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High Court of Ireland Decisions
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Cite as:  IEHC 108,  1 ILRM 443
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Judgment Title: Dpp [At Suit of Detective Garda Barry Walsh] -v- Cash
Composition of Court: Charleton J.
Judgment by: Charleton J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 108
THE HIGH COURT
[2005 No. 1088 S.S.]IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL) PROVISIONS ACT, 1961
THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT
OF DETECTIVE GARDA BARRY WALSH)
ACCUSEDJUDGMENT of Mr. Justice Charleton delivered the 28th March, 2007
1. This case concerns three different fingerprints. It brings into focus again the intractable question of improperly obtained evidence. Here, the submission on behalf of the accused is that any piece of information that might lead to a step in the criminal process, including an arrest, must be proved by the prosecution to have been obtained in strict compliance with law.
2. Judge Aingeal Ní Chondúin stated the case which raises these problems on the basis of a burglary charge that appeared before her on two dates in 2004.
3. On the 21st July, 2003 Roisín Walsh called the gardaí to her home at St. Martin’s, Kylemore Road in Dublin. In her absence, a bedroom window had been smashed and property had been stolen from the house. Detective Garda Barry Walsh called in a fingerprint expert from the Scenes of Crime Office who found finger marks on two pieces of smashed glass in the window frame where the thief had gained entry. As these are the second-last of a series of fingerprints, I will call them prints 2. Two months after the burglary, on 23rd September, 2003, Detective Garda Walsh arrested the accused at his home in Ballyfermot, Dublin 10, under the provisions of s. 4 of the Criminal Law Act, 1997 on suspicion that he had committed the burglary on the Kylemore Road. The reason that he arrested the accused was one which, quite properly, he was reluctant to divulge to the trial judge. When the case came on for hearing, counsel for the accused asked him to explain the “evidence grounding the arrest”. He replied that it was confidential information and that to disclose it to the court would be prejudicial to the accused. When counsel for the accused insisted on receiving the information, the Detective Garda said he was referring to a match between prints 2 and another set of fingerprints, which I will call prints 1, held in the Garda Technical Bureau.
4. When the fingerprints from the scene of the burglary at Kylemore Road had been run against a computer programme which identifies fingerprints stored in the records of an Garda Síochána, a match came up with a set previously taken from the accused, on an earlier arrest, namely prints 1. On arresting the accused on suspicion of the Kylemore Road burglary, the gardaí wished to obtain his prints to see if they matched those at the burglary scene, namely prints 2. This was done by requesting the accused to provide his fingerprints. When he indicated that he was willing, a written consent form was signed by his mother because he was under, I am told, eighteen years of age. This resulted in prints 3, which matched to those of the burglary at Kylemore Road, namely prints 2.
5. It is not the function of this court on a case stated to seek to resolve facts: this is a matter for the learned district judge. In the course of his evidence, Sergeant Philip Burke agreed that he had indicated to the accused that it was his intention to take fingerprints from him and that they would be taken “one way or another”. He told the court that he had sought fingerprints with the consent of the accused because, as he told the court, it was “the policy of the gardaí to offer the defendant the opportunity to provide prints first, prior to making an application to the superintendent for an order compelling an arrested person to co-operate”. He claimed he did this out of courtesy. A superintendent, under the terms of s. 6 of the Criminal Justice Act, 1984, could have required the accused to be fingerprinted or photographed.
6. Section 8 of the Criminal Justice Act, 1984 provides:-
(2) Where proceedings for an offence to which s. 4 applies are not instituted against the person within the period of six months from the date of the taking of the photograph or print and the failure to institute such proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction shall be carried out on the expiration of that period.”
8. The accused asserts that there is a burden of proof on the State to show the lawful history of any piece of evidence proposed to be put before a criminal court. In addition, it is asserted on behalf of the accused that the State must show that any administrative step in the criminal process, including arrest, was taken on foot only of material which must be proved by the State to have been lawfully obtained.
The Case Stated
9. The learned district judge indicated that she was of the opinion that she could admit the match between prints 3, taken in the Garda station, and prints 2, taken at the scene of the burglary. She was uncertain in that determination and therefore stated the following case for the opinion of the High Court:-
(ii) If the answer to the above question is No, must any evidence obtained during and consequential upon the said section 4 detention be excluded?
(iii) Whether the gardaí, following the entry into force of section 6 of the Criminal Justice Act, 1984 have a power to take fingerprints from a person who is in section 4 garda detention, other than pursuant to the said section 6, in circumstances where a person has signed a written consent?
(iv) If such a power exist, is it lawfully exercised where a Garda witness has given evidence on oath that the ‘consent procedure’, rather than the procedure under section 6, is preferable so as to avoid the requirements of section 8 of the Criminal Justice Act pertaining to the keeping and destruction of fingerprints?
(v) If such an exercise of power is not lawful, is any evidence obtained as a result inadmissible?
(vi) If a Garda has the power to take a fingerprint from a detainee who has given signed consent to the taking of the print, is it open, as a matter of law, for me to find that he consented voluntarily in the circumstances where a garda witness agreed with the assertion of Counsel for the Accused that it was his intention that his fingerprints would be obtained from the accused ‘one way or another’ and it was conveyed to the accused that if he did not wish to give consent to have his fingerprints taken that permission would be sought from a Superintendent?’
