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Judicial oversight of policing: investigations, evidence and the exclusionary rule

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Abstract

Police procedures and practices in the investigation of crime are shaped by many things. One particularly important constituent part of the development of investigative procedures and practices is the approach of the courts to the admissibility at trial of evidence obtained in a certain manner. While a judge can only address the specifics of whatever cases are brought before him, the judiciary as a whole have a significant role to play in terms of police accountability and governance through their development and application of any exclusionary rules of criminal evidence. This article examines the judicial oversight of policing by way of the exclusion of improperly obtained evidence at trial. Its central focus is on the development and operation of the exclusionary rule in Ireland, though relevant law in other jurisdictions, including England and Wales, the United States, Canada and New Zealand, is also considered. Particular attention is paid to the recent Irish Supreme Court decision of DPP v Cash, and its ramifications for judicial oversight of policing.

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Notes

  1. The Final Report of the Balance in the Criminal Law Review Group suggested that the Supreme Court might be able to reinterpret the law on unconstitutionally obtained evidence in an appropriate case, at pp.161–166.

  2. See Kuruma v The Queen [1955] AC 197; King v R [1969] 1 AC 304; and, Jeffrey v Black [1978] QB 298.

  3. See R v Murphy [1965] NI 138; R v Foulder, Foulkes and Johns [1973] Criminal Law Review 45; and, R v Burnett and Lee [1973] Criminal Law Review 748.

  4. Kuruma v The Queen [1955] AC 197, 203 per Goddard LJ: “the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how the evidence was obtained.”

  5. See A.G.’s Reference (No. 3 of 1999) [2001] 2 Weekly Law Reports 56 and Khan v United Kingdom [1995] QB 27; [1997] AC 558; (2000) 31 EHRR 1016 and Choo and Nash [3].

  6. US v Calandra 414 US 338 (1974); Wolf v Colorado 338 US 25 (1949); U.S. v Leon 468 US 897 (1983).

  7. Discussed in Sklansky [30].

  8. See Wilson v Arkansas 514 US 927 (1995).

  9. Referring to the early United States exclusionary rule case of Mapp v Ohio 367 US 643 (1961).

  10. For a description of the operation of the discretion see R v Coombes [1985] 1 NZLR 318.

  11. See R v Butcher [1992] 2 NZLR 257 and R v Te Kira [1993] 3 NZLR 257.

  12. R v H [1994] 2 NZLR 143 at 150 (Richardson J).

  13. In O’Brien, Walsh J. gave a non-exhaustive list of examples of extraordinary excusing circumstances which might justify the admission or otherwise of unconstitutionally obtained evidence: “the imminent destruction of vital evidence or the need to rescue a victim in peril.” People (AG) v O’Brien [1965] 1 IR 142 at170.

  14. See People (DPP) v Lawless (unreported, Court of Criminal Appeal, November 28, 1985); People (DPP) v McMahon, McMeel and Wright [1987] ILRM 87; DPP v Spratt [1995] 1 IR 585; [1995] 2 ILRM 117; People (DPP) v Van Onzen [1996] 2 ILRM 387; People (DPP) v Darcy, (unreported, Court of Criminal Appeal, July 29, 1997); People (DPP) v Holland, (unreported, Court of Criminal Appeal, June 15, 1998); People (DPP) v Connolly [2003] 2 IR 1; People (DPP) v Paul Kelly, (unreported, Special Criminal Court, November 26, 2004); D.P.P. v Diver [2005] 3 IR 270.

  15. Note of Dissent on Exclusionary Rule by the Chairman of the Balance in the Criminal Law Review Group, Gerard Hogan [1; p.289].

  16. See People (DPP) v Walsh [1980] I.R. 294; People (DPP) v Shaw [1982] I.R. 1; People (DPP) v Healy [1990] 2 I.R. 73; [1990] I.L.R.M. 313.

  17. As is required under the provisions of the Misuse of Drugs Act 1977 [23].

  18. Quoting Art.40.3.1 of the Irish Constitution.

  19. In Kenny, the actions of the Gardaí in obtaining the warrant and later forcibly entering the dwelling could not be said to be unintentional or accidental and, although the Gardaí concerned had no knowledge that they were invading the constitutional rights of the appellant, the evidence ought not to have been admitted at trial.

