Human Rights, Constitutional Law and Exclusionary Safeguards in Ireland
5 THIS CHAPTER RECONSIDERS the rationale for excluding evidence obtained improperly by state officials in a criminal trial, with particular reference to the two jurisdictions in Ireland. Each of these jurisdictions has had its fair share of state officials prepared to flout the law in order to obtain evidence against those who are regarded not merely as criminals but as enemies of the state. The age-old forensic question of whether a court should be prepared to act upon evidence that has been procured by unlawful or immoral means reaches deeper into broader political issues concerning the aims of criminal justice and the moral basis for the criminal sanction.1 The question is often presented as a litmus test for differentiating between advocates of ‘crime control’ and ‘due process’ in the long-running debate between Packer’s two models of criminal process.2 Ireland provides an interesting test case for re-examining this question for a number of reasons. First of all, its recent history has posed the dilemma facing judges in a very stark form. During its recent troubled past3 there has been an unfortunate number of instances when security forces have flouted basic international human rights norms, most notably in Northern Ireland during a period of acute conflict in the 1970s, and the question of what the judiciary should do when faced with such disregard for basic standards is an important one. Twining reminds us that, despite the considerable academic literature on the question, there is a striking consensus that the judiciary and the law of evidence can make only a marginal contribution to what he considers to be the underlying problem often neglected by Evidence scholars.4 According to Twining, the key challenge lies in designing a system for ensuring that official behaviour in the pre-trial process conforms to general principles of decent and fair treatment for those who come into contact with the criminal justice system without hampering officials in carrying out their necessary tasks. Addressing this problem involves detailed consideration of issues that go far beyond the exclusion of evidence obtained in breach of recognised standards of decency and fairness. Excluding evidence is an imperfect means of controlling illegality by the executive and potentially diverts attention from what may be more effective means of controlling illegal or improper investigatory behaviour. For this reason the possible exclusion of evidence should be viewed as just one of a basket of measures that includes promulgating clear procedural rules, providing criminal, civil and disciplinary remedies and establishing training programmes, resources and incentives to motivate officials to establish best-practice investigative protocols. Twining’s argument for looking at the broader picture pertains as much, if not more, in times of emergency as in more peaceful times, for it is at points of gravest crisis that security forces may be most tempted to flout standards of decent treatment. Nonetheless, judicial responses to improperly obtained evidence in times of crisis can be of immense symbolic significance, certainly in terms of promoting public confidence or the lack of it in state institutions, whether or not officials’ behaviour is directly affected. During the last century of Irish history, there has at times been considerable hostility displayed by large sections of the community on both sides of the border towards fledgling state institutions struggling to establish their legitimacy. As we shall see in this chapter’s case study of the two neighbouring Irish jurisdictions, the judiciary can play a key role in shaping public perceptions of the state’s institutions, including, of course, the courts. On the one hand, there is a risk of alienating large sections of the community if criminal courts admit and act upon tainted evidence obtained in breach of the most basic human rights. On the other hand, there is a risk that failing to act on such evidence will result in the release of dangerous individuals back into the community to wreak more havoc. The stakes could not be higher. Within each of the two Irish jurisdictions, north and south, very different approaches have been taken to the problem, facilitating comparative analysis of the impact of different approaches on issues of compliance and legitimacy. The traditional common law rule, harking back to the eighteenth century, held that the manner in which evidence was obtained is irrelevant to the question of its admissibility. This attitude is immortalised in the famous dictum of Crompton J that ‘[i]t matters not how you get it: if you steal it even, it would be admissible’.5 In reply, various rationales have been advanced in common law jurisdictions over the years for the exclusion of improperly obtained evidence.6 First of all, the reliability rationale contends that exclusion is required to preclude the fact-finder acting on unreliable evidence. Another argument often advanced is that the prohibition on the use of evidence serves as a deterrent to investigators and prosecutors from repeating their improper conduct in the future.7 A third rationale argues that prohibiting the use of evidence obtained in breach of the accused’s fundamental rights, by excluding it from the trial, is necessary to vindicate the accused’s rights.8 A fourth rationale, which has acquired considerable following in recent times and which has particular salience for the legitimacy of state institutions, is that the use of improperly obtained evidence endangers judicial integrity as well as the moral authority of the verdict.9 In Northern Ireland, during the period when the Troubles were at their most acute in the 1970s and 1980s, the courts’ approach to admissibility tended to adopt the traditional common law approach of disregarding the way in which evidence was obtained (although, as we shall see, they