Supreme Court: Exclusionary rule applies for CAB seizure of assets
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A father and son who had €20,000 in cash seized by the Criminal Assets Bureau have successfully argued that the cash should have been excluded from evidence as it was unconstitutionally obtained on foot of an invalid search warrant.
About this case:
- Judgment:
Ms Justice Iseult O’Malley emphasised that the Court should not lend its process to action on the part of a State agent or agents involving a deliberate and conscious breach of constitutional rights
Background
€20,000 in cash, in respect of which CAB obtained orders under the Proceeds of Crime Act 1996, was seized from the dwelling of Michael Murphy Junior on foot of an invalid search warrant and thus in breach of his constitutional rights.
The warrant had been issued under the provisions of s. 29 of the Offences Against the State Act 1939, as amended, before that section was held to be unconstitutional in Damache v. Director of Public Prosecutions 2 I.R. 266.
The appellants in this case, Michael Murphy Jr and Michael Murphy Senior, argued that the cash should have been excluded from evidence because it was unconstitutionally or illegally obtained.
CAB were successful in the High Court and in the Court of Appeal with their contention that any rule excluding evidence on that basis had no application in in rem proceedings.
The Court of Appeal held that the exclusionary rule was intended to prevent the deployment of unconstitutionally obtained evidence only in in personam proceedings against the person whose rights had been breached, and had no relevance in in rem proceedings where the issue before the court was the provenance of the property itself.
Grounds of Appeal
Leave to appeal was granted on the following points:
(i)Where a dwelling is entered other than in accordance with law, and that dwelling is not that of a person seeking to assert a constitutional right to the inviolability thereof, may evidence be excluded in proceedings concerning a person not dwelling therein?
(ii)Is there any rule of law requiring that evidence obtained in consequence of illegal entry into a dwelling should be excluded from civil proceedings, including proceedings in rem under the Proceeds of Crime Act 1996, as amended?
(iii)Is there any rule of law requiring the exclusion of evidence in civil proceedings obtained in consequence of a deliberate illegality, or a mistake amounting to an illegality, or in consequence of the deliberate and conscious violation of the rights of one of the parties?
Justice O’Malley said that couching the questions in terms of the exclusion of evidence did not accurately describe the central issue to be determined by the Court, as the evidence in the case was adduced by CAB and by the Murphys to respectively support or undermine the proposition that the money represented the proceeds of criminal activity.
Constitutional rights
Justice O’Malley emphasised that the exclusionary rule was not a free-standing rule purely for the benefit of defendants in either criminal or civil proceedings, and that while it originated in the context of a criminal trial, its broader purpose is to protect important constitutional rights and values, the integrity of the administration of justice, the need to encourage agents of the State to comply with the law or deter them from breaking it, and the constitutional obligation to protect and vindicate the rights of individuals.
Rejecting proposition that the principles apply only in relation to evidence sought to be deployed against the individual, Justice O’Malley stated that the authorities show that these rights and values are not confined to criminal trials and their effect is not confined to the exclusion of evidence, including:
In keeping with the analysis in Director of Public Prosecutions v. J.C. (No. 1) I.R. 417, Justice O’Malley said that the court should refuse the order sought by the CAB if the evidence establishes that the asset was seized in such circumstances that the court would be lending its process to action on the part of a State agent or agents involving a deliberate and conscious breach of constitutional rights.
A reckless or grossly negligent breach of the constitutional rights of the respondent should create a discretion, but with a presumption in favour of refusal of the order.
Where an alleged breach of rights concerns the actual asset sought to be seized, the issue is not its “exclusion”. Rather, the question for the court will be whether a breach of rights has occurred such that an order should not be made under the Act.
The five-judge Supreme Court unanimously allowed the appeal, and remitted the matter to the High Court for rehearing in light of this judgment.
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