (Calhaen) v. The General Medical Council [2007] EWHC 2606.
It is in the area of criminal law that the safeguards for individual citizens have been earliest and most strongly developed. If the traditional entitlements of citizens in this regard - fully acknowledged by our own recent predecessors such as Ó Dálaigh C.J., O’Higgins C.J., Finlay C.J., Walsh J., MacCarthy J., Hederman J. and others - are now to be undermined, as the State’s appeal in this case barefacedly seeks to do; then it must not be expected that the citizens rights in other areas will remain unaffected.
In the present case, the State is attempting to do something which, to my knowledge, has never been done in any other jurisdiction. In the case of a person who has been lawfully acquitted of certain criminal charges brought against him, it seeks to refer the matter to this Court, to have the law changed by this Court and then to have the citizen retried in this new state of the law which, of course, did not exist at the time of the first trial or at the still earlier time when the offence alleged was committed.
If the Court complies with the Public Prosecutor’s request it will be doing something abhorrent to our own existing jurisprudence and to the jurisprudence of the Common Law which existed for centuries before the adoption of our Constitution in 1937. It will very likely conflict with our international obligations.
The Director seeks to do this in a very specific manner which I believe, quite independently, to be absolutely inadmissible. The State does not allege that the learned trial judge herself made any relevant error of law. If the learned trial judge had made an error of law, then s.23, on the face of it, would certainly provide an appeal against such error. But no such error is alleged, because the learned trial judge meticulously followed the decisions of the Superior Courts which were binding upon her and which she was obliged to follow. Instead, the Director attacks one of these authorities itself, in absolutely express terms, and claims that this Court should proceed, and I quote:
“… to overrule the decision of the majority in DPP v.Kenny [1990] I.R. 110 so that it no longer forms part of Irish law”.
(not verified)
That form of “appeal” necessarily concedes, as is the case, that the leading authority of DPP v.Kenny [1990] 2 I.R. 110 did indeed “form part of Irish law” when Mr. J.C. was tried, at the suit of the Director, in July, 2012.
Accordingly, the prosecutor, whose decision it was to bring Mr. J.C. to trial in July, 2012, well knowing the law of Ireland at that time, seeks now, retrospectively to change that law, so that the main feature of it on which Mr. J.C. successfully relied should “no longer form part of Irish law.”
This is not merely an academic exercise. The Director seeks first, to change the law of Ireland from what it was when Mr. J.C. was lawfully acquitted, by persuading this Court to order that DPP v.Kenny [1990] 2 I.R. 110 should “no longer form part of Irish law”; secondly to quash his acquittal which was absolutely lawful when pronounced; and thirdly to order that Mr. J.C. be tried a second time, after the prosecution have succeeded in changing the law from what it was when they put him on trial.
This is absolutely unprecedented and in my view no such retrial would be a trial in due course of law. See Part III below. Multiple trials until a conviction is obtained are a notorious form of oppressive misuse of power. A second or subsequent trial after the law has been changed so as to favour the prosecution and disadvantage the defendant is without any precedent, anywhere, to my knowledge.
If the learned trial judge had made an error then s.23 would on the face of it provide a remedy for that error. But the proof of an error by the learned trial judge is essential to the existence of such a remedy. There has not been any proof that the learned trial judge erred in the course of the trial of Mr. J.C. Accordingly, this appeal is incompetent and does not lie. It is actually conceded by the majority that Judge Ring correctly applied the law which was binding on her.
The right of a citizen not to be tried again in the same matter after he has been lawfully acquitted is more than well established. It was well established long before Ireland was an independent State and long before the adoption of the Constitution in 1937. It was part of what is meant by “due course of law” in Article 38.1 of the Constitution. This Article provides that:
“No person shall be tried on any criminal charge save in due course of law”.
It has been recognised for centuries, as the cases cited below will illustrate, that a right not to be tried again after an acquittal of the same offence is “an ancient and universally recognised constitutional right”. The prosecution ask the Court to cut down that right.
In the submissions on behalf of the prosecutor, written and oral, very little was said, at least directly, as to why precisely this dramatic change in Irish law is demanded. At para. 46 of the State’s written submissions, however, there is a single paragraph which, insofar as I understand it, suggests, or at least hints at, a reason in the phrase that “in the years since the delivery of the judgment in DPP v.Kenny [1990] 2 I.R. 110, there have been a number of significant changes in the legal and regulatory landscape in respect of An Garda Síochána…”.
The entire of this paragraph is set out at para. 118 of this judgment, at the beginning of Part IV.
If the appellant, the State, is contending the changes since 1990 in some way make the protection of constitutional rights provided by DPP v.Kenny [1990] 2 I.R. 110 unnecessary, I absolutely reject this submission for the reasons set out in Part IV of this judgment. Part V of the judgment analyses the important phrase “deliberate and conscious” as it is used in DPP v.Kenny [1990] 2 I.R. 110, in a passage which attracts the particular ire of the prosecutor; and in Part VI of the judgment I attempt an overview of DPP v.Kenny itself.
In Part IV I set out various most alarming events involving the Gardaí, every one of which happened since the decision of this Court in DPP v.Kenny [1990] 2 I.R. 110 and some of which are absolutely current, indeed ongoing. These to my mind illustrate that, to put it at its mildest, the present is not an appropriate time to consider dispensing with the requirement that the force publique ensure that their actions towards individual citizens do not constitute deliberate and conscious violations of those citizens’ personal rights.
I am horrified that it is proposed in the present case to make “inadvertence” a lawful excuse for State infringements of individuals’ constitutional rights. I would protest strongly about that proposal, even if I were alone in doing so. If once “inadvertence” or mistake is acceptable as an excuse for ignoring, or deliberately failing to ascertain, the constitutional rights of ordinary citizens then “inadvertence” or mistake will be relied upon again and again. I deeply regret to say that the experience of the Courts over the last forty years strongly suggests that “inadvertence” will be accepted very generally as a reason to allow to be proved in evidence the fruits of deliberate and conscious violation of citizens’ rights.
Needless to say, it is not proposed to extend any parallel laxity to ordinary citizens. Earlier in this introduction I quoted two recent cases involving, respectively, a Chartered Accountant and a Medical Practitioner. It will easily be seen that ordinary life would be quite impossible if accountants and doctors could avoid liability for negligent or deliberate acts by claiming that they were the result of “inadvertence”. But that is precisely what is proposed to be done here in the case of State officials, not merely gardaí but that wider class of officials with compulsory powers - tax inspectors, planning officials, water meter installers, customs, and official enforcers of all kinds such as those employed by public bodies. In what follows, I sometimes refer to this wider legally empowered class generally as the “force publique”.
When the State appoint a person to any position which gives him or her coercive, compulsory powers over other citizens, whether those powers are to arrest, to search, to imprison, to confiscate property or documents, levy fines or other charges or whatever, in my view there is an obligation upon the State to ensure that the people whom it chooses to appoint with such powers are fully instructed in the precise legal extent of those powers and in the proper legal manner of applying them. Few would dispute that the State has an obligation, directly or through other bodies, to ensure that people who practise medicine or accountancy (to take the professions involved in the cases cited above) are competent to do so and actually do so in a proper and careful manner. But this case, if the State’s demand is complied with by the Court, will say to members of the force publique that if they can show that their misdeeds are the result of “inadvertence” they will be excused. I regard this as an utterly retrograde step.
Another baneful effect of this decision is that it will render it impossible for an ordinary citizen who was brought before a criminal court to rely with confidence in his or her defence on what were formerly the binding decisions of this Court and of the High Court. This means, to my mind, that such a citizen is deprived of legal certainty and is simply unable to know with confidence of the law under which he is tried. The absolute unacceptability of this undermining of legal certainty has been very comprehensively considered in the judgment of my colleague Mr. Justice Murray and I will only say that I agree with him. This is by no means the least significant aspect of this profoundly regrettable decision.
Any decision of the Court which strengthens the hand of the force publique and exalts it into a position virtually immune from judicial constraint, is profoundly alarming. Part IV of this judgment sets out numerous and recent examples of what may happen even in the present state of the law in the context that, as the Morris Tribunal found “proper discipline has been lost from An Garda Síochána”.
But some comfort might, perhaps, be taken from the deep seated tradition of legality in this country which has ensured that, for generations, governments of every stamp has discountenanced illegal behaviour by the force publique whenever they became aware of it. The risk inherent in judgments such as the present one would obviously be much greater if, almost impossible to imagine, a government came to pass which, or some significant portion of which, was not deeply rooted in the tradition of legality and respect for civil rights which we have been fortunate to enjoy for generations. Judicial decisions about civil and constitutional rights must consider not only the present state of affairs but also what Ó Dálaigh C.J. described in Melling v. Mathghamhna [1962] I.R. 1 as the contingencies of an “improbable but not to be overlooked future”. It is important to bear in mind that the powers and immunities conferred on the force publique will continue to be enjoyed by it notwithstanding the changes of government and of political culture, and that the rights which the Courts must protect, must be sufficiently protected to endure even in the unpredictable contingencies of “an improbable but not to be overlooked future”.
I have already indicated that I consider the case under direct attack by the State in these proceedings, DPP v.Kenny [1990] 2 I.R. 110 to be a most important one, a monument of the revolution in Irish constitutional jurisprudence which took place approximately between the years 1965 and 1990, and an important case in the vital task of the protection of citizens rights which goes on day and daily in the Courts, both civil and criminal. In Part V of this judgment I make some attempt to describe the principled basis of that decision: in Part VI I attempt to explain the mechanism whereby the Kenny test for the admissibility of evidence obtained in an unconstitutional manner is implemented. In particular I expound, in the words of our distinguished predecessors, the reason why the alteration which the decision of the majority would bring about, the provision of a defence of “inadvertence”, would “put a premium on ignorance” and reduce the Kenny protections to incoherence.
I want to express my dissent, in particular, from the new test proposed to address the question of the admissibility of evidence obtained by a deliberate and conscious unconstitutional Act. The revolution proposed in this regard is expressed in the sentence:
“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 this morning”.
This apparently anodyne form of words fatally undermines the rights-based and rights-respecting Kenny test. For the reasons set out years ago by McCarthy J., O’Higgins C.J., Walsh J. and Finlay C.J., amongst others, this change will “put a premium on ignorance of the law” (Walsh J.) and ensure that “the less a police officer knew about the Constitution and, indeed, of the law itself, the more likely he would be to have the evidence which he obtained in breach of the law and and/or of the Constituted admitted in Court (Ó Dálaigh C.J.).
I survey this question in Part VI of the judgment.
I protest, in particular, against the distinction, created by this part of the decision, between the ordinary citizen and the members of the privileged and legally empowered group whom I have designated the force publique. If the ordinary citizen were provided with a defence of “I didn’t mean it” or “I didn’t know it was against the law”, then many parts of the law would become completely unenforceable. I believe that the application of this rule to the force publique has the effect of exalting that group and conferring a status of virtual, practical, unaccountability upon it. I deeply regret that this is being done.
[I]
Overview
1. This is as significant a case on criminal law and evidence as any that have come before the Court in the last twenty-five years. It affects in an important way the rights and liberties of every citizen.
For that considerable length of time, the citizens of Ireland have been protected from prosecution on foot of unconstitutional, forcible or covert searches, arrests, surveillance, or telephone buggings, or other actions by public officials, gardaí or other members of the force publique, by DPP v.Kenny [1990] 2 I.R. 110. The detailed effect of this case is discussed in the following parts of this judgment, especially in Part VI.
Now, this essential protection is sought to be torn away at the suit of the Director. This is sought to be done without any proper, evidence-based assessment of the effect of the rule that DPP v.Kenny [1990] 2 I.R. 110 lays down. It is sought to be done at the suggestion of the Executive branch of Government, by a procedure which excludes evidence-based inquiry, and which is meant merely to allow the correction of legal errors by trial judges. The trial judge in this case made no error: the target of the Executive is the established law of the land which the trial judge followed faithfully, as she was bound to do.
DPP v.Kenny [1990] 2 I.R. 110, a judgment of Finlay C.J., is one of the monuments of our jurisprudence. It is a case I had specifically in my mind when I undertook, as every judge must, “to uphold the Constitution”. I would protest, even if I did it alone, at the removal of an essential protection of the citizen by a subterfuge. I believe that the State’s demand, if complied with by the judges, will involve the jettisoning, not only of DPP v.Kenny [1990] 2 I.R. 110 but of much of the best of our constitutional jurisprudence and of the Common Law of Ireland. I hope this will be clear from the citations in this judgment, and others that will occur to the reader.
2. The present case appears to me directly to raise two questions of very great importance. These are:
(i) If a citizen is put on trial by jury, and acquitted; is it open to the State, under s.23 of the Criminal Procedure Act of 2010, to have the law under which he was acquitted changed by this Court and then to have the citizen retried, for the same alleged offence, in the new state of the law?
(ii) If the gardaí, or any other branch of the force publique, obtain evidence by a “deliberate and conscious” breach of a person’s constitutional rights, may the State use that evidence against the person, in a trial “in due course of law” before a judge who has undertaken that he or she will “uphold the Constitution and the laws”?
3. As will appear in considerable detail later in this judgment, the answer to the first question has always been “no”, for many centuries before the Constitution was adopted, and after that, right up to our own time. The notion of retrying a person who has been acquitted, especially after the law has been changed to assist the prosecution, has been abhorrent for centuries, long before the development of modern Human Rights law, which also condemns it.
4. At least since this Court decided DPP v.Kenny [1990] 2 I.R. 110, the answer to the second question has been a resounding “no”, absent “extraordinary excusing circumstance(s)” which do not arise in the present case.
5. I was deeply proud that this is so, that Ireland was a country in which the personal rights of the individual citizen are taken seriously. There are few countries, nowadays, which do not boast some form of Constitution or Charter of Rights which purports to recognise and honour the personal and human rights of the citizen. But there are far fewer countries where those rights are actually honoured in practice, even against the police force, army, tax collectors, planning inspectors, or other branches of the force publique. In most countries, the citizen’s rights are merely words on a page. In those countries where the personal rights of the citizen are not merely words on a page but real living rights, that is because they will be enforced by the Courts, fearlessly in discharging the constitutional judicial mandate which is necessarily independent of the Government (under the doctrine of the separation of powers). Where there is a “deliberate and conscious” breach of those rights by agents of the State then such breach; in a free country [1985] I.R. 550 at p. 585):
“… will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned, whatever the consequences may be”.
The matter was put in this way by Mr. Justice McCarthy in The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550 at p. 585. I regret that this has now ceased to be so.
This, too, is one of the central bulwarks of freedom in this country, which this decision tears down.
McCarthy J. was correct in what he said because, as Ó Dálaigh C.J. put it in The State (Quinn) v. Ryan [1965] I.R. 70, at p.122:
“… it is not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of those rights. As a necessary corollary it follows that no-one can with impunity set these rights at nought or circumvent them and that the Courts powers in this regard are as ample as the defence of the Constitution requires”.
The result of this case determines whether the words I have quoted, and the judgments of which they form part, will be relegated to mere shibboleths or whether they will continue to be accurate and meaningful statements of the law of Ireland upon which citizens can rely, precisely because the Courts will enforce them, and not merely pay them lip-service.
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6. In this case, the State is attempting, without any democratic process of legislation or referendum, drastically and quietly to change the constitutionally based law of evidence as it applies to criminal trials. This change, of course, would in every single case favour the prosecution and handicap the defence. The prosecutors seek to set aside the judgment of this Court in DPP v.Kenny [1990] 2 I.R. 110. This was a decision of major constitutional importance, given in this Supreme Court by Finlay C.J. DPP v.Kenny [1990] 2 I.R. 110 construed the Constitution itself to establish a principled and constitutionally mandated structure to deal with the not uncommon situation where agents of the State itself, the Garda Síochána or some other branch of the force publique, themselves breach the Constitution in seeking evidence on which to convict a citizen.
7. The law of Ireland, derived from the Constitution and expressed in DPP v.Kenny [1990] 2 I.R. 110, is that evidence obtained by a “deliberate and conscious” act of a public authority or official which breaches the Constitution, falls to be excluded from consideration as evidence at a trial conducted, as the Constitution requires, “in due course of law”. This is so unless the breach can be justified by “extraordinary excusing circumstances”. It is agreed that no such circumstances arise in the present case. This rule is essential if the rights conferred on citizens in the Constitution are to have any real existence in the lives of citizens, as opposed to being mere words on a page. This is recognised in DPP v.Kenny [1990] 2 I.R. 110.
In this case, Mr. C. has already been tried and lawfully acquitted. The State demands that this Court change the law laid down in DPP v.Kenny [1990] 2 I.R. 110, and wants Mr. C. to be tried again after that has been done under some (as yet-undetermined) new law. This would be grotesquely wrong. The second trial would not be one “in due course of law”. The law of Ireland provides many instances, some discussed below, where the Crown or State have attempted to retry an acquitted person. Up to now, the judges have always prevented this. Now they are asked not only to do this, but to change the law to facilitate a conviction, before setting aside an acquittal and ordering a retrial after the law has been changed. In colloquial terms, we are asked first to move the goalposts and then to order the match, already won and lost, to be replayed with new rules, written by one side and imposed on the other.
The Exclusionary Rule - what is it?
8. The Rule summarised above - that evidence obtained in breach of the Constitution must be excluded (and evidence obtained in breach of law may be excluded at the judge’s discretion) - is the Exclusionary Rule. Since such things as the improper obtaining of evidence have occurred, or are alleged to have occurred, quite frequently, the rule is the subject of much debate and litigation in every country which takes the fundamental rights of its citizens seriously. Up to now, Ireland was such a country.
An Example.
9. An example of the Rule’s operation in practice in Ireland occurred in the DPP v.Burke, Hickey, McEnery and Kissane tried in the Waterford Circuit Criminal Court in July 2011. The case illustrates that, while the rule is typically invoked by a defendant, it raises issues of much broader interest such as - is a public servant entitled to privacy in his or her telephone communications to, from, or with his office? The case is unusual in that it is related to the “bugging” and recording by An Garda Síochána of phone calls to and from a Garda Station, by gardaí, which bugging was objected to by other gardaí. But the principles apply to all citizens. But in the particular case, gardaí were bugging other gardaí.
All the defendants were gardaí. Three were charged with a serious assault on a man in a public street in Waterford. A fourth garda was in charge of the operation of on-street video cameras one of which should have covered the location of the assault and all of which were controlled from the communication room of Waterford Garda Station. This fourth member was charged with acting with intent to impede the apprehension or prosecution of another person, and also charged with acting in a manner intended to pervert the course of justice.
10. In the course of the trial, the prosecution wished to prove in evidence audio recordings of two phone calls, the first allegedly made by one of the accused from her private mobile phone to the fourth accused who answered the call in the communications room at Waterford Garda Station; and the second from the same accused, again to the fourth accused, but this time made from (a presumably state-owned) phone in the Garda Station. The defendants objected to the contents of these calls being proved in evidence on the grounds that the action of covertly recording them by An Garda Síochána was unlawful. The learned trial judge held that:
“The issue to be determined is the lawfulness or otherwise of the practice of An Garda Síochána at Waterford Garda Station in recording all incoming and outgoing calls on their public lines, and the admission of the evidence obtained under the use of such practices”.
11. There was, unfortunately, a stark conflict of sworn evidence between various garda witnesses called for the prosecution and the defence respectively as to whether the practice of recording the relevant calls had or had not been made known to members of the Garda Síochána serving in the relevant station. The learned trial judge held that:
“The fact that the calls were made, and indeed the content on the audio recordings, suggest to me that the defendants couldn’t have been aware that their calls were being recorded. The prosecution in my view has failed to establish beyond reasonable doubt that any of the parties to the phone calls were aware that their calls were being recorded and therefore… could not have consented or even acquiesced in the interception of their calls. In the circumstances I am satisfied that the practice engaged in by the gardaí of recording all incoming and outgoing calls was in breach of the provisions of s.98 of the Postal and Telecommunications Service Act, 1983 as amended by s.1 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993. The prosecution have not opened any other authority which would empower the gardaí to carry out such practices, and indeed nor am I aware of any such authority. Further, I reject the prosecution’s contention that the third and fourth-named defendants, as servants or agents of An Garda Síochána, must have consented to the interception of the calls on the basis that they are fixed with the consent of their employer, who was engaged in this practice. It is therefore my view that the evidence obtained in such an unlawful manner cannot be admissible, and it would be dangerous and unsafe to do so”.
12. This case illustrates the operation of the Exclusionary Rule. The defendants claimed that certain telephone calls had been intercepted and recorded in a manner which was not only unauthorised by law but which actually amounted to a criminal offence. It was a case of unlawfully, rather than unconstitutionally, obtained evidence although the defendants did not debar themselves off from arguing, if necessary, that an illegal act of interception infringed their constitutional rights. But they were successful in excluding the relevant evidence on the ground of illegality. In the result, three of the defendants were convicted and one acquitted.
It is pure co-incidence that, in this particular case of DPP v.Burke & Ors. both the officials who intercepted and recorded the calls, and the defendants who objected to the evidence, were, all alike, members of An Garda Síochána. The principles are the same no matter who the victims of unconstitutional or unlawful acts by public officials are, and even if they are Public Officials themselves, as the garda defendants were in that case.
Issues and conflicting values.
13. The case of DPP v.Burke & Ors. is an unusual one in that evidence was excluded on the basis that it had been unlawfully rather than unconstitutionally obtained. It is most unusual to exclude evidence on the ground of mere illegality, but it was fully within the discretion of the trial judge to do so. The rarity of such exclusion was declared by Mr. Justice Hogan in his dissenting remarks in the Report of the Committee on Balance in the Criminal Law, referenced below.
The case also illustrates the policy issues that often arise when considering the Exclusionary Rule.
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Some people would consider that all evidence, however obtained (except perhaps by torture) should be available to the Court or jury provided only that it is relevant or probative. Others would take the view that breach of the law by State officials, like a breach of the law by the humble citizen, must be noticed by the law and must have legal consequences.
14. Accordingly, DPP v.Burke & Ors. raised the issue of whether an employee, even a State employee, including a garda, shares with other citizens an expectation of privacy in her telephone communications (See Kennedy and Arnold v. Ireland [1987] I.R. 587). A garda is entitled to the same rights in this regard as any other citizen. Neither a garda nor anyone else can have this right breached by the State and the result of the breach proved in evidence against her in a serious criminal case. If it were otherwise, the Constitution could be breached with impunity, the rights it assures not vindicated, and there would be no disincentive to a public authority or an individual public official simply ignoring the law and even defying the Constitution. The breach would actually be rewarded when its fruit or result is admitted as evidence on the side of those committing the breach of the Constitution. This is to set the Constitution itself at nought. It is to infringe the Constitution a second time.
Those who take the first view (that all relevant evidence should be admitted, however obtained), might respond that it is not necessary for the vindication of the law and the Constitution that evidence obtained by a deliberate and conscious breach be excluded from the consideration of a court. Gardaí or others who breached the Constitution or the law, they point out, might be separately proceeded against and punished for doing so, without excluding the evidence they have gathered against the original defendant. This, of course, is theoretically possible but it is conclusively answered as an element in this discussion by the fact that, in the whole history of the State, no prosecution for breach of a citizen’s constitutional rights has ever been taken against a public official. This is so despite the fact that there are numerous examples in the judgments of the Court of illegal and unconstitutional activities by State officials. See, by way of example, The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550, DPP v.Shortt [2002] 2 I.R. 696, and the material in the fourth section of this judgment, below.
It now transpires that many thousands of hours of tape recordings of telephone calls to and from Garda stations were illegally recorded in recent years. [See below] Not one guard of any rank has been prosecuted for this.
