Bitten by the bug

In DPP v Hutch and Others, the permitting of evidence to be admitted into the trial – found by the court to have been unlawfully obtained ab initio – is a matter of great concern to practising criminal lawyers, says Dara Robinson SC.

Criminal trials, especially in serious cases, tend to attract publicity to a greater extent than most litigation. The more sensational the case, the more attention it gets.

It is generally the subject matter of the trial, rather than the evidential content, that draws the crowds, and few cases garner more casual onlookers than the one currently in progress at the non-jury Special Criminal Court, which has a number of exceptional strands.

The main accused, Gerard Hutch, is alleged to be a senior gangland figure: the charge is one of murder; the crime took place in broad daylight, in front of multiple eye-witnesses at a boxing weigh-in; certain of the assailants were dressed in fake garda uniforms; and so on. As crimes go, it was an offence wholly out of the ‘ordinary’.

The trial itself, taking place several years later, has been given added spice by the decision of an erstwhile accused, Jonathan Dowdall, a former Sinn Féin councillor, to admit his role in the organisation of the shooting and to turn State witness and go into witness protection. So far, so much tabloid fodder.

Far-reaching decision?

But what piqued the interest of criminal lawyers, who tend not to pay much attention to trials in which they are not involved, is a decision of the three-person court – a District Court judge, one from the Circuit Court, and presided over (as required) by a High Court judge, in this case Judge Tara Burns.

The decision is potentially far-reaching, although it should be noted that the ‘Special’ is in fact only a first-instance tribunal. It concerns the admissibility of illegally obtained evidence.

As part of the investigation, gardaí obtained a warrant (an ‘authorisation’) from the District Court, pursuant to the Criminal Justice (Surveillance) Act 2009. This entitled them to plant a listening device in a particular car.

They had anticipated that Messrs Hutch and Dowdall would be in the car together, and they hoped to eavesdrop on any conversations. The device was duly planted, the conversations monitored, and the gardaí struck evidential gold.

The only problem was that much of the recorded talk took place on the Northern side of the border and, as such, was out of the jurisdiction. Needless to say, this led to a defence application at the trial to exclude the evidence on the basis that the gardaí are only permitted to carry out their functions within the republic.

Excluding evidence

Applications to exclude evidence – for all sorts of reasons – are part and parcel of criminal trials. Over the decades, a distinction has emerged between ‘illegally’ and ‘unconstitutionally’ obtained evidence – breaches in the latter category of cases generally leading to a ruling of inadmissibility; the former being much more problematic.

However, in a controversial 2015 Supreme Court case, DPP v JC, a major dent was put in the so-called ‘exclusionary rule’, whereby unconstitutionally obtained evidence had almost always been automatically ruled out.

It was notable that JC was by no means a unanimous judgment of the Supreme Court and, further, that the majority observed – unhelpfully in my view – that new principles would have to be developed on a ‘case-by-case’ basis.

Back to the Special Criminal Court: the defence made an application to exclude the evidence obtained using the listening device. They argued that the application for the device made to the District Court was not in accordance with the Criminal Justice (Surveillance) Act 2009 and that anything derived from the use of the device should not be permitted in evidence.

This argument was dismissed peremptorily – and correctly – by the court. However, the defence went on to pitch for the content of the conversations to be ruled inadmissible, noting that the act suggested, at various points, that it was intended only for use within the State.

The prosecution predictably contended for the opposite interpretation, suggesting (among other propositions) that the act referred to lawful collection of evidence in any ‘place’, which was defined as including sea-going vessels and aircraft.

Unlawfully obtained

After lengthy argument and due judicial consideration, the court ruled that the evidence collected via the impugned procedure had, as a matter of law, been unlawfully obtained, insofar as much of the conversational exchange had taken place outside of the jurisdiction.

The court emphasised, among other things, that a legal procedure – ‘mutual legal assistance’ – exists for the collection of evidence in foreign jurisdictions; that the gardaí cannot exercise their powers outside the State; and that, quoting the Supreme Court in earlier cases, had the legislature intended the writ of the District Court authorisation to extend outside the State, it should, and would, have done so “with irresistible clarity”. One would have thought that was game, set, and match for the defence. But one would have been very wrong.

In its ruling, the court went on to consider the ‘saving’ provisions of section 14 of the act. This section is a sort of mopping-up exercise, and provides for evidence to be admitted in certain circumstances, notwithstanding “any error or omission on the face of the record” of the authorisation.

The section provides a number of matters to be taken into consideration when applying the saver, such as whether the error was “serious or merely technical in nature”, circumstances of urgency, the nature of any rights infringed, and so on.

‘Operational’ failures

The section also provides for ‘operational’ failures – An Garda Síochána failing to comply with any requirement attached to the authorisation; again, the same matters – technical issues, circumstances of urgency and others – are to be taken into account by the court when assessing the consequences for admissibility on foot of any purported breaches.

While not expressly so articulating, section 14 appears to contemplate relatively minor failures on the part of the court issuing the authorisation or on the part of the gardaí in acting on foot of it.

But what section 14 does not do, and it is submitted, could not do, is seek to address the situation that has arisen in this case, being that the authorisation issued by the District Court could never have allowed the gardaí to operate outside the State, a scenario found by the trial court to be unlawful.

The section relied on in the court’s ruling sets out to tidy up minor failures by State actors – gardaí or the District Court – but does not appear in any way to address the fundamental jurisdictional issue that has arisen in the trial and, in reality, nor could it.

As such, the consideration of factors such as urgency or the nature of the infringed rights, dealt with at some length in the ruling, simply never should have been in the mix.

Worrying possibility

As is the way with criminal trials, when the ruling went against the defence, they had to shrug their shoulders and get on with it. If Mr Hutch is convicted – and the trial is ongoing – this point will no doubt form part of any appeal. But as with the JC case, the ruling raises a worrying possibility – that State actors operate to a lower legal standard than citizens.

This proposition was articulated clearly by the sadly now deceased Judge Adrian Hardiman in JC. In a blistering and heartfelt dissenting opinion, he described the idea that the State could rely on ignorance or inadvertence as “profoundly alarming and regrettable”, given that such indulgence – exemplified in the dictum ignorantia legis neminem excusat – did not extend to ordinary citizens.

No citizen can offer a defence in a criminal trial (no matter how minor) by suggesting that they were unaware of the relevant legal provision or how it affected their behaviour.

Part of Judge Hardiman’s thinking was that excluding unlawfully obtained evidence tended to act as a brake on any temptation by An Garda Síochána to break the rules. Unfortunately, allowing manifestly unlawfully obtained evidence to be admitted in a criminal trial is a further step in the wrong direction. Not alone does the practice allow a different legal burden on different actors, it provides further uncertainty for any accused person and for their advisers.

Of course, it should be noted that, as aforementioned, the Special Criminal Court is merely a court of trial, although the rulings of any High Court judge will inevitably carry significant weight. That being so, it seems obvious that any appeal process will flesh out this issue, possibly as far as the Supreme Court.

Other legal and evidential issues raised in the trial have not been met with the same attendant publicity – and may even raise more profound issues – but without the fanfare that greeted this seemingly idiosyncratic ruling.

However, the permitting of evidence, found by the court to have been unlawfully obtained ab initio, to be admitted into the trial is a matter of great concern to practising criminal lawyers.

Read and print a PDF of this article here.