Access to Legal Advisor

Cases

Lavery v. Member in Charge, Carrickmacross Garda Station

, Supreme Court, February 23, 1999

 

Judgment delivered on the 23rd day of February, 1999, by O’Flaherty J. [Hamilton CJ, Barrington, Keane and Murphy JJ concurring]

1. On the 15th August, 1998, a bomb planted in a car exploded in the town of Omagh, Co. Tyrone, killing upwards of 29 people and injuring as many as 400.

2. Consequent on this terrorist outrage, the Oireachtas enacted the Offences Against the State (Amendment) Act, 1998. These proceedings are concerned to a degree with the operation and scope of s. 2 and s. 5 of the Act, in particular.

3. Section 2 provides:-

“(1) Where in any proceedings against a person for an offence under section 21 of [the Offences Against the State Act,] 1939, evidence is given that the accused at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the

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offence, failed to answer any question material to the investigation of the offence, then the court in determining whether to send forward the accused for trial or whether there is a case to answer and the court (or subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to the offence, but a person shall not be convicted of the offence solely on an inference drawn from such a failure.

(2) Subsection (1) shall not have effect unless the accused was told in ordinary language when being questioned what the effect of such a failure might be.

(3) Nothing in this section shall, in any proceedings –

(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged, in so far as evidence thereof would be admissible apart from this section, or

(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could be properly drawn apart from this section.

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(4) In this section –

(a) references to any question material to the investigation include references to any question requesting the accused to give a frill account of his or her movements, actions, activities or associations during any specified period,

(b) references to a failure to answer include references to the giving of an answer that is false or misleading and references to the silence or other reaction of the accused shall be construed accordingly.

(5) This section shall not apply in relation to failure to answer a question if the failure occurred before the passing of this Act.”

4. Section 5 is to similar effect except that it applies to a wider range of offences, viz, all offences under the Offences Against the State Acts, scheduled offences under the legislation and “an offence arising out of the same set of facts as these two types of offence.”

5. On the morning of 30th September, 1998, at 7.00 am Deaglan Lavery, the respondent, was arrested at his home by members of the Garda Síochána under s. 30 of the Offences Against the State Act, 1939, on suspicion of being a

 

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member of an unlawful organisation. He was brought to Carrickmacross Garda Station, Co. Monaghan.

6. His solicitor, Mr. James MacGuill, was contacted by the gardaí sometime prior to 8.00 am. He had a telephone conversation with the respondent and took his instructions and he deposed that he gave him general advices: in particular advices as to the new obligations which arise under the provisions of the 1998 Act. He wrote to the Superintendent of the Garda Síochána at Carrickmacross by fax requesting particulars of the allegations against the respondent and indicating that he would be prepared to have his interviews audio-visually recorded. Mr. MacGuill requested that if this was not possible that complete notes of any interview held with his client be taken and be made available to the respondent and himself prior to the end of Mr. Lavery’s detention.

7. Mr. MacGuill attended at Carrickmacross Garda Station at 3.15 pm that afternoon. There he met Superintendent Noel White who was in charge of the investigation. Mr. MacGuill deposed that prior to advising the respondent he wished to know whether or not he had received his fax of that morning and if there was a reply to it. Superintendent White said he had received the fax but that there was no reply to it. Mr. MacGuill pointed out the difficulty that he would now have in advising the respondent without knowing whether or not it

 

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was stated that any question considered material to the investigation of the offence had been put to the respondent and that he had failed to answer or had answered in a false or misleading way. The Superintendent indicated that at that point in time no such question had been put to the respondent. Mr. MacGuill enquired as to whether there was any evidence in existence which might require an explanation as is envisaged in s. 5 of the 1998 Act. The Superintendent said that there was no such evidence “at that stage”. Mr. MacGuill requested from Superintendent White the copies of any interview notes which had been taken. He refused to make them available. Mr. MacGuill said that his client was most anxious that any interview being held with him would be fully and completely recorded and that his preference would be that it should be audio-visually recorded. The Superintendent said that this would involve Mr. Lavery being transferred to another station which had those facilities; Mr. MacGuill indicated that Mr. Lavery would be prepared to consent to such a transfer.

8. Mr. MacGuill deposed that he then met with his client who told him that he had been interviewed throughout that day by detective gardaí, but that no notes whatever had been taken of the interviews. The interviews consisted of allegations being put to him, principally that he had stolen a vehicle which was subsequently used to plant the bomb in Omagh. He had consistently denied the

 

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allegations but this had not been recorded in any fashion – so the respondent asserted.

9. The respondent’s detention was extended at 11.40 pm on the 30th September for a further period of 24 hours commencing at 7.00 am on 1st October by certificate of Superintendent White.

10. The following day, 1st October, Mr. MacGuill again attended on Mr. Lavery at Carrickmacross Garda Station. He deposed that the respondent had said that notes were being taken of interviews but that these notes did not record all the questions and answers that had been given in the course of the interviews. Other matters being said during the interviews were not being recorded either. Mr. MacGuill said that Mr. Lavery had questioned the relevant detectives as to why this should be so and he was informed that there was no obligation on them to record everything that was said or all questions put and answered in the memo of interview. The respondent was requested and did sign these memos of interview.

11. At 9.30 pm on 1st October at a sitting of the Carrickmacross District Court (Judge Flan Brennan presiding) an application was made to extend the period of the detention of the respondent for a further period of 24 hours, pursuant to s. 30 (4) and (4)(A) of the Offences Against the State Act, 1939, as inserted by s. 10 of the 1998 Act.

 

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12. At the hearing in the District Court, Mr. MacGuill renewed his request to see the notes of the interviews. The Superintendent refused to hand them over and he claimed privilege in relation to them. The District Judge held with the State and made the order sought. To dispose of this point of a claim of privilege, privilege could not be claimed for these notes. Clearly either the Superintendent is entitled to withhold the notes until the end of the investigation or he is not. But this has nothing to do with privilege.

13. It should be said, too, that the Superintendent indicated during the hearing in the High Court that he was willing that the accused should see the notes and then would be free to consult once more with Mr. MacGuill, but the State took the stance that they should not be required to hand over the notes to the solicitor.

14. The point at issue in these proceedings is a net one. It is not in doubt that s. 30 permits the arrest and detention of suspected persons, where a member of the Garda Síochána suspects that a person has committed or is about to commit, or is or has been concerned in the commission of an offence under any section or sub-section of the Act of 1939 (including amending Acts) or an offence which, for the time being, is a scheduled offence for the purposes of Part V of the 1939 Act, or whom he suspects of carrying a document in relation to the commission or the intended commission of any such offence, or whom he

 

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suspects of being in possession of information in relation to the commission or intended commission of any such offence as aforesaid. Section 52 of the Act of 1939 permits a person who has been lawfully arrested under s. 30 to be questioned in respect of the matters specified in that section and makes it an offence to refuse to give the information sought, or to give information which is false or misleading. It is beyond debate that a person thus detained has a constitutional right to access to a legal advisor: see the Court’s judgments in Re Emergency Powers Bill , 1976 [1977] IR 159; The People .v. Shaw [1982] IR 1 and The People (D.P.P.) .v. Pringle 2 Frewen 57 . However, the right of access is one of reasonable access. As stated in the judgment of the Court of Criminal Appeal in the Pringle case, at p. 96:-

“This Court is satisfied that the Garda Síochána have a right to interrogate a person in lawful custody provided that such interrogation is carried out in a fair and reasonable manner. The Court is also satisfied, as has been clearly established, that a person in lawful custody is entitled to reasonable (EMPHASIS ADDED) access to his lawyer or solicitor. These two rights must, to some extent, be balanced and there are no grounds for holding that either right can or should be exercised to the unreasonable exclusion of the other.”

15. While there is no suggestion that Mr. MacGuill was not given reasonable access in the understood sense of that term, the complaint before the High

 

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16. Court, brought pursuant to Article 40, s. 4 of the Constitution, was that the new legislation required that the solicitor should be given access to the documents that he required and, once he was refused, the respondent’s detention became unlawful and he should be set free.

17. When the matter came for hearing before the High Court (McGuinness J.) on the evening of 2nd October, 1998, she held with the submissions advanced on behalf of Mr. Lavery and ordered his release. It should be noted, in passing, that while a complaint had been made at the garda station that no notes had been taken of the earlier interviews, this suggestion was not put to Superintendent White in the course of his evidence before the learned High Court judge.

18. The State appeals to this Court. The question for resolution is this: Does such deprivation, as the solicitor for the detained man suffered in this case mean that the detention of the respondent was rendered unlawful? Without any doubt, if a person in custody is denied blanket access to legal advice, or if he is subjected to ill treatment by way of assaults, for example, then that would render his detention unlawful.

19. However, the gardaí must be allowed to exercise their powers of interrogation as they think right, provided they act reasonably. Counsel for the State submitted to the High Court judge that in effect what Mr. MacGuill was

 

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seeking was that the gardaí should give him regular updates and running accounts of the progress of their investigations and that this was going too far. I agree. The solicitor is not entitled to be present at the interviews. Neither was it open to the respondent, or his solicitor, to prescribe the manner by which the interviews might be conducted, or where. The point of whether there were adequate notes taken of any interview might, or might not, be of significance if there was a subsequent trial.

20. I think all the members of the Court were struck by the apparent inconsistency in the State’s attitude: that although the detained man could see the notes of the interviews, his solicitor could not. While this may have been a somewhat incongruous course of conduct, is does not render the detention unlawful. It should be noted, too, that of course if a charge had followed on the detention both the accused and his legal advisors would have been entitled to all relevant documentation. This matter was explored comprehensively in the recent decision of this court in Ward . v. Special Criminal Court [1998] 2 ILRM 493.

21. I hold that the respondent’s detention was in accordance with law and that he should not have been released under Article 40 of the Constitution. I would, accordingly, reverse the order made by the learned High Court judge. It will be clear, as occurred in Re Zwann [1981] ILRM 333 , that the result of this

 

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appeal will not have any practical effect as far as the relevant investigation was concerned. As laid down in Zwann, while it is true that this Court will not entertain questions which are purely hypothetical or academic and will not hear complaints made by persons who lack a real interest or locus standi in the question raised, the matter raised on appeal is of real concern to the State and to those charged with the duty of applying the Offences Against the State Acts.

DPP -v- Glen Creed

[2009] IECCA 95 (31 July 2009)

THE COURT OF CRIMINAL APPEAL

Record No. 161/2008

Geoghegan J.
Budd J.
Edwards J.
THE PEOPLE AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS

Respondent
and

GLEN CREED

Appellant

Judgment of the Court delivered by Mr. Justice Geoghegan on the 31st day of July 2009

The above-named applicant was convicted in Naas Circuit Court of two offences i.e. robbery and unauthorised use of a mechanically propelled vehicle. While there is some ambiguity in the notice of application for leave to appeal to this court as to whether the appeal sought is against both convictions, the reality is that only the proposed appeal against the robbery conviction was pursued in court.

 

There are a number of grounds in the proposed appeal but for all practical purposes, there were three issues raised and argued.

 

1. That the case should have been withdrawn from the jury because allegedly, there were significant gaps in the chain of evidence and that the jury in convicting must necessarily have engaged in speculation.

2. That the Garda Síochána deprived the applicant of his constitutional right of access to a solicitor thereby rendering his entire detention unlawful and the procuring of any evidence during that detention inadmissible.

3. That the trial judge erred in the manner in which the jury were directed but in particular in relation to how they should treat exhibits including clothing which in turn was significant for the purposes of DNA evidence.

This court has found no difficulty in rejecting the application in so far as it is based on the first and third of those issues. The second requires more careful and nuanced consideration.

 

With regard to the first issue, it was not in dispute that there were gaps in the chain of evidence but there was strong circumstantial evidence against the applicant and the court would reject the proposition that the jury would not have been entitled to convict upon that evidence and in particular that the jury in convicting would have had to engage in speculation. A neat summary of the salient facts was contained in the written submissions of the respondent. That summary reads as follows:

“The evidence before the court had established that a man wearing dark clothes, variously described as a dark tracksuit, had participated with other men in the robbery at the Ambassador Hotel on the morning of the 21st October, 2006. During the robbery two members of staff, Daragh Byrne and Filip Miller, were attacked and injured. Daragh Byrne sustained an injury to his right eyebrow area which required stitches… Filip Miller was stabbed in the back and also required stitches.

The robbers were seen fleeing the scene in a Jaguar XK8 car registration number 00D107 174. That car was found crashed on the Blessington Road after 11 a.m. that morning. A man who identified himself as Anthony Creed of Bawnlee, Tallaght… was taken from that car and was described at that location as wearing a dark tracksuit by Joseph Hobson …, Paul Mulraney … and as wearing dark clothing by Tony Gregg … It is common case that this man was in fact the appellant, Glen Creed. He was transferred by ambulance to Tallaght Hospital. Sinead Creed, the appellant’s sister, was given a bag of clothing at Tallaght Hospital by an unidentified member of staff at Tallaght Hospital. Later that day she took that bag from the boot of her sister’s car and handed it to D/Garda Eddie Trant. The clothing retrieved from the bag consisted of a dark jacket … a grey Reebok sweatshirt, a yellow and grey tee-shirt and black tracksuit bottoms, together with a pair of black socks,… and which it is submitted amounts to an outfit.

The dark jacket was analysed and found to contain blood stains from which the DNA of Daragh Byrne was extracted. Daragh Byrne’s DNA was also found on a grey Reebok sweatshirt …contained in that bag. Glen Creed’s DNA was found on the yellow and grey tee-shirt also retrieved from the same bag … Daragh Byrne had testified at …that the man who attacked him with a screwdriver was wearing navy tracksuit bottoms, a baseball cap, a scarf and a tracksuit top.”

The gaps in the quotation with the dots merely represent page numbers and exhibit numbers etc. The court agrees with both parties that the principles outlined in R. v. Galbraith [1981] 1 WLR are the principles to be applied in this jurisdiction also. That is now well-established. But in applying those principles, the court is perfectly satisfied that the learned trial judge, His Honour Judge Michael White, was correct in allowing the evidence go to the jury and that it was open to the jury to convict.

 

As the second issue is somewhat more troublesome, the court thinks it appropriate to express its view on the third issue at this point in the judgment. First of all, the court does not accept that there was any defect in the learned trial judge’s charge to the jury. Secondly, there was no requisition made in relation to any perceived defect of the kind, the subject of the complaint. In a number of cases in recent years but in particular in The People (DPP) v. Cronin (No. 2) [2006] 4 IR 329, it has been made clear by both the Court of Criminal Appeal, and in the particular case cited by the Supreme Court, that it is only in circumstances where the appeal court is of the view that due to some error or mistake a fundamental injustice had occurred, the court should permit a point to be made in relation to a judge’s charge which had not been raised by way of requisition at the trial. In so far therefore as this application is based on the third of the issues which had been identified, the court refuses application for leave.

As already indicated, the second issue required more careful scrutiny. In particular it involved careful consideration of a number of cases included in the two books of authorities submitted to the court. Special regard was had by the court to The People v. Healy [1990] 2 I.R. 73 which established that the right of an arrested person to reasonable access to a solicitor is a constitutional right, the decision of the Supreme Court embodied in the judgment of Keane C.J. in The People v. Buck [2002] 2 IR 268, a later decision of the Supreme Court contained in the judgment of McCracken J. in The People v. O’Brien [2005] 2 IR 206 and what is probably the most recent relevant decision that of Edwards J. in the High Court in The People v. McCrea [2009] IEHC.

 

It would seem to the court that there are a number of related though partly overlapping principles to be considered in relation to what happened in this case. Before indicating what they are, a brief summary of the relevant facts is necessary. The applicant was arrested under section 4 of the Criminal Justice Act, 1984 on the night of Saturday, 21st October, 2006 and brought to Naas Garda Station. He requested the services of a particular local solicitor, namely, Ms. Gráinne Malone. Garda Slevin who was the member in charge made a number of attempts to contact Ms. Malone. These attempts were subsequently heavily and legitimately criticised because what Garda Slevin did was telephone the office of Ms. Malone a few times late on a Saturday night on the office landline. There was no answer and not only did he not make any efforts to obtain a mobile or other viable number but, contrary to the custody regulations, he never informed the applicant that he had failed to make contact. If Garda Slevin had done so, an alternative solicitor might have been suggested. On the face of it, this behaviour by the garda seemed to show a lack of common sense and proper care in efforts to procure the named solicitor and in failing to seek alternative instructions (if any) from the prisoner. Nevertheless, however, the trial judge whilst acknowledging those failures held that they were not conscious and deliberate, and therefore, did not constitute a deliberate and conscious failure to vindicate the applicant’s constitutional rights. The court considers that it was open to the learned trial judge to make that finding. It is not in any way contrary to the now somewhat controversial principle established in The People v. Kenny [1990] 2 I.R. 110 and followed in other cases that subjective factors like motive or personal knowledge are not relevant when considering whether infringement of a constitutional right is conscious and deliberate. What happened in that case and indeed what happened in the latest relevant decision which has been mentioned above, that of Edwards J. in The People v. McCrea was very different from what happened in this particular case.

 

In Kenny’s case the garda deliberately entered the dwelling house of another person without authorisation. It was held that the fact that he may have thought he had authorisation or that it never occurred to him that he was breaching a constitutional right was entirely irrelevant. He was not pushed across the door of the house. He deliberately entered the house. That was sufficient.

 

In a very different set of facts which arose in the McCrea case, the relevant garda officer requested the arrested person to provide a breath sample whereupon there was an immediate request to consult a solicitor. Edwards J. found as follows:

“I found that Sergeant Synnott declined this request due to a mistaken belief that she would not be legally be entitled to make another request of the accused if she broke the intoxilyser machine’s cycle in order to allow him to consult with a solicitor.”
It is quite clear therefore that in that case there was a deliberate refusal (albeit for a perceived good reason) not to procure the solicitor. Motive or reason, however, was held to be irrelevant. What was relevant was the deliberate refusal to procure the solicitor and that clearly constituted a deliberate and conscious failure to vindicate the arrested man’s constitutional rights. In this particular case, as indeed the learned trial judge found, the relevant garda, Garda Slevin, did not deliberately deprive the applicant of his right to a solicitor.

Notwithstanding that this was the finding of the learned judge, he nevertheless went on to hold that he would exercise his discretion against admitting any of the answers by the applicant given under questioning by the gardaí in Naas Station on that occasion. In the light of that ruling, it is not necessary to consider too deeply what the precise status of the detention was. Even after quite a number of decisions including Supreme Court cases it can be argued that the position is not entirely clear. However, some limited consideration has to be given to this issue because an important piece of forensic evidence i.e. a hair sample was taken from the applicant’s head for the purposes of DNA analysis. This is where the overlapping principles come in. A deliberate and conscious violation of rights may indeed render a detention wholly unlawful and render any evidence taken as a consequence of it, inadmissible. Where, however, there has been no deliberate and conscious violation of the constitutional right to access to a solicitor but where reasonable efforts have not been made to obtain a solicitor and the accused has not acquiesced in that situation, it must then be a matter of discretion for the trial judge to rule as to whether any particular evidence obtained in that context should be admitted or not. It does not at all follow that because there was no deliberate and conscious violation of the right, that it would be a fair procedure towards the accused to admit evidence obtained in the absence of a solicitor when reasonable efforts have not been made to obtain one. In considering the exercise of the discretion, the judge would also have to bear in mind that under the Custody Regulations, the relevant garda is required to inform the accused that the required solicitor is unobtainable. As already adverted to, that was not done in this case. However, it cannot be said that the ruling of the learned trial judge admitting the evidence as to the hair sample was wrong in law. The hair sample was taken under authorisation from the Superintendent not on the night that the applicant was arrested but on the following morning, the Sunday. At that stage a quite different garda was dealing with him. The applicant never questioned the absence of the requested solicitor or made an enquiry in that connection of any kind. That particular garda considered that all those matters had been matters for Garda Slevin the night before and there being no request of him, he went ahead in the ordinary way. Given that under the Criminal Justice (Forensic Evidence) Act, 1990, the hair sample could be procured without consent, it would have been reasonable to assume that the applicant did not require a solicitor in connection with it. His request for a solicitor the previous evening was clearly related to the questioning which he was about to undergo.

 

Accordingly, the court considers that the learned judge conducted a fair trial and that his rulings were in order. Leave to appeal will be refused.

Minister for Justice, Equality and Law Reform v Ollsen

[2008] I.E.H.C. 37, Peart J.

Judgment Title: MJELR -v- Ollsen

Neutral Citation: [2008] IEHC 37

High Court Record Number: 2006 166 EXT

Date of Delivery: 20 February 2008

Court: High Court

Composition of Court: Peart J.

Judgment by: Peart J.

Status of Judgment: Approved

 

 

Judgment of Mr Justice Michael Peart delivered on the 20th day of February 2008:

The surrender of the respondent is sought by the Kingdom of Sweden pursuant to a European arrest warrant issued there on the 5th August 2006. This warrant was endorsed for execution by order of the High Court on the 19th December 2006, and the respondent was duly arrested here on foot of it on the 5th July 2007. As required by s. 13 of the European Arrest Warrant Act, 2003, as amended, he was brought before the Court following his arrest and was remanded from time to time pending the hearing of this application for an order of surrender under the provisions of s. 16 of the Act.

His surrender is sought, according to the applicant, so that he can be prosecuted in Sweden in respect of four offences. In respect of these offences, the issuing judicial authority has in paragraph (e) of the warrant ticked two categories of offences, namely ‘arson’ and ‘organised or armed robbery’ in order to indicate that the offences for which his surrender is sought are offences within the categories of offences referred to in Article 2.2 of the Framework Decision, and therefore offences in respect of which double criminality or correspondence does not need to be verified. Even if these boxes had not been ticked to so indicate, there is no doubt that the alleged acts of the respondent which are said to give rise to these four offences would, if done in this jurisdiction, have given rise to offences here. No issue has been raised in relation to double criminality/correspondence in the Points of Opposition filed and delivered on behalf of the respondent.

No issue has been raised in relation to the identity of the respondent, and the Court is in any event satisfied, as it must be, that the person who was arrested and brought before the Court following arrest on the 5th July 2007 is the person in respect of whom this European arrest warrant has been issued.

The respondent has raised a number of objections to the making of an order for his surrender, but subject to reaching conclusions on these objections, I am satisfied that there is no reason to refuse surrender under sections 21A, 22, 23 or 24 of the Act, and I am satisfied also that his surrender is not prohibited by the provisions of Part III of the Act, or the Framework decision.

Points of Objection:

1. The Attorney General Scheme:

Under this heading of objection the respondent submits that this State is in breach of one of its obligations under the Framework Decision, namely to provide the respondent with an adequate and fair means to pay the reasonable legal and other costs incurred in meeting the application for his surrender, and in this regard it is submitted that the provision or availability of the Attorney General Scheme (“the Scheme”) as a means of discharging his legal costs is inadequate to meet that obligation. Accordingly it is submitted that this Court should not entertain the application for his surrender to the requesting state, because by virtue of the provisions of s. 10 of the Act a person may be surrendered only where the provisions of the Act are met, and where the State’s obligations under the Framework Decision are complied with.

Derek Kenneally SC submits on behalf of the respondent that it is accepted by the applicant that the respondent is not a person of sufficient means to discharge his own legal costs, and that the applicant accordingly is obliged to provide him with legal representation which is adequate and fair; and that a breach of the ‘equality of arms’ principle arises where the respondent can have his legal costs discharged only under the Scheme, given its nature, namely an ex gratia scheme. Indeed the applicant has not sought to dispute that the applicant’s means are insufficient to enable him to provide his own representation on this application.

It is submitted that the Scheme takes no account of the actual costs and other fees incurred by the respondent in his opposition to the order sought, since the level of fees discharged under the Scheme is based on the fees paid to the applicant’s Counsel, and that it is in the nature of an ex gratia payment provided on the basis of expediency and at the absolute discretion of the Attorney General.

In this regard the respondent has stated that for the purpose of resisting this application for his surrender he has been required to obtain legal opinion and an affidavit from a Swedish lawyer in relation to Swedish law, without any guarantee that the cost of so doing will be met under the Scheme, and in circumstances where, by contrast, the applicant can obtain such opinions either at no cost at all or at a cost which will be met out of public funds. This is said to create an unfairness which breaches the principle of equality of arms, particularly in circumstances where the respondent’s solicitor has sought an undertaking that his reasonable costs will be discharged and where the applicant has refused to provide such an undertaking. The respondent submits that he is unfairly disadvantaged as a result.

The respondent submits that this State is in breach of its obligations under Article 11.2 of the Framework Decision, as well as Article 6 of the European Convention on Human Rights (“the Convention”), and Articles 40.4.1 and 40.3.1-2 of Bunreacht na h-Eireann (“the Constitution”).

Article 11.2 of the Framework Decision provides:

“11.2. A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State.” (my emphasis)

Section 13 (4) of the Act provides:

(4) A person arrested under a European arrest warrant shall, upon his or her arrest, be informed of his or her right to—
consent to his or her being surrendered to the issuing state under section 15,
obtain, or be provided with, professional legal advice and representation, and
where appropriate, obtain, or be provided with, the services of an interpreter. (my emphasis)

Mr Kenneally has referred also to the provisions of Article 6.3 of the Convention which, inter alia, provides that “everybody charged with a criminal offence has the … minimum right … to have adequate time and facilities for the preparation of his defence [and] to defend himself in person or through legal Counsel of his or her choosing or, if he has not sufficient means to pay for legal assistance to be given it free when the interests of justice so require …” (my emphasis)

The Scheme itself has been produced to the Court, and it is relevant to set out some of the contents of the document:

“6. The costs payable to the solicitor, and the fees payable to counsel are at most those which would be payable in a case governed by the Criminal Justice (Legal Aid) Regulations current for the time being, applied mutatis mutandis”

It provides also that where the Court makes a recommendation for payment of costs and fees under the Scheme, “the Attorney General is not bound by the recommendation of the Court”.

Mr Kenneally submits that such a discretionary basis of payment cannot be an adequate discharge by the State of its obligations pursuant to the Framework Decision, especially where a respondent has no remedy available to him/her if the Attorney General was to exercise his absolute discretion to refuse to make a payment even though the Court had made a recommendation in that regard.

He has referred to the judgment of Gannon J. in the High Court and that of O’Higgins CJ in the Supreme Court in State (Healy) v. Donoghue [1976] IR 325, and to the judgment of the European Court of Human Rights in Airey v. Ireland, 9th October 1979 regarding the State’s obligation to provide legal aid in particular circumstances, and it is submitted the Scheme is not such a system of legal aid given its ex gratia and non-statutory nature.

It is submitted that payment under the Scheme is made only in respect of actual court time and takes no or no adequate account of time spent by Counsel and solicitor in the preparation of the case, and in this way a respondent is disadvantaged in a way which does not hamper the lawyers acting for the applicant, who has all the resources of the State at his disposal. It is submitted that the rate of such payments as are made falls far short of the economic cost that work. James MacGuill, the respondent’s solicitor, has stated in an affidavit that it is his experience over many years of practice as a solicitor that the level of payment made under the Scheme falls far short of what would be assessed by the Taxing Master for the same work. He states at paragraph 9 of that affidavit:

“… It is a particularly pernicious aspect of the Attorney General’s Scheme in that lawyers are forced into a position of either only carrying out work for which they will be paid, to the obvious detriment of their client, or discharging their professional obligations fully to their own economic cost.”

In support of these submissions the respondent has also filed an affidavit sworn by a Legal Costs Accountant, Cormac Breathnach. He avers to the fact that in another case (Aamond No.2) where the respondent successfully resisted an application for his surrender, costs were taxed pursuant to the order of the High Court, the respondent’s solicitor’s costs being taxed in the sum of €20,428.55 plus VAT, Senior Counsel’s fees in the sum of €12,000 plus VAT, and Junior Counsel’s fees in the sum of €10,333.33 plus VAT.

Mr Breathnach states that if senior counsel’s fees were discharged under the Scheme, they would have been in the sum of just €4000, with the same sum being paid to the solicitor, and two thirds of that sum to junior counsel, thereby creating a considerable shortfall between what is paid under the Scheme and what was achieved under taxation. He considers the shortfall in such cases to be in the region of about 75%.

The solicitors acting for the respondent have corresponded with the Chief State Solicitor’s office in relation to these concerns. The Chief State Solicitor has noted in that correspondence that the respondent has not sought to have his costs discharged under the Scheme, and has on a couple of occasions invited the respondent to do so, and has made the point that neither the Scheme nor the statutory Legal Aid Scheme are intended to provide taxed costs, but that payments under the Scheme can in certain cases include the cost of expert witnesses, though the point is made also that this has not arisen before in the context of a European arrest warrant.

The point is made in a letter dated 21st September 2007 that the recoverability of expert witness expenses will depend on the nature of the evidence and legal argument presented, and it is denied that payment under the Scheme is confined to court time only. It is stated in that letter also that the Scheme, if applied for, fulfils the State’s obligations under the framework Decision and that it is adequate to afford the respondent the opportunity to contest the application for his surrender.

In the event that this Court considers this State not to be in breach of its obligations, then the respondent seeks a declaration that the Framework Decision and the Act are unconstitutional and in breach of the Convention.

Because the constitutionality of the Act and the Framework decision is raised by the respondent on this application, the Attorney General was put on notice of the application. In fact, Plenary proceedings are issued in order to address the constitutionality issue.

David Barniville SC has appeared on behalf of the Attorney General and it is convenient to deal with his submissions on this point before dealing with the other points of objection raised by the respondent. Shane Murphy SC for the applicant makes essentially the same submissions in relation to this point of objection.

Mr Barniville submits that the right of the respondent to a European arrest warrant to be provided with professional legal advice and representation arises only from the provisions of s. 13(4) of the Act by which the State has given effect to the right in that regard specified in Article 11.2 of the Framework Decision already referred to, and not from the Constitution. It is not a right, it is submitted, which is guaranteed under the Constitution or the Convention since a respondent is not engaged in the defence against a criminal charge, but simply meeting an application for his surrender from this State to another State. As such, the situation of a respondent is to be distinguished from an accused person facing charges.

In so far as the respondent has relied upon the judgments in State (Healy) v. Donoghue [supra] Mr Barniville submits that the principles derived therefrom are not simply transferable to a respondent under a European arrest warrant. However, he submits also that were the two situations to be considered analogous, it is nevertheless the situation that the right to legal aid is not to be seen as an open-ended right for any representation which the respondent might choose to have, and that it is accepted, even in relation to legal aid, that an accused may be assigned a solicitor from the ‘legal aid panel’, being solicitors who have thereby indicated that they are prepared to take on such cases, and be remunerated under the provisions of that scheme. In this regard, Mr Barniville has referred to the judgment of Barr J. in The State (Freeman) v. Connellan [1986] IR. 433.

The Court was also referred to the judgment of Laffoy J. in Carmody v. Minister for Justice [2005] 2 ILRM 1 in which the learned judge found that there was no breach of constitutional rights where only a solicitor was assigned, rather than solicitor and counsel. During the course of her judgment, Laffoy J. stated also that the fact that there may in terms of lawyers be a numerical imbalance or divergence of legal qualification between the prosecution team and the defence team, does not disadvantage the accused person to the extent that his constitutional guarantee to a fair trial is imperilled, unless it can be shown that the lawyer defending him cannot do so effectively.

Accordingly it is submitted that in the present case there ahs been no breach of any constitutional right.

In so far as the respondent objects to his surrender on the basis that certain rights under the Convention will be infringed, the applicant and the Attorney General submit in relation to this particular point of objection (i.e. the Attorney General Scheme) that it is clear that as far as Articles 3, 5 and 8 of the Convention are concerned, none is engaged in relation to provision of legal advice and representation. In so far as these Articles may be relevantly argued in relation to other points of objection, they are dealt with later in relation to same. In my view, it is unnecessary to dwell on those particular articles at the moment. They are not relevant to this issue under consideration.

