Abstract
AbstractThe changes to the Irish exclusionary rule introduced by the judgment in People (DPP) v JC mark an important watershed in the Irish law of evidence and Irish legal culture more generally. The case relaxed the exclusionary rule established in People (DPP) v Kenny, one of the strictest in the common law world, by creating an exception based on ‘inadvertence’. This paper examines the decision through the lens of legal culture, drawing in particular on Lawrence Friedman's distinction between ‘internal’ and ‘external’ legal culture to help understand the factors contributing to the decision. The paper argues that Friedman's concept and, in particular, the dialectic between internal and external legal culture, holds much utility at a micro as well as macro level, in interrogating the cultural logics at work in judicial decision-making.
Highlights
Introduction ‘DPP v JC has everything: law, literature, history, polemic and vast learning and emotion, horror, anger, even shame’
This paper argues for the utility of the concept, the division between internal and external legal culture, in understanding the ‘permeability of law to social demands’ at the micro level of judicial decision-making as well as the macro level envisaged by Friedman
Friedman’s concepts of internal and external legal culture are deployed to examine the backdrop to the JC decision, including criticism levelled at the exclusionary rule both within and outside of legal doctrine
Summary
Given the long debate over the meaning and usefulness of the legal culture concept, matters of definition and approach assume a particular importance. It is important to recognise that Friedman’s concept of legal culture is itself flexible and dynamic, and one which was developed originally to investigate the impact on modernity on law, as we move to a global legal culture based around the ideas of individualism, equality and rights. It is important to reiterate that the aim of the exercise is not to invoke the term as a call for more legality, as it is used on the ground in other jurisdictions, but rather to examine the JC decision through the lens of legal culture.24 To this end, the paper will engage in a close analysis of the background to and judgments in the JC decision and related case law, including review of the relevant legal and criminological literature, policy documents and reports. In this regard the analysis is somewhat hamstrung by a dearth of appellate decisions on the exclusionary rule post-JC, some insight into the impact of the decision on practice is provided by a recent report published by the Irish Council for Civil Liberties (ICCL).
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