Save to the extent that they have been specifically raised by the State, (see Part IV below) - this Court is not concerned with the policy issues. It is common case, I believe, that either an illegality or unconstitutionality in the gathering of evidence requires some meaningful reaction from a judge before whom the issue is raised.
15. I consider the Exclusionary Rule to be absolutely sound, and indeed to follow logically from the terms of the Constitution itself. If the Constitution and the rights it guarantees to citizens are to be taken seriously and are to be more than a shibboleth, mere words on a page, it must follow that no official, no matter how high or how important the office which he holds in the State, may breach the terms of the Constitution, and impose on or suspend the constitutional rights of another citizen. No ordinary citizen may do this, and DPP v.Kenny [1990] 2 I.R. 110 is authority for the proposition that officials of the State itself may not do it either. But the object of the present proceedings is to change all that and to permit unconstitutionally obtained evidence to be used at the discretion of a judge. As will appear below, experience shows that this discretion will almost always be exercised in favour of the State. The case of DPP v.Burke and Ors (where by coincidence all the defendants were gardaí) is an outlier. It is to be hoped that an ordinary citizen would be treated in the same way.
16. If the State have their way in this case, it will be possible to disregard breaches of the Constitution, and of constitutional rights and to admit the fruits of them in evidence just as if the Constitution had not been breached at all. In my opinion, that state of affairs, which is ardently desired by the State, would amount to “setting aside or circumventing” constitutional rights. In most cases, the engine of this would be a claim that the breach of constitutional rights was in fact simply inadvertent, a mistake, on the part of the members of the force publique. Experience shows that Courts are historically very receptive to such claims and extremely credulous of them. But a mistake of law, much less constitutional law, on the part of an ordinary citizen affords him no defence, even if he could establish it.
I am ashamed that our State is bringing this situation about.
I am not content that members of the force publique be privileged, and set apart from the citizens who pay them, in this way. I believe that once one breach of this kind is excused as “a mistake”, there would be many more “mistakes” occurring, and claiming to be excused in turn. The constitutional right will remain as words on a page, but all content will be sucked out of it. This result is absolutely foreseeable if the State succeed in its present demand. I am appalled that this Court, knowing all the material set out in Part IV of this judgment, and more, would bring this about.
17. In the present case, that of Mr. C., the objective of the State is to change the law and then to have Mr. C., who has been tried and acquitted, retried under a law radically changed at the behest of the prosecution. I regard this as wholly impermissible in principle, a negation of the concept of due process of law. I view this with abhorrence. It contradicts a long line of principled legal thinking, and our own legal authorities going back to the foundation of the State. This will be discussed below.
Nor can this difficulty be avoided by the Court simply deciding not to order a retrial in the instant case. The State claim that the Statute permits a retrial and it is that proposition that creates the negation, whether the power is exercised or not in any particular case. I have no doubt the State would readily sacrifice a retrial in this particular case to secure the right to retrial in very many others and the ability to avoid the necessity for retrial in still more cases.
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18. The mechanism whereby this change is sought to be brought about is almost equally controversial. It is that of an appeal permitted to the State only since the year 2010, and for a wholly different purpose. This right of appeal was permitted to the State against purported erroneous rulings of law by a trial judge. The trial judge in this case, made no error of law, but merely followed the prior decisions of the Superior Courts which were binding upon her. But the State dislikes these prior decisions in themselves, and DPP v.Kenny [1990] 2 I.R. 110 in particular. The State is, in my opinion, misusing and abusing the limited right of appeal granted in 2010 for a purpose for which it was not intended and for which it is not in any way apt. If the law is to be changed, that is the role of the legislature or of the People. Nowhere in the parliamentary proceedings in Oireachtas Eireann was the prospect of an appeal such as this even hinted at. No-one reading s.23 in Bill form could have guessed that it could it could be read so as to permit what the State now purpose.
19. I also consider that, contrary to what is specifically urged in the State’s submissions, the present time is not a suitable one to make the change of the kind proposed, specifically in light of grave and most alarming difficulties with the gardaí which are in the public domain. I would not have commented on this policy issue had not the State specifically raised it in their submissions. See Section IV, below.
20. In 2010, the Oireachtas passed the Criminal Procedure Act of that year. Section 23 of this measure provides for an appeal by the prosecution against erroneous rulings on law by the Judge who presides at a trial. The Judge in this case of Mr. J.C. was Judge Mary Ellen Ring, a judge of the Circuit Court sitting in the Waterford Circuit Criminal Court. She followed the law as laid down in two cases decided by this Court, Damache v. Ireland [2012] IESC 11, [2012] 1 I.R. 266 and DPP v.Kenny [1990] 2 I.R. 110. In doing so she made no error. She followed the law as laid down by this Court as she was bound to do. The judgments in each case were those of the Chief Justice of Ireland at the time, Denham C.J. and Finlay C.J. respectively.
21. But the prosecution dislike the law as laid down. By a grave abuse of a statute providing an appeal against errors of law by a trial judge, the Director of Public Prosecutions seeks to change that law itself. The Director can not allege that Judge Ring erred in following the law, or even that she could lawfully have done other than follow it, but asks this Court to change the law itself, and to have Mr. C., who has been acquitted on the law as it stands and stood, retried under a new law. This new law, whatever it might transpire to be, did not exist at the time the State put Mr. C. on trial, still less at the earlier time when the offences alleged against him were said to have occurred. If the trial judge had made an error, the retrial would take place under the law as it truly was at the time of the trial. But that is not the position here, and the new law will have been devised after the acquittal, at the request of those whose very purpose is that of setting that acquittal aside, and substituting a conviction for the same offence of which Mr. C. has been lawfully acquitted. This is ex post facto law, something the Common Law has condemned for centuries: see Section III below.
22. I do not believe that such an appeal lies to this Court. I say this for the reasons set out below, in the second Section of this judgment. More particularly, I question if s.23 can be read to allow the Courts to force a citizen to stand trial, and be placed at risk of his liberty, perhaps for many years, in one state of the law and then, when the prosecution lose a properly conducted trial, force him to stand trial again, at the suit of the prosecution, for the same offence but in an altered state of the law, newly procured by the prosecution. And this after they lost a trial which they themselves choose to initiate against the citizen, well knowing exactly the state of the law at that time. This is gamesmanship of the worst and most cynical kind by public officials. It will not be approved in my name.
23. I do not believe, for the reasons set out below, that the 2010 statute permits this, when properly and constitutionally construed. I believe that the prosecution is precluded, by the public prosecutor’s own action in forcing Mr. C. to trial, knowing the state of the law that offered an argument to the defence, from seeking a new and separate trial after the Director has arranged for the rules to be changed. Needless to say, no such right exists in the citizen who is brought to trial. He, just like the prosecution up to now, can appeal against errors in stating or applying the existing law made by the trial judge, but there is no mechanism available to him to bring about a change in the law itself. This position of gross inequality has been aptly described in the authorities as “an extraordinary imbalance between the rights and powers of the prosecution and those of the accused respectively”, by Finlay C.J., quoted below. It is totally at variance with the notion of “due process of law”.
I wish to emphasise that the underlying rationale of DPP v.Kenny [1990] 2 I.R. 110 is the constitutional necessity and obligation for the Courts to vindicate the words of the Constitution so that they have a practical meaning and are not simply words on a page.
The State’s case on jurisdiction.
24. Having regard to the obvious statutory need (see below) for the State to show error by the trial judge, and to the finding that the learned trial judge in this case did no more than she was obliged in law to do i.e. was obliged in law to do what she did, the State faced obvious difficulty in showing jurisdiction to entertain this appeal. It sought to avoid this on the basis of a peculiar paradox cleverly and beguilingly advanced as representing the true state of the law by Mr. Brian Murray S.C., counsel for the appellants. The argument itself, however, must be attributed to the State and not to counsel personally: I say this because I believe the argument to be meretricious in a high degree. It was this:
“A trial judge who follows the precedent which is itself later found to be wrong by this Court, herself errs in doing so, even if the precedent was binding upon her so that she was obliged to follow it”.
25. This is a sort of self-serving Catch 22 advanced by the State because of the need to show that Judge Ring “erred” in some sense in following DPP v.Kenny [1990] 2 I.R. 110 , even though she was obliged in law to follow that precedent and therefore correct in law in following it. This is a Catch 22 in the sense that, on the State argument, the learned trial judge would have erred no matter what she did. It is conceded that Judge Ring was “obliged” to follow DPP v.Kenny [1990] 2 I.R. 110. Therefore she would have erred if she had not followed that case. As one of my colleagues says, she had no option but to follow it. But the prosecutor nonetheless contends that in following that case she erred because (the State anticipates confidently) this Court will shortly overrule DPP v.Kenny at the request of the Director of Public Prosecutions.
26. Once it is conceded or established that Judge Ring was “obliged” in law to follow DPP v.Kenny [1990] 2 I.R. 110, it is obvious that she did not “err” in law in doing so. I do not understand the sense in which it can be said that a trial judge in a court of law who does what the law obliges her to do can nevertheless be said to err in law in doing so, nor how is it said that she erred? She is said to have erred because it is to be assumed that at some later day this Court will find that DPP v.Kenny [1990] 2 I.R. 110 was wrongly decided.
27. There can be no doubt that in July 2012, the date of Judge Ring’s ruling, DPP v.Kenny [1990] 2 I.R. 110 was binding law which the judge was obliged to follow. This, indeed, is stated in the judgment of Clarke J. in this case, para. 2.8 of that judgment. At the place mentioned Mr. Justice Clarke says:
“It is not, as has been pointed out, suggested by anyone that the trial judge did not correctly apply the exclusionary rule in the manner in which that rule is addressed in Kenny, and did not do so in a proper fashion”.
Having conceded that, Mr. Justice Clarke continues, in the same paragraph:
“Can it be said that a trial judge erroneously excluded the evidence in question if the trial judge properly applied the established case Law of a higher court, by which that judge was bound…?”
(All emphasis added)
Earlier, at para. 1.2, Mr. Justice Clarke had the following to say:
“There was no dispute on this appeal that, applying the exclusionary rule as so defined .Her Honour Judge Ring was obliged to exclude the evidence concerned”.
That statement is self-evidently true. I therefore agree with it. The case, accordingly, must proceed on the basis that Judge Ring was “obliged” to follow DPP v.Kenny [1990] 2 I.R. 110 and to exclude the evidence. Nevertheless the prosecution must contend, and do contend, that the Judge “erred” in following DPP v.Kenny [1990] 2 I.R. 110 and in excluding the evidence. See the pithy statement by Mr. Murray S.C. set out above.
28. Mr. Justice Clarke, in fact, goes further. At para. 1.3 on the draft previously mentioned he says:
“… it is accepted that the trial judge had no option but to decide as she did given that she was bound by the decision of this Court in Kenny.
(emphasis added)
These propositions illustrate the complete bankruptcy of what I have called the “self-serving paradox” on which the State’s case on the jurisdiction issue is fundamentally based. Judge Ring was “obliged” to follow DPP v.Kenny [1990] 2 I.R. 110; she “had no option” but to do so. But nevertheless, it was solemnly contended in the Supreme Court that she “erred” in doing that which she was obliged in law to do, that which she had no option but to do. If that were so the law would indeed be an ass. I am ashamed that our State has stooped to this argument.
29. There is a famous passage in the English case of Liversidge v. Anderson [1942] AC 206 in which the House of Lords in the neighbouring jurisdiction were asked to uphold the proposition that a power of detention during World War II which could be exercised “if the Home Secretary had good reason” to think that it was necessary to do so, should be read as meaning that a person could be detained without the Home Secretary having any demonstrable good reason to believe that, so long as that Minister sincerely believed that he had good reason. Shamefully, the House of Lords, with only one dissent, accepted this utterly illogical argument. Had the decision continued to hold sway, the entire of the subsequent development of Administrative Law in England would have been frustrated. In fact, of course, this embarrassing decision was, as inconspicuously as possible, abandoned over the following five decades. In a famous passage in the original case the sole dissenter, Lord Atkin, (the greatest British jurist of the mid-twentieth century), declined to accept that “if a man has” means the same thing as “if a man thinks that he has”, even if the man in question is the Home Secretary.
In deconstructing the argument for the Crown, Atkin said at p. 241 that the only authority he could think of to support it was Humpty Dumpty’s assertion in Alice through the Looking Glass, “in rather a scornful tone” that “when I use a word it means just what I choose it to mean, neither more or less”. Atkin set out the passage in which that ludicrous statement occurs at some length.
30. I have often thought of Lord Atkin’s citation but have never felt the need to set it out in a judgment, largely because it is so well known to lawyers that a mere mention of the case calls it to mind. I do not set out here, either, but for the quite different reason that there is nothing, even in Alice in Wonderland, Alice through the Looking Glass or elsewhere in the works of Lewis Carroll, which could be cited to justify so manifest a self-serving contradiction as that contained in the paradox which is the basis of the State’s case. But Liversidge v. Anderson [1942] AC 206 shows that the State or Crown is as capable of a meretricious argument to suit its purpose as any other litigant. Joseph Heller’s “Catch 22” is the only authority I can think of to support the paradox which the State has advanced.
That paradox, quoted above as Mr. Brian Murray advanced it to this Court on behalf of his client, means that Judge Ring was obliged to follow DPP v.Kenny [1990] 2 I.R. 110; that she had “no option” but to follow DPP v.Kenny [1990] 2 I.R. 110; that in following DPP v.Kenny and excluding the relevant evidence she acted “correctly” and “in a proper fashion”. But despite this, the State are obliged and willing to argue, she “erred” in following DPP v.Kenny.
31. The reason why I say the State “were obliged to argue” this point is that, to quote Mr. Justice Clarke again:
“It will be seen that, in order for an appeal to lie under s.23(3) there must be an error on the part of the trial judge in the sense that evidence must have been erroneously excluded…”.
(Emphasis added)
32. In other words, in the view of Mr. Justice Clarke, and in my own view, an error “on the part of the trial judge”, must be established for jurisdiction to entertain this appeal being found to exist.
Mr. Justice Clarke, indeed, goes on to say at par. 2.9:
“… if the suggestion that section 23 can not be used as a means of inviting this Court to reconsider clear previous authority which bound the trial judge in question is correct, then three could be no basis for the D.P.P. seeking to invoke that section in the circumstances of this case.”
33. This passage concedes, or appears to me to concede, a number of points. The first is that DPP v.Kenny [1990] 2 I.R. 110 is a “clear previous authority”. The second is that DPP v.Kenny [1990] 2 I.R. 110 is an authority “which bound the trial judge”. It is perfectly true to say that if the argument for the respondent or jurisdiction is well founded then s.23 cannot be used as a means of revisiting DPP v.Kenny. But there is no question of the prosecution being thereby stymied in their attempts to have DPP v.Kenny revisited. At para. 2.11 of the draft of Mr. Justice Clarke’s judgment from which I have been working he says, and I agree that:
“… it would be possible for the DPP to refer a question of law to the Supreme Court “without prejudice” to the acquittal, under s.34 of the Criminal Procedure Act 1967, as substituted”.
I cannot see why the point arising in the present case could not have been referred to the Court under the last mentioned Section. That would avoid what to me is the enormous difficulty, and rank illegitimacy, that we are being invited to change the law and then order a retrial in that changed state of the law. I do not believe that this is possible anywhere in the world. It need not have been proposed here.
Equally, the employment of s.34 would avoid what I can only call the jesuitical paradox used to try to establish jurisdiction under s.23. There is no need, for the purposes of s.34, to establish any “error” by the trial judge, much less whether she “erred” in law by doing that which she was obliged in law to do. This is a quite unnecessary burden imposed by the DPP’s peculiar procedural choice.
Squaring the Circle.
34. I now turn to the substance of the State’s submission and its acceptance in Mr. Justice Clarke’s decision on the jurisdiction point, set out in para. 2.13ff of the draft from which I am working. His “starting point” is to assume, “for the sake of argument”, that DPP v.Kenny [1990] 2 I.R. 110 was “wrongly decided”.
35. It will be noted, therefore, that the mechanism of the decision is an “assumption”. The latter presumes that “…Kenny was wrongly decided, and that, applying the proper test, the relevant evidence should have been admitted.” Therefore, the reasoning goes, “…it is clear that the decision to exclude that evidence was wrong.” ( par. 2.14)
36. But Mr. Justice Clarke goes on to record (para. 2.14) that “even though that decision was wrong, it is suggested that it cannot be said that the trial judge, in making that decision, erroneously excluded the relevant evidence because the trial judge was, it is accepted, bound to follow DPP v.Kenny [1990] 2 I.R. 110.
37. The conclusion set out in the penultimate paragraph which is acquiesced in by the majority of the Court, involves squaring the circle just described by the negatively expressed finding:
“The fact that a trial judge may have been bound to follow what transpires to be an erroneous decision of this Court does not prevent the trial judge from being properly described as having erroneously excluded relevant evidence”.(par. 2.21)
38. I believe this conclusion to be radically wrong. The most fundamental reason for this is that it wholly ignores the actual sequence of events. That is, it wholly ignores the fact that the learned trial judge made a decision at a particular time, and not at a hypothetical later time by which time the law had, it is assumed, been changed. The only vague acknowledgement of the temporal dimension is the phrase “what transpires to be”. But this is the heart of the matter. The argument, accepted by the majority, starts with an assumption, which I have generally found to be an unsound basis for argument. It is a mechanism for ignoring inconvenient facts. The assumption here is that DPP v.Kenny [1990] 2 I.R. 110 “was” wrongly decided.
But in July 2012, the date of Judge Ring’s ruling, DPP v.Kenny [1990] 2 I.R. 110 was binding law which the learned trial judge was obliged to follow and “had no option” but to follow. Therefore she did not in fact err in following DPP v.Kenny and, pace Clarke J., precisely because she did not actually err in following DPP v.Kenny she cannot properly be described as having acted erroneously, by reason of the fact that she followed that case.
39. Moreover, the rather tentative form of words in which the conclusion of the majority has been expressed - “does not prevent the trial court from being properly described as having erroneously excluded relevant evidence” - rather than “erred in excluding relevant evidence” ( Clarke J., par. 2.21) seems to me to imply that the learned trial judge might also, or alternatively, be described with equal propriety as having acted correctly in excluding evidence because she was bound by DPP v.Kenny [1990] 2 I.R. 110 to do so. Indeed, this conclusion seems inescapable because, as Clarke J. said in a passage already cited at par. 27 supra, “it has not been suggested that the judge did not apply the Exclusionary Rule in the manner in which that rule is addressed in DPP v.Kenny [1990] 2 I.R. 110, and did not do so in a proper fashion”.( Clarke J., par. 2.8) This is a double negative (often a sign of discomfort), but its substance is that Judge Ring applied DPP v.Kenny in a proper fashion.
The State’s reasoning on this point, therefore, seems to me to have the absolutely extraordinary consequence that the learned trial judge was both correct (in excluding the evidence), because she was “obliged” to do so and “had no option” but to do so, but, at precisely the same moment, was also wrong in excluding the self-same evidence in the self-same ruling because of the assumed need to act on the basis that DPP v.Kenny [1990] 2 I.R. 110 might, at an unspecified date some unspecified number of years later, be overruled by this Court. I believe that the foregoing mutually contradicting propositions follow inexorably from the self- contradictory paradox which is at the heart of the State’s case, and from the terms in which it was accepted by Clarke J. It must be borne in mind that what is before us is an appeal in a specific case, and not an academic proposition for theoretical discussion.
40. The appeal is not a moot but is from a specific decision, that of Judge Ring in July 2012. We simply cannot, if we have any respect for the law and for our own processes, hold that Judge Ring was both right and wrong simultaneously, in the ruling she made, but that the fact that she was, in some sense, wrong, is enough to ground a s.23 jurisdiction even though she was, simultaneously, in another sense, right (because she was “obliged” in law to follow the precedent and “had no option” but to do so).
There is nothing like this, even in Alice in Wonderland.
41. In my view, the logical dilemma with which the State are confronted is sought to be resolved by ignoring the actual sequence of events. The question is not whether Judge Ring “erred” in some abstract, theological, out of time sense: it is whether she was wrong in making the specific ruling she did, on the day on which she did it, which was the 18th July, 2012. It was made on that day, and not on some later, different hypothetical day. The issue of whether or not she erred must be judged as of the 18th July 2012, and on the basis of the law as it then stood. Anything else is mere speculation, based on a foolhardy decision to ignore the actual, historic and unalterable sequence of past events.
42. As of that date, two relevant features of the law existed and were binding upon Judge Ring. These were (a) the Supreme Court decision in DPP v.Kenny [1990] 2 I.R. 110 and the decisions of the Superior Courts which followed from it and (b) the obligation, discussed elsewhere in this judgment, and in any event undisputed, on the learned trial judge to follow binding precedent in the form of DPP v.Kenny [1990] 2 I.R. 110 and its derivatives.
43. I wish to emphasise that, in my view, the need to follow binding precedent is not simply a matter of judicial comity or respect for the higher courts, or a matter of mere procedure. It is the existence of that duty, and the obligation to follow it which alone makes the law which is to be applied at all predictable and confers on it anything approaching legal certainty at the time of any particular trials. A trial under a law which lacks legal certainty is not a trial “in due course of law”. It is a lottery.
44. I cannot too strongly dissent from the technique which was adopted of using as a “starting point” the assumption that DPP v.Kenny [1990] 2 I.R. 110 was wrongly decided. If one “assumes”, in any circumstances, that either the law or the facts were different from what they manifestly were at the relevant time, some years previously, one will naturally and inevitably (even intentionally) come up with a conclusion that the decision made at the time was wrong. This “assumption” cannot be used to invalidate the decision of Judge Ring, or to stigmatise it as “error”, unless it is also held that Judge Ring was obliged, in July 2012, to “assume” that DPP v.Kenny[1990] 2 I.R. 110 was wrongly decided. She was not so bound. Indeed, since it has been held that she was obliged to follow DPP v.Kenny, she could not be so bound. I have to say that the State’s contention in this regard is nonsense on stilts, full of self-contradiction.
45. In my view the State’s argument is both jesuitical and theological in the worst sense of these terms. It allows the maker to propound a theory which is manifestly at variance with the known facts on the basis of some a priori axiom, which the maker is bound by blind faith to accept. This is here expressed in an unargued assumption, and backdated, and said to apply retrospectively. This is a self-conscious departure from reality and I cannot acquiesce in it, especially not in order to deprive the citizen of the long established constitutional right, not to be retried after acquittal under a new law, but for the same offence.
The known facts are that DPP v.Kenny [1990] 2 I.R. 110 held what it did and was binding on Judge Ring in 2012 and Judge Ring was obliged to follow it in 2012. She had no option but to do so. But these facts are sought to be reduced to irrelevance, in the State’s argument, by ignoring the fact that DPP v.Kenny [1990] 2 I.R. 110 was binding on Judge Ring in July 2012. This was done by the “assumption” that DPP v.Kenny was wrong. This assumption is expressly made. But, to be any use to the State, we must further assume that DPP v.Kenny was then wrong. There is not a word of argument directed to this second assumption. It is not even expressed. But once it is made, it permits as dramatic piece of result oriented jurisprudence as there has ever been in Ireland. It also sets the law dramatically at variance with common sense notwithstanding the well known dictum of Chief Baron Palles that the law and common sense “should walk hand in hand” [Reg. (Mackey) v. Justices of Co. Limerick [1898] 2 I.R. 135]. I do not accept the “legal theory” mentioned at para. 2.15 of Clarke J.’s judgment. It is simply at variance with reality. Clarke J. does not himself go so far as expressly to endorse it.
46. The categories of correctness, on the one hand, and error on the other, used in a legal sense, are as clear and as mutually exclusive as are, for example, the categories of “guilty” and the contrasting and inconsistent category of “not guilty”, or the category of those who are on the “right” or on the contrary on the “wrong” side of the public highway or the category of motorist who goes through a green light, and that other category who goes through a red light.