But in relation to Article 6 of the Convention, Mr Barniville has submitted that the surrender procedure under a European arrest warrant does not equate to a trial for an offence, and that as such, Article 6 is not engaged. But, he submits, even if it were to be found to be so engaged, the minimum rights guarantee is met by the provision of legal assistance under the Scheme, and the right guaranteed is not to have provided to the respondent the same level of representation as the applicant, and that there are no mandatory levels of such assistance. He has referred to a number of judgments of the European Court of Human Rights in support of this submission. He refers also to the judgment of Murray CJ in Attorney General v. Parke, unreported, Supreme Court, 6th December 2004 wherein he stated that the inquiry by the Court in an extradition application is not adversarial in nature, but rather is ‘sui generis’, and not in the nature of a criminal trial.

In any event, Mr Barniville submits that the Scheme by reference to its own terms is a method of payment of reasonable legal fees for persons who cannot be considered able to pay for their own advice and representation, and that it is a reasonable payment in applications on foot a European arrest warrant, and the use of the Scheme in such applications cannot be seen to constitute a breach of minimum rights under Article 6 of the Convention, even if that Article is engaged in such applications at all. He submits that it is simply inappropriate and wrong to compare the level of fees gained upon taxation of costs with payment under the Scheme. I agree that such a comparison is irrelevant, even though I accept as a fact that in most if not all cases, the costs achieved on taxation will most likely exceed by a considerable margin those paid under the Scheme.

Mr Barniville points to the fact in any event that in the present case the respondent has declined to have his fees met under the Scheme, even though the applicant has considered that he meets the criteria for its application, and has invited the applicant to apply for a recommendation in that regard. He points also to the fact that the respondent has nonetheless had available to him the expert services of an experienced solicitor and both senior and junior counsel, and clearly has suffered no disadvantage. He submits that in such circumstances the respondent lacks ‘locus standi’ to raise the issue on this application.

I prefer not to reach conclusions on this point merely on the locus standi point.

However, it seems to me that there may well be merit in that point, and that a respondent to an application to surrender would have to show not simply that he had no means of obtaining and paying for his own legal costs, but also establish that he had been unable to obtain the services of a solicitor who was prepared to take the case on the basis of being remunerated under the Scheme. Such a respondent would necessarily stand before the Court with no lawyer to represent him, and the Court might in such circumstances be obliged to delay the hearing of the application for his surrender until such time as that legal advice and representation was provided. But that is entirely different from saying that the State is in breach of its obligations because the lawyers who have been engaged, on whatever basis, are unhappy with the level of their remuneration under the Scheme.

I am fully cognizant of what is probably the reality in the present case, and that a deliberate decision was taken at the outset by the present solicitor and counsel not to seek to have their fees discharged under the Scheme, lest by so doing the respondent would indeed be found to lack locus standi, or at least that their arguments and submissions might be considered to be weaker.

I am presuming, and I suggest safely so, that by not seeking a recommendation for the Scheme in circumstances where if they done so it would certainly have been granted, the respondent’s lawyers are preferring to run the risk that they will not recover any costs in relation to this case should none of the points of objection succeed, and so that this point can be the more easily argued.

The Court cannot blind itself to the fact that for many years now lawyers have found the Scheme unsatisfactory both in terms of the level of remuneration thereunder, its discretionary and non-statutory nature, and the speed, or perhaps more correctly the lack of it, by which payment is actually received. But while there may be disquiet in relation to the way the Scheme operates, the fact is that every day of the week lawyers appear before the High Court on applications such as Habeas Corpus, Bail, EAW applications, and judicial review, and those Counsel are always instructed by solicitors. In other words there appears to be no shortage of lawyers in both branches of the profession who are prepared to act for clients on the basis of remuneration under the Scheme, in spite of what they perceive as its shortcomings. Until that situation ceases it appears to me that the Scheme works in the sense that it ensures that persons who have an entitlement to legal representation before a Court, whether in a criminal matter or otherwise, and a matter such as the present case, are professionally represented. Indeed in the very large number, perhaps over a hundred, of EAW cases which I have dealt with since 1st January 2004, when the Act first came into effect, I have not known a case in which at the very earliest stage following arrest a respondent has been unable to obtain, or even had difficulty obtaining the services of a solicitor with experience in this area of work, and on all occasions also Counsel have been retained. I can think of no such case.

It seems to me that if lawyers wish to have the Scheme improved or even replaced, there are channels available within which that objective can be argued for, and possibly advanced, but this Court is not the appropriate forum in which to advance that cause on the basis that a respondent’s constitutional and Convention rights are infringed by the level of fees payable under the Scheme, and by attempting to establish that the State is in breach of its Framework Decision obligations, or its constitutional and Convention obligations.

However, having said that much I will retu8rn to some of the issues raised.

In my view, a respondent has no absolute right under either the Constitution or the Convention to the services of the solicitor and counsel of his choice, or simply of a solicitor of his choice. As it happens in this case, the respondent has the lawyers of his choice. He has been at no disadvantage whatsoever in having his objections raised and argued fully. In my view the basis of that retainer is of no relevance.

The State’s obligation under the Framework Decision, as reflected in and given effect to by s. 13(4) is to ensure that on the hearing of the application for surrender the respondent has either had the opportunity to obtain professional legal advice, or where he cannot afford so to do, be provided with such advice and representation. The applicant and the Attorney General are in my view correct when they submit that the right of the respondent in this regard derives not from the Constitution or the Convention, but from the State’s obligations under the Framework Decision. Even if this was not the case, and the right arises under the Constitution, I am satisfied that the availability of the Scheme is a sufficient of any such obligation, since it can be seen to provide successfully a means by which relevant impecunious litigants can have representation before the Court. Different considerations would arise if for whatever reason the Scheme did not secure that representation. Lawyers from both branches of the profession are free to choose not to take a case on the basis of that form and level of remuneration. But there is no evidence that such a choice is made by so many that it has become ineffective as a means of achieving legal representation in cases to which the Scheme applies for those entitled to it.

As far as Article 6 of the Convention is alleged to be breached by the State by the application of the Scheme, I should for the sake of completeness refer to the judgment of the European Court of Human Rights in Mamatkulov v. Turkey, ECHR, 4th February 2005 which was referred to in argument before me. In that case, the extradition of the applicant was sought from Turkey to Uzbekistan, and it was argued, inter alia, on behalf of Mr Mamatkulov that the extradition application heard in Turkey was an unfair hearing and in violation of the applicant’s rights under Article 6 of the Convention. The facts of the case are of course completely different to the present case, but it is important to note that in its judgment, the Grand Chamber, in finding no such violation, stated at paras 82-83:

“The Court reiterates that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6.1 of the Convention ……… Consequently, Article 6.1 of the Convention is not applicable in the instant case.”

This Court is obliged to have regard to the jurisprudence of that Court, and I am satisfied therefore, even though I have reached conclusions in any event on the merits of the issue raised, that the respondent is not entitled to rely upon the rights guaranteed in Article 6 for the purpose of raising objection to an order for his surrender.

2. Warrant has been issued for the purpose of continuing an investigation in Sweden, and not for the purpose of prosecuting the respondent for the offences in question:

Before addressing the applicant’s submissions under this point of objection, I should refer to the fact that in the opening paragraph of the warrant the prescribed text for the warrant has been followed exactly by stating that the surrender of the respondent is requested “for the purpose of conducting a criminal prosecution….”

Relevant also are the provisions of s. 21A of the Act, as amended, namely:
21A.-(1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state. (my emphasis)

(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.” (my emphasis)

It is this presumption which the applicant seeks to rebut by reference to an affidavit as to Swedish law sworn by a Swedish lawyer, Hans Ostberg. He is the respondent’s lawyer in Sweden who has been appointed by the Swedish court to represent him in relation to these alleged charges.

The thrust of this affidavit is that the prosecutor in Sweden has not as yet made any decision to prosecute the respondent, and that his surrender is sought in reality so that a process of investigation and interrogation of the respondent can continue in order to reach a point when it can then be decided whether or not a decision to prosecute him should be made.

Mr Ostberg states that in September 2007 he had a telephone conversation with the prosecutor responsible for preparing the prosecution case against the respondent, namely Ann-Christine Maderud, and that as a result of that conversation the situation is that the status of the respondent at the moment is that “the respondent is on probable cause suspected of committing serious crimes and the court has decided that the respondent should be taken into custody”. He goes on to state that he is satisfied that the respondent’s surrender is not being sought for the purpose of standing trial, and that no decision has yet been made that he should stand trial. Rather, he states, the surrender is sought “only for the purpose of a continuing investigation and not for the purpose of the respondent being charged with or standing trial in respect of any offence…”.

Ms. Maderud has sworn a replying affidavit in relation to what Mr Ostberg has stated. She states that under Swedish law a pre-trial investigation is initiated to find out who is reasonably suspected of the crime and if there is sufficient evidence to prosecute him. That pre-trial investigation is initiated by the police, and as soon as a person is “reasonably suspected of the crime” the prosecutor takes over the case where a serious crime is involved, as in this case. She goes on to explain that “it is the prosecutor’s duty to prosecute everyone who is suspected of having committed a crime, on the prosecutor’s judgment that there is enough evidence to allow the court to find the suspect guilty”.

She then states that on the 2nd August 2006 the District court found the respondent to be suspected “on probable cause” of the offences in question, and ordered his arrest since he was not in court on that date, although he was legally represented at the court by a colleague of Mr Ostberg who on the previous day had been assigned as the respondent’s public defender free of charge. She states that on 29th August 2006 Mr Ostberg, who is in the same law firm as that colleague, was assigned to replace him, and Mr Ostberg has since continued to represent him.

At paragraph 5 of her affidavit she explains further the procedure under Swedish law as follows:

“The next step in the procedure requires the presence of the accused. Under Swedish law the investigation process can only be formally concluded when the accused is present. The accused must be presented with the information obtained in the investigation and given an opportunity to reply to same. However no formal charges can be laid until the conclusion of the investigation as the prosecutor is legally incapable of arriving at a final decision to prosecute until they meet the accused and hear his objections and perhaps obtain additional evidence. This is an essential part of the process and is designed to protect the accused’s rights. While there is an intention to prosecute on the basis of the available evidence, the requested person has at all material times been abroad and has not been available to be interviewed and the procedure cannot be finalised in his absence. The respondent’s surrender is therefore sought for the purpose of conducting a criminal prosecution in respect of the above serious offences, although by Swedish law a final decision to prosecute can only be taken if the above procedure is followed and the respondent’s rights protected ………”. (my emphasis)

At a later stage she states that the Kingdom of Sweden only issues European arrest warrants for the purpose of either conducting a criminal prosecution or executing a custodial sentence or detention order, and that the European arrest warrant (i.e. in the present case) is issued for the former purpose.

It is on these facts that Mr Kenneally submits that the position is clear, namely that as of the present time the decision has not been made, in the words of s. 21A of the Act, as amended, “to charge the person with, and try him or her for, that offence in the issuing state”, and that the presumption contained in s. 21A (2) has been rebutted.

Mr Kenneally has also referred to a letter dated 21st September 2007 from the Chief State Solicitor’s office, received by the respondent’s solicitors, wherein it is stated that in relation to these concerns raised by the respondent as to the purpose of the warrant clarification has been sought, but had not been received as of the date of that letter. That letter confirmed that “if the request is not one for a trial that you and the Court will be informed that the application will not be proceeded with.”

In Mr Kenneally’s submission the affidavit of Ms. Maderud has confirmed the position in the respondent’s favour. He points to the fact that no further confirmation was received from the Chief State Solicitor’s office in the form of the letter promised, and that this fact also confirms that the position is as submitted by the respondent in spite of the contents of Ms. Maderud’s affidavit, namely that his surrender is sought only so that he can be further questioned.

Shane Murphy SC for the applicant has submitted that the affidavit of Ms Maderud makes it clear that the Swedish prosecutor intends to prosecute the respondent if he is surrendered, and that the only reason why the final decision has not been made in that regard is that Swedish law prevents that decision until such time as the respondent is physically present before the Court there. He points to the fact that Ms. Maderud has stated that it is intended that he shall be prosecuted, and in that regard he refers to the provisions of s. 10 of the Act which provides:

10.—Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person—
(a) against whom that state intends to bring proceedings for an offence to which the European arrest warrant relates, or
(b) …
(c) …
(d) …

that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state. “ (my emphasis)

He submits that in the light of Ms. Maderud’s affidavit the presumption in s. 21A(2) of the Act has not been rebutted, and urges the Court that in line with the well known Pupino decision of the European Court of Justice requiring a conforming interpretation to be given to the provisions of the Act, this Court should be satisfied that the position of the respondent under the law of Sweden is that the prosecutor there intends to prosecute the respondent, and that he will face a trial if surrendered.

In my view the opening paragraph of the warrant makes it clear first of all that the surrender is sought for the purpose of conducting a prosecution. It says so directly, and the fact that this paragraph is part of a prescribed text for the warrant cannot be regarded as being simply formulaic. This Court is entitled to presume, based on the mutual trust and confidence which underpins the arrangements for the European arrest warrant under the Framework Decision, that the issuing judicial authority in Sweden would not issue such a warrant in bad faith and for reasons other than the reasons provided for in the Framework Decision. The presumption contained in s. 21A (2) of the Act must be seen as based on that mutual trust and confidence, and in my view has not been rebutted simply be means of the averments made by Mr Ostberg in his affidavit.

It is also the fact that it is inevitable, in fact it is one of the very reasons for the introduction of a uniform system of surrender between Member States in order to simplify the process and remove the previous complexities which existed in relation to extradition, that the criminal procedures of various Member States will be different in many respects. It is unnecessary that this Court should examine in minute detail the criminal procedures in the Kingdom of Sweden. The system there is very different to that which pertains here. But Ms. Maderud has in my view made it clear that under the laws of Sweden the respondent is a person in respect of whom that state intends to commence a prosecution for the offences in question. That clarification or explanation was not necessary, given the opening paragraph of the warrant to which I have already referred but I can understand why the applicant sought additional information in order to put the matter beyond the doubt raised in the respondent’s mind. It has made it clear that the respondent while in Sweden before his departure to this jurisdiction was a person who had been found to be a suspect with probable cause. Here we might describe that person as being one against whom the prosecution was of the view that there was a prima facie case. The fact that under the law of Sweden the charge cannot be actually laid in a formal sense until he is returned to be present at the Court cannot under the Framework Decision be interpreted as meaning that a decision to prosecute and try him for the offences has not been made. It is not open at this stage for the respondent to say that he is only sought so that he can be questioned as part of the investigation. It is clear that the process has advanced well beyond that point, and to the point that he will, subject to being afforded his rights to object when again before the District court, be prosecuted and tried for these offences. To find otherwise would be to ignore the reality which has been made clear in that affidavit.

In my view, even ignoring the presumption in s. 21A(2), the position has been established so that the Court can be satisfied that a decision to prosecute the respondent and to try him has been made by the issuing authority. There remains only the formality of giving effect to that decision after the respondent has been surrendered and brought back before the District Court in Sweden so that the decision can be put into effect in accordance with the criminal procedure rules applicable there. It would run counter to the intention and purpose of the Framework Decision, as given effect to her by the Act, if this Court was to refuse to order his surrender.

3. The vagueness of the warrant in relation to its purpose is a bar to surrender:

This point of objection raises no issue which I have not dealt with in the preceding point of objection, and I need add nothing further in relation to it.

4. No possibility of bail under the laws of Sweden should the respondent be surrendered:

The respondent submits that given the fact that the law of Sweden contains no provision for what is known in this jurisdiction as ‘bail’ there are reasonable grounds for believing that his constitutional right to liberty will be breached if surrendered to Sweden, and that accordingly his surrender is prohibited by the provisions of s. 37 of the Act.

The factual basis for this point of objection is contained in the said affidavit of Mr Ostberg already referred to. In that affidavit, he states that he has acted for numerous defendants who have been held in custody for substantial periods of time without ever being charged or put on trial in Sweden. He says also that the law in Sweden does not permit the admission of a person suspected of or charged with criminal offences to bail, and that bail as it is known here does not exist in that country.

He states that in Sweden it is permissible that a person be held in custody for a period of unlimited duration. Later in that affidavit he states that there will be a court hearing every two weeks in relation to the detention of the detainee, and that on each occasion the prosecutor must present facts to the court as to why an investigation has not yet concluded. He states however that it is his experience as a lawyer that where a person is accused of serious crimes the prosecutor is routinely given the right to continue the investigation and interrogation of the detainee, and that it is not unusual for such investigations can take between two and four months.

Ms. Maderud responds to these averments in her affidavit to which I have already referred in another context. Ms. Maderud refers to the fact that Sweden is a party to the European Convention on Human Rights and Fundamental Freedoms, and that the Swedish court’s consideration as to whether a person’s continued detention is justified will consider whether that detention is proportional. She quotes a relevant provision of the Criminal Code of Procedure which stipulates that detention may occur only “if the reason for detention outweighs the intrusion or other detriment to the suspect or some other opposing interest”.

She accepts that there no “bail system” as known in this jurisdiction, but that the Swedish system of release subject to travel restrictions and the obligation on the accused person to report to the police, is a similar system to ‘bail’, except that there are no financial conditions attached.

She states that this system conforms to the requirements of the Convention, and that there have been no decisions of the European Court of Human rights which have criticised this system. She states also that the system of release in Sweden is that the person concerned is released “merely on his promise to comply with conditions”, and that no bail monies are required. It would appear also that the criteria used by the court in determining whether the accused should be released are whether there is a risk of flight, a risk that evidence might be destroyed, or that the accused might commit further crimes.

On behalf of the applicant, Mr Murphy has submitted that Mr Kenneally has looked only at the worst possible scenario for the respondent as far as the likelihood of detention is concerned, and that as Ms. Maderud has stated, there is the possibility that the respondent could be released under the law which she has explained, if the court considers that relevant criteria are met. He submits that the system for pre-trial release can be equated to ‘bail’ here except that no financial conditions are imposed as they are here.

I am completely satisfied that there is no basis for the respondent’s contention that if surrendered he will not be entitled at least to apply for pre-trial release, and that his surrender therefore ought to be refused under s. 37 of the Act. It will be necessarily for the court in Sweden to determine his entitlement to such release and any conditions which may be appropriately applied. It is clear that under Swedish law there is the possibility for pre-trial release subject to appropriate conditions. In fact in as much as there is no possibility for the court there to impose financial conditions to that release, the regime there can be seen as being less stringent than the bail regime with which we are familiar here, and under which persons may still remain in custody in circumstances where, although considered suitable for bail release, the financial aspect of those conditions cannot be met.

The Court has been referred to no case against Sweden at the European Court of Human Rights in which the regime in Sweden has been subjected to criticism, much less an adverse finding. In any event, it is a fact that Sweden has been designated for the purpose of s. 3 of the Act as being a country with which this State will operate the surrender arrangements under the European arrest warrant. That implies that this State recognises that the relevant criminal justice procedures conform to, at the very least, the minimum standards required by the Convention.

This ground of objection must therefore fail.

5. If surrendered the respondent will be held in custody and incommunicado for an indefinite period of time:

This ground of objection must also fail. It was suggested by reference to Mr Ostberg’s affidavit that if held in custody pending his trial in Sweden the respondent may under the law of Sweden be held incommunicado while the investigation process continues for an indefinite period, and that accordingly he could be denied contact with family members and friends. It is submitted that such conditions constitute a breach of Article 8 of the Convention which guarantees that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

What is put forward by Mr Ostberg is a mere possibility in the sense that there appears to be a law which permits the court to direct that a person be held incommunicado. Ms. Maderud states in reply that the Court will decide whether the prosecutor is permitted to limit the accused’s possibilities to communicate with other persons, and instances that he may be restricted as to what newspapers he can read, whether he may watch television, communicate by letter or use the telephone. But she goes on to state that prosecutors frequently allow accused persons to meet with family members and friends in the presence of police, but with a condition that he does not discuss the alleged crime, but that there is strict court control in relation to the accused’s rights.

The respondent has not satisfied the Court that there is reason to believe that his constitutional or Convention rights will be breached in this regard if he is surrendered. While pre-trial procedures in Sweden are clearly different to what exists here, there is no evidence to establish in any way that minimum standards of rights’ protection are not met. He has put forward an exaggerated spectre, divorced from reality, of someone who will be held in custody indefinitely for interrogation and incommunicado without even the possibility of bail, while an open-ended investigation continues. There is no basis for such an extreme suggestion on the evidence before this court.

His surrender is not prohibited by anything submitted on this point of objection.

I am satisfied that the Court is required to make the order sought and I will so order.

Carmody v Minister for Justice, Equality and Law Reform

[2009] IESC 71

JUDGMENT of the Court delivered by Murray C.J. on the 23rd day of October 2009

In these proceedings the appellant claims to have been denied a constitutional right to legal aid in criminal prosecutions before the District Court because there is no statutory or other means by which he can seek to have free legal representation which includes counsel as well as solicitor even though the circumstances pertaining to the prosecution brought against him are such that representation by solicitor and counsel may be essential in the interests of justice.
Two remedies have been sought by the plaintiff and appellant (hereafter the appellant) namely (a) a declaration that s. 2(1) of the Criminal Justice (Legal Aid) Act 1962 is invalid as being repugnant to the Constitution and (b) a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 2(1) of the Criminal Justice (Legal Aid) Act 1962 is incompatible with the obligations of the State under the provisions of the Convention.
Section 2
Section 2 of the Act of 1962 provides as follows:

(1) “If it appears to the District Court –
(a) that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid, and

(b) that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before it, the Court shall, on application being made to it in that behalf, grant in respect of him a certificate for free legal aid (in this Act referred to as a legal aid (District Court) certificate) and thereupon he shall be entitled to such aid and to have a solicitor and (where he is charged with murder and the Court thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.

(2) A decision of the District Court in relation to an application under this section shall be final and shall not be appealable.

At this point it is convenient to refer to the general scope and ambit of that section.
It confers jurisdiction on the District Court to grant a person of insufficient means legal aid “in the preparation and conduct of his defence”.

That legal aid can only be granted if it appears to the District Court “that by reason of the gravity of the charge or of exceptional circumstances, it is essential in the interests of justice” that the legal aid should be granted.

With one exception, the legal aid granted is confined to legal representation by a solicitor only for the preparation and conduct of the defendant’s defence.

The only exception specified in the section is that where the accused is charged with murder, and the Court thinks fit, counsel may be assigned in addition to a solicitor.

The exception is effectively redundant as a result of the abolition of the then existing preliminary examination procedure in the District Court for persons charged with all indictable offences, as a consequence of the Criminal Justice Act 1999.

Otherwise, whatever “the gravity of the charge”, whatever “exceptional circumstances” may exist and whatever “the interests of justice” might require the District Court has no power or discretion to consider whether legal aid should be granted for the purpose of assigning counsel to prepare or conduct a defendant’s defence. The reference to counsel in this judgment is a reference to a practising barrister.
Background Facts
The appellant was charged with 42 offences before the District Court all of which related either to the alleged wrongful movement of cattle, failure to keep a register of certain cattle or failure to deliver an identity card in relation to cattle. In general terms the offences are alleged to be contrary to various regulations intended to protect cattle from the disease of brucellosis or prevent the spread of the disease.

When he appeared before the District Court on foot of the summonses served on him the appellant was allowed legal aid and he engaged as his solicitor Mr. Mannix.

Thus it has been decided by the District Court that the appellant does not have the means to pay for legal representation and that it is essential in the interests of justice that he be granted criminal legal aid for that purpose, namely a solicitor. These rulings by the District Court are not put in issue by the State.

Mr. Mannix is a solicitor of 26 years experience particularly in the field of criminal law having been on the legal aid panel for the representation of persons in the District Court and other courts for some 25 years. He practised on his own until 1999 when he engaged an assistant solicitor and since June 2002 he has been in partnership with two other solicitors. His practice is based in Tralee.

Particulars concerning the offences for which the appellant was summoned were summarised in the submissions filed on behalf of the appellant in the following terms:

“Of the forty-two offences with which the Plaintiff is charged, thirty-nine allege that between the 15th October, 1998 and the 17th September, 1999, the Plaintiff moved an eligible animal into a holding while such holding was restricted. Each of the thirty-nine summonses relate to a different animal, identifying the animal by ear tag number, and allege the movement was contrary to:
“Section 48(1)(a), (d) and (e) of the Diseases of Animals Acts 1966 as amended by the Bovine Diseases (Levies) Act 1979 and the Bovine Diseases (Levies) (Amendment) Act 1996 as introduced by the Minister pursuant to the powers conferred upon him by Sections 3, 12, 13, 19, 20, 27 and 48 of the said Act of 1966 and introduced by Article 7.3(a) and 7.3(b) of the Brucellosis in Cattle (General Provisions) Order, 1991 (S.1. No. 114 of 1991) as amended by the Brucellosis (sic.) in Cattle (General 114 of 1991) as amended by the Brucellosis (sic.) in Cattle (General Provisions) (Amendment) Order 1996 (S.1. No. 86 of 1996) as amended by the Brucellosis in Cattle (General Provisions) (Amendment) Order, 1998 (S.1. No. 39 of 1998).”

The three remaining summonses allege that the Plaintiff committed the following offences:
(1) “[the Plaintiff] did between the 15th October, 1998 and the 17th September, 1999, fail to keep a register of the particulars of each animal present in [his] herd and failed to keep a register of the number of animals present in [his] herd, contrary to the European Communities (Registration of Bovine Animals) Regulations 1996 and in particular Article 4(1) and 8(1) thereof’
(2) “[The Plaintiff] being a person who was notified in accordance with paragraph (1) of Article 7 of the Brucellosis in Cattle (General Provisions) Order 1991, S.1. No. 114 of 1991, on the 15th September, 1998 that [his] holding at Gortalea, Tralee in the County of Kerry and elsewhere was declared restricted under Article 7 of the above-mentioned Order, that [he] failed to deliver forthwith to a veterinary inspector or to an authorised officer every identity card issued in respect of any eligible animal or female animal aged less than twelve months on the holding, such identity cards not already having been issued pursuant to Article 5(3)(b) of the above-mentioned Order, contrary to Section 7(2) of the Brucellosis in Cattle (General Provisions) Order 1991 (S.1. No. 114 of 1991) as amended by the Brucellosis in Cattle (General Provisions) (Amendment) Order 1998 (S.1. No. 39 of 1998)”

(3) “[The Plaintiff] did on a date unknown between the 15th day of April, 1998 and the 18th day of May, 1998 at Gortlea, Tralee in the County of Kerry in the Court Area and District aforesaid move an eligible animal into your holding without the said animal having passed a blood test within a period of thirty days prior to the day on which the animal was so moved Contrary to Section 18 of the Brucellosis in Cattle (General Provisions) Order of 1991 as amended by Section 2 of the Brucellosis in Cattle (General Provisions) (Amendment) Order 1998.”

The penalty on a conviction under s. 48 of the 1966 Act is a fine of the euro equivalent of £1,500 and/or six months imprisonment. The penalty on conviction under the Bovine Regulations is a fine of the euro equivalent of £1,000 and/or 12 months imprisonment. The District Court has jurisdiction to impose consecutive sentences in respect of a defendant who has been convicted of multiple offences, up to a maximum of two years in total.
The Plaintiff himself is a farmer who resides in Co. Kerry and the prosecutions against him were brought by the Minister for Agriculture, Food and Rural Development. When he appeared before the District Court on 9th October 2000 the Court granted a legal aid certificate in accordance with s. 2 of the Act of1962.

Mr. Mannix had given prior notice to the State Solicitor that he would be seeking legal aid on behalf of the plaintiff, to include the assignment of junior counsel, and that if the plaintiff did not receive the assistance of representation by counsel, these proceedings would be commenced.
The Evidence before the High Court and its Findings of Fact
The evidence, including the findings of the learned High Court Judge were summarised in the following passage in her judgment:

“The evidence is that the Minister has a panel of barristers from which counsel is assigned to prosecute offences of the type with which the plaintiff is charged. There are ten barristers on the panel, both senior and junior counsel. The policy is to assign junior counsel to prosecute in the District Court and senior counsel to prosecute in the Circuit Court. The barristers on the panel are experienced prosecutors. Prosecuting counsel is instructed by the State Solicitor for the locality in which the offences are being prosecuted. A survey carried out by the Minister’s department indicates that between September, 2000 and March, 2004 123 prosecutions were initiated for this type of offence. Counsel was retained on the prosecution team in most of the cases. In 18 of the cases, which were interlinked and had not been concluded, the defendant was represented by counsel. Of the remaining 105 prosecutions, the defendant was represented by counsel in 26 cases. Counsel has already been briefed for the prosecution of the plaintiff in the District Court.
The plaintiff’s solicitor, Mr. Mannix, practises in Tralee. He is an experienced solicitor who has been on the criminal legal aid panel for over twenty years. His normal practice is to represent his clients in the District Court himself. Only in exceptional cases does he brief counsel for the District Court. He considers that the prosecutions pending against the plaintiff are unusual and exceptional in comparison to the generality of prosecutions in the District Court. They could have serious consequences for the plaintiff. They are complex and, in Mr. Mannix’ view, more difficult to defend than a trial on indictment. In his opinion the plaintiff would not receive a proper level of representation on the charges if he was not represented by counsel on legal aid. When asked, in cross-examination, whether he had considered that a change of solicitor would be appropriate, Mr. Mannix testified that he had not. Moreover, he stated that, if the State Solicitor was prosecuting himself without the aid of counsel, he would still advise that the plaintiff be represented by counsel, on the basis that the State Solicitor is a very experienced prosecutor.

Mr. Robert Pierse, who has over 40 years experience as a practising solicitor in County Kerry, gave evidence on behalf of the plaintiff. In his view, solicitors should themselves represent their clients in the District Court and counsel should only be used in very exceptional cases. This, in fact, is what happens. However, in relation to the charges which are pending against the plaintiff, Mr. Pierse pointed out that, while technically they are all minor offences, because of the volume of offences alleged, the matter has serious consequences. The summonses raise a considerable number of points on which a reasonable solicitor would need counsel’s advice. He himself had instructed counsel to represent a client who faced similar charges. His opinion was that the plaintiff should be represented by counsel because of the risk of imprisonment and the possible detriment to his reputation. He also expressed the view that it is important that the client’s and the public’s perception of representation on both sides on such charges should be of parity. He expressed the view that counsel is more expert than a solicitor in criminal law matters. The court was invited to infer from the fact that experienced prosecuting counsel are briefed in most of the cases of the type at issue here establishes the complicated nature of the cases. No other reason was advanced by the defendants for the use of a solicitor and barrister on the prosecution team in these cases, although counsel for the defendants did suggest that the presentation of the prosecution may be more difficult than defending such charges. Counsel for the defendants dismissed as being misplaced the analogy drawn by counsel for the plaintiff of a specialist in the case of prosecuting counsel and a general practitioner in the case of a solicitor. I think it is reasonable to infer from the evidence that prosecutions involving charges of the type with which the plaintiff is charged are more complex than the generality of prosecutions with which the District Court deals. I so find. A lawyer, whether a barrister or a solicitor, who is involved in the prosecution or defence of such charges is going to have the time consuming task of familiarising himself or herself with a body of regulation the source of which is both domestic law and European law, which has been the subject of considerable amendment and revision over the years. It is a body of law to which the lawyer may rarely have to have recourse. … Further, I consider that the court is entitled to assume that a solicitor on the legal aid panel will represent his client according to the standard of conduct expected of his profession. In any event, aside from those assumptions, in my view, a finding that a qualified solicitor exercising ordinary professional skill and care could not effectively and adequately defend an accused person on such charges in the District Court is not open on the evidence.”

Two points highlighted in the evidence of the appellant’s solicitor, Mr. Mannix are illustrated in the two following extracts from the transcript of his evidence:
(a) “…I knew that at a glance at the summonses that the level of regulations, the level of legal provisions which had been charged on each of the offences contrary to which had been charged against him, that that was an extremely arduous exercise in research in establishing the precise legal provisions which it is alleged against him … so I realised the first day I received instructions from Mr. Carmody that this was a mammoth exercise, that this was going to be a very significant prosecution and that considerable work would need to be undertaken by both he and I.”
(b) “It was not one that I thought I could properly and adequately deal with on his own behalf on my own. I was aware of the fact that counsel was retained by the Minister … and because of the complexity of the case and the complexity of the law in the case it was wholly appropriate that Mr. Carmody be assigned counsel to enable him to properly meet the case against him and defend himself.”