made an exception for confessions and were able to develop the common law discretion permitting judges to exclude unfairly obtained evidence). In the south, the Republic of Ireland courts, by contrast, have relied on the Irish Constitution to elaborate one of the strictest exclusionary rules to be seen in the common law world when evidence has been obtained in breach of constitutional rights; albeit that, in recent years, more discretionary approaches have been advocated. In more peaceful times, the two systems, north and south, are being required to develop an approach towards exclusion which is closely aligned to the dictates of human rights law. As a result of the Good Friday/Belfast Agreement both jurisdictions committed themselves to human rights protection and the human rights legislation that has been put in place in both jurisdictions has required courts to take account of the jurisprudence of the European Court of Human Rights (ECtHR). Under the Agreement the Irish government committed itself to bringing forward measures that would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland, and it was envisaged that a joint committee of representatives of the two Human Rights Commissions which the governments agreed to establish would consider the possibility of establishing a charter reflecting and endorsing agreed measures for the protection of fundamental rights of everyone living in the island of Ireland.12 Section 2(1)(a) of the UK Human Rights Act 1998, which applies in Northern Ireland, provides that a court or tribunal determining a question which has arisen in connection with a right under the European Convention must take into account any judgment, decision, declaration or advisory opinion of the ECtHR, so far as, in the opinion of the court, it is relevant to the proceedings. In the Republic of Ireland a parallel but somewhat differently worded provision is found in section 4 of the European Convention on Human Rights Act 2003, which provides that judicial notice shall be taken of the Convention provisions and of any advisory opinion, declaration or judgment of the ECtHR and the court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, judgments and advisory opinions.13 Although this suggests a somewhat more attenuated relationship with Strasbourg jurisprudence than that required under the UK Human Rights Act, there is little doubt that, as in the United Kingdom, Strasbourg cases are increasingly being cited in arguments before the Irish courts.14 Whilst this jurisprudence does not strictly speaking mandate evidentiary exclusion in relation to all breaches of human rights (as Section 5 of this chapter explores), it does require that the courts retain a discretion to exclude evidence in the interests of a fair trial. This has been used by critics of the strict traditional exclusionary approach in the south to argue for a more discretionary judicial approach towards evidence obtained in breach of constitutional rights. Ever since the partition of Ireland in 1920, live or dormant emergency legislation has spilled over into the criminal justice systems of both parts of the island. As soon as the Irish Republican Army proclaimed that it did not accept partition, the new Irish Free State responded by a series of draconian emergency laws which gave military tribunals the power to preside over capital crimes. The Irish Constitution which replaced the Constitution of the Irish Free State in 1937 provided for more entrenched systems of judicial review but nevertheless enabled special non-jury courts to be established by legislation. The Offences Against the State Act 1939 made provision for a Special Criminal Court to come into operation when the government deemed the ordinary courts inadequate to secure the effective administration of justice. Proclamations to this effect were duly made for prolonged periods of time—1939–46, 1961–62 and 1972 to the present day.15 In the north, the old Stormont government’s response to security threats was to resort to detention without any form of trial at all under the infamous Special Powers legislation. After direct rule was imposed by the British government in 1972 non-jury Diplock courts were introduced into the criminal justice system. These remain in existence.16 The result of security legislation spill-over into the Irish criminal justice systems was that for many years law was, as Kilcommins and Vaughan have put it, ‘in the shadow of the gunman’.17 Powers designed purely for security were invested in the ordinary criminal justice agencies, which were given the responsibility for countering the security threat in a process known in the north as ‘criminalisation’.18 The ‘rule of law’ was replaced all too often by ‘rule by law’.19 For example, robberies entirely unconnected with political violence were dealt with in Northern Ireland’s non-jury Diplock courts.20 As well as ordinary criminal cases being brought into the emergency fold, powers justified by the emergency came to be used throughout the criminal justice system. Curtailment of the right of silence, for example, was justified by the need to break ‘the wall of silence’ confronting the police when questioning paramilitary suspects, but it was applied across the board in all criminal cases.21 Kilcommins and Vaughan remark that similar trends were to be seen in the south. Confronted with rising crime, authorities in the 1980s turned to legislation and practices intended for use against terrorist activity, such as emergency arrest powers for ordinary crime, the retention of the non-jury Special Criminal Court for non-paramilitary activities, seizing criminal assets without requiring a conviction, and use of ‘super-grass’ testimony in the ordinary courts. Another consequence of this security seepage into the criminal justice system was a deliberate flouting of the rule of law by security forces at critical times when the state was most under threat. This was most evident in the period