THE SUPREME COURT
[Supreme Court Appeal No: 35/2016 and 36/2016]
[Court of Appeal No: 2014/1452 and 2014/1453]
[High Court No: 2011/10 CAB]
CRIMINAL ASSETS BUREAU
MICHAEL MURPHY JUNIOR AND MICHAEL MURPHY SENIOR
JUDGMENT of Ms. Justice O’Malley delivered the 27th day of February 2018.
1. The value of the property in dispute in these civil forfeiture proceedings is relatively insignificant - less than €20,000 in cash - but the litigation raises important questions. The context for those questions is that the cash, in respect of which the respondent has obtained orders under the Proceeds of Crime Act 1996, was seized from the dwelling of one of the appellants on foot of an invalid search warrant and thus in breach of his constitutional rights. The acknowledged difficulty with the warrant was that it had been issued under the provisions of s. 29 of the Offences Against the State Act 1939, as amended, before that section was held to be unconstitutional by this Court in Damache v. Director of Public Prosecutions  2 I.R. 266.
2. The appellants (“the Murphys”) have argued that the cash should have been excluded from evidence because it was unconstitutionally or illegally obtained. The respondent (“the Bureau”) has contended, in essence, that any rule excluding evidence on that basis has no application in in rem proceedings. This argument was accepted by the trial judge (see Criminal Assets Bureau v Murphy  IEHC 583) and by the Court of Appeal (Criminal Assets Bureau v Murphy  IECA 40). The Court of Appeal held that the exclusionary rule was intended to prevent the deployment of unconstitutionally obtained evidence only in in personam proceedings against the person whose rights had been breached, and had no relevance in in rem proceedings where the issue before the court was the provenance of the property itself.
3. In its determination on the application for leave to appeal this Court noted the wide public importance of clarifying the law on whether any rule as to the exclusion of evidence which is illegally or unconstitutionally obtained is applicable in civil proceedings. Leave to appeal to this Court was thus granted on the following points:
4. I feel it necessary to observe at this stage that couching the questions in terms of the exclusion of evidence did not, perhaps, accurately describe the central issue to be determined by the Court. The cash was not produced before the Court as evidence tending to prove any disputed issue of fact - rather, the evidence in the case was adduced by the Bureau and by the Murphys to respectively support or undermine the proposition that the money represented the proceeds of criminal activity. The distinction becomes particularly apparent in relation to the first and third questions posed, which raise the possibility that evidence of the cash might be excluded in respect of some parties but admitted in respect of others. While this result could be accommodated in criminal trials, it would be absurd in proceedings of the instant character if, for example, the property seized were to be claimed on the basis of joint ownership by an occupant and a non-occupant.
(i) Where a dwelling is entered other than in accordance with law, and that dwelling is not that of a person seeking to assert a constitutional right to the inviolability thereof, may evidence be excluded in proceedings concerning a person not dwelling therein?
(ii) Is there any rule of law requiring that evidence obtained in consequence of illegal entry into a dwelling should be excluded from civil proceedings, including proceedings in rem under the Proceeds of Crime Act 1996, as amended?
(iii) Is there any rule of law requiring the exclusion of evidence in civil proceedings obtained in consequence of a deliberate illegality, or a mistake amounting to an illegality, or in consequence of the deliberate and conscious violation of the rights of one of the parties?
5. In reality, therefore, the problem is not whether items found and seized in such circumstances can be put in evidence, since the Bureau does not intend to do so or to prove any matter thereby, but whether the Bureau was entitled, having regard to the established illegality, to an order intended to deprive the Murphys of the cash. In broader terms, it seems to me that the question that the Court should address is whether the constitutional principles underpinning the exclusionary rule have any application in proceedings of this nature such that the State should, in all or in any circumstances, be denied the benefit of an action taken by its agents in breach of an individual’s constitutional rights.
6. Despite the breadth of the terms upon which leave to appeal was granted, I think it preferable, for present purposes, to confine consideration of the issue to litigation involving the State and to illegality and breach of rights arising from the actions of State agents. This is because the instant case involves, as do most such cases, the use of the coercive powers conferred upon elements of the force publique. The factors that may properly influence the Court’s approach to the matter will not often arise in purely private litigation and indeed it seems clear that there are few recorded cases where it has. Since private parties normally lack such legally coercive powers, a case where one party seeks to secure an advantage over the other by the use of means which violate the rights of that other will, it seems likely, involve considerations of the criminal law and/or the law of tort. To deal with these issues in the context of the instant proceedings would be to engage in an undesirable level of hypothetical discussion.
7. The Murphys are father and son. In May, 2009 a number of firearms were found in the course of a search of a vehicle driven by Michael Murphy Jr. He was subsequently prosecuted and sentenced for firearms offences. Following his arrest, investigating gardaí obtained a warrant pursuant to s.29 of the Offences against the State Act 1939, as amended, which was relied upon as authority for a search of a house in Co. Cork on the 28th May, 2009. There is no question but that this house was the residence of the notice party, who was the girlfriend of Mr. Murphy Jr. On the evidence put before him in the High Court, the trial judge considered it proper to treat it as being the dwelling of Mr. Murphy Jr. also.
8. In the course of the search the gardaí found and seized a number of items, including sterling and euro sums in the amount of Stg£6,625 and €9,000 in cash. The second named appellant, Mr. Michael Murphy Sr., has asserted ownership of a certain amount of the cash. He originally claimed that he owned all of the sterling and that he was also entitled to €5,000 out of the €9,000 on the basis of a loan made by him to his son. At the hearing of this appeal it was confirmed that his claim now relates to the sterling only. Mr. Murphy Jr. claims the remainder.
The High Court proceedings
9. In July, 2010 the Bureau obtained an order pursuant to s.2 of the Act of 1996 in respect of the two sums of cash and some other items seized or discovered in the course of the investigation. Section 2 provides for the making of an interim order, on an ex parte application, where it is shown to the satisfaction of the Court that the property in question constitutes, directly or indirectly, the proceeds of crime. The Bureau then sought an order pursuant to s.3 of the Act. In brief summary, that section provides that where it appears to the Court, on evidence tendered by or on behalf of the Bureau, that the respondent to the application is in possession or control of specified property that constitutes, directly or indirectly, the proceeds of crime, the Court is to make an order prohibiting the respondent from disposing of or otherwise dealing with the property unless it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any other person, that the particular property does not constitute the proceeds of crime and was not acquired, in whole or in part, with or in connection with property that constitutes the proceeds of crime. This provision has been interpreted as requiring the Bureau to make out a prima facie case, following which the burden of proof shifts to the respondent. Section 3 includes a proviso that the Court shall not make the order if it is satisfied that there would be a serious risk of injustice.
10. An order made under s.3 can, if not discharged or varied for reasons specified in the Act, remain in force for a period of seven years at which point the Bureau may seek a disposal order under s.4. The effect of such an order is to deprive the respondent of his or her rights (if any) in the property concerned and to transfer it to the Minister for Public Expenditure and Reform, or to such other person as the Court may determine. The respondent is entitled to oppose the application, and the order is not to be made if the court is satisfied that there is a serious risk of injustice.
11. Section 16 of the Act makes provision for the payment of compensation to a property owner in respect of loss caused by the making of an order under the Act, should it be established that the property was not the proceeds of crime.
12. Section 8 of the Act renders admissible hearsay evidence given on the question of the respondent’s ownership or control of the property, and its connection with criminal activity, by either a member of the Garda Síochána not below the rank of Chief Superintendent or an authorised officer of the Bureau. Section 16A (inserted by s. 12 of the Proceeds of Crime (Amendment) Act 2005) reduces the normal scope of the hearsay rule still further by rendering admissible without further proof the contents of specified types of documents.
13. Section 8(2) stipulates that the standard of proof required to determine any question arising under the Act shall be that applicable to civil proceedings.
14. The s.3 application in this case originally came on for hearing before the late Feeney J. in December, 2012 and January, 2013. Due to the untimely death of Feeney J. before he delivered judgment, the matter was heard de novo before Birmingham J. in March, 2014. His judgment was delivered in November, 2014. The relevance of these dates lies in the fact that Birmingham J. was dealing with the matter in the period between the decisions of this Court in Damache (judgment delivered on the 23rd February, 2012) and Director of Public Prosecutions v. J.C. (No. 1)  I.R. 417 (judgments delivered on the 15th April, 2015).
15. The evidence adduced on behalf of the Bureau came from its chief officer Detective Chief Superintendent Corcoran, a Detective Garda Gary Sheridan, a financial crime analyst, a social welfare officer and a Revenue Bureau officer. D/Chief Superintendent Corcoran gave evidence as to the grounds for his belief that the property in question constituted directly or indirectly the proceeds of crime. The affidavit of D/Garda Sheridan described the arrest, detention and questioning of Mr. Murphy Jr. He also dealt with the follow-up search of the house and stated that the search warrant had been issued by Superintendent Con Corrigan to a Detective Garda Denis Cahill.
16. As already noted, the trial judge decided to treat the house in question as being the dwelling of Mr. Murphy Jr. as well as that of his girlfriend. On that basis, and having regard to the decision in Damache, he considered the argument made on behalf of Mr. Murphy Jr. that the search of the premises was unlawful and that the evidence was unconstitutionally obtained.
17. The trial judge distinguished Damache on a number of grounds. Firstly, he pointed to the fact that the issue in Damache arose in a criminal prosecution. Here, he was dealing with a Proceeds of Crime Act application. This, he considered, was of significance because such cases were sui generis. He referred to the analysis of McGuinness J. in Gilligan v. CAB  3 IR 185, where it was noted that proceedings under the Act were in rem (being concerned with the legal status of the property in issue) as opposed to in personam.
18. Secondly, in Damache the warrant was issued by a member of An Garda Síochána team involved in the investigation that culminated in the criminal trial. Here, while the warrant was issued as part of the garda operation following up on the firearms seizure, the proceedings before the Court were commenced by the Criminal Assets Bureau.