The Issues and Submissions in this Appeal
The High Court dismissed the appellant’s claim that s. 2 of the Act of 1962 is unconstitutional. It also refused his application for a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 2 is incompatible with the State’s obligations under the Convention. The appellant has appealed against these findings.
In deciding on the appellant’s claim the High Court determined that the issue raised by the appellant’s claim for a declaration of incompatibility pursuant to s. 5 of the Act of 2003 should be determined first and before the determination of the constitutional issue raised particularly as regards the claim that s. 2 of the Act of 1962 is unconstitutional. One of the questions which arises for this Court to decide in this appeal is whether in principle, a claim that an Act of the Oireachtas is repugnant to the Constitution should be determined prior to the consideration of any claim for a declaration that the Act is incompatible with the provisions of the European Convention on Human Rights as provided for by s. 5 of the Act of 2003.
The Appellant
Although the appellant supported the approach taken by the learned trial Judge in deciding to first determine the issue of the compatibility of the Act of 1962 with the European Convention on Human Rights, pursuant to s. 5 of the Act of 2003, it was also acknowledged that there were reasons for considering that the constitutional issue should be considered first and that the appellant would defer to the Court’s decision on that point.

The claim that the appellant is denied his constitutional right to legal aid by virtue of s. 2 of the Act of 1962 has been advanced on two grounds.

Firstly the appellant contends that a defendant on a criminal charge before the District Court, who does not have the means to pay for his own legal representation, has a right under the Constitution to apply for legal aid so that he may be legally represented by both a solicitor and counsel where such representation is essential in the interests of justice. This, it is contended, is a constitutional requirement in order that the trial of a defendant before the District Court is conducted in accordance with the due process of law. Section 2(1) of the Act of 1962 he claims is repugnant to the Constitution because it prevents the District Court considering whether, in the particular circumstances of a given case, it is in the essential interests of justice that a defendant be represented not only by a solicitor but also by a barrister or counsel.

The appellant emphasised the complex nature and sources of the law underlying the charges which had been brought against him and the seriousness of the consequences which would flow from a conviction. The appellant also relied on the fact that the Department of Agriculture, Food and Rural Development, for the purpose of prosecuting offences of this nature, engaged and relied upon a specialist panel of barristers, including senior counsel, in addition to a solicitor, the State Solicitor, for the purpose of prosecuting such offences. This was evidence of the especially complex nature of the legal issues to which such prosecutions give rise. Although the appellant did not seek parity of representation as such the circumstances demonstrated that in order to ensure that the appellant could be fairly represented and thus receive a fair trial he was entitled to representation by counsel in addition to that of solicitor. It was also submitted that the exclusion of a right to counsel in all and every criminal prosecution being dealt with by the District Court was inflexible, irrational and arbitrary and constituted a denial of constitutional right to a fair trial. The test that should be adopted is whether in any particular case there was a real risk of an unfair trial if a defendant was denied the opportunity of being represented by counsel in addition to a solicitor. Where a prosecution before the District Court was of sufficient complexity and seriousness a defendant who could not afford to pay for legal representation should be granted legal aid for the purpose of being represented by counsel as well as solicitor in order to ensure that he or she had a fair trial in accordance with the Constitution. In this respect the appellant relied principally on the decision of this Court in The State (Healy) v. O’ Donoghue [1976] I.R. 325.

In the foregoing circumstances it was submitted that s. 2(1), in arbitrarily failing to provide for the grant of legal aid to include counsel in any appropriate cases, s. 2(1) of the Act of 1962 should be declared repugnant to the Constitution.

In the second ground or aspect of his claim the appellant claims that the particular facts and circumstances of his case, that is to say, the alleged seriousness of the offences and the exceptional complexity of the law under which the offences are prosecuted, are such that he is entitled to an order declaring that in the interests of justice, he is entitled to legal aid providing for his representation by counsel and solicitor in this case. Accordingly, since by virtue of the application of s. 2(1) by the District Court he was denied legal representation, to include counsel, in this case he has been denied his constitutional rights.

For essentially the same underlying reasons the appellant has also claimed a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 2(1) of the Act of 1962 is incompatible with the obligations of the State under the provisions of the Convention.

In this regard particular reference was made to a denial of his rights under Article 6 of the Convention. Article 6.3.c provides that:

“Everyone charged with a criminal offence has the following minimum rights:
…

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”

Since the Court has not considered it necessary to consider the claim for a declaration of incompatibility with the European Convention on Human Rights sought by the appellant pursuant to s. 5 of the Act of 2003 it is not necessary to refer further to the submissions on that question.

The Human Rights Commission
The Human Rights Commission, were granted leave by the Court pursuant to s. 8(h) of the Human Rights Commission Act 2000 to intervene as an amicus curiae. Its submissions may be summarised as follows:
As regards the order for determination of on the one hand, the constitutional issue, and on the other, the application for a declaration of incompatability pursuant to s. 5 of the Act of 2003 it was submitted that the constitutional issue should be determined first. It was submitted that a declaration of incompatibility pursuant to s. 5 of the Act of 2003 could not determine and dispose of the dispute between the parties. Accordingly, having regard to the terms of s. 5 of that Act, the constitutional issue should be determined first.

As regards the substantive constitutional issue it was submitted that the test to be applied is whether there was a “real risk” of the defendant receiving an unfair trial if he was denied representation by counsel as well as solicitor. Applying that test the appellant, in the circumstances of the case, was entitled to be provided with legal aid for that purpose. It was also submitted that the overall “interests of justice”, which included considerations broader than those included by the High Court, require that such legal aid be provided where the interests of justice so require and the Commission relied on The State (Healy) v. O’Donoghue [1976] I.R. 325 in support of this proposition. It also submitted that the notion of ‘equality of arms’ meaning ‘reasonable equality’ as previously applied by this Court and as referred to in the jurisprudence of the European Court of Human Rights would require that the defendant be provided with legal aid to include counsel as well as solicitor in this case. It was also submitted that standards of fairness in criminal proceedings must, as Kenny J. indicated in The State (Healy) v. O’Donoghue be kept under review so that a defendant can be afforded his or her constitutional rights according to contemporary circumstances.
The Respondents
The respondents submitted that the constitutional issue raised by the appellant should be determined prior to any question concerning the compatibility of the Act of 1962 with the European Convention on Human Rights because the Constitution takes precedence over the Convention and s. 5 of the Act of 2003 may only be invoked where, as the section provides, “no other legal remedy is adequate and available”. A declaration of incompatibility is, therefore, a remedy of last resort.

On the constitutional issue the respondents submitted that the learned High Court Judge was correct in her findings of fact and in particular in her determination of the law and the constitutional rights of the appellant. In particular it was submitted that the constitutional rights of the appellant are fully vindicated by his entitlement to nominate a solicitor of his choice from the legal aid panel in the District Court. The right to ‘equality of arms’ was met once a defendant was provided with legal aid for legal representation which was sufficient to ensure a fair trial. Representation by a solicitor in prosecutions before the District Court met that requirement.
Order in which the Issues should be Addressed
Before addressing the issues raised by the appellant the question of the order in which the constitutional issue and the declaration claimed pursuant to s. 5 of the Act of 2005 should be decided must be considered.

The question arose before the learned trial Judge as to whether, in addressing the issues raised in the proceedings she should first of all decide the issue concerning the declaration sought pursuant to s. 5 of the Act of 2003 having regard to the principle reflected in the statement of Henchy J., in The State (Woods) v. The Attorney General “…that a court should not enter upon the question of constitutionality unless it is necessary for the determination of the case before it.”

The principle has been reiterated in a number of cases including by Finlay C.J. in Murphy v. Roche [1987] I.R. 106 at 110 where he stated:

“Where the issues between the parties can be determined and finally disposed of by resolution of an issue of law other than constitutional law, the Court should proceed to determine that other issue first, and, if it determines the case, should refrain from expressing any view on the constitutional issue that may have been raised.”
In deciding to first decide the issue raised by a claim for a declaration of incompatibility, rather than the constitutional issue, the learned High Court Judge stated
“Of course, by virtue of subsection 2 of s. 5, if a declaration of incompatibility is made, it will not affect the validity, continuing in operation or enforcement of s. 2 of the Act of 1962. The consequences of the making of such a declaration would be that the Taoiseach would be required to lay a copy of the order of the court before each House of the Oireachtas within the next 21 days on which that House has sat after the making of the order. Further, if the plaintiff claimed compensation in respect of an injury or loss or damage suffered as a result of the incompatibility, the Government would have a discretion to make an ex gratia payment by way of compensation to the plaintiff. The plaintiff has chosen to pursue the remedy of a declaration of incompatibility in the knowledge, as submissions made on his behalf indicate, of the practical effect of such a declaration. Whether obtaining such a declaration would resolve the issues between the parties to the extent that the court should refrain from expressing any view on the constitutionality of s. 2 in accordance with the self-restraint principle as formulated in Murphy v. Roche was not debated. That issue only arises in the instant case in the event that there is a finding of incompatibility. If there is not, it is a matter for another case and another day.”
As can be seen from the foregoing the nature of the remedy, such as it is, provided by s. 5 of the Act of 2003 is both limited and sui generis. It does not accord to a plaintiff any direct or enforceable judicial remedy. There are extra-judicial consequences whereby the Taoiseach is obliged to lay a copy of the order containing a declaration before each House of the Oireachtas within 21 days. That is the only step which is required to be taken under national law in relation to the provisions concerned. Otherwise it rests with the plaintiff who obtained the declaration to initiate an application for compensation in writing to the Attorney General for any alleged injury or loss or damage suffered by him or her as a result of the incompatibility and then it is a matter for the discretion of the Government as to whether or not they should pay any such compensation on an ex gratia basis.
It would have been more desirable if the parties did debate in the High Court whether the obtaining of such a declaration would resolve the issue between them. This would have more readily enabled the learned trial Judge to examine this question in the context of the case as a whole which could have led to a different order of priority being accorded to the issue of constitutionality on the one hand and that arising from the claim for a declaration of incompatibility on the other.

In any event, the order in which issues in proceedings should be determined, where one of them involves the constitutionality of an Act, is ultimately and finally a matter for the Court rather than the parties while taking into account any views or submissions tendered on their behalf.

As the case-law referred to in this context makes clear, and indeed as the learned trial Judge pointed out, the question involving any validity of a statute or a section thereof should be postponed until consideration has been given to any other question of law the resolution of which could determine the issues between the parties. If a decision on such questions of law does determine such issues then, in principle, it is not necessary for the Court to address the constitutional question.

The essence of the issue raised by the appellant in these proceedings is that the State respondents, by virtue of the terms of s. 2 of the Act of 1962, wrongfully denied him the possibility of applying to the District Court for the grant of legal aid to include counsel and, or alternatively, the refusal to actually grant such legal aid in the circumstances of his particular case to the appellant.

In these circumstances the Court is satisfied that a declaration of incompatibility pursuant to s.5 of the Act of 2003 cannot be said to be a remedy which would resolve the issue between the parties. Any such declaration in this case would leave the appellant in the same position with regard to his claimed constitutional right to legal representation in the prosecution pending against him in the District Court as he was prior to the commencement of proceedings.

That in itself is sufficient ground, in the Court’s view, for considering that an issue as to the constitutionality of a statute should first of all be addressed by the Court when the only other issue is a claim for a declaration pursuant to s. 5 of the Act of 2003.

In addition, it must be noted, that s. 5(1) in conferring on the High Court, or this Court on appeal, jurisdiction to make a declaration concerning a statutory provision or rule of law only arises “where no other legal remedy is adequate and available”.

Where a citizen’s constitutional rights are violated, statute law or some other rule of law may provide a remedy which vindicates such rights. Where a statute or a rule of law does not provide a remedy for the violation of such a right the citizen is entitled to rely on the provisions of the Constitution for a remedy in vindication of the right. That is what the appellant has done in this case in relying on the provisions of the Constitution, and the principles which flow from it, as affording him a remedy for the alleged breach of his rights. It hardly needs to be said that the provisions of the Act of 2003 cannot compromise in any way the interpretation or application of the Constitution, a principle which is acknowledged in the long title to the Act which states that the effect of the Act is “subject to the Constitution”.

Accordingly the Court is satisfied that when a party makes a claim that an Act or any of its provisions is invalid for being repugnant to the Constitution and at the same time makes an application for a declaration of incompatibility of such Act or some of its provisions with the State’s obligations under the Convention, the issue of constitutionality must first be decided.

If a Court concludes that the statutory provisions in issue are incompatible with the Constitution and such a finding will resolve the issues between the parties as regards all the statutory provisions impugned, then that is the remedy which the Constitution envisages the party should have. Any such declaration means that the provisions in question are invalid and do not have the force of law. The question of a declaration pursuant to s. 5 concerning such provisions cannot then arise. If, in such a case, a Court decides that the statutory provisions impugned are not inconsistent with the Constitution then it is open to the Court to consider the application for a declaration pursuant to s. 5 if the provisions of the section including the absence of any other legal remedy, are otherwise met.
Decision on the Constitutional Issue
The first basis on which the constitutionality of s. 2 is challenged is that it breaches the constitutional right to a trial according to the due process of law because it arbitrarily excludes the District Court from even considering the possibility of providing, by means of legal aid, the assistance of counsel in cases being tried by the District Court even if it could be established that the interests of justice require that the defendant be provided with such counsel because of the gravity, complexity or exceptional circumstances of the case.

It is submitted that s. 2 could only withstand challenge if it could be assumed that the interests of justice never requires representation by counsel in criminal cases before the District Court.

It may seem extraordinary now but prior to the adoption of the Criminal Justice (Legal Aid) Act 1962 no legal aid was available for poor persons except when they were charged with the crime of murder (then a capital offence) or in certain circumstances where a retrial was ordered by the Court of Criminal Appeal or the Supreme Court. That situation had for a long time been considered by many to be inconsistent with the notion of a fair trial although no issue concerning it had been raised before the Courts. When Ireland ratified the European Convention on Human Rights in February 1953 the State must have foreseen that the absence of legal aid for poor persons in nearly all cases might place it in breach of Article 6 of the Convention on the right to a fair trial because, as regards that Article, it inserted in its instrument of ratification a reservation pursuant to Article 15 of the Convention that Ireland did not “interpret Article 6.3.c of the Convention as requiring the provision of free legal assistance to any wider extent than is now provided in Ireland.” Article 6.3.c of the Convention provides that

“Everyone charged with a criminal offence has the following minimum rights:
…

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”

Curiously that derogation appears to have remained in place to this very day and even more curious it was not relied upon by the Respondents when addressing the appellant’s claim for a declaration of incompatibility with the Convention as regards s. 2(1) of the Act of 1962.
In any event in 1962 the State took, in introducing the Act, what was then generally regarded as its first tentative but meaningful step in the provision of legal aid for poor persons. That is to say persons who did not have the means to pay for their own legal representation would be granted legal aid where the essential interests of justice so required.

Up to that time no case had been brought before our courts seeking to assert a constitutional right to legal aid in criminal cases and for once an initiative in the field of justice involving public expenditure for the protection of the rights of citizens, in this instance those who had little or no means, was taken without being forced upon the State by a decision of our courts but was no doubt taken in cognisance of the fact that a right to legal aid in criminal cases was becoming generally recognised as a basic right not only in an international instruments such as the European Convention but also in the laws of many countries, with particularly strong developments in the constitutional case-law on due process in the United States.

Although the Act of 1962 has been the subject of some minor amendments in the meantime it has remained in substance the same and particularly so as regards the provision for criminal legal aid in the District Court.

Thus the framework for criminal legal aid in the District Court, fashioned in the mindset and circumstances of now nearly half a century ago as a first and valuable step in this area, remains applicable today notwithstanding the substantially changed legal environment in which the District Court functions in the area of criminal justice. Those changes will be referred to later but the Court will first refer to some constitutional principles concerning the provision of legal aid in criminal cases that have been expressed in the case-law of this court.
Criminal Legal Aid and the Constitution
In 1976 this Court gave judgment in what is the leading case on the constitutional principles underpinning the right of indigent persons to legal aid in criminal cases. The case is The State (Healy) v. Donoghue [1976] I.R. 325. This was some 14 years after the adoption of the Act of 1962 and it was the first case in which the right to criminal legal aid arose as a substantive issue. It is relevant to emphasise that in that case no issue arose concerning the constitutionality of that Act. The issues in Healy were more concerned with the manner in which the Act was applied or observed in that case. Nonetheless, the statements of principle in the judgments delivered in that case have informed and governed the manner in which the Act of 1962 is implemented and they explain why the right to legal aid for poor persons in criminal cases resides in the Constitution and not just in the statute.

In the Healy case the Court was asked to grant orders of certiorari quashing certain convictions and sentences which had been pronounced against the applicant John Healy and his co-accused, Anthony Foran. For present purposes it is sufficient to state that in one case the applicant, John Healy, had not applied for legal aid and was convicted and sentenced without legal representation. As regards other charges, both applicants had been granted a legal aid certificate and, both having pleaded guilty, their sentencing was adjourned. Their cases were listed on several occasions for sentencing but no solicitor appeared for them and eventually the District Judge decided to proceed with sentencing in the absence of legal representation. The relevant conviction and sentences were quashed by the Courts on the grounds that the two accused had not been dealt with in accordance with the due process of law as the Constitution requires. One outcome of that case is that a defendant has a constitutional right to be informed of his or her entitlement to legal aid even though the Act of 1962 did not specify that he or she be so informed.

Since that case did not involve an issue as to the constitutionality of any provision of the Act of 1962 but concerned certiorari proceedings the order made is not strictly relevant to the issues in this case but the principles expressed in the judgments of the Court are directly relevant to any consideration of the constitutional right of poor persons to legal aid in criminal cases.

One of the first matters which the Court made quite clear is that the right to legal aid does not stem from a statute. It is a constitutional right. The Act of 1962, to the extent that it does make provision for legal aid, is merely a means of vindicating that right.

As O’Higgins C.J., stated at page 350 of the report in Healy:

“If the right to be represented is now an acknowledged right of an accused person, justice requires something more when, because of a lack of means, a person facing a serious criminal charge cannot provide a lawyer for his own defence. In my view the concept of justice under the Constitution, or constitutional justice … requires that in such circumstances the person charged must be afforded the opportunity of being represented.
This opportunity must be provided by the State. Only in this way can justice be done, and only by recognising and discharging this duty can the State be said to vindicate the personal rights of the person charged. To hold otherwise would be to tolerate a situation which the nature and extent of a man’s ability to defend himself, when accused, would depend on the nature and extent of his means. That would be to tolerate injustice.”

Henchy J., at page 354 stated:
“A person who has been convicted and deprived of his liberty as a result of a prosecution which, because of his poverty he has had to bear without legal aid has reason to complain that he has been meted out less than his constitutional due. This is particularly true if the absence of legal aid is compounded by the factors such as a grave or complex charge.”
Henchy J., went on to express the view (at page 255) that, once the interests of justice required that a person be afforded legal aid, a trial without it “could not be said to be a trial ‘in due course of law’” within the meaning of that phrase in Article 38.1.
Again at page 357 Griffin J., stated:

“The principles enshrined in these principles of the Constitution require fundamental fairness in criminal trials – principles which encompass the right to legal aid in summary cases no less than in cases tried on indictment – whenever the assistance of a solicitor or counsel is necessary to ensure a fair trial. Ours is an adversary system of criminal justice. On the one side is the State with all its resources, which it properly and justifiably uses in the prosecution of crime. It has available to it a trained and skilled police force, and lawyers who prosecute in the interest of the public. On the other side is the person charged with a crime; if he has the resources, he will retain the best solicitor and counsel obtainable for the preparation and conduct of his defence. If he is too poor to engage a solicitor or counsel, can he be assured of a fair trial unless legal aid is provided for him? It seems to me beyond argument that if lawyers are necessary to represent persons with means to pay for them, they are no less necessary for poor persons who are unable to provide for them out of their own resources.”(emphasis added).
The principles expressed in the foregoing judgments are now well established principles governing the right of a citizen to criminal legal aid.
The right is a constitutional right. Everyone has a right to be represented in a criminal trial but justice requires something more than the mere right to be represented when a person, who cannot afford legal representation, is facing a serious criminal charge. Such a person has a constitutional right to be granted legal aid by the State to enable him or her to have legal representation at the trial. The nature and extent of that right may be affected by the gravity and complexity of the charge. In addition, although the Act does not require it, every unrepresented defendant must be informed of his or her right to legal aid if they cannot afford it themselves.

Although at different points in the judgments in that case reference is made to the right to legal representation by a solicitor or by a solicitor and counsel no issue arose as to when and in what circumstances a right to be represented by solicitor and counsel would arise and in particular whether it could arise in respect of proceedings before the District Court.

It is clear that the judgments are based on the assumption that, as the Act of 1962 and regulations thereunder provided, in all trials before the Circuit Court or the Central Criminal Court an accused had a right to be represented by solicitor and counsel and in some instances two counsel. The unquestionable right of a poor accused to be provided with legal aid for solicitor and counsel in such cases undoubtedly arises from a range of factors inherent in the trial of indictable offences before such Courts. It is sufficient to mention two of them. There is the particular seriousness attached to offences tried in such Courts because of their nature or the range of severe sentences which the Court of trial has power to impose. There is the process of trial before a Judge and jury, which for many self evident reasons is more complex than a summary trial in the District Court and which necessarily requires representation by an advocate skilled in the conduct of such trials. Again the Oireachtas itself has recognised that necessity and so provided in the case of trials before a judge and jury.

The respective role and function of the two professional branches of the legal profession are known and well established. As Griffin J. stated above when referring to the right to solicitor and counsel “Ours is an adversary system of criminal justice”. In the second of two articles entitled “Competition in the cab rank and the challenge to the independent bar”, Judge John Cooke, as he then was as a member of the Court of First Instance of the European Communities, in referring to the underlining rationale of the two professions stated, inter alia:

“…From a practical point of view, the common law system of litigation with its emphasis upon direct proof by witnesses of all essential facts and the oral exposition of legal argument, effectively requires that the presentation of cases in court be a specialised activity. That is why even in those common law jurisdictions where two branches of the profession have been amalgamated as a distinct advocacy bar continues to emerge. An effective trial bar has evolved in the United States and a similar trend can be seen in Australia. Where, as in Western Australia, there is a unified profession, some law firms give over an entire floor to ‘litigation counsel’. These are partners and associates in the firm who effectively operate as barristers. They have no direct dealings with clients. They are brought into cases by other partners or associates in the same firm whenever advocacy is required. It is a separate bar in all but name. But it is considered necessary if the firm was to maintain the same level of litigation expertise as they would face at federal level when opposing leading silks from New South Wales.”
The bar is a referral profession. That is to say it does not deal directly with clients but has clients referred to it when necessary by solicitors whose practice brings them in direct contact with the public. One of the many functions of a solicitor is to advise a client when the engagement of counsel is either desirable or necessary and as to who that counsel should be. Of course there are solicitors who are or have been skilled advocates in criminal trials before a judge and jury, having devoted much of their professional practice developing those skills just as there are or have been barristers who do not profess to have full professional skills in advocacy having specialised exclusively in non court work such as conveyancing but these are very much in a minority in both professions and an exception to the general rule. In general the nature of a solicitor’s professional practice is such that he or she is committed to working on behalf of clients principally in their offices, a professional practice which they could not maintain if they were to prepare for and appear in jury trial courts with regularity. Most of the legal services required by most clients can be fully provided by a solicitor. When a client needs, exceptionally, for the purpose of legal representation or advice, the professional advice or representation of a barrister, the solicitor has at his disposal an ad hoc “partner” so to speak who can be briefed according to that barrister’s general or specialised skills that best serves the particular needs of the client on a particular matter.
Solicitors, as well as barristers, are of course professionally skilled to deal with cases in the District Court, particularly those who are on legal aid panels, because that is where they have professionally exercised and developed their skills in the course of their career. The fact is that District Court cases are heard in a local court and are in the main short cases (as opposed to criminal trials which can last many weeks). Again they are in general less complex and there is less at stake. That is not in any way to suggest that they are not important or serious cases which at times will give rise to complex legal issues.

There are many criminal cases which come before the District Court which are serious and complex. Solicitors are professionally well qualified to represent and conduct defences on behalf of defendants in such cases so as to meet the requirements of constitutional justice. But the question, as properly raised by the appellant, is whether that can be said of all cases where there is a confluence of the gravity of the charges and particular complexity or other factors.

As O’Higgins J., also stated in the Healy case:

“However, criminal charges vary in seriousness. There are thousands of trivial charges prosecuted in the District Court throughout the State every day. In respect of all of these there must be fairness and fairness of procedures, there may be other cases in which more is required where justice may be a more exacting task-master. The requirements of fairness and of justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him. Where a man’s liberty is at stake, or where he faces a very severe penalty which may affect his welfare or livelihood, justice may require more than the application of normal and fair procedures in relation to his trial.”
Then in referring to a citizen unable to defend himself adequately O’Higgins C.J., added:
“In such circumstances his plight may require, if justice is to be done, that he should have legal assistance. In such circumstances if he cannot provide such assistance by reason of lack of means, does justice under the Constitution also require that he be aided in his defence? In my view it does.”
The Court reiterates the view that the principles of constitutional justice require that a person who is charged with an offence before the District Court and who does not have the means to pay for legal representation be provided by the State with legal representation that is necessary to enable him or her to prepare and conduct the defence to the charge. The legal representation provided must be that which is essential in the interests of justice having regard to the gravity of the charge, the complexity of the case including the applicable law and any exceptional circumstances.
These criteria are very close to if not substantially the same as the criteria set out in s. 2(1) of the Act for the grant of legal aid in the District Court but, as already pointed out, the issue of the compatibility of that section with the Constitution is said to arise because the Act does not provide for the possibility of legal aid being granted for representation by counsel in any case irrespective of the circumstances.
The Criminal Jurisdiction of the District Court
In 2008 the number of criminal cases disposed of summarily in the District Court was 550,694. Of these approximately 65% were road traffic offences. Perhaps more relevant in the present context is the fact that the District Court dealt with 68,491 offences which were indictable offences. During the same year some 11,747 persons in respect of 18,440 offences were sentenced to detention or imprisonment by that Court. The number which were sentenced to detention or imprisonment is indicative of the seriousness of the offences which may be tried in the District Court and does not include those persons who were acquitted, fined or otherwise dealt with on charges with potentially serious consequences. Furthermore, even where no detention or imprisonment is imposed, conviction for an offence before the District Court may, because of its nature, result in serious reputational damage to a citizen in the eyes of the community.

In the Healy case in 1976 the Court was not asked whether the lack of jurisdiction in the District Court to consider the possibility of providing a poor person with the assistance of counsel in addition to a solicitor was compatible with the Constitution. It would be idle now to speculate on what it would have decided had that issue been raised. This Court must deal with the issue as it presents itself today in the context of the ambit of the jurisdiction of the District Court in criminal matters. As Kenny J., observed in the Healy case “It would be foolish to lay down what constitutes a fair trial because its requisites change from generation to generation”.

It would still be true to say that the District Court does deal with thousands of relatively trivial cases and also that as a general rule the more serious or complex criminal cases requiring legal aid could not, in the Court’s view, require more than the services of a professional solicitor to meet the essential requirements of justice.

Account must however be taken of the fact that the legal environment to which the District Court exercised its criminal jurisdiction has changed significantly since the Act of 1962 was introduced.

In 1962 any consecutive term of imprisonment which could be imposed by the District Court could not exceed 12 months, by virtue of s. 5 of the Criminal Justice Act 1951. The section provided that where two or more sentences passed in respect of a defendant by the District Court were ordered to run consecutively “the aggregate term of imprisonment shall not exceed 12 months”.

This section was amended in 1984 by the Criminal Justice Act which substituted the period of 2 years for the aforementioned period of 12 months. Thus, since 1984 where the District Court imposes two or more sentences to run consecutively the aggregate term of imprisonment may be twice the amount which it was in 1962. No change was made as regards the provision of legal aid.

Perhaps of even more pertinence is the fact that there is a wide range of potentially complex offences created in recent decades for which the District Court now has jurisdiction and which have serious import from both the perspective of the public interest and defendants. Many of these offences arise from the introduction of modern regulatory regimes often accompanied by regulatory bodies with powers of prosecution.

Such offences arise in areas such as competition law, (enforced by the Competition Authority), consumer protection (enforced by the Consumer Protection Agency), environmental law including illegal dumping, handling of hazardous waste, environmental pollution, and planning (enforced by the Environment Protection Agency, local authorities, planning authorities and other agencies), food safety (enforced by the Food Safety Authority), company law including corporate governance (Director of Corporate Enforcement) to name at least some.

In addition of course the nature and volume of crime has changed dramatically over the decades. For example dealing in and supplying illicit drugs was virtually unknown in the 1960s. Successive statutes, apart from amending legislation governing long standing criminal offences, have created new ones. The offence of possession of child pornography, which may in certain circumstances be tried summarily, is an example. Another obvious example is the regulation of the farming or agriculture industry which has seen a host of regulatory measures often, as in this case, designed to protect a vital industry from the hazards of animal disease and also public health. Such regulatory measures may be introduced in the implementation of national policies or be required to be introduced as a result of obligations arising from EU legislation.

There can be no doubt that over recent decades the enforcement and application of the criminal law in the District Court has become more complex.

In his book on sentencing law and practice, Mr. Thomas O’Malley, summarised some aspects of the evolution of the criminal jurisdiction of the District Court. He noted that:

“As a result of a series of statutes enacted during the past 50 years or so, the District Court now deals with a large amount of indictable crimes. The Criminal Justice Act 1951 provided for the summary trial of several commonly prosecuted indictable offences, subject to certain conditions precedent. The District Court jurisdiction was further enlarged by s. 13 of the Criminal Procedure Act 1967 which allows it to deal with any indictable offence, apart from a few serious ones, where the accused pleads guilty and the likely sentence is within the Court’s jurisdiction. The Criminal Justice Act 1984 increased the penalties available to the District Court when dealing with indictable offences … . The Criminal Justice (Theft and Fraud Offences) Act 2001, which revised and codified the law on theft and related offences, allows for the summary trial of any indictable offence created by the Act, including robbery and burglary subject to conditions virtually identical to those listed in the Act of 1951. These statutes are significant landmarks in the expansion of summary jurisdiction, but no less important is the legislative practice which has grown in popularity over the last 20 years or so, of creating offences triable either summarily or on indictment at the election of the D.P.P.
As a result of all these developments the District Court’s criminal jurisdiction has grown enormously ….”

The Right to Seek Legal Aid in Contemporary Circumstances
It is in the foregoing context that the Court is asked to consider whether a defendant without sufficient means who is to be tried on a criminal charge before the District Court has a constitutional right to make an application for legal aid for both solicitor and counsel and have that application determined on its merits in the essential interests of justice.
In support of his contention the appellant relied in part on the fact that the State prosecutor in this case chose to be represented by solicitor and counsel. It was pointed out on behalf of the appellant that such counsel was part of a “special panel of experienced counsel”, ten in number, who habitually represent the State in such prosecutions. It appears that that panel consists of members of the Bar of high standing and long professional experience including at least 3 senior counsel who could be counted among leaders of the Bar one of whom, regrettably, is now deceased. Curiously, State counsel were not in the position to confirm or reject the existence of the panel but acknowledged that counsel was engaged in the case against the appellant. In fact the evidence in the High Court was that most of the prosecutions of the kind involved in this case were conducted by counsel on behalf of the State.

At one point it was suggested by counsel for the State that the retention of counsel conferred no “added value” and he speculated that if counsel were retained it was possibly to avoid a “valuable solicitor” having to leave his office and conduct the prosecution. It is not necessary to pronounce on the State’s explanation for the engagement of counsel in this particular case although the Court is not entirely convinced by the suggested explanation for that. It may well be that an agency or authority which has the responsibility for enforcing the regulatory regime in the courts throughout the country might engage counsel for reasons that are not germane to the gravity or complexity of a particular case. Neither does the Court exclude the possibility that the very reason for engaging counsel may be due to particularly contentious issues of fact or the particular complexity of the law governing an offence.

It is nonetheless a fact that the State, with all the resources which it has at its disposal, is at liberty to engage counsel to act for the prosecution before the District Court irrespective of whether the services of counsel in addition to that of a solicitor are strictly required by the circumstances of the case. More relevantly it may do so because the State considers representation by counsel is necessary due to the complexity or gravity of the case.

