While it is unlikely to be any comfort to Patrick Quirke, the Supreme Court decision affirming his murder conviction looks set to be the go-to judgment for years to come concerning the law on unconstitutionally obtained evidence.
The unanimous judgment of the seven-judge court, authored by Mr Justice Peter Charleton, places the existing case law into a compendium, analyses it and sets out in clear terms the test for admitting, and excluding, unconstitutionally obtained evidence.
The court’s earlier, main, judgment on Quirke’s appeal distinguished the search of digital spaces from physical spaces in concluding the seizure of computer devices from Quirke’s home was unlawful because sworn information from gardaí, on foot of which the District Court granted a search warrant, did not seek authorisation to search the content on the devices.
The main issues in the follow-on appeal concerned whether the evidence found on the computer should have been admitted at Quirke’s trial, the appropriate test for admitting unlawfully obtained evidence and to what extent an appeal court can rule on admissibility.
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The judgment involves a firm restatement of the controversial 2017 majority Supreme Court decision in DPP V JC setting out a new rule concerning the admissibility of unconstitutionally obtained evidence.
Before JC, the State was restricted, with some exceptions, by the “exclusionary rule” in relying on evidence obtained in breach of a constitutional right. The majority in JC held that evidence obtained unconstitutionally will be admissible if the prosecution can demonstrate it was obtained by an inadvertent breach of constitutional rights.
In the latest Quirke judgment, the Supreme Court states the effect of JC in relation to unlawfully seized evidence is of “universal application” and not limited to search warrants. The 1990 DPP V Kenny decision, setting out the exclusionary rule, can no longer be regarded “as having any binding effect or authority”, it categorically states.
The court sets out the full ambit of the JC test for deciding whether evidence obtained in breach of a constitutional right is admissible or not. It states, inter alia, that evidence can be admitted when the breach can be excused due to having occurred in consequence of subsequent legal developments or due to inadvertence.
In an observation likely to be welcomed by the DPP and Garda, the court said: “Reality demands the adoption of the rule in this form, through acknowledging that Garda officers or other persons conducting searches or obtaining evidence cannot be expected to anticipate the future decisions of the courts.”
That may be bad news for some seeking to have convictions overturned after subsequent legal developments. Graham Dwyer, whose Supreme Court appeal against his conviction for the murder of Elaine O’Hara has yet to be heard, is unlikely to be encouraged by Friday’s decision.
The judgment also clarified the categories of ruling that can be corrected on appeal without the need to direct a retrial. In Quirke’s case, while there was a breach of Quirke’s rights, the Supreme Court said it had sufficient information to itself find that a JC inquiry would have concluded this was due to inadvertence, with the effect his conviction stands.