19. The trial judge then considered the main authorities on the exclusionary rule as the law stood at that time (People (A.G.) v. O’Brien  I.R. 142 and DPP v. Kenny  2 I.R. 110). He also examined judgments dealing with the possible application of the rule outside the area of criminal proceedings (Kennedy v. The Law Society (No. 3)  2 IR 458; Competition Authority v. The Irish Dental Association  3 I.R. 208 and Universal City Studios Incorporated v. Mulligan  3 I.R. 407). Following analysis of those decisions, he concluded (at paragraph 45) that none of them disposed of the question whether the exclusionary rule applied with full force and effect to the sui generis applications under the Proceeds of Crime Act, and that the issue was therefore free from authority. He continued in paragraph 46:
“In my view the factors that militate against extending the rule are that the gardai who carried out the search were following a procedure provided by statute. This was not a case of wilful disregard of constitutional rights, of recklessness, or shortcut taking or even carelessness. That being so, the policy considerations which influenced Finlay C.J. in Kenny, do not arise. It does not seem to me that the protection of constitutional rights is advanced by condemning the activity of gardaí following a statutory procedure. It follows from what I have said, that if this was a case where there was discretion to be exercised as to whether to admit evidence, that I would exercise the discretion in order to admit the evidence.”
20. In paragraph 47 it was asked, rhetorically, whether contraband items such as firearms, drugs or identifiable stolen property would have to be returned to the householder if seized under the purported authority of a s.29 warrant.
21. Birmingham J. therefore determined that in the circumstances he was not precluded from having regard to the outcome of the search by virtue of the Supreme Court decision in Damache. He then went on to follow the steps prescribed by this Court in McK. v. G.W.D.  2 I.R. 470. Having given detailed consideration to the evidence he was satisfied that the property represented the proceeds of crime. On that basis he made the order sought by the Criminal Assets Bureau, subject to the reduction of the total amount by a figure that he found to have a legitimate source.
The Court of Appeal
22. In dismissing the appeal, Peart J. (with whom Finlay-Geoghegan and Irvine JJ. agreed) considered that Birmingham J. had been correct in deciding that the exclusionary rule had no application in the circumstances. The reference in the High Court judgment to the exercise of a discretion was in fact unnecessary.
23. The central factor identified as leading to this conclusion was the in rem nature of the proceedings. Peart J’s analysis of the exclusionary rule was that it had evolved in the context of criminal prosecutions, to protect accused persons in cases where evidence to be deployed against them had been obtained in breach of their constitutional rights. In a key passage he said:
24. While it was accepted that the exclusionary rule had “found its voice” in certain types of civil proceedings, such as Universal City Studios Incorporated v. Mulligan and Competition Authority v. Irish Dental Association, the point made again was that in those cases the material in question was to be deployed at trial, where it had the capacity to affect or even determine the outcome of the proceedings between the plaintiff and defendant. In contrast, the cash recovered in the present case was not sought to be deployed in evidence for the purposes of determining some claim by the Bureau, but was rather the very subject or object of the proceedings, the issue being its provenance and whether or not it represented the proceeds of criminal activity.
“There is no doubt that if [Mr. Murphy Jr.] was being prosecuted for the offence of robbery of the two cash items found during the search, and that trial was being heard after the Damache decision, the exclusionary rule would be in play, since [he] would face the prospect of conviction and possible imprisonment on the basis of arguably unconstitutionally obtained evidence. Such proceedings would be very much in personam, and he would be entitled to every available protection and vindication of his constitutional rights. They are precisely the kind of proceedings from which the exclusionary rule evolved and developed. They have a context in which the issue concerns the actual deployment of the evidence in a criminal trial as part of the prosecution case. The issue in such a case is the guilt or innocence of the person on trial for the offence. That context is very different to the present case where the status of the piece of cash itself is the issue in the case i.e. whether it is the proceeds of crime.”
25. Peart J. thus held (at paras 39-40):
26. The context of the proceedings was compared with that of the pre-trial investigation of an offence. Reference was made to Heffernan and Ní Raifeartaigh, Evidence in Criminal Trials (2014, Bloomsbury) which noted that the rule “is limited to evidence adduced at trial as opposed to information gleaned for a pre-trial investigative step such as securing an arrest warrant” and to the decision of this Court in DPP v. Cash  1 I.R. 609. In Cash, Fennelly J. had concluded that there was no onus upon the prosecution to prove the lawful provenance of the material that gave rise to a reasonable suspicion justifying the arrest under challenge.
“In my view, the manner in which the cash items came into the physical possession of An Garda Siochana (while also noting as I have done the provisions of s. 1A of the Act of 1996) is not relevant to the particular issue before the Court on a s. 3 application. The cash itself is not being deployed in evidence in any way which might implicate the exclusionary rule. That rule simply does not apply in an application under s. 3 of the Act. Accordingly, it was unnecessary for either the Court below or this Court to consider whether to exercise the discretion to admit evidence that was obtained on foot of a search which was illegal, but not in breach of constitutional rights, as in the case of the search of 12 Clonard Road.”
27. While noting the differing context, Peart J. concluded (at para 48) that:
28. It followed from this line of reasoning that Peart J. considered it unnecessary to address certain other matters such as the impact of the decision of this Court in DPP v. JC  1.R. 417; the justification by Birmingham J. of the non-exclusion of the cash recovered on the basis that the Gardaí carrying out the search were following a statutory procedure; the argument there was no deliberate breach of constitutional rights, or the fact that at the time the search was carried out s.29 of the Act of 1939 was still operative and enjoyed the presumption of constitutionality.
“[I]t is of assistance to my own conclusions to see that even in the context of a criminal trial, the scope of the absolute exclusionary rule is not all-embracing. It is in full flow in relation to the deployment of evidence at the trial of the accused, and will permit unlawfully obtained evidence to be excluded either absolutely or in the exercise of judicial discretion depending on the facts and surrounding circumstances. But the reasonable suspicion required for an arrest may be based on evidence which would be inadmissible if offered in support of a prima facie case at trial. It seems to me that if that be the position in a criminal prosecution, it applies a fortiori to the situation herein where what has been obtained on foot of a warrant that can no longer be considered to be a lawful warrant is not being deployed as evidence at all - but rather is the very property itself whose provenance is the subject of the s. 3 application. In my view, the decision in Damache does not speak to proceedings under the Act of 1996, and the exclusionary rule is simply inapplicable to such applications.”
Submissions in the appeal
29. The appellants submit that the distinction between proceedings in rem and in personam provides no basis for differing rules of evidence, since proceedings in rem may affect the constitutional rights of an individual as much as any in personam action. It is argued that the ultimate logic of the reasoning in the Court of Appeal judgment is the adoption of a “stark inclusionary rule”, harking back to the 1955 decision of the Privy Council in Kuruma v. R  AC 197. The result would be that no matter how profound the illegality established in a particular case, there would be no circumstances in which the evidence would not be received. Describing the litigation as sui generis does not, it is urged, provide a logical basis for conducting the proceedings outside the framework of the rules of evidence.
30. It is submitted that J.C. is authority for the proposition that the vindication of citizens’ rights is an integral part of the administration of justice in every case before the courts and is not the unique preserve of criminal courts. Reliance is placed on the fact that in J.C., O’Donnell J. located the basis for an exclusionary rule in the administration of justice, and when so doing, he explicitly included both civil and criminal trials.
31. Counsel has referred to the three “core” decisions of Mulligan, Dental Association and Kennedy as demonstrating the applicability of the exclusionary rule in civil proceedings. The balancing exercise adopted by the majority of the Court in J.C., may, it is submitted, be carried out in civil proceedings taken by the force publique in determining whether an earlier breach of constitutional rights requires remedy within those proceedings. In this case, it is argued that no such exercise was carried out, since neither the Superintendent who had issued the warrant nor the officer who carried out the search had sworn an affidavit for the purpose of these proceedings.
32. The test established in J.C. is set out in the judgment of Clarke J. (at para. 871) as follows:-
33. Counsel submits that the considerations set out in paragraphs (i), (iv), (v) and (vi) can be applied without modification to Proceeds of Crime Act cases. Paragraphs (ii) and (iii) require modification to the extent of clarifying that the standard of proof is the balance of probabilities, while it must be noted in respect of paragraph (ii) (b) that different considerations arise in this type of litigation. The right of the State to prosecute crimes is not in issue.
(i) The onus rests on the prosecution to establish the admissibility of all evidence. The test which follows is concerned with objections to the admissibility of evidence where the objection relates solely to the circumstances in which the evidence was gathered and does not concern the integrity or probative value of the evidence concerned.
(ii) Where objection is taken to the admissibility of evidence on the grounds that it was taken in circumstances of unconstitutionality, the onus remains on the prosecution to establish either:-
(a) that the evidence was not gathered in circumstances of unconstitutionality; or
(b) that, if it was, it remains appropriate for the Court to nonetheless admit the evidence.
The onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places on the prosecution an obligation to explain the basis on which it is said that the evidence should, nonetheless, be admitted AND ALSO to establish any facts necessary to justify such a basis.
(iii) Any facts relied on by the prosecution to establish any of the matters referred to at (ii) must be established beyond reasonable doubt.
(iv) Where evidence is taken in deliberate and conscious violation of constitutional rights then the evidence should be excluded save in those exceptional circumstances considered in the existing jurisprudence. In this context deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned. The assessment as to whether evidence was taken in deliberate and conscious violation of constitutional rights requires an analysis of the conduct or state of mind not only of the individual who actually gathered the evidence concerned but also any other senior official or officials within the investigating or enforcement authority concerned who is involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned.
(v) Where evidence is taken in circumstances of unconstitutionality but where the prosecution establishes that same was not conscious and deliberate in the sense previously appearing, then a presumption against the admission of the relevant evidence arises. Such evidence should be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or derives from subsequent legal developments.
(vi) Evidence which is obtained or gathered in circumstances where same could not have been constitutionally obtained or gathered should not be admitted even if those involved in the relevant evidence gathering were unaware due to inadvertence of the absence of authority.