during the 1970s in Northern Ireland when security forces resorted to heavy-handed interrogation techniques against suspects in order to obtain confessions,22 but in the Republic of Ireland there is also evidence of malpractice by the Garda Siochána23 in the course of criminal investigations, especially into organised crime. Cases have come to light involving threats made and inducements offered to suspects, false information being inserted into interview notes, and allegations of ill-treatment reported by the European Committee for the Prevention of Torture (CPT) after its visits to Ireland in 1993, 1998 and 2002.24 Reflecting the familiar common law approach towards improperly obtained evidence, Irish courts have traditionally excluded involuntary confessions but have otherwise adopted the inclusionary policy, encapsulated in Crompton J’s dictum, that relevant evidence would still be admissible even if it had been stolen.25 The voluntariness rule for confessions can be traced back to the eighteenth century, although it does not appear to have made its mark in Ireland until the beginning of the 1800s. There was considerable uncertainty at first about its application.26 The exclusionary rule was originally justified on the ground of reliability, since an involuntary confession may not be true. It is only in more recent years that other rationales have been accepted, most noticeably that the rule is necessary to buttress the privilege against self-incrimination, which requires that accused persons have a right to choose not to answer questions put by those in authority.27 This rationale comes close to embracing the ‘vindication of rights’ rationale for excluding evidence (in this context, the right not to be compelled to answer questions). But reliability concerns better account for the more inclusionary approach adopted towards other evidence, proceeding on the assumption that criminal trials should focus on the probative value of the evidence against the accused. If it is relevant and reliable, probative evidence should be admitted. Alongside the voluntariness rule, the Irish judges developed a number of rules, known as the ‘Judges’ Rules’, governing the circumstances in which police officers could question a person and requiring cautions to be administered to suspects at particular stages of the criminal process. It is not entirely clear when exactly these Rules came to be applied in Ireland28 and notably they did not have the force of law. The Irish courts followed the English practice of holding that a breach of the Rules does not result in the automatic exclusion of any subsequently obtained statement. Also like their English counterparts, the Irish judges insisted that they retained a discretion to exclude such evidence. Quite what the basis was for exercising this discretion remained obscure, however. It does not appear to have been invoked on any regular basis in favour of exclusion.29 In addition, the Irish courts on both sides of the border have from time to time recognised a general discretion to exclude evidence on grounds of unfairness,30 although it is difficult to find examples outside the area of testimonial evidence where it has been exercised in favour of an accused.31 A major stumbling-block has again been the lack of authoritative guidance as to how this discretion should be exercised.32 We return to the concept of fairness below in the discussion of constitutional law and human rights in Sections 4 and 5 of this chapter. The broadly inclusionary approach that the Irish courts have traditionally taken towards improperly obtained evidence was indicative of a ‘hands off’ attitude by judges in criminal trials towards lapses in proper pre-trial procedures, even when officials’ misconduct breached the judges’ own rules. It is an example of what Ashworth has described as the ‘separation thesis’33 whereby, according to Lord Diplock in R v Sang,34 trial judges are concerned only with how evidence is used by the prosecution at the trial, not with the ‘separate’ question of how the evidence was procured in the first place. The House of Lords in Sang appeared to limit discretionary exclusion to confessions or other incriminating evidence obtained from the accused, apparently a concession to the voluntariness principle and the privilege against self-incrimination. But with this limited exception, the general view was that redress for pre-trial wrongs done to the accused must be sought elsewhere than in the criminal trial. Linked to this is the view that it is not the court’s function to supervise the conduct of the police, a proposition somewhat contradicted by the fact that earlier in the century the judges were asked to promulgate Judges’ Rules which appeared to do precisely that. Lord Diplock played his own part in reinforcing the separation thesis in the Northern Ireland context after direct rule was imposed in 1972 when he led a commission of inquiry proposing changes to the administration of justice in order to deal more effectively with terrorism without using internment under the Special Powers Act.35 Whilst the Diplock Commission is best known for inaugurating a system of non-jury trial (known colloquially as the ‘Diplock courts’), it was also particularly concerned that the Northern Irish courts’ strict application of the voluntariness rule was hampering the course of justice and pressurising the authorities to resort to administrative detention in preference to trial. Throughout the course of the twentieth century the Irish courts had extended the meaning of voluntariness beyond its core common law meaning of the absence of threats or promises, so that the category of ‘involuntary’ statements now included confessions obtained under oppression where the accused’s free will had been sapped.36 This extension had particular salience for the conditions under which questioning was conducted in the detention centres set up to obtain information from terrorist suspects at