Counsel for the appellant did however rely on the principle of “equality of arms”. Quite correctly, counsel did not go so far as to say that equality of arms meant parity of representation – so as to claim that where the State is represented by counsel a defendant had a right to be represented by counsel. To adopt an observation, cited by the amicus curiae, made by the European Court of Human Rights in Steel & Morris v. United Kingdom [2005] 41 EHRR “The adversarial system … is based on the idea that justice can be achieved if the parties to a legal dispute are able to adduce their evidence and test their opponent’s evidence in circumstances of reasonable equality.” And it might also be noted that that Court has not found that simple parity of representation is required by the principle of “equality of arms”. In general terms the principle or notion of equality of arms means that neither party in criminal trials should be procedurally disadvantaged as compared to the other party. As Henchy J., put it in the Healy case, a defendant is entitled to have his or her trial conducted in the manner which would not “shut him out from a reasonable opportunity of establishing his innocence; or, … of receiving a sentence appropriate to his degree of guilt and his relevant circumstances”. The notion of “equality of arms” is but one aspect of the general right to a fair trial or a trial in due course of law. Therefore the Court does not consider it necessary to analyse that notion further for present purposes since the issue in this case falls to be decided within the broader notion of right to a just or fair trial. Within that broader concept the fact that the State prosecutor is represented by solicitor and counsel may be a relevant factor should a court or other body have to determine whether the defendant should also be represented by counsel as well as a solicitor. If such a question fell to be determined by the District Court, which of course it has no power to do at present, and it was satisfied that granting legal aid for a solicitor only, notwithstanding the appearance of counsel for the State, was sufficient to meet the essential requirements of justice in providing effective legal representation then the constitutional obligation to the defendant would be met. On the other hand, in deciding whether legal aid should be granted to include counsel as well as solicitor such a court would in such instance, be entitled to take into account the fact that the State were represented by counsel in determining whether there were particular aspects of the case as regards the gravity, complexity or other exceptional circumstances which required the grant of legal aid for counsel in all the circumstances of that case. In making the foregoing observations the Court does not purport to pronounce in this judgment, for reasons stated later, on whether in fact in the circumstances of this particular case the appellant should be granted the services of counsel on legal aid.

It is also appropriate to note that the right to a fair trial is a right of both the prosecution and a defendant. It is a right which is protected in any modern, democratic society in the interests of society as a whole and indeed is one which is enshrined in the Constitution by the decision of the people. Sometimes simplistic and unthinking comments surface in the public arena suggesting that fairness and fair procedures at a criminal trial only exist for the benefit of criminals. So far as a defendant is concerned these are protections in place for every citizen charged with a criminal offence, who enjoys the presumption of innocence unless proven guilty. Furthermore the constitutional guarantee to a fair trial minimises as far as reasonably possible the risk of an innocent person being convicted of an offence. The fact that an accused’s defence can be effectively and fairly advanced at a trial is essential for the purpose of public confidence in the system of trial. It also gives confidence to the victims that the true perpetrator of the crime has been convicted. It is of no benefit, to say the least, to a victim or society in general if a conviction is later set aside on the grounds of a miscarriage of justice at a time when the trail to the true culprit may have become obliterated or difficult to pick up again with the passage of time.

In this case the Court must address the issues raised by the appellant concerning his right to apply for criminal legal aid and the constitutionality of s. 2(1) of the Act of 1962 in the light of the constitutional principles governing the right to a fair trial referred to earlier in this judgment and the nature and scope of the criminal jurisdiction which the District Court exercises today.

There is no doubt that s. 2(1) of the Act of 1962 accords only limited jurisdiction to the District Court to grant legal aid in criminal cases being tried before it. If legal aid is necessary in the interests of justice the certificate for legal aid granted by the District Court may only provide for representation by a solicitor. It has no jurisdiction whatsoever to provide for representation by counsel in a criminal trial in that court.

That is to say that whatever “the gravity of the charge”, whatever “exceptional circumstances” may exist and whatever “the interests of justice” might require, a defendant in a trial before the District Court has no right to apply for legal aid to include counsel.

Unless it could be assumed that no criminal case which comes before the District Court could ever require representation by counsel, in order to ensure that the trial was in accordance with the requirements of constitutional justice, this limitation on a poor defendant’s right to apply for legal aid must be considered arbitrary.

Having regard to the extremely wide scope and range of offences which come within the jurisdiction of the District Court in the field of criminal law and the increased complexity of modern legislation and regulatory measures, with which the Court is by no means unfamiliar, the Court is satisfied not only that the necessity in the interests of justice for a defendant to be represented by counsel as well as solicitor cannot be excluded but that cases, however infrequently that may be, will inevitably arise where it would be essential that an indigent defendant be afforded such legal aid.

In order to vindicate the constitutional right of an indigent defendant in the District Court to a fair trial he or she must be entitled to legal aid with representation by counsel as well as solicitor where it is established that because of the particular gravity and complexity of the case or other exceptional circumstances such representation is essential in the interests of justice. It follows that any such defendant must have a right to apply for such legal aid and have the application determined on its merits.
Context and Ambit of the Right to Criminal Legal Aid
Having determined that a defendant in criminal proceedings before the District Court has a constitutional right to apply for legal aid to include counsel and before proceeding to determine what impact, if any, such a determination has on the constitutionality of s. 2(1) of the Act of 1962 the Court feels it should make some observations to place the ambit of that right in context.

The constitutional obligation on the State to vindicate the rights of an indigent defendant to legal representation is met by providing him or her with legal aid to obtain such representation for the preparation and conduct of a defence which is essential to the interests of justice but no more. The State is not bound to provide what might be perceived by an individual defendant to be the optimum form of representation or that which he or she desires. Undoubtedly a reason why the State would limit the provision of legal aid, as it has sought to generally in the Act of 1962, to that which is required in the essential interests of justice, is the burden which the public purse would otherwise have to bear if the scheme had too broad a criteria for the grant of legal aid. In this context it must be said that a Court when considering whether to grant legal aid usually has little more to rely on other than the required form which has been filled out by the defendant/applicant. A Court, such as the District Court, is only rarely in a position to go behind what is stated in the application form or in an uncontradicted statement made in Court. The D.P.P., understandably, is given no particular role in relation to the grant or refusal of legal aid. A Court is not an investigatory body but the State has investigatory means at its disposal. Rarely does the State raise any objection at the time of the initial application for legal aid, or subsequently, concerning the means of a defendant to pay for his or her own defence. That said, it is probably the situation in most such cases that the circumstances of a defendant as known by the Gardaí make it obvious that he or she is a person who cannot afford their own representation.

As earlier emphasised the Court is of the view that those criminal cases in which the District Court grants legal aid the right of a defendant to such legal aid will normally continue to be met when he or she is awarded legal aid for a solicitor only. This is so even where the case may be considered to be grave, complex or involve other exceptional circumstances. District Court trials are less formal than jury trials. There are also procedural options available to the District Court which may facilitate the defence in certain circumstances. Unlike jury trials, hearings in the District Court may be adjourned mid-hearing if this is necessary to permit a defendant’s solicitor to deal with an issue which for good and sufficient reason cannot be addressed there and then. In substance it would be a question of judgment in each case for the Judge (assuming that a Court was conferred with such jurisdiction) concerned based on the degree of gravity and complexity in conjunction with any other exceptional circumstances of the case which may be taken into account, and which taken together necessitate a conclusion that the legal aid granted should include counsel. The object is to enable a defendant to be legally represented so that his or her defence can be properly prepared and fairly put.

In considering the legal aid to be granted a court would be bound to take into account any procedural measures which may assist the defendant in the preparation and presentation of his case. This may include the fact that the defence, in some cases at least, is provided with the statements setting out the evidence which the prosecution propose to call. This procedure is often followed in the District Court where the interests of justice in the particular case require that this be done. Although it is a relatively rare occurrence in the District Court there have been cases where the prosecution have been required to furnish written submissions on the law, in advance of a final decision, to the Court and to the defence. This gives advance notice to the defence of the legal ground which the prosecution intends to traverse and though, naturally not bound in any way by the approach of the prosecution in such submissions, in particularly complex cases the procedure may facilitate the defence in addressing particular legal issues.
The Effect of section 2(1) of the Act of 1962
As has been pointed out earlier in this judgment when the Act of 1962 was introduced it was regarded as the State’s first tentative but meaningful step in the provision of legal aid for poor persons. Prior to that such legal aid was virtually non-existent except for murder cases. Section 2 of the Act of 1962 conferred jurisdiction on the District Court to grant legal aid where none previously existed. In doing so the Act was fulfilling a constitutional imperative as was pointed out in the several judgments of this Court in the Healy case.

As O’Higgins C.J., stated at page 351 in that case “It seems to me that in 1962 the State recognised the existence of this fundamental right when the Oireachtas passed the Criminal Justice (Legal Aid) Act of that year … to the extent that this Act provides for legal aid, it discharges what I consider to be the constitutional duty imposed on the State. (emphasis added).

Subsequently in his judgment (at page 352) O’Higgins C.J., added “While I regard the Act as a recognition by the State of what is the constitutional right of a poor person facing a serious criminal charge, I do not say that the provisions of the Act match exactly what the Constitution requires”. Although he then went on to say that the right of an accused, as expressed in the Act, to be represented by solicitor and counsel of his choice might be narrowed or circumscribed and still be consistent with the Constitution, O’Higgins C.J., was clearly of the view that the Act, insofar as it went, consisted of positive provisions designed to give effect to the constitutional right of poor persons to legal aid without being definitive as to the extent of the constitutional right. Although the constitutionality of the Act was not in issue in that case that approach is of course the correct one since the ambit of any right can only be determined by reference to the provisions of the Constitution themselves.

In very much the same vein Henchy J., at page 354 of the Report in the Healy case said of s. 2(1) “So far as the section goes, it is the legislature’s implementation of the constitutional safeguards for the personal liberty of poor persons who are charged with criminal offences”. (Emphasis added).

In the Court’s view the provisions of the Act of 1962 and in particular s. 2(1) are positive rather than prohibitive or restrictive in that they conferred, for the first time, on the District Court jurisdiction to grant legal aid in specified circumstances in the furtherance of a constitutional right.

As both O’Higgins C.J., and Henchy J., observed in the Healy case, s. 2(1) insofar as it goes, vindicates a constitutional right in permitting defendants to apply for free legal representation by a solicitor in criminal trials before the District Court. As the Court has already pointed out that must be considered sufficient to vindicate that right in the vast majority of such cases. Notwithstanding the positive nature of the provisions of s. 2(1) the appellant complains that he has been deprived of his constitutional right to apply, and where appropriate be granted, legal aid to include counsel as well as solicitor.

The absence of a right to apply for such legal aid in the District Court, prior to 1962 and since, stems not from the specific provisions of the Act of 1962 and in particular from any prohibition in that Act, but from the failure of the Oireachtas to confer at any time on the District Court or any other body, jurisdiction to consider an application for legal aid to include solicitor and counsel in the exceptional circumstances to which the Court has referred above.

Since the effect of the Act of 1962 is to confer on the District Court jurisdiction to grant legal aid in circumstances it never had previously the mischief complained of by the appellant stems not from the effect of its provisions but from the failure of the State to make provision at any time for such legal aid.

In considering this issue the Court considers it relevant to point to the provisions of Article 15.4.2 of the Constitution which provides as follows:

“Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.”
Of course before that particular provision can be considered relevant there must be a determination that the provision of an Act is in some respect repugnant to the Constitution.
From the perspective of the appellant it is claimed that there is a constitutional deficiency in the Act in failing to provide a statutory mechanism which will enable a defendant to apply for, and obtain in appropriate circumstances, legal aid which would include counsel as well as solicitor in criminal cases before the District Court. However, as previously pointed out, and as emphasised in the Healy case, the duty of providing adequate legal representation in criminal cases to persons who cannot afford it themselves rests with the State. It is a matter in the first instance for the State to provide the mechanism or procedures by which this right may be vindicated. It may do so by statutory or administrative means provided the provision of such legal aid is secured in a sufficiently clear and certain manner. There is nothing in the provisions of the Act of 1962, and in particular in s. 2(1), which could be said to prohibit or create an obstacle to the introduction by the State of procedures or means which would enable a defendant in a criminal prosecution before the District Court to apply for legal aid which could, in particular circumstances, include representation by counsel. This is so even if the State chose to provide such legal aid by supplemental or other provisions amending the Act of 1962.

So far as the right to be represented by a solicitor in such cases is concerned the Court is satisfied that s. 2(1) insofar as it goes secures that constitutional right, although to a limited extent, and cannot be considered repugnant to the Constitution in any respect. There may be circumstances where the provisions of an Act facilitate the exercise of a constitutional right to a limited extent only but nonetheless limit the exercise of the constitutional right in a manner which has other consequences which are incompatible with the Constitution such as invidious discrimination. As regards the Act of 1962 the Court does not consider that any other consequences of that nature arise in this case.

Accordingly, the absence of a right to apply for legal aid to include counsel in appropriate cases must properly be considered as stemming from a failure of the State to make by one means or another, specific provision for such legal aid rather than from any provision, in particular any prohibition, in the Act of 1962.
Remedy
As pointed out at the outset of this judgment the substance of the appellant’s claim is that he has no right to apply for criminal legal aid in a District Court trial which would provide him with representation by counsel as well as a solicitor and therefore no right to be granted such legal aid where the essential interests of justice so require. On this basis he has claimed that s. 2(1) of the Act is repugnant to the Constitution.

The Court has already determined that the denial of an opportunity to apply for and be granted, where appropriate, such legal aid is a denial of a constitutional right.

He is entitled to have that constitutional right vindicated. Article 40.3 of the Constitution imposes on the organs of government of the State the duty to defend and vindicate the personal rights of the citizen.

As this Court has frequently pointed out, and as Henchy J., repeated in the Healy case, this Court is one of the organs of government, the judicial organ. In exercising its judicial functions it must seek to vindicate such rights.

In doing so the Court is not confined to the specific form of remedy sought by a claimant who has established that his or her fundamental rights under the Constitution are being denied. Where that is established this Court has jurisdiction pursuant to the provisions of the Constitution and in particular Article 40.3 to grant such remedy as it considers necessary to vindicate the right concerned. As Barrington J., pointed out in McDonnell –v- Ireland [1998] 1I.R. 134 at 148 “… when the Legislature has failed in its constitutional duty to defend or vindicate a particular constitutional right pursuant to the provisions of Article 40.3 of the Constitution … this Court, as the Court of last resort, will feel obliged to fashion its own remedies.”

The Court is satisfied that it would be unjust and contrary to the appellant’s right to a trial “in due course of law” as required by Article 38.1 of the Constitution if the prosecution of the charges brought against him were allowed to proceed while he is denied the right to apply for legal aid to include solicitor and counsel and have that application determined on its merits. To allow a trial to proceed without any possibility of determining whether it was essential to a fair hearing that the defendant be represented by solicitor and counsel would be, in the words of O’Higgins J., in the Healy case, “to tolerate injustice”.
Conclusion on First Issue raised by the Appellant
A consequence of this conclusion is that the appellant in this case cannot be tried unless and until he is afforded an opportunity to apply for legal aid to include solicitor and counsel and have that application determined on its merits having regard to the considerations referred to in this judgment. The State has in place more than one scheme for legal aid generally by which the rights of citizens to such legal aid are secured through either statutory or administrative measures. The obligation which rests on the State is to secure for defendants, either by administrative or statutory means, the right to apply for appropriate legal aid for those charged with criminal offences. It is for the State to determine the Court or other body which should have responsibility for deciding on the merits of such an application.

Accordingly the Court will grant a declaration that the appellant has a constitutional right to apply, prior to being tried, for legal aid in the criminal proceedings brought against him in the District Court and to have that application heard and determined on its merits. It will also make an Order prohibiting the prosecution from proceeding in respect of the criminal charges referred to in these proceedings unless and until the appellant is afforded that right.

The Second Ground relied upon by the Appellant concerning the Constitutional Issue
The second ground on which the appellant relies concerns his claim that not only had he a right to apply for legal aid to include counsel and have that application determined on its merits, the first ground, but that he was actually entitled on the merits of this case, having regard to its gravity and complexity, to legal aid for a solicitor and counsel. Firstly, the Court does not consider it necessary to decide that issue in the light of the conclusions it has already come to. Secondly the Court is of the view that the determination as to whether a defendant in criminal proceedings before the District Court should be granted legal aid to include counsel as well as solicitor should be heard and determined by a Court or body on which the State has conferred the jurisdiction or power to grant such legal aid in appropriate circumstances.

Section 5 of the European Convention on Human Rights Act 2003
The Court is satisfied that the remedies which are being afforded to the appellant in these proceedings are adequate to remedy the complaints which he has made with regard to his constitutional rights to legal aid and therefore the question of considering the compatibility of any provision of the Act of 1962 with the European Convention on Human Rights pursuant to s. 5 of the Act of 2003 does not arise.
Order
Accordingly, for the reasons set out in this judgment the Court will allow the appeal and make a declaration that the appellant, as a defendant in a criminal prosecution before the District Court has a constitutional right, prior to being tried, to apply to and have determined by a court or other appropriate body whether he should be granted legal aid to include representation by counsel as well as by a solicitor. The Court will make an order prohibiting the State from proceeding with the prosecution unless and until he is afforded that right.

D.X. v Buttimer

[2012] IEHC 175

JUDGMENT of Mr. Justice Hogan delivered on the 25th April, 2012
1. In these judicial review proceedings the applicant (whom I shall describe as “Mr. X.”) moves the Court for an order of certiorari to quash a decree of judicial separation in respect of the applicant’s marriage to the notice party (whom I shall describe as Ms. Y.) on 12th April, 1991, granted by the respondent, Her Honour Judge Buttimer, on the 8th June, 2011, pursuant to s. 3 of the Judicial Separation and Family Law Reform Act 1989 (“the Act of 1989”). The decree was granted pursuant to s. 2(1)(f) of the Act of 1989, namely, that the Court satisfied that in all the circumstances “a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application”. I should say that the applicant has appealed Judge Buttimer’s decision to the High Court, but that that appeal has been stayed pending the outcome of these judicial review proceedings,

2, The order made by Judge Buttimer also provided for the sale of the parties’ family home (which I will describe as “Z House”), along with an immediately adjacent property (which I will describe as “Y Lodge’). That House is quite substantial and the parties live apart – albeit with some difficulty – under the same roof. The notice party’s sister, Ms. T., lives in Y Lodge. This property was entirely rebuilt and refurbished over a decade ago and since then the property has been used by Ms. T. and, prior to her death in 2006, by her mother, Ms. I. Ms. Y and Ms. T. are the registered owners of Y Lodge. Both Mr. X and Ms. Y. represented themselves in person, save that Mr. X. was also assisted by his friend, Ms. S. While the Court would, of course, have jurisdiction to direct the sale of property (other than the family home) such as the Lodge where “either of the spouses has a beneficial interest”, this is contingent on the court having first made a secured periodical payments order, a lump sum order or a property adjustment order: see s. 15(1) of the Family Law Act 1995. Judged by the terms of the order actually made, it is not clear to me that the judge had, in fact, made an order of the kind (such as, for example, a lump sum order) which is deemed by the sub-section to be an essential prerequisite to the exercise of that jurisdiction to direct sale of property not comprising the family home.

3, Mr. X. contends that the order is ultra vires in three separate respects. First, he maintains that Judge Buttimer acted contrary to fair procedures and in breach of s. 40(5) of the Civil Liability and Courts Act 2004 (“the Act of 2004”) in failing to permit him to be attended in court by a friend of his, Ms. S., even though he was legally represented in those proceedings. Second, he says that Judge Buttimer wrongly permitted Ms. T. to be present for part of the judicial separation proceedings. Third, he contends that the order should not have directed the sale of both the lodge together with the house. We can now proceed to a consideration of these arguments in turn
First issue: Whether Judge Buttimer acted ultra vires in refusing to permit Mr. X. to be assisted by a friend
4. Mr. X. was treated for cancer of the larynx in 1997 and, as a result, suffered a largnectomy. He can speak, but with considerable difficulty and he tires easily as a result. Furthermore, his speech cannot always be easily understood by those who are not familiar with his condition. Mr. X. sought to have Ms. S. admitted to the family law proceedings Circuit Court, but this was refused by the respondent following an objection in that behalf by counsel for the notice party, Ms. Y. In the present proceedings, as I have already noted, both Mr. X and Ms. Y appeared in person, with Mr. X. assisted by Ms. S.

5. Article 34.1 of the Constitution provides that justice is to be administered in public, save “in such special and limited cases as may be prescribed by law.” If the proceedings were in open court, then there could be no possible justification for the exclusion of Ms. S. It is true, however, that s. 34 of the Act of 1989 provides that judicial separation proceedings “shall be heard otherwise than in public” and this section must be taken to constitute such a special and limited case for the purposes of Article 34.1.

6. The language of Article 34.1 nevertheless reflects the Constitution’s preference for the open administration of justice and derogations from that rule must truly be confined to “special and limited cases prescribed by law” in the relatively narrow sense of that term. In the present case, the exception prescribed by s. 34 of the Act of 1989 must be taken as reflecting a desire by the Oireachtas to protect other constitutional values in the context of family law proceedings such as the right to privacy (Article 40.3.1), the authority of the family (Article 41) and the protection of the constitutional rights of children (Article 42.5). It is in that context that s. 34 of the Act of 1989 falls to be interpreted.

7. Experience had shown, however, that the mandatory nature of s. 34 of the Act of 1989 as originally enacted was capable of having unintended effects which were not altogether satisfactory. Thus, in Tesco (Ire.) Ltd. v. McGrath, High Court, 14th June 1999, Morris P. held that the effect of the prohibition was to preclude the release of court orders concerning the sale of property, even in those cases where these orders might well be critical so far as the title of third parties was concerned. Likewise, in RM v. DM [2000] IEHC 140, [2000] 3 IR 373 Murphy J. held that the section precluded the disclosure of pleadings captured by the in camera rule to professional disciplinary body which was examining a complaint against a legal representative.

8. Conscious of the fact that the wording of this statutory prohibition had consequences which were not merely unintended, but went further than was reasonably necessary to achieve the original statutory objectives, the Oireachtas concluded that the (apparently) unqualified nature of the prohibition should be diluted. Thus, for example, s. 40(4) of the Civil Liability and Courts Act 2004 (“the Act of 2004”) now provides that the statutory prohibition should not permit the disclosure of the extracts from courts orders in family law proceedings to relevant third parties.

9. Section 40(5) of the Act of 2004 is in the same vein in that it provides:-

“(5) Nothing contained in a relevant enactment shall operate to prohibit a party to proceedings to which the enactment relates from being accompanied, in such proceedings, in court by another person subject to the approval of the court and any directions it may give in that behalf.”
10. Legal proceedings are, of course, stressful occasions for the parties and this is especially true of family law proceedings. While it is true that the interests of most litigants are represented by legal professionals, many litigants nonetheless find the entire experience so daunting that they would wish to have the company of a friend to provide support and reassurance quite independently of legal advisers. This, in effect, is what s. 40(5) seeks to achieve. This provision complements s. 33(1) of the Act of 1989 which provides that:-
“Circuit Family Court proceedings shall be as informal as is practicable and consistent with the administration of justice.”
11. The background to s. 40(5) can be traced to the important decision of Macken J. in RD v. McGuinness [1999] 2 IR 411. Here the applicant sought to have the assistance of a lay friend in proceedings arising under the Domestic Violence Act 1996. Likes. 34 of the Act of 1989, s. 16 of the Act of 1996 provides that such proceedings shall be held “otherwise than in public”. Macken J. acknowledged that a litigant in person generally enjoys the right to have such assistance ([1999] 2 IR 411 at 421):-
“..a person who prosecutes proceedings in person is entitled to be accompanies in a court by a friend who may take notes on his behalf and quietly make suggestions and assist him generally during the hearing but who may not act as advocate.”
12. Macken J. went on to hold, however, that this common law principle was tacitly overridden by the statutory prohibition. The presence of the lay friend would render the proceedings “otherwise than in public”, since that friend would be in attendance “in that friend’s capacity as a member of the public and not otherwise.” Absent evidence that to hold otherwise would have deprived the appellant of his right to a fair trial in the circumstances of the case, Macken J. held that she “could not justify setting aside or ignoring the clear mandatory words of s. 16 of the Act of 1996.” Section 40(5) of the Act of 2004 takes cognisance of the decision in R.D. and acknowledges the general right to have a friend present in court, subject to the approval of the court and the right of the court to impose conditions. These conditions could, for example, include an undertaking to respect the confidentiality of the proceedings or, that matter, an undertaking that, in the words of Macken J. in R.D., the friend would simply “take notes on his behalf and quietly make suggestions and assist him generally during the hearing.”
13. So far as the present case is concerned, it would appear that the respondent decided to exclude Ms. S. because Mr. X. was already legally represented. That in itself, however, is not a good reason for excluding Ms. S, since the legislative policy informing s. 40(5) clearly presumptively favours the right of a litigant to choose a friend to accompany them in court, irrespective of whether that litigant is already legally represented. No other reason was advanced in respect of the admission of Ms. S. to the proceedings and in these circumstances I am constrained to hold that the respondent thereby erred in law in directing her exclusion having regard to the provisions of s. 40(5). As I have already noted, had Ms. S. been admitted to the proceedings, it would have been open to the respondent to prescribe conditions regarding such admission- ass. 40(5) expressly so provides- but this is not an issue which I am now required to consider.

14. There was, moreover, a further particular reason why the respondent could not properly have excluded Ms. S. in the circumstances. Mr X.’s largnectomy considerably affected his capacity to speak and he was hugely dependent on Ms. S. for all types of practical assistance. Furthermore, she was familiar with his manner of speaking and she could probably have directly conveyed his instructions to his legal team better than anyone else. Article 40.1 of the Constitution obliges the judicial branch of government to ensure that all persons are “held equal before the law.” In practical terms, this means that the courts must see to it that, where this is practical and feasible in the circumstances, litigants suffering a physical disability (such as Mr. X.) are not placed at a disadvantage as compared with their able-bodied opponents by reason of that disability, so that all litigants are truly held equal before the law in the real sense which the Constitution enjoins. As Denham C.J. pointed out in MD v. Ireland [2012] IESC 12, “applying the same treatment to all human persons is not always desirable because it could lead to indirect inequality because of the different circumstances in which people find themselves.”

15. Yet absent the presence of Ms. S., Mr. X. was placed at such a disadvantage, since her presence was vital to assist him in view of his particular disability in giving effective instructions to his legal team.

16. In these particular and unusual circumstances, the failure of the respondent to permit Mr. X. to have Ms. S. present to give the kind of practical assistance which the able-bodied litigant takes for granted also amounted to a breach of Article 40.1.
Conclusions on the exclusion of Ms. S.
17. For the reasons just stated, it is plain that the respondent acted unlawfully in refusing to admit Ms. S. to the proceedings. The applicant has fairly conceded in argument that this decision did not in itself affect the fairness of the hearing or the legality of the judicial separation order. In these circumstances I propose merely to grant a declaration that this exclusion of Ms. S. from the hearing before the respondent was ultra vires s. 40(5) of the Act of 2004. This will not in itself otherwise affect the validity of the Circuit Court order.
Second issue: The presence of Ms. T. during part of the hearing
18. The applicant next objects to the fact that Ms. Y’s sister, Ms. T., was also allowed be present in court for at least part of the hearing (albeit very briefly) and to participate in the proceedings insofar as the proceedings concerned her interests. But in my view this was essential if Ms. T.’s legitimate interests- not least joint her joint ownership of the Lodge with Ms. Y.- were to be protected and the principle of fair procedures vouchsafed. This is especially so given that the Lodge is immediately adjacent to Z House and given further that Ms. Y. herself is registered as a joint owner of that property.

19. In my judgment, this case falls squarely within one of the specific exceptions to the in camera rule provided for ins. 40(8) of the Act of 2004:-

“(8) A court hearing proceedings under a relevant enactment shall, on its own motion or on the application of one of the parties to the proceedings, have discretion to order disclosure of documents, information or evidence connected with or arising in the course of the proceedings to third parties if such disclosure is required to protect the legitimate interests of a party or other person affected by the proceedings.”
20. While this sub-section is designed to deal with the release of information (such as court orders) to third parties – and thereby deals with the issue which arose in Tesco -it is also broad enough to permit the presence of third parties (such as Ms. T.) whose interests might otherwise be affected.
Conclusions with regard to the presence of Ms. T. during the proceedings
21. In that respect, therefore, such disclosure of documents, information and evidence as was necessary to protect the legitimate interests of Ms. T. was sanctioned by s. 40(8). It follows that Judge Buttimer was fully entitled- indeed, obliged- to permit Ms. T. to be present for those parts of the hearing as concerned her own property rights in the Lodge were concerned.

22. Perhaps the real objection on this score on the part of the applicant was that the respondent had ordered the sale of the Lodge in circumstances where it was not the family home, so that if the Lodge was not to have been sold as part of this process, then there would have been no need for Ms. T. (or her representatives) to have been present. This brings squarely into play the question of whether the Court had such a jurisdiction to direct the sale of this property in circumstances where the statutory prerequisites to jurisdiction were not (or, at least, do not appear to have been) satisfied. This is the third issue to which we can now turn.
Third issue: The sale of the lodge as well as the house
23. The order of the Circuit Court of 8th June 2011 provided for:-

“…the sale of the family home of the parties being the property situate and known as [Z House][address given] together with the property adjacent thereto situate and known as [Y Lodge][address give] and being in the ownership of [Ms. Y. and Ms. T.], in one or two lots.”
24. The order recited further that the respective auctioneers for Mr. X and Ms. Y. were appointed to conduct the sale of the two properties “on a joint agency basis with provision for one professional fee to be divided between both of the auctioneers.” The order continued by providing that:-
“[Mr. X and Ms. Y] will provide a sum of €1,500 each to the said auctioneers as soon as possible by way of payment on account for the costs of advertising and other charges to be in incurred in the marketing of the properties.
That the proceeds of sale of both or either of the said properties be placed on joint deposit receipt, in the names of the solicitors for the parties.”

25. The applicant objects to the fact that the order provides for the sale of the Lodge as well as the family home and that he fears that he may be fixed with some of the auctioneering and other fees associated with the sale of the Lodge. He considers that the judge was wrong to take the view that both properties needed to be sold at the same time to realise the maximum value and that it was perfectly possible to contemplate the separate sale of the properties. He further (implicitly) contends that the judge had no jurisdiction to direct such a sale if the statutory preconditions specified in s. 15 of the Act of 1995 had not been satisfied.
26. The question of whether Judge Buttimer ought to have exercised her jurisdiction in relation to both the sale (and ancillary matters such as the auctioneering fees) is a one which, absent exceptional circumstances, is best left for the pending appeal to this Court, rather than being determined in separate judicial review proceedings. Certainly, assuming that there was such a jurisdiction, questions as to how it ought to have been exercised are quite plainly matters that go to the heart of the appeal.

27. The foregoing assumes, however, that the Court’s s. 15(1) jurisdiction was properly invoked by the prior making of a secured periodical payments order, a lump sum order or a property adjustment order. This does not appear to have occurred in the present case. If this is correct, then Judge Buttimer made an order in circumstances where she (technically) had no jurisdiction to do so, although she presumably contemplated making a secured periodical payments order, a lump sum order or a property adjustment order at a later stage when the proceeds of the sale had been realised. Put another way, Judge Buttimer could have directed the sale of the Lodge in the exercise of her s. 15(1) powers given that Ms. Y. is a joint owner of the property, but only where she had already made a secured periodical payments order, a lump sum order or a property adjustment order.

28. While this point strictly goes to jurisdiction and vires, nevertheless I consider that in the exercise of my discretion it would be premature to quash the order pending the outcome of the appeal which the applicant has lodged. The judge of this Court who hears the appeal will be at large- subject, of course, to the applicable legislation -with regard to the merits of any such order. He or she will be well placed to examine the auctioneering and valuation evidence which may be tendered and, specifically, that judge will be in a position to evaluate the pivotal question of whether it would be feasible or desirable to endeavour to effect a sale of the properties separately.