34. Mr. Murphy Sr. is not in a position to claim that any constitutional right of his was breached by the search, since the house was not his dwelling. However it is argued on his behalf that the principles sought to be upheld by the Court in J.C. - the proper administration of justice, the rule of law and the public interest in ensuring that the gardaí do not act outside their powers - are relevant in all cases. It is also submitted that the principles relating to illegally obtained evidence, discussed by Kingsmill Moore J. in O’Brien, are applicable and that the trial judge should therefore have exercised his discretion in accordance with those principles.
35. The appellants seek to have the matter remitted to the High Court for consideration in light of the test supported by the majority in J.C., modified to reflect the lower standard of proof applicable in these proceedings.
36. On behalf of the Bureau, counsel maintains the argument that the exclusionary rule has no application to proceedings under the Proceeds of Crime Act 1996, which are civil, in rem and sui generis. While it is conceded that the exclusionary rule has been applied in certain civil proceedings, (although counsel does not accept that this is “settled” law) it is submitted, in line with the decision of the Court of Appeal, that those cases are clearly distinguishable as the material in question was to be deployed at trial and had the capacity to affect or determine the outcome of the proceedings.
37. The exclusionary rule, it is submitted, is designed to exclude evidence, and the cash in this case is not evidence. Counsel takes what he expressly accepts is an “absolutist” position and maintains that it does not matter, for the purposes of proceedings brought by the Bureau under the Act, how the property was obtained. In this case it was taken in the course of a garda investigation, in which the Bureau had no role.
38. In relation to the argument put forward on behalf of Mr. Murphy Sr., it is submitted that even if this Court finds that, following the decision in Damache, the trial judge did have a discretion to exclude the evidence on the basis of an illegality, no basis had been established for such an exclusion in his case.
39. As I said earlier, describing the issue under consideration as the applicability of the exclusionary rule may not have been helpful. The Court of Appeal was correct, as is counsel for the Bureau, in stressing that the cash was the subject-matter of the proceedings, and was not evidence sought to be adduced as proof of any disputed factual matter. However, in my view that cannot be the end of the debate. The real question is whether the fact that the cash was seized on foot of an invalid warrant has any consequences in the litigation between these parties. Consideration of that question requires, firstly, an examination of the rationale underlying the exclusionary rule. It is also necessary to look at decisions of this Court concerning the impact upon litigation, other than criminal trials, of a breach of an individual’s rights by an agent of the State - this includes an examination of the classification of Proceeds of Crime Act cases as in rem. The purpose here is not to reconsider the formulation of the test for the exclusion of improperly obtained evidence, but to discern the principles underlying the existence of such a rule and the extent to which those principles have been found to be applicable in the administration of justice.
The exclusionary rule in criminal trials.
40. The development of the legal principles according to which evidence obtained in breach of constitutional rights may be held to be inadmissible begins with the judgments of this Court in People (Attorney General) v O’Brien  I.R. 142. This marked the rejection in this jurisdiction of the proposition, affirmed by the Privy Council in Kuruma v R. and accepted in the Court of Criminal Appeal in O’Brien, that relevant evidence that was otherwise admissible could be received by a court no matter how it had been obtained. That was the rule contended for by the Attorney General, although it is made clear in the report that counsel was expressly instructed to concede that evidence obtained as a result of gross personal violence or by methods which offended against the essential dignity of the human person could not be admitted. Having noted this fact in his judgment Kingsmill Moore J. observed (at p.150):
41. At a later point he stated, with reference to Article 40.3.1. and 40.3.2, that the Attorney General’s concession was entirely consistent with “the spirit of our Constitution”.
“To countenance the use of evidence extracted or discovered by gross personal violence would, in my opinion, involve the State in moral defilement.”
42. On the other hand, Kingsmill Moore J. considered that the proposition advanced on behalf of the appellant - that any illegality, however slight, would render evidence inadmissible - to be “clearly too wide”. In the absence of any Irish authority, he went on to consider the leading decisions from England, Scotland and the United States. He noted that in Kuruma v. R. the Privy Council had said that in a criminal case the trial judge had a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused (such as where an admission had been obtained by means of an unfair trick). He also considered the different directions taken by the Scottish courts and the then current US authorities, including Weeks v United States 232 U.S. 383 (1914), Mapp v. Ohio 367 U.S. 643 (1961) and Olmstead v. United States 277 U.S. 438 (1928). Kingsmill Moore J. concluded that there were three possible answers to the question whether illegally obtained evidence should be admissible. Two he rejected as not being sustainable - the admission of all relevant evidence without regard to its provenance, and the exclusion of all evidence obtained as a result of illegal action. He went on (at p.160 of the report):
43. Kingsmill Moore J. considered that the best answer was to leave a discretion to trial judges to determine whether, in the light of all of the circumstances of a case,
“Some intermediate solution must be found. As pointed out by the Lord Justice-General in Lawrie v. Muir and by Holmes J. in Olmstead’s Case a choice has to be made between desirable ends which may be incompatible. It is desirable in the public interest that crime should be detected and punished. It is desirable that individuals should not be subjected to illegal or inquisitorial methods of investigation and that the State should not attempt to advance its ends by utilising the fruits of such methods.”
44. He also expressed some doubt about the suggested exclusion of evidence obtained by a trick.
“the public interest is best served by the admission or by the exclusion of evidence of facts ascertained as a result of, and by means of, illegal actions”.
45. Commenting specifically on the judgment of Walsh J. in the same case, Kingsmill Moore J. said that he agreed that evidence obtained as a result of a deliberate and conscious violation of the constitutional (as opposed to common law) rights of an accused person should be excluded save where there were “extraordinary excusing circumstances”. However he preferred not to enumerate the latter, considering, again, that it should be left to the discretion of trial judges.
“I am disposed to lay emphasis not so much on alleged unfairness to the accused as on the public interest that the law should be observed even in the investigation of crime. The nature of the crime which is being investigated may also have to be taken into account.”
46. Lavery and Budd JJ. agreed with Kingsmill Moore J.
47. Walsh J. (with whom O’Dalaigh C.J. agreed) saw evidence obtained by a breach of a constitutional right as being in an entirely different category to evidence that was obtained by what might be described as “mere” illegality. Dealing with the latter he expressed scepticism (at p. 167) in relation to the Scottish view that the courts must strive to reconcile the interests of the citizen and the State. Apart from the issue of a wrongly induced confession, to which different considerations applied, his view was that the rules of evidence were not to be used as weapons to deter police illegalities.
48. The remedies for illegal police actions lay in the criminal law and the law of tort. It was also possible for the trial judge to draw public attention to the illegality. Therefore, in his view, evidence obtained illegally should not for that reason alone be excluded. However, his approach to evidence obtained in violation of constitutional rights - in the case before the Court, the inviolability of the dwelling - imposed a different standard. The reason is encapsulated in the following passage:
“Every judge in our Courts is bound to uphold the laws and while he cannot condone or even ignore illegalities which come to his notice, his first duty is to determine the issue before him in accordance with law and not to be diverted from it or permit it to be wrongly decided for the sake of frustrating a police illegality, or drawing public attention to it.”
49. The question in O’Brien was the admissibility of evidence in a criminal trial, and the judgments therefore focus solely on that issue. It seems fair to say that the approach of the majority left it to trial judges to balance, in the public interest, the competing claims of the State and the individual where the former had breached the rights of the latter by any form of illegality including the breach of constitutional rights, with perhaps a presumption in favour of exclusion in the latter case. Walsh J. considered that the constitutional obligation of the courts to vindicate personal rights must take priority, requiring the exclusion of evidence obtained by a deliberate and conscious breach of constitutional rights save in extraordinary excusing circumstances, but that the courts had no business excluding merely illegally obtained evidence unless it became apparent that this was necessary to secure police compliance with the law.
“The vindication and the protection of constitutional rights is a fundamental matter for all Courts established under the Constitution. That duty cannot yield place to any other competing interest. In Article 40 of the Constitution, the State has undertaken to defend and vindicate the inviolability of the dwelling of every citizen. The defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence. The Courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist…”
50. The issue of the admissibility of evidence obtained on foot of an invalid search warrant did not come before the Supreme Court again until 1990, in the case of The People (DPP) v Kenny  2 I.R. 110. The result of that case - the establishment of what was later described as an absolute (or near absolute) exclusionary rule - was overruled in J.C. My purpose in referring to it here is simply to record the basis for the view of the majority in Kenny that an absolute rule was necessary. In essence, the reason was that the obligation of the courts under Article 40.3.1 of the Constitution, to defend and vindicate the personal rights of individuals as far as practicable, required such a rule in order to dissuade police officers from invading constitutional rights and to encourage those in authority to consider in detail the personal rights of citizens as set out in the Constitution. The view, therefore, was that the vindication of constitutional rights required a strongly deterrent rule.
51. In J.C. this Court overturned the decision in DPP v Kenny, finding that it had implicitly (and wrongly) overturned O’Brien and had erred in imposing an absolute rule. However, the approach of the Court in O’Brien was not considered satisfactory by the majority for the reasons set out in their judgments. A new formulation of the test for the exclusion of evidence was established, more stringent than that adopted by the majority in O’Brien but not as absolute as the rule laid down in Kenny.
52. O’Donnell J. noted that although no cases concerning search warrants had reached the Supreme Court between O’Brien and Kenny there had been a number of cases relating to statements of admission made in unlawful detention - People (DPP) v Madden  I.R. 336, People (DPP) v O’Loughlin  I.R. 85 and People (DPP) v Healy  2 I.R. 73. In each of these cases it was held that evidence obtained as the result of the unlawful actions should be excluded.
53. In Madden, the Court of Criminal Appeal had ruled that, on the evidence, the gardaí had deliberately continued to detain the accused past the expiration of the statutory period permitted, without regard to his right to liberty guaranteed by Article 40. Giving the judgment of the Court O’Higgins C.J. said:
54. This passage, it seems to me, evokes both the necessity to uphold the integrity of the administration of justice (and therefore the necessity for courts to demonstrate respect for constitutional rights) and the high constitutional value of vindication of individual rights.
