“A Revolution in Principle”? The Impact of the New Exclusionary Rule

The 2015 Irish Supreme Court case of DPP v JC has been described as ‘the most astounding judgment ever delivered by an Irish court.’ Reflecting primarily on the passionate dissent of Hardiman J in the case, Fennelly says that ‘DPP v JC has everything: law, literature, history, polemic and vast learning but also emotion, horror, anger, even shame.’ In JC, a 4:3 majority of the Court removed and replaced the exclusionary rule in relation to improperly obtained evidence which had been in operation in this jurisdiction for 25 years. The old rule, set out in People (DPP) v Kenny, was viewed by the majority as operating in an overly strict manner, excluding evidence obtained in breach of constitutional rights even where such breach was inadvertent, in the sense that the person whose actions constituted the breach did not realise, or in some cases could not possibly have realised, that a breach would result. The new rule ensures that evidence obtained in inadvertent breach of constitutional (or other) rights may be admitted at trial. It further provides that where any apparent unconstitutionality arises as a result of subsequent legal developments (e.g. a judicial finding that a statutory garda power is unconstitutional), the evidence obtained may yet be admitted