Unlawfully obtained evidence

Information

The Irish Constitution guarantees the people of Ireland certain fundamental rights. Sometimes, the Gardai or the prosecution in a case can obtain evidence for a trial in breach of your fundamental rights. This means that the evidence has been got in circumstances where your constitutional rights have not been respected.

Rules

It has been held by the courts that evidence obtained in "deliberate and conscious" breach of your constitutional rights is inadmissible. "Deliberate and conscious" does not mean "intentionally" or "maliciously". It can include a situation where the breach of your constitutional rights was an inadvertent mistake.

An example of evidence obtained in breach of your constitutional rights would be evidence found in your dwelling by the Gardai without a search warrant. This is a breach of your constitutional right not to have your dwelling violated without your consent except in accordance with law. Evidence obtained on foot on an unlawful arrest or detention is also inadmissible.

In some situations, evidence may be obtained in breach of legislation rather than in breach of the Constitution. For example, you have no constitutional right to be told that you have a right to see a solicitor while you are in detention. However, the Criminal Justice Acts do require that your right to legal access be brought to your attention.

If you are not told about your right to see a solicitor and you then make a statement to the police, that evidence is not automatically inadmissible. It is up to the judge to decide whether or not to allow it to be introduced as evidence.

Further information

For more detailed information you should seek legal advice.

Page edited: 6 January 2014