“This lack of regard for, and failure to vindicate, the defendant’s constitutional right to liberty may not have induced or brought about the making of this statement, but it was the dominating circumstance surrounding its making. In the view of this Court this fact cannot be ignored. This Court notes with approval the views of Carroll C.J. in Youman v. Commonwealth [189 Ky. 152] (which is cited in the judgment of Kingsmill Moore J. in The People (Attorney General) v . O’Brien) when, in relation to evidence obtained as a result of a search in violation of the law, he said at p.158 of the report:-
‘It seems to us that a practice like this would do infinitely more harm than good in the administration of justice; that it would surely create in the minds of the people the belief that Courts had no respect for the Constitution or laws, when respect interfered with the ends desired to be accomplished. We cannot give our approval to a practice like this. It is much better that a guilty individual should escape punishment than that a Court of justice should put aside a vital fundamental principle of the law in order to secure his conviction. In the exercise of their great powers, Courts have no higher duty to perform than those involving the protection of the citizen in the civil rights guaranteed to him by the Constitution, and if at any time the protection of these rights should delay, or even defeat, the ends of justice in the particular case, it is better for the public good that this should happen than that a great constitutional mandate should be nullified.’"
55. In O’Loughlin, the accused had been informally (and therefore unlawfully) detained and questioned by gardaí in relation to an offence past the point at which he should have been charged in relation to a different matter and brought before a court. In the appeal against conviction, the Court of Criminal Appeal described the practice of “holding for questioning” as “an open defiance of Article 40, s.4, sub-s. 1, of the Constitution”. On the facts, the Court could find no circumstances that excused what had happened.
56. Again, the judgment stresses the need for the judiciary to uphold respect for the Constitution by ensuring that the State respects the constitutional rights of individuals.
“It would ill serve respect for the Constitution and the laws if this Court, by allowing evidence so obtained, were to indicate to citizens generally that the obligation on the State to safeguard and vindicate constitutional rights could be dispensed with or eased in the circumstances of a criminal investigation.”
57. Healy was a decision of this Court on an appeal by the Director of Public Prosecutions against a directed acquittal. The issue in the case was the admissibility of a statement of admission, in circumstances where the accused’s solicitor had called to the garda station and had been refused access to his client. The Court unanimously held that the trial judge had been right to exclude the statement, with a majority holding that the right of access to a solicitor was constitutionally protected.
58. In J.C. O’Donnell J., although his concern at this point in his judgment was to trace the evolution of the interpretation of the “deliberate and conscious” test, remarked that these decisions were “plainly correct”, and were
59. In rejecting the analysis of the Court in Kenny, O’Donnell J. took issue with inter alia its rationale for adopting an absolute rule. The Court had relied upon the necessity to deter misconduct, but in a case such as J.C. (involving a search on foot of a s.29 warrant) there was no garda misconduct to be deterred. Dealing with the submission that an absolute rule was required by the constitutional obligation to respect and vindicate the constitutional rights of the citizen, he pointed out that the issue in the case was the admission of evidence; that the Constitution did not address the question of admissibility and that the admission of evidence could not in itself amount to a breach of the inviolability of the dwelling. At paragraph 452 he said:
“examples of the courts performing the function in ensuring that constitutional rights are respected, upheld and vindicated.”
60. O’Donnell J. returned to this theme (at para.488) in addressing, at the level of principle, the question whether the Constitution required an absolute rule.
“Perhaps the most fundamental objection to this line of argument is that it assumes that the question in issue is only the vindication of the citizen's right of inviolability of the dwelling home, or other property, save in accordance with law. In an action for an injunction restraining trespass ex ante or seeking damages ex post that might indeed be the only question. Even then, as discussed above, there is no absolute rule. But the admission of evidence in a criminal trial occurs in a quite different context. The central issue there is not the question of breach of the rights of the householder, but rather the performance of the constitutional obligation of the administration of justice. That involves a determination of the guilt or innocence of an individual…The administration of justice under the Constitution, its truth-finding function and its requirement of the availability of all relevant evidence, is a factor weighing in favour of admission of evidence. Of course, there comes a point when the administration of justice may itself require that relevant evidence be excluded, for example where the evidence was obtained in circumstances offensive to the concept of justice itself. This would itself be offensive to the administration of justice which is the fundamental obligation of a court. However, that calculation involves a balance rather than an absolute rule.”
61. Clarke J. analysed the issue in terms of the competing interests at stake. On the one hand was the principle that society and the victims of crime were entitled to have an assessment carried out at a criminal trial of the culpability of an accused based on proper consideration of all material evidence where that evidence was not more prejudicial than probative. This was to be seen as a high constitutional value. At para.827 he continued:
“It is of course the case that the Constitution does not require the exclusion of evidence in express terms, and indeed says nothing about the admission of evidence. As is often the case, it is important therefore to identify the correct question to be posed. If this issue is addressed solely in terms of the vindications of a right breached, then it is a short step to the exclusion of evidence. But in my view that is the wrong question. A court, whether criminal or civil, addressing the admissibility of evidence is not engaged in the question of remedying a breach of the right, as a court asked to grant an injunction to restrain a trespass might be. A criminal or civil trial is the administration of justice. A central function of the administration of justice is fact finding, and truth finding. Anything that detracts from the courts' capacity to find out what occurred in fact, detracts from the truth finding function of the administration of the justice. As many courts have recognised, where cogent and compelling evidence of guilt is found but not admitted on the basis of trivial technical breach, the administration of justice, far from being served, may be brought into disrepute. The question is at what point does the trial fall short of a trial in due course of law because of the manner in which evidence has been obtained? When does the admission of that evidence itself bring the administration of justice into disrepute? This analysis leads inevitably to a more nuanced position which would admit evidence by reason of a technical and excusable breach, but would exclude it where it was obtained as a result of a deliberate breach of the Constitution.”
62. Having dealt with the formulation of the appropriate test, Clarke J. went on to note that while the focus of the debate had been on unconstitutionally obtained evidence, there was also an obligation on the courts to discourage illegality. He considered that evidence should be excluded if it was obtained illegally (albeit not in breach of a constitutional right) in circumstances properly described as reckless or grossly negligent.
“However, on the other hand, there is also a significant constitutional value to be attached to the need to ensure that investigative and enforcement agencies (including An Garda Síochána) operate properly within the law. Why do we have elaborate laws concerning arrest, the power to enter premises, questioning and other means of what might be described as non-voluntary evidence gathering? We do so because there is a significant constitutional value in ensuring that there are clear rules which mark the limits of the powers of investigation and enforcement agencies in evidence gathering. Those limits are there to protect us all. There is a high constitutional value in ensuring that those limits are maintained. It follows that there should be consequences, and indeed significant consequences, where those rules are broken.”
63. The final judgment for the majority was that of MacMenamin J. In agreeing with O’Donnell and Clarke JJ. that the judgment in Kenny was wrong, he noted that the decision in that case was designed to promote good garda conduct and deter misconduct. Where the facts were as they were in J.C., he questioned whether the application of the absolute rule furthered either of these ends, and whether it correctly balanced the constitutional interests involved. He stressed that he and the other members of the Court in the majority were not rejecting the importance of the protection of a suspect, but were seeking to identify “a harmonious process, giving due recognition to the rights of protection, the duty of deterrence, and the considerations of public policy, and the rights of all citizens.”
64. At paragraph 944 he described the deterrence principle as both a private and a public good precept, and went on:
65. Director of Public Prosecutions v. Cash  1 I.R. 609 was a case stated in which the defence sought to extend the range of application of the rule in Kenny. The facts, in brief, were that fingerprints found at the scene of a break-in were matched to prints, known to be those of the accused, held at the Garda Technical Bureau. That formed the basis for the suspicion grounding the arrest of the accused. His prints were again taken after that arrest. The prosecution proposed to prove the match between the crime scene prints and those taken when the accused was arrested for the offence. The defence cross-examined as to the basis of the arrest, and it was conceded by the prosecution witnesses that they could not prove that the prints in the Garda Technical Bureau had been lawfully taken or retained in accordance with the relevant statutory provisions.
“It deters individual misconduct by protecting the suspect. It maintains a public good in a police force that operates under the rule of law. The rule, as at present formulated, vests in the suspect constitutional rights under Article 40.3.1 of the Constitution. The intent in such exclusion of evidence, unconstitutionally obtained, is to deter misconduct. But Article 40.3, seen across its entirety, does not ignore the rights of the citizen, or the public interest, or the common good…The duty of a court, in all constitutional questions, is not to isolate, or focus on one constitutional consideration, but rather to arrive at an appropriate balance between the relevant rights and duties.”
66. In a judgment agreed with by a majority of the Court Fennelly J. said (at paragraph 64) that the exclusionary rule laid down in Kenny applied, in its own terms, only to the exclusion of evidence proffered at a criminal trial. He noted the repeated use of the words “exclusion” (or its cognates) and “evidence”. However, he considered it more to the point that Finlay C.J. had been referring to “evidence obtained as a result of the invasion of the personal rights of a citizen” or which “results from unconstitutional conduct” (emphasis added by Fennelly J.). The case had not been concerned with the lawful provenance of evidence used to ground a suspicion, and the Chief Justice’s judgment did not advert to the possibility that the principle propounded could apply to such an issue. Fennelly J. said in this regard:
67. Fennelly J. went on to approve the reasoning of the trial judge (Charleton J.) who had examined in detail the authorities on the meaning of and criteria for assessing the concept of “suspicion” and had concluded that the rules of evidence had no place in that assessment. It was well established that a reasonable suspicion, capable of properly grounding an investigative step, did not have to be based on admissible evidence.
“The object of the rule is to provide positive encouragement to state authorities, when gathering evidence, to consider in detail the constitutional rights of persons affected by the exercise of their ‘powers of arrest, detention, search and questioning…’”.
