The Fruit of the Poisonous Tree: The Exclusionary Rule in Regulatory Proceedings

The exception to the rule? A recent High Court Decision found evidence obtained unlawfully by a third party does not necessarily require automatic exclusion.

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Barry Donovan BL discusses why the exclusionary rule exists and how its application in the regulatory sphere is very different to those of criminal trials.

Clarifying Admissibility of Unlawfully Obtained Evidence

The rules on the admission of unlawfully obtained evidence have received significant clarification in the decision of Bradley J. in C. v. The Panel Of The Disciplinary Committee Of The Teaching Council and The Director Of The Teaching Council [2024] IEHC 575. Bradley J. held that there was no automatic exclusionary rule in regulatory proceedings where evidence had been obtained illegally by a third party, in this case being the Applicant’s  former partner, from unauthorised and/or non-consensual access to the Applicant’s social media account.

The Facts

The Applicant sought to challenge a decision of 21 June 2022 of a panel of the disciplinary committee of the Teaching Council at a preliminary hearing to deem screenshots of information from a mobile telephone messaging application admissible as evidence in a statutory investigation it was carrying out.

A number of salient facts were agreed.

The Applicant was a teacher who taught Fifth and Sixth Years. Her former partner informed two of her colleagues, who then informed the Principal of the school, of certain allegations that had been made to them by the Applicant’s former partner regarding the Applicant’s alleged relationship with a third party former student.

The Applicant’s former partner produced mobile telephone screenshots which allegedly showed that there had been daily interactions between the Applicant and the third party over a number of days.

The Applicant admitted that a “once-off” sexual encounter had taken place after meeting in a public house with the former student and there had been no contact since.

The Applicant’s former partner, in accessing the Applicant’s messaging application, had no permission or consent, express or implied, to access the Applicant’s account at any stage.

The Applicant further argued that there had been a breach of her privacy rights under Article 40.3.1 of the Constitution.  

The Test for Inadmissible Evidence in Regulatory Proceedings

Bradley J. went on to consider the applicable exclusionary rule for regulatory proceedings, making a number of key findings. He first considered the statutory context of the Teaching Council Act 2001, and decided that the seminal case of People (DPP) v JC [2017] 1 IR 417 did not apply to the proceedings at issue.

To ground this finding, he noted that JC applied to the exercise of powers of State actors and not private third parties and illustrated the direct connection between the scope of the exercise of these coercive powers by entities which comprise the force publique, such as An Garda Síochána, and that the Teaching Council could not be described as part of the force publique.

Relying on the decision of the Court of Appeal in The People (DPP) v. Gold [2021] IECA 160, Bradley J. held that there is no rule of automatic exclusion of unlawfully obtained evidence by a third party and different considerations apply in a scenario where the evidence in question was created without any State involvement and where there was no suggestion that the State was complicit in any alleged unconstitutional actions taken by a private party to introduce evidence. Critically, he held the exclusionary rule “does not ‘automatically’ apply to private or third party illegality”.

The Difference between Coercive State Powers and the Regulatory System

After setting out the rule above, Bradley J. embarked on discussing why the exclusionary rule exists, forcefully differentiating between state actors and the regulatory sphere.

First, he held an alleged third party breach as was the case here is of less significance than a State actor in the context of bringing the administration of justice into disrepute.

Second, he held that the law as it has developed in relation to criminal trials simply cannot apply in the same manner in all of the administration sanction contexts.

Finally, he held that in considering a case such as that before him, the key question was whether the evidence in question is so damaging to the integrity of the process that it should be excluded, and this would be the exception rather than the rule.

Conclusion | An exception to the rule

As can be seen from Bradley J.’s judgment, the JC test is inapplicable in the regulatory sphere. Evidence which can be described as the “fruit of the poisonous tree” will now come down to whether the evidence in question is so damaging to the integrity of the process that it should be excluded, and this would be the exception rather than the rule. It is clear from the judgment, fundamentally, that the rule in the regulatory sphere is very different to that of criminal trials.

The views expressed above are the author’s own and do not reflect the views of The Bar of Ireland.

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