The Scope of Appeals to the Irish Supreme Court under s. 23 Criminal Procedure Act 2010 and the Exclusionary Rule
| Author | Tony Ward,Clare Leon |
| DOI | 10.1177/0022018315597851a |
| Published date | 01 August 2015 |
| Date | 01 August 2015 |
| Subject Matter | Supreme Court of Ireland |
Supreme Court of Ireland
Supreme Court of Ireland
The Scope of Appeals to the Irish Supreme Court under s. 23 Criminal Procedure Act
2010 and the Exclusionary Rule:
Director of Public Prosecutions vJC [2015] IESC 31
Keywords
Prosecution appeals, exclusion of evidence, Ireland
Gardaı´ were investigating a series of robberies and, as a result of inquiries, formed the intention to arrest
JC, based on reasonable grounds. While the arrest would have been valid if carried out in a public place,
Gardaı´ also had a warrant, issued under s. 29 Offences Against the State Act 1939 (the 1939 Act),
enabling them to search JC’s home address. On production of the warrant they were admitted to the
house by JC’s sister, where they arrested JC. A concomitant search of the premises produced nothing
of evidential value. Meanwhile JC had been taken to the Garda Station and cautioned, and following
access to legal advice he made a number of inculpatory statements.
Subsequently, in Damache vDPP [2012] 2 IR 266, the Supreme Court ruled that s. 29 of the 1939 Act
was unconstitutional as it enabled Gardaı´ to authorise searches without independent scrutiny.
By the time that JC’s case came to trial, the decision in Damache was the law. While the prosecution
accepted that any evidence obtained as a result of the search should be excluded, it was argued that the
statements made by JC in Garda custody should still be admitted. The arrest was not dependent on the
warrant as there were pre-existing grounds for the arrest. Furthermore, entry to the premises to arrest and
search was permissible under s. 6(2) of the Criminal Law Act 1997, and was also not dependent on the
warrant. The prosecution submitted that the subsequent invalidity of the warrant should therefore not be
relevant to the admissibility of the evidence.
The defence argued that because the Gardaı´ had used the warrant to obtain entry, it was irrelevant that
they may have had a further unimpeachable legal power to enter and arrest. Even though issued prior to
the Supreme Court’s decision in Damache, the warrant must be treated as invalid. Consequently the
Gardaı´ were trespassers, and JC’s arrest and detention in custody were unlawful. Following the decision
in People vKenny [1990] 2 IR 110, as the entry on the premises and the arrest were intentional and there-
fore ‘deliberate and conscious’, JC’s constitutional rights to liberty and to the inviolability of his dwell-
ing had been deliberately and consciously breached. Accordingly the court was obliged to exclude the
evidence.
The trial judge accepted the arguments on behalf of the accused and ruled that JC’s statement, made
while in Garda custody, was inadmissible. In the face of the prosecution offering no further evidence, she
directed the jury to enter a verdict of not guilty.
The Director of Public Prosecutions appealed to the Supreme Court under s. 23 of the Criminal Pro-
cedure Act 2010, and specifically invited the court to overrule its decision in Kenny. The court directed
of its own motion that it was also necessary to consider whether the statutory criteria under s. 23 had been
established in order to give it jurisdiction to hear the appeal.
HELD, ALLOWING THE APPEAL, s. 23 of theCriminal Procedure Act 2010 allows the DPP
to make a ‘with prejudice’ appeal against an acquittal, where a ruling was made during the
The Journal of Criminal Law
2015, Vol. 79(4) 238–241
ªThe Author(s) 2015
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DOI: 10.1177/0022018315597851a
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