Decisions in non-criminal cases
68. A few months before its decision in O’Brien the Supreme Court had delivered judgment in State (Quinn) v Ryan  I.R. 70. That case was not concerned with evidence at all, but with the fact that a person who had just been freed from garda custody by order of the High Court had been immediately removed from the Four Courts by gardaí acting on foot of a plan to take him out of the jurisdiction with no opportunity for legal challenge. In a subsequent enquiry under Article 40.4 the return submitted on behalf of the gardaí was that they no longer had the applicant in their custody, having handed him over to officers of the London Metropolitan Police who had been present in the vicinity of the courts with an extradition warrant. Two members of the Divisional Court who heard the case thought that to be a sufficient return. Davitt P. dissented, taking the view that the Constitution obliged the Court to conduct an enquiry into a complaint of unlawful detention, and further obliged it, in the case of injustice done, to vindicate the applicant’s constitutional right not to be deprived of liberty save in accordance with law. At p. 89 of the report he referred to the personal rights guaranteed by Article 40 and said:
69. This Court took a similar approach to that of Davitt P. It held, firstly, that the legislation relied upon by the gardaí (the “backing of warrants” provisions in the Petty Sessions (Ireland) Act 1851) was repugnant to the Constitution precisely because it permitted the course of action that had been taken. Secondly, the gardaí had acted in disregard of the applicant’s constitutional rights, and could not be allowed to escape responsibility because they had succeeded in preventing him from getting relief from the courts. O’Dalaigh C.J. stated (at p.122) that:
“These guarantees are given on behalf of the State and apply to all its organs. They apply not merely to the Legislature but also to the Executive and the Judiciary. Not merely are the appropriate laws as enacted to comply with the requirements of these guarantees, but they are, so far as their nature permits, to be interpreted by the Courts and administered and enforced by the Executive with a similar regard to the requirements of the constitutional guarantees.”
70. On the facts of the case no relief could be afforded to Mr. Quinn, since he was no longer in the jurisdiction. However the Court found both the gardaí and the English police officers guilty of contempt of court.
“[i]t was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them, and that the Courts’ powers in this regard are as ample as the defence of the Constitution requires.”
71. The State (Trimbole) v Governor of Mountjoy  I.R. 580 was also an enquiry pursuant to Article 40.4 of the Constitution, this time into the lawfulness of the detention of an Australian national who was wanted in Australia on very serious charges. Egan J. found that the purported suspicion upon which the applicant’s arrest had been grounded was not genuine, but was intended to keep him in custody pending the finalising of extradition arrangements with Australia. Having referred to O’Brien and Quinn, he specifically held that the principle of O’Brien was not solely confined to the admission of evidence in a criminal case.
72. The detention of the applicant was tainted by the gross abuse of the power of arrest, which amounted to a deliberate and conscious violation of his constitutional right to liberty and accordingly his release was ordered.
“Courts have no higher duty to perform than that involving the protection of constitutional rights and if at any time the protection of these rights should delay, or even defeat the ends of justice in the particular case, it is better for the public good that this should happen rather than that constitutional rights should be nullified.”
73. This approach was upheld on appeal. Finlay C.J. (with whom Henchy, Griffin and Hederman JJ. agreed) deduced the following principles from the authorities:
74. McCarthy J. also referred to Quinn and to the passage from the judgment of Davitt P. in the High Court (quoted above) in relation to the rights guaranteed by Article 40. He went on:
“The Courts have not only an inherent jurisdiction but a positive duty: (i) to protect persons against the invasion of their constitutional rights;(ii) if invasion has occurred, to restore as far as possible the person so damaged to the position in which he would be if his rights had not been invaded; and (iii) to ensure as far as possible that persons acting on behalf of the Executive who consciously and deliberately violate the constitutional right of citizens do not for themselves or their superiors obtain the planned results of that invasion.
Notwithstanding the fact, therefore, that of the four cases to which I have referred, three [People (Attorney General) v. O’Brien, People v. Madden and People v. Lynch] are concerned with the admissibility of evidence in criminal trials and the fourth [State (Quinn) v. Ryan] was concerned with the punishment of persons acting in breach of the Constitution where neither protection nor reparation to the party injured was practical, I am satisfied that this principle of our law is of wider application than merely to either the question of admissibility of evidence or to the question of the punishment of persons for contempt of court by unconstitutional action.”
75. It had been argued on behalf of the respondent that, on the facts of the case, the order for the applicant’s extradition was not the “fruit” of the wrongful arrest (because the original illegality had been superseded by valid orders of detention made by the District Court) and that therefore the authorities relating to the admission into evidence of the “fruits” of improper conduct on the part of the Gardaí did not apply. Finlay C.J. rejected this submission.
“If, then, the Executive itself abuses the process of law as in this case by the wrongful use of s.30 of the Offences Against the State Act, 1939, and, for what it is worth, persists in that abuse by giving false evidence in the course of the constitutional enquiry, are the courts to turn aside and, apart from administering severe strictures to those concerned, appear to sanction the procedure that has been adopted to secure the extradition of an individual to the requesting State?”
76. McCarthy J. agreed with the State that the cases cited were, largely, concerned with the “fruits” of unlawful actions but considered that the argument made in this respect overlooked the philosophy, concerning the deliberate violation of constitutional rights, that underlay the authorities. In his concluding remarks he referred to the declaration required of judges under the Constitution, noting that no equivalent was required of any office holder in the State other than the President.
“If the challenge to the legality of the prosecutor’s detention had been based on a want of jurisdiction in the District Court, or if the successful challenge to the original arrest had been one of form creating an illegality but not constituting either a conscious and deliberate violation of his constitutional rights or the abuse of a process of the court, then in those instances, undoubtedly…the orders of the District Court, having been made within jurisdiction, would justify the detention of the prosecutor irrespective of the method by which he had been brought before that court. I have no doubt, however, that different considerations apply to a challenge arising from the discretion at common law to prevent abuse of the processes of the court and the duty under the Constitution to vindicate the constitutional rights of the prosecutor.”
77. Some aspects of these judgments require comment. It is worth pointing out that in this pre-Kenny case the concept of deliberate and conscious violation of rights was linked by Finlay C.J. to “the planned results” of the breach. Secondly, the second of the two principles stated in the first of the paragraphs quoted here from Finlay C.J.’s judgment has not, as a matter of fact, been applied literally in the subsequent jurisprudence. It is clear that the Irish courts never adopted the “fruit of the poisoned tree” doctrine to its full extent. The decision in Cash demonstrates this. The taking of a coercive step, such as an arrest or a search, for the purposes of finding admissible evidence, requires a state of mind that must be based on reasonable grounds. However, this is a question of rationality and logic, and does not require the investigator to put out of his or her mind material that may not be admissible in court. Finally, it must be stressed that Finlay C.J. said that an unlawful arrest, even if found to be conscious and deliberate, did not necessarily confer on the person concerned any immunity from proper enforcement of due processes of law after his necessary release from unlawful custody.
“This circumstance emphasises, if emphasis were needed, the high responsibility that lies upon the Judiciary to ensure that constitutional rights are not flouted with impunity. The release upon what may appear to have been a technical ground of an individual "wanted" on serious charges may seem, at first sight, undesirable and, indeed, contrary to public policy; it may seem highly contrary to public policy that elaborate arrangements for extradition should be set at nought by what may be termed an excess of zeal. In my judgment, however, a far greater principle is at stake: that part of the Executive represented by the Garda authorities and those others responsible for what I have termed the plan to extradite the prosecutor must not be permitted to think that conduct of this kind will at worst result in a judicial rebuke, however severe. It will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned whatever the consequences may be. If the consequences are such as to enable a fugitive to escape justice then such consequences are not of the courts' creation; they stem from the police illegality.”
78. For present purposes, the relevance of the judgments lies in the clear pronouncement that the principles according to which evidence might be excluded in criminal trials were not confined to that context.
79. Trimbole was distinguished in Lynch v Attorney General  3 IR 416. In that case, the appellant was wanted in the United Kingdom on assault charges. He was also suspected in this jurisdiction of involvement in offences relating to stolen cheques. In the extradition proceedings it was established in evidence that he had been told by a garda officer that, if he provided information relating to the cheques, the warrant for his extradition would not be executed. He argued, in reliance upon Trimbole, that his constitutional rights had been breached. Although this Court condemned the behaviour of the garda, it held unanimously that Trimbole was not relevant. Denham J. said:
80. In her concluding remarks on this aspect, Denham J. said that the conduct of the garda had not been such as to nullify the proceedings or to justify the intervention of the courts to stop the extradition process.
“In this case, whereas the court has an inherent jurisdiction and a duty to protect persons against the invasion of their constitutional rights, there has been no constitutional right identified which has been invaded. Counsel for the applicant submitted that there was a right not to be put under duress by agents of the State, that the applicant had a right not to have his freedom of decision oppressed, his right to silence had been infringed, his right to speak out voluntarily and not under compulsion was in issue and that these rights related to a right to privacy. However, I am not satisfied that a constitutional right has been identified in this case, nor that there has been a breach of a constitutional right of the applicant. In addition, The State (Trimbole) v. The Governor of Mountjoy Prison  I.R. 550 may be distinguished as in that case the applicant was released because the State had achieved a result which was tainted. In this case the State received no result, tainted or otherwise.”
81. Hardiman J agreed. Referring to the passage quoted above from the judgment of McCarthy J. in Trimbole, he said:
“That is not, of course, to determine that there may not be circumstances where conduct would be such as to nullify proceedings. That is not to say that if there has been unconscionable behaviour on the part of a member of a state agency that it would not be such circumstances as to stop proceedings. However that is not the situation in this case.”
82. Referring to the observations in the Supreme Court in Trimbole to the effect that its ruling did not mean that Mr. Trimbole was immune from further proceedings, Hardiman J. said:
“No-one could doubt the principles thus eloquently expounded by McCarthy J. Adherence to them is necessary if the rule of law is to be maintained. But the relief granted in that case was granted on the basis that the applicant’s availability for the execution of the extradition warrant was the direct consequence of the false arrest. It is quite clear that no relief would have been granted in the absence of that causal relationship.”
83. However, Hardiman J. added that these comments were posited on the assumption that the gardaí were under effective discipline and control at the hands of their authorities. If for any reason it were to be demonstrated that this assumption was unrealistic, and that the authorities were conniving at or ignoring such conduct, the situation would be transformed and it would be necessary to recall the words of O’Dalaigh C.J. in The State (Quinn) v Ryan.