(vii) If the answer to the previous question is No, is the consequential evidence admissible?
10. The basic rules for arresting people on suspicion of criminal offences is now set out in s. 4 of the Criminal Law Act, 1997. These mirror the old common law rules. An arrestable offence is one which carries a potential maximum term of at least five years imprisonment. A citizen may arrest without warrant anyone who, with reasonable cause he or she suspects to be in the act of committing an arrestable offence. Where an arrestable offence has, as a matter of fact, been committed, a citizen may arrest any one whom they reasonably suspect to have committed that offence. The powers of the gardaí exceed that. A member of An Garda Síochána may, with reasonable cause, arrest anyone whom they suspect of having committed an arrestable offence; provided they reasonably suspect that such offence has been committed. Section 6 of the Act allows for entry by a garda into a dwelling or other premises, for the purposes of the garda effecting an arrest. Section 30 of the Offences Against the State Act, 1939, as amended, allows a member of An Garda Síochána to arrest persons who are suspected to have committed, or to be committing, or to be about to commit, an offence scheduled under that Act, or who are suspected to have information on such an offence. This schedule includes a wide range of explosive and firearms offences as well as the offences created by the Act itself, as amended. A s. 30 arrest can lead to a detention of twenty-four hours, often extended to a forty-eight hour period of detention; or, exceptionally, that can be extended further by a judge. The ordinary arrest for an arrestable offence, outside the Offences Against the State Act, 1939, as amended, usually leads to a detention under s. 4 of the Criminal Justice Act, 1984. The period of detention therein, usually six hours, often extended to twelve hours, can be further extended under different Acts, including the Criminal Justice (Drug Trafficking) Act, 1996, s. 2. Although s. 30 of the Offences Act Against the State Act, 1939, as amended, does not, as does s. 4 of the Criminal Law Act, 1997 require reasonable cause, the application of reason is implied by law into all administrative decisions including those related to arrest and detention.
“A constable is justified in arresting a person without a warrant, upon a reasonable suspicion of a felony having been committed and of the person being guilty of it”.
Their Lordships have not found any English authority in which reasonable suspicion has been equated with prima facie proof. In Dumbell v. Roberts  1 All E.R. 326, Scott L.J. said, at p. 329:
“The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called upon before acting to have anything like a prima facie case for conviction; …”.
There is another distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. There is a discussion about the relevance of previous convictions in the judgment of Lord Wright in McArdle v. Egan (1934) 150 L.T. 412. Suspicion can take into account also matters which, though admissible, could not form part of a prima facie case. Thus the fact that the accused has given a false alibi does not obviate the need for prima facie proof of his presence at the scene of the crime; it will become of considerable importance in the trial when such proof as there is is being weighed perhaps against a second alibi; it would undoubtedly be a very suspicious circumstance.”
History of the Rule
14. The rule requiring the exclusion of evidence obtained by a mistake on the part of members of An Garda Síochána, which has the incidental and unintended result that the accused’s constititutional rights are infringed, should be seen in its historical context. It is not an imperative that is the subject of any Act of the Oireachtas nor is it provided for in the text of the Constitution.
15. The earliest reported case has a parallel to this one. In The People (A.G.) v. Thomas McGrath (1965) 99 I.L.T.R. 59, the accused was charged with breaking and entering an office in Dublin in January, 1959. The only evidence against the accused was the correspondence between fingerprints found at the scene, on the dividing panel of cash box from which money was stolen, and those of the accused. His fingerprints were taken by a prison officer while he was remanded in custody prior to appearing in the District Court. No warrant had ever been sought for this purpose and neither was he asked for his consent. A case was stated for the opinion of the High Court which was heard in January, 1960 and Davitt P., McLoughlin and Murnaghan JJ. delivered their judgment in March of that year. The arguments are fully reported and no Irish decision was opened to the court. Davitt P. quotes with approval Professor Wigmore’s strong dissent from the rule as it then existed in America whereby illegally obtained evidence could be excluded, to this effect:-
18. Although the facts of The People (A.G.) v. O’Brien,  I.R. 142, are well known it is important to record them in this context. The accused was charged with receiving stolen clothing. These were identified by the owners because they had been found in the course of the search when members of An Garda Síochána at 118 Captain’s Road in Crumlin. The search warrant obtained, however, stated the place to be searched as 118 Cashel Road, Crumlin. This was not noted by the gardaí before going to the place to be searched. The Supreme Court held that as this mistake was a pure oversight, not noticed by anyone before entering the premises, and that the absence of any evidence of treachery or deliberate illegality required the evidence to be admitted. Kingsmill Moore J., with whom Lavery and Budd JJ. agreed, held that any question as to admissibility of evidence, where it had been illegally obtained, was to be decided on the balance of competing interests as a matter of judicial jurisdiction.