the height of the Northern Ireland Troubles. In one case in 1972 an accused’s confession was excluded specifically on the ground of ‘oppression’ when an accused had been made to sit on a chair in a cubicle for long periods between questioning in circumstances that sapped ‘that free will which must exist before a confession is voluntary’.37 Shortly afterwards the courts went further in excluding confessions where the conduct of the officers who questioned the accused was not in itself oppressive, but the entire interrogation set-up was regarded as operating oppressively, in the sense that it was systematically intended to obtain information from persons who would otherwise have been unwilling to give it.38 Though in Sang Lord Diplock was later to concede that the privilege against self-incrimination should qualify the general separation thesis, in the Northern Ireland context he appeared to criticise the Northern Irish courts for taking such a strict approach towards the admissibility of confessions in the prevailing emergency situation. The solution recommended by the Commission was to lower the ‘voluntariness’ threshold for the admissibility of confessions in cases scheduled to be tried without a jury under the emergency legislation to the minimal standard of an absence of torture, inhuman or degrading treatment (tracking ECHR Article 3). The Diplock Commission reasoned that, while courts could not act upon evidence obtained by unconscionable means such as torture, inhuman or degrading treatment, they should be much less solicitous in regulating how evidence was obtained in the emergency situation that existed at the time. This recommendation was enacted in section 6 of the Northern Ireland (Emergency Provisions) Act 1973. Section 6 immediately posed a dilemma for the courts when confronted with confessions that would have been involuntary at common law but did not fall foul of the Article 3 baseline. The courts responded to the new admissibility regime by re-affirming that there is always a discretion to exclude admissible evidence in the interests of justice and by suggesting that the involuntariness of the confession at common law could be a ground for the exercise of the discretion to exclude confessions.39 At the same time the courts recognised that they must not subvert the will of Parliament by re-introducing the voluntariness standard by the backdoor, and consequently felt constrained about excluding confessions just because they would have been inadmissible at common law.40 This sent a clear signal that only the gravest forms of ill-treatment would be likely to result in exclusion, effectively giving a green light to more coercive interrogation than was acceptable at common law. Much damage was done to the reputation of the Diplock courts when they convicted large numbers of accused on the basis of confessions obtained through dubious means.41 In recent years, a more robust attitude has been taken by the Northern Irish courts towards the exclusion of evidence. Although the Diplock courts have remained on the statute book,42 increasingly cases now proceed under the Police and Criminal Evidence Act regime, known (as in England and Wales) as PACE, which was introduced in Northern Ireland for ordinary criminal cases in 1989. Article 74 of the Police and Criminal Evidence (NI) Order 1988 replaced the voluntariness standard with a rule which requires confessions to be excluded where they have been obtained by oppression or in circumstances which might make them unreliable. But it was Article 76 of the 1988 Order that was to have a more profound effect on the discretionary exclusion of evidence. Paralleling section 78 of PACE in England and Wales, Article 76 directs that courts may reject evidence on which the prosecution proposes to rely if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. This approach was extended to Diplock cases in 2003, after the ECHR Article 3-derived standard for the admissibility of confessions was finally abandoned.43 Article 76 of PACE appeared to disavow the ‘separation’ thesis in accepting that the circumstances in which evidence was obtained were relevant to the fairness of the proceedings as a whole. One of the difficulties with such a test, however, is that the Northern Irish courts, like their English counterparts, have been unable to provide a clear and convincing rationale to explain when evidence should be excluded where there has been some unfairness or impropriety in the investigative process. Where there have been ‘significant or substantial’ breaches of the Codes of Practice under PACE (which replaced the old Judges’ Rules), the courts have indicated that this should trigger exclusion.44 Yet this begs the question as to which breaches are ‘significant and substantial’. Dennis suggests that the concept of ‘fairness’ has not been analysed in any depth in any of the cases. The concept of ‘fairness’ would seem wide enough to accommodate any of the goals commonly advanced for the exclusionary rule, including reliability, eliminating prejudice, vindicating the accused’s rights, promoting police propriety and protecting the integrity of the criminal process.45 Although the courts in the Republic of Ireland continue to apply the common law rule of voluntariness in relation to confessions, they have increasingly developed an explicitly constitutional approach towards the exclusion of evidence. An exclusionary rule in relation to improperly obtained evidence was first established in People (AG) v O’Brien46 in the mid-1960s. The Court of Criminal Appeal followed the traditional common law approach, citing Kuruma v R,47
Human Rights, Constitutional Law and Exclusionary Safeguards in Ireland
INTRODUCTION—DEBATING THE EXCLUSIONARY REMEDY
1. THE IRISH CONTEXT
2. THE COMMON LAW APPROACH TOWARDS EXCLUSION OF EVIDENCE IN IRELAND
3. EVOLUTION OF A LEGISLATIVE FRAMEWORK IN NORTHERN IRELAND
4. THE IRISH REPUBLIC’S CONSTITUTIONAL APPROACH TO EXCLUDING EVIDENCE