“The underlying reason for that position is as follows. The courts do not exercise a general disciplinary power over the executive, or the gardaí in particular. That power is vested elsewhere. The role of the courts is invoked when, in the course of properly constituted proceedings, a complaint is made that some step or thing adverse to an individual has been taken, or come into being, on the basis of an illegality or an unconstitutional act on the part of his opponents. If this has occurred, the courts will not normally permit the opponent to have the benefit of what flows from an unconstitutional act, in the interests of upholding the Constitution itself. But it will not interfere with a procedure, otherwise proper, on the basis of disapproval of some step taken in its general context.”
84. Universal City Studios v. Mulligan (No.1) appears to be the only example in the authorities cited to the Court of purely civil litigation. However, even in that context the issue that is of relevance here arose from the exercise of garda powers. In an action for copyright infringement, the plaintiffs relied in part on evidence relating to a number of videos seized by a garda in the course of a search of a car in a public place. The evidence of the garda was that he had acted on foot of a duly issued warrant, but the warrant had subsequently been lost and could not be produced in evidence. A challenge having been taken to the legality of the search, Laffoy J. determined the issue on the basis that it should be presumed that the search was illegal, since it could not be proved that it was in compliance with the terms of the warrant. However, she accepted the evidence of the garda that he had been in possession of the warrant and had acted in good faith. As no constitutional right was violated, she exercised her discretion to admit the evidence.
85. It may be remarked that this is a straightforward example of the exercise of the discretion to admit illegally obtained evidence. There is nothing in the evidence to indicate that the discretion should have been exercised in any other way.
86. Simple Imports v Revenue Commissioners  2 I.R. 243 concerned the seizure of certain material alleged by the Revenue Commissioners to be indecent or obscene. The material had been taken from the company’s premises on foot of warrants issued under the Customs (Consolidation) Act 1876 and the Customs and Excise (Miscellaneous Provisions) Act 1988, authorising a search for prohibited goods of a specified nature. In judicial review proceedings the company succeeded in obtaining a declaration that the warrants were void and of no legal effect (for reasons that are not of concern here), and an order for the return of the property.
87. It is particularly relevant to note, for the purposes of the instant case, that the judicial review proceedings were not taken in a context of a criminal prosecution, and that the order for return of the property was expressly made in the light of that fact, precisely because the issue of admissibility would not be determined in a criminal trial. It is clear that, if the case were otherwise, the trial would have been the proper forum for deciding the matter.
88. Discussing the nature of the power of search and seizure Keane J. said (at p.250):
89. He referred to the famous case of Entick v Carrington  2 Wils. 275, where Lord Camden C.J. had said:
“Search warrants, such as those issued in the present case, entitle police and other officers to enter the dwellinghouse or other property of a citizen, carry out searches and (in the present case) remove material which they find on the premises and, in the course of so doing, use such force as is necessary to gain admission and carry out the search and seizure authorised by the warrant. These are powers which the police and other authorities must enjoy in defined circumstances for the protection of society, but since they authorise the forcible invasion of a person’s property, the courts must always be concerned to ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met.”
90. In Kennedy v. The Law Society the Law Society had appointed an investigatory accountant to examine the applicant’s practice records. The Society had a statutory power to investigate the accuracy of a solicitor’s accounts, but in appointing the accountant it was also pursuing a “hidden agenda” of looking for evidence of spurious personal injury claims. One of the findings in the case was that the Law Society had gone to the lengths of deceit to conceal this latter purpose, which it had no legal power to pursue. An order was made in the proceedings quashing the accountant’s appointment.
“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law…”
91. The judgment of Fennelly J. in Kennedy v. Law Society (No.3)  2 IR 458, delivered on the 20th December, 2001, is concerned with the consequences of that outcome, in circumstances where the accountant’s report had been used as the basis for an investigation by the Compensation Fund Committee and a referral to the High Court. It was argued on behalf of the solicitor, in reliance on DPP v. Kenny and the previous authorities, that the quashing of the appointment meant that the material gathered by the accountant could not be used for any purpose.
92. Fennelly J. noted that there was no authority dealing with the application of the case-law on evidence obtained in violation of constitutional rights to administrative procedures of this nature. The Court in Kenny had been motivated by the need to adopt a rule that would act as a sufficiently powerful deterrent against abuse by the police of the exceptional powers which they may exercise while engaged in the investigation of crime.
93. The Court quashed the decision of the Compensation Fund Committee that had been based on the unauthorised report. While Fennelly J. stressed that the order being made did not prevent the Committee from making a new decision based on evidence properly gathered, the Law Society would not be permitted to rely on evidence of the processing of spurious claims.
“In the investigation of crime, the law confers on the police extensive powers, not normally possessed by disciplinary or administrative tribunals, to encroach on such fundamental rights. I do not exclude the possibility that such a situation may, depending on the facts of the case, call for the application of those principles in the sphere of administrative and, in particular, disciplinary hearings. But the scope for such situations to arise must necessarily be extremely limited. They do not, in my estimation, arise here. The excess of statutory powers was not a trivial one, but it occurred in the course of the conduct by the governing body of the profession of their supervisory role over solicitors. No comparison can be made with the illegal and hence unconstitutional detention of a suspect or an unauthorised search of his person or of his dwelling. The applicant has not identified any constitutional right of his which was affected by the investigation.
I turn then to the illegality attendant on the investigation. Here it is easier to find place for the application of the balancing test proposed by Kingsmill Moore J. He stressed the need to have regard to all the circumstances. He was essentially, however, considering the public interest just as was Finlay C.J. in The People (Director of Public Prosecutions) v. Kenny  2 I.R. 110. Was the obtaining of the evidence, the admissibility of which is at issue attended with such circumstances of illegality that it would be unconscionable to allow the authority to use it? The questions which Kingsmill Moore J. posed to himself suggest that a comparatively serious case of intentional illegality has to be established. I agree that an element of deliberate and knowing misbehaviour must be shown, before evidence should be excluded. It is not possible to render unknown something already known. The courts should be slow to adopt any mechanical exclusionary rule which makes it easy to prevent disciplinary tribunals from receiving and hearing relevant and probative material. The balance should be struck between the rights of individuals and those professional bodies assigned the task of supervising their behaviour so as to give careful weight to two competing considerations: firstly, the test adopted should not unduly impede the latter types of body from performing their duty of protecting the public from professional misbehaviour; secondly, members of professional body should be protected from such clear abuse of power as would render it unfair that the evidence gathered as a result be received.”
94. In Creaven and ors v. Criminal Assets Bureau  4 IR 434 the issue arose in the context of statutory provisions relating to international cooperation in criminal investigations. A challenge was brought to the validity of search warrants that had been utilised for the purpose of finding records relating to a VAT fraud being investigated in the United Kingdom. The Bureau had obtained orders freezing relevant bank accounts, and it was also proposed to hand over documents seized in the searches to the investigating authorities in the UK. Thus, as in Simple Imports, the legal issue was a claim made for the return of the items.
95. In discussing the power exercised by the judge issuing the warrant Fennelly J. cited Simple Imports and the reference therein to Entick v Carrington. He considered that the common law principle in question had been given express recognition in the Constitution, which granted protection against unjustified searches and seizures not only to the dwelling of every citizen but to every person’s private property.
96. Having held on the facts of the case that the warrants must be quashed, the Court ultimately ruled that the documents seized should be returned to “the true owners”.
97. The decision of McKechnie J. in The Competition Authority v. The Irish Dental Association related to a warrant utilised in an investigation of allegedly anti-competitive activities. The operative part of the warrant was manifestly defective in that it authorised a search for evidence relating to the sale and distribution of motor vehicles. In proceedings brought by the Authority seeking declaratory and injunctive relief against the Association, part of the submission made on behalf of the Authority was that these were civil proceedings and the applicability of the exclusionary rule must be heavily circumscribed.
98. McKechnie J. agreed that the issue of how to approach evidence obtained in breach of the law originally arose in criminal cases. However, it had also arisen in civil proceedings such as Universal Studios and Kennedy. He also acknowledged the major public interest in the law of regulation and the law of competition. He distinguished Kennedy v. Law Society, considering that the competition code should be treated as being in a category of its own and was not akin to the proceedings of a disciplinary or administrative tribunal. Further differences lay in the fact that the powers of investigation possessed by the Authority could result in criminal charges, and that the constitutional rights of the Association had been breached. Applying the principles in DPP v Kenny he felt that he had no discretion to admit the evidence.
99. The potential consequences of an unlawful search in the context of bankruptcy proceedings were discussed by the Court of Appeal in McFeely v Official Assignee  IECA 21. The official assignee had, without an appropriate warrant, entered business premises in a building that was owned by the appellant but was leased from him by a company. On the facts of the case the Court of Appeal held that there had been no invasion of the appellant’s constitutional property rights. However, at paragraph 30 of his judgment Peart J. said:
100. Two other recent decisions of this court concerning Article 40.5 of the Constitution may be mentioned relatively briefly. In Meath County Council v. Murray  IESC 25, the Court rejected a submission that Article 40.5 could prevent a planning authority from obtaining an order pursuant to s.160 of the Planning and Development Act, requiring the developer of an unauthorised development to demolish it. The judgment of McKechnie J. discusses the decision to the contrary effect in Wicklow County Council v Fortune (No. 1)  IEHC 406, where Hogan J. had held that the Constitution required the planning authority to demonstrate that the necessity for demolition of the dwelling was objectively and convincingly established. He had based this ruling in large measure on the rationale of the decision in Damache. McKechnie J. (with whom the other members of the Court agreed) was “readily prepared to accept” that the protection of the dwelling conferred by Article 40.5 was not confined to criminal law or its procedural surrounds. However, while in the context of the planning code, the fact that the unauthorised development was a dwelling could be a factor in the exercise of a court’s discretion, it could never be sufficient on its own to persuade a court to refuse a demolition order.