19. To the question as to whether illegally obtained evidence is admissible, Kingsmill Moore J. stated that there were three possible answers. Firstly, that the evidence would always be admitted because its provenance in illegal action cannot cause it to be excluded; secondly, that illegally obtained evidence should be ignored by the court, as if it never existed; thirdly, that there was a discretion vested in the trial judge to decide whether or not to admit illegally obtained evidence. He decided for the last of these: that an intermediate solution had to be found as between desirable ends which may be regarded as incompatible. At p. 160 – 161 his reasoning is as follows:-
It would not in be in accordance with our system of jurisprudence for this Court to attempt to lay down rules to govern future hypothetical cases. We can do no more than decide the case now before us, and to lay down that, in future cases, the presiding judge has discretion to exclude evidence of facts ascertained by illegal means where it appears to him that public policy, based on a balancing of public interests, requires such exclusion. If he decides to admit the evidence an appeal against his decision should lie to a superior Court which will decide the question according to its own views and will not be bound to affirm the decision of the trial judge if it disagrees with the manner in which the discretion has been exercised, even if it does not appear that such discretion was exercised on wrong principles. The result of such decisions, based on the facts of its individual cases, may in time give rise to more precise rules.”
In my view evidence obtained in deliberate conscious breach of the constitutional rights of an accused person should, save in the excusable circumstances outlined above, be absolutely inadmissible. It follows therefore that evidence obtained without a deliberate and conscious violation of the accused’s constitutional rights is not excludable by reason only of the violation of his constitutional right.
In the present case it is abundantly clear from the evidence that it was through an error that the wrong address appeared on the search warrant and that the searching officers were unaware of the error. There was no deliberate or conscious violation of the right of the appellants against arbitrary intrusion by the Garda officers. The evidence obtained by reason of this search is not inadmissible upon the constitutional ground.”
It is true that in this case the learned trial judge did not reach the stage of exercising a discretion to overlook a illegality or, fortiori, the conscious breach of constitutional rights, but the Court is satisfied that if he had done so, his discretion could only have been exercised one way, to admit the evidence.”
Of course the gardai contributed to the error by adopting a form of information which was in fact inadequate but which had for many years been accepted by both District Justices and peace commissioners as adequate. To suggest that the gardai deliberately withheld evidence of facts in their possession from the peace commissioner is to suggest that they deliberately imperilled the strength of their own case against the appellant without any reason whatever especially as the evidence in the trial demonstrates that if the peace commissioner had asked for evidence of facts there would have been no difficulty in furnishing him with such evidence so as to lead to the valid issue of the warrant which was in fact invalidly issued.
The adoption of such an inadequate form of information by the gardaí is a far cry from a deliberate intention to violate the appellant's constitutional rights in relation to his dwelling and neither did it lead to any form of unfairness in the investigation or the trial.
The inviolability of the citizen's dwelling must be upheld but this does not mean that evidence obtained in breach of it must always be rejected however relevant it may be to the case at hearing. It must be rejected if there is any element of blame or culpability or unfairness (including any such element to be inferred by the reasonable application of the doctrine "ignorantia juris haud excusat ") in relation to the breach of the right on the part of those who obtained the evidence unless there are adequate excusing circumstances. In all cases heretofore, where evidence has been rejected, including the recent case of The People (Director of Public Prosecution) v. Healy  2 I.R. 73 there was manifest a deliberate disregard of the accused's rights. Not only did the gardaí deliberately do the acts complained of, but they did them knowing that they contravened the accused's legal, if not his constitutional, rights. I take the view that if the garda deliberately do acts which they know or ought to know contravene the accused's legal rights, but not his constitutional rights, and if the rights are thereafter held to be constitutional rights, the exclusionary rule should apply, but there must be some such element of blame or culpability or unfairness to bring the exclusionary rule into operation. If there is no such element of blame or culpability or unfairness in relation to the breach of the constitutional right on the part of those who obtained the evidence then the evidence should be admitted and no question of excusing circumstances arises.
In my opinion The People (Attorney General) v. O'Brien  I.R. 142 is on all fours with this case and I follow it. I also follow the majority judgment in The People v. Shaw  I.R. 1 which emphasises the importance of fairness or unfairness in the admissibility or inadmissibility of the evidence.
The duty of the Court pursuant to Article 40, s. 3, sub-s. 1 of the Constitution is as far as practicable to defend and vindicate such rights.
As between two alternative rules or principles governing the exclusion of evidence obtained as a result of the invasion of the personal rights of a citizen, the Court has, it seems to me, an obligation to choose the principle which is likely to provide a stronger and more effective defence and vindication of the right concerned.
To exclude only evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from acting in a manner which he knows is unconstitutional or from acting in a manner reckless as to whether his conduct is or is not unconstitutional.
To apply, on the other hand, the absolute protection rule of exclusion whilst providing also that negative deterrent, incorporates as well a positive encouragement to those in authority over the crime prevention and detection services of the State to consider in detail the personal rights of the citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights.
It seems to me to be an inescapable conclusion that a principle of exclusion which contains both negative and positive force is likely to protect constitutional rights in more instances than is a principle with negative consequences only.
The exclusion of evidence on the basis that it results from unconstitutional conduct, like every other exclusionary rule, suffers from the marked disadvantage that it constitutes a potential limitation of the capacity of the courts to arrive at the truth and so most effectively to administer justice.
I appreciate the anomalies which may occur by reason of the application of the absolute protection rule to criminal cases.
The detection of crime and the conviction of guilty persons, no matter how important they may be in relation to the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional obligation "as far as practicable to defend and vindicate the personal rights of the citizen.
