Unconstitutionally obtained evidence in Ireland: protectionism, deterrence and the winds of change

Introduction: The law on the admissibility of improperly obtained evidence in Ireland was first authoritatively considered and decided upon by the Supreme Court in the mid-1960s.While later courts have revisited, and to some extent refined, the law in this area, the original formulation of the so-called exclusionary rule largely remains in place today. The law on improperly obtained evidence in Ireland is thus well established, however, it is not without its detractors, and recent times have seen both criticism of the exclusionary rule from the bench, and calls for change from an independent advisory group set up by the Department of Justice.This group, the Balance in the Criminal Law Review Group ('the Group'), recommended that the stringent Irish rule in relation to the exclusion of unconstitutionally obtained evidence, specifically, ought to be replaced by a rule which allows discretion to the trial judge to admit or exclude such evidence based on the totality of the circumstances, with particular regard to the rights of the victim. While the Group put forward a number of interesting arguments for change, the main focus of this article is the claim that 'radical changes in the nature of policing in recent years' have superseded 'any contention that the [current] rule is necessary to ensure that the police comply with the relevant legal requirements'. It is submitted within this article that any suggestion that there might be a necessity or opportunity for change in the law on the exclusion of unconstitutionally obtained evidence in Ireland on the basis of recent innovations and advances in garda accountability and discipline involves a misperception of the reasoning behind the law on exclusion as formulated by the Irish courts. This article outlines the development and application of the exclusionary rule in Ireland and, importantly, clarifies the rationale for the specific rule in relation to unconstitutionally obtained evidence. The article then looks to developments in the United States where a change to the exclusionary rule has recently come about and finally concludes on the question of altering the Irish rule due to recent improvements in garda accountability and discipline