29. It is true that, as a matter of jurisdiction, this Court could only made such an order in circumstances where the jurisdictional stipulates of s. 15(1) had been satisfied. This is, presumably, a matter of which the judge will be fully conscious when the appeal is heard. But it is equally true to say that insofar as this had occurred in the Circuit Court, this was a largely technical breach of the s. 15 requirements which caused no caused particular substantive unfairness to the applicant and it is precisely the type of error which can be rectified on appeal. The error in question is a far cry from cases such as Gill v. Connellan [1987] I.R. 541, where the breaches of fair procedures where so profound that the applicant’s right to a fair and proper hearing at first instance was substantially compromised. The case at hand thus presents an issue which, while perhaps technically jurisdictional, definitely falls at the opposite end of the spectrum: see, e.g., my own judgment in E. v. Minister for Justice and Equality [2012] IEHC 3.

30. E. was an asylum case where the applicant had sought to quash a decision of the Office of the Refugee Applications Commissioner where (it was argued) the Commissioner had breached fair procedures in not putting certain up-dated country of origin information to her. I took the view that any such error could best be addressed on appeal to the Refugee Appeals Tribunal, saying:-

“In the context of asylum matters, it is decidedly preferable that an applicant should exhaust his or her right of appeal to the Tribunal unless there are compelling reasons for suggesting that this would otherwise be unjust or that the error could not be satisfactorily corrected on appeal: see, e.g., the comments of Hedigan J. in B.N.N. v. Minister for Justice, Equality and Law Reform [2009] 1 IR 719 at 732-735. It is, after all, the function of the Tribunal to address the errors (if such there be) disclosed by the first instance decision. Of course, many of these errors can be characterised as jurisdictional, but in truth they often register in the middle of a spectrum which ranges from a pure appeal point on the one hand to that to which goes to the very essence of the jurisdiction on the other. Save where the error registers at the upper end of this spectrum or where the facts disclose a clear injustice, the judicial preference for exhaustion of administrative remedies tends to prevail, again for all the reasons set out by Hedigan J. in B.N.N and the extensive authorities quoted therein.”

31. The same can be said in the present case, not least given that the applicant will have the benefit of a full de novo appeal to the High Court where the case will be completely re-heard.

32. A further, related consideration here is that this Court on appeal may well take a different view on the merits with regard to the sale of the properties. It is quite possible- and I am here expressing no view at all on the merits – that the underlying order will be varied in some way, so that this precise issue will not arise. If there were to occur, then, of course, it would have been quite otiose and unnecessary to quash a part of an order of the Circuit Court which would, in that event, have been completely superseded by an order of this Court delivered in its appellate capacity. It is sufficient perhaps to say that the making of such an order is not inevitable or necessarily predetermined in advance by the underlying facts of the case. But all of this underlines the fact that the arguments advanced are quintessentially matters for the appeal, rather than for judicial review.
Conclusions on the third question
33. Conscious, therefore, that the third issue involves precisely the type of error which can be rectified on appeal, I would accordingly refuse in the exercise of my discretion to quash the Circuit Court order on the ground that it involved a breach of s. 15(1) of the Act of 1995, as this is an issue which caused no particular substantive unfairness to the applicant. In the event that the issue arises on the de novo appeal to this Court, it one which can then be best addressed by the judge of this Court nominated to hear the appeal.

Health Service Executive v OA

[2013] IEHC 172

Judgment of Ms. Justice Iseult O’Malley delivered the 12th of April, 2013
Introduction
1. This is a consultative case stated by District Judge Toale pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act, 1961. The issue on which the determination of the court is sought concerns an application by the respondent (“the mother”) for her costs at the conclusion of care proceedings brought by the applicant (“the HSE”). In brief, the HSE contends, firstly, that the District Court has no power to order costs in proceedings of this nature; secondly, and in the alternative, that if it has such power, it may or must take into account the mother’s possible eligibility for legal aid in considering whether to grant an order for costs.

2. The Attorney General, on application, was joined as a notice party in the court to make submissions on the constitutional issues.
The case stated
3. The circumstances in which the issue arose are set out in the case stated, which is set out here in full. (The Applicant is the HSE and the Respondent, the mother.)

(i) At a sitting of the District Court held on Thursday, the 28th April, 2011, the District Court granted an Emergency Care Order under s. 13 of the Child Care Act, 1991 [the CCA] in respect of a child of the Respondent herein, the said Emergency Care Order to expire on 5th May 2011. The respondent did not have the benefit of legal assistance on this occasion, nor was she present in Court. Thursday, the 28th April, 2011 was immediately prior to the May Bank Holiday which fell on Monday, 2nd May, 2011.
(ii) Subsequent to the granting of the said Emergency Care Order, the Applicant issued an application for an Interim Care Order under s.17 of the CCA, returnable to Thursday, 5th May, 2011. The Respondent was notified of the said application by registered post and attended at Dolphin House, Courthouse on the 5th May, 2011. On the 5th May, 2011 the Respondent was legally represented by Mr. Eamonn Bennett, Solicitors, who thereafter represented her interests before the Court on the following occasions;

11th May, 2011
2nd June, 2011

28th June, 2011

12th September, 2011

6th October, 2011

1st November, 2011

and on each of those dates the Interim Care Order was extended.
(iii) On the 28th November, 2011 and on the 12th December, 2011 the Applicant applied under s19 of the CCA for Supervision Orders in respect of the child, which were granted. The later Supervision Order expired on the 5th March, 2012. The Respondent was represented on each occasion by Eamonn Bennett Solicitors.

(iv) On the 5thMarch, 2011 the Respondent’s legal advisers sought their costs as against the Applicant with regard to the said proceedings.

(v) It was contended by the Applicant that it believed the respondent would have been entitled to receive legal aid from the Legal Aid Board and therefore should have applied for legal aid with regard to the proceedings in issue. It was further contended by the Applicant that if the Respondent had retained private legal representation with regard to the Child Care Proceedings before the Court in circumstances where she might have been entitled to receive legal aid, she was not therefore entitled to her costs in this matter.

(vi) It was contended on behalf of the Respondent that it was not within the remit of the Applicant to enquire into the Respondent’s means. Furthermore, it was contended on behalf of the Respondent that it may be a breach of the separation of powers doctrine if the Court were to treading into the area of policy making and this was the function of the executive or legislature.

(vii) It was further contended by the Respondent that section 33 of the Civil Legal Aid Act, 1995 specifies that a Court or tribunal shall make an order for costs in a matter in which any of the parties is in receipt of legal aid in like manner and to like effect as the court or tribunal would otherwise make if no party was in receipt of legal aid and all parties had respectively obtained the services of a solicitor or barrister or both, as appropriate, at their own expense.

(viii) Therefore, it was the Respondent’s contention that, as the Legal Aid Board is obliged to seek its costs in all matters which come before the Court in which it represents clients, the Court is not entitled to consider whether or not a person was entitled to receive legal aid, and the issue as to whether or not the Respondent may have been entitled to legal aid should not be considered by the Court when exercising judicial discretion in respect to granting or not granting costs to the Respondent

(ix) AND WHEREAS I, the said judge, am of the opinion that questions of law arise in the foregoing case and do hereby refer the said questions to the High Court for determination.

QUESTION
The questions upon which the opinion of the High Court is required upon the above statement of facts are: –
(i) In exercising my discretion as to whether or not to grant costs to the Respondent [can I] take into account that the Respondent may have been entitled to receive legal aid and has access to legal aid.
(ii) In exercising my discretion as to whether or not to grant costs to the Respondent [must I] take into account that the Respondent may have been entitled to legal aid and has access to legal aid.

4. It is immediately obvious that the questions asked by the learned District Judge are predicated upon the assumption that he has a discretion to grant costs and that the issue, as far as he is concerned, is the exercise of this discretion in the light of the mother’s potential eligibility for legal aid. However, and notwithstanding that the matter was not canvassed in the District Court at all, Counsel for the HSE has in this court advanced an argument that there is in fact no power to award costs to parents in proceedings under the Child Care Act, 1991.
5. The consultative case stated procedure is meant to be a method whereby a District Judge can, where he or she considers it desirable, seek the assistance of this court on a legal question arising in proceedings before him or her. In this case the Judge has asked a question concerning the exercise of a jurisdiction, the existence of which nobody had challenged before him. Where a case has been stated in such circumstances, and a party then makes the case that in fact the jurisdiction does not exist, difficulties may arise in relation to the preparation of the case by the other side. It may also be seen as unfair to the District Judge. In this case, not surprisingly, the written submissions filed on behalf of the mother dated two weeks before the hearing in this court do not deal with the issue.

6. However, in the event counsel for the Attorney General helpfully referred the court to the relevant statutory provisions by way of counter-submission on the issue. I have also had regard to the judgment of Finlay C.J. in Dublin Corporation v Ashley [1986] I.R. 781where, dealing with a case stated from the Circuit Court, he said:

“Although if this were an appeal the ordinary principle of this court would be that it would not entertain any issue or point which had not been argued and decided in the court below, that principle does not, in my view, apply to a consultative case stated from the Circuit Court. The purpose and effect of a consultative case stated by a Circuit Court judge to the Supreme Court is to enable him to obtain the advice and opinion of the Supreme Court so as to assist him in reaching a correct legal decision. Having regard to that purpose and the relationship which exists between the two courts, it would, in my view, be quite inappropriate for the Supreme Court, for any reason of procedure, to abstain from expressing a view on an issue of law which may determine the result of the case before the learned Circuit Court judge.”
7. I accept that this principle also applies to consultative cases stated from the District Court to the High Court. It was so applied by Laffoy J. and Charleton J. in National Authority for Occupational Safety and Health v O’K Tools Hire [1997] 1 I.R. 534 and DPP v Buckley [2007] 3 IR 745 respectively. However, it is worth bearing in mind that what had happened in Ashley was that the court itself was aware of a point which was dispositive of the matter and raised it in the hearing. I am not convinced that the judgment is to be read as giving carte blanche to the parties to introduce substantive issues that were never canvassed below and which in fact undermine the entire basis of the case stated.
The HSE’s submissions on the jurisdiction to award costs
8. The first point made by the HSE is that the District Court is a creature of statute and therefore its powers and duties are defined by and limited to statutory provisions. There is no inherent power to award costs and it is said that there is no provision for costs in the context of child care cases. It argues further that there is a positive legislative policy that costs should not be awarded in child care proceedings.

9. Counsel relies on the judgment of the High Court (Hedigan J) in Southern Hotel Sligo Ltd v Iarnrod Eireann [2007] 3 IR 792 and in particular the following passage (at p. 803):

“… in my view its is well established that there is no inherent power in the District Court to award costs. This follows from the fact that the jurisdiction of the District Court is defined and limited by statute. In Attorney-General v Crawford [1940] I.R. 335 as submitted by the respondent, a divisional court of the High Court decided that in proceedings for the recovery of a penalty under s. 186 of the Customs Consolidation Act, 1876 brought at the suit of the Attorney General the District justice in dismissing the matter had no jurisdiction to award costs specifically, the divisional court found that there was no inherent jurisdiction in the District Court to award costs in the absence of express statutory power. Maguire C.J. observed at p. 342:-

‘It is well established that there is no inherent power or jurisdiction to grant costs and that costs can only be granted under the provisions of some statute or rules; Garnett v Bradley; O’Connor’s Justice of the Peace 2nd ed., Vol. 1 p. 198; Paley on Summary Convictions, 7th ed., p.227.
The District Court was established by the Courts of justice Act, 1924, and is the creature of that statute.’

This finding that the District Court has no inherent jurisdiction to award costs in the absence of an expressed statutory power was affirmed by Finlay P. in The State (Attorney General) v. Shaw [1979] I.R. 136.”
10. The Southern Sligo Hotel case concerned a complaint made by the applicant under s.108 of the Environmental protection Agency Act, 1992 in relation to noise caused by the respondent. The section provides that the District Court may make an order, on the application of the local authority, the Environmental Protection Agency or a person in the neighbourhood, directed to the person or body responsible for the noise complained of to reduce the level of noise or to take specified measures for the prevention or limitation of the noise. There is no reference to costs in relation to this particular section, although costs are expressly provided for in respect of other proceedings under the Act. The case stated asked for the opinion of the High Court as to whether there was a jurisdiction to order costs.
11. The applicant submitted, inter alia, that there was an inherent jurisdiction in the court to award costs arising out of O. 51, r. 1 of the District Court Rules, 1997. This provides as follows:

Save as otherwise provided by statute or by Rules of Court, the granting or withholding of the costs of any party to civil proceedings in the court shall be in the discretion of the Court.
12. Hedigan J. held that the rule did not (and could not) confer a power in relation to costs but governed the exercise of any power otherwise conferred. Furthermore it related only to “civil proceedings”. He considered that proceedings under s. 108 were not a claim in private law but were more in the nature of a public law complaint-
“The relief provided by s. 108 is an order to take measures which is of general interest; there is no provision for damages as in private law proceedings.”
13. Hedigan J. considered that this reflected the nature of the s. 108 procedure as a “public watchdog” charter, in that an applicant could act in either the public or private interest without being deterred by the prospect of an order for costs against him or her.
14. Counsel submits that this is analogous to the functions of the HSE in child care cases. This is, he says, a public body fulfilling a public duty under statute, not a private proceeding. It does not, therefore, come within the definition of “civil proceedings” for the purposes of 0. 51, r. 1.

15. It is worth noting the facts in Crawford and Shaw. Crawford was a case stated from the District Court arising out of an unsuccessful prosecution by the Attorney General under the Customs Consolidation Act, 1876. The District Justice had dismissed the summons on the merits and wished to order the Attorney General to pay the defendant’s costs. The problem for the defendant was that the only relevant provision of the then-extant District Court Rules, 1926 was r. 37. Paragraph (a) of the rule empowered a District Justice to award costs against a prosecutor in summary cases but it specifically exempted the Attorney General. Paragraph (b) provided that (a) did not apply to proceedings dealing with duties under the care and management of the Revenue Commissioners – a category into which this case fell. In the circumstances, paragraph (b) nullified the whole of paragraph (a) and there was therefore no rule under which costs could be awarded.

16. The defendant attempted to fall back on the provisions of the Customs, Inland Revenue and Savings Bank Act, 1877. Section 5 of that Act provided that in all proceedings at the suit of the Crown under the Customs Acts, the same rule as to costs shall be observed as in suits and proceedings between subject and subject. However, there had been no adaptation of that Act and as the proceedings in question were clearly not at the suit of the Crown, the result was a finding by the High Court that there was no jurisdiction to award costs to either party in such a prosecution. The decision in Crawford was affirmed in AG v. Shaw.

17. The HSE argues that there is no statutory provision conferring on the District Court power to award costs to a parent under the Child Care Act, 1991.

18. It is submitted by the HSE that the power to award costs arises in only two instances under the Child Care Act. These are, firstly, where the court decides to join the child as a party under s. 25, in which case a solicitor is to be appointed to represent the child. The HSE is to pay the costs and expenses of the solicitor unless, on the application of the HSE, the court directs any other party to pay them (pursuant to s. 25(4) and (5)). Secondly, under s. 26 the court may, as an alternative to the power under s. 25, appoint a guardian ad litem to a child who is not represented. Again, the HSE will be responsible for the guardian’s costs unless the court directs that another party meet them (s. 26(3)).Since, in reality, the “other party” envisaged can only be a parent or other person in loco parentis, the HSE argues that the legislature must have made a deliberate decision to provide for the possibility that these particular costs could be awarded against the HSE or against the parent, without making similar provision for a parent to claim their own costs.

19. I am told that the HSE does not in practice make applications to have such costs ordered against parents but that it would have a right and a duty to do so if the person concerned was in a position to pay.

20. The HSE says that the Act therefore establishes a policy decision that costs should not be awarded against it (other than in the two specified instances) and that this policy decision is appropriate given the nature of the functions exercised by it under the Act. Counsel points to, inter alia, s. 3 of the Act (which sets out the general principle that it is the function of the HSE to promote the welfare of children who are not receiving adequate care and protection) and s. 16 (the duty to apply to court for a care order or supervision order in respect of a child who requires care or protection and is unlikely to receive it without such an order). It is submitted that proceedings of the sort in question are “inquisitorial” or “investigative” rather than adversarial, with the objective being the promotion of the best interests of the child. In the circumstances it is wrong to see the process involving “winners” or “losers” and there is no “event” for costs to follow.

21. Reliance is placed by the HSE on the judgment of the Supreme Court of the United Kingdom in Re T (Children) [2012] 1 WLR 2281 as support for the proposition that a body such as itself, carrying out child protection functions pursuant to a statutory duty, should in general not be liable for costs.

22. In T., the issue was whether the children’s grandparents should recover their costs against the local authority which had brought proceedings under the UK care legislation. Allegations of abuse had been made against six men and the grandparents were alleged to have colluded. For the purpose of the fact-finding hearing into the allegations the grandparents and five of the men had the status of “interveners” although, as noted in the Court of Appeal judgment ([2010] EWCA Civ 1585), it is not clear whether this was on their own application or otherwise. Four of the five men had legal aid. (The fifth represented himself.) The grandparents, who were in their sixties and who had a combined income of £25,000, seem not to have been eligible for legal aid and borrowed over £50,000, repayable over 15 years, to pay for legal representation. After a hearing that lasted more than five weeks they were cleared of all allegations. They were refused their costs on the basis that it was a policy not to award costs against local authorities in child care cases. They succeeded in the Court of Appeal, where it was held that this rule should not apply to fact-finding hearings, but lost in the UK Supreme Court. Before considering the judgment it is worth noting the remarkable fact that the Supreme Court appeal was conducted on a pro bono basis by all counsel involved and was argued without prejudice to the result in the Court of Appeal.

23. The court observed that since the Children Act, 1989 came into force costs had not been awarded against local authorities in cases where no criticism could be made of the manner in which they had performed their duties. It considered that the principle in question did not depend on the nature of the hearing. Judicial notice was taken of the potential impact that costs orders might have on the activities of local authorities and, further, of the fact that such bodies were financially hard pressed. In its conclusions the court said (at para. 42):-

“In the context of care proceedings it is not right to treat a local authority as in the same position as a civil litigant who raises an issue that is ultimately determined against him. The Children Act, 1989 imposes duties on the local authority in respect of the care of children. If the local authority receives information that a child has been subjected to or is likely to be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing that it may be well founded, to instigate care proceedings. It is for the court, and not the local authority, to decide whether the allegations are well founded. It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations are made.”

The Attorney General’s submissions on jurisdiction
24. The Attorney General is of the view that the District Court does indeed have jurisdiction to award costs, derived from the Courts of Justice Act, 1924 as extended by the Courts (Supplemental Provisions) Act, 1961.
25. Section 91 of the Act of 1924 governs the powers of the rule-making authority of the District Court. In the relevant part it provides: –

In particular rules may be made for all or any of the following matters [including] the practice and procedure of the District Court generally including questions as to costs.
26. Section 34 of the Courts (Supplemental Provisions) Act, 1961) provides as follows: –
The jurisdiction which is by virtue of this Act vested in or exercised by the District Court shall be exercised as regards pleading, practice and procedure generally, including liability to costs, in the manner provided by rules of court made under s. 91 of the Act of 1924, as applied by s. 48 of this Act.
27. Section 17 of the Interpretation Act, 1937 is also relevant:-
Whenever an Act of the Oireachtas confers any new jurisdiction on a court of justice or extends or varies an existing jurisdiction of a court of justice, the authority having for the time being power to make rules or orders regulating the practice and procedure of such court shall have, and may at any time exercise, power to make rules or orders for regulating the practice and procedure of such court in the exercise of the jurisdiction so conferred, extended or varied.
28. The currently applicable rules are contained in O. 51 of the District Court Rules. Rule 1is set out in para. 11 above.
Relevant provisions of the Civil Legal Aid Act. 1995
29. The original, non-statutory Scheme of Civil Legal Aid and Advice was introduced in 1979. It was put on a statutory footing by the 1995 Act. The general criteria for the grant of legal aid and advice are set out in s.24 as follows: –

Without prejudice to the other provisions of this Act a person shall not be granted legal aid or advice unless, in the opinion of the Board-

(a) a reasonably prudent person, whose means were such that the cost of seeking such services at his or her own expense, while representing a financial obstacle to him or her would not be such as to impose undue hardship upon him or her, would be likely to seek such services in such circumstances at his or her own expense, and
(b) a solicitor or barrister acting reasonably would be likely to advise him or her to obtain such services at his or her own expense.

S 33
(1) In this section “costs” includes all outlays including solicitor’ and witnesses’ costs and expenses and barristers’ fees.
(2) A court or tribunal shall make an order for costs in a matter in which any of the parties is in receipt of legal aid in like manner and to the like effect as the court or tribunal would otherwise make if no party was in receipt of legal aid and all parties had respectively obtained the services of a solicitor or barrister or both, as appropriate, at their own expense.

(3) Subject to subsection (8) an applicant for legal aid or advice shall take all possible steps to ensure that any right he or she possesses to be indemnified either in whole or in part in respect of expenses which would, but for this Act, be required to be incurred by him or her in the matter, will, in respect of expenses incurred by the Board on his or her behalf in the matter and not yet reimbursed to the Board, inure for the benefit of the Fund.

(4) A solicitor of the Board nominated for the purpose or a solicitor engaged by the Board under section 11 to provide legal aid or advice to a person in a matter shall take all necessary steps to recover any costs recoverable by such person whether by order of any court or tribunal or by virtue of any settlement reached to avoid or bring an end to any proceedings or otherwise, and shall pay any costs so recovered into the Fund.

(5) A person in receipt of legal aid or advice under this Act shall not agree with any party not so in receipt to forego any costs or to meet any costs of any such party or to accept any sum in satisfaction of his costs or the costs of the Board in the matter, save with the prior approval of the Board, and the Board may make it a condition of such approval that any or all of its costs shall be paid out of any property recovered by the said person by virtue of the agreement.

30. Sub-section (6) provides for recovery of the Board’s costs as against the client, whether by agreement, measurement by the court or tribunal or determination by the Taxing Master.
31. The Act requires applications to be considered by reference to, inter alia, a merits test (roughly, whether there is a prospect of success, or whether it is reasonable to litigate) and a means test. However, the merits test does not apply to children cases and, by virtue of s. 29 (as amended by s. 80 of the Civil Law (Miscellaneous Provisions) Act, 2008) the Board has a discretion to provide legal aid or advice without reference to the applicant’s means.
Conclusions on jurisdiction
32. Counsel for the HSE argues that none of the above provisions expressly confer a power in relation to child care proceedings. The simple answer to that is that they do not have to. The combined effect is clear- the District Court Rules Committee has a general power to make rules providing for costs in civil proceedings and it has done so. The outcome of Crawford and Shaw demonstrates this. Those defendants failed in their claim for their costs because the relevant rules excluded them.

33. Counsel further says that the constitutionality of s. 91 is doubtful. That is an argument too far in the context of this particular case stated and I do not propose to embark upon it.

34. I do not think that the two provisions in the Child Care Act relied upon by the HSE – relating to the costs of the child and the guardian ad litem – are of assistance. These provisions clearly create a new power in the court to grant a right to be represented and to participate to persons who would not otherwise have had such a right, because as a matter of legislative policy it was thought appropriate that they should. It then became necessary to make provision for their costs. It does not follow that they are the only participants who should be entitled to their costs.

35. The next question then is whether child care proceedings are “civil proceedings” for the purpose of 0. 51.

36. It is not clear to me whether the Courts Acts were opened to the court in the Southern Sligo Hotel case. In any event, without attempting to second-guess Hedigan J. in relation to the particular procedure under the Environmental Protection Act and the provisions of that Act, it seems to me that the only distinction made in the Rules is between civil and criminal proceedings. There does not seem to be, for the purposes of the question of costs, a distinction between public and private civil proceedings.

37. The final issue under this heading is whether policy considerations require the court to refuse to grant costs against the HSE in child care proceedings.

38. There is no Irish authority that supports the HSE on the point. The decision of the UK Supreme Court in the T. case is certainly persuasive but I feel that I should not follow it for a number of reasons.

39. The grandparents in the case were not parties and do not appear to have been eligible for legal aid. With respect, I have to say that in my view the result of the application of the rule to them would be better described as an injustice than, to use the court’s term, a “serious misfortune”, were it not for the fact that the local authority concerned ran the appeal to the UK Supreme Court as a moot. In this regard I would prefer the approach of the Court of Appeal.

40. The general policy set out in T. is, I accept, a legitimate one and not unlike that considered by the Supreme Court here in Dillane v Ireland [1980] ILRM 167. In that case, the provision in the District Court Rules preventing a successful defendant from recovering costs against a member of An Garda Siochana acting as a common informer was in issue. (In contrast, costs could be awarded against an “ordinary” common informer.) The discrimination was held not to breach the equality guarantee of Article 40.1 because it related to the difference in social function between the two categories in a manner that was not arbitrary or capricious. Significantly, Henchy J. said in relation to the rule: –

“What matters is whether it could reasonably have been arrived at as a matter of policy by those to whom the elected representatives of the people delegated the power of laying down the principles upon which costs are to be awarded.”
41. By contrast, the rule now contended for by the HSE not only has no authoritative basis but is, it seems to me, plainly contrary to the explicit statement of legislative policy in the Civil Legal Aid Act. That Act post-dates the Child Care Act. It is clearly applicable to child care proceedings, given the reference in s. 28(3) to proceedings concerning “the welfare of (including the custody of or access to) a child”. It requires, in s. 33, that an application for costs should be made on behalf of the legally aided party and that the court should treat the application as it would that of a party without legal aid. There is no exception to this requirement for cases involving children. It follows that there is no statutory basis for the assertion that the legislative policy is that costs should not be awarded and indeed the contrary appears to be the case.
42. In Dunne v The Minister for the Environment, Heritage and Local Government [2008] 2 IR 775 the Supreme Court reversed a High Court decision to award costs to an unsuccessful plaintiff. The award had been made on the basis that particular considerations applied to cases where (1) the plaintiff was acting in the public interest in a matter that involved no private personal advantage and (2) the issues raised were of sufficient general importance to warrant an order for costs being made in the plaintiffs favour. Giving the judgment of the court, Murray C.J. said ( at p. 783)

“The rule of law that costs normally follow the event, that the successful party to proceedings should not have to pay the costs of those proceedings which should be borne by the unsuccessful party, has an obvious equitable basis. As a counterpoint to that general rule of law, the court has a discretionary jurisdiction to vary or depart from that rule of law if, in the special circumstances of a case, the interests of justice require that it should do so. There is no predetermined category of cases which fall outside the full ambit of that jurisdiction. If there were to be a specific category of cases to which the general rule of costs did not apply that would be a matter for legislation since it is not for the courts to establish a cohesive code according to which costs would always be imposed on certain successful defendants for the benefit of certain unsuccessful plaintiffs.”
The principle expounded here seems to me to be equally applicable to the contention that there are certain types of defendant against whom an award of costs should never be made. If the general rule, combined with the court’s discretionary power to ensure that justice is done, is to be set aside it would, in my view, require legislative intervention.
43. It may well be that a practice has grown up of not awarding costs where the relevant party is legally aided, as happened in the Supreme Court in HSE v A.N (unrep. Fennelly J, 14th April, 2010). It may also be that in many cases that is a proper exercise of the court’s discretion. However, I have not been directed to any judgment on the point where s. 33 had been considered. I am therefore not prepared to endorse such a practice as having the status of a legal principle.

44. I therefore conclude that the District Court does have a jurisdiction, based on statute and on the District Court Rules, to award costs in proceedings under the Child Care Act, 1991and that it is not debarred from so doing by policy considerations relating to the function of the HSE under that Act.
The questions posed in the case stated
45. The court is asked whether the potential eligibility of the mother for legal aid should be a factor in the court’s exercise of its discretion in relation to costs.

Submissions on behalf of the HSE

46. The HSE interprets this case as being, in reality, a claim for the funding of the mother’s legal representation other than through the provision of civil legal aid under the Act. On this aspect the HSE argues that the establishment of the civil legal aid system is the mechanism chosen by the State to vindicate the right of access to the courts in cases of this nature. It is submitted that the mother is “manifestly” entitled to legal aid and should have applied for it. Counsel says that if she chooses not to, she should not expect “the public purse” to fund her choice. It is argued that underlying her claim for costs must be an assertion of a constitutional right to legal aid, on the basis that she must be taken to be maintaining that the legal aid system is inadequate to protect her right of access to the court. The assumption is that she considers the limitation of choice in relation to legal aid solicitors to be an impermissible restriction.

47. Following through on this line of argument, counsel for the HSE then cites a number of authorities for the proposition that there is no constitutional right to legal aid in civil matters, while also pointing to features of the Legal Aid Board’s operation which do in fact facilitate the exercise of choice by a legally aided person. Such limitations as there exist are, it is submitted, not unreasonable.

48. It is submitted that “a party is not at liberty to have unlimited choice of legal representation in all circumstances”. Concern is expressed that “were it otherwise the entire system for the provision of legal aid would be undermined”.

49. The HSE says that it does not seek to limit the mother’s choice of representation. “It merely seeks to avoid being fixed with liability for the costs of her choosing representation which is not funded by the legal aid scheme. In fact, the [HSE] merely asks that, in the event that [the mother] does so choose and seeks to recover the costs which flow from that choice that the District Judge in considering the question should have regard to the fact that the costs exposure has arisen as a result of [her] choice.”

50. The further submission is made that the separation of powers is in issue. To require the District Court to disregard the availability of legal aid would be to disregard the policy decision of the Oireachtas in determining how such representation should be funded “especially where the effect of such a restriction would be to impose the burden of the cost of such representation on the HSE”. This, it is said would be contrary to the principles espoused in Sinnott v Minister for Education [2001] 2 IR 545 and T.D. v Minister for Education [2001] 4 IR 259.
Submissions on behalf of the Attorney General
51. Counsel for the Attorney General says that the mother is attempting to turn her right to be legally represented into a right to costs. If this were to be accepted it would be tantamount to establishing a privatised legal aid system. There could be no such right in absence of a constitutional right to legal aid in civil cases and it has been definitively established by the Supreme Court in Magee v Farrell [2009] IESC 60 that there is no such right.

52. Counsel refers to the child-centred nature of the jurisdiction and says that in these proceedings there are no winners or losers and no “event” for costs to follow. That being so, the only basis on which a right to costs can be asserted is by virtue of the simple fact that the mother is involved in the case. However it was accepted that the District Judge does have some discretion in relation to costs- while there is no “event”, the judge can have regard to the run of the case.

53. On the possible availability of legal aid, it is submitted that it is relevant because the core question in relation to costs is the reasonableness of legal representation, and applying for legal aid is a manifestation of reasonableness. If a parent had difficulty in getting legal aid the judge could take that into account.

54. The court was informed that the Attorney General is expressing these views only in relation to child care cases and not as a general proposition. The concern is, apparently, that the availability of costs would make proceedings more adversarial because private practitioners would see an opportunity to get costs, which is not a motivation for solicitors of the Legal Aid Board.
Submissions on behalf of the mother
55. Counsel for the mother submits that this was a matter in which it was reasonable for her to seek legal representation; that her constitutional right of access to the court entitles her to choose her own lawyer; that a corollary of that right is the right to seek costs; that the right to seek costs cannot be fettered by questioning as to her means and that, in any event, legal representatives instructed under the legal aid scheme would have been obliged by s. 33 of the Act to seek costs in the same manner. It is not, therefore, open to a District Judge to decide the issue of costs on the basis of the identity of the legal representative.

56. The mother, too, relies on the principle of the separation of powers and the same authorities in relation thereto. The submission in this regard is that the court would be engaged in policy making were it to decide to embark on enquiries as to the mother’s eligibility for legal aid.

57. Counsel says that he is not asserting either a constitutional right to legal aid or a right to be paid costs regardless of the outcome of a case. He does assert a constitutional right to choose one’s own lawyer, which includes the choice of whether to apply for legal aid or not where one may be eligible for it. He relies on the comments of O’Neill J in the case of Law Society of Ireland v Competition Authority [2006] 2 IR 262. In that case, the Competition Authority had attempted to limit the choice of legal representation of persons summoned to be examined on oath before it.

