Commission Appears Before Supreme Court in Important Case Concerning the Admissibility of Evidence in Criminal Proceedings

The Irish Human Rights and Equality Commission appeared before the Supreme Court on 25 and 26 April as amicus curiae (or ‘friend of the court’) at a hearing that relates to the admissibility of evidence and the right to a fair trial.

The cases of The People (at the suit of the DPP) vs Caolan Smyth and The People (at the suit of the DPP) vs Gary McAreavey centre on the admissibility of telephone data as evidence in a criminal trial, in circumstances where the data was retained and accessed under a piece of legislation that has been held to be in breach of European Union law.

In this hearing, the Court of Appeal endorsed the reasoning of the Special Criminal Court, which held that any interference with a right to privacy must be balanced against the competing interest of the common good. In doing so, the Court of Appeal ruled that the evidence should have been admitted. A question arose as to whether this approach was consistent with the exclusionary rule of evidence, previously established by the Supreme Court in DPP v JC. This rule provides that evidence that has been obtained in breach of a person’s constitutional rights should not be used against them in a criminal trial.

In its role as amicus curiae, the Commission addressed several important human rights issues arising in the case, including that breaches of rights under the Charter of Fundamental Rights of the European Union must be treated in the same way as breaches of the Constitution for the purposes of admitting or excluding unlawfully obtained evidence. This is so because of the EU law principles of equivalence and effectiveness.

The Commission also argued that, in the circumstances, the test set out in JC was the appropriate test for determining the admissibility of evidence to be applied. In the Commission’s view, the reasoning of the lower courts in this case, if adopted, would undermine the JC test and give rise to concerns about the protection of the right to privacy.

Sinéad Gibney, Chief Commissioner of the Irish Human Rights and Equality Commission stated,

 “We are grateful to the Supreme Court for allowing IHREC to act as amicus in this important case, which raises significant issues around the admissibility of evidence and the appropriate test to be applied in the context of phone data and the right to privacy.”


For further information, please contact:
Sarah Clarkin, IHREC Communications Manager,
01 852 9641 / 087 468 7760
Follow us on twitter @_IHREC

Editor’s Note

The Principle of Equivalence in EU law ensures that national remedies for the enforcement of EU rights cannot be less favourable than similar actions under national law.

The Principle of Effectiveness in EU law obliges Member States to ensure that claims based on EU law are not impossible or excessively difficult to enforce in practice.

Amicus Curiae

The function of amicus curiae is an important legal power of the Commission. It allows us to address the court in a non-partisan role, on issues concerning human rights and equality that have wider consequences for society in general. Recently, we have used this power to assist the courts on various human rights and equality issues in the public interest, including on the right to a fair trial, immigration, the use of search warrants and anti-social behaviour orders.

You can read our Legal Submissions on this case by clicking the link below

Submissions of Amicus Curiae in the cases of The People (at the suit of the DPP) vs Caolan Smyth and The People (at the suit of the DPP) vs Gary McAreavey

Irish Human Rights and Equality Commission

The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.

The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.