“I would stress, however, that - as illustrated by cases such as Simple Imports and Competition Authority v Irish Dental Association [ 3 I.R. 208]- the unlawful entry by agents of the State onto business premises is always a very serious matter and nothing in this judgment should be understood as diluting this basic principle, itself a cornerstone of personal freedom and the rule of law. An unlawful entry onto such premises by an agent of the judicial branch of government such as the Official Assignee is, furthermore, a particularly serious matter, given that all judges have made a solemn declaration pursuant to Article 34.6.1 of the Constitution to uphold the Constitution and the law. If, therefore, the Official Assignee had unlawfully entered the business premises occupied by the bankrupt - as distinct from the premises of which he was simply the reversionary lessor - then rather different considerations would have come into play.”
101. In a different context, the Court in Moore v. Dun Laoghaire Rathdown County Council  IESC 70 considered the proper relief to grant in a case of unlawful eviction. The housing authority had lawfully obtained a District Court order for possession. However, it did not seek to enforce the order for a period well in excess of the period of six months permitted by the District Court rules. At that point it was obliged to return to court, on notice to the tenants, to apply for a warrant for possession. Instead, it obtained the warrant by the simple expedient of writing to the court clerk and requesting it. The sheriff then evicted the tenants. While this procedure was found in the High Court to have been unlawful, the situation was seen as one for the exercise of discretion, and the application of the principle of proportionality. Relief was refused.
102. On appeal it was held, in a joint judgment delivered by Clarke, Laffoy and O’Malley JJ., that there had been a breach of the appellant’s rights under Article 40.5 (as well as under the European Convention on Human Rights). The appellant had been deprived of her home otherwise than in accordance with law, and indeed in a fundamentally unlawful way. As no explanation for the procedure adopted was given to the Court, no issue properly arose as to whether the housing authority could be excused from the consequences of the invalidity of the warrant. In the circumstances it would have required a very significant countervailing factor before it could have been appropriate to deny relief. What was at stake was the rule of law.
103. Had it been appropriate in the circumstances, the Court would have considered making an order designed to put the appellant back in her home. However, having regard to the lapse of time, changes in the appellant’s circumstances and the potential interference with the rights of third parties that course was not pursued. It was indicated that declaratory relief and an award of damages would be considered. The parties then came to their own arrangement.
“In the absence of a significant countervailing factor a local authority, which obtains a warrant for possession in a fundamentally irregular way, should not be able to retain the benefit of it and a party against whom such a warrant for possession is granted should not be disadvantaged.”
104. Finally, it may be noted that in CRH plc v. The Competition and Consumer Protection Commission  IESC 34 injunctive relief was granted to restrain a potential breach of privacy in relation to material lawfully seized under warrant by the Commission. The plaintiffs claimed that much of the material was private, confidential or irrelevant to the purpose of the search. The Commission accepted that it would not all be relevant but maintained an entitlement to examine all of it. The order prohibited examination otherwise than in accordance with an agreed procedure.
Authorities specific to the Proceeds of Crime Act
105. The constitutionality of the Act was challenged in Gilligan v The Criminal Assets Bureau (the High Court judgment is reported at  3 IR 185; for the Supreme Court see Murphy v G.M. and ors  4 IR 113 where Gilligan is dealt with in the same judgment). One of the principal contentions made on behalf of the plaintiff was that proceedings under the Act were, in essence, criminal in nature. The Act was alleged to be unconstitutional because it failed to protect the right to a fair trial and fair procedures by assuming, without charge, trial, or conviction, the existence of a criminal offence and requiring the individual concerned to prove that he was not a criminal and that his assets were not the proceeds of crime.
106. It was in this context that McGuinness J., having considered in some detail the decision of this Court in Melling v O Mathghamhna  I.R. 1, referred at p. 217 of the report to the argument of counsel for the State defendants that proceedings under the Act were, strictly speaking, in rem rather than in personam. However, it was immediately made clear that McGuinness J. considered that other aspects were more important to a finding that the proceedings were not criminal - that is, that there was no question of arrest, remand in custody or on bail, and no specific penalty of fine or imprisonment. Nothing in the rest of the judgment flows from the in rem characterisation, which is dealt with in greater detail in the Supreme Court judgment.
107. In the appeal, the argument for the appellant on the constitutional issue again focused on the claim that the proceedings were criminal in nature. Giving the judgment of the Court (commencing at p.131 of the report), Keane C.J. began by noting that the presumption of constitutionality attaching to the Act included the presumption that any proceedings or procedures under it would be conducted in accordance with the principles of constitutional justice and that any departure from those principles would be restrained or corrected by the courts. Later in the judgment, dealing with an argument that the Act was so broad in its sweep as to amount to an abdication of legislative responsibility, the Court stated that while the power to extend relief where there was “a serious risk of injustice” was undoubtedly wide in scope,
108. It was accepted by the Court that if the procedures under ss. 2, 3 and 4 of the Act constituted in substance a criminal trial they would be invalid having regard to the provisions of the Constitution, given the almost complete absence of the presumption of innocence, the applicable standard of proof and the admissibility of hearsay evidence. However, the Court had previously determined in Attorney General v. Southern Industrial Trust (1957) 94 I.L.T.R. 161 that forfeiture proceedings, in which no person was being made amenable for a criminal offence, were not criminal. Provided the conditions imposed by the Act of 1996 were satisfied, the property could be forfeited without the requirement to show any wrongdoing on the part of the person in whose possession or control it was, even if that person was demonstrably unaware of the criminal activity, unless a serious risk of injustice was created.
“…that can only be in ease of the individuals whose rights may be affected and the court, in applying these provisions, will be obliged to act in accordance with the requirements of constitutional and natural justice.”
109. The Court was not asked in Murphy v G.M. to review the decision in Southern Industrial Trust. Keane C.J. observed that even if it had, the appellants would not have been assisted thereby.
110. Keane J. examined the United States authorities in some detail and found in them significant support for his conclusion that in rem proceedings for the forfeiture of property were civil in character. He noted that continued reliance on the in rem legal fiction, according to which the property itself was deemed to be the defendant, had been criticised in the dissenting judgment of Stevens J. in United States v. Ursery 518 U.S. 267 (1996) and also by the House of Lords in Republic of India v. India Steamship Company Ltd (No.2)  AC 878, and said (at p. 153):
“The issue in the present case does not raise a challenge to a valid constitutional right of property. It concerns the right of the State to take, or the right of a citizen to resist the State in taking, property which is proved on the balance of probabilities to represent the proceeds of crime. In general such a forfeiture is not a punishment and its operation does not require criminal procedures. Application of such legislation must be sensitive to the actual property and other rights of the citizens but in principle, and subject, no doubt, to special problems which may arise in particular cases, a person in possession of the proceeds of crime can have no constitutional grievance if deprived of their use.”
111. I will consider the current state of the US authorities briefly below.
“It may be, as Holmes pointed out in The Common Law, that principles of this nature may outgrow their origins in a different historical era and would now find their justification in considerations of public policy or the common good. It is sufficient, however, to say that the secure place of the principles as to civil forfeiture in our law and their congruence with the Constitution is clearly reflected in the decisions in Attorney General v Southern Industrial Trust Ltd (1957) 94 I.L.T.R. 161 and McLoughlin v. Tuite  I.R. 82.”
112. In CAB v Kelly  IESC 64 the central issue was whether an order could be made under the Act in respect of a family home, alleged to represent the proceeds of crime, occupied by the spouse and family of the person concerned. The spouse relied inter alia on the absence of any allegation of criminality against her; the fact that she was employed and had her own income; the fact that she was the beneficial owner of 50% of the house. Echoing the words of Keane C.J., MacMenamin J. said:-
113. The claim to a beneficial interest in the home was a matter capable of having weight attached, but on the evidence in the case there were countervailing considerations. The declaration as to the wife’s interest was made in unopposed family law proceedings brought, it appeared, only because of the Bureau’s proceedings. Property purchased with the proceeds of crime could not be transferred to a spouse in this manner simply as a means to defeat the legitimate objectives of the legislation.
The United States position
114. The judgment in Murphy v G.M., as mentioned above, discussed in some detail the United States authorities on civil forfeiture, referring in particular to the decisions of the United States Supreme Court in Calero-Toledo v. Pearson Yacht Leasing Co. 416 U.S. 663 (1974) and United States v. Ursery 518 U.S. 267 (1996).
115. Briefly, the position seems to be as follows. Forfeiture in criminal or quasi-criminal proceedings will attract the protection of the exclusionary rule (One 1958 Plymouth Sedan v. Pennsylvania 380 U.S. 693 (1965)). However, most of the states have made statutory provision for civil forfeiture. As noted by Keane C.J., the characterisation of proceedings under such provisions as in rem meant that the constitutionally-required safeguards for criminal proceedings did not apply. In this regard he referred to Calero-Toledo v. Pearson Yacht Leasing Company (which established that the innocence of the owner was not a defence to forfeiture of a thing used to commit a crime) and United States v. Ursery (1996) (which confirmed that the double jeopardy rule did not prevent parallel criminal actions and civil forfeiture proceedings, since forfeiture was not a punishment - that is, it did not deprive of either liberty or of lawfully derived property).
116. In Ursery, after referring to the lengthy history of legislation authorising parallel in rem civil forfeiture actions and criminal prosecutions, Rehnquist C.J. quoted the following passage from Various Items of Personal Property v. United States 282 US 577 (1931):-
117. However, it may be that the view of this issue is changing in the United States. It is interesting to note a statement by Thomas J. that accompanied a recent refusal of a writ of certiorari by the United States Supreme Court in Leonard v. Texas 580 U.S. (2017). The case concerned a large amount of money found in a car. The driver’s mother claimed that the money belonged to her and was the proceeds of a house sale. However in civil forfeiture proceedings the trial court accepted, “on the preponderance of the evidence”, that it was connected to criminal narcotics sales. The mother sought to argue that the forfeiture procedures were unconstitutional and that the Due Process Clause required the State to prove its case by clear and convincing evidence rather than by a preponderance of the evidence. The petition was denied, because she had not raised the argument in the lower courts. However, the accompanying statement points to clear concerns about the forfeiture procedure as currently operated in some of the states.