In philosophical discussion it may be possible to debate whether a person may not be in some sense “guilty” and in some different sense “not guilty” of the same offence and so on. But this form of discussion is not admissible in law because the law is required to make a specific decision, about a specific individual, at a specific time and place, and then to act upon it. Equally, the law is required to be rigorously logical and not to indulge in unreal self- contradictory and overly clever paradox of the sort on which the State case is based.
47. I do not believe that a judge presiding and making rulings at a criminal trial on indictment, with manifestly serious consequences for the defendant on conviction, can be regarded both as having erred, because the binding decision which she followed might at some unstated future time be found to be wrong; and at the same time be said to be correct because she was bound to follow that binding authority, she “had no option” but to do so. I repeat that I regard this argument as meretricious. I am deeply disappointed, indeed aghast, to see this line of argument employed to create an opportunity to override one of this Court’s previous decisions, to the detriment of a citizen who was lawfully acquitted in the State of the Law as it stood when the Public Prosecutor put him on trial, on 18th July 2012 and on no other day.
48. This is a purported appeal by the prosecution against the acquittal of the defendant, Mr. C., after a trial with a jury in the Waterford Circuit Criminal Court (Her Honour Judge Mary Ellen Ring) on the 19th day of July 2012.
49. It is a “with prejudice” appeal, to use a statutory phrase. That is, the prosecution claim to be entitled to have the defendant retried on the self-same charges on which he has been acquitted. There are other, “without prejudice” procedures available to the State, but they have, very deliberately, not been used.
See s.34 of the Criminal Procedure Act of 1967, as inserted by s.21 of the Criminal Justice Act of 2006.
Neither is it suggested that new or different evidence is available to the prosecution. A statutory right to appeal an “error” by a trial judge is being misused in order to change the law of the land, without any democratic mandate, and even though the trial judge made no error.
50. This is the first attempt, under legislation dating from 2010, to have a defendant retried after an acquittal. Previous attempts to do so, prior to the Act of 2010, had failed. The attempt gives rise to a considerable number of difficulties and to major issues of principle.
51. The first of these is as to whether this appeal lies at all. Irrespective of whether the finality of an acquittal is an aspect of the constitutional right to a trial “in due course of law” (Article 38.1) or to trial by jury (Article 38.5), it is a fundamental right at Common Law, “an ancient and universally recognised constitutional right” according to Lord Birkenhead, cited below.
I do not believe that, apart altogether from questions of constitutionality which are not before us today, for reasons which I do not understand, the right of appeal created by s.23 of the Criminal Procedure Act of 2010 extends to an appeal such as this, where it is sought “to overrule the decision of the majority in DPP v.Kenny [1990] 2 I.R. 110 so that it no longer forms part of Irish law”, and to have a retrial after an acquittal based on that overruling.
I do not believe for a moment that a statutory right of appeal against an error in law by a trial judge extends to an attempt to overrule an established authority, decided twenty-five years previously, which was binding upon that trial judge. The State’s contention in this regard is every bit as contrived as was the Crown’s submission in Liversidge v. Anderson [1942] AC 206 and can be justified only in the manner identified by Lord Atkin in that case.
52. The foregoing is the most deep-rooted of the considerations which have led me to the conclusion that this appeal simply does not lie. But there are other reasons as well, consistent with the first. Based both on commonsense and on authority, there is no doubt that there is a power in a Common Law Court, in restricted circumstances, to arrive at conclusions which develop, or assist in the evolution of, the Common Law. But there is high authority, Irish, English and American, for the view that such development should be “interstitial” only: see below.
Most relevant of all these is an Irish case, Hynes O’Sullivan v. O’Driscoll [1988] I.R. 436. There, this Court was invited to amend the long standing Common Law defence to a defamation action, that of qualified privilege. The Court refused to do so for a number of reasons which are set out on pages 499-450 of the Report. The most immediately significant of these was that the proposed reform should more properly be affected by statute and that the public policy which would be represented by a new formulation of the law should more properly be found by the Law Reform Commission or some other body “in a position to take a broad perspective as distinct from what is discernable to the tunnel vision imposed by the facts of a single case”.
The reform of the law of qualified privilege is an important matter. But it does not approach in general importance the issue we are concerned with here, whether a citizen whose constitutional rights have been breached, and evidence obtained by that breach, is liable to have the fruit of the breach adduced against him in a Court of Law, a Court whose presiding judge will have undertaken to uphold the Constitution.
The s.23 procedure is an appeal on a point of law only. It lies, where it lies at all, direct to this Court. There is no scope for factual evidence or cross-examination on the question, for example, of whether policy laid down in DPP v. Kenny [1990] 2 I.R. 110 was wrong, whether it has been overtaken by subsequent events, whether the costs of the Exclusionary Rule have come to outweigh its benefits. There is, in other words, no scope whatever for a fact-and-evidence based inquiry as to whether the conditions under which alone this Court can set aside one of its own previous decisions are met. I therefore find that, apart altogether from the jurisdictional difficulty which must be seen as fundamental, this procedure is inadmissible and should not be followed, unless one is to disregard the authority and the jurisprudence of Hynes O’Sullivan v. O’Driscoll [1988] I.R. 436, as well as that of DPP v.Kenny [1990] 2 I.R. 110.
Finality of Acquittal.
53. There is no doubt that, since the enactment of the Constitution, and for centuries before that up to 2010, an acquittal on a criminal charge by a court of competent jurisdiction was final and conclusive. Non bis in idem: no one can, after acquittal, be again prosecuted for the same offence. This, as a historical proposition, is agreed by the Law Reform Commission, by the Committee on Balance in the Criminal Law, and is established in many judicial decisions. Trial after trial is an acute form of harassment, not least in Ireland where one can easily await trial for years, even in a simple case.
Ne bis in idem, across history, cultures and continents.
54. Before considering the Irish, English and American cases on the principle that no person may be tried twice for the same offence, it is worth noting that the principle itself is of great antiquity and has been recognised across centuries and across many diverse cultures. The briefest account of the ancient roots of the tradition may put the more recent cases in context and may explain why, for many centuries, and even in cultures not renowned for their care of persons accused of criminal offences, this principle has been adhered to.
In ancient Greek times, Demosthenes in his “Speech against Leptines” delivered circa 355BC, almost 2,500 years ago, declared that:
“The law forbids the same man to be tried twice on the same issue”.
The Romans codified this principle in Justinian’s “Corpus Juris Civilis”, between 529 and 534AD. See Olynthiacs, Phillippics (J.H. Vince, trans. Harvard, 1998)
The principle survived the Dark Ages, notwithstanding the deterioration of other Greco-Roman legal traditions, through the Canon Law and the teachings of the early Christian writers. The Corpus Juris (ibid at 199) noted that “an acquittal by a magistrate in a criminal prosecution barred further proceedings of any kind against the accused”. This was so, then, in the fourth century before Christ, and in the sixth century after Christ, in the most civilised parts of the then known world.
The canonical principle “ne bis in idem” is regarded as a principle of natural law based on St. Jerome’s commentary on the prophet Nahum who said in Part I of his Book which is part of the Old Testament:
55. In Double Jeopardy: a reference guide to the United States Constitution by Professor David Stewart Rudstein (2004) at pages 3 and 4, the historical origins of the principle are taken on from Jerome’s commentaries on Nahum as follows:
“ …[A]round 1140, Gratian, a Camaldolese monk who taught in Bologna published his Concordantia Canoum, known as the Decretum”
This contained a massive citation of authorities from the past including Canons of Church Councils, scriptural passages and decisions of Popes. The Decretum contains at least two references to double jeopardy. The first, which seems to echo the dictum of Nahum as quoted above says “the scripture holds, God does not punish twice in the same matter”. The second states “whether one is condemned or absolved there can be no further action involving the same crime”. (ibid)
According to this authority the Canon Laws prohibition against double jeopardy emanated from the interpretation of St. Jerome of Nahum 1.9. St. Jerome’s interpretation of the verse entered Church Canons by the year 847 and was stated as “not even God punishes twice for the same act”. See Bartkus v Illinois, 359 U.S. 121 (1959) (Black J.)
56. Bartkus v Illinois 359 U.S. 121 (1959) was a case of a man who was tried in Federal Court on a charge of Bank Robbery. He was acquitted by a jury. A few days later he was tried on the same charge in the State Court of Cicero, Illinois. He was convicted and sentenced to imprisonment for life.
His challenge to this failed on grounds to do with the State’s prerogatives against the Federal Government. But no-one dissented from the following historical summary of Justice Black in the U.S. Supreme Court (359 U.S. 121, at pp. 151 to 155):
“Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers. By the thirteenth century it seems to have been firmly established in England, where it came to be considered as a “universal maxim of the common law.” It is not surprising, therefore, that the principle was brought to this country by the earliest settlers as part of their heritage of freedom, and that it has been recognised here as fundamental again and again. Today it is found, in varying forms not only in the Federal Constitution, but in the jurisprudence or constitutions of every State, as well as most foreign nations. It has, in fact, been described as a part of all advanced systems of law and as one of those universal principles “of reason, justice, and conscience, of which Cicero said: ‘Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations it is the same’. While some writers have explained the opposition to double prosecutions by emphasizing the injustice inherent in two punishments for the same act, and others have str4essed the dangers to the innocent from allowing the full power of the state to be brought against them in two trials, the basic and recurring theme has always simply been that it is wrong for a man to “be brought into Danger for the same Offence more than once. Few principles have been more deeply “rooted in the traditions and conscience of our people.”
From there, the U.S. jurisprudence is surveyed in Benton v. Maryland 395 U.S. 784 (1969) and other cases discussed in the judgment of Henchy J. in O’Shea v. DPP [1985] I.R. 384, below. See also Kenneth G. Coffin: Double Take 85 Notre Dame L. Rev. 771 (2010).
57. The state of the Common Law of England around the time of American Independence is well stated in Blackstone’s Commentaries as follows (Volume IV, Chp. 26, p. 265, par. 335, CAVENDISH Publishing Ltd., 2001):
“The plea of autrefois acquit… is grounded on this universal maxim of the common Law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence.” (ibid)
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58. This language of Blackstone is echoed in the Fifth Amendment to the United States Constitution which famously states:
“… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”.
59. Precisely the same principle is found in Article 50 of the Charter of Fundamental Rights of the European Union:
“No-one shall be liable to be tried or punished again in criminal proceedings for which he or she has already been finally acquitted or convicted within the Union in accordance with the law”.
60. Article 4 of Protocol 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms provides:
1. “No-one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State”.
61. Similarly, by Article 54 of the Convention Implementing the Schengen Agreement (2000) (CISA):
“A person whose trial has been finally disposed of in one Contracting State may not be prosecuted in another Contracting Party for the same acts…”.
From the foregoing material it is clear that the principle ne bis in idem has a history going back over thousands of years and was acknowledged in both the Judeo-Christian, Greek and Roman legal traditions, throughout the history of the Common Law, and is now, in our own time, trenchantly expressed in the law of the European Union, the Council of Europe, and the Schengen area. It is also enshrined in the United States Constitution and in Article 14 of the International Covenant on Civil and Political Rights.
62. In Zoran Spacic ([2014] EUECJ, Case C129/14 PPU) the ECJ held that Article 50 of the CFREU, cited above, applied not only trans-nationally in the Member States but also internally within in the jurisdiction of a Member State. The ECJ noted that, by Article 52 of the same Instrument the European Union was permitted to provide “even more extensive protection” than the ECHR. It noted that the guidance notes for the CFREU regarded Article 50 of that Instrument as equivalent to Article 4 of Protocol 7 to the ECHR and specifically requires Member States to uphold Article 50, CFREU.
Spacic was subject to prosecution in Germany for committing fraud against a German citizen following prosecution for the same facts in Italy. The ECJ upheld the condition in Article 54 CISA (above) which allowed subsequent prosecution where his sentence in Italy had not been executed.
The ECJ held:
In Zoran Spacic [2014] EUECJ, Case C129/14 PPU) , Advocate General Jaaskinen, in his Opinion to the court ([2014] EUECJ C-129/14_O), referred to the seminal ECHR case on Article 4 of Protocol 7, Zolotukhin v. Russia [2009] ECHR 252, (2012) 54 EHRR 16, which held that the Protocol was equivalent to Article 50 of the Convention. He distinguished Article 4 of Protocol 7 from Article 54 CISA, on the basis that the former covered “… both the prohibition of double prosecution and that of double punishment”.
The Advocate General also noted that para. 2 of Article 4 allowed a case to be reopened in accordance with law if either there was new evidence or a defect in the proceedings.
There is no suggestion that new evidence exists in the present case. It may well be that the mention, in s.23, of the need for “error” is designed to comply with the “defect in proceedings” requirement.
In that regard, the Advocate General noted much difficulty and discussions around the concepts of “offence” and “finality”. He noted that in Zolotukhin v. Russia [2009] ECHR 252, (2012) 54 EHRR 16 the Strasbourg Court clarifies the concept of offence or “idem” as “same set of facts”. In that case, the Strasbourg Court emphasised a harmonious approach to the definition of “idem” in line with Article 50 CFREU and the seminal United States case of Blockburger v. United States 284 U.S. 299 (1932), as necessary to the principle of legal certainty. The Strasbourg Court continued at pars. 79 to 82:
“Such an approach would favour the perpetrator, who would know, once he had been found guilty and served his sentence or had been acquitted, he need not fear prosecution for the same act…
It reiterated that the Convention must be interpreted and applied in a manner which rendered its rights practical and effective, and not theoretical or illusory.
Accordingly, the Court takes the view that Article 4 of Protocol 7 must be understood as prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same…”.
I am, accordingly, inclined to the view that the ne bis in idem principle prohibits retrial except in cases of fresh evidence or error.
The State has no locus standi to bring a s.23 application in the absence of either of these exceptions and the Court has no jurisdiction to grant relief either.
63. In the present case, the State itself does not submit that there is new evidence: for the reasons set out in this judgment I do no believe that there was error on the part of the learned trial judge”.
64. In Van Bockel, “The Ne bis in idem Principle in EU Law” (2010) Kluwer Law International, the Netherlands, the learned author placed the rationale of the principle as follows, from the point of view of European Law:
“The principle of ne bis in idem is a fundamental principle of law, which restricts the possibility of a defendant being prosecuted repeatedly on the basis of the same offence, acts or facts. The principle has a long history: the earliest known reference to the ne bis in idem principle originates from approximately 355BC… It is believe that the protection against double jeopardy the equivalent of the ne bis in idem principle at Common Law is as old as the Common Law itself. Although the ne bis in idem principle is universally recognised in its application within domestic legal systems, there is no rule of mandatory public international law offering international protection against double jeopardy in international situations. Because of this, conduct giving rise to criminal liability in more than one jurisdiction is traditionally regarded as constituting separate offences in each of the jurisdictions concerned… the creation of an EU wide ne bis in idem rule would follow logically from the nature of European integration in general, and the increasing criminal law relevance of the EU in particular”.
65. In this judgment I do not offer a final or concluded view of this case of J.C. on the basis of European Union or Council of Europe Law. This is primarily because I have been able to conclude that this appeal is incompetent and does not lie on the basis of Irish law. It is also because the European Law, like Irish constitutional law, was not argued for reasons which I do not understand.
In this instance, of course, the question of “final” acquittal may depend on the view one takes as to whether or not an appeal with the object of changing the law, and obtaining a retrial for the same matter in the changed state of the law, is or is not within s.23.
66. The Court is of course quite free, if it thinks fit to do so, to distance itself from the accumulated wisdom of the European, American and Judeo-Christian cultures in this regard. I do not think that wise, proper or even prudent.
If the Court does think it wise to take this serious step, it is to be hoped that Ó Dálaigh C.J.’s caution will be borne in mind. Safeguards like jury trial (and, I would say, like DPP v.Kenny [1990] 2 I.R. 110) exist to guard against an “improbable but not-to-be-overlooked future” contingency. (Melling v. Ó Mathghamhna [1962] I.R. 1)
67. Oppression and imprisonment, torture, exile or worse without trial or with secret tribunals created by and beholden to some power-wielding body, have not existed in this State for generations. But if, at some stage in the future a government were to come about, difficult as it may be to imagine, without the established tradition of legality, restraint, and respect for Human Rights which have characterised our governments for generations, would the authoritarian tendency of such a government be assisted or hindered by the cutting down of DPP v.Kenny [1990] 2 I.R. 110. I have no doubt it would be assisted, which is one reason why I will have no part in what is proposed.
68. It is true that various countries, led by Great Britain, in the Criminal Justice Act (2003), have permitted retrial after acquittal in very restricted circumstances. These typically include, as in the case of Britain, a “tainted” acquittal i.e. one procured by threats or bribery, or a retrial based on “new and compelling evidence”, unavailable at the time of the first trial. Three Australian States have adopted some variant of the “new and compelling evidence” exception while Canadian provisions seem to focus on errors of law.
But in no State that I have been able to find is a court empowered, as the prosecution claim we are, to change the law from what it was at the time of the previous acquittal, substitute a new law, and order a retrial to take place under that new law. This appears to me to be as abhorrent as it is unique, in the entire world, as far as my researches go.
69. It is important to understand just how long and how strongly established the ne bis in idem principle is. Long before the adoption of Bunreacht na hEireann, the old Irish Court of Appeal, in The Queen v. The Justices of County Antrim [1895] 2 I.R. 603 regarded the principle as “deep rooted” and “cherished”. There, a vagrant had been charged with trespassing on a railway line: he was acquitted, on the basis that the part of the railway line on which he was found was subject to a public right of way. The railway company was very upset about this result. It sought to challenge the acquittal on certiorari , on the basis that the Company claimed that one of the bench of magistrates had an interest in the matter. The Company also sought mandamus to compel the magistrates to re-hear the complaint.
70. The judgment of the Irish Court of Appeal was given by O’Brien C.J., later Lord O’Brien of Kilfenora, LCJ. He said (The Queen v. The Justices of County Antrim [1895] 2 IR 603 at p. 635):
“We are all of opinion that the conditional order cannot be sustained on any of the grounds advanced in support of it. One fatal objection presents itself in limine. The offence of which [the defendant] was charged is one punishable by fine and imprisonment, and the order sought to be quashed is one of acquittal. In the whole range of our law there is no precedent for the granting, or even the making, of such an application in a case where there has been an acquittal by the magistrates. Not only is the application unwarranted by precedent, but principle cannot be referred to in support of it; on the contrary, to grant this application for a writ of certiorari to quash an order for acquittal, and for a writ of mandamus to compel the magistrates to rehear the complaint, would be to act in disregard of one of the most deep rooted principles of the law. It would be a direct infringement of the principle that no-one is to be tried twice for one of the same offence. Nemo debet bis vexari pro unam et eadem causa is a maxim embodying one of the most cherished principles of our law. … In giving judgment in the case of The Queen v. Duncan (1881) 7 QBD 198 Lord Coleridge said:
‘The practice of the Courts has been settled for centuries, and that is that in all cases of a criminal kind, where a prisoner or defendant is in danger of imprisonment, no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted’.
The object of the application for a writ of certiorari and mandamus in this case is to deprive the defendant of the benefit of his acquittal, and to have him tried again for the offence in reference to which he has been acquitted. If, in the exercise of our discretion… we quashed the order of acquittal, we would deprive the defendant of the status of a man innocent of the offence of which he was charged and if we sent the case back to the magistrates, it would be only on the basis that the case could be reheard, though the law says that no man shall be tried twice for the same offences.”
(Emphasis added)
Mr. Justice Johnson concurred with the judgment of O’Brien C.J. in terms that were equally unequivocal. He said (The Queen v. The Justices of County Antrim [1895] 2 IR 603 at pp. 652 to 653):
“In R. v. Russell (1854) 3 El. and Bl. 942, the defendant was tried on an indictment for a public nuisance by the erection and maintenance of a certain embankment. This was a charge of misdemeanour and a criminal proceeding. The defendant was acquitted and a conditional order was obtained for a new trial on the grounds that the learned judge… had misdirected the jury and that the verdict was against the weight of the evidence. Cause was shown and allowed and the conditional order was discharged. In his judgment, Lord Campbell, C.J., says:
‘The ground of my decision is that this is a criminal proceeding, and that the defendant ought not be twice put in peril for the same cause. That rests upon a maxim of English law which will, I hope, always be held sacred… if there be an improper conviction it should be set aside, but I hope the same practice will never prevail in the case of an acquittal’.”
71. Similarly, in R (Kane) v. Tyrone Justices (1906)40 ILTR 181, Palles C.B. held it to be “an elementary principle” that:
“ [A]n acquittal made by a court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other court”.
72. Kane was a man who had been acquitted by magistrates on a charge of trespass in pursuit of game. The question was whether the prosecution could appeal to the old Court of Quarter Sessions by reason of a statutory provision providing such an appeal to “any party aggrieved by the determination of the Justices”. Palles C.B. held that it was the established policy of the law that a decision of acquittal by a court of competent jurisdiction could not again be brought before any other court. He further held, in a passage adopted in AG v. Kennedy [1946] I.R. 517 below, that in order to show a right of appeal against an acquittal, statutory words must be “clear, express and free from any ambiguity”.
73. Kane is described as “the leading Irish case” by Professor J.M. Kelly in Fundamental Rights in the Irish Law and Constitution. Speaking of the passage just cited Professor Kelly says:
“This doctrine has been consistently followed both in England and in Ireland where the matter was very fully discussed by the Supreme Court in connection with a State appeal against the quashing of a conviction in the case of A.G. v. Kennedy [1946] IR 517”.
(Emphasis added)
74. Post Constitution Irish cases on the same, or cognate, topics will be discussed below. I have referred to cases in which the impossibility of retrying an acquitted person was established as a matter of Common Law (which is continued in effect by the Constitutions of 1922 and 1937) as it stood when Ireland was part of the United Kingdom. This was a time when, in general, the rights of individuals, especially criminal defendants, were less sedulously guarded than at a later date, at least up to the present day. We are creating a new law less favourable to the citizen than was the law prevailing when Ireland was ruled by the Crown.
Does this “appeal” lie?
75. The Irish case referred to by Professor Kelly, AG v. Kennedy [1946] I.R. 517 is of interest on the very relevant topic of the construction of statutes or instruments said to permit a prosecution appeal. There, the accused had been convicted by the Special Criminal Court on a number of charges, but the Court of Criminal Appeal had set the convictions aside. The Attorney General sought leave to appeal that order of the Court of Criminal Appeal to the Supreme Court, but was refused. The Attorney then had recourse to s.29 of the Courts of Justice Act 1924 which, he said, permitted a prosecution appeal. This section provided as follows:
“29. The determination by the Court of Criminal Appeal of any appeal or other matter shall be final, and no appeal shall lie from that Court to the Supreme Court, unless that Court or the Attorney General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court in which case an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive”.
In reliance on this provision, the Attorney General of the day issued a certificate to himself and purported to appeal to the Supreme Court.
76. The Supreme Court dismissed the Attorney General’s appeal in limine, holding that it was incompetent and did not lie. Murnaghan J. said (A.G. v. Kennedy [1946] I.R. 517 at 529):
“In my opinion, s.29, which allows an appeal in general words, does not mean that anyone whosoever can apply for a certificate and enter an appeal. It is only the person convicted… who can make an appeal under the conditions stated in the Section. Similarly, any other person directly affected who can be said to have an appealable interest can, in my opinion, appeal. But… I ask myself have the People, at the suit of the Attorney General, an appealable interest against the decision of a court entering an acquittal on a criminal charge where an appeal is given in general words, and the Attorney General is not specifically named.
In my opinion this point has been decided in several cases in accordance with a long established course of practice. [He referred to R (Kane) v. Tyrone Justices].