After very careful consideration I conclude that I must differ from the view of the majority of this Court expressed in the judgment of Griffin J. in The People v. Shaw  I.R. 1. I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its (the court's) discretion”.
25. In my judgment, there are three practical consequences to the decision in Kenny’s case. Firstly, every error on the part of the agents of the State which takes their action outside the strict letter of the law causes the exclusion at trial of any evidence which directly results therefrom. Examples of this are very easily found. The most recent instance of it which came before the Supreme Court was in Curtin v. The Clerk of Dáil Éireann,  IESC 14. There, the issue before the court was the validity of the procedures decided on by the Oireachtas for the purpose of undertaking the impeachment of a serving judge of the Circuit Court. His house had been searched under a warrant which, at the time of the search, had just expired by efflux of time. No one apparently noticed this. The exploration of the computer taken in that search led to a charge being preferred against Judge Curtin of possession of images of child pornography. The trial ended when the trial judge ruled, as he was bound to do by Kenny’s case, that the evidence taken in consequence of the search amounted to a deliberate and conscious violation of the accused’s constitutional right to the inviolability of his dwelling under Article 40.5 of the Constitution. The expiration of the warrant, at a time shortly before the search had taken place, was a simple error on the part of the garda officer leading the investigation and there was no evidence to suggest that it was adverted to in any way prior to the accused’s house being entered. If it had been, a further warrant would most probably have been applied for.
26. In his judgment in O’Brien’s case, Kingsmill Moore J. drew a distinction between the infringement of common law rights and the infringement of constitutional rights. One might suppose, from the existence of that distinction, that a large category of cases might exist where a mistake might merely lead to a judicial conclusion that an illegality was involved, in distinction to the accidental infringement of a constitutional right. Where mere illegality is involved, then judicial discretion applies in much the same way as judicial discretion applied to a mistaken infringement of an accused’s constitutional rights prior to the decision in Kenny’s case.
27. The second consequence that has resulted from Kenny’s case is that every breach of an accused person’s rights is always pleaded at trial as an infringement of the Constitution. It seems possible that Kingsmill Moore J. wished to draw a distinction between a mere tort and the infringement of a constitutional right. A tort based upon the infringement of a constitutional right could not then, and still cannot, be pleaded unless there is an absence of a tort remedy for a wrong.
28. The fact that this has changed, or has not been applied, is illustrated by The People (DPP) v. Elizabeth Yamanoha,  1 I.R. 565. The accused was charged with the possession and importation of a very substantial quantity of cocaine contrary to the Misuse of Drugs Acts, 1977-1984. The sworn information grounding the warrant issued by the peace commissioner contained an assertion by a detective sergeant that he had reasonable grounds for suspecting that “a person is in possession in contravention of the Misuse of Drugs Acts, 1977 and 1984, of a controlled drug”. He swore that this was as a result of “confidential information and surveillance over a number of hours by members of An Garda Síochána”. These statements were supplemented by oral exchanges between the Garda and the peace commissioner but, and this is what went wrong, these were not on oath. The Court of Criminal Appeal held that the written information could not satisfy the peace commissioner that reasonable grounds existed for suspecting that an offence was being committed at the premises in question. On foot of that warrant, held by the Court of Criminal Appeal to be invalid, the gardaí had entered a hotel room in Jury’s Hotel in Ballsbridge, where the accused was staying. There, wrapping packages alleged to be consistent with having being strapped to her body on the way through customs, and thus alleged to be consistent with the possession of cocaine, were found. That evidence, crucial to the prosecution’s case, was ruled inadmissible by the Court of Criminal Appeal and the conviction of the appellant was overturned. It is to be inferred that the constitutional right infringed had to be one of privacy. There is very little privacy in a hotel bedroom and it is certainly not a dwelling within the meaning of Article 40.5 of the Constitution. Nonetheless, the case illustrates that it is very difficult to find circumstances where an illegality is involved in a breach of an accused’s person constitutional rights: it is more easy, and seems sometimes to be invariable, that a constitutional right is accepted by the courts as being infringed where any accidental violation of any legal right of any kind occurs.
29. The third consequence of the decision in Kenny’s case is that it has become practically impossible to say when a constitutional right begins and ends. An illustration of this tendency is the decision of the Court of Criminal Appeal in The People (DPP) v. Joseph Dillon  4 I.R. 501. There, a Garda answering a telephone belonging to, but taken from, an arrested person was interpreted as an illegal action, involving an interception of a telephone message within the meaning of s. 2(1) of the Interception of Postal Packets and Telecommunications (Regulations) Act, 1993. The Court of Criminal Appeal held that answering someone else’s telephone amounted to an interception as defined by s. 98 of the Postal and Telecommunications Services Act, 1983. After arresting Nicholas Power and Michael Carey in Limerick City on suspicion of the possession of controlled drugs, Detective Inspector Quilter had in his possession a mobile phone which had been in the possession of one of these suspects. As will be recalled, O’Brien’s case allows the seizure of an item on a suspect on arrest. The telephone rang: so the garda answered it. On receiving a telephone call, Detective Inspector Quilter pretended to be involved in activities related to controlled drugs. This he was, in truth; though not in the sense that the caller expected. An arrangement was then made for Detective Inspector Quilter and the caller, who was the accused, to meet up for the purpose of the criminal supply of controlled drugs at an agreed location. There, the accused, who was the telephone caller, was arrested in the possession of heroin. The Court of Criminal Appeal held that the action by the Garda was unlawful because the scheme of the two Acts excluded spontaneous actions of this kind, as it was put, even in the investigation of crime. Hardiman J. held that before Detective Inspector Quilter had answered the phone he ought to have applied for a warrant to intercept the relevant communication, and stated at p. 514:-
31. As regards any obligation there is on anyone apart from the gardaí to obey the law, that appears nowhere in any judgment since Kenny’s case: the entire focus is on the accused and his rights; the rights of the community to live safely has receded out of view.