“[This] forfeiture proceeding… is in rem. It is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. In a criminal prosecution it is the wrongdoer in person who is proceeded against, convicted, and punished. The forfeiture is no part of the punishment for the criminal offense…”
118. Thomas J. stated that modern civil forfeiture statutes were “plainly” designed, at least in part, to punish the owner of property used for criminal purposes. However the jurisprudence of the Supreme Court permitted states to proceed both by way of criminal prosecutions and civil forfeiture. In rem proceedings often enabled the government to seize the property without any predeprivation judicial process and to obtain forfeiture of the property even where the owner was innocent, without the safeguards associated with criminal prosecutions. Partly as a result of this distinct legal regime, civil forfeiture had in recent decades become “widespread and highly profitable” and had led to “egregious and well-chronicled abuses”. Several documented examples of abuses are provided, which would certainly give cause for concern.
119. The historical reasons for the “unique constitutional treatment” of civil forfeiture are briefly described as deriving from English law pertaining at the time of the founding of the United States. The new State adopted laws subjecting to forfeiture ships involved in customs offences or in piracy. The “in rem” concept permitted the government to proceed as if the thing itself, rather than the owner, was guilty of a crime.
120. Thomas J. observed that in the absence of such reasons the Constitution “presumably” would require the Court to align the distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation. He referred to Bennis v Michigan 516 U.S. 442 (1996) , where he had suggested that a person unaware of the history regarding forfeiture laws “might well assume that such a scheme is lawless - a violation of due process”, and queried whether the historical practice regarding in rem forfeiture could justify the broad modern practice.
121. Having regard to the range of Irish authorities cited above, it seems clear that the exclusionary rule is not a free-standing rule that evolved or exists purely for the benefit of defendants in either criminal or civil proceedings. While it originated in the context of a criminal trial (O’Brien), its broader purpose is to protect important constitutional rights and values. It will have been seen that, at different times and dealing with different issues, individual judges have laid greater or lesser emphasis on particular aspects of those rights and values. However the common themes are the integrity of the administration of justice, the need to encourage agents of the State to comply with the law or deter them from breaking it, and the constitutional obligation to protect and vindicate the rights of individuals. These are all concepts of high constitutional importance. Each of them, or a combination thereof, has been seen as sufficient to ground a principle that is capable of denying to the State or its agents the benefit of a violation of rights carried out in the course of the exercise of a coercive legal power.
122. These rights and values are not confined to criminal trials and their effect is not confined to the exclusion of evidence. The underlying principles have been found to be applicable in Article 40.4 inquiries (State (Quinn) v. Ryan and Trimbole); in extradition proceedings (ditto); in civil proceedings between private parties where the coercive power of the State was used in breach of the rights of individuals (Universal City Studios); in civil proceedings initiated by the individual concerned seeking the return of property taken by agents of the State (Simple Imports, Creaven); in civil proceedings taken to protect privacy rights in seized material (CRH); and in judicial review proceedings challenging an unlawful eviction by a housing authority (Moore). They have also been found relevant, albeit to a lesser extent, in civil proceedings relating to disciplinary or administrative tribunals (Kennedy v Law Society); and to a lesser extent again in planning enforcement proceedings (Meath County Council v Murray). The proposition that the principles apply only in relation to evidence sought to be deployed against the individual is therefore not borne out by authority.
123. The question then is whether there is anything about proceedings under the Proceeds of Crime Act that renders those underlying principles inapplicable in this context. The Bureau relies upon the characterisation of those proceedings as in rem rather than in personam, and it is true that the issue in the case is the provenance of the property. However, it is clear from the analysis in Murphy v G.M. that the importance of that characterisation lay in the debate as to whether the proceedings were criminal or civil. The plaintiff’s argument was that the proceedings were in essence criminal in nature, and that the statute was therefore unconstitutional because it did not provide constitutionally required safeguards in relation to the presumption of innocence, proof of mens rea and the burden and standard of proof. This Court held that those particular safeguards were essential only in criminal trials and, having regard to the authorities on forfeiture, that the proceedings were not criminal. No person was being made amenable for a criminal offence. It did not suggest that this conclusion meant that other constitutional rights had no impact - on the contrary, the judgment (echoed on this point in CAB v. Kelly) makes it clear that the legislation must be applied with regard to “the actual property and other rights of citizens”.
124. In Gilligan and G.M. the Proceeds of Crime Act 1996 was subjected to far-reaching constitutional challenges. It survived those challenges in part because the characterisation of its procedures as criminal in nature was misconceived, but also because the Act provides for fair procedures and, as a safety net, confers on the court the power to refuse an order where there is a serious risk of injustice. In my view, it was not contemplated in the course of that challenge that the in rem classification of forfeiture meant that the violation of constitutional rights in proceedings under the Act could pass without response on the part of the Court. To borrow a phrase from Thomas J., forfeiture in this jurisdiction is not a “lawless scheme”.
125. I indicated at an early stage in this judgment that I felt that labelling the issue in this particular case as the applicability of the rule excluding unconstitutionally obtained evidence was unhelpful, because the cash in question was not evidence as such, and treating it as evidence for the purposes of the rule could potentially lead to absurd results in the event that more than one person could mount a claim to ownership. A court dealing with proceedings under the Act must either make, or refuse to make, a finding that the property in question is or represents the proceeds of crime. Defined consequences flow from a finding that it is, and those consequences cannot take effect as against one person but not as against another (save, perhaps, in the entirely separate case of a bona fide innocent holder).
126. For the same reason, the modified version of the J.C. test proposed by the appellants cannot, in my view, work effectively. The question, then, is the appropriate response of a court where a breach of constitutional rights is involved in the seizure of the assets concerned in the case.
127. While the J.C. test is not an exact fit, the general approach of the Court can, I believe, be adapted to produce an appropriate response to this issue in proceedings under the Proceeds of Crime Act.
128. It is necessary to bear in mind certain of the fundamental features of the context within which the trial court is operating. A hearing under the Proceeds of Crime Act is not a criminal trial - no person is being punished or made amenable for a criminal offence. A person accused of a criminal offence has a constitutional right to the benefit of the presumption of innocence and of the requirement that guilt be proved beyond reasonable doubt (subject to some modifications not relevant here), but it is clear that the scheme of the Act is of an entirely different nature. It must be recalled that, as this Court stressed in G.M. and Gilligan, a person does not have a constitutional right to enjoy property that is or represents the proceeds of crime. Where an asset is proved to be such, in accordance with the Act, the obligation to vindicate personal rights does not apply to that asset. Refusal of an order freezing or confiscating such assets, in the face of evidence establishing provenance to the required extent, should not be seen as a means of protecting that which does not deserve protection.
129. It seems to me, therefore, that the constitutional values primarily under consideration will be the integrity of the administration of justice and the need to ensure compliance with the law by agents of the State. It is possible to envisage circumstances that would lead a court to conclude that, per Denham J. in Lynch, the proceedings should be “nullified”. This is not an unprecedented proposition in cases under the Act - the High Court has in the past been known to discharge the interim order and dismiss the proceedings because of a failure to disclose relevant information at the ex parte stage. That can be seen as an appropriate response to abuse of the court’s process, and also as a means of vindicating the respondent’s right to fair procedures.
130. In keeping with the J.C. analysis the court should, in my view, refuse the order sought by the Bureau if the evidence establishes that the asset was seized in such circumstances that the court would be lending its process to action on the part of a State agent or agents involving a deliberate and conscious breach of constitutional rights (in the sense clarified by the Court in J.C.). A reckless or grossly negligent breach of the constitutional rights of the respondent should create a discretion but with a presumption in favour of refusal of the order.
131. Where the issue concerns evidence in the true sense, the J.C. test (including that part of the test concerned with evidence gathered illegally but not in breach of a constitutional right) can be applied subject to alteration of the burden of proof to the balance of probabilities. Any such issue can, in the normal way and as the trial judge sees fit, be dealt with either as a preliminary matter or as it arises in the course of the hearing. I do not propose to comment further on this aspect, in case such comment should appear to be a gloss on or alteration of the J.C. test.
132. Where an alleged breach of rights concerns the actual asset sought to be seized, the issue is not its “exclusion”. Rather, the question for the court will be whether a breach of rights has occurred such that an order should not be made under the Act. This, therefore, is a question to be answered at the end of the hearing, since it will not arise unless the court first determines that the asset is the proceeds of crime. However, to avoid late challenges raising the possibility that the court might have to embark upon a fresh hearing at that stage, the issue must have been expressly raised in the hearing, by reference to evidence in the affidavits before the court. The Bureau then has the opportunity of adducing evidence relevant to it.
133. Where the issue is raised, the Bureau must bear the burden of establishing on the balance of probabilities that (i) the asset was not seized in circumstances of unconstitutionality, or (ii) that, if it was, it is appropriate nonetheless to make the order sought. In the latter case it is for the Bureau to explain the basis upon which it contends that the order should be made, and to establish any facts necessary to justify such conclusion.
134. A respondent should be entitled to rely only upon a breach of his or her own rights, unless the court is satisfied that the breach of another person’s rights is so egregious as to justify dismissing the proceedings. Other than in those circumstances, breach of the rights of a third party who is not a respondent should not give rise to a refusal of the order - there is no good reason, given the statutory scheme, why a breach of A’s rights should entitle B to retain the proceeds of crime unless the breach is such as to call into question the integrity of the administration of justice.
135. Similarly, where there is more than one respondent claiming legitimate ownership of the asset, and the constitutional breach affects only one, or at least not all, the court should not refuse an order unless the breach is such as to justify dismissal of the proceedings.
136. It may be that application of these principles will leave unredressed a breach of rights unrelated to the property in question. The affected party will be left with the option of instituting proceedings for such damages.
137. It may be necessary to point out that the result of an order dismissing the Bureau’s application would not in all cases be the return of the asset to the respondent from whom it had been taken, any more than contraband such as firearms, drugs or manifestly stolen property is returned to an acquitted person after trial. There is, as has been stated several times, no constitutional or legal right to possession of such items.
138. In the circumstances I would allow the appeal and remit the matter to the High Court for rehearing in the light of this judgment.