… In order to show a right of appeal the words must be clear, express, and free from any ambiguity…”.
I would apply this test in construing s.23(3) of the Criminal Procedure Act of 2010.
77. When the Attorney General lodged his purported Notice of Appeal in, AG v. Kennedy [1946] I.R. 517, Counsel for Kennedy applied to the Court to dismiss the appeal on the ground that it did not lie. Mr. John A. Costello S.C., having established the general non-appealability of an acquittal, argued that “Mere general words are not sufficient to justify interference by the Court with a fundamental right of an acquitted prisoner”.(unverified) He relied for this proposition on Secretary of State for Home Affairs v. O’Brien [1923] A.C. 603.
This case, which arose out of the Irish troubles which were ongoing at the time, is of particular legal interest because it states the Common Law as it stood at almost exactly the moment when that immemorial law was taken over by the Irish Free State by virtue of its Constitution. O’Brien was a man whom the Home Secretary in England had ordered to be arrested in that country and deported to Dublin, there to be interned. The English Court of Appeal granted an order nisi, for the issue of a writ of habeas corpus, because they held that the detention was illegal as the Home Secretary had no power to order a person to be interned in the Irish Free State. The Home Secretary was given a week to make his return to the writ. Before that time had elapsed, instead of making a return to the writ, he purported to appeal to the House of Lords. The House of Lords dismissed the appeal as incompetent, just as the Supreme Court was later to do in AG v. Kennedy [1946] I.R. 517, above. The Home Secretary relied upon the generality of the words providing for an appeal to the House of Lords and said they were broad enough to capture an appeal in Secretary of State for Home Affairs v. O’Brien [1923] A.C. 603.
At p.610 Lord Birkenhead said that:
“It is certainly true that in terms the words are wide enough to give an appeal in such a matter as the present. But I should myself, if I approach the matter without the assistance of authority at all, decline utterly to believe that a section couched in terms so general availed to deprive the subject of an ancient and universally recognised constitutional right”.
(Emphasis added)
But, he said, the point was in any event covered by Cox v. Hakes (1890) 15 App. Cas. 506, referred to below.
At p.611 Lord Birkenhead declared:
“It follows… from Cox’s case, that no appeal lies to the Court of Appeal where discharge has been ordered; and the language of the relevant statutes being for the present purpose indistinguishable, it equally follows by parity of reasoning that no appeal lies in the present matter to the House of Lords, unless upon some ground of principle the present case can be distinguished”.
Lord Dunedin, at p.622 of the Report referred to:
“… what I have ventured to call the cardinal principle of the English law, that a person once found entitled to liberty should not be liable to have that determination again called in question”.
(Emphasis added)
I would be indeed sorry to think that the law of an independent Ireland, almost a century later, is less protective of the liberty of the citizen, than the law declared by Lord Birkenhead and his colleagues in 1923, who regarded the immunity of a citizen after acquittal as “an ancient and universally recognised constitutional right”, which was “the cardinal principle of the English law”.
Cox v. Hakes (1890) 15 App. Cas. 506 was followed by the Supreme Court in The State (Burke) v. Lennon [1940] I.R. 136 and relied upon for the proposition that mere general words “would not suffice to abrogate a rule so important to the subject’s liberty as that by which the grant of Habeas Corpus was final”.
However in The State (Brown) v. Feran [1967] I.R. 147 Walsh J., with whom three judges agreed held that the Canons of Construction applicable to a statute are not the same as those applicable to the construction of a written Constitution, thereby limiting the authority of the Victorian case to statutory, as opposed to constitutional, construction.
78. Statutory provision was made in Ireland, from 1967 onwards, for a reference of a point of law decided during a trial which ended in acquittal by direction, to be made to the Supreme Court. This procedure can clarify the law, but without prejudice to the acquittal of the defendant. See s.34 of the Criminal Procedure Act of 1967, as substituted by s.21 of the Criminal Justice Act of 2006.
79. To summarise: a verdict of acquittal by a Court of Competent jurisdiction is at Common Law absolutely sacrosanct. In Britain, where Parliament reigned supreme, unfettered by any written Constitution or Bill of Rights, that position could of course be changed by legislation. The right not to be subjected to repeated trials is “an ancient and universally recognised constitutional right”; “one of the most deep rooted principles of the law”; “one of the most cherished principles of our law”. The principle of “no retrial after acquittal” had, as long ago as 1881, “been settled for centuries”, before the enactment of the Constitution. It might be charged by Statutes, in the UK, but in that event the statutory words “must be clear, express, and free from ambiguity”.
So long established a right appears to me to be part of what is comprehended in the phrase “due course of law” or “due process of law” to use the phrase which the drafters of the American Constitution preferred but which, on high authority in this jurisdiction, is cognate to “due course of law”. This is guaranteed in Art. 38.1 of the Constitution. But the question of whether statutory provision for a retrial after an acquittal in the circumstances of this case can be consistent with the Constitution is not one raised before us and I do not discuss it.
80. The major modern Irish Authority on this question is People v. O'Shea [1982] I.R. 384, Henchy J. observed at p.434 that:
“The pre-Constitution refusal to entertain any breach of the autrefois acuit rule which continued to be firmly applied in the post -Constitution courts”.
He instanced several cases. One of these is The State (Attorney General) v. Binchy [1964] I.R. 395. This was a case where a verdict of not guilty had been directed by a trial judge. In the unanimous view of the Supreme Court this direction had been wrong in law. But they concluded at p.416:
“To quash the present verdict of “not guilty” would not in any real sense be to quash a verdict of acquittal. Nevertheless, where the jury’s verdict is recorded as a verdict of not guilty simplicter, this Court should act on the record for what it said. It is entirely without precedent to go behind such a verdict, and it is now too late to create one”.
(Emphasis added)
81. Henchy J. at p. 437, concluded on this aspect:
“… the authoritative Irish decisions in both the pre-Constitution and post-Constitution eras show that a plea of previous acquittal will always prevail (save in a statutorily allowed appeal by Case Stated) to defeat any appeal or other proceeding in which it is sought to make a person liable for an offence in respect of which he has already been acquitted within jurisdiction by a court of competent jurisdiction, even where such acquittal has been directed by the trial judge. There is nothing to show that before Conmey’s case it had occurred to any judge, counsel or academic writer that the rule had no application to acquittals obtained in the Central Criminal Court…”.
(Emphasis added)
82. Henchy J. observed at p. 438 that:
“The Common Law Rule that verdicts of acquittal by juries, whether directed by the trial judge or not, should stand irreversible passed with the Common Law Jury to various jurisdictions throughout the world… [t]he Common Law Rule… passed to the United States of America and was given constitutional force there by the Fifth Amendment which provides ‘… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…’.
This prohibition of double jeopardy has been held by the United States Supreme Court to debar the prosecution from appealing against the jury’s verdict of acquittal…
The rationale of the constitutional prohibition against double jeopardy was stated as follows by Mr. Justice Marshall when delivering the opinion of the Supreme Court of the United States in Benton v. Maryland (1969) 395 US 784:
‘The fundamental nature of the guarantee against double jeopardy can hardly be doubted. Its origins can be traced to Greek and Roman times, and it became established in the Common Law of England long before this nation’s [i.e. the United States of America’s] independence…As with many other elements of the Common Law it was carried into the jurisprudence of this Country through the medium of Blackstone who codified the doctrine in his Commentaries: ‘The plea of autrefois acquit, or a former acquittal,… is grounded on this universal maxim of the Common Law of England, that no man is to be brought into jeopardy of his life more than once for the same offence’. Today, every State incorporates some form of the prohibition in its constitution or common Law, as this Court put it in Green v. United States (355 U.S. 184 at 187 (1957))‘the underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty’. This underlying notion has from the very beginning been part of our constitutional tradition. Like the right to trial by jury, it is clearly fundamental to the American scheme of justice’.”
(Emphasis added)
Henchy J., having referred to that passage, said at p.439 “I see no reason why this Court should not reach the same conclusion as to the inviolability of such a verdict in the light of our Constitution”. I agree.
83. Henchy J. was giving his judgment in the context of a claimed right to appeal by the prosecution against a directed verdict of not guilty in the Central Criminal Court. This claim was based on the general words of Article 34 of the Constitution, conferring a general jurisdiction to entertain appeals from all decisions of the High Court on this Court, unless removed by law. That is not, of course, the context of the present purported appeal but, in People v. O'Shea [1982] I.R. 384, Henchy J. raised the question of what order the Supreme Court could make if it did entertain the appeal. He said at p.441:
“It could not order a retrial, for power to do so has been withheld from it, and if the Court were to take such a power to itself, it would be unconstitutionally legislating the abolition, for a restricted class of acquitted persons, to the right to plead a previous acquittal”.
84. As I have mentioned several times, no question of the constitutionality of s.23 has been raised here. But, having regard to the undisputed need at Common Law for any statute purporting to confer a right of appeal against an acquittal to be in clear and unambiguous words, s.23 must be closely analysed to see if, indeed, it permits the present purported appeal. I will shortly turn to this analysis.
85. In People v. O'Shea [1982] I.R. 384 at 414, Finlay P. came to the same conclusion as Henchy J.: that the appeal claimed by the prosecution did not lie. He approached the issue, at least in part, as an aspect of the constitutionally guaranteed right to trial by jury. At p.414ff of the Report he concluded in, a passage of great importance:
“… that the right of trial with a jury provided for in the Constitution includes the right to a trial with a jury, one of the ingredients or essential characteristics of which is the fact that a jury’s verdict of not guilty is not subject to an appeal to any other court. I am satisfied that this right, expressly dealing with the question of criminal trial, must take precedence over the general right of appeal from decisions of the High Court to the Supreme Court and that, accordingly, an appeal such as is sought in the instant case by the appellant against an acquittal entered by a jury within its jurisdiction, even as a result of a direction from the trial judge, is not sustainable”.
(Emphasis added)
86. Although the opinions expressed by Finlay P. and Henchy J. were those of a 3-2 minority in People v. O'Shea [1982] I.R. 384, the effect of the majority judgments, which were posited on the general words of Article 34 of the Constitution, was removed by statute.
In People v. O'Shea [1982] I.R. 384itself, the Court went on to dismiss the Director’s appeal on the merits, with costs to the Respondent.
Section 23.
87. I turn now to the construction of s.23 which is relied upon to confer a right of appeal on the prosecution. I do so in order to see whether the present purported appeal is within its scope. If it is not within the scope of the section, then, clearly, the Court cannot entertain it.
Section 23 of the Criminal Procedure Act 2010 introduced a momentous change. It permitted a with-prejudice prosecution appeal against an acquittal in certain circumstances. These circumstances are strictly delimited by the statute. The first point that logically arises on this appeal is whether the present purported appeal is within those strictly delimited circumstances.
It may be useful to offer an overview of the questions arising on this issue before descending into the necessary detail. Section 23(1) permits the prosecutor “subject to subsection (3) and Section 24”, to “appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court”. It is convenient here to set out s.23(1), (2) and (3), which define the scope of the Section.
The Section provides as follows:
(Emphasis added)
Requirement for “error”.
88. Subsection (3) of the Section provides that an appeal shall lie “only” where a ruling was made by the Court in the course of a trial “which erroneously excluded compelling evidence”. (Emphasis added), or a direction to acquit was given by the learned trial judge and “the direction was wrong in law”. (Emphasis added). The need for an error of law, by the trial judge, to trigger the entitlement to appeal under s.23 is central to my view of the case.
The ruling of the trial judge in this case.
89. I now set out the ruling of the learned trial judge which was given on the 18th July, 2012. I have, insofar as possible, edited irrelevant material in order to shorten the text. I have excluded, as I am required to do by statute, the name of the Respondent. The facts of the case appear, briefly but sufficiently, from the ruling of the Judge.
The learned trial judge, having heard evidence and submissions ruled:
“… we’ve all been left the consequences of the Damache ([2012] IESC11) judgment which perhaps be forever litigated until a final conclusion.
… Application was made to Chief Superintendent P.V. Murphy on the 10th May, 2011 for a search warrant pursuant to s.29 of the Offences against the State Act as substituted by s.5 of the Criminal Law Act of 1976 to search [premises in Waterford], the home of [the respondent].
A number of gardaí went to this premises in or about 10.30am on the 10th May 2011. Included in the party of gardaí were two who gave evidence before the Court in the voir dire, Detective Sergeant Donoghue and Detective Garda Burke, both of Waterford Garda Station. Detective Sergeant Donoghue was in possession of the search warrant issued earlier by Chief Superintendent Murphy. At the premises, Detective Sergeant Donoghue was in possession of the search warrant issued earlier by Chief Superintendent Murphy. At the premises, Detective Sergeant Donoghue spoke with a sister of [the respondent] and explained to her why the gardaí were there and [she] was shown the search warrant in the possession of the gardaí. In the meantime Detective Garda Burke went upstairs in the premises to a front bedroom where [the respondent] was in bed and proceeded to arrest him after allowing [him] to get dressed. This was at 10.40am.
Detective Garda Burke gave evidence that he was aware that Detective Sergeant Donoghue had a warrant to search the premises under s.29. He further said that he arrested [the respondent] under s.30 of the Offences against the State Act 1939, in relation to possession of firearms on the 5th May 2011… He cautioned [the respondent] and explained that he would be detaining him under the provisions of s.30 for twenty-four hours. He was aware of the search taking place, that’s Detective Garda Burke, and stated that it was his attention to arrest [the respondent] that morning at [the premises].
The State accepts that nothing of an evidential nature arose as a result of the search of [the premises]. The issue here is the lawfulness of the arrest of [the respondent]. His resulting detention is at stake, as well as admissions made while in custody on foot of the arrest.”
90. The learned trial judge next discussed the scope of the powers of search under the Offences against the State Act and continued:
“The power to search a dwelling house under the 1939 Offences against the State Act was only permissible under Section 29 of that Act which permitted, on foot of the search warrant, that buildings, and I quote buildings from the Act, could be searched. Thus, entry into a private dwellinghouse to arrest under s.30 was done by obtaining a search warrant under s.29 of the 1939 Act and arresting once on the premises. It appears that a very convenient practice of issuing search warrants under s.29 of the 1939 Act to allow for searches and contemporaneous arrests under s.30 arose over the years. While the Offences against the State Act, 1939 was originally intended for, and I am quoting from the long title, amongst other things:
‘Actions and conduct calculate to undermine public order and the authority of the State and for that purpose to provide for the punishment of persons guilty of offences against the State etc.’.
The provisions of s.29 and s.30 were increasingly used over recent years for non-politically subversive crime. This was perhaps understandable where few other legislative alternatives to carry out searches and arrests for serious crime were available to the gardaí, but less excusable in more recent years, where laws have been enacted to give the gardaí greater powers of arrest, in particular, and search. Robbery or attempted robbery is the main allegation in all three offences before the Court. This is an arrestable offence within the meaning of s.4 of the Criminal Law Act of 1997. Like s.30, this gives the gardaí power of arrest without warrant in relation to offences where the penalty is five years or more. Robbery is one such offence. Section 6 of that Act gave powers of entry and search to gardaí either with or without warrants for the purpose of arresting the persons. Section 4 and s.6 of the Criminal Law Act 1997 would appear to be, in many ways, the non-subversive crime equivalent of s.29 and s.30 of the 1939 Act. Despite these provisions introduced in 1997, gardaí still rely, or more appropriately relied, on s.29 and s.30 of the 1939 Act, where scheduled offences were involved, most particularly firearm offences. One of the reasons would appear [to be] that s.29, in particular, was more convenient and offered greater scope for entry and search than s.6 of the Criminal Law Act of 1997.
Matters came to a head in February of this year, 2012, as a result of the decision in the Supreme Court in the case of DPP v.Damache ([2012] IESC 11). I’ve considered the submissions from both prosecution and defence in this case and the case law referred to and relied upon and in particular, to the cases of DPP v.Laide and Ryan ([2005] IECCA 24) which is now reported in [2005] 1 IR 209 and the very recent decision of DPP v.Barry O’Brien ([2012] IECCA 68), a decision that was handed down on 2nd July, 2012 in the Court of Criminal Appeal. Neither is on all fours with the case involving [the respondent]. The O’Brien case was heard before the Special Criminal Court and involved an allegation of membership of an unlawful organisation, while in the Laide case, there was no reliance at upon any portion of the Offences against the State Act, primarily because of the nature of the case… under investigation in that matter. However, both deal with the issue of the inviolability of the dwellinghouse and the consequences that can arise as a result of a finding that entry into a dwellinghouse is unlawful.”
91. The learned trial judge, having heard the witnesses, and established the legal parameters of the application before her, proceeded to make certain findings, as follows:
“In this case, I am satisfied that the entry into [the respondent’s] house on the 10th May 2011 was on foot of the warrant issued under s.29 of the Offences against the State Act 1939. This was the vehicle to get into the door, both to search and to effect the arrest under s.30 of the 1939 Act. If [the respondent] had not been there, I’ve no doubt s.30 would have been employed otherwise, but that doesn’t arise because [he] was present and was arrested under the provisions of s.30. I’m not satisfied that the Criminal Law Act of 1997 ever figured in the consideration of the gardaí in this case. I note that the Damache ([2012] IESC 11)case was also based in Waterford and that the High Court decision in this case was given, in fact, two days later on the 13th May, 2011. It seems to me that the gardaí in Waterford, in particular, were more alert to possible issues surrounding the s.29 warrants than perhaps other colleagues in the country. So, I’m satisfied that the entry was unlawful and, as such, the gardaí were trespassers and that includes the arresting garda, Detective Garda Burke. Insofar as the consequences arise, I have regard to the decision in the Laide ([2005] IECCA 24) case and in particular the final - the penultimate paragraph on p.234where the Court says:
‘It follows in the present case that the act complained of, namely the entry upon the dwelling of a second accused on the 26th September 2000, comes within the concept of an intentional and deliberate action by members of An Garda Síochána in the sense that it was not an accidental or unconscious act on their part. The fact that they believe they had lawful authority so to enter is beside the point. There are no extraordinary excusing circumstances such as to allow the evidence to have been admitted and accordingly, this Court is satisfied that the evidence in question ought not to have been admitted at the trial’.”
(Emphasis added)
92. The learned trial judge then concluded her remarks as follows:
“There doesn’t seem to be any extraordinary excusing circumstances relied upon by the prosecution in this case and it seems that the arrest, having been unlawful, the detention that flowed was unlawful and any interviews or any matters arising during the course of the detention cannot be relied upon and admitted as evidence in the trial against [the respondent].”
Findings of Fact.
93. The learned trial judge gave the ruling quoted above after hearing, by way of voir dire, evidence called by the prosecution on the question of the admissibility of the evidence. She saw and heard the witnesses and arrived at the conclusions noted above. These include, relevant to the present issues, the following findings of fact:-
(i) “I am satisfied that the entry into [the respondent’s] house on the 10th May 2011 was on foot of the warrant issued under s.29 of the Offences against the State Act 1939”.
(ii) “This [i.e., the warrant under s.29] was the vehicle to get into [recte, in] the door”, both to search and to effect the arrest…”.
(iii) “I’m not satisfied that the Criminal Law Act of 1997 ever figured in the consideration of the gardaí in the case”.
(iv) “I’m satisfied that the entry was unlawful and, as such, the gardaí were trespassers, and that includes the arresting guard, Detective Garda Burke”.
(v) “There doesn’t seem to be any extraordinary excusing circumstances relied upon by the prosecution in this case…”.
94. All of the foregoing findings appear to me to be findings of fact made by the trial judge upon oral evidence, and having heard the witnesses who gave such evidence examined and cross-examined. Even if one disagreed with them, they could not be regarded as “erroneous” or “wrong”. But I wish to make it emphatically clear that I do not disagree with them in any way.
95. The legal constituent of the finding of the learned trial judge was based on the decision of the Court of Criminal Appeal in DPP v.Laide and Ryan [2005] IECCA 24,[2005] I IR 209, at 234, which itself was grounded on earlier authority, including DPP v.Kenny [1990] 2 I.R. 110.
The Damache case.
96. On the 23rd February 2012 the Supreme Court, (per Denham C.J.) held that s.29 of the Act of 1939, as inserted, was unconstitutional. The finding of the Court, contained in para. 59 of the judgment in DPP v.Damache [2012] IESC 11[2012] 1 IR 266 is as follows:
“This Court will grant a declaration that s.29(1) of the Offences against the State Act 1939, as inserted by s.5 of the Criminal Law Act 1976, is repugnant to the Constitution as it permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person”.
97. A warrant under the invalidated s.29(1) was precisely what was relied upon by the gardaí to enter the respondent’s house in this case. One of the gardaí who was present on those premises on foot of the s.29 warrant arrested the respondent. The consequence of that was the issue for Judge Ring, and she ruled as above.
Grounds of the Appeal.
98. The appellant appears to involve certain grounds of appeal which appear to me to be wholly excluded by the factual findings of the learned trial judge. These centre on the on the proposition that the arresting guard, unlike the other gardaí, was physically on the respondent’s premises on a basis that did not involve reliance on the s.29 warrant, which was admitted to be invalid. These factual findings of the judge cannot themselves be challenged since s.23 permits of appeal only for errors of law, or directions which are “wrong in law”. The finding “that the entry into the dwellinghouse was carried out on foot of the s.29 warrant for the purpose both of the search and the arrest” appears to me to be manifestly a finding of fact. In the voir dire at the criminal trial, the onus of establishing the admissibility of the evidence to which objection was taken rested on the prosecution. Accordingly the finding “I’m not satisfied that the Criminal Law Act of 1997 ever figured in the consideration of the gardaí in this case” is also clearly a finding of fact.
The salient factual finding is that entry to the dwellinghouse for the purpose both of search and of arrest was obtained pursuant to a warrant, the s.29 warrant, which was issued under a section of a statute which was itself unconstitutional. That is the factual position for the purposes of this purported appeal.
A concession.
99. It appears to me that the grounds on which an appeal is even potentially available relate entirely to the consequences of those factual findings. This is reflected in the concession, set out at para. 9 of the appellant’s submissions in the present case, that the appellant contended at the trial, and contends before this Court that whereas by reason of the unconstitutionality of the s.29 warrant Detective Sergeant Donoghue and the other gardaí involved in the search were on the premises unlawfully, Garda Burke was lawfully on the premises. It is therefore admitted by the State that all the gardaí, other than Garda Burke, were unlawfully on the respondent’s premises. Since the premises are a dwelling, they were unconstitutionally present there. See Art. 40.5 of the Constitution.
But the learned trial judge found as fact that the entry of all guards including Garda Burke into the respondent’s premises was on foot of the s.29 warrant which was “the vehicle to get [in] the door both to search and to effect the arrest”.
This excludes the possibility that one of the guards entered on some other basis or that the arrest was effected by a guard who was present on some other basis. Since this is a question of fact, and not of law, it cannot be the subject of an appeal by the prosecution. If it had been decided the other way, it could not have been appealed by the defence. Moreover, since it is a finding of fact made after hearing the oral evidence of witnesses, and after hearing their cross-examination, this Court cannot substitute another view of the facts for that of the learned trial judge who had seen and heard the witnesses.
100. It is also important that, as stated in the remarks of the learned trial judge in delivering her ruling, the prosecution did not rely upon any “extraordinary excusing circumstances”, a phrase whose meaning will be discussed below. But it does not arise here, because it was not relied upon at the trial.
101. It appears to me therefore that the only aspect of the appeal which is any way open, even on the State’s construction of s.23, is that set out first at para. 21 of the appellant’s submissions:
“… [T]he appellant will invite the Court to consider again the content and effect of the exclusionary rule”.
In the following paragraph this is expressed as follows:
“Specifically, the appellant invites the Court to overrule the decision of the majority in DPP v.Kenny [1990] 2 IR 110”.
