Evidence that has been collected unlawfully

The Irish Constitution guarantees the people of Ireland certain fundamental rights.

Sometimes, the Gardaí or the prosecution in a case may get evidence for a trial in breach of your fundamental rights. This means that they got the evidence in circumstances where your constitutional rights were not respected.

Sometimes, the Garda may obtain evidence in circumstances that the court decides are not in line with other laws. In such cases, the evidence is called ‘unlawfully obtained’.

Evidence that is collected in a "deliberate and conscious" breach of your constitutional rights cannot be presented in court, except in exceptional circumstances.

Deliberate and conscious breach

"Deliberate and conscious" means that the Gardaí or officers involved knew that the evidence was collected in breach of your constitutional rights.

For example, if Gardaí found evidence when searching your home, but they knew they didn’t have a valid search warrant, they would have collected this evidence in breach of your constitutional rights.

Inadvertent breach

Evidence that is found inadvertently in breach of your constitutional rights may be allowed in court. This means the evidence obtained is found by accident or without intent. However, the prosecution must prove that the mistake made was inadvertent.

For example, if Gardaí found evidence when searching your home, but they didn't know there was a minor defect in the search warrant, then the evidence they find may possibly be allowed. It will be a decision for the judge.

In some situations, evidence may be found in breach of legislation or other laws but not in breach of the Constitution. This type of evidence is often called illegally-obtained evidence.

For example, the Constitution does not give the same protection to a business premises as it does to a person's home. However, the garda power to search a business premises often has to be set in law and any search must be conducted in line with that law.

If a garda search is conducted on a business premises not in line with the relevant law, any evidence gathered is not automatically inadmissible in court. It is up to the judge to decide if they will allow the evidence after considering all the surrounding circumstances.

You should get legal advice for more detailed information about unlawful collection of evidence. Read about how to find a solicitor.

Find out more about police powers of search in Ireland and Arrests in Ireland.