Overruling the protectionist exclusionary rule

Published date01 October 2015
AuthorYvonne Marie Daly
Date01 October 2015
Subject MatterArticles
Overruling the protectionist
exclusionary rule: DPP vJC
Yvonne Marie Daly
Dublin City University, Ireland
In April 2015 the Irish Supreme Court held, in DPP vJC, that the rather strict exclusionary rule
relating to unconstitutionally obtained evidence which had operated in that jurisdiction for the
past twenty-five years should no longer be applied. A majority of the Court held that the
seminal case in which the rule was set out was erroneously decided and, accordingly, overruled
that precedent and reformulated the relevant rule. While the previous rule had operated on a
rationale of protectionism, the newly-stated rule is based on principles of deterrence such that
evidence will not be excluded where the relevant breach of constitutional rights is inadvertent.
This is a major change of approach for the Irish criminal justice system and this case note
explores the background to the change, the judgments of the Supreme Court, and the potential
impact of what Hardiman J (dissenting) referred to as this ‘‘revolution in principle’’.
exclusionary rule, improperly obtained evidence, police investigations, constitutional rights,
In the investigation of criminal offending, through search, arrest, detention, questioning, forensic
sampling and so on, important rights of suspects, and others, are sometimes transgressed by police.
Such transgressions, by agents of the state, may occur in differing contexts, may be deliberate,
reckless or accidental, and may affect relevant rights to varying extents. While every effort should
be made to avoid the breach of rights in the first instance, the ideal of a clean slate in this regard is
simply unobtainable. Accordingly, a criminal justice system requires a defined approach to police
breaches of rights during an investigation and, more specifically, a criminal proces s requires a clear
policy in relation to the admissibility at subsequent trial of any evidence obtained in breach of a
suspect’s rights.
In the mid-1990s, Judge Harold J Rothwax, acting New York State Supreme Court justice, expressed
the view that the exclusionary rule applicable in the United States was the strictest in existence in the
Corresponding author:
Yvonne Marie Daly, Socio-Legal Research Centre, School of Law and Government, Dublin City University, Dublin, Ireland.
Email: yvonne.daly@dcu.ie
The International Journalof
Evidence & Proof
2015, Vol. 19(4) 270–280
ªThe Author(s) 2015
Reprints and permissions:
DOI: 10.1177/1365712715601764

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