102. At para. 62 of the submissions, under the heading “Conclusion”, the appellant states:
“By reason of the foregoing it is submitted that the strict exclusionary rule of evidence should no longer form part of Irish law.” (Emphasis added)
It is thereby admitted that the Exclusionary Rule was part of the law of Ireland at the time of the trial. (“no longer form part of Irish law”), and is so now.
It is also clear from the State’s submissions that it is asking this Court itself to change the pre-existing law of the land, and order a new trial under a new, judge made, law whose content is at present uncertain. It is far from clear to me how this proposal is consistent with Art. 15.21 of the Constitution:
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas.”
______________________________________________________________
This aspect of the appeal occupies fully two-thirds of the State’s written submissions. I believe it is the only part of the appeal which is even potentially statable. The other grounds come down to the proposition that the arresting guard, Garda Burke, was in a different position to the other gardaí whose presence on the respondent’s premises is admitted by the State to have been unlawful. This proposition is excluded by the findings of fact of the learned trial judge, from which no appeal lies.
103. It is agreed by the prosecution that the learned trial judge, in excluding certain evidence, followed the established law and in particular the case of DPP v.Laide and Ryan [2005] IECCA 24, [2005] 1 I.R. 209, which itself applied the well-known case of DPP v.Kenny [1990] 2 I.R. 110 . She did not grant the direction “wrongly” in point of law and she did not grant it “erroneously”. The prosecution do not complain of error by her in that regard: they complain of DPP v.Kenny [1990] 2 I.R. 110 and wish to “overrule” it. But that appears to be manifestly outside the scope of an appeal which is limited to errors by the trial judge. They ask the Court to declare or arrange that DPP v.Kenny “should no longer form part of Irish law”. But the learned trial judge was obliged to act as she did and had no option but to do so. This, as we shall see, is agreed. Therefore she did not err.
104. The target of the prosecution on this appeal is not, therefore, any alleged error by the learned trial judge who followed the law as she was bound to do. Instead, the prosecutor’s target is that law itself. The prosecution in this appeal invite the Court to depart from its own previous decision in DPP v.Kenny [1990] 2 I.R. 110. But that case, and, DPP v.Laide and Ryan [2005] IECCA 24, [2005] 1 I.R. 20, were undoubtedly binding on the learned trial judge at the time of the acquittal. See below “Obligation of a trial judge to follow the law”.
105. The question that now arises, in my view, is whether the prosecution can lawfully seek to set aside DPP v.Kenny [1990] 2 I.R. 110 in an appeal pursuant to s.23 of the 2010 Act. The Section on the face of it is directed at “errors” by the trial judge. But no error by the trial judge is alleged or can be supported. She followed the law as she was obliged to do. If that is so, then this appeal is not within s.23, and is therefore incompetent and does not lie.
106. As we have seen, conclusivity of a verdict of acquittal is a feature both of the Common Law which existed for centuries before the adoption of the Constitution, and of the Constitutional Order itself. Any alleged statutory deviation from it must be strictly construed and confined within the terms of the legislative enactment. This is the question that first arises. No question has (for whatever reason) been raised of the constitutionality of a departure from the common law and constitutional position, and I shall therefore make no comment on that issue. Section 23 of the Act of 2010 attracts a presumption of constitutionality.
Parliamentary History of s.23.
107. Since this aspect of the case turns on the construction of s.23(1) (2) and (3) of the Criminal Procedure Act of 2010, it is useful to consider the traveaux préparatoires of that provision. Section 23 of the Criminal Procedure Act is the sole basis for this appeal, and it requires the State to show “an error” “by the trial judge”.
108. As it happens, the background to the enactment of s.23 can be ascertained with unusual precision from the observations of the Minister who introduced it (Mr. Dermot Ahern, T.D.) and from the material to which he refers. On 29 June 2010, on the Committee stage of the Bill, the Minister said:
“Section 23 is intended to capture the recommendation of the Balance in the Criminal Law group that a with-prejudice right of appeal against acquittals following trials on indictment should be available to the prosecution in certain circumstances. The Review Group recommended that rights should be available in the case of erroneous rulings by a trial judge which resulted in a judge directing acquittal or weakened the prosecution case that is put to the jury. The report of the group emphasised that a jury acquittal, following receipt of all admissible evidence, should be impregnable under the regime.
This requirement stems from the constitutional right to jury trial…
Both subsections are subject to new subsection (3), which contains the key changes to the [S]ection. It limits the circumstances in which appeals shall lie under subsections (1) and (2) to rulings by the Court which erroneously excluded compelling evidence, in para. (A), and in the case of Judge-directed acquittals, where the direction was wrong in law…”.
(Emphasis added)
From this statement there emerges clearly, in the first place, that the genesis of the Section is the report of the Balance in the Criminal Law group, and secondly, that the right to appeal was intended to be confined to the circumstances specified in the Report and in the Section, and further analysed below.
Balance in the Criminal Law Group Report.
109. This document, which dates from 15 March 2007, was the product of a group chaired by Gerard Hogan, LLD SC, now the Honourable Mr. Justice Hogan, Judge of the Court of Appeal. The group was composed of legal and other figures including two persons employed in important positions in the legal services of the State. There were no other persons engaged predominantly in the practice of Criminal Law; the specialist defence Bar and Solicitors were not at all represented in the Group, for whatever reason.
110. At pp. 196 to 198, the group made the following recommendation which, we know from what was said by the Minister, led to the enactment of the present s.23:
“We ultimately have come to the conclusion that a trial that founders on an error of law made by a trial judge cannot reasonably be described as a trial in due course of law. There must, logically, therefore be a “with-prejudice” right of address against erroneous decisions by a trial judge, whether that it is an interlocutory or evidential ruling… or a directed acquittal… the fact that such a trial judge error might be followed by a jury acquittal does not in our view mean that the principle of jury trial is any way compromised by allowing a with-prejudice appeal. The jury decision on the merits following reception of all admissible evidence is totally impregnable under our proposal. Only where the jury is directed as to its verdict, or wrongly prevented from considering admissible evidence, could the jury verdict be impugned”.
(Emphasis added)
111. At p.188 the Review Group noted that it:
“… does not consider that any fundamental constitutional principle would be infringed by allowing erroneous rulings on law which result in an acquittal to be revisited…”.
(Emphasis added)
Only the trial judge, of course, can make such rulings.
From these references it is quite clear that what the Section was intended to capture was “erroneous rulings by a trial judge which result in a judge directed acquittal”, or “erroneous rulings on law which result in an acquittal”, as the Balance in Criminal Law group put it, or “erroneous rulings by a trial judge which resulted in a judge directing acquittal” as the Minister who introduced the measure put it. The emphasis throughout is on erroneous rulings or “wrong” rulings by a trial judge i.e. the judge who presided over the trial which resulted in acquittal. The error or wrongness must be that of the trial judge and no-one else.
Construction of Section 23.
112. The Criminal Law Procedure Act of 2010 does not offer any special definition of the words “erroneous” or cognate words, such as “erroneously”, nor of the term “wrong in law”. This is in no way surprising since the words are ordinary English words offering no great difficulty in definition. In the absence of any special definition they fall to be construed in their ordinary and natural meaning.
I believe that the ordinary and natural meaning of “erroneously” and cognate words, is accurately stated in the Oxford English Dictionary (2nd Edition) Clarendon Press Oxford, 1991. This defines “err” in its relevant sense as:
“To go wrong in judgement or opinion; to make mistakes, blunders… to be incorrect”.
This act of “erring” by s.23 to be that of the trial judge. No-one else.
113. The term “error” is defined in the same source as:
“The condition of erring in opinion; the holding of mistaken notions or beliefs; an instance of this, a mistaken notion or belief…”.
The same source gives a special definition of the use of the term in a legal context:
“To determine or decide to be erroneous (a decision of a court)”.
All of these acts are required by s.23 to be done by the trial judge. No-one else.
114. The form of the word which appears in the Criminal Procedure Act of 2010, is “erroneously”. It will surprise no-one to learn that this means “in an erroneous manner… in a misguided manner, otherwise than is the fact; “incorrectly”.
115. The word “wrong” is of course a very common one. In its relevant sense, it means, according to the dictionary already cited “that has no legal right, title or claim; not legitimate; unlawful”. This meaning is indistinguishable from the statutory phrase “wrong in law”.
All the words whose sense or senses are given above are verbs, adjectives or adverbs. The action connoted by the verb “to err” must be done by some person; the adjective “erroneous” must be applied to the action of some person; the adverb “erroneously” must be applied to an act of a person.
116. When these terms are examined in the context of the first three subsections of s.23 of the Criminal Procedure Act of 2010, it is in my view clear beyond argument who precisely is the person to whose actions the terms “erroneously” or “wrong in law” are applied. The term “erroneously” where it appears in s.23(3)(a) is applied to “a ruling made by a court during the course of a trial… which erroneously excluded compelling evidence”.
117. The reference to “a court” is a reference to the Judge presiding at a trial, because the presiding Judge is the only person who can make a ruling excluding evidence. Similarly, the phrase “wrong in law” is applied to:
“A direction given by a court during the course of a trial…, directing the jury in the trial to find the person not guilty”.
An appeal lies where such direction is “wrong in law”, by reason of an error by the trial judge and not otherwise.
118. The term “court”, meaning an entity which is entitled to direct a jury to find a person on trial not guilty, can only be a reference to the judge at the trial. It can have no other meaning. No-one else can give such direction.
The effect of the foregoing.
119. It appears to me that both a close verbal analysis of s.23(3), the subsection which creates the “only” circumstances in which an appeal of this kind is possible, and an analysis of the travaux préparatoire confirm the legislative intention, and that each approach leads to precisely the same conclusion. Section 23 is intended to create a right of appeal for the prosecution in the circumstances set out in the Section, and in those circumstances “only”. Those circumstances relate to, and presuppose, an erroneous act. This is not a reference to some theoretical generality of erroneous acts but to an erroneous act by the “court”. There is no doubt, for the reasons given above, that this phrase, “the Court” means the Judge who presides at the trial against whose error the prosecution wish to appeal. The judge’s act, which must be either “erroneous” or “wrong in law”, must be the act either of excluding compelling evidence from the consideration of the jury or, alternatively, the act of giving a direction to acquit, which direction is “wrong in law”. Only a judge can do either of those things, and only the trial judge, in this case Judge Ring.
120. This is the result which follows from a detailed verbal analysis of the provision. It is absolutely consistent with the statements of the Minister who introduced the Bill which became the Criminal Procedure Act of 2010. The legislative intention was “to capture the recommendation of the balance in Criminal Law Group. … the Review Group recommended that rights should be available in the case of erroneous rulings by a trial judge.
121. As we have seen, the Review Group at pages 196-98 of the Report recommended the provision of an appeal only on the basis of “an error of law made by a trial judge” or, “erroneous rulings on law”.
122. This is the scope of the Appeal created by s.23. It provides an appeal against “erroneous” decisions by Circuit Court judges. In the present case there was no such appealable erroneous decision by Judge Ring.
Obligation of a trial judge to follow the law.
123. The former Chief Justice, Finlay C.J., very aptly observed that, in the Irish legal system (as in every Common Law system) there is a hierarchy of courts, though not, he said, a hierarchy of judges. The Supreme Court and the High Court, which are created by the Constitution itself, are Superior Courts. The other ordinary trial courts, the Circuit Court and the District Court are courts of “local and limited jurisdiction”, created by statute. The great majority of the cases dealt with in the Courts of Ireland are dealt with in the Courts of local and limited jurisdiction. In the interest of consistency in the administration of the justice there is a doctrine of precedent which requires that, where a decision of the Superior Courts exists and is directly relevant, a lower court must follow it.
I entirely agree with what is said on this topic by Byrne and McCutcheon in The Irish Legal System (5th Ed. 2009), at para. 12.30, under the heading:
Lower Courts should follow the decisions of higher Courts.
124. Under this heading, the learned authors say:
“The principal rule is that an inferior court must follow the earlier decision of Superior Courts. Accordingly, the High Court must follow the Supreme Court and the Circuit Court must follow both the High Court and the Supreme Court. The rule is so well settled that it has “seldom been questioned by an Irish Court”.
(Emphasis added)
The learned authors however go on to cite several Irish cases where the rule is affirmed, which it is unnecessary to set out here. The plain fact here is that Judge Ring was bound to follow the relevant decisions of the Superior Courts and, in this particular instance, the Supreme Court. It is clear from the long extract from her judgment above, that she did precisely this and made no error. This appeal simply does not lie.
Section 23 Procedure inappropriate.
125. By reason of the foregoing, I do not believe that an appeal by the prosecution pursuant to s.23 lies at all when no appealable error by the learned trial judge can be shown and where she undoubtedly followed decisions of the Superior Courts. These decisions, indeed, were binding upon her. I believe, for the reasons set out above, that the right of appeal created by s.23 is strictly limited to the circumstances set out there and that that provision requires to be strictly construed. There is absolutely nothing in the wording of the statute, or in the traveaux préparatoires to suggest that the appeal created by the Section can be used for any purpose other than to correct errors by the trial judge or, in particular, that it can be used as an opportunity to revisit, with a view to setting aside, a previous decision of this Court, which has been authoritative for twenty-five years.
126. Apart from this jurisdictional issue, I do not consider that the procedure under s.23, even if it were available, is a suitable framework within which to address the question whether we should depart from one of our own previous decisions. The jurisdiction is meant to correct errors in law by a trial judge. It is not a suitable jurisdiction in which to address the question of whether, to quote the State submissions “the strict exclusionary Rule of Evidence should no longer form part of Irish Law”.
The established criterion for overruling or disregarding a previous decision of the Court is that the Court must be “clearly of opinion that an earlier decision was erroneous”. (A.G. v. Ryan’s Car Hire Ltd. [1965] I.R. 642); or be “clearly of opinion that the earlier decision was wrong” (Mogul of Ireland v. Tipperary (NR) County Council [1976] IR 260). It is difficult to see how such a conclusion could be reached without proposing an alternative view, which would not be “wrong” of the interpretation of the constitutional provisions relevant to this topic. The narrow statutory scope of the remedy provided by s.23 of the Act of 2010 is quite unsuitable for the devising of a new form of law to substitute for the one which has, up to now, been accepted.
The case sought to be overruled, DPP v.Kenny [1990] 2 I.R. 110 , which is more fully analysed later on in this judgment, proceeded on the basis of an exegesis of the Constitution which, in all material respects, is unchanged since it was considered by our predecessors who adjudicated in DPP v.Kenny [1990] 2 I.R. 110, in 1989. This being so, it is not obvious to me how their interpretation of the Constitution can be described as “wrong”. Later in this judgment I address what appears to me to be a rather bleak attempt, in the State’s submissions, to suggest; not that so much that DPP v.Kenny [1990] 2 I.R. 110 was wrong when decided, rather that developments since DPP v.Kenny, mainly developments affecting policing and the statutory control of An Garda Síochána, may have rendered the protections found to be constitutionally necessary in DPP v.Kenny either unnecessary or less necessary. But the main finding in DPP v.Kenny, that Article 40 of the Constitution imposes a duty on the judges to vindicate the constitutional rights of the citizens, and that that duty requires the stated action on the part of the judges when a citizen’s constitutional rights are breached, does not appear to me to be capable of attack as being “wrong” or “erroneous”. It is obviously (to use no stronger term) disliked by the public prosecutor but that is a different thing. No evidence or other rational ground for this dislike was advanced, or could be under the s.23 procedure which the State adopted.
127. This difficulty was recognised in this Court in Hynes O’Sullivan v. O’Driscoll [1988] I.R. 436. There, the Court was invited to amend the well established Common Law defence of qualified privilege. The Court refused to do so for a number of reasons, which are set out by Henchy J. at p. 450 of the Report. On the latter page he said:
“… I am of the opinion that the suggested radical change in the hitherto accepted law should more properly be effected by statute. The public policy which a new formulation of the law would represent should more properly be found by the Law Reform Commission or by those others who are in a position to take a broad perspective as distinct from what is discernable to the tunnel vision imposed by the facts of a single case. That is particularly so in a case like this where the law as to qualified privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name. The articulation of public policy on a matter such as this would seem to be primarily a matter for the legislature”.
This topic will be further discussed below.
128. For that reason, even if there were jurisdiction to do so in a s.23 appeal, which I find there is not, I would decline to endorse the proposed “radical change in the hitherto accepted law” on this appeal. Still less would I order a new trial of the very counts of which Mr. J.C. has been acquitted, in a new, radically altered, state of the law. I regard this prospect with total abhorrence, as it would negate a “cherished” “constitutional” right of free citizens, enjoyed for centuries, at Common Law, quite apart from the Constitution. It would reduce constitutional rights, which this Court is bound to defend and vindicate, to mere words on a page.
129. It is of course true that there are circumstances in which the Courts are required, in the exercise of their proper role in the evolution of the Common Law, to develop Common Law principles to meet new surrounding circumstances. As one of my colleagues, Clarke J., has remarked in another case, “contract law which developed in the age of the mounted courier and the telegraph has had to adapt, largely without legislative assistance to the electronic age”. But, he continues “In many cases, law (whether the Common Law or Statute Law), which is outdated, no longer fit for purpose and at odds with developments in science, can only properly be changed by legislation”.
130. It is plainly necessary for any Common Law judge confronted with the (often very seductive) temptation to change the law in the interests of what he or she perceives to be justice, to be very clear as to the legitimate scope of his ability to do so.
Justice Oliver Wendell Holmes was Chief Justice of the General Court of Massachusetts and subsequently for twenty-five years a Justice of the United States Supreme Court. He was the author of a well-known treatise on “The Common Law”. He was a scholar, par excellence of the role of the Common Law judge and in particular of the scope for such a judge to develop or evolve that body of law. In Southern Pacific Company v. Jensen 244 US 205(1917), he said in an influential passage at p.221 of the Report:
“I recognise without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say ‘I think the doctrine of consideration a bit of historical nonsense and I shall not enforce it in my court’. No more could a judge exercising the limited jurisdiction of admiralty say ‘I think well of the Common Law Rules of Master and Servant and propose to introduce them here en bloc’.”
We are being asked to dispose of DPP v.Kenny [1990] 2 I.R. 110 in the same fashion that Justice Holmes’s was tempted to disapply the doctrine of consideration.
Justice Holmes language is in part somewhat unusual. But “molar” means of or relating to a very large body or mass; molecular, on the other hand, connotes an almost infinitely small entity.
This passage was adopted in Kleinwort Benson v. Lincoln City Council [1999] 2AC 349 at p. 378, by the distinguished English jurist Lord Goff:
“When a judge decides a case which comes before him, he does so on the basis of what he understands the law to be. This he discovers from the applicable statutes, if any, and from precedents drawn from reports of previous judicial decisions… In the course of deciding the case before him he may, on occasion, develop the Common Law in the perceived interests of justice, though as a general rule he does this ‘only interstitially…’ This means not only that he must act within the confines of the doctrine of precedent, but that the change so made must be seen as a development, usually a very modest development, of existing principle and so can take place as a congruent part of the Common Law as a whole. In this process, what Maitland has called ‘the seamless web’ and I myself… have called the ‘mosaic’ of the Common Law is kept in a constant state of adaptation and repair, the doctrine of precedent, the ‘cement of legal principle’ providing the necessary stability”.
131. It must be very clear that what is proposed in the present case could not possibly be described as an “interstitial” development. This word means pertaining to, forming or occupying interstices, according to the Oxford English dictionary. An interstice is “an intervening, usually empty, space, especially a relatively small or narrow space, a chink, a crevice”: the modest scope of the power described by this adjective is sufficiently suggested by that definition. What is proposed here is emphatically not something that can be done “within the confines of the doctrine of precedent”; indeed it proposes to set aside what is a modern binding precedent. It is in no sense a development of a “seamless web”; it is a proposal to extract a significant part from that web and replace it with something quite different. What is proposed here is plainly not interstitial in any conceivable sense. It is proposed to set aside a decision of this Court on a matter of high constitutional importance, which has been recognised as authoritative for a quarter of a century. The State’s claim is that the decision “should no longer form part of Irish Law”.
This is an invitation to overrule DPP v.Kenny [1990] 2 I.R. 110 and then to lay down law in the area left vacant, and to do so without any evidence-based assessment of the experience of DPP v.Kenny’s operation. If the Court were to accede to the State’s invitation, it would lapse into illegitimacy.
132. With great regret, and a deep consciousness of the responsibility I assume in doing so, I must protest that any action of this Court purporting to overturn DPP v.Kenny [1990] 2 I.R. 110 would be quite illegitimate. This is firstly because s.23 of the Criminal Procedure Act of 2010 creates no power to do this. Secondly and just as fundamentally, the suggestion that the Court should amend the law of the land so as to ensure that the Exclusionary Rule “should no longer form part of Irish law” is quite inconsistent with the gradualist, minimalist and “interstitial” power of the Common Law judges to develop or evolve the law in light of changing circumstances. The objections are quite apart from the merits or demerits of the State’s claim which are discussed below.
133. Mr. Justice Clarke, as we have seen, has referred to the need to develop the law of contract, which took its rise in its modern form “in the era of the mounted courier and the telegraph”, in light of the developments of the electronic era. I doubt if the mounted courier and the telegraph co-existed for very long but the mention of the first of these things indicates the great period of time over which this development has taken place. Further, the developments in question are not developments of principle, but developments intended to take account of the fact that communication, once confined to the speed of a rider on horseback, is now virtually instantaneous. But the principles remain the same.
134. By contrast, what is proposed here is a revolution in principle, an alteration of fundamental decision which is based on exegesis of the Constitution itself. I believe that, for a court to change those principles in a s.23 appeal is quite illegitimate. The legislature may of course enact such a charge, subject to the Constitution or may hold a referendum and invite the people to do so.
135. We have already seen, in Hynes, O’Sullivan v. O’Driscoll [1988] IR 436 that this Court declined an invitation to change the long established Common Law defence to an action for defamation known as qualified privilege on the ground that the suggested change should more properly be effected by Statute. It said that the new public policy which a new formulation of the law would represent should be found by the Law Reform Commission or some other body “in a position to take a broad perspective as distinct from what is discernable to the tunnel vision imposed by the facts of a single case”.
136. In my view, the above caution applies with all the greater force in an area where the constitutional rights of very many individual citizens are intimately involved.
Retrospectivity.
137. There is another aspect of the jurisdiction claimed by the State in this case which argues against its existence or, if it exists, against its exercise. As we have seen on several occasions the demand of the State is to “overrule” a previous decision of this Court “so that it no longer forms part of Irish law”.
The significance of this is very clear and very great. It is a demand to change the law as it was at the time when Mr. C. was tried. This demand was made under a statutory provision which permits, and permits only, an appeal against errors of law by the trial judge. If the law itself can be changed after a trial which resulted in acquittal then it follows that, at the time of the trial, there was no certainty as to what the law might be. If the claimed jurisdiction exists, and is exercised, then Mr. C. will have been forced to trial in an uncertain state of the law and will run the risk of having his acquittal set aside because the law has been changed years afterwards, by this Court.
I believe that there is an entitlement in an accused person to know what the law under which he will be tried is before the trial starts. Only thus can he be properly advised as to his position; only thus can he make the tactical decisions which are required of every innocent person charged with a criminal offence.
In any event, Mr. C. is not only entitled to know the law; he is presumed to know the law. This presumption and entitlement are made mockeries of if the State can have the law changed while the defendant remains in peril. Unlike the force publique, he cannot rely on his own “inadvertence”.
I do not believe that a trial with an incident such as that outlined above is a trial in due course of law or represents due process of law. I do not believe that it is a proper resolution of Mr. C.’s criminal liabilities as envisaged in Article 6 of the European Convention of Human Rights.