“Firstly, the legal representation is not State funded: it is the result of contracts freely entered into between the legal representatives in question and persons under investigation by the respondent or witnesses. Needless to remark, the fees of these legal representatives must be paid by the persons under investigation or by witnesses if they avail of legal representation. Thus there can be no question of the respondent having a discretion similar to that afforded to a court under reg. 7(1) of the Criminal justice (Legal Aid) Regulations 1965.
Notwithstanding the specific discretion given to a court under the above regulations, Barr]. nonetheless held in The State (Freeman) v. Cannel/an {1986} l.R. 433 that freedom of choice of solicitor, from the legal aid panel, should not be denied save for good and sufficient reasons. The conclusion of Barr]. in that regard would appear to me to be similar to that reached by the United States Supreme Court in Wheat v. United States (1988) 486 U.S. 153, namely that a presumption in favour of choice of lawyer must be recognised.”

58. At p. 281 he says:-
“That leaves me to conclude that in civil proceedings, such as the type conducted by the respondent, there must be a strong presumption in favour of freedom of choice of representation. Although it is the case that in these proceedings the clients will invariably be paying for their own lawyers, this factor does not in my view add significantly to the weight or strength of this presumption. Regardless of who is paying for the representation the principle must in my view remain essentially the same.
It could not in my view be said that a person availing of the criminal free legal aid scheme should have less autonomy or control over the conduct of their defence and in particular what lawyers were selected to conduct that defence, than would be the case if they were contracting for the services and paying for them themselves.”

59. In conclusion, O’Neill J. held as follows:-
“I am satisfied that a person facing a tribunal in respect of which it is appropriate to have legal representation does, as an incident or aspect of the right to fair procedures, have a constitutional right, pursuant to Article 40.3 of the Constitution of Ireland 1937, to freely select the lawyer that will represent him or her from the relevant pool of lawyers willing to accept instructions.”.
60. The entitlement to costs is a separate matter that may or may not arise on the facts of an individual case as determined by the judge. Reasonableness is a key consideration – costs may be awarded in favour of the HSE if a parent defends a case unreasonably. There is, however, nothing unreasonable in deciding not to apply for legal aid when one has a right not to. The District Court has, therefore, no right to take into account how a litigant chose his or her representative. The protection of the resources of the HSE cannot defeat this right.
61. On the nature of child care proceedings, it is agreed that the judge’s role is inquisitorial but, it is contended, the process itself is adversarial. Parents who contest the application made by the HSE can only do so by challenging the HSE’s evidence and adducing their own. There are always issues to be determined, the primary one being whether the HSE was justified in making the application. Going to a private lawyer does not, as such, make the process more adversarial.
Conclusions
62. There is of course no doubt about the constitutional status of the right of access to the courts. The HSE does not dispute that and nor does it dispute the right, in general, to a choice of lawyer. However, what it is trying to establish here is a principle that the choice of lawyer should in cases of this sort be limited to the extent provided by the Legal Aid Board, in order that its own resources not be exposed.

63. I accept that child care proceedings under the Child Care Act, 1991 may not be directly analogous to most other forms of litigation. It is certainly the case that the judge’s function is different, in that he or she must adopt a more inquisitorial role and reach a conclusion based on the welfare of the child beyond all other considerations.

64. However, that is not to say that it is wholly unlike other litigation. The concept that “there are no winners or losers” is an appropriate one for the attitude of the professional staff of the HSE and its lawyers but it asks a degree of detachment that is very unlikely to be shared by a parent. The procedure is, as a matter of fact, adversarial. Furthermore, although the proceedings may often be more accurately described as a process than a unitary hearing, there may well be individual issues decided along the way in favour of one side or another.

65. I agree with counsel for the mother that this case is not about legal aid or an attempt to indirectly establish a right to legal aid in civil cases. It is, in my view, about the right of an individual litigant who is not on legal aid and has not applied for legal aid to be treated in the same way as any other litigant who is not on legal aid – without arbitrary, capricious or invidious discrimination that, on the arguments mounted by the HSE and the Attorney General, could be based only on her supposed lack of means. The applicant is not seeking to have her representation “funded from the public purse”. She chose her representative, as I accept she was entitled to do as a matter of right, and now seeks what any litigant who has succeeded in litigation is entitled to seek- her costs. I know nothing about the merits of the claim or whether in the normal course of events, having regard to all the normal factors taken into account by a judge, she would be entitled to an order for costs. All that appears from the case stated to have been put up by way of opposition to her claim is, in effect, the proposition that she is poor.

66. I realise that putting it in this way may seem invidious and that the HSE and the Attorney General would, with complete sincerity, disclaim any such discriminatory intent. However, there is no way around the fact that the consequence of their submissions would be that persons of limited means would have to justify their choice of advocate, in a way that wealthier individuals would not, despite the fact (or because of the fact) that they are not seeking State assistance. The principle they contend for would mean that judges could or should subject litigants to a sort of reverse eligibility test, enquiring into their income and assets and perhaps, if someone appeared to be over the means threshold, considering to what extent the Legal Aid Board might have used its discretion. This sort of enquiry is understandable when a person applies for a State-funded service but I can see no justification for such an intrusive process when the individual has chosen not to so apply.

67. The HSE has advanced as a rationale that public policy favours the protection of its resources. This argument, however, depends on the assumption that s. 33 of the Civil Legal Aid Act, 1995 is to be regarded as a dead letter and I have already said that I am not prepared to accept that as a matter of law.

68. The Attorney General would apparently prefer that child care cases be dealt with by the practitioners of the Legal Aid Board. I should perhaps state here that I have no doubt that the body of solicitors working for the Board, whether as employees or on the panel of private solicitors, have amassed an impressive expertise in this area of law. However, there is simply no precedent for the proposition that a judge can use his or her discretion in the matter of costs to compel, or even encourage, litigants to abandon their choice of advocate. To do so would, I believe, amount to an impermissible interference with that choice. Costs are an aspect of the right of access to the courts- per Finlay P. in Henehan v Allied Irish Banks (unrep., 19th Oct., 1985)

“Jurisdiction to award costs is part of the ancillary machinery associated with access of citizens to the courts [and] should be construed in the light of the constitutional origin of that right of access.”
69. I conclude that the mother was entitled to choose her own representative, that she was not in any way obliged to apply for legal aid and that her eligibility for legal aid, whether established or presumed, has no bearing on her entitlement to apply for her costs. I will therefore answer both of the questions posed in the negative.

People (DPP) v Gormley

[2014] IESC 17

Judgment of Mr. Justice Clarke delivered on the 6th March, 2014.
1. Introduction
1.1. It is now almost 40 years since this Court made clear that the requirement in Article 38.1 of the Constitution that a person should not be tried on any criminal charge save in “due course of law” meant more than mere technical compliance with the letter of the law. The Court held that due course of law meant that a trial was required to be conducted in accordance with the concept of justice, that the procedures applied be fair, and that the person accused be given every opportunity to put forward a defence to the charges. That decision of this Court was in State (Healy) v. Donoghue [1976] I.R. 325. The case involved a young man who had been separately convicted in the District Court on two occasions and sentenced to terms of imprisonment. He had not been legally represented at either of his trials. In one case, a District judge had given Mr. Healy legal aid under the then existing statutory scheme. However, due to what might best be called an industrial dispute involving the lawyers involved in that scheme, no representation was available. In the second case, Mr. Healy had not sought legal aid. Ultimately, this Court held that Mr. Healy’s trial in both cases could not be said to have been conducted in due course of law because, having regard to the seriousness of the charges which he faced and his impecuniosity, his trial without the State affording him assistance in obtaining legal representation breached basic principles of fairness.

1.2. In these two cases, this Court is concerned with at least the same broad area of constitutional law. No question of legal assistance being provided by the State arises as such. However, the core issue which does arise is as to whether a person arrested on foot of serious criminal charges is entitled to the benefit of legal advice prior to the commencement of any interrogation and prior to the taking of any samples for the purposes of forensic examination. One of the key questions which arises is as to whether the broad concept of constitutional fairness in the criminal process, as identified in State (Healy) v. Donoghue, requires such representation.

1.3. As will be addressed further in this judgment, the question of the recognition of such a right has been a real possibility for some time. European and other major courts have, in one way or another, recognised a right of that type. The possibility that Bunreacht na hÉireann might properly be interpreted as conferring such a right could not, for the reasons analysed in this judgment, come as a surprise to anyone with an interest in this area, least of all the authorities.

1.4 While it will be necessary to go into the facts of both cases in due course, it is appropriate to start by giving a broad outline of the issues which arise.
2. A Broad Outline
2.1. Both of the defendants (respectively “Mr. Gormley” and “Mr. White”) were convicted of serious criminal offences. On the 7th November, 2007, Mr. Gormley was convicted in the Central Criminal Court of attempted rape, contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. He was later sentenced on the 15th January, 2008, to 6 years imprisonment dating from 14th January, 2008, with 5 years post release supervision. Mr. White was convicted at the Central Criminal Court on the 29th July, 2009, of murder and was sentenced to mandatory life imprisonment. Both separately appealed to the Court of Criminal Appeal.

2.2. In the Court of Criminal Appeal (see Director of Public Prosecutions v Raymond Gormley [2009] IECCA 86), Mr. Gormley sought to challenge his conviction on the ground that the trial judge erred in admitting evidence of statements allegedly made by him to prosecuting gardaí. He argued, first, that there had been an unlawful entry into his dwelling and that, as a result, his arrest was in breach of his constitutional rights. As a result, it was said that any evidence obtained thereafter was inadmissible. Second, he contended that the relevant interviews were conducted in breach of his constitutional right of access to a lawyer. In respect of the first contention, the Court of Criminal Appeal found that Mr. Gormley had by his words cured any unlawful presence of the gardaí and thus his arrest was deemed lawful. On the other contention, the Court was “satisfied that it was open to the learned trial judge to conclude that the attempts by the Gardaí to make contact with the solicitor nominated by the applicant are bona fide and reasonable”, citing their “diligence and resourcefulness in locating the solicitor nominated by the applicant.” Mr. Gormley’s application for leave to appeal was, therefore, dismissed.

2.3. Mr. White sought leave to appeal his conviction on a number of grounds (see Director of Public Prosecutions v Craig White [2011] IECCA 78). Of particular relevance to this appeal is ground 3 by which it was suggested that the trial judge erred in ruling that the taking of samples from him, pursuant to the Criminal Justice (Forensic Evidence) Act 1990, was lawful, because of what was said to be a breach of his right of reasonable access to his solicitor. The Court of Criminal Appeal, having considered all of the surrounding circumstances, including the fact that there was an indication that a solicitor was coming to the station “immediately”, concluded that “[i]n the absence of any refusal to give the samples, and having regard to the fact that the applicant consented to the taking of samples (his reservations remaining secret and undisclosed to the gardaí until the trial), it seems difficult to criticise the learned trial judge for finding that the applicant was not deprived of reasonable access to his solicitor.” Thus, Mr. White’s application for leave to appeal was also rejected.

2.4. Thereafter both sought leave to appeal further to this Court under s. 29(2) of the Courts of Justice Act 1924 (as substituted by s. 22 of the Criminal Justice Act 2006). This subsection provides:

“(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.”
2.5. On the 16th February, 2011, the Court of Criminal Appeal certified the following questions as questions of exceptional importance in Mr. Gormley’s case:
“1. Does the constitutional right of access require that commencement of questioning of a detained suspect (who has requested a solicitor) be postponed for a reasonable period of time to enable the solicitor who was contacted an opportunity to attend at the garda station?
2. Is the constitutional right of access to legal advice of a detained suspect vindicated where members of An Garda Síochána make contact with a solicitor requested by the suspect but do not thereafter postpone the commencement of questioning for a reasonable period of time in order to enable the named solicitor to actually attend at the garda station and advise the suspect?”

2.6. On the 16th February, 2012, a s. 29 certificate was given by the Court of Criminal Appeal in Mr. White’s case in respect of the following question:
“In circumstances where a person is in custody and has requested a solicitor, are members of An Garda Síochána, for the purpose of ensuring protection of rights of an accused, obliged not to take, or to cease if they have commenced taking, any forensic samples until such time as a person who has sought access to a solicitor, and that solicitor has indicated he/she will attend, has had actual access to that solicitor.”
2.7. A subsequent application was made to this Court on the 7th March, 2012, whereby two further grounds were permitted to be argued in Mr. White’s case. These were:
“1. Must a warrant issued by a District Court Judge, pursuant to s. 42 of the Criminal Justice Act, 1999, show on its face compliance with the statutory conditions in s. 42 of the Criminal Justice Act, 1999?
2. Is a fingerprint expert witness entitled to state his opinion as being one of which he has “no doubt” when stating that a fingerprint found on an item of evidence matched that of the accused.”

However, it must be noted that these additional issues only arise for consideration in the event that the appeal is unsuccessful on the initial certified issue.
2.8. As appears from the above, there are, however, differences between the two cases. In the case of Mr. Gormley, the evidence which was admitted at his trial concerned statements made by him while being questioned by members of An Garda Síochána after he had requested the presence of a solicitor but before that solicitor arrived. It is important to record at this early stage that, having regard to the fact that the request was made on a Sunday, the solicitor concerned had attended with commendable expedition and there was not, nor could there have been, any suggestion of any delay. Mr. Gormley’s case, therefore, concerns a statement made after a request for a solicitor but before the solicitor concerned arrived.

2.9. Mr. White’s case is different. In his case, buccal swabs from his mouth and a number of hairs were taken while he was under arrest. Again, a request for a solicitor had been made and the swab and hairs concerned were taken prior to the arrival of the relevant solicitor. Again the solicitor attended with very commendable expedition. Thus, the difference in Mr. White’s case is that the evidence which was procured after the request for a solicitor but before the arrival of that solicitor was in the nature of objective forensic evidence rather than a statement made. As will appear later in this judgment, there is at least an argument that different considerations may apply as and between the two cases deriving from that very difference. There are also other factual aspects to the circumstances in which Mr. White had the swab and hairs concerned taken from him which will need to be explored in the course of this judgment.

2.10. However, it will be seen that there is one major common question which has the potential to arise in both cases. That question concerns the procuring of material evidence on which an accused might be convicted at a time when the relevant accused is under arrest, has sought the attendance of a solicitor, but before the solicitor concerned has arrived.

2.11. It is necessary to consider the legal consequences of such a situation on a number of bases. I will address the jurisprudence of the European Court of Human Rights (“ECtHR”) in due course. However, it seems clear that, at least in the view of that Court, the protection against self-incrimination which is guaranteed by the European Convention on Human Rights (“ECHR”) is breached where a person makes an incriminating statement which forms a substantial part of the evidence leading to their conviction in circumstances where the relevant person does not have the benefit of legal advice at the time in question and where they have not waived any entitlement to legal advice. That much being clear, a series of key further questions arises. They are:-

(i) Whether the interpretative obligation imposed on the Irish courts under s. 2 of the European Convention on Human Rights Act 2003 is such that the Irish courts are, in the light of that jurisprudence of the ECtHR, required to interpret this aspect of Irish law in the light of the ECHR, so that Irish law must be interpreted as preventing the use of statements made or evidence of samples taken during a period between a request for a solicitor being made and the attendance of the solicitor concerned;
(ii) Whether it is now appropriate to interpret the right to trial in due course of law as recognised in Article 38.1 of the Constitution as encompassing a right to legal advice prior to either or both of the conduct of an interrogation of a suspect or the taking of forensic samples from such a suspect; and

(iii) Whether any distinction arises, either under the ECHR or as a matter of Irish constitutional law, between respectively cases of interrogation and cases of the taking of objective forensic samples?

2.12. Obviously, to the extent that the issues identified at points (i) and (ii) in the preceding paragraph, or either of them, might find favour, then the question of whether there may be exceptions to the application of the broad principle also arises, at least to the extent that any such possible exception might have relevance on the facts of either of these cases.
2.13. In considering the proper approach to the interpretation of Bunreacht na hÉireann, it is, in accordance with the jurisprudence of this Court, of course, appropriate to consider the case law of the ECtHR and also the constitutional jurisprudence of the superior courts of other jurisdictions which have a similar constitutional regime to ourselves. Also, it clearly follows that, if a constitutional right of the sort urged on behalf of both Mr. Gormley and Mr. White is found to exist, then questions as to the applicability, in an indirect fashion, through the European Convention on Human Rights Act 2003, of the Strasbourg jurisprudence do not really arise. On that basis, it seems appropriate to deal first with the Irish constitutional position.

2.14. Before going on to consider the position in Irish constitutional law, it is appropriate to briefly set out the sequence of facts relevant to the request for, and attendance of, a solicitor in each of the cases.
3. The Facts in Gormley
3.1. Mr. Gormley is alleged to have committed the offences for which he was prosecuted in the early hours of the 24th April, 2005, a Sunday. He was arrested at 1.47 p.m. on that same day and arrived at the Garda station at 2.00 p.m. He was informed of his rights and gave the names of two solicitors at 2.15 p.m. Efforts were then made by the gardaí to locate either one of the two solicitors, including visiting the home of the parents of one of the solicitors and leaving a message with his wife. It was said that the gardaí did not have the home phone number of the requested solicitor.

3.2 Then, at 3.06 p.m., the relevant solicitor contacted the Garda station and confirmed that he would attend at the station “shortly after 4pm” or “as soon as possible after 4pm”. Mr. Gormley was first interviewed at 3.10 p.m. by the investigating gardaí in the course of which he made a number of inculpatory admissions. This interview was recorded on tape. The requested solicitor eventually arrived at 4.48 p.m. He met with Mr. Gormley between 5.00 p.m. and 5.45 p.m. A second interview with Mr. Gormley began at 6.47 p.m. and concluded at 8.30 p.m. Again, this was video-recorded. At 7.45 p.m., during the currency of this interview, an application to extend Mr. Gormley’s detention for a further 6 hours was granted. The inculpatory statements made during the first interview were deemed admissible by the trial judge and, as outlined above, Mr. Gormley was found guilty of attempted rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990.
4. The Facts in White
4.1. On the 15th November, 2005, Mr. White is alleged to have been an occupant in a stolen vehicle when he is said to have discharged 4 bullets at a Mr. Noel Roche, ultimately resulting in Mr. Roche’s death. The vehicle said to have been involved in the crime was later located and a brown bag containing a handgun, balaclava and a pair of gloves was found on the rear seat. Forensic analysis of this bag and other materials found nearby resulted in a match to Mr. White’s DNA.

4.2. Mr. White was arrested under s. 42 of Criminal Justice Act 1999 at Mountjoy Prison at 7.45 a.m. on the 13th February, 2008, and was taken to Raheny Garda Station. At 7.58 a.m. he made a request for his nominated solicitor. This solicitor could not be reached at her usual business number at this time, but a recorded message provided an alternative number for emergencies. This information was conveyed to Mr. White and he was asked whether another solicitor could be contacted. Mr. White was also told that efforts would continue to be made to contact the nominated solicitor. At 8.15 a.m., a message was left on the emergency phone number as a call to that number was not answered. However, the call was returned within one minute and the solicitor confirmed that she was coming “immediately” to the garda station. The solicitor declined the opportunity to speak to Mr. White via the phone. Mr. White was informed of this development. The solicitor arrived at the garda station at 9.42 a.m.

4.3. At 8.00 a.m., permission had been requested from an appropriate officer for the taking of various samples (a blood sample, a buccal swab from the mouth, and a hair sample) from Mr. White under the Criminal Justice (Forensic Evidence) Act 1990. This request was granted at 8.05 a.m. The various samples had all been taken by 8.30 a.m. In evidence, Mr. White stated that he did not object to the taking of the samples because he was of the belief that they would be taken forcibly if he did object. He had been told by a senior officer of An Garda Síochána that his consent was necessary, when in fact it was not. The relevant provisions of the Criminal Justice (Forensic Evidence) Act 1990 (ss. 2 and 4(b)) had by then been amended by the s. 14 of the Criminal Justice Act 2006 to remove the requirement for written consent for swabs from the mouth. However, after the samples were taken, Mr. White refused to sign forms confirming his consent.

4.4. As indicated earlier, it is first appropriate to turn to the Irish constitutional position.
5. The Current Irish Jurisprudence
5.1 In People (Director of Public Prosecutions) v Madden [1977] I.R. 336, the Court of Criminal Appeal had to consider the position of an accused who had not been provided with access to lawyer prior to making a statement, having been arrested under the Offences Against the State Act 1939. There, it was held:

“This Court is satisfied that a person held in detention by the Garda Síochána, whether under the provisions of the Act of 1939 or otherwise, has got a right of reasonable access to his legal advisers and that a refusal of a request to give such reasonable access would render his detention illegal. Of course, in this context the word “reasonable” must be construed having regard to all the circumstances of each individual case and, in particular, as to the time at which access is requested and the availability of the legal adviser or advisers sought. However, the Court is not satisfied that there is any obligation on the Garda Síochána when detaining a person either under s. 30 of the Act of 1939 or under any other authority, to proffer to such person the assistance of a legal adviser without request.”
5.2 In The People (Director of Public Prosecutions) v Healy [1990] 2 I.R. 73, an accused, again having been arrested under the Offences Against the State Act 1939, had been detained and questioned for a number of hours. A solicitor, retained by a member of the accused’s family, arrived at the garda station but was denied access until the accused had completed the making of a statement. The admissions contained in that statement were the sole evidential basis on which he was prosecuted. This Court confirmed that there was no distinction between the arrival of a solicitor on the request of an accused and on the request of a person acting bona fide on his behalf. The majority of the Court (Griffin J. did not feel it was necessary to answer the question in the circumstances of the case) also ruled that the right of reasonable access to a lawyer was constitutional in origin and not merely legal. Finlay C.J. (for the majority) went on to observe:
“A right of reasonable access to a solicitor by a detained person, I am satisfied, means, in the event of the arrival of a solicitor at the garda station in which a person is detained, an immediate right of that person to be told of the arrival and, if he requests it, immediate access. The only thing that could justify the postponement of informing the detained person of the arrival of the solicitor or of immediately complying with a request made by the detained person when so informed, for access to him, would be reasons which objectively viewed from the point of view of the interest or welfare of the detained person, would be viewed by a court as being valid.”
5.3 This Court returned to the issue of reasonable access to a lawyer in People (Director of Public Prosecutions) v Buck [2002] 2 IR 268, where it was necessary to consider the position of an accused who was arrested on a Sunday. Difficulties were encountered in procuring a legal advisor for the accused. He was questioned for a number of hours before a solicitor arrived. However, no statement was taken until after the accused had consulted with a solicitor. It was in this post-access statement that the accused made inculpatory admissions. He sought to challenge the admission of this statement in evidence on the ground that he was subjected to pre-consultation interrogation, amounting to a breach of his constitutional rights. In response to this submission, Keane C.J., on behalf of the Court, noted Walsh J.’s dissent in People (Director of Public Prosecution) v Conroy [1986] I.R. 460 to the effect that pre-access interrogation was a “constitutionally forbidden procedure”, yet stated:
“It would also seem to me that, where a person being detained under a statutory provision asks for a solicitor to be present and the gardaí make bona fide attempts to comply with that request, the admissibility of any incriminating statement made by the person concerned before the arrival of the solicitor should be decided by the trial judge as a matter of discretion in the light of the common law principles to which I have referred, based on considerations of fairness to the accused and public policy. Such an approach would seem preferable to a rigid exclusionary rule that would treat such statements as inadmissible without any regard to the circumstances prevailing in the particular case.”
5.4 In The People (Director of Public Prosecutions) v O’Brien [2005] 2 IR 206, an accused, whilst lawfully detained, requested the services of a solicitor. However, he did not specify a particular solicitor. The gardaí recommended a particular solicitor consciously knowing that there would be a delay in his arrival. In the intervening period, the gardaí continued to interrogate the accused and the accused made certain incriminating statements. In ruling these statements inadmissible for breach of an accused’s constitutional right to reasonable access to a lawyer, this Court, per McCracken J., held:
“…it was certainly wrongful of the gardaí to question him pending the arrival of the solicitor but that questioning is not what created the unlawfulness of his detention. The statements made by the accused pending the arrival of his solicitor would have been inadmissible whether there had been an undue delay in the arrival of the solicitor or not. What made the detention unlawful was the deliberate and conscious decision of the gardaí to contact Mr. Gaffney, rather than a more convenient solicitor, when they knew or ought to have known that there would be a very considerable delay in his attendance. That decision was made in breach of the accused’s constitutional rights and, therefore, from the moment that decision was made his detention became unlawful. The detention remained unlawful so long as the breach of the constitutional rights continued.”
5.5 This Court has also ruled that the right to reasonable access does not extend to having a lawyer present during questioning (see Lavery v Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390).
5.6 The taking of samples in the absence of advice from a requested solicitor was considered by the Court of Criminal Appeal in People (Director of Public Prosecutions) v Creed [2009] IECCA 90. In that case, the gardaí had made a number of failed attempts to contact a solicitor after being requested to do so. These attempts were criticised by the Court, but the failure to procure a solicitor was not found to be conscious and deliberate. The following morning a hair sample was taken from the accused, which action did not require his consent. No request was made at that time for a solicitor. The Court of Criminal Appeal differentiated between the request for the solicitor the previous night and the procuring of the relevant hair sample the following morning, holding that the request on the previous night was clearly related to questioning, not the taking of the sample. Thus, it concluded that it was lawful for the trial judge to admit the evidence as to the hair sample. However, the Court did add:

“A deliberate and conscious violation of rights may indeed render a detention wholly unlawful and render any evidence taken as a consequence of it, inadmissible. Where, however, there has been no deliberate and conscious violation of the constitutional right to access to a solicitor but where reasonable efforts have not been made to obtain a solicitor and the accused has not acquiesced in that situation, it must then be a matter of discretion for the trial judge to rule as to whether any particular evidence obtained in that context should be admitted or not. It does not at all follow that because there was no deliberate and conscious violation of the right, that it would be a fair procedure towards the accused to admit evidence obtained in the absence of a solicitor when reasonable efforts have not been made to obtain one. In considering the exercise of the discretion, the judge would also have to bear in mind that under the Custody Regulations, the relevant garda is required to inform the accused that the required solicitor is unobtainable.”
5.7 It is clear that the current state of the jurisprudence in Ireland recognises that the right to have access to a lawyer while in custody is a constitutionally recognised right. A failure to provide reasonable access after a request from a suspect in custody can, on that basis, render the custody unconstitutional and thus lead to any evidence obtained on foot of such unconstitutional custody becoming inadmissible. To date the jurisprudence has not gone so far, however, as to require that advice from a requested solicitor actually be made available to the relevant suspect prior to questioning or the taking of samples. However, that is the question which falls squarely for decision in these cases.
5.8 As already noted, in considering such a question, it is appropriate for this Court to have regard to both the jurisprudence of the ECtHR and that of the superior courts of other common law countries which have like constitutional provisions. Such jurisprudence can be of assistance in analysing similar rights guaranteed under the relevant legal regimes. In that context, I propose to turn first to the jurisprudence of the ECtHR and thereafter to the relevant international jurisprudence.
6. The Position of the European Court of Human Rights
6.1. The ECtHR had to consider the issue of post-arrest rights in Salduz v Turkey (2009) 49 EHRR 19. Here, Mr. Salduz, who was 17 years of age, had been arrested on suspicion of having taken part in an illegal demonstration and of hanging an illegal banner. He was interrogated by the police in the absence of a lawyer. During this interrogation he made a number of admissions, which he claimed were made under duress. He later denied these admissions were true. Mr Salduz was later found guilty on the basis of evidence which included this initial statement. An appeal was later dismissed.

6.2. Mr. Salduz alleged that his rights under Article 6 § 3 (c) of the ECHR had been violated. This article provides:

“3. Everyone charged with a criminal offence has the following minimum rights:
…

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
On the 26th April, 2007, the relevant Chamber held that there had been no violation of Mr. Salduz’s rights under that provision and that the fairness of his trial had not been prejudiced by lack of legal assistance while initially in police custody.
6.3 On the matter being referred to it, the Grand Chamber took a different view and outlined the applicable general principles at paras. 50-55 of its judgment:

“50. The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Imbrioscia, cited above, § 36). As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 (see Imbrioscia, cited above, § 37, and Brennan, cited above, § 45).
51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277 A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). Nevertheless, Article 6 § 3(c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused (see Imbrioscia, cited above, § 38).

52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances (see John Murray, cited above, § 63; Brennan, cited above, § 45; and Magee, cited above, § 44).

53. These principles, outlined in paragraph 52 above, are also in line with the generally recognised international human rights standards (see paragraphs 37 42 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused.

54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Can v. Austria, no. 9300/81, Commission’s report of 12 July 1984, § 50, Series A no. 96). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006 IX, and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, § 101). In this connection, the Court also notes the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (see paragraphs 39 40 above), in which the CPT repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.

55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 51 above) Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 …. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”

The Grand Chamber then went on consider all the factual circumstances of the case before concluding at para. 62:
“In sum, even though the applicant had the opportunity to challenge the evidence against him at the trial and subsequently on appeal, the absence of a lawyer while he was in police custody irretrievably affected his defence rights.”
6.4 The Salduz principles were later reiterated by the ECtHR in Amutgan v Turkey (Application 5138/04 (Fifth Section), 3rd February 2009) and Cimen v Turkey (Application 19582/02 (Second Section) 3rd February 2009). Similar sentiments can also be seen in the judgment of the ECtHR in Dayanan v Turkey (Application 7377/03 (Second Section) 13th October 2009), where it stated at para. 32:
“In accordance with the generally recognised international norms, which the Court accepts and which form the framework for its case-law, an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned (for the relevant international legal materials see Salduz, cited above, §§ 37-44). Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.”
6.5. It is also important to note the judgment of the ECtHR in Panovits v Cyprus (Application 4268/04 (First Section) 11th December 2008), which post dates Salduz by two weeks. This was another case which involved a minor, where the ECtHR held the failure to provide legal assistance prior to the initial questioning constituted a violation of the minor’s rights under Article 6 § 3. In coming to that conclusion, the court again assessed the factual matrix. Of note are paras. 72-73, which state:
“72. The Court takes note of the Government’s argument that the authorities had remained willing at all times to allow the applicant to be assisted by a lawyer if he so requested. It observes that the obstacles to the effective exercise of the rights of the defence could have been overcome if the domestic authorities, being conscious of the difficulties for the applicant, had actively ensured that he understood that he could request the assignment of a lawyer free of charge if necessary (see Talat Tunç, cited above, § 61, and Padalov v. Bulgaria, no. 54784/00, 10 August 2006, § 61). The passive approach adopted by the authorities in the present circumstances was clearly not sufficient to fulfil their positive obligation to furnish the applicant with the necessary information enabling him to access legal representation.
73. Accordingly, the Court finds that the lack of provision of sufficient information on the applicant’s right to consult a lawyer before his questioning by the police, especially given the fact that he was a minor at the time and not assisted by his guardian during the questioning, constituted a breach of the applicant’s defence rights. The Court moreover finds that neither the applicant nor his father acting on behalf of the applicant had waived the applicant’s right to receive legal representation prior to his interrogation in an explicit and unequivocal manner.”

A number of subsequent cases have confirmed that a suspect can waive his right to legal representation if this is freely and knowingly done (see Trymbach v. Ukraine (Application 44385/02 (Fifth Section), 12th January, 2012); Tarasov v Ukraine (Application 17416/03 (Fifth Section), 31st October, 2013); and Bodaerenko v Ukraine (Application 27892/05 (Fifth Section), 14th May, 2013)).
6.6. In Cadder v Her Majesty’s Advocate [2010] UKSC 43, the United Kingdom Supreme Court considered Salduz and Panovits in examining whether the Scottish procedure following arrest was compatible with the ECHR. The accused was questioned in the absence of a solicitor. During the questioning he made a number of admissions, which were later relied on by the prosecution at trial. Lord Hope, giving the majority judgment, stated that the Salduz principles had consistently been applied by the ECtHR since the Salduz judgment, and drew the conclusion at para. 48 that “the contracting states are under a duty to organise their systems in such a way as to ensure that, unless in the particular circumstances of the case there are compelling reasons for restricting the right, a person who is detained has access to advice from a lawyer before he is subjected to police questioning.” The effect of this was to overrule the earlier decisions of the High Court of Justiciary in Scotland upholding the compatibility of this procedure, namely, Paton v Ritchie (2000) JC 271, Dickson v HM Advocate (2001) JC 203 and HM Advocate v McLean (2010) SLT 73.

