The 25 year old exclusionary rule established in DPP v Kenny 1990, that tightly restricted the State from using evidence it obtained in breach of a constitutional right has been effectively repudiated. In its appeal the State requested that the Supreme Court relax the Kenny Judgment.
The State argued that a middle ground must be found between Kenny, which represents a near absolute exclusion, and the case of The People v O’Brien 1965, which held that only deliberate and conscious breaches of constitutional rights could lead to the exclusion of evidence.
The two key judgments for the majority are those of Mr Justice Donal O’Donnell and Mr Justice Frank Clarke.
The new test is set out by Mr Justice Clarke, who states “from now on, evidence obtained unconstitutionally will be admissible if the prosecution can show the breach was due to inadvertence”. The implication here is clear that the majority believes DPP v Kenny was incorrectly decided and that is has now been overruled.
In a strong dissenting judgment, Mr Justice Adrian Hardiman states that he believes the decision of the court in DPP v J.C. has effectively given An Garda Síochána “immunity from judicial oversight” by rewriting a key rule on evidence in criminal trials.
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