32. There is a line of authority that the rules governing items of physical evidence obtained from an accused person differ from the rules governing the exclusion of confession statements. A confession statement, to be admissible, must not have resulted from an illegal inducement; a hope of favour or fear of disadvantage excited by a person in authority. A fingerprint, in common with a blood sample or scraping for the purpose of obtaining DNA evidence, and such like, is in no way affected by the mood of a suspect giving same. Whether it is voluntary or involuntary, a fingerprint, or a sample of the accused’s DNA, or blood or urine for the purpose of testing for the presence of particular substances, does not change its nature. If a scraping of cells from the accused’s cheek is taken by a trick, or if a hair is taken in an illegal search of his home, the later match of the DNA that might be analysed in consequence to a semen sample from a rape victim will always be the same, no matter the circumstances in which it was obtained. A physical or verbal attack on the accused can, on the other hand, easily lead to a false confession. Confession evidence is inherently dangerous. Hence, it is argued that different rules apply to these situations. In The People (AG) v. McGrath, Davitt P. observed at p. 73
34. As a matter of principle, in The People (DPP) v. Walsh  I.R. 294, O’Higgins CJ followed the decision in McGrath’s case at p. 308-309:-
The purpose of a caution in relation to a confession or a statement is to ensure that what is said or written is said or written voluntarily. An involuntary confession or statement, given out of fear or induced by hope, is tainted evidence of a quality not acceptable in our Courts. It is not so with a fingerprint. A fingerprint does not change. Whether the person concerned submits voluntarily to having his print taken or whether he fiercely objects and resists makes no difference to the probative value of the evidence obtained. His fingerprint remains the same and indicates always the same association or disassociation with the crime under investigation, irrespective of the circumstances under which it is obtained. Therefore, I cannot see why the administering of a caution, or anything resembling a caution, should be a necessary preliminary to the admissibility of fingerprint evidence. I think the correct view of the law in this respect was taken by the High Court in The People (Attorney General) v. McGrath: see the judgments of Davitt P. at p. 70 and of McLaughlin J. at p. 76 of the report of that case. What a court ought to be concerned about is whether the evidence sought to be admitted was or was not taken by illegal means. If illegal means were used (assuming these to fall short of a breach of constitutional rights), the trial judge would have to consider whether in the particular circumstances the public interest was best served by the admission or the rejection of such evidence: see the judgment of Kingsmill Moore J. at p. 160 of the report of The People (Attorney General) v. O’Brien.”
37. Section 6 of the Criminal Justice Act, 1984 sets out the powers of An Garda Síochána in relation to a person who has been lawfully detained under s. 4 of that Act. These powers are amended by the Criminal Justice Act, 2006. For these purposes, however, s. 6 authorises a superintendent to have a detainee give his name and address; to be searched; to be photographed; to have his fingerprints and palm prints taken; to have firearms and explosive substances residue tests taken, including a sample of hair; and to seize anything he has in his possession.
38. In the Court of Criminal Appeal judgment in The People (D.P.P.) v. Costigan, Macken J. emphasized the distinction between securing items of physical evidence and seeking a confession from an accused person:-
41. I consider that these decisions are directly in point. Once a fingerprint sample has been obtained by consent it is in the same category as an item of clothing which an accused person, or a suspect, hands over voluntarily to the gardaí in aid of their inquiries. A statutory formula may be applicable before particular kinds of samples are produced to the court; an example of this is s. 18 of the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations (Regulations) 1987. Were it to be the case, however, that a fingerprint was proposed to be admitted and a consent document was either missing or absent, then it should be noted that a breach of the Regulations can be excused and the failure in that regard might be a rare example of a mere illegality, as opposed to a mistaken infringement of a constitutional right. I would be reluctant to hold, based on the decisions cited above, that a constitutional right to privacy extends to the map of one’s DNA, one’s fingerprints or the chemical composition of blood or urine. It may be, however, on the basis of the decisions to which I have already referred, that I am bound to so hold. I therefore turn to consider whether there is any room left for a balancing of rights where a mistaken violation of the constitutional rights of an accused person, for example to total privacy, has occurred.
42. In O’Brien’s case the competing interests identified by the Supreme Court were both related to the community: its interest in the prosecution of crime and its interest in the maintenance of legal rules in the detection of crime. In Kenny’s case the sole interest identified by the Supreme Court was that of ensuring proper police conduct. It seems to me this statement of the law may not have taken into account that more rights than those of the accused are involved in every criminal prosecution. This is otherwise more clear, as a matter of law, there where that judgment was given.