6.7 The United Kingdom Supreme Court has since ruled that the Salduz line of jurisprudence does not apply to pre-detention questioning (Ambrose v HM Advocate [2011] UKSC 43), and that use of the “fruits of questioning of an accused without access to a lawyer” do not necessarily amount to a violation of Article 6 (Her Majesty’s Advocate v P [2011] UKSC 44).

6.8 The ECtHR has distinguished between a scenario where an accused has made admissions prior to access to a lawyer and a scenario where objective evidence, such as samples, are taken from an accused prior to such access. In Saunders v United Kingdom (1996) 23 E.H.R.R. 313, the ECtHR observed at para. 69:

“69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.”
This principle, that the privilege against self-incrimination does not apply to blood or other physical or objective specimens used in forensic analysis, was recently reaffirmed in Boyce v Ireland (Application 8428/09 (Fifth Section), 12th November, 2012), a case concerning the taking of a blood sample.
6.9 In contrast, Jalloh v Germany (2006) 44 E.H.R.R. 67, concerned the forcible and highly invasive administration of emetics to an accused in an attempt to provoke the regurgitation of a bag believed to contain illegal drugs. As the accused refused to cooperate with the procedure carried out by a doctor, it was necessary for four police officers to hold him down and immobilise him. As a result of the emetics, the accused regurgitated one bag containing cocaine. He then sought to challenge the admission of this evidence by the German courts on the basis that it had been obtained illegally and in violation of his rights. The ECtHR found that the actions of the investigative authorities did breach the accused’s rights under Article 3 of the Convention:

“82. Having regard to all the circumstances of the case, the Court finds that the impugned measure attained the minimum level of severity required to bring it within the scope of Article 3. The authorities subjected the applicant to a grave interference with his physical and mental integrity against his will. They forced him to regurgitate, not for therapeutic reasons, but in order to retrieve evidence they could equally have obtained by less intrusive methods. The manner in which the impugned measure was carried out was liable to arouse in the applicant feelings of fear, anguish and inferiority that were capable of humiliating and debasing him. Furthermore, the procedure entailed risks to the applicant’s health, not least because of the failure to obtain a proper anamnesis beforehand. Although this was not the intention, the measure was implemented in a way which caused the applicant both physical pain and mental suffering. He has therefore been subjected to inhuman and degrading treatment contrary to Article 3.”
6.10 The Court then proceeded to examine the admissibility of this evidence under Article 6. At para. 102, the Court reaffirmed the general principle stated in Saunders. However, it held that the facts in Jalloh could be distinguished from those in Saunders for three reasons. In Saunders, the bodily material obtained was used to detect a substance whereas here emetics were used to obtain real evidence. Secondly, the means used in Jalloh were considered to be much more invasive and required the provocation of an unnatural bodily reaction. Finally, the procedure used in Jalloh was so severe that it was deemed to be a breach of Article 3, which was not the case in Saunders. Having weighed the following factors – the nature and degree of compulsion used to obtain the evidence; the weight of the public interest in the investigation and punishment of the offence in issue; the existence of any relevant safeguards in the procedure; and the use to which any material so obtained is put – the Court ruled that it “would also have been prepared to find that allowing the use at the applicant’s trial of evidence obtained by the forcible administration of emetics infringed his right not to incriminate himself and therefore rendered his trial as a whole unfair.”
6.11 In summary, the current jurisprudence of ECtHR does not appear to regard the forcible taking of samples as a breach of the privilege against self-incrimination unless the procedures used were sufficiently invasive and unnatural so as to bring the case outside the form of ordinary sampling permitted in accordance with Saunders and Boyce. I now turn to the international jurisprudence.
7. The International Jurisprudence
7.1 In Miranda v State of Arizona 384 U.S. 436 (1966), the United States Supreme Court held by a majority of 5-4, amongst other things, that statements made by a suspect during an interview while in custody are admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with a lawyer, before and during questioning, and of the right against self-incrimination prior to questioning by police. In circumstances where a suspect chooses to exercise his rights to a lawyer, the interrogation must cease immediately if it has already commenced and can not resume until the suspect has had an opportunity to consult with a lawyer. An accused is then also entitled to have a lawyer present at any subsequent interview. Warren C.J., delivering the majority opinion of the Court, explained at p. 469-470:

“The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege [against self-incrimination] under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent, without more, “will benefit only the recidivist and the professional.” …Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. …Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.”
There is a “public safety” exception to Miranda (see New York v. Quarles, 467 U.S. 649 (1984)).
7.2 The United States Congress sought to overrule Miranda for federal criminal cases and return the law to a pre-Miranda position through the federal Omnibus Crime Control and Safe Streets Act of 1968. In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court held that “Miranda announced a constitutional rule that Congress may not supersede legislatively” holding that the additional protections offered by the federal law did not create an adequate substitute for the Miranda warnings.

7.3 In Berghuis v. Thompkins, 560 U.S. 370 (2010), the U.S. Supreme Court also considered the position of a person who does not explicitly invoke or waive his right. In a 5-4 decision, the Supreme Court ruled that unless this choice to invoke or waive his Miranda rights was “unambigously” made, any subsequent voluntary statements made after being informed of his rights could be used in court and that police could continue to question him. The Court also held that a voluntary reply, even after lengthy silence, could amount to a waiver.

7.4. The Canadian Supreme Court has also recently considered the extent of the right of access to a lawyer in R. v. Sinclair [2011] 3 S.C.R. 3. Section 10(b) of the Canadian Charter of Rights and Freedoms states that, upon arrest or detention, a person has the right to “retain and instruct counsel without delay”. Para. 27 of the majority judgment (5-4) in Sinclair, delivered by McLachlin C.J. and Charron J., sought to elucidate the scope of s. 10(b):

“Section 10(b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called the informational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This is called the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(b) and results in a breach of the detainee’s rights: Manninen. Implied in the second component is a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel. The police obligations flowing from s. 10(b) are not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended…”.
7.5. The Court then went on reject the contention that the Miranda rule “should be transplanted in Canadian soil” and concluded at para. 42 “that s. 10(b) should not be interpreted as conferring a constitutional right to have a lawyer present throughout a police interview. There is of course nothing to prevent counsel from being present at an interrogation where all sides consent, as already occurs. The police remain free to facilitate such an arrangement if they so choose, and the detainee may wish to make counsel’s presence a precondition of giving a statement.”
7.6 In Australia, the current practice (although it varies slightly between states) is that before questioning commences, police are required to inform suspects that they may communicate or attempt to communicate with a lawyer. There is, however, no right to have a lawyer attend at a police station. Rather, the right that a suspect enjoys is to try to communicate with a lawyer. Normally, if a lawyer can be contacted and indicates that they will come to the police station, the police will not start the interview until the lawyer has arrived and has had a chance to speak to the suspect in private.

7.7 In New Zealand, s. 23(1)(b) of the Bill of Rights Act 1990 provides:

“1. Everyone who is arrested or who is detained under any enactment:
(b) Shall have the right to counsel and instruct a lawyer without delay and to be informed of that right;”
When a suspect seeks to exercise his or her right under s. 23, a police officer has a duty to refrain from taking any positive or deliberate step to elicit evidence from the detainee until he or she has had a reasonable opportunity to consult with counsel. However the courts will examine whether information was “elicited” or whether it was voluntarily provided (R v Taylor [1993] 1 N.Z.L.R. 647).
7.8. The New Zealand courts have also ruled that the the expression “without delay” applies equally to both the suspect and the police. Therefore, a suspect must exercise this right without delay and failure to do so may constitute a waiver of the right. One consequence of this approach is that the police are not obliged to wait indefinitely for a lawyer to arrive. In R v Etheridge (1992) 9 C.R.N.Z. 268, the Court of Appeal identified a number of factors which were said to be indicative of whether a delay was reasonable or not. These factors included whether the police officers knew the person wanted legal counsel; whether the police officers were aware of what arrangements, if any, had been made; and whether there was a pressing need or great urgency requiring the interview to be conducted in absence of a lawyer.

7.9 In analysing the international jurisprudence, it is important to note two factors. First, as in any case in which foreign jurisprudence might be considered to be of assistance, it is always relevant to have regard to the extent to which the foreign court concerned is addressing substantially the same question as this Court has to answer. Foreign jurisprudence which turns, not on general principles or on rights expressed in the same or similar terms, but on the specifics of foreign constitutional or legislative documents, will only be of true assistance if the Irish regime under consideration is sufficiently similar. In that context, it is important to note that there is an express entitlement to early access to a lawyer to be found in both the Canadian Charter of Rights and Freedoms (Section 10(b)) and the New Zealand Bill of Rights Act 1990 (Section 23(1)(b)). However, the Canadian judgment in Sinclair and the New Zealand judgment in Taylor seem to accept that it follows from the right of early access to a lawyer after arrest that, at least in general terms, questioning or interrogation should not commence or cease, as the case may be, until the suspect has had the benefit of consulting with his or her lawyer. The Canadian jurisprudence does suggest that there may be an obligation on the suspect to ask for a lawyer and to do so in a timely fashion.

7.10 It is, perhaps, reasonable to conclude that, of the common law jurisdictions which operate within a Bill of Rights framework, the jurisprudence of the United States courts goes the furthest in requiring, under Miranda, the presence of a lawyer prior to and during questioning in the same way (and subject to the same obligation of the State to provide) as at trial.

7.11 It is also important to emphasise that some of the issues which clearly arise in that international jurisprudence do not have any application to the facts of this case. There is no suggestion that either Mr. Gormley or Mr. White delayed in any request for a lawyer. There could, at least in Mr. Gormley’s case, be no question of waiver. That issue might, if decisive, require some closer scrutiny in the case of Mr. White given the precise circumstances in which he permitted the relevant samples to be taken. However, there appears to be a clear international view, based on the jurisprudence to which I referred, to the effect that there is, at a minimum, an obligation in most circumstances (possibly subject to some exceptions) on investigating police to refrain from interrogating a suspect at a time after the suspect has requested a lawyer and before that lawyer has arrived to advise the suspect concerned. That appears to be the clear position in the United States, in Canada and in New Zealand. That position is consistent with the jurisprudence of the ECtHR.
8. Discussion
8.1. The first real question of principle which this Court, therefore, now has to consider is as to whether the entitlement to a trial in due course of law, guaranteed by Article 38(1) of Bunreacht na hÉireann, encompasses an entitlement to have access to legal advice prior to the conduct of any interrogation of a suspect arrested and/or prior to the taking of any forensic samples from such a suspect. If that proposition is accepted at the level of general principle then many more questions of detail would, of course, arise. Questions such as the point in time when the right arose, the extent to which it is necessary for the suspect to request the presence of a lawyer, whether the entitlement can be waived and, if so, by reference to what standard of action on the part of the suspect, the extent to which a lawyer is entitled to be present during the questioning as well as being entitled to advise the suspect prior to questioning, the extent to which the entitlement to have legal advice might extend not only to a situation where it was intended to question the suspect but also, as in Mr. White’s case, to where it is intended to take samples from the suspect and, doubtless, many others would arise. By no means do all of those issues arise on the facts of these cases. However, the first question which requires to be addressed is as to whether there is a constitutional entitlement of the type asserted in the first place.

8.2. For the reasons already analysed, the current state of the jurisprudence in Ireland clearly does not go that far. In substance it can be said that, to date, the view taken has been that the entitlement to legal advice is a constitutional right. However, it has not been held that that right precludes ongoing interrogation (or indeed the taking of forensic samples) where reasonable efforts are being made to provide the suspect with the requested legal advice. In addition, the current state of the jurisprudence addresses the issue as one which principally affects the constitutional lawfulness of custody so that, in the event that there is a breach of reasonable access to a solicitor, custody becomes unconstitutional and evidence obtained during such unconstitutional custody becomes inadmissible.

8.3. The argument put forward on behalf of Mr. Gormley and Mr. White seeks, perhaps, on one view, to come at the question from a somewhat different angle. Rather than necessarily treating the matter as one principally of unlawful custody, it is rather suggested that the entitlement to have access to a lawyer before being interrogated or having forensic samples taken forms part of the right to a trial in due course of law, such that any reliance sought to be placed on evidence obtained in breach of the obligations of fair process thus arising is said to be in itself directly unconstitutional as opposed to simply rendering evidence inadmissible.

8.4. Given that a decision by this Court to accept, at least in broad terms, the argument put forward on behalf of Mr. Gormley and Mr. White would, therefore, amount to a significant development in the jurisprudence in this area, it is important to emphasise that this Court has consistently held that the Constitution is, as it were, a living document which requires to be interpreted from time to time in accordance with prevailing norms. In his judgment in McGee v Attorney General [1974] I.R. 287, Walsh J., when discussing the values contained in the Preamble to the Constitution, stated, at p. 319:

“According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”
8.5. This passage was quoted by O’Higgins C.J. in The State (Healy) v Donoghue [1976] I.R. 325 at p. 347 and he prefaced this quotation with the following comments:
“In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.”
This approach has more recently been endorsed in the judgments of Denham and Murray JJ. in Sinnott v Minister for Education [2001] 2 IR 545 and A v Governor of Arbour Hill Prison [2006] 4 IR 88.
8.6. The first real question which must, therefore, be addressed is as to whether it is now necessary to interpret the “due course of law” provisions of Bunreacht na hÉireann as encompassing the asserted right to access to a lawyer prior to interrogation or the taking of forensic samples.

8.7. The first issue which perhaps arises is as to whether it is appropriate to regard any part of the investigative stage of a criminal process as forming part of a “trial in due course of law”. It is clear that the ECtHR takes such a view. It must, of course, be recalled that, in many civil law countries, there are formal parts of the investigative process which are judicial or involve prosecutors who have a quasi-judicial status. The line between investigation and trial is not necessarily the same in each jurisdiction. Furthermore, it is important to emphasise a potential distinction between a formal investigation directly involving an arrested suspect and what might be termed a pure investigative stage where the police or other relevant prosecuting authorities are simply gathering evidence.

8.8. However, I am persuaded that the point at which the coercive power of the State, in the form of an arrest, is exercised against a suspect represents an important juncture in any potential criminal process. Thereafter the suspect is no longer someone who is simply being investigated by the gathering of whatever evidence might be available. Thereafter the suspect has been deprived of his or her liberty and, in many cases, can be subjected to mandatory questioning for various periods and, indeed, in certain circumstances, may be exposed to a requirement, under penal sanction, to provide forensic samples. It seems to me that once the power of the State has been exercised against a suspect in that way, it is proper to regard the process thereafter as being intimately connected with a potential criminal trial rather than being one at a pure investigative stage. It seems to me to follow that the requirement that persons only be tried in due course of law, therefore, requires that the basic fairness of process identified as an essential ingredient of that concept by this Court in State (Healy) v. Donoghue applies from the time of arrest of a suspect. The precise consequences of such a requirement do, of course, require careful and detailed analysis. It does not, necessarily, follow that all of the rights which someone may have at trial (in the sense of the conduct of a full hearing of the criminal charge before a judge with or without a jury) apply at each stage of the process leading up to such a trial. However, it seems to me that the fundamental requirement of basic fairness does apply from the time of arrest such that any breach of that requirement can lead to an absence of a trial in due course of law. In that regard it seems to me that the Irish position is the same as that acknowledged by the ECtHR and by the Supreme Court of the United States.

8.9. The next question which arises is as to whether that requirement of basic fairness involves an entitlement not to be interrogated (or not to have forensic samples taken) without having first had access to legal advice. As it is possible that the answer to this question may differ as and between interrogation and the taking of forensic samples, I propose to deal with the question of interrogation first.
9. Legal Advice Before Interrogation
9.1. As already analysed, the consistent international position is that any entitlement to have access to a lawyer at an early stage after arrest necessarily carries with it an entitlement not to be interrogated after such access is requested and before access to such a lawyer is obtained. The reasoning of the ECtHR and the Courts of the United States, Canada and New Zealand which lead to such a conclusion has already been analysed. I am persuaded that like reasoning applies to the interpretation of the constitutional entitlement to a trial in due course of law of an arrested suspect under Bunreacht na hÉireann.

9.2. There may be many reasons why an arrested suspect may wish to have access to a lawyer. There may also be many reasons why such access may be required at an early stage. Some of those reasons may not be very closely connected with either questioning or the taking of forensic samples. It might, for example, be necessary to put in place early enquiries which might assist in the building of a defence. The suspect might require advice on the lawfulness of the arrest and of his or her custody. However, there can be little doubt but that advice on the immediate events which often occur on the arrest of a suspect (such as questioning) is one of the most important aspects of the advice which any suspect is likely to require as a matter of urgency. There would be little point in giving constitutional recognition to a right of access to a lawyer while in custody if one of the principal purposes of that custody in many cases, being the questioning of the relevant suspect, could continue prior to legal advice being obtained. At a minimum any such right would be significantly diluted if questioning could continue prior to the arrival of the relevant lawyer. In those circumstances, it seems to me that the need for basic fairness, which is inherent in the requirement of trial in due course of law under Article 38.1 of the Constitution, carries with it, at least in general terms and potentially subject to exceptions, an entitlement not to be interrogated after a request for a lawyer has been made and before that lawyer has become available to tender the requested advice. As pointed out earlier, there are many issues of detail which surround the precise extent of such a right. Not all of those issues of detail arise in the context of Mr. Gormley’s case which is, of course, the only case before this Court concerning interrogation.

9.3. The interrogation in Mr. Gormley’s case occurred wholly after he had requested a solicitor. Questions as to what must precisely be said to a suspect about their entitlement to have the assistance of a lawyer and questions concerning the extent, if any, to which the State must provide such assistance to those who may be impecunious, do not, therefore, arise on the facts of this case. I would leave to a case in which those issues specifically arise a determination of the precise parameters of the constitutional entitlement.

9.4 Likewise, questions as to whether there may be some limit on the entitlement, by reference to any difficulties which might be encountered in securing the attendance of an appropriate lawyer, do not arise on the facts of Mr. Gormley’s case. As pointed out earlier, the requested solicitor in his case, given that the request arose on a Sunday afternoon, arrived at the garda station with commendable expedition. Lest it might be argued that the statutory entitlement of An Garda Síochána to conduct questioning of suspects in particular circumstances might be diluted by a recognition of the entitlement of a suspect to have a solicitor actually give advice prior to questioning, it is only necessary to refer to s. 5A(1) of the Criminal Justice Act 1984, as inserted by s. 9(a) of the Criminal Justice Act 2011. While that section has not yet been commenced, it demonstrates not only that the Oireachtas has already been concerned about such matters but also that there is a ready solution. In substance any statutory period of detention can be extended by means of stopping time running while the arrival of the relevant lawyer is awaited.

9.5 It must also be recalled that the issue which falls squarely for decision in this case is not one which could reasonably be said to have taken the authorities by surprise. The executive long since committed Ireland to compliance with the ECHR as it is interpreted, from time to time, by the ECtHR. The decision of the ECtHR in Salduz was delivered in 2009 and the possibility that such a view might be taken by that court must have been clear for some time before that. Likewise, the Irish courts have made specific reference to difficulties arising out of questioning in garda custody not least in D.P.P. v. Ryan [2011] IECCA 6, where the Court of Criminal Appeal, in a judgment delivered by Murray C.J., drew specific attention to the potential interaction between the questioning in custody obligations of the State which arise under the ECHR and the questioning practices then typically in place.

9.6 In Ryan the Court of Criminal Appeal said:-

“Right of Access to a Solicitor Generally
Before moving on to address the next issue the Court considers it important to recall that in this case the contents of five out of the six interviews conducted by the Gardaí with the applicant, and portion of the other interview, were excluded on the grounds that the applicant’s constitutional right of access to a solicitor had been breached. This is by no means an unusual ruling in criminal trials generally including those concerning the most serious of offences such as murder. The constitutional right of persons who are being questioned in custody to access to legal advice before questioning (and the duty to advise them of that right) is well established. The right is reflected in the provisions of the Regulations for the Treatment of Persons in Custody in Garda Stations (S.I. 119 of 1987) according to which the member in charge of a garda station is obliged, inter alia, to inform an arrested person without delay of his or her right to consult a solicitor in addition to an explicit provision providing that an arrested person shall have reasonable access to a solicitor of his or her choice. It is not necessary to recall here the reasons why such a right is a necessary protection for an arrested citizen all of which have been extensively referred to in the case-law on this topic. It is also a right which is recognised in most if not all democratic countries and one of the rights recognised in the European Convention on Human Rights (to which the State is a party) and which has been the subject of important decisions by the Court of Human Rights. The frequency therefore with which garda interviewing practices have resulted in otherwise important evidence being rendered inadmissible for such breaches is surprising and to be regretted. The situation would suggest that there is some lack of a coherent practice or training of garda officers as to the manner in which arrested persons should be treated so as to ensure that full and substantive effect is given the right of access to a solicitor, having regard to established principles of law applicable to such a right including principles stemming from the case-law of the European Court of Human Rights. Apart from the relevance of the latter from a comparative law perspective account would have to be taken of s. 2 of the European Convention on Human Rights Act 2003 which requires, even if somewhat enigmatically, that any statutory provision or rule of law be interpreted as far as possible in a manner compatible with the State’s obligations under the Convention. Apart from the time and expense that would be spared if criminal jury trials did not have to spend considerable time addressing such issues in the absence of the jury (a subsidiary but important consideration), the adoption, or more important the giving effect to, of an essentially uniform practice or protocol which ensured that the right of an arrested person’s access to a solicitor was routinely respected would in turn ensure that evidence properly and fairly obtained during interviews suspects is admissible at the trial. That that should be so, whether such statements are inculpatory or exculpatory, is in the interests of justice from every perspective.”

9.7 The likelihood that the State would be required, as the UK Supreme Court put it in Cadder, to organise its systems to take account of such rights has been on the agenda for a sufficient period of time that a finding that the constitutional right to a fair trial encompasses the right to access to legal advice before questioning can hardly come as a surprise. If it be the case that the State has not, to date, organised itself in a manner sufficient to allow such questioning to take place in conformity not just with the Constitution but also with the well established jurisprudence of the ECtHR, then it is those who are in charge of putting such provisions in place who must accept responsibility.
9.8 Furthermore, the reasoning behind the obligation to ensure legal advice before questioning identified in this judgment has been available in the jurisprudence of courts, whose judgments on like issues the Irish courts frequently regard as persuasive, for quite some time.

9.9 Warren C.J. suggested as far back as Miranda in 1966 that the right to have a lawyer present at the interrogation is indispensable to the protection of the privilege against self-incrimination. That proposition applies equally to advice prior to interrogation. Likewise as McLachlin C.J. and Charron J., speaking for the Canadian Supreme Court, pointed out in Sinclair, the right to be given an opportunity to consult with a lawyer implies “a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult …”. Furthermore, the ECtHR emphasised that, after an arrest, an accused is in a particularly vulnerable position and criminal procedure often becomes complex. On that basis the ECtHR has stated that the vulnerability of the accused can only be properly compensated for by the assistance of a lawyer whose task it is, amongst other things, to ensure respect of the right of an accused not to incriminate himself. It is also worth noting that those suspects well used to the criminal process know enough about the process to protect themselves. It is those who are unfamiliar who are the most vulnerable.

9.10 Whether there may be some extreme exceptions where the lawyer just does not arrive within any reasonable timeframe is a matter to be debated if and when a case with those facts actually comes before the Court. Likewise, the question as to whether a suspect is entitled to have a lawyer present during questioning does not arise on the facts of this case for the questioning in respect of which complaint is made occurred before the relevant lawyer even arrived. However, it does need to be noted that the jurisprudence of both the ECtHR and the United States Supreme Court clearly recognises that the entitlements of a suspect extend to having the relevant lawyer present.

9.11 The question of the extent to which a suspect must invoke the entitlement to have a lawyer present or the type of conduct which might constitute a waiver of such entitlement are again not matters which arise on the facts of this case. Mr. Gormley made a clear request and there can be no suggestion that he waived any entitlements which might thereby arise.

9.12 Finally, it is important to note that the ECtHR and the U.S. Supreme Court accept that the securing of a conviction of a person, by placing significant reliance on admissions made in the course of questioning which occurred in the absence of advice from a lawyer in breach of the suspect’s entitlements, necessarily leads to the trial being an unfair trial (see Salduz, Miranda, etc.). I am persuaded that a like position must be found to exist under Bunreacht na hÉireann.

9.13 Therefore, whatever may be the situation in other cases, it seems to me that Mr. Gormley’s case is clear. He requested a solicitor. He never withdrew that request nor could it be said that he waived his entitlement to timely legal advice in any way. He made statements, which were relied on to significant effect at his trial, before he had an opportunity to obtain the requested advice. For the reasons analysed in detail by the ECtHR in Salduz and by the U.S. Supreme Court in Miranda, I am satisfied that the entitlement not to self-incriminate incorporates an entitlement to legal advice in advance of mandatory questioning of a suspect in custody. In Mr. Gormley’s case that right was clearly denied. He had requested such advice, had not withdrawn any request or otherwise waived his entitlement and yet had been questioned before he had received the necessary advice. No question could arise on the facts of his case as to whether there might be an exception where it proved impractical, through no fault of any of the prosecuting authorities, to provide the advice in question. The right to a trial in due course of law encompasses a right to early access to a lawyer after arrest and the right not to be interrogated without having had an opportunity to obtain such advice. The conviction of a person wholly or significantly on the basis of evidence obtained contrary to those constitutional entitlements represents a conviction following an unfair trial process.

9.14 It should also be emphasised that the right to legal advice before interrogation is an important constitutional entitlement of high legal value. If any exceptions to that right are to be recognised, then it would be necessary that there be wholly exceptional circumstances involving a pressing and compelling need to protect other major constitutional rights such as the right to life. This judgment is not the place to attempt to define any possible exceptions with precision. The basis of any exception would need to meet the criteria just noted and also be clearly established in fact supported by contemporaneous records.

9.15 Likewise, it is important to emphasise that the right is one designed to provide support for the right against self-incrimination amongst other rights including the right to a fair trial. In that context it must be clearly understood that there is an obligation on arresting authorities to genuinely respect that right. Whatever parameters may exist in relation to the question of whether a person might be said either to have waived the right, or to have failed to invoke the right, the circumstances surrounding the actions of the relevant suspect will require to be carefully scrutinised to ensure that any decision made or, indeed, any inaction on the part of the suspect concerned, was not inappropriately influenced by any contrived conditions brought about or contributed to by arresting authorities designed or which would be likely to encourage any such waiver or non-invocation. A suspect should be treated in a dignified manner at all times after arrest including any period pending the arrival of a legal adviser. It must be recalled that, at such a time, the suspect not only enjoys the presumption of innocence but has not even been charged. For the reasons already analysed, the constitutional entitlement to fair process commences on arrest. The actions of those involved in an arrest must respect that fact.

9.16 Situations should not arise which would place a suspect in a position where the price which they would have to pay for invoking their right to legal advice prior to interrogation would be an unreasonably lengthened period of incarceration or the acceptance of other adverse conditions. The conditions of custody must reflect the fact that the suspect at that stage has not even been charged. Such conditions must be such as could not objectively be considered in any way oppressive or otherwise such as might lead a suspect to reasonably consider waiving any rights which they may have. Suspects should have explained to them their entitlements in a fair and appropriate way which could not, objectively speaking, be considered to in any way encourage waiver or non-invocation.

9.17 In summary, therefore, so far as Mr. Gormley’s case is concerned, I am satisfied that it has been established that Mr. Gormley did not have a trial in due course of law by reason of the fact that a material element of the evidence on foot of which he was convicted was evidence obtained during questioning which occurred after he had requested legal advice and before that legal advice had been obtained. On that basis it is unnecessary to consider whether Mr. Gormley could have succeeded in his appeal by placing reliance on the ECHR.

9.19 As has, however, been identified earlier in this judgment, it does not follow that the entitlement to have access to a lawyer prior to the commencement or continuance of questioning necessarily applies either at all or at least in the same way in respect of any possible entitlement to have access to a lawyer before objective evidence in the form of forensic samples are taken from an accused. I, therefore, turn to that question which is at the heart of Mr. White’s case.
10. Legal Advice Prior to Forensic Sampling
10.1 It seems to me that different considerations apply to forensic testing. First, it must be acknowledged that the results of forensic testing are objective. Such results do not depend on the will of a suspect or comments made by a suspect in circumstances where the right to self-incrimination could have been invoked or where it is possible that the circumstances in which the interrogation took place led to the suspect, in the absence of advice, being unfairly prejudiced by the way in which the relevant questioning was conducted or responded to.

10.2 If there truly is any question about the reliability of any form of objective testing adopted, then any such issues can be fully explored at the trial. Likewise, if there is any question about the legality of the taking of the forensic samples concerned, same can also be fully explored at the trial. Where, however, state authorities are entitled, as a matter of law, to take forensic samples, where any preconditions specified by that law to the taking of the samples concerned have been complied with, and where the samples are taken in a minimally obtrusive way which does not amount to the sort of forcible and highly invasive methods which led the ECtHR in Jalloh to hold that the methods there used amounted to inhuman and degrading treatment, then it seems to me that there is no breach of the constitutionally guaranteed right to fair process arising from the taking of the samples concerned. That position is consistent with the jurisprudence of the ECtHR as analysed earlier in this judgment.

10.3 On that basis, at the level of principle, I am not satisfied that the mere fact that otherwise lawful forensic sampling is properly taken prior to the attendance of a legal adviser renders any subsequent trial, at which reliance is placed on the results of tests arising out of that forensic material, unfair. It remains, of course, the case that the suspect is entitled to reasonable access to a lawyer. The authorities in whose custody the suspect is held are required to take reasonable steps to facilitate such access. What consequences may flow, in respect of the admissibility of forensic evidence taken from a suspect where such reasonable steps are not taken, is a matter to be decided in a case where those circumstances arise. However, I am not satisfied that there is any fair trial constitutional prohibition on the taking, without prior legal advice, of a sample in a minimally intrusive way which is justified in law.

10.4 In those circumstances, I am not satisfied that the “due course of law” provisions of Bunreacht na hÉireann preclude the taking of objective forensic samples from a suspect while that suspect is in custody, after the relevant suspect has requested legal advice and before the relevant legal advice becomes available. That general statement is subject, of course, to the requirement that there be a legal basis for the taking of the sample concerned and that any conditions or procedures specified in the statute conferring that legal basis have been complied with. The methods adopted must also be minimally obtrusive.

10.5 It follows that the general proposition asserted in Mr. White’s case must be rejected. There is nothing, per se, which renders his trial unfair by the admission of evidence in the form of forensic samples which were taken after he had requested the presence of his solicitor for advisory purposes and before that solicitor’s timely arrival.

10.6 The situation might be different in a case where the suspect has genuine legal choices available in respect of the taking of samples and where it would be reasonably necessary for the suspect concerned to have access to legal advice before making any such choices. For the avoidance of doubt, I would wish to emphasise that I do not consider that the fact that a suspect might be able, by committing a separate criminal offence of refusing to cooperate with the giving of samples, to frustrate the exercise, could not amount to the making of a choice by that suspect in the sense in which I have just used that term. It can not be said that a suspect has a right to refuse to give a sample even though there might be circumstances where, in practice, a refusal, even though constituting a separate criminal offence, might be considered by a suspect to be a sensible tactic. The sort of choice to which I have referred is a choice which is clearly given by the law to a suspect in relation to sampling and where legal advice is reasonably necessary to enable the suspect to make an informed choice. Where such a choice is given, there may well be an entitlement available to a person in custody to obtain legal advice before exercising such a choice. However, on the facts of this case, Mr. White was, as a matter of law, obliged to allow the forensic testing which was required of him. In those circumstances, there was no breach of fair process resultant from the requirement made of Mr. White to provide the relevant samples prior to the arrival of his solicitor.

