Landmark evidence ruling to have major implications on criminal court cases

'Horrified': Supreme Court judge Hardiman
'Horrified': Supreme Court judge Hardiman

A Supreme Court judge has strongly criticised a landmark ruling which is to have "major implications " on criminal court cases.

The court this week returned a narrow 3-4 majority to relax a 25-year-old Supreme Court ruling which bars the State from using evidence acquired in breach of constitutional right. 

In a strongly-worded statement, Supreme court judge Adrian Hardiman said he was "horrified" the long-standing rule has been relaxed.

The 1990 Kenny ruling stated that evidence obtained in an unconstitutional manner could not be used in criminal court cases. It arose during the trial of an individual known as JC who was accused of robbery offences.

During the trial the judge discounted and excluded six statements made by the accused because, at the time of questioning, he had been detained unlawfully. 

The relaxing of this rule means that evidence obtained, whether arbitrarily acquired or not, can be used in court if the prosecution can show the breach was inadvertent - meaning if it can be shown the evidence obtained was not done so deliberately. 

Judge Hardiman said the repudiation of the ruling will have major implications on criminal court cases in years to come. He also said the move will give An Garda Síochána “effective immunity from judicial oversight”. 

“I consider it utterly unwise, to use no stronger word, to grant to the gardaí, in that context, the effective immunity from judicial oversight which this case does”, Judge Hardiman said. 

He added he was "gravely apprehensive" the court has cut down the Kenny ruling, one of the "monuments" of legal architecture. 

Mr Justice Donal O’Donnell, one of four majority-voting judges, said the 1990 rule was “plainly wrong”. It set down a near-absolute exclusion that represented the most extreme position in the common law world, he said. 

From hereon in, evidence obtained unconstitutionally will be admissible if the prosecution can demonstrate the breach of protocol was inadvertent - not as a result of deliberate planning. 

The ruling, judges say, will provide greater protection to members of the force and less judicial oversight for judges. It rewrites the evidence rule-book and will have "major implications" for future criminal court cases.