43. The rights of a victim of a crime are subsidiary to those of the community. When a crime is committed, it is the legal rights of the entire people of Ireland that are being attacked: hence, crimes are prosecuted in the name of the people under Article 30.3, “… is in ainm an Phobail … a dhéanfar an cúiseamh”. Such acknowledgement as there has been in Irish law that the victim also has a right, because of the commission of a crime against her or him, to ensure that the prosecution is conducted fairly has been very limited. The fact that there is a balance, however, to be struck between the competing rights of the accused to have the law observed and that of the community to have social order maintained was expressly acknowledged by the Supreme Court in B. v. D.P.P.,  3 I.R. 140. At p. 195-196 Denham J., with whom all the other members of the court agreed, stated:-
It would be difficult to consider or to imagine any matter which would be more subversive of family life than sexual offences committed against his child by a spouse of the nature alleged in the present case particularly when the child in question is less than fully normal. It is obviously the duty of one spouse to protect the child or children against the other in cases of such abuse, and it would completely frustrate the obligation placed upon the State to protect the family if the very person upon whom the obligation is said to rest should be prevented or inhibited from testifying in a prosecution against the offending spouse. This is particularly so in the circumstances where a spouse whose testimony it is sought to introduce is a vital witness. Insofar as the justification sought for the existence of the rule is the prevention of family dissension, it can quite clearly have no validity in a situation where the application of the rule is so far from preventing dissension, is assisting in concealing in effect, and thus permitting to go unpunished, a serious offence committed upon members of the family by other members of the family, particularly sexual offences by a father upon his own daughter. In view of the sense of obligation placed upon this Court to assist insofar as it can in the protection of the family the Court must take the view that the maintenance of the common law rule relied on in this case would be a failure to comply with the obligations imposed by the Constitution. This is all the more so in cases of assault upon the children of the family by the parents. Such a case should not be more hampered in its proof by the existence or the enforcement of the rule than in the case of an assault by the husband upon the wife.”
46. In terms of this problem, Article 6 of the Convention is the most relevant:-
3. Everyone charged with a criminal offence, has the following minimum rights:
a) to be informed promptly, in the language which he understands and in detail, of the nature and cause of the accusation against him;
b) to have adequate time and the facilities for the preparation of his defence;
c) to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
47. The European Court of Human Rights has held that it is not a principle of Convention law that unlawfully obtained evidence should not be admissible; Schenk v. Switzerland (1988) 13 E.H.R.R. 242, para. 46 and see R. v. Khan  1 A.C. 558.
48. In the neighbouring kingdom, the European Convention on Human Rights is incorporated into domestic law by the Human Rights Act, 1998. In Attorney General’s Reference (No. 3 of 1999)  2 AC 91, D was charged with a particularly savage rape, following a burglary, on B, a 66 year old woman living in a terraced house in London in January, 1997. Semen swab samples were taken from the victim from which a DNA profile was constructed. A year later, D was arrested and charged with a burglary entirely unconnected to the earlier incident. A saliva sample obtained in custody resulted in a DNA profile being lodged in the National DNA Database. D was then charged and was subsequently acquitted of this later offence. Under s. 64 of the Police and Criminal Evidence Act, 1984 the DNA profile from this arrest should have been destroyed. However, it was not. The DNA sample from the rape victim was run on the National DNA Database and was discovered to match the DNA sample taken from the later burglary. D was therefore arrested on the basis of this suspicion and a new sample was taken from a sample of his hair. That new DNA profile matched the semen sample from the burglary in January, 1997. At the trial, however, it was asserted that the earlier sample should have been destroyed following the accused’s acquittal on the unrelated burglary; it was thus argued that the evidence of the DNA profile upon his arrest could not be given in evidence. The evidence was excluded by the trial judge and the trial collapsed. The Court of Appeal agreed with this result. The case went to the House of Lords on a reference from the Attorney General. Section 64 of the Police and Criminal Evidence Act, 1984 spelt out that a sample which had not been destroyed as was required by the statute, could not be used in evidence against the person entitled to its destruction. It also specified that a sample which was required to be destroyed should “not be used…for the purposes of any investigation”. A clear illegality had thus occurred by reason of the police basing their suspicion to found the arrest of the accused on a sample which should have been destroyed. The section did not go on, however, to state that any evidence obtained in consequence of an investigation based on a sample that should have been destroyed would be inadmissible in evidence. This was the construction put by the Court of Appeal on the section, which the House of Lords reversed. At p. 118, Lord Steyn stated:-
s. 64(1) of PACE. The police can do nothing until a further crime is committed. Even a consequential confession by X or discovery of the murder weapon in the house of X could not be used. But one does not have to resort to hypothetical examples: on the interpretation of the judge and the Court of Appeal the case involving evidence of a very serious rape could never reach the jury and in Weir [Unreported, Court of Appeal, 26th May, 2000] a conviction for a brutal murder was quashed on the ground that the DNA evidence should not have been placed before the jury.”