In Professor O’Malley’s book “The Criminal Process” (Round Hall 2009), on p.157 at par. 5.13, in his exposition of Article 7 of the Convention, he says that it requires, not simply “that only the criminal law may define a crime or prescribe a penalty” but also “that the criminal law must not be extensively construed to an accused person’s detriment”. (Emphasis added)
Mr. C. is the accused person in this case. He was acquitted because DPP v.Kenny [1990] 2 I.R. 110 was binding on the trial judge. I can think of no more dramatic a form of “extensive construction” of the law than to claim that that case does not, after all, apply and that he is now liable to be retried in a new and different state of the law, as yet unknown.
Later in this judgment I shall be considering the American case of Bouie v. City of Columbia 378 U.S. 347 (1964). There, a conviction was struck down because of an extensive construction of a law which prohibited entry on the premises after the owner had forbidden it so as to include the act of remaining on premises after the owner had requested departure. This resulted from a Civil Rights demonstration in the Deep South in the early 60s. The construction was not merely “extensive”, it was retrospective and so fell foul of what the Americans call the ex post facto clause. The present purported construction is equally retrospective, with regard both to the original trial and, still more so, to the alleged criminal act, and it is no less extensive.
I repeat that this appeal appears to involve the Court in illegitimacy.
138. The preceding Section of this judgment is concerned with a question of jurisdiction: whether this appeal lies at all or whether, as it is expressed in Attorney General v. Kennedy [1946] IR 517, cited above, the purported appeal is incompetent and does not lie. I have concluded that Section 23 of the Criminal Procedure Act of 2010 provides an appeal to the prosecution only against an error of law by a trial judge. But here there is no error of law by the trial judge, Judge Mary Ellen Ring, who followed the law as laid down. Section 23 confers no right of appeal against a twenty-five year old decision of this Court, which is effectively what the State contend that it does.
139. I now turn to a different but related issue. If the wholly novel jurisdiction invoked by the prosecution actually exists, would a second trial held pursuant to s.23 be a trial “in due course of law” as the Constitution requires (Article 38(1) ). No other form of trial is admissible: “no person shall be tried on any criminal charge save in due course of law”. (ibid)
140. If such a trial would not be a trial in due course of law, we ought not to hold that the jurisdiction to direct it in these circumstances is conferred by s.23. This is a corollary of the presumption of constitutionality enjoyed by the Act of 2010. In The State (Woods) v. Attorney General [1969] IR 385 at p. 399, Henchy J. describes this “double construction rule” as a refinement of the presumption and compared our “double construction rule” with the American practice.
141. In McDonald v. Board na gCon [1965] IR 217, at 239, Walsh J. said:
“The Greyhound Industry Act of 1958, being an Act of the Oireachtas, is presumed to be constitutional unless the contrary is clearly established. One practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction”.
Trial in due course of law.
142. Trial in due course of law is required by Article 38.1 of the Constitution. But the concept of “due course of law” is both an ancient one and an international one and this has been fully recognised in our cases on the topic. In Conroy v. Attorney General [1965] IR 411 at p.415, Kenny J. said:
“I think that s.1 of the Article [Article 38] is an echo of a clause in the Great Charter of Ireland granted in 1216… This phrase “due process of law” was adopted by those who drafted the Fifth Amendment to the Constitution of the United States of America which prevents any person being deprived of life liberty or property without due process of law. I think that s.1 of the Article gives a constitutional right to every person to be tried in accordance with the law and in accordance with due course or due process of law”.
(Emphasis supplied)
143. Similarly, in Goodman International v. Hamilton (No. 1) [1992] 2 IR 542 at 609, McCarthy J. said that the language of Article 38.1 was “an echo of the phrase ‘due process of law’ in the Fifth Amendment of the Constitution of the United States” and that for that reason the jurisprudence of the United States was particularly relevant.
144. In The State (Healy) v. Donoghue [1976] IR 325 at p. 335, Gannon J. discussed the phrase “due course of law” as follows:
“[It is] a phrase of very wide import and includes in its scope not merely matters of constitutional and statutory jurisdiction, the range of legislation with respect to criminal offences, and matters of practice and procedure, but also the application of basic principles of justice which are inherent in the proper course of the exercise of the judicial function”.
(Emphasis added)
145. Thus, in Enright v. Ireland [2003] 2. I.R. 321 at p. 322 Finlay Geoghegan J. said that one of the rights guaranteed by Article 38 was the right:
“… only to be punished for a crime in accordance with the law which existed at the date of the commission of the crime”.
There are very few examples in this jurisdiction of an attempt after an acquittal, or after an acquittal had become inevitable, to retry a defendant before a different judge, thus opening the prospect of different rulings on evidence, and no precedent whatever for an attempt at all to do this in a judicially changed state of the law.
146. The brutal and inherent unfairness in this situation was recognised thirty-seven years ago in The State (O’Callaghan) v. O hUadhaigh [1977] IR 42. There, the defendant was brought up for trial in the Central Criminal Court. He entered a special plea in bar of the indictment. After legal argument the trial judge was clearly of the view that only one count of the eight count indictment was properly before the Court. The Director of Public Prosecutions then entered a nolle prosequi in respect of all the counts. The defendant was shortly afterwards re-arrested brought before the District Court, and charged with the same offences. He obtained an absolute Order of Prohibition restraining his trial. In the passages from the judgment of Finlay P. which follow, the defendant, in the language of the Judicial Review or “State side” procedures of the time, is referred to as “the prosecutor”, because he was the moving party in the claim for prohibition.
147. Finlay P. (as he then was) said at pp. 53 to 54 of the Report:
“If the contention of the [Director] is correct, the prosecutor having undergone that form of trial, and remand awaiting trial, and having succeeded in confining the issues to be tried, would be deprived of all that advantage by the simple operation of a statutory power on the part of the Director of Public Prosecutions. In this way, the prosecutor would have the entire of his remand awaiting trial set at nought and he would have to start afresh to face a criminal prosecution in which the prosecution, by adopting different procedures, could hope to avoid the consequences of the learned trial judge’s view of the law. No such right exists in the accused; if the trial judge makes decisions adverse to the interest of the accused the latter cannot obtain relief from them otherwise by appeal to the Central Criminal Court, or by appeal or review in the case of an inferior court.
It seems to me that so to interpret the provisions of s.12 of the Act of 1924 [the provision permitting the entry of a nolle prosequi] as to create such an extraordinary imbalance between the rights and powers of the prosecution and those of the accused respectively, and to give the Director such a relative independence from the decision of the Court in any trial, would be to concur in a proposition of law which signally failed to import fairness and fair procedures”.
(Emphasis added)
148. Finlay P. continued at p. 54 by observing that, if the Director’s contention were correct then:
“… if it appeared likely that a contention of the prosecution would fail, there would be nothing to prevent the Director from entering a nolle prosequi and availing himself of the opportunity in a fresh prosecution, on additional or different evidence, to succeed where he had been about to fail: that situation might arise in a discretionary matter involving a decision of mixed law and fact which falls to be determined by the trial judge rather than by the jury - such as the admissibility of a statement alleged to have been made by an accused. Viewed in this light, the basic unfairness of such a contention appears to me to become clear”.
(Emphasis added)
149. I believe this case to be directly in point here. In The State (O’Callaghan) v. O hUadhaigh [1977] IR 42, the prosecution planned to succeed at the second trial by “adopting different procedures”. Here they plan to succeed by changing the law itself. This is to subject Mr. C. to trial on an ex post facto revision of the applicable law, something quite outside the constitutional concept of trial in due course of law.
150. It appears to me that the proposed use of the nolle prosequi procedure in The State (O’Callaghan) v. O hUadhaigh [1977] IR 42 was found to be improper and unfair because it permitted the prosecutor unilaterally to deprive the defendant of an advantage he had obtained in litigation. Accordingly it was not permissible in a trial conducted “in due course of law”.
What is attempted here is considerably more radical.
151. The Courts have long held that retrospective or, to mention the phrase more common in the American cases, ex post facto law, cannot ground a prosecution. This is by reason of Article 15.5.1 of the Constitution.
152. This Article was described in Magee v Culligan [1992] I.R. 223 at p. 272, [1992] I.L.R.M. 186 at p. 190 as constituting:
“… an expressed and unambiguous prohibition against the enactment of retrospective laws declaring acts to be an infringement of the law, whether of the Civil or the Criminal law”.
Thus, in Doyle v. An Taoiseach [1986] ILRM 693 at p.715 a levy on the proceeds of the sale of live cattle was introduced in 1979. Section 79 of the Finance Act, 1980 purported to confirm the validity of those levies. The Supreme Court held that if s.79 was held to have retrospective effect it would be to that extent unconstitutional. This was so, according to Henchy J. at p.715, because it would have the effect:
“… of making, ex post facto, non-payment of the levy in 1979 an infringement of the law. Such a result would make s.79 invalid having regard to Article 15.5 of the Constitution”.
The Section was therefore treated as being prospective only in its effect. But the Article is silent as to judicial decisions which interpret or lay down the law, and whether or not they can have retrospective effect. In any view they can not.
In the American case of Bouie v. City of Columbia 378 U.S. 347 (1964), the United States Supreme Court recognised that ex post facto restrictions apply, through the Due Process Clause, not merely to the legislators but to the judges when they are interpreting criminal statutes. There, at the height of the civil rights era, two black Americans staged a protest - a sit in - in a branch of a shop which served black people in every department except the restaurant. This happened in Columbia, South Carolina. They were prosecuted under a South Carolina law which made it unlawful to enter on premises if one had been prohibited from doing so by the owner. This law was found in par. 16 - 382 of the South Carolina Code of 1960. But the two black men had not been prohibited from entering the premises: they had merely been asked to leave after a lawful entry. The trial court, and later the South Carolina Supreme Court, in an entirely novel view of the law, held that the statute or code extended to failing to leave premises after one had been asked to do so, as well as to entering after prohibition. But the Statute did not say so on its face.
The Supreme Court of the United States set the convictions aside holding at p. 353 that (378 U.S. 347,353):
“If a State legislature is bound by the ex post facto clause from passing an ex post facto law, it must follow that the State’s Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction”.
(Emphasis added)
I believe that this entirely logical conclusion applies in this jurisdiction as well. If that is so, then the purported setting aside of the acquittal of Mr. C. and any retrial in a new state of the law would clearly be void as being held under ex post facto, that is retrospective, law.
153. The US Supreme Court in Bouie v. City of Columbia 378 U.S. 347, 354 (1964), held that a judicial interpretation of a criminal statute may not be given retroactive effect “If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue’.”
See also Hall, General Principles of Criminal Law (2d ed. 1960 at 58-59) cited in the US Supreme Court report, 378 U.S. 347, 354 (1964).
154. The principle enunciated in Bouie v. City of Columbia 378 U.S. 347(1964) is by no means confined to the interpretation of criminal statutes. The US Supreme Court (378 U.S. 347, 355 (1964)), also cited Brinkerhof-Faris Trust and Savings Company v. Hill 281 U.S. 673 (1930). This was a case relating to taxation on a disposal of shares. Under the established judge made law of Missouri, an action in equity to restrain collection of a tax was the appropriate and only remedy “against a discriminating State tax violative of the Equal Protection Clause of the 14th Amendment of the US Constitution” ”( 281 U.S. 673, 678(1930)) . The State Supreme Court, overruling earlier decisions, denied that remedy on the ground that the party seeking it should first have exhausted an administrative remedy which, under the previous law, was never open to him. The judgment was found by the Supreme Court to violate due process of law in its primary sense of an opportunity to be heard in defence of one’s substantive right
155. Justice Brandeis gave the judgment of the Supreme Court and held at pp 679 to 680:
“If the result above stated were attained by an exercise of the State’s legislative power, the transgression of the due process clause of the 14th Amendment would be obvious… The violation is nonetheless clear when that result is accomplished by the State judiciary in the course of construing an otherwise valid State statute. The federal guarantee of due process extends to State action through its judicial as well as through its legislative, executive or administrative branch of government… [w]hether acting through its judiciary or through its legislature, a State may not deprive a person of all existing remedies for the enforcement of a right, which the State has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it”.
(Emphasis added)
156. What was in issue in the last mentioned case was a procedural change in civil litigation, not a new interpretation of a criminal statute. The position in Bouie v. City of Columbia 378 U.S. 347(1964), since it related to criminal statute, was a fortiori. The position in the present case, where what is proposed is the setting aside of a lawful acquittal and re-trial after the abolition of a constitutionally grounded right to the exclusion of evidence obtained by a deliberate and conscious act in breach of the Constitution, represents a stronger case still. The Oireachtas could not order Mr. C. retried under a new and retrospective law. Neither can this Court.
157. At paragraphs 45 to 48 of the appellant’s (that is, the States) submission there are a number of statements which are not entirely easy to understand. Very significantly, para. 46 consists in its entirety of the following statement:
“It is also of note that in the years since delivery of the judgment in Kenny, there have been a number of significant changes in the legal and regulatory landscape in respect of An Garda Síochána, including the video taping of interviews, the establishment of the Garda Síochána Ombudsman Commission, the introduction of new garda disciplinary regulations and the detailed statutory regulation of An Garda Síochána in the Garda Síochána Act, 2005”.
(Emphasis added)
These statements, so to speak, are left hanging. It is clear that the appellant thinks that changes since the delivery of the judgment in DPP v.Kenny [1990] 2 I.R. 110 are relevant in the present case as well as simply being “also of note”. However, the nature of that relevance is left unstated, though perhaps not difficult to infer.
Is the appellant contending that changes since 1990 in some way make the protection of constitutional rights set out in DPP v.Kenny [1990] 2 I.R. 110 unnecessary; that the need for such protection has been rendered otiose by such developments?. If so, one would have thought that would have been said expressly. If not, it is difficult to know what relevance the changes mentioned have in the context of the present case. Is the appellant contending that the mere enactment of legislation or the establishment, for example, of the Garda Síochána Ombudsman Commission is relevant, or is the Court being invited to consider the efficacy of that body?
In the penultimate sentence of the previous paragraph of its submissions, para. 45, the appellant contends that “there are many ways of vindicating the right to inviolability of the dwelling and to ensure that search warrants are correctly completed”.
158. The first observation which it is important to make about contentions such as these is that they underline the fact that this s.23 procedure, providing for appeals against errors of law by a trial judge, are quite inappropriate to the assessment of arguments based on changes since 1990, or based on the availability of other equally effective methods of vindicating constitutional rights. As appears from the citation of Hynes-O’Sullivan v. O’Driscoll [1988] I.R. 436 elsewhere in this judgment, arguments such as these are more appropriate to a parliamentary forum, or to a body such as the Law Reform Commission than to a court whose scope for intervention is limited to the correction of an error of law in a particular trial.
159. But since arguments of this sort, the sort mentioned in para. 46 of the State submissions have been raised by the State appellant in this case, I must make it as clear as I can that I emphatically disagree with them.
160. Since this matter has been raised by the appellant I have to make it clear that I do not consider that any changes, legal or otherwise, have taken place over the last twenty-five years which would make it desirable, or even safe, to make the change which the present appeal is designed to bring about. On the contrary, there have, during that time, been a considerable number of deeply disturbing developments both in relation to the Garda Síochána itself and to the arrangements for its oversight. These have been expressly acknowledged in impressive and authoritative sources, as will be seen.
161. In the period in question there have been two Tribunals of Inquiry, each presided over by an eminent member of the judiciary, which have each reported in a profoundly disturbing manner, quite inconsistent with the submission at para. 46. The first report of the Morris Tribunal, published in 2004 (there were successive reports over the following years) related to bogus explosive finds by gardaí in County Donegal. The report observed, at p.448, that garda culture:
“…generally militates against open and transparent cooperation with investigations both internal and external and manifests itself in a policy of ‘don’t hang your own’ ”.
This was said in a context of Gardaí “planting” explosives and then “finding” them.
162. This last phrase quoted “don’t hang your own” came from evidence to the Tribunal by Garda Martin Leonard, a Garda Representative Association official, at p.448 of the report:
“It is the nature of the gardaí, we don’t name the names - we don’t want to get anybody into trouble in the Garda Síochána internal matters… we do our best to make sure - we are not going to be hanging our people”.
163. Almost ten years later, in December 2013, the report of the Smithwick Tribunal stated:
“I regret to say… that there prevails in An Garda Síochána today a prioritisation of the protection of the good name of the force over the protection of those who seek to tell the truth. Loyalty is prized above honesty”.
(Emphasis added)
“The Wall of Silence”.
164. The several very detailed reports of the Morris Tribunal show why the very strong words quoted above were used. In the Morris Report “On the detention of suspects following the death of the late Richard Barron and related issues”, the Tribunal reported ((Vol. 3, p.1241, para. 16.01):
“… the Tribunal was faced with gardaí who were determined to hide the truth of what happened. They made statements to their superiors which were in many instances minimalist in their detail and failed to give a fully truthful account; in a number of instances the statements were a complete fabrication. It was disturbing to find a deep seated reluctance to concede that a colleague had acted incorrectly or wrongfully or that the complaints made by the detainees were true - the wall of silence was maintained.Unfortunately this approach extended to and was encouraged by senior officers in this investigation and in the overall approach adopted by An Garda Síochána to external complaints. The Tribunal, however, was able to break through the wall of silence on occasion, sometimes with the assistance of gardaí who eventually admitted wrongdoing and on other occasions by persistent hammering on the wall.”
165. Nor were the problems confined to Donegal:
“The deficiencies observed by the Tribunal in the manner in which An Garda Síochána acted in these matters, by their nature, are not peculiar to Donegal. Issues of accountability, tunnel vision, the proper investigation of offences, the treatment of persons in custody, and response to the leadership of criminal investigations, are all issues related to general policing. The deficiencies in these issues must be addressed throughout the force and at all levels within An Garda Síochána.”
(Emphasis added)
166. Subsequently, at pages 1254 - 1255, para. 16.33, it was stated:
“The Tribunal has already referred to the ‘wall of silence’ that has been experienced in dealing with policemen at home and abroad when they are faced with allegations of misconduct. This may be viewed with the other phenomenon of ‘garda speak’ which the Tribunal has encountered over the last number of years, and an understanding by gardaí that they are expected only to give the minimum amount of detail in respect of any controversy in which the gardaí are involved”.
(Emphasis added)
167. The Tribunal went on, in the same place, to consider the consequences of this for the State itself at p.1255:
“The State must act honourably and honestly in its dealing with plaintiffs in these circumstances. It cannot do so if it is told lies and half truths by the gardaí. This must stop. Senior officers in An Garda Síochána must show leadership in this regard. The difficulties are linked to difficulties faced by ‘whistle blowers’ who wish to tell the truth but fear the consequences from their colleagues or for their careers”.
(Emphasis added)
168. This section of the report ended with the statement that “It is regrettable that such a basic proposition in relation to telling the truth should have to be spelt out in this way”.
“… proper discipline has been lost from An Garda Síochána”.
169. The fifth report of the Morris Tribunal also reported on the arrest and detention of seven persons at Burnfoot, Co. Donegal and said, at p.252, para. 6.05:
“It is obvious that for the security of the State and for the security of its citizens, there must be an effective police force. In the Tribunal’s opinion, what has been lost sight of is that police work requires the safeguard of strict internal discipline. An Garda Síochána cannot be compared in industrial relations terms, or in terms of its internal accounting, to a business… In the Tribunal’s opinion, proper discipline has been lost from An Garda Síochána. Without a managing structure being restored to the gardaí based on strict compliance with orders, and immediate accountability, the danger is extreme that what the Tribunal has reported on in Donegal will be repeated; and such conduct will multiply if allowed to go unchecked”.
(Emphasis added)
170. At p. 254, para. 6.09 the Tribunal stated:
“The Tribunal has been staggered by the amount of indiscipline and insubordination it has found in the garda force. There is a small, but disproportionately influential, core of mischief making members who will not obey orders, who will not follow procedures, who will not tell the truth and have no respect for their officers…
Garda [name redacted], for example, was able to act almost at will: applying to arrest a colleague in an investigation in which he was not involved, not wearing his uniform, lying at will, and continuing testing the waters as to the vulnerability of his colleagues. The behaviour of Sergeant [name redacted] Garda [name redacted] and Detective Sergeant [name redacted] in all of this beggars belief; and yet it happened. In the course of a tribunal hearing that was so much extended by their dissimulation, the Tribunal was used as a sounding board for deceit in the hope that it would be inveigled into believing lies”.
(Emphasis added)
171. The report of the Smithwick Tribunal is just one year old. It is clear from the quotation from it given above that part of its significance is that it clearly demonstrates that there was little or no change in what the Morris Tribunal called “Garda culture” in the intervening period between the two reports. This impression is considerably strengthened by the detail of the latter Tribunal’s findings. For example, the reader will find the following at p.154, para. 10.6.11; of the Smithwick report:-
“Tom Curran retired as a senior officer of An Garda Síochána, and he struck me as an officer of the utmost integrity. I would have thought he is as deserving of the support of the Garda Commissioner as any other former officer. However, it seems to me that because he was giving evidence of which An Garda Síochána did not approve, such support was not forthcoming. I regret to say that this suggests to me that there prevails in An Garda Síochána today a prioritisation of the perfection of the good name of the force over the protection of those who seek to tell the truth. Loyalty is prized above honesty. My life experience tells me that such a culture is not unique to An Garda Síochána; all large organisations have to struggle with this issue. However, given that I have already concluded that political expediency and the prioritisation of the good name of the force contributed to suggestions of collusion in these killings not being properly investigated when they first arose, the fact that such a culture and attitude is still prevalent now, more than twenty years on, in the context of the work of this Tribunal, is disheartening and depressing”.
(Emphasis added)
172. At p.159, para. 11.2.11, the Smithwick Tribunal reported:
“I am drawn to the conclusion that a number of the garda witnesses before this Tribunal, including former and current senior gardaí were not fully forthcoming in their evidence to me. … I accept that any individual witness may not recall, or for some reason may never have encountered, the unease to which I have referred; the evidence of any one individual witness may therefore be truthful. What I find difficult to accept, what I cannot accept, is that so many of the garda witnesses from whom I have heard do not recall or have never encountered such unease. Regrettably, this suggests that there is an ingrained culture of prioritising loyalty to the good name of the force over the legal, moral, and ethical obligation owed to give truthful evidence to this Tribunal”.
(Emphasis added)
A summary.
173. In the Morris Tribunal’s report on “the investigation into the death of Richard Barron and the Extortion calls to Michael and Charlotte Peoples” published 1st June, 2005, the Tribunal recalled that more than ten years had passed since its first enquiry, on bogus explosive finds. The Tribunal held that anybody who read all of its intervening reports would realise “that it has happened again”. The Tribunal concluded, at para. 9.03, pp. 597 to 598:
“The combination of gross negligence at senior level, amounting to the criminal negligence standard in law, and the lack of objectivity and corruption at levels lower than that, caused the scandalous situation to arise that has been detailed in this further report”.
174. In the following paragraph the Tribunal concluded at p. 598, par. 9.04 that:
“In common with the situation uncovered in 1993/1994, the situation through 1996 to 1998 shows appalling management coupled with the manipulation of facts and circumstances in order to present to Garda Headquarters, and to the world at large, an untruthful appearance of honesty and integrity in the Donegal Garda Division. The Tribunal reiterates that it has been lied to repeatedly by former, and serving, garda officers”.
(Emphasis added)
175. In the paragraph following that, par. 9.05, the Tribunal concludes that:
“It has been all too easy for the highest structure of An Garda Síochána to be hoodwinked and misled. In setting up enquiries in an attempt to discover the truth, Garda Headquarters has also been obstructed and lied to. It is obvious that where a situation reaches a point where wrongdoing has become hardened into a habit in certain sections of An Garda Síochána that people are not only unlikely to own up it, they are positively likely to lie about it”.
