The Supreme Court has unanimously refused a retrial requested by the Director of Public Prosecution (DPP) of a burglary case where the defendant was acquitted of charges under what was known as the 'exclusionary rule'. The possibility of a retrial arose following a Supreme Court decision that reversed the rule in DPP v Kenny which excluded evidence obtained, either by mistake or deliberately, in breach of a constitutional right of the defendant in a criminal trial.
The initial 2012 trial involved a man who had been acquitted of burglary charges due to the fact that evidence was obtained by the Gardaí during an unwarranted search of the man’s home. Referring to the exclusionary rule in Kenny, the trial judge found that due to the invalidity of the search warrant under Section 23 of the Criminal Procedure Act all evidence gathered using the warrant was invalid and excluded from use of the prosecution at trial.
On appeal to the Supreme Court, Mr Justice Donal O’Donnell, Chief Justice Susan Denham, Mr Justice Frank Clarke and Mr Justice John MacMenamin formed the majority view that the Kenny exclusionary rule was “plainly wrong”. Dissenting however, Mr Justice Adrian Hardiman said he was “gravely apprehensive” and that the Kenny decision was essential to the maintenance of the liberties of a citizen. Justice Hardiman also stated that the new rule would effectively give members of a “privileged and legally empowered group” a defence of, “I didn’t know it was against the law”. Also dissenting was Mr Justice Liam McKechnie and Mr Justice John Murray.
The seven-judge ruling of Supreme Court refused the recent application by the DPP to retry the man known as Mr C, acquitted in the 2012 burglary case. Chief Justice Susan Denham said that in the interests of justice, as well as the fact that the respondent was acquitted three years ago, the retrial would be refused. Mr Justice Murray, who dissented in the decision to reverse the exclusionary rule, said a retrial would be “an appalling prospect from the perspective of the rule of law”.
Click here to read a previous PILA Bulletin article on the reversal of the Exclusionary Rule.
Click here to read the decision of the Supreme Court in April 2015 that reversed the exclusionary rule.