51. In the course of his speech in A.G.’s Reference, at pp. 121 – 122, (No. 3 of 1999) Lord Cooke gave the following useful summary of the law in other countries:-
54. The Court of Appeal of New Zealand has expressly disapproved the Irish practice of excluding evidence merely because a mistake had been made. At p. 420 of the report in R. v. Shaheed, Blanchard J. stated:-
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may applied to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
57. After an exhaustive review of the authorities from many jurisdictions, Blanchard J. in R. v. Shaheed summed up the arguments for the exclusion of improperly contained evidence, stating at pp. 418-419:-
A careful consideration of the experience in this country and the other broadly comparable jurisdictions is persuasive that the proper approach is to conduct a balancing exercise in which the fact that there has been a breach of the accused’s guaranteed right is a very important but not necessarily determinative factor. The breach of a right would be given considerable weight (the Privy Council in Mohammed called it a “cogent factor militating in favour of exclusion”). But it might, in the end, be held to be outweighed by the accumulation of other factors. In such a case, the conscientious carrying out of the balancing exercise will at least demonstrate that the right has been taken seriously.”
59. In The People (D.P.P.) v. Cooney  3 I.R. 205 the accused was identified by a number of witnesses as the man who had stabbed a person dead in a public house in Limerick. This identification of the accused was by means of an identification parade. This had taken place during the time when he was in unlawful custody in a Garda Station. That arose due to the fact that the Garda Superintendent in charge of his detention mistakenly believed, as a matter of law, that he could suspend the period of questioning of an arrested person where he had requested that it should continue beyond midnight, and thus extend the detention by reason thereof. A number of the witnesses from the public house identified the accused at this identification parade. This evidence was excluded at the trial by Costello J. The judge ruled, however, that an identification could be made, by these witnesses, of the accused in the dock. This they proceeded to do and the accused was convicted. In the Supreme Court, it was argued that the dock identifications would not have taken place but for the earlier identification at the identification parade where the accused was accidentally in unlawful custody. Further, it was argued that what was happening in the dock identification was recognition, at least in part, of the person identified at the earlier identification parade. The Supreme Court declined to accept these arguments and directed the rule as to the exclusion of evidence mistakenly obtained in breach of the accused’s constitutional rights only towards such evidence as actually resulted from it: the rule did not apply when no right of the accused was been infringed; in this case, the dock identification.
60. I note further that in Curtin v. Clerk of Dáil Éireann, the Supreme Court refused to declare that a computer which was unlawfully, but accidentally in that regard, resulting in Mr. Curtin’s acquittal, seized in relation to a child pornography investigation from a judge could never be the subject of a further official demand for production. The later demand was made by the Oireachtas committee investigating his fitness to be a judge. It would be difficult, if not impossible, to sort out the motive for demanding the computer. After all, the knowledge gleaned as to its contents in the investigation by the gardaí, following its earlier seizure, might be regarded as the predominant reason giving rise to the suspicion of possession of child pornography. The Oireachtas committee investigating the judge’s conduct, could hardly be said to be unaware of what the earlier, and unlawful, garda investigation had revealed. Murray C. stated at p. 72:-
“If the computer could have been and had been returned to his possession it could not be said that the exclusionary rule means it was forever immune, in all circumstances, from a lawful seizure or order for production.”
Separation of Powers
61. As has been seen, Article 24 of the Canadian Charter of Rights and Freedoms expressly provides for the exclusion of evidence. The New Zealand Charter has a similar provision. The Fourth Amendment to the United States Constitution, in providing for the immunity of citizens from unlawful searches and seizures, is the basis for rules of exclusion in that country. No provision of Bunreacht na hÉireann indicates the existence of any similar rule. At common law, as carried over under Article 50, evidence which had been unlawfully obtained remained admissible subject to the exercise of a very limited judicial discretion. That discretion applied only where, in the judge’s opinion, the prejudicial effect of the evidence outweighed its probative value or where confession evidence which was unfairly obtained was likely to be devalued as to its reliability. The courts have always maintained jurisdiction over the admissibility of confession statements under the maxim nemo tenere prodere se ipsum. This power continues to be maintained by the courts due to the fact that a confession statement was, of itself, sufficient to prove a case beyond reasonable doubt and because judicial experience had shown that false or unreliable admissions could easily be obtained, or might readily be corruptly manufactured.
62. Judicial discretion to invent laws, in our constitutional scheme, is limited or, perhaps, absent. Article 6 of Bunreacht na hÉireann provides:
2. The powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”
64. What powers to invent laws do the courts have? The courts are entitled to control the admissibility of confessions, as this power as always existed, and the courts are entitled to utter judicial warnings to juries based on their experience as this power also existed in 1937. Even that later power is strictly limited. Giving the judgment of the Supreme Court in The People (A.G.) v. Casey (No. 2)  I.R. 33 Kingsmill Moore J., at pp. 37 – 38, stated:-
Such accumulated judicial experience eventually tends to crystallise into established rules of judicial practice, accepted rules of law and statutory provisions. Thus the general directions which must be given in every case as to the onus of proof and the necessity of establishing guilt beyond reasonable doubt have arisen from experience of the fallibility of human testimony in general, whether due to mendacity, imperfect observation, auto-suggestion or other causes. The suggestibility and lack of responsibility of children of tender age find recognition in the statutory provision that their unsworn evidence shall not be sufficient to convict of an offence, unless corroborated by other material evidence implicating the accused, and even when such evidence is received under oath it is customary for judges to tell juries that they should not convict unless they have weighed the evidence with the most extreme care. Similarly the opportunities for giving false evidence afforded to an accomplice and to a person who alleges that a sexual offence has been committed against him or her, coupled with the extreme temptation to give false evidence frequently present in such cases, have given rise to the rule that a judge must warn the jury that it is always dangerous to convict on the evidence of such persons unless it is corroborated in some material particular implicating the accused.