  20. The most significant example of this is the judgment of Charleton J in the High Court in DPP (Walsh) v Cash [2007] IEHC 108 (28 March 2007) discussed below. See also the High Court judgment of Edwards J in DPP (Lavelle) v McCrea [2009] IEHC 39.

  21. Unlike the position in England and Wales whereby a detained suspect who requests legal advice cannot be interviewed until he has received such advice [29; para 6.6], there is no prohibition on the questioning of a suspect in Ireland prior to the arrival of a requested solicitor. The Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 [7: regulation 11]does state, however, that where a detained suspect has requested a consultation with a solicitor he is not to be asked to make a written statement until a reasonable time for the attendance of the solicitor has elapsed. Also, if certain inference-drawing provisions are to be invoked, legislation provides that the accused should be afforded a reasonable opportunity to consult with his solicitor, e.g. s.19A of the Criminal Justice Act, 1984 [6], as inserted by the Criminal Justice Act, 2007 [8]. See further DPP v Raymond Gormley [2010] IECCA 22.

  22. See People (DPP) v Healy [1990] 2 Irish Reports 73; [1990] Irish Law Reports Monthly 313.

  23. According to the Law Reform Commission, [18; para. 4.09, 4.14] consent is the method most commonly used by the Gardaí for taking forensic samples, partly because they perceive the requirements of the statutory regime to be too burdensome. Leahy [19; p.67] has suggested, in relation to bodily samples, that “…it is necessary that at least three gardaí take a total of 20 separate steps” in order to lawfully obtain such samples under the relevant legislation. In People (DPP) v Boyce [2005] IECCA 143; [2008] IESC 62, both the Court of Criminal Appeal and the Supreme Court held that the statutory scheme for the taking of bodily samples co-exists with the voluntary scheme based on consent. This position may be altered in the future as draft legislation currently before the Houses of the Oireachtas proposes to insist on the operation of the statutory regime where a bodily sample is to be taken from a person detained in garda custody: Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 [10; s.26].

  24. Criminal Justice Act, 1984, s.8, as amended by the Criminal Justice Act, 2006, provides that fingerprints taken from suspects who have been arrested and detained under either the Criminal Justice Act, 1984 [6] or the Criminal Justice (Drug Trafficking) Act, 1996 [9] and any copies thereof must be destroyed at the expiration of 12 months from the taking of such prints if proceedings are not instituted against the relevant suspect and the failure to institute the proceedings within that period is not due to the fact that he has absconded or cannot be found.

  25. The Law Reform Commission [18; para 4.09] has noted that in practice where assurances are given by the gardaí that fingerprints will not be retained or where a volunteer requests that his prints be destroyed, then they are destroyed.

  26. Written consent was given by the suspect’s mother as the suspect was at the time under 18 years of age.

  27. Murray CJ, Denham, Geoghegan, Macken, and Finnegan JJ concurring. Hardiman J delivered a separate judgment in which he lamented the lack of evidence in relation to any unconstitutionality in the retention of the first set of fingerprints and accordingly held that the matter would have to be remitted to the District Court and none of the questions which appeared to be raised could be answered.

  28. See, for example, Teper v R [1952] AC 480, 486 per Lord Normand: “It [hearsay] is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost.”

  29. The right to privacy has been recognised as a constitutionally protected right in a number of cases including: McGee v AG [1974] IR 284; Norris v AG [1984] IR 36; Kennedy v Ireland [1987] IR 587.

  30. See S. and Marper v United Kingdom (4 December, 2008).

  31. Expressly protected under Art. 40.4.1 of the Constitution.

  32. It is notable that the European Court of Human Rights in S. and Marper v United Kingdom (4 December, 2008) drew no functional distinction between fingerprints and bodily samples in relation to the application of the Art.8 ECHR right to privacy, despite acknowledging that the retention of material which can give rise to a DNA profile involves a deeper intrusion into private life. See further, Heffernan [15].

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Correspondence to Yvonne Marie Daly.

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Dr. Yvonne Marie Daly is currently a visiting researcher at the Faculty of Law, University of Auckland, New Zealand.

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Daly, Y.M. Judicial oversight of policing: investigations, evidence and the exclusionary rule. Crime Law Soc Change 55, 199–215 (2011). https://doi.org/10.1007/s10611-011-9279-4

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