(Emphasis added)
176. With regard to the atmosphere within the Garda Síochána itself, the Tribunal concluded, at pp.612 to 613, para. 9.36:
“The Tribunal has noted with dismay the obvious reserve, amounting almost to hostility with which members of the gardaí that hold the rank of Sergeant and Garda display towards their superior officers”.
177. The Tribunal went on, in the following paragraph (par 9.37) to find:
“At first, it was hoped that this attitude was indigenous to the Donegal division; and perhaps only to a small section of that division towards specific officers. However, in evidence, and when submissions were made on behalf of some bodies representing sections of the Gardaí, it became apparent that this was not the case. Assuming that these submissions represent the attitude of members of the force of those ranks, then it would appear that there does not remain within the force any proper sense of loyalty or support for higher ranking officers”.
(Emphasis added)
Every single one of the events considered by the Enquiries mentioned took place since DPP v.Kenny [1990] 2 I.R. 110 was decided.
_____________________________________________________________
The Shortt case - “A pot of iniquity”.
178. The case of DPP v.Frank Shortt, [2002] 2 I.R. 696 and Shortt v.Commissioner of An Garda Suiochána & Ors [2007] IESC, [2007] 4 IR 587 [2007] 3 J.I.C. 2102, which came before the Court of Criminal Appeal in 2002 and the Supreme Court, by way of appeal against the High Court’s assessment of the damages due to Mr. Shortt, in 2007, was an appalling example of a deliberate garda conspiracy to perjure an innocent man into prison for no better reason than to enhance the careers of certain gardaí. The President of the High Court (Finnegan P.), held that ([2005] IEHC 311):
“The plaintiff was sacrificed in order to assist the career ambitions of a number of members of the Garda Síochána”.
On the face of it, Mr. Frank Shortt seemed an unlikely victim of a garda conspiracy. At the time when the gardaí succeeded, by perjured evidence, in having sentenced to three years imprisonment, he was a 60 year old chartered accountant and businessman. He was a Fellow of the Institute of Chartered Accountants. He was a married man, the father of five children. What happened to him is aptly summarised in the judgment of Chief Justice Murray of the 21st March, 2007([2007] IESC 9, [2007] 4 IR 587 at pp. 591 to 592):
“The plaintiff, Mr. Shortt, has been the victim of disreputable conduct and a shocking abuse of power on the part of two garda officers, namely a superintendent and a Detective Garda. They both engaged in a conspiracy to concoct false evidence against the plaintiff which in turn resulted in perjured garda evidence being given at his trial for allegedly permitting drugs to be sold in his licensed premises in Co. Donegal in 1992. That perjury procured his conviction by a jury. What followed as a consequence for the plaintiff was a tormenting saga of imprisonment, mental and physical deterioration, estrangement from family, loss of business, public and professional ignominy and despair. Furthermore, as the learned High Court Judge put it, “the plaintiff was sacrificed to assist the career ambitions of a number of members of the Garda Síochána”.
Despite the injustice of his situation he finally obtained an order setting aside his conviction from the Court of Criminal Appeal… when the DPP, for reasons that were never disclosed to that Court, consented to such an order. Finally, in July 2002, the Court of Criminal Appeal certified that he had been the subject of a miscarriage of justice…
Unfortunately, the conduct of the garda officers before during and following the trial and the associated circumstances cannot but reflect negatively on the Garda Síochána…
Unfortunately, as experience in this country and other countries demonstrate, departures, sometimes the gravest of deviations, from normal standards of conduct and professionalism occur in police forces. Left unchecked there is always a risk that low standards will infect elements of such a force”.
[The learned Chief Justice then referred to the Morris Reports, much quoted above in this judgment]. He then continued at p. 593:
“The conduct of those two members probably constitutes the gravest dereliction of duty and abuse of power that one could ever fearfully contemplate would be engaged in by servants of the State and officers of law and order. Partly, but by no means solely, because they have sullied the reputation of the Garda Síochána the gravest view must be taken of their conduct.
This affair is regrettably a stain of the darkest dye on the otherwise generally fine tradition of the institution of An Garda Síochána. The facts and circumstances are a pot of iniquity which may be seen by some as reflecting on the Garda Síochána as a whole much to the potential demoralisation of upstanding members of the force which constitute the vast majority. Such a broad conclusion would be an unwarranted and disproportionate response to this affair however badly it may be viewed…
However, this affair cannot be bracketed as a couple of bad apples in the proverbial barrel. The misconduct penetrated the system of law enforcement too deeply and persisted over too long a period to be discounted in such a fashion. Concrete independent evidence of the wrongful conspiracy against Mr. Shortt only emerged in the course of an official garda investigation into affairs in Donegal. The matters concerning Mr. Shortt may only have been a rather small part of that investigation but the lack of immediacy or action in response to the evidence which emerged concerning his trial does raise questions as to whether there is some complacency at different levels in An Garda Síochána with regard to the exacting standards of integrity which must at all times be observed by its members. The cavalier manner in which those two members set about concocting evidence and subsequently persisted in trying to cover up their misdeeds, not entirely out of sight of other garda members, displayed a worrying confidence on their part that they could get away with it”.
(Emphasis added)
I have cited from the judgment of Chief Justice Murray at some length in order to emphasise the truly appalling nature of what happened to Mr. Frank Shortt. He was regarded by the gardaí involved as a worthless pawn whose life could be ruined with impunity in order to enhance their careers. He was eventually awarded the sum of €4,623,871.00 (four million, six-hundred and twenty-three thousand eight hundred and seventy-one Euros as damages against the State defendants. It was not a penny too much for several years in jail, a ruined business, a shattered career, gross stigmatisation, a damaged family life, and poverty which, due to age, he could have never hoped to remedy and above all for cynical perjury.
In his judgment, Chief Justice Murray was keen to emphasise that the very great majority of members of the Garda Síochána are upright people, that not the least serious aspect of the activities of those gardaí who perjured Mr. Shortt into prison was the damage they inflicted on the reputation of the Garda Síochána itself; and that it would be wrong to conclude that such conduct is widespread or even current at all in the Gardaí Síochána as a whole. I hope this is true but am concerned about the “disproportionately influential” minority who ensure that a “wall of silence” is maintained and that “proper discipline” has been lost from An Garda Síochána. (see par. 125)
I entirely agree that the numbers of gardaí, whether of garda rank or superintendent rank, who would deliberately connive at organised perjury is small indeed. What is worrying about this case, as well as others, is that no steps were taken from within the Garda Síochána, or from within the broader State structures, to remedy the grave wrong done to Mr. Shortt. As Murray C.J. said at p. 593, what the principle gardaí involved in did was done “not entirely out of the sight” of other gardaí. This is the most worrying aspect.
The full details of what was done in the Shortt case are set out in the judgment of the Court of Criminal Appeal dated the 31st day of July, 2002 and reported at [2002] 2 I.R. 696. No doubt for reasons of space, the version in the Irish Reports does not replicate the full detail of the judgment and anyone seriously interested in the subject would be well advised to consult the original judgment, available from the Court of Appeal Office.
For present purposes the salient features of the case itself are:
(1) It was frankly admitted by the State on the application by Mr. Shortt to have his conviction declared a miscarriage of justice that, at the time he was sent forward for trial, there was not, on the statements and other papers presented to the District Court, a sufficient case to put Mr. Shortt on trial.
(2) The guard who was directly responsible for the perjured evidence, Detective Garda Noel McMahon, stated that his understanding was that there was a “semi deal” whereby Mr. Shortt would plead guilty to one count, receive a fine and that would be the end of the matter. Incredibly, Detective McMahon blamed Mr. Shortt’s legal advisers for exposing a man of his age to a prison sentence by not accepting this “semi deal”, by pleading guilty to a crime of which he was innocent.
(3) Notwithstanding the absence of sufficient evidence Mr. Shortt was in fact sent forward for trial.
(4) In the run up to the trial on indictment (which was transferred to Dublin, at the State’s request), a number of gardaí, including the Superintendent, worked at improving Detective Garda McMahon’s statement of evidence. The Superintendent wrote in his own handwriting on the draft statement various suggestions or instructions for changes, absolutely without regard to whether or not they were true.
(5) It was a marked feature of the case that the Garda and the Superintendent were in fear of each other because each knew that the other had information which could destroy his career. The Garda kept the original version of his statement as altered by the Superintendent and told his wife that giving him the statement with the handwriting on it was the most stupid thing the Superintendent had ever done.
(6) Apart from the misdeeds, only some of which were acknowledged, by various gardaí, the other organs of the State emerge with no credit whatever from the DPP v.Shortt (No 2) [2002] 2 I.R. 696 case. When the unfortunate victim of the conspiracy was lodged in jail he suffered a collapse, both mental and physical. While he was incarcerated his wife had to be hospitalised for emergency treatment. His family were left in the care of a teenager. He applied for compassionate leave from prison which was granted regularly to serious criminals, but it was refused, apparently on the recommendation of the Superintendent.
(7) Also while Mr. Shortt was incarcerated, he was made an offer apparently with the authority of the Minister for Justice. This was that he would be immediately transferred to an open prison and shortly thereafter released altogether. But this would take place only if he dropped his appeal.
This was described in the evidence of Mr. Shortt in his High Court proceedings as follows, as recorded by the judge in Shortt v. Commissioner of An Garda Siochána & Ors [2005] IEHC 311:
“In October 1995 his appeal was pending and a proposal was communicated to him. If he should drop his appeal the State would not proceed on six outstanding charges pending against him and he would be transferred to an open prison and shortly thereafter released to join his family. He did not accept the offer. At this time also the six outstanding charges were proceeding. By this stage he had lost some two and a half stone in weight, he attributed to stress anxiety and depression”.
(8) In the plaintiff’s wife’s evidence she said that in the course of her visits to the plaintiff in prison she saw him deteriorate to the point “where he was an old man and like a zombie”. She said she did not think he would survive his prison term. When released from prison the plaintiff was in good form but later went into another state of depression as he was too old to go and look for a job. He had no income and no prospects. His sole income was disability allowance.
(9) Commenting on the plaintiff’s evidence just cited Murray C.J. said in Shortt v Commissioner of An Garda Siochána & Ors [2007] IESC 9, [2007] 4 IR 587 at 603:
“This is but one of the particularly nefarious aspects of the case. The prospect of early release was dangled in front of the plaintiff when he was most vulnerable and open to emotional blackmail. The intent can only have been to avoid any further judicial scrutiny of the case by pressuring the plaintiff to accept the finding of guilt in return for some sort of ‘deal’.
(10) In fairness, I should imagine that the Minister for Justice was advised that such a condition for early release was a normal one, or at least a justifiable one in the circumstances of Mr. Shortt’s case. But who so advised her?
(11) The State authorities opposed Mr. Shortt’s attempts to quash his conviction until quite suddenly, and without giving any reason, they consented to the conviction being quashed. This was in 2002, ten years since the gardaí first became involved in his life and seven years after he went to prison. The ordeal would last another five years.
(12) The State then opposed tooth and nail over a period of seventeen days in the Court of Criminal Appeal, Mr. Shortt’s application to have his conviction declared a miscarriage of justice. This too involved the concealment, and the non-production to the Court, of vital documentation discovered only during the hearing and when further concealment would have been useless.
(13) The State authorities contested Mr. Shortt’s application for damages and when he appealed to the High Court assessment, resisted that appeal in the Supreme Court. Very memorably, the State sought to minimise the damages by urging the Court to consider what sort of property Mr. Shortt could buy in Donegal with the amount awarded and specifically urged on the Court to remember that property was much cheaper in Donegal than elsewhere. In fairness, this submission was withdrawn the following day. But it was made, on the State’s instructions.
(14) The Shortt case, [2005] IEHC 311, [2007] IESC 9, [2002] 2 I.R. 696, might be regarded as having had a happy ending. But Mr. Shortt should never have been put on trial in the first place. It must be recorded, to the discredit, not simply of the gardaí but of the State itself, that his application to have his conviction deemed a miscarriage of justice - a perfectly normal request for an innocent man who had been perjured into prison - was resisted from start to finish.
(15) There is nothing in the tortuous history of the Shortt case, [2005] IEHC 311, [2007] IESC 9, [2002] 2 I.R. 696, which, even in its purely legal aspects, went on for fifteen years, to suggest that, since the handing down of the DPP v.Kenny [1990] 2 I.R. 110 decision in 1990, there is less need for the protections which, up to the present day, that decision affords the ordinary citizen.
New Enquiries.
179. The Smithwick Tribunal reported in December 2013. On the 27th February, 2014, the Taoiseach, further to a decision of the government, asked Mr. Seán Guerin S.C. to hold a review into allegations made by Garda Sergeant Maurice McCabe and related matters. Mr. Guerin’s terms of reference required him to conduct an independent review and to undertake a thorough examination “of the action taken by An Garda Síochána pertaining to certain allegations of grave deficiencies in the investigation and prosecution of crimes, in the County of Cavan and elsewhere made by Sergeant McCabe and specified in a dossier compiled by him and furnished to An Taoiseach on the 19th February, 2014 and in a letter ‘understood to be from Sergeant McCabe’ dated 23rd January, 2012, part of which was furnished to An Taoiseach on the 21st day of February, 2014”.
180. Mr. Guerin S.C. concluded, at p.331, par. 20.12 that:
“Having regard to the number, range and importance of the issues arising, it is desirable in the public interest that a comprehensive Commission of Investigation be established pursuant to the Commissions of Investigation Act 2004 to investigate the issues that remain unresolved arising out of the complaints made by Sergeant Maurice McCabe. Such a commission is, in my opinion, desirable in the public interest to ensure continuing confidence in the institution of An Garda Síochána and the criminal justice system”.
181. Mr. Guerin S.C. went on, at p. 332, to recommend thirteen specific topics which required investigation by the Commission.
“Not fit for purpose”.
182. Following this, Dr. Varadkar, a member of the Government which is collectively responsible for policing, strongly criticised the Department of Justice for its failure to scrutinise the information passed to it by An Garda Síochána. The Minister said, on the 12th May, 2014:
“The Department of Justice is not fit for purpose. They accepted what the gardaí told them”.
(Emphasis supplied)
183. The Minister then observed, of the Government as a whole:
“The Government does get this. We do know there is a big problem with the gardaí and the justice system”.
(Emphasis added)
184. He went on to describe the Garda Síochána Ombudsman Commission, specifically mentioned in the appellant’s submissions in this case, apparently as a reassuring factor:
“GSOC is a toothless dog if ever there was one and they will admit that themselves”.
(Emphasis added)
It will be remembered that the existence of the Garda Síochána Ombudsman Commission was one of the specific reasons mentioned in the Public Prosecutor’s submissions in the present case said to favour the granting of the relief the State seeks in these proceedings. That submission is absolutely at variance with significant material quoted above and below.
“Fortress Garda”
185. While this judgment was being drafted, on the 2nd October, 2014, there was published in the Irish Times on line an interview with Mr. Conor Brady, former editor of The Garda Review and of the Irish Times itself, and author of a history of the gardaí, Guardians of the Peace. Mr. Brady was one of the founding Commissioners of GSOC and the interview records that “his disillusionment is deep”. He said:
“The process for our appointment was even more rigorous than that applying to judges. We could only be removed by a vote of the two Houses for stated misbehaviour. We were appointed at the highest level that is within the State’s capacity to give. But I just could not move the rock. You could not get into Fortress Garda.”
(Emphasis added)
In light of comments such as these, it is very hard to know how, precisely, the State consider that the creation of a “toothless dog” which cannot “get into Fortress Garda” is any form of reassurance or comfort when the Court is asked to set aside one of its own previous decisions and thereby considerably reduce judicial control of unconstitutional forms of evidence gathering.
186. Subsequent to Mr. Guerin S.C.’s report, by statement published on the 8th April, 2014, the government announced the terms of reference for a Commission of Investigation to be conducted by Mr. Justice Fennelly. According to this, the Commission is to investigate:
“- The operation of telephone recording systems to record calls to and from garda stations other than 999 calls to the Emergency Call Answering Service, at a large number of garda stations over many years,
- The garda investigation into the death of Ms. Sophie Toscan Du Plantier in County Cork in December 1996,
- How these matters were dealt with by the appropriate authorities and
- The sequence of events leading up to the retirement of the former Garda Commissioner in March 2014.”
187. The Statement goes on to set out further details of what is to be enquired into including:
“Whether any information obtained from the said telephone recording systems by An Garda Síochána was used by it either improperly or unlawfully and, in particular, whether any recordings as may have been made by An Garda Síochána of solicitor/client telephone conversations were used for any purpose whatsoever”.
188. Also included in the list of matters required to be investigated is:
“… the furnishing to the Minister [for Justice] of a letter dated 10th March, 2014 sent by the former Garda Commissioner, Mr. Martin Callinan, to the Secretary General of the Department of Justice and Equality”.
______________________________________________________________
189. It is therefore clear, that there are now, and have been for many years, serious questions as to the veracity in certain circumstances of a small but “disproportionally influential” number of members of An Garda Síochána. There is the important issue of whether, indeed, discipline and control within the Forces has eroded to the alarming degree badly stated in the report of the Morris Tribunal and whether it is indeed true that, within the Force, loyalty to other members of the Force is prized above honesty.
Most serious of all, is there “a wall of silence” in the Gardaí, as Judge Morris found, and is it true, as he also found, that “proper discipline been lost from An Garda Síochána”, so that there is an “extreme danger” that what the Tribunal reported on in Donegal will be repeated.
190. Quite apart from the reports of the two Tribunals mentioned, there have in very recent days been a number of new and contemporary controversies affecting An Garda Síochána. Many of these arise from the revelations or allegations of a whistle blower, Sergeant Maurice McCabe. It is no exaggeration to say that, in the course of this last calendar year, Sergeant McCabe has become a household name. There have been demands from the Garda Representative Association that these allegations should be resolved by an independent body as soon as possible because of the reputational damage that gardaí are incurring. There has been much public debate as to whether an independent garda authority should be established to oversee the Gardaí and this matter does not appear to have been finally been decided upon as yet.
191. All in all, in the words of the Government Minister quoted above “The Government do get this. We do know there is a big problem with the gardaí and the justice system”.
The Toland Report - “a deferential relationship”.
192. There has been some official reaction to the Morris Report though whether it has gone so far as to make a practical difference to a person suspected of, or charged with, a criminal offence, has yet to be seen. But on 3rd June, 2014 the Minister for Justice, Francis Fitzgerald T.D., who was then newly appointed, established an Independent Review Group to look into the “performance, management and administration of the Department of Justice”. This was done, according to the report of the group, in light of the concerns identified “particularly” in the report of Mr. Seán Guerin S.C. The members of the Independent Review Group consisted of Chairman, Mr. Toland, Chief Executive of the Dublin Airport Authority and a former Chief Executive of Glanbia USA. The other members consisted of a former Attorney General and EU Commissioner; a management consultant, the Chief of Police of Seattle, Washington U.S.A.; an accountant and management consultant; and a former Secretary General of the Department of the Environment. The group concluded on p.20:
“Regarding the role, responsibilities and capabilities of the Department, including concerns in respect of the governance and oversight of external organisations identified particularly in the report of Mr. Guerin S.C., the review group believes that there is a lack of governance with respect to external agencies and bodies. The Department fulfils its statutory obligations but does not hold agencies to account or have real management oversight”.
(Emphasis added)
The “External Agencies” referred to include the Garda Síochána.
193. Commenting specifically on the Department’s statutory role in relation to the gardaí, the group reported at para. 8(c) on p.10:
“The 2005 Garda Síochána Act was intended to reinforce and increase the power and authority of the Minister to set policies through and with the Commissioner. The Act, which was in response to the Morris Tribunal’s revelations, also altered the nature of accountability of An Garda Síochána through the establishment of the Garda Síochána Ombudsman Commission and the Garda Inspectorate. The implementation and operation of the Act is the responsibility of the Minister through his/her department and its Garda Division. The oversight role demands a delicate balance between accountability and respecting the independence of An Garda Síochána. In the view of the review group, there is a deferential relationship with An Garda Síochána and a lack of proper strategic accountability being brought to bear upon them by the department.”
(Emphasis added)
The “deferential relationship with An Garda Síochána”, referred to in the above quotation, is characterised by deference on the part of the Department to the Gardaí, and not the other way round.
194. The next paragraph of the report, par. 9(a) on p. 10, discusses the legislation mentioned above, the Act of 2005 and concludes:
“A major impetus for the enactment of this legislation was provided by the Morris Tribunal Report which, amongst its many findings, warned that ‘An Garda Síochána is loosing its character as a disciplined force’. (para. 13.101) The 2005 Act has been diluted in its implementation. The Department has adopted a passive approach stepping back from taking the opportunity to exercise the necessary power and influence at its disposal to encourage improvements in its management and discipline.”
(Emphasis added)
This report was published on 11th July 2014. Its conclusions are arrived at as of that date. The “deferential relationship” obtained (pertained?) as of that date.
Subsequent to the publication of the report, on 28th July, 2014 the Minister for Justice, Francis Fitzgerald T.D. welcomed the report and stated that:
“Given the significant recent disquiet over the administration and oversight of justice in this State, I believe this report presents another important step in this government’s justice reform programme.”
(Emphasis added)
I believe that this acknowledgement, by the Minister directly in charge of the justice area, that there is “significant recent disquiet over the administration and oversight of justice in this State” is an important part of the context of the present case. Given this disquiet, I really do not know how the complacent statements in the appellant’s submissions, quoted above, can be made. I consider it utterly unwise, to use no stronger word, to grant to the gardaí, in that context, the effective immunity from judicial oversight, which this case does. There is clearly no compensatory supervision or control by the Department. This may change. Equally it may not. Prudence suggests we might wait and see.
195. The Independent Review Group, in summarising its own findings about the Department of Justice made five key findings. These are:
(1) A closed, secretive, and “silo driven” culture.
(2) Significant leadership and management problems.
(3) Ineffective management processes and structures to provide strong strategic oversight of the key agencies both to hold them accountable and to ensure their effectiveness is maximised.
(4) A management advisory committee that is neither sufficiently focussed on key strategic priorities… nor ensuring that emerging that emerging issues with agencies or with political consequences are identified and managed proactively.
(5) Relationships with key agencies tend to be informal and unstructured without strong central management from the Department.
196. In this context, it appears to me to be nothing less than extraordinary for the State to submit that a change in the law which they so ardently desire can now somehow be the more easily conceded because of developments which have taken place since the decision in DPP v.Kenny [1990] 2 I.R. 110. On the contrary, it appears to me that very serious problems of garda culture and practices have been revealed by Tribunals headed by two distinguished members of the judiciary and by the garda whistleblower, and have been expressly acknowledged by members of the Government. It would appear to me absolutely extraordinary, and very damaging to the very concept of due process of law, if, with these matters outstanding and awaiting resolution, this Court were to take a step which would considerably loosen the application of the law of the land, and indeed on the Constitution itself, to members of An Garda Síochána and to provide a positive incentive for them to ignore it.
The matters invoked by the State appellant at paragraphs 45 to 47 of the submissions simply invite the Court to enter into an unreal, non-existent, world in which the authorities ever actually take civil or criminal proceedings against individual State officials for breach of citizens’ constitutional rights by groundless or warrantless searches. This simply does not occur. I am unaware of any such proceedings taken against any guard either at “coalface” or supervisory level for an infringement of a citizen’s constitutional right to the inviolability of his dwelling in the entire period since 1922.
