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Evidence Improperly And Illegally Obtained Evidence Copy Notes

BCL Law Notes > Evidence I: Foundations Notes

This is an extract of our Evidence Improperly And Illegally Obtained Evidence Copy document, which we sell as part of our Evidence I: Foundations Notes collection written by the top tier of University College Dublin students.

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Relevance and admissibility:
- Evidence just had to be relevant traditionally
The state didn't really care what rules were broken. It would be admissible if relevant

One of the early cases: 1722 -

Bishop Atterbury's case
Letters written - the bishop said you can't use letters supposedly written by me, that you intercepted by the post. You need a warrant to intersect somebody's post without their consent.
They shouldn't be used because it was obtained illegallyHOL agreed with the prosecution that this would never mean you're not innocent.

Inclusionary rule v exclusionary rule

Inclusionary rule dominated until the 1960s - it didn't matter what was done in collecting evidence - still could be used at trial.

1722 - 1965
Exceptions:Evidence extracted via torture was inadmissible.

Kuruma v R 1955Admissibility is relevance.
If it is relevant it is admissible
The court is not concerned with how the evidence was obtained


The policing stage should be kept completely separate form trial stage. If the police break the law and they get evidence for guilt - there should be some sort of tribunal etc. for breach of the law.
They weren't condoning the illegality
- Keep the stages strictly separate and obtaining evidence has no effect on the evidence as used in trial

McGrath 1965'The court does not excuse, condone or encourage the illegality, it simply ignores it' at trial stage

Contradictory - ignoring it is, in effect, condoning it. 1965 - present

Logic or underpinning? Rationale behind it?•

It encourages the police to not follow proper procedures

Now - if you breach someone's rights, its useless- this is a powerful disincentive to police to break law and order.
Trying to get a conviction within the law against the right person.
You cant maintain the integrity of a legal system if illegality is rewarded.
Slight attitude change with keeping investigative stage and trial stage separate - they ARENT
separate. The 60s - this attitude emerged.

Mapp v OhioIf the authorities don't follow the law, why should anybody else?


The argument was never that the perpetrator would walk free, it'd be that the court should sue that person.

Byrne v Ireland 1972
One could not sue the state as a whole - but you could still potentially sue the investigator. But if you're In prison you cant spend the money. it also gives a shield to people that are wealthy.

Wilkes v Halifax 1763
Publisher who was succesfuly prosecuted for an article. This prosecution was based on an illegal search. A magistrate ordered a search that was completely illegal. The publisher sued and was awarded the money. the state/ crown immediately stepped in and gave the magistrate 4,000 pounds which was the amount he got.If you're confident enough of backing, they don't care about being sued.


Put them back into the position they would've been in had their rights not been breached.
This became the dominating principle.

Kuruma 1955Suggested that the solution when evidence is obtained illegally, is for the
Evidence to be admissible, but for the judge to decide or have discertion to exclude
Depending on the level of the breach

Last time. The judge was highly critical of kuruma CATEGORIES OF IMPROPERLY OBTAINED EVIDENCE
(A) Unconstitutionally
(B) Illegally
(C) Unfairly
(D) ?
A. Unconstitutionally obtained evidence

Inviolability of the dwelling
Right to legal advisor.
Standard positionbreach of constitutional rights - provided criteria satisfied- excluded.

O'Brien 1965
Introduced. Abolished the exclusionary rule - sc - 4:3.
Warrant to search for stolen goods. Address on search warrant was Captain's road - the correct address was Cashel's road. It was incorrect, and it was contended that the evidence be excluded.
Court allowed it. Difference with Gareth Mallon case. Incorrect address DID exist, whereas it was admissible in Gareth Mallon case because the incorrect address did not exist. Public interest in question. Test in that case was what a reasonable person would interpret the document to mean.
Test in this case - BALANCING TEST:Weighing the extent of the breach of the accused rights with the nature of the mistake
Evidence obtained…

To exclude evidence, these criteria must be satisfied:

1. 2.

3. 4.

Breach of constitutional right.
Conscious and deliberate
Causal link to breach and evidence
No extraordinary excusing circumstances.

Walsh J says > Unless the breach is 'deliberate and conscious' by gardai > the will be excluded
The language was detrimental as that meant every breach. Deliberate and conscious means what they say > judge meant with malicious intent. Thus, the exclusionary rule applies everywhere.Evidence not excluded in O'Brien. The second criterion not satisfied - not deliberate and conscious - it was 'accidental'. CONCIOUS AND DELIBERATE BREACH

• In the years following - the courts have asked - what does this mean
➢ Need the Gardai know they're breaching?
➢ Need it be mala fides?

Shaw 1977
Griffith JTo exclude evidence the authorities do not to be aware and acting in bad faith if they are breaching constitutional rights

Walsh JIf constitutional right Is breached, no matter if it was in good faith or bad faith, the evidence should be excluded.

Healy 1990
Police refused to allow suspect access to solicitor
The court recognised a new constitutional right of access to ones legal advisor. The Gardai had no idea as it had not been recognised yet. Took it a step further - actually said that evidence could be excluded even if a right has not been recognised until the case is being litigatedAs long as the act was intentional, the perpetrator need not know they were breaching the right.

Kenny 1990
Search warrant issued by a peace commissioner. Peace commissioner appointed by minister for justice. PC has certain limited powers. They can in certain circumstances issue warrants - under the relevant legislation that this case concerned, the PC was meant to be satisfied that the Gardai had reasonable grounds for suspecting the drugs. The PC here did not question them at all. He gave over the warrant without asking any questions they were meant to. The peace commissioner said he didn't know it was a breachIgnorance of the law is no defence
As long as the act itself was conscious and deliberate, knowledge or intention of breach of the constitutional rights is immaterial.

➢ Evidence excluded even if the breach is in good faith and even if the breach was not deliberate and conscious. So Kenny and Healy have changed/ reconciled the O'Brien decision.



Curtin v Dail Eireann.

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