The category of circumstances and special types of case which call for special directions and warnings from the trial judge cannot be considered as closed. Increased judicial experience, and indeed further psychological research, may extend it. It is submitted by Mr. Sorahan, counsel for the prisoner, that the time has come for such an extension, that accumulated experience has demonstrated the necessity for warning a jury as to the mistakes which can be made, and which have been made, in the identification by witnesses of persons accused and, in particular, that a jury should be told that an identification parade, though the best available method of confirming identification, is very far from infallible.
65. I have difficulty in accepting that the separation of powers doctrine allows the courts to invent rules whereby juries, or judges as triers of fact in criminal cases, are deprived, on a non-discretionary basis, of considering evidence which is inherently reliable. I am bound by the decision in The People (DPP) v. Kenny  2 I.R. 110. A rule which remorselessly excludes evidence obtained through an illegality occurring by a mistake does not commend itself to the proper ordering of society which is the purpose of the criminal law.
66. Any system of the exclusion of improperly obtained evidence must be implemented on the basis of a balancing of interests. The two most fundamental competing interests, in that regard, are those of society and the accused. I would also place the rights of the victim in the balance. I note, in writing this judgment, that the third anniversary of the March, 2004 train bombings in Madrid is being marked. That atrocity led to the death of 191 commuters making their way to work and was inspired, apparently, because of the involvement of Spain in a foreign policy with which an international terrorist organisation did not agree. It is entirely conceivable, were the same thing to occur in Ireland, that vital evidence that might lead to the conviction of the perpetrators might have been uncovered through the infringement of someone’s privacy as they spoke on a telephone or as a result of a comparison of DNA samples which the prosecution could not strictly prove were obtained by consent or through the proper exercise of statutory powers. The original test, as propounded by the Supreme Court in O’Brien’s case would have allowed for a balancing of the rights of parties. In particular, the gravity of the offence and the nature of the infringement by the State authorities would have been taken into account. The current rule, as set forth by the Supreme Court in Kenny’s case, automatically requires the exclusion of any evidence obtained through a mistake which had the accidental, and therefore unintended, result of infringing any constitutional right of one individual, namely the accused. The entire rational of the original Supreme Court decision in O’Brien’s case is undermined by Kenny’s case. The principle that extraordinary excusing circumstances can allow for the admission of evidence obtained in breach of a constitutional right can no longer be applied. It is an impossibility to make a mistake while, at the same time, acting to rescue a victim in peril or prevent the destruction of vital evidence. The whole rationale for a balanced rule with exceptions, set out in O’Brien’s case, has been replaced.
67. I would also note that in every other respect, where constitutional rights conflict, a balance is sought to be struck; In Re Article 26 of the Constitution and the Regulation of Information (Services Outside the State for the Termination of Pregnancy) Bill, 1995  1 IR 1. I should further note privileges in the law of evidence, whether State or diplomatic, are all now decided on a balancing test. Medical privilege can be argued for on analogous basis of resolving conflicting rights; see Simon P. O’Leary, March 2007 in the Bar Review (2007) 12(1) BR 33. There can be no doubt that exclusion is sometimes the only correct response to egregious police misconduct The admission of evidence obtained in flagrant violation of fundamental rights without excusing circumstances can amount to an attack on the very administration of justice. The problem identified, however, is the isolation of the rule of exclusion formulated in Kenny’s case from any principle of balance as it otherwise operates within the constitutional scheme.
68. In the result , I would answer the questions posed by the learned District judge as follows:
1. A suspicion which gives rise to reasonable cause for arrest does not have to be justified on the basis that every element of it arose solely on the basis of evidence that was properly obtained.
2. It follows that evidence resulting from a detention based upon a suspicion that cannot be proved as being founded entirely upon evidence lawfully obtained is not, for that reason, made unlawful.
3. Members of An Garda Síochána have the power to seek the cooperation of individuals in the investigation of crime. They are entitled to take fingerprints, clothing, or any other samples, with the consent of a citizen, be he a suspect or not.
4. A garda is entitled to seek the consent of a citizen, be he a suspect or not, in relation to the gathering of relevant samples.
5. The district court is bound by the decision of the Supreme Court in The People (DPP) v. Kenny  2 I.R. 110. However, that decision should not be extended as to its effects to require the prosecution to prove that every element of an investigation was entirely proper and in accordance with statutory powers. The rule requires the exclusion of evidence where, as result of a mistake, an identifiable constitutional right of the accused is infringed by the agents of the State.
6. A judge is entitled to assess the evidence in deciding whether there was consent to the taking of any samples proposed to be given in evidence.
7. If a judge is satisfied that evidence has been obtained lawfully, the decision in Kenny’s case does not apply and there is no judicial basis for the exclusion of evidence on the ground of the mistaken infringement of any constitutional right.