This is illustrated by the case which the Director cites, Lynch v. Attorney General [2003] IESC 44, [2003] 3 IR 416. This was a case where a person was told by a State official (a guard) that an extradition warrant against him “would not be executed” if he gave information about other, quite different, matters.(at p. 416) The Court refused to restrain the person’s extradition to the United Kingdom on that basis. The Director’s submissions quote my judgment as follows (Lynch v AG [2003] IESC 44, [2004] 3 I.R. 416 at 435):
“A solemn, reasoned, finding of serious wrongdoing against a member of An Garda Síochána …is not a light matter, either for the member concerned individually or for the Force as a whole”.
I reiterate that this is true as a matter of law and equally true in the moral sphere. But I regret to say that, as matters are presently organised, the finding had absolutely no effect in practice.
There is no evidence whatever that the guard who behaved as outlined above actually suffered anything in the way of civil or criminal consequences. The Courts have from time to time made findings against individual guards in criminal proceedings, and in civil proceedings and of course there are many adverse findings in the reports of Tribunals of Inquiry, as we have seen above.
I am unaware that any of these findings or remarks have had any actual legal effect. If it is true, and it is true as far as I am aware, that in the twelve years since Lynch v AG [2003] IESC 44, [2004] 3 I.R. 416 was decided no steps were taken against the garda in question, that tells its own tale. No steps, notoriously, were taken against either the gardaí or the individual United Kingdom policemen involved in gross misconduct as found in State (Quinn) v. Ryan, [1965] I.R. 70 decided fifty years ago. I do not think that that policy of inaction and sedulous ignoring of the Courts findings has changed.
As I have said, I believe that the State appellant’s submissions in this regard invite the Court to enter an unreal world, which I absolutely decline to do. In any event, how could the gardaí at the doorstep in the present case be made the subject of disciplinary proceedings, on the State’s own case? Is it remotely likely that the Chief Superintendent who issued the warrant, or any of the still higher authorities who directed the policy which led to the capacity to issue the warrant, will be the subject of proceedings? I repeat, this is simply unreal. It has never happened; it has not happened in this case, and it will not happen in any other case. It is not simply the Gardaí which “doesn’t name the names… are not going to be hanging our people”, in Garda Martin Leonard’s phrase. It is the State’s policy as well.
197. I wish to stress in particular that the Guerin Report thought it appropriate to recommend the establishment of a Commission of Inquiry into the matters set out above; that the Fennelly Commission has already been established with the remit to report, if possible; before the end of 2014 (now extended); that the Garda Representative Association has called for an inquiry into the matters of concern which have been raised about the gardaí; and that the view has been expressed by a member of the Government that the Department of Justice is, or was as of last May, “not fit for purpose”, that “there is a big problem with the Gardaí and the justice system”, and that the Minister for Justice acknowledges “significant recent disquiet over the administration and oversight of Justice in this State…”. (28th July 2014)
Against this indisputable factual background, the decision of the majority will virtually preclude judicial supervision of the force publique, will make available to public servants with enormous powers over ordinary citizens a defence of carelessness or inattention, and will exalt already empowered public officials into a virtually impregnable position.
V
Kenny v. DPP [1990] 2 I.R. 110.
198. In my view, the case of Kenny v DPP [1990] 2 I.R. 110 (which the State seek to overrule) is one of the monuments of the constitutional jurisprudence of independent Ireland. It addressed a controversy which the Courts of many countries have been compelled to address. This is: what is to happen when evidence, unconstitutionally obtained by one or other of the coercive forces of the State, is offered in evidence against a citizen in a trial court. This situation immediately raises the question: how seriously are the Courts to take the Constitution which the people have adopted and the rights which are conferred on individuals by that document? Can State officials ignore the Constitution “by mistake” or through ignorance? And will the Courts wink at the ensuing breech of the Constitution?
199. In my view, Kenny v. DPP [1990] 2 I.R. 110 approaches that question in a principled, realistic, and moderate fashion. The result it arrives at, as I hope to show, is a middle-of-the road one. In the submissions made on behalf of the State in this case, Kenny v. DPP [1990] 2 I.R. 110 has been cynically misrepresented as an extreme decision amounting to an “absolute” or “near absolute” (both terms are used) Exclusionary Rule. It is nothing of the sort.
The principled basis of Kenny v. DPP [1990] 2 I.R. 110.
200. Article 40 is the Article of the Constitution which deals with the personal rights of the citizen. The starting point of any discussion of Kenny v. DPP [1990] 2 I.R. 110 must be Article 40.3.1 which provides:
“The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.
This is a solemn guarantee by the State. It imposes a special duty upon the Courts. In my view, the claim by the Public Prosecutor in this case would not only overrule Kenny v. DPP [1990] 2 I.R. 110: it would reduce Article 40.3.1 to an empty formula. If that can be done in relation to one of the express personal rights of the citizen, the right to be secure and undisturbed in his dwelling house save in accordance with law, it can, by the same or a similar process, be done in relation to any other right.
201. One of the other cases cited and followed by Judge Ring at the trial in the present case was that of Damache v. DPP [2012] IESC 11, [2012] 2 I.R. 266, the case in which, by the judgment of Denham C.J., s.29 warrants were found to be unconstitutional by reason of a lack of independence in the State official issuing them. Judge Ring cannot be said, and is not said, to have erred in following this case.
202. The first thing to be said about that case is that it was far from unexpected.
203. Reference has already been made, at some length, to the several reports of the Morris Tribunal. In its report on the “Burnfoot Module”, published on the 23rd May 1998, the Tribunal addressed the question of s.29 warrants as follows at par. 6.22 on p. 269:
“The Tribunal is satisfied that in many cases the person who issued the warrant was the person who was involved in the investigation of this offence. This cannot instil any confidence in the independence of the decision made to issue the warrant.
In the Ardara case, the Superintendent who was close to the investigation in Ardara was manipulated by Detective Sergeant White. The shocking circumstances as to the issue of the warrants for Burnfoot are detailed in Chapter III of this Report. The danger exists that the warrant would be issued automatically and without proper investigation of the matter by the Superintendent to whom the application is made if he or she is heading the investigation. There is a danger that the power to issue a s.29 warrant thereby becomes a mere formality in which the investigating Sergeant might as well be empowered to issue a search warrant to himself”.
(Emphasis added)
204. In DPP v.Cunningham [2012] IECCA 64, [2012] 2 ILRM 406 at 418, the Court of Criminal Appeal referred to the passage quoted above and said that it [the Court] found it “difficult to avoid the conclusion that the s.29 warrant procedure represented little more than a convenient and decorous formality which, absent the fundamental safeguards we have described as third party supervision and documentation, was in truth often little better than a warrantless search of the dwelling”. (Emphasis added)
205. The Court went on to observe at p. 418, that the result of Damache v. DPP [2012] IESC 11, [20122] 2 I.R. 266could equally “be said to have been prefigured by earlier case law”. The Court referred in particular to Ryan v. O’Callaghan (unreported) High Court, 22nd July, 1987; the judgment of Barr J. in King v. The Attorney General [1981] IR 233 and DPP v.Dunne [1994] 2 I.R. 537.
206. Similarly, in DPP v.Bolger [2013] IECCA 6 the Court of Criminal Appeal observed at par. 33 that:
“… the conclusion in the Damache case was not an unexpected result”.
207. In giving the judgment of the Court in Damache v. DPP & Ors [2012] IESC 11, [2012] 2 I.R. 266 itself, Denham C.J. at par.53 on p.284 also referred to the passage quoted above from the Morris Tribunal Report and went on:
“In other words, it was plainly stated in 2006 that the frailty of the Section raised an alarm as to its validity”.
208. The Court in Damache v. DPP [2012] IESC 11, [2012] 2 I.R. 266 held, at par. 55 on p. 285, that to conduct a search of a private dwelling on foot of a s.29 warrant involved “stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution”.
(Emphasis added)
209. It may be significant that, at the trial in the present case, which led to Mr. C.’s acquittal, the prosecution did not call in evidence the Chief Superintendent who purported to issue the warrant, even though several other garda witnesses were called, all lower-ranking. There is, therefore, no account on the record of why the issuer thought fit to issue it. That being so, the characterisation of the search under a s.29 warrant as “stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution” must apply to this search. It is presumably not to be thought that a Chief Superintendent of An Garda Síochána was unaware of the contents of the reports of the Morris Tribunal which had been in the public domain for five years. Nor did he lay claim to ignorance or mistake, for he did not give evidence at all.
210. One of the consequences of the DPP v.Kenny [1990] 2 I.R. 110 decision is to promote and encourage a consideration of the rights of the citizen by the coercive powers of the State at the highest level. A strong Exclusionary Rule has a “tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement generally”, as Justice Brennan expressed it in the United State Supreme Court in U.S. v. Leon, 468 US 897 at 953.
211. But that tendency, important though it is, is not the fundamental principled basis underlying the Exclusionary Rule. That fundamental basis, clearly established in this jurisdiction at least, was precisely identified by Finlay C.J. in DPP v. Kenny [1990] 2 I.R. 110 itself. Having fully acknowledged the disadvantages of an Exclusionary Rule, in certain cases, for the detection of crime, the learned Chief Justice went on to hold at p. 134:
“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… outweigh the unambiguously expressed constitutional obligation ‘as far as practicable to defend and vindicate the personal rights of the citizen’.”
(Emphasis added)
212. This chimes precisely with the well known and, to me, inspiring words of Justice Brennan in the United States Supreme Court in U.S. v. Leon 468 US 897 at pp. 929 to 930:
“… what the Framers understood then remains true today __ that the task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy. It was for that very reason that the Framers of the Bill of Rights insisted that law enforcement efforts be permanently and unambiguously restricted in order to preserve personal freedoms. In the constitutional scheme they ordained, the sometimes unpopular task of ensuring that the Government’s enforcement efforts remain within the strict boundaries fixed by the Fourth Amendment was entrusted to the courts”.
213. Similarly, Chief Justice Finlay spoke as he did notwithstanding that he had already recognised that (at p. 134):
“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…”.
214. These passages are central to my view of the present case. The duty to exclude evidence obtained by a deliberate and conscious breach of the Constitution arises directly from the terms of the duty imposed on the Court by the Constitution itself, in Article 40.3.1. That is a solemn duty whose nature has not changed since DPP v.Kenny [1990] 2 I.R. 110 was decided. If the powers that be consider that the terms of that duty should be changed, they can effect such a change by legislation and, if necessary, seek to refer such legislation to the Court under Article 26 of the Constitution. If it were held that such legislation was not consistent with the Constitution then it would be possible to remedy that difficulty by promoting a referendum to alter the terms of the Constitution itself. But the solemn duty imposed on the Court cannot be changed in the manner now attempted, which I believe to be a subterfuge, for the reasons set out in Part II of this judgment.
An absolute rule?
215. The attack by the State on DPP v.Kenny [1990] 2 I.R. 110 is sought to be carried through on the basis of very general, and very misleading, characterisations of that case. As I have already pointed out, it is described as being “absolute” or “near absolute”. This is quite simply false.
216. The DPP v.Kenny [1990] 2 I.R. 110 decision is in no way a crude, extreme or an unsophisticated one. It arrives at its conclusion that unconstitutionally obtained evidence must, in the absence of some extraordinary excusing circumstance, be excluded in a passage of unanswerable logic, summarised below. I note that one of my colleagues described this in another case as a process of “remorseless logic”, a phrase very different in tone but which seems to concede the central point. The result in DPP v.Kenny [1990] 2 I.R. 110 followed inexorably from the terms of the Constitution itself.
217. The judgment addresses, in a very careful and self conscious way, the principal objection to the conclusion it reaches. This is that, in some cases, it will deprive the Court of relevant evidence. It then sets out “the correct principle” in a manner which is manifestly not absolute.
218. Chief Justice Finlay, at p.133, first identified “two alternative rules or principles” governing the exclusion of evidence obtained as a result of the deliberate invasion of the personal rights of a citizen. These correspond to the distinction drawn in the State submissions in the present case. The Chief Justice then made a number of very basic observations:
(1) “The duty of the Court pursuant to Article 40.3.1 of the Constitution is, as far as practicable to defend and vindicate such [i.e., personal constitutional] rights”.
(2) “As between two alternative rules or principles governing the exclusion of evidence obtained as a result of the invasion of the personal rights of the 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”.
(3) “To exclude 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, while providing also that negative deterrent, incorporates as well as 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 citizen as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights”.
(4) “It seems 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 a principle with negative consequences only”.
219. I can see no break in this logical chain. I would not, therefore, depart from the conclusion, which is as follows (at p. 134):
“I am satisfied that the correct principle is that evidence obtained by an invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied either that 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 [the Courts] discretion”.
(Emphasis supplied)
220. I cannot see, with due respect to those who think otherwise, how a rule expressed so as to incorporate the exceptions set out in the foregoing passage by Chief Justice Finlay can properly be described as “absolute”. It is self evidently not absolute since it expressly provides for “extraordinary excusing circumstances”. The nature of such circumstances is, perhaps, prefigured by the judgment of Walsh J. in The People (Attorney General) v. O’Brien [1965] IR 142 at p. 170, where he instances “the imminent destruction of vital evidence or the need to rescue a victim in peril”.
221. Justice Oliver Wendell Holmes of the United States Supreme Court famously declared, in an extra-judicial lecture, that “The life of the law has not been logic: it has been experience”. The role of experience is perfectly exemplified in the exception which Chief Justice Finlay lay down to his own principle. Actual cases will throw up circumstances which could not possibly be anticipated by any process, however logical, before the event. It is for that reason that any jurist of experience will provide for un-anticipatable contingencies, as Chief Justice Finlay has done. But the very fact that he does so means that the principle he laid down is not absolute, or “near-absolute”
222. It must also be recalled that, in one of the relatively early American unlawful search cases, Dodge v. US 272 US 530 at 532, Justice Holmes declared that:
“If search and seizure are unlawful as invading personal rights secured by the Constitution, those rights will be infringed yet further if the evidence were allowed to be used”.
I very respectfully agree with that statement and indeed consider it to be self evident.
223. One of the principal purposes of this excursus on DPP v.Kenny [1990] 2 I.R. 110 has been to emphasise that the fundamental rationale of that case is not deterrence of unconstitutional activity by members of the force publique, though that may be a consequence of the Exclusionary Rule: it is the vindication of the individual citizen’s constitutional rights. Many of the most coherent espousals of this view are to be found in the United States jurisprudence, from the dictum of Justice Holmes above, through Mapp v. Ohio 367 U.S. 643, to the more modern statements of Justices Stevens and Ginsberg. But I do not think that the fundamental rationale of the Exclusionary Rule, that of the obligation on the Courts to vindicate the citizen’s constitutional rights have ever been better expressed than in the passages from Chief Justice Ó Dálaigh and Mr. Justice McCarthy as set out at para. 5 of this judgment. I would in particular refer to the statement of Mr. Justice McCarthy that unconstitutional behaviour by gardaí or other public servants will not “result at most in a judicial rebuke, however severe. It will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned whatever the consequences may be”.
224. I cannot see, how in a case where an individual’s constitutional rights have been trampled upon in order to obtain evidence against him, how those rights can be “immediately enforced, without qualification”, other than by exclusion of the evidence obtained by their breach. This is the most obvious, the most practical and indeed the only possible form of restitutio in integrum available in such circumstances.
VI
“Deliberate and Conscious”.
225. I have already pointed out that it is the State’s urgent desire in maintaining this appeal that evidence which has been obtained by a garda or other public servant in deliberate and conscious breach of a citizen’s constitutional right should nonetheless be capable of being used in evidence against the citizen. This is sought to be done in a number of different ways. The question of admissibility of the tainted evidence might be left to the discretion of the learned trial judge; experience suggests that this will rarely lead to its exclusion: see below. Or, the great object of achieving the admissibility of unconstitutionally obtained evidence might be achieved by redefining the established legal significance of the term “deliberate and conscious” in the manner suggested by the State in this case, so that a “mistaken” or inadvertent” trampling on a citizen’s rights will pass muster. This will radically dilute our Constitution’s protection of the citizen’s rights.
226. For many years it has been clearly established that for an evidence-gathering action to be “deliberate and conscious” so as to trigger (absent “extraordinary excusing circumstances”) the Exclusionary Rule, the act itself must be deliberate and conscious but it need not be proved that the State official who committed it knew it to be unconstitutional. This sense of the phrase “deliberate and conscious” is indeed essential to any system of enforcing constitutional rights which has teeth. It is the law which applies to ordinary citizens who have no defence along the lines “It was just a mistake” or “I didn’t know it was illegal”, or “I thought I was entitled to act in that way”, much less “I was just inadvertent”.
227. This topic was discussed by McCarthy J. in DPP v.Healy [1990] 2 I.R. 73, at pp.88 to 89. He said:
“In my view if ‘conscious and deliberate’ is a term of art appropriate to be used in the context of constitutional rights and their violation, the only test is whether or not the act or omission that constituted such violation was itself a conscious and deliberate act; the fact that the violator did not realise that he was in breach of a constitutional right is irrelevant. If it were otherwise then if one jailor could distance himself from the others, as the Superintendent did in the instant case, there need never be such a violation. It is not the state of mind of a violator that matters; it is the objective assessment of the conscious acts or omissions”.
(Emphasis added)
228. The learned judge continued at p.89:
“A violation of constitutional rights is not to be excused by the ignorance of the violator no more than ignorance of the law can enure to the benefit of a person who, at Common Law, and by statute law is presumed to have intended the natural and probable consequences of his conduct. If it were otherwise there would be a premium on ignorance”.
(Emphasis added)
“A premium on ignorance”.
229. I entirely agree with the conclusion expressed above by Mr. Justice McCarthy and with the reasoning which led him to that conclusion. It is most important to point out that every ordinary citizen is presumed to know the law and that ignorance of the law affords him no excuse. Thus, a person charged with failing to make a tax return cannot claim that he believed, or even that he was advised, that he did not need to make a tax return or to return some particular kind of income, or that he did not know that the tax return had to be made on a particular day. This maxim applies even to recondite and technical areas of the law such as the obligation to make a tax return or the obligation in certain circumstances to apply for planning permission. We have recently seen a case (DPP v.Fitzpatrick and Ors., Dublin Circuit Criminal Court, March 2014) where persons charged with a highly technical offence under the Companies Act were not permitted to prove in evidence that they had been professionally advised that the course of action they were taking did not breach the Companies Act: they were presumed to know the law.
230. It is easy to see why this maxim is essential to the administration of justice. If ignorance of the law were a defence then, as Mr. Justice McCarthy pithily put it “there would be a premium on ignorance”. Similarly if inadvertence to the law were an excuse, or mistake as to what the law is. But these are precisely what it is contended should excuse the “inadvertent” breach of an ordinary citizens constitutional rights by the force publique.
This is what exactly what the State intend in this case: that if a garda or other member of the force publique, can establish that he did not know that his action was a breach of a citizen’s constitutional rights, the evidence he obtained by that breach may nonetheless be admissible. This, despite the fact that all gardaí now are highly educated, specifically in law, and are often awarded a diploma in law by their training establishment.
231. The same topic was addressed by one of our most distinguished predecessors, Mr. Justice Walsh, in People v. Shaw [1982] I.R. 1, at p.33. Walsh J. said:
“I might add that there is nothing whatever in People (Attorney General) v. O’Brien [1965] I.R. 142 to suggest that the admissibility of evidence depends upon the state or degree of the violator’s knowledge of constitutional law or, indeed, of the ordinary law. To attempt to import any such interpretation of the decision would be to put a premium on ignorance of the law. The maxim that ignoratia legis neminem excusat does not permit an intentional and deliberate act or omission to be shorn of its legal consequences”.
The opinion of this Court on a similar subject was expressed as follows at p.134 of the Report of the case State [Quinn] v. Ryan, by Ó Dálaigh C.J.:
“… a belief or hope on the part of the officers concerned that their acts would not bring them into conflict with the Courts is no answer, nor is an inadequate appreciation of the reality of the right of personal liberty guaranteed by the Constitution.
To hold otherwise would to be hold what to many people would be an absurd position, namely, that the less a police officer knew about the Constitution and, indeed, of the law itself, the more likely he would be to have the evidence which he obtained in breach of the law and/or of the Constitution admitted in court. If such indeed were the position, it could well lead to a demand that the interest of equality of treatment should permit an accused person to be allowed to be heard to the effect that he did not know that the activity of which he was charged, and which has been proved against him, amounted to a breach of the criminal law”.
(Emphasis added)
232. I entirely agree with the whole of the foregoing quotation. I cannot consider that it is just, fair, or constitutional, to permit a public servant’s ignorance, or incorrect application, of the law of the land (especially constitutional law) to allow him to breach an ordinary citizen’s constitutional rights and then to use against that citizen evidence procured by that breach. I specifically agree with Chief Justice Ó Dálaigh that such a finding would call into question that aspect of the law which presumes an ordinary citizen to know the law in all its labyrinthine detail and prohibits him or her from mounting a defence on the basis that he did not know the law, perhaps because the State had taken no proper steps to draw to his attention. But the States coercive force publique may avail of just that excuse. I reject this.
233. In The People v. Madden [1977] I.R. 336, Chief Justice O’Higgins said, at p.347 of the Report:
“The Court of Trial appears to have sought an element of wilfulness or mala fides in the conduct of the garda officer and, not finding such, to have concluded that the deprivation of constitutional rights was not deliberate or conscious. 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 and permitted to be done by Inspector Butler and his colleagues may have been done or permitted for the best of motives and in the interest of the due investigation of the crime. However it was done or permitted without regard to the right of liberty guaranteed to the defendant by Article 40 of the Constitution and to the State’s obligation under that Article to defend and vindicate that right”.
(Emphasis added)
Whose ignorance is to excuse the breach?
234. I think it is fundamental that, in approaching the question of “deliberate and conscious” breach we should not confine our focus to the individual garda or other State official “at the coal face”, such as a garda on a doorstep, or a garda conducting an interrogation, or a garda directly supervising the custody of a suspect. It will nearly always be possible to make at least a plausible case of ignorance, or mistake or of bona fides in relation to such an individual, the man or woman at the very bottom of the ladder. Very often, indeed, this person will be obeying orders and exercise no personal discretion.
It would, for example, be quite easy to accept that an individual guard in possession of a s.29 Search Warrant may have been totally ignorant of the Damache v. DPP & Ors [2012] IESC 11case or even of the numerous developments since at least 2006 giving reason to doubt the constitutionality of s.29 warrants. But that case is of course much less easy to make about the Chief Superintendent who issued the warrant. In the present case, indeed, that high official did not give evidence at the trial. A case of ignorance would be still less plausible for the higher officers of State who determined the policy in relation to s.29 warrants and for the law officers of the State itself who advised them, and T.D.s who voted the relevant provision through the Oireachtas.
I think it is important in this regard to consider the words of Finlay C.J. in DPP v.Kenny [1990] I.R. 110 at p. 133. Towards the end of that page the learned Chief Justice considered that the Exclusionary Rule:
“… incorporates as well as 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 citizen set out in the Constitution…”.
(Emphasis added)
It appears to me that the underlined phrase in the last quotation expresses the scope of the class of person whose deliberation or consciousness in breaching the Constitution is to be considered. The question of whether a particular unconstitutional action is “deliberate or conscious” cannot be decided in the light of the state of mind of the lowest ranking State official involved. The effect of the Rule enunciated in DPP v. Kenny [1990] 2 I.R. 110 was specifically directed “to those in authority over the crime prevention and detection services of the State”. It is unfair to the ordinary citizen at the receiving end of an unconstitutional act, and perhaps to the lowly public official who is at the end of a chain of events or of authority, to have his actions and his state of knowledge as the determining factor. The high official, the Garda Commissioner, a Garda Chief Superintendent, a high departmental official, the Attorney General, the DPP or even a government minister who initiates or permits a chain of events which is the subject of a complaint, and not the humble official who may have no discretion but to execute his superior’s orders, is the person whose state of knowledge requires to be considered.