10.7 I am satisfied, therefore, that a distinction, for the reasons and in the circumstances set out in this judgment, exists between the entitlement to prior legal advice in cases of interrogation, on the one hand, and the lack of such entitlement in the case of mandatory non-obtrusive taking of objective forensic samples, on the other. Given that such a distinction exists at the constitutional level, it is of the utmost importance that there be absolute clarity as to that difference. Indeed, it is a matter which might well merit specific regulation to avoid the risk that there might be confusion in the minds either of suspects or those in whose custody the suspect is held between the two processes. It is important that, on an occasion when, before legal advice in accordance with the rights identified in this judgment has been obtained, the authorities are nonetheless, legitimately, requiring or enforcing the taking of samples in a manner permitted by this judgment, such an occasion is not, either consciously or unconsciously, used to in any way to interfere with the entitlement of the suspect to obtain advice before interrogation.

10.8 The final question which remains, however, so far as Mr. White’s case is concerned, is as to whether the factual confusion which arose out of the incorrect statements made to him by gardaí in respect of the legal status of any obligation which he might have to give a sample, has any relevance, on the facts of this case, to the validity of his conviction. While the law did not give Mr. White any choice as to providing the requested samples, it would appear that the senior garda involved in seeking to apply that law was mistaken in that regard and also mistakenly informed Mr. White that he had, in fact, a choice, albeit one where a failure to give the relevant samples might result in adverse comment at any subsequent trial. I, therefore, turn to the question of whether those unusual facts affect the situation in Mr. White’s case.

10.9 In my view, the fact remains that Mr. White was legally obliged to provide the samples concerned. Any refusal would have constituted a separate criminal offence. As a matter of law, Mr. White did not have any choice in the matter. Therefore, the need for legal advice just did not arise.

10.10 It does have to be said that it is highly surprising that a senior and experienced garda should be under such a significant misunderstanding as to the legal position in an important area that he misled Mr. White by suggesting that he did have a choice. However, that was an error in favour of Mr. White in the sense that it suggested to him that he had an option to refuse (albeit one which might carry with it some adverse inferences at a possible trial) when in fact he had no such option.

10.11 If Mr. White had actually declined to give a sample, it might well have been relevant in determining whether he could, then, have properly been found guilty of any offence associated with such refusal, to take into account the fact that he had been misled by a senior garda into believing that he had such an entitlement. However, the fact remains that the fair process entitlement which Mr. White undoubtedly enjoyed did not, for the reasons which I have already analysed, include an entitlement to have access to a solicitor before such samples were required of him. I cannot see how the fact that the investigating garda made a mistake in his favour could have changed that situation so as to confer on him a right to legal advice prior to the sampling taking place which did not otherwise arise.

10.12 Having dealt with the matter under Irish constitutional law, it remains to consider whether any separate rights asserted on behalf of Mr. White under the ECHR can be availed of by him. For the reasons already analysed, I am not satisfied that the jurisprudence of the ECtHR leads to a conclusion that the taking of objective forensic samples without the benefit of legal advice amounts to a breach of the right against self- incrimination and, thus, to an unfair trial if evidence obtained from the taking of such samples is materially relied on. This is so at least in cases where, as here, any samples are taken in an unobtrusive way. I am not, therefore, satisfied that Mr. White has established any breach of his rights under the ECHR. The questions which would otherwise have arisen concerning the effect, if any, of any breach of the ECHR on the validity of Mr. White’s conviction, do not, therefore, arise.

10.13 For those reasons, I am satisfied that the circumstances in which the forensic samples in question were taken in Mr. White’s case do not lead to any difficulty concerning the admission of the analysis of those samples in evidence against him. On that basis Mr. White’s appeal on the principal point must be dismissed. It follows that it is necessary to address the two further non-certified points which Mr. White was permitted to argue. I turn to those points.
11. The First Uncertified Point – the Validity of the Warrant
11.1 The warrant relevant in Mr. White’s case was issued under s. 42(2) of the Criminal Justice Act 1999, as amended by s. 11 of the Criminal Justice Act 2006 (“section 42″), which provides:

“(2) A member of an Garda Síochána may arrest a prisoner on the authority of a judge of the District Court who is satisfied, on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent, that the following conditions are fulfilled:
(a) there are reasonable grounds for suspecting that the prisoner has committed an offence or offences other than the offence or offences in connection with which he or she is imprisoned;
(b) the arrest of the prisoner is necessary for the proper investigation of the offence or offences that he or she is suspected of having committed; and

(c) where the prisoner has previously been arrested for the same offence or offences, whether prior to his or her imprisonment or under this section, further information has come to the knowledge of the Garda Síochána since that arrest as to the prisoner’s suspected participation in the offence or offences for which his or her arrest is sought.”

11.2 The relevant warrant was applied for by a Detective Superintendent to a judge of the District Court on the 7th February, 2008. A sworn information on oath was placed before the District Judge. Further evidence was given as a result of questions put by the District Judge concerned prior to her decision to issue the relevant warrant. There is no issue before this Court as to the adequacy of the information available to the District Judge to enable her to be satisfied that it was appropriate to issue the warrant concerned under the provisions of section 42. There is, thus, no issue of substance concerning the validity of the warrant.
11.3 However, the form of warrant issued specified that the District Judge was “satisfied that the arrest of the said prisoner is necessary for the proper investigation of the offence”. Thus, the warrant specified that the District Judge was satisfied of the matter contained in s. 42(2)(b). There was no similar recital in the warrant to the effect that the District Judge was satisfied of the matters specified at subs. (a) and (c) of that subsection. On that basis, it was contended at Mr. White’s trial that the warrant was defective on its face, that his arrest on foot of the warrant was, therefore, unlawful, and that any evidence by way of sample taken from him thereafter occurred in conscious violation of his constitutional right to liberty, thus, it was said, rendering any such evidence inadmissible.

11.4 In that context, the trial judge ruled as follows:-

“In relation to his criticism of this warrant, he relies in particular on the Simple Import case and the line of authorities there which I am referred to. In my view, the cases are distinguishable. In Simple Imports the warrants showed on their face that statutory preconditions had not been satisfied.”
11.5 Thereafter, as earlier noted, Mr. White appealed against his conviction to the Court of Criminal Appeal. In the course of that appeal, it was suggested that the trial judge was incorrect in the above ruling concerning a warrant. In that context, the Court of Criminal Appeal ruled as follows:-
“It might be said, also, having regard to s. 42(2) that the terms of (a) are, at least in part, sufficiently recited in the warrant. As to (c), if evidence to comply with that sub-section is given, as was the case here, it is inevitable that (b) would follow from that, and also from proof of (a). It is not, therefore, clear why, in such a case as this one, the terms of s.42 (2) (b) would not be, and should not be, deemed adequate to support the warrant. Provided that there is adequate evidence, as here, that all of the matters provided for in s.42(2)(a) and (c) were put before the learned District Court judge, which is the conclusion to be drawn from the evidence, it appears to this Court that it was adequate for the purposes of permitting the arrest of the Appellant, as a prisoner, and the arrest warrant was not invalid by the failure independently to recite the judge’s satisfaction as to the existence of each (a) and (c) of s.42(2) on the face of the warrant.
In the circumstances, the applicant cannot succeed in his contention that the arrest warrant was invalid and so too all consequences flowing therefrom. But, even if the arrest warrant was incorrectly completed, in that the specific recitals of (a) and (c) were not included expressly on the face of it, no argument has been advanced that the warrant was thereby secured in conscious and deliberate violation of a constitutional right, and no suggestion is made that the arrest warrant was procured by means of a ruse, or a deceit intended to evade those rights. If, therefore, the arrest warrant in the present case, was not in breach of any constitutional protection, but was nevertheless not in strict conformity with the statute and was therefore illegal in that sense, such illegality does not have as its automatic consequence that the warrant is thereby invalid or of no effect. The illegality in this case is not such as to persuade this Court to conclude that the subsequent arrest, detention and questioning of the applicant pursuant to the arrest warrant, were themselves, in turn, invalid, and indeed no argument on that basis was made. The learned trial judge did not commit any error in law in his finding that the arrest warrant was valid.”

11.6 The case made on behalf of Mr. White was to reiterate the points made both before the trial court and the Court of Criminal Appeal. In simple terms, it was said that the warrant was defective because there was no recital of compliance with two of the three conditions necessary for the issuing of a warrant under section 42.
11.7 Counsel argued that there was no presumption that a court document is valid on its face and that the validity must, thus, be proved. Reliance was placed on Simple Imports Limited v. Revenue Commissioners [2000] 2 I.R. 243, where the form of words appearing on a warrant was different from the statutory matter of which the issuer of the relevant warrant had to be satisfied. Some reference was also made to Director of Public Prosecutions v. Henry Dunne [1994] 2 I.R. 537. For reasons which I hope will be clear, I do not consider Henry Dunne to be relevant to this case.

11.8 Cases involving warrants can be divided into categories in various ways. There are, for example, cases concerning the substance of the circumstances in which a warrant is issued as opposed to cases involving the form of the warrant. This case is clearly in the latter category. However, even cases involving issues concerning the form of a warrant can, in my view, be divided into two types. To understand that distinction, it seems to me to be important to recall what a warrant does. A warrant permits persons authorised by same to carry out acts which would otherwise be unlawful. Persons may be arrested, and thus have their liberty curtailed, who might not otherwise be capable of legitimate arrest and detention. Persons may be required to have their premises (including a dwelling house) searched and relevant materials and evidence removed. Persons who are affected by a warrant are, prima facie, obliged to submit to its terms. Resisting an arrest lawfully authorised by a warrant is itself a criminal offence. Persons are obliged to permit a search to be carried out in accordance with the terms of a lawful warrant.

11.9 Against that background, it seems clear that a warrant must do at least two things. First, it must set out in sufficiently clear terms the authorisation which the warrant gives. Second, the warrant must specify a sufficient legal basis. The reason for both of these requirements is clear. A person whose rights are affected is entitled to know with some reasonable level of precision what it is exactly that the warrant authorises. Second, such a person is entitled to know the legal basis on which it is said that the warrant was issued because it is that legal basis which requires them to submit to something which would otherwise be unlawful (an arrest or a search, for example).

11.10 But as has been made clear in a number of recent decisions of the Court of Criminal Appeal, (see for example People (Director of Public Prosecutions) v. Mallon [2011] 2 IR 544 and People (Director of Public Prosecutions) v. McCarthy [2010] IECCA 89, [2011] 1 I.L.R.M. 430 at p. 441), not every error of form is regarded as sufficient to render a warrant invalid. So far as the question of what the warrant mandates is concerned, the test is, as O’Donnell J., delivering the judgment of the CCA in Mallon, pointed out, as to whether the error makes the warrant unintelligible or misleading. The logic of that position is clear. What a person is entitled to know is what the warrant authorises. Provided that the warrant does this in sufficiently clear terms to allow a person to understand what is authorised, then the fact that there may be a technical misdescription in matters, such as the precise formal address of a property to be searched, will not render the warrant concerned invalid.

11.11 The second type of issue of form, as already noted, concerns the extent to which it may be necessary for a warrant to specify the legal basis for the issuing of the warrant in the first place and, in particular, the extent to which the warrant must specify, in terms, that any preconditions necessary to the issuance of the relevant warrant have been met.

11.12 In that context, counsel for Mr. White placed reliance, as already noted, on Simple Imports. The principle which can be derived from Simple Imports can be found in a passage from the judgment of Keane J. (speaking for the majority) at p. 255:-

“Given the necessarily draconian nature of the powers conferred by the statute a warrant cannot be relied upon as valid which carries on its face a statement that it has been issued on a basis which is not authorised by the statute. It follows that the warrants were invalid and must be quashed.”
11.13 From that passage, it seems clear that what was decided in Simple Imports was that a warrant, which contained on its face a statement which was inconsistent with the statutory conditions necessary for its issue, cannot be valid. In like vein, the ruling in Henry Dunne involved a finding by the trial judge that, by virtue of adaptions made to a standard form document, the terms of the relevant warrant were unintelligible.
11.14 It is also of some relevance to note that this Court, in Simple Imports, considered the position in England and Wales which can be seen to derive from R. v. Inland Revenue Commissioners ex parte Rossminster [1980] AC 952. At p. 253, in Simple Imports, Keane J. said the following:-

“I am satisfied, however, that the superior courts in this jurisdiction are entitled to assume, unless the contrary is established, that judges of the District Court act in accordance with the Constitution and the law in discharging their functions. Different considerations arise, however, where, as here, the warrant itself, unlike the warrant in Reg. v. Inland Revenue Commissioners, Ex parte Rossminster [1980] AC 952, recites that the district judge has purported to exercise the jurisdiction where the statutory preconditions for its exercise have not been met. It need hardly be said that the error was clearly unintentional and resulted from the use of a standard form which had obviously been in existence for some time.”
11.15 While this Court in Simple Imports distinguished, on the facts, that case from Rossminster, it appears that this Court was of the view that the principles identified in Rossminster were consistent with the law in this jurisdiction. Those principles can be gleaned from a brief analysis of a number of the speeches of the Law Lords in that case.
11.16 First, Lord Wilberforce said the following:-

“There is no mystery about the word “warrant”: it simply means a document issued by a person in authority under power conferred in that behalf authorising the doing of an act which would otherwise be illegal. The person affected, of course, has the right to be satisfied that the power to issue it exists: therefore the warrant should (and did) contain a reference to that power. It would be wise to add to it a statement of satisfaction on the part of the judicial authority as to the matters on which he must be satisfied but this is not a requirement and its absence does not go to validity.”
Second, Lord Dilhorne expressed the following view:-
“Although it is not made necessary by the section, I think that it is most desirable that a warrant issued under this section should make it clear that the statutory conditions precedent to the issue of a valid warrant have been complied with, and also that the warrant should state accurately what it authorises to be done.”
Next, Lord Diplock took broadly the same view in the following passage:-
“Even though the statute may not strictly so require (a matter on which I express no concluded opinion) the warrant in my view ought to state upon its face the statutory authority under which it has been issued. This the form of warrant issued in the instant case does, though I agree with my noble and learned friend, Viscount Dilhorne, that the wording of the recital of the fulfilment of the two statutory conditions precedent to its issue might be improved. But for the reference to section 20C in accordance with whose provisions the information is stated to have been laid, the wording of the warrant would be consistent with its meaning that the information had not specified for consideration by the judge the grounds of suspicion on which the informant relied; but the express reference to the section, in my view, resolves any ambiguity and makes untenable the suggestion that the preamble to the warrant constitutes an admission by the judge that he had adopted blindly a statement of the informant that there existed some reasonable grounds for suspicion the nature of which however, was not disclosed.”
Finally, Lord Scarman said the following:-
“One criticism may, however, fairly be made, but was not made by counsel for the respondents, of the warrants in this case. It is that they fail to recite that the judge was himself satisfied as to the matters upon which he has to be satisfied. No doubt, and absolutely correctly, counsel took the view that the omission was not fatal to the validity of the warrants. Nevertheless the recital in the warrants is incomplete. If anything was going to be recited as to the proceedings before the judge, the fact that the judge was satisfied should have been. In a matter of such importance as the issue of these warrants it is, I think, desirable to include a recital of the essential fact that the judge was satisfied that there were reasonable grounds for suspicion and that the board itself had authorised the application.”
11.17 It should be noted that Lord Salmon dissented. The views expressed in Rossminster appear to remain the law in the United Kingdom. The overall position in that jurisdiction appears to be that, while desirable, it is unnecessary that there be a recital that the issuer of a warrant is satisfied that all of the preconditions which the relevant statute requires to be fulfilled in order that the warrant be issued have in fact been met. However, some form of words indicating that such a situation exists are considered as a desirable inclusion in a warrant.
11.18 Without deciding whether Rossminster represents the law in this jurisdiction, I am satisfied that, in general terms, a warrant issued by judicial authority is valid if:-

(a) It specifies the legal power which is being exercised by the issuing of the relevant warrant;
(b) It specifies, or it can reasonably be implied from the text, that the relevant judge is satisfied that it should be issued; and

(c) (Having regard to Simple Imports) It does not contain on its face any recital or other statement which would reasonably lead to the conclusion that the judge issuing the warrant had approached the question of whether it was appropriate to issue the warrant on an incorrect basis having regard to the relevant statute.

11.19 It is not, in my view, therefore, necessary that there be a specific recital of each of the matters of which the issuing judge was required to be satisfied in order that the warrant be considered valid.
11.20 For the reasons identified in the judgment of the Court of Criminal Appeal in this case, I am satisfied that it cannot be said that the warrant with which the court is now concerned can properly be construed as giving rise to an inference that the issuing District Judge was not satisfied as to the necessary statutory criteria or was satisfied as to inaccurate criteria. If anything, for the reasons specified by the Court of Criminal Appeal, the opposite is the case. However, for the reasons which I have analysed, it is not necessary that the warrant actually specify satisfaction with those statutory criteria. Rather, all that is required is that the statutory power be specified (which it was), that it be reasonable to infer that the judge was satisfied as to the necessary statutory criteria and that there not appear, on the face of the warrant, recitals or statements which give rise to the inference that the issuing judge applied incorrect criteria or actually was not satisfied as to compliance with the correct criteria. For the reasons already noted, such cannot be said to be the case here.

11.21 On that basis, I am satisfied that the warrant in Mr. White’s case was valid, that the trial judge and the Court of Criminal Appeal were correct in their analysis of that question, and that this ground of appeal must also fail. I now turn to the second uncertified point.
12. The Second Uncertified Point – The Fingerprint Evidence
12.1 The point under this heading can be simply put. Three out of four purported matches of fingerprints fell below what is the normally accepted standard of twelve points of comparison. The relevant garda fingerprint expert, in the course of his evidence, stated that he had “no doubt” that the fingerprints found on materials connected with the offence matched the fingerprints of Mr. White. An objection was taken on the basis that the language used came close to purporting to answer the very question which the jury have to answer (being whether they were satisfied beyond reasonable doubt that the accused is guilty).

12.2 In that context the trial judge ruled as follows:-

“Alright. Well, the starting point is why are experts permitted to give evidence? They are permitted to give evidence in order to assist a jury. In the case of fingerprints, rarely, but in the case of other disciplines, frequently, juries have to choose between conflicting expert testimony, and certainly judges in cases that are tried by judges alone day in day out have to choose between conflicting testimonies. In deciding how to make that choice the jury, where there is one, or a judge, will have regard to a number of factors. It may have regard to the particular expertise and qualifications of the expert, to what extent the, as it were, subspecialty is engaged by the expert, and also, and perhaps more importantly, to the extent to which the expert is entirely confident in the opinion he is expressing. And it seems to me that any expert is perfectly entitled to indicate that he has particular confidence in an opinion, and the corollary of that is that it’s appropriate that an expert should qualify an opinion when it isn’t expressed with the same confidence, so I see no objection whatever to Detective Garda Kane expressing the view that he has considerable confidence, complete confidence or whatever. I do understand Mr. Grehan’s sensitivities about using language that so closely reflects the task of the jury, though as I have said, ultimately the jury will be getting cautions as to how they deal with any expert testimony, but for that reason I would prefer if – and it’s a matter – I am not insisting on this – but I will strongly prefer if Detective Garda Kane, perhaps in consultation with Mr. Sammon, came up with an alternative formula designed to indicate to the jury the strength of his convictions, and his confidence in the correctness of his convictions, but without using the phrase “satisfied beyond all doubt”, because it so closely reflects the ultimate task of the jury. Subject to that invitation, there are no constraints on Detective Garda Kane.”
12.3 On appeal, it was urged on behalf of Mr. White that the use of the phrase “no doubt” gave rise to a risk of an unfair trial or an unsafe conviction. The Court of Criminal Appeal rejected that argument in the following passage from its judgment (see pp.12-13):-
“The Court is satisfied that the learned trial judge made no error in law in the manner in which he heard and dealt with the issue arising in relation to the strength or otherwise of the view to be expressed, and as expressed, by the expert, and that there could be no objection to his rulings in the matter, which were based on exchanges with counsel, on a consideration of counsels’ submissions and of the law, and for good and stated legal reasons. On the basis of the case law, and the trial judge’s ruling, the Court does not accept that the giving of the evidence relating to fingerprinting in the manner which occurred subsequently in the present trial, namely, the expert expressing the view he had “no doubt” about his results, was in any way, or could have been considered to be in any way suspect or open to criticism, and did not seek by such expression to usurp the role of the jury. Nor was it likely to have had that effect. This Court is satisfied it did not lead to an unfair trial or to an unsafe conviction.”
12.4 In relying on the proposition that fingerprint evidence is capable of being incorrect, counsel referred to two cases from different jurisdictions, being Brandon Mayfield v. United States of America [Oregon District Court, summary judgment, 26th September, 2007] and McKie v. Strathclyde Joint Police Board & ors [2003] ScotCS 353. Counsel also referred to a ruling of White J. in Director of Public Prosecutions. v. Rattigan (Unreported, Central Criminal Court, 2nd February, 2009) where that judge did not permit an expert to give his opinion as one of no doubt. Finally, counsel referred to the judgment of the Court of Criminal Appeal in Director of Public Prosecutions v. Abdi (Unreported, Court of Criminal Appeal, 6th December, 2004) where the judgment of the Court was delivered by Hardiman J. It was said in that judgment that expert opinion should not be expressed in a form which suggests that the expert is trying to subvert the role of the finder of fact.
12.5 As was pointed out by the trial judge, it is in the nature of any expert opinion that it may be held with a greater or lesser degree of confidence. There is no necessarily correct way in which an expert ought to express the degree of confidence with which the expert holds the opinion of which evidence is given. If there is a basis, whether because of the generally accepted principles of the area in question or because of a contrary view expressed by another expert witness, for suggesting that the expert has been exaggerated in the degree of confidence expressed, then that is a matter which can be the subject of a challenge to the expert’s opinion.

12.6 It is, of course, true to state, as Hardiman J. pointed out in Abdi, that the form of expert opinion should not be such as allows the expert to subvert the role of the jury (or, where appropriate, a finder of fact who is a judge). Certainly, an expert who used the phrase “beyond reasonable doubt” or the like would be acting inappropriately. However, even if such a phrase was used in evidence, it would be a matter for the trial judge to seek to charge the jury, if that were considered safe on the facts of the case, in a way which would make clear to the jury what their role was. While the phrase “no doubt” bears some similarity to “beyond reasonable doubt”, it is also a phrase which is frequently used in every day discourse. People, and doubtless experts, express their confidence in their views in a whole range of different ways. Where an opinion is held with a high degree of confidence, it may be said that the holder is “highly confident” or is “certain” or has “no doubt” or, doubtless, a similar view can be expressed in other ways. If it is believed that the view expressed as to the level of confidence which can be legitimately be held in the opinion is incorrect, then that is a matter to be challenged the ordinary way by cross examination or by tendering contradictory evidence.

12.7 The important point to emphasise in this context is that the witness is allowed to express an opinion, as an expert, solely on a matter which falls within his or her area of expertise and not a view on the guilt or otherwise of the accused. It is, in principle, analogous to a witness of fact expressing, with a degree of confidence, a view solely on a matter of fact within his or her own knowledge such as “I am sure it was the accused that I saw at the scene of the assault”. In either case, it remains exclusively a matter for the jury to decide what weight, if any, to attach to the evidence and of course to decide the issue of guilt or otherwise of the accused.

12.8 In my view, there was nothing inappropriate in the way in which the trial judge handled this aspect of the case and the Court of Criminal Appeal was correct to disallow the appeal before it on the grounds associated with this point. I would, therefore, dismiss the appeal on that ground as well.
13. Conclusions
13.1 For those reasons, I am satisfied that the appeal on the certified point in Mr. Gormley’s case should be allowed. Mr. Gormley was convicted substantially on the basis of admission evidence made during interrogation in custody during a period after he had requested the presence of a solicitor and before that solicitor had arrived to advise him.

13.2 His conviction on that basis is a breach of the constitutional guarantee of fair process and thus is, in accordance with State (Healy) v. Donoghue, a trial otherwise than in due course of law.

13.3 Different considerations apply in the case of Mr. White. While it is true that forensic samples were taken from him at a time after he had requested the presence of a solicitor and before the arrival of the solicitor concerned, for the reasons which I have sought to analyse, I am not satisfied that the taking of samples in that manner amounts to a breach of fair process. That is so because Mr. White was legally obliged to provide those samples and same were taken in an unobtrusive way.

13.4 On that basis I would reject the certified ground of appeal in Mr. White’s case. For the reasons also set out earlier in this judgment, I would reject the two additional points which Mr. White was permitted by this Court to argue on his appeal. Therefore, Mr. White’s appeal must fail.

13.5 Finally, I would emphasise that many questions concerning the application in detail of the right to fair process as identified in Mr. Gormley’s case do not arise on the facts of his case. Those issues will fall to be determined in cases where the relevant facts arise.

 

 

People (DPP) v Doyle

[2017] IESC 1

 

THE SUPREME COURT
Appeal No. 40/2015

Denham C.J.
O’Donnell J.
McKechnie J.
MacMenamin J.
Laffoy J.
Charleton J.
O’Malley J.
Between/
The People (at the suit of the Director of Public Prosecutions)
Prosecutor/Respondent
and
Barry Doyle

Accused/Appellant

Judgment delivered on the 18th day of January, 2017 by Denham C.J.
1. Barry Doyle, the accused/appellant, referred to as “the appellant”, was granted leave to appeal to this Court from the decision of the Court of Appeal of the 8th June, 2015: [2015] IESCDET 45. The Director of Public Prosecutions, the prosecutor/respondent, is referred to as “the DPP”.

2. The issues upon which leave to appeal was granted were:-

(i) Whether or not the appellant was, in the circumstances of this case, entitled to consult with a solicitor, and have a solicitor present, prior to and during the 15th interview with the Garda Síochána, during which admissions were alleged to have been made. This raises the question of whether the right to have a solicitor present during questioning is a matter of right of the detained person, or a matter of concession by the Garda Síochána.
I shall refer to this issue as “the presence of a solicitor” issue.

(ii) Whether the appellant, in all the circumstances, including that he was convicted in the Central Criminal Court on the 15th February, 2012, and the decision of the Supreme Court in DPP v. Damache was delivered on the 23rd February, 2012, can rely on that decision on his appeal.

I shall refer to this issue as “the Damache” issue.

(iii) Whether the matters set out in the appellant’s application under the heading “Relevant facts considered not to be in dispute”, or any of them, constituted threats or inducements made to the appellant and calculated to extract a confession from him. This is a matter not decided by the Court of trial or the Court of Appeal. Secondly, if they do constitute such threats or inducements, whether their effect had “dissipated” or “worn off” by the time of the admissions relied upon by the State, as held by the trial judge; and whether or not there was any evidence on which it could have been determined that the effect of the said threats or inducements (if any) had “dissipated” or “worn off” by the time of the alleged admissions.

I shall refer to this as “the threats and inducement” issues.

Factual Background
3. The factual background was stated in the judgment of the President of the Court of Appeal, delivered on the 8th June, 2015. Commencing at paragraph 7, Ryan P. held:-
“7. Two teams of two Gardaí each carried out the interrogation of the appellant. It was slow going at first because he was unwilling to engage with his interviewers. Their efforts were directed in the first instance at getting him to talk to them about himself and his relationships, including those with his children and with Victoria Gunnery. He was reluctant to engage with them but the Gardaí persisted. Mr. Doyle had brief consultations with a solicitor. All of the interviews were video-recorded.
8. The appellant’s attitude changed at interview 15, which began at 19.42 on 26th February 2009. In the previous interview that concluded at 18.35, Mr. Doyle had asked to see his solicitor Mr. O’Donnell and the Gardaí told him that he was on his way. In due course, the solicitor arrived and spoke to his client. The solicitor then approached the Gardaí with an offer. Mr. Doyle would say that he killed Shane Geoghegan if the Gardaí agreed to release Victoria Gunnery. The deal on offer was that he would answer one question only, to confirm that he had killed the deceased. The Gardaí rejected the offer. They said that they wanted Mr. Doyle to tell the truth, that answering one question would not be satisfactory in any case because it would not enable the Gardaí to find out if he was telling the truth and there could be no deal because that would be an inducement which would make any admission inadmissible in court. Mr. O’Donnell returned to his client and had a further brief consultation.

9. Then interview 15 began, but it was interrupted after a few minutes by a phone call from the solicitor who wanted to speak with his client, which then happened. Thereafter, the interview recommenced. Mr. Doyle now answered the questions put to him regarding his role and confirmed that he was the person who shot Shane Geoghegan. He gave details of how he had waited for his victim, having been driven there by another person whom he did not name. He described the shooting, how it happened first on the green in front of the houses, how the gun jammed and he cleared it by ejecting the bullets, how he then resumed the pursuit by going around to the back of the house where he shot Mr. Geoghegan a number of times including once in the head from short range.

10. The Gardaí asked Mr. Doyle to draw them a map of the scene and he obliged, using writing materials the Gardaí provided. He showed the points that were relevant including where the car had been parked and which way it was facing, the direction that Mr. Geoghegan had come from, where he Mr. Doyle shot Mr. Geoghegan the first time, where he ejected the bullets to clear the gun mechanism and where he had gone round to the back of the house and finished off his victim. This information was important, as the prosecution alleged, because it included facts that the Gardaí did not know or were mistaken about.

11. At the termination of interview 15, after the tape was sealed, the Gardaí asked Mr. Doyle about his feelings for the Geoghegan family and he said he was sorry for them and in a gesture of sympathy he took off the rosary beads that he was wearing round his neck and said to give it to Shane Geoghegan’s mother.”

Presence of a Solicitor
4. The right of access to legal advisers is well established in our jurisprudence. In The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336, the Court of Criminal Appeal held that a person in detention:
“has got a right of reasonable access to his legal advisers and that a refusal of a request to give such reasonable access would render his detention illegal.”
5. The right of access to a solicitor, when requested by or on behalf of a person in detention, was recognised as being a constitutional right by Finlay C.J. in The People (Director of Public Prosecutions) v. Healy [1990] 2 I.R. 73, where he stated:-
“The undoubted right of reasonable access to a solicitor enjoyed by a person who is in detention must be interpreted as being directed towards the vital function of ensuring that such person is aware of his rights and has the independent advice which would be appropriate in order to permit him to reach a truly free decision as to his attitude to interrogation or to the making of any statement, be it exculpatory or inculpatory. The availability of advice from a lawyer must, in my view, be seen as a contribution, at least, towards some measure of equality in the position of the detained person and his interrogators.
Viewed in that light, I am driven to the conclusion that such an important and fundamental standard of fairness in the administration of justice as the right of access to a lawyer must be deemed to be constitutional in its origin, and to classify it as merely legal would be to undermine its importance and the completeness of the protection of it which the courts are obliged to give.”

6. Thus, it was recognised over twenty years ago that there is a constitutional right of reasonable access to a solicitor.
7. The constitutional right is grounded in Article 38.1 of the Constitution, which provides that:

“No person shall be tried on any criminal charge save in due course of law.”
8. The protection of a trial in due course of law is not confined to the trial in court but applies also to pre-trial detention and questioning. However, not all rights which are guaranteed for the courtroom apply to pre-trial detention and questioning. For example, the solicitor of an accused is not permitted to have regular updates and running accounts of the progress of an investigation: Lavery v. Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390.
9. The concept of basic fairness of process applies from the time of arrest. In DPP v Gormley and DPP v White [2014] IESC 17, [2014] 2 I.R. 591, Clarke J. described this as:

“…[T]he requirement that persons only be tried in due course of law therefore requires that the basic fairness of process identified as an essential ingredient of that concept by this Court in State (Healy) v Donoghue applies from the time of arrest of a suspect. The precise consequences of such a requirement do, of course, require careful and detailed analysis. … it seems to me that the fundamental requirement of basic fairness does apply from the time of arrest such that any breach of that requirement can lead to an absence of a trial in due course of law. In that regard it seems to me that the Irish position is the same as that acknowledged by the ECtHR and by the Supreme Court of the United States.”
10. DPP v Gormley and DPP v White confirmed an entitlement to have reasonable access to legal advice prior to the conduct of any interrogation.
11. Further, in DPP v Gormley and DPP v White, opinions were given as to possible future development of the law. Thus, Hardiman J. stated (in a judgment concurring with Clarke J.):-

“[12] In my view, the most salient and practically important feature of Mr. Justice Clarke’s judgment is the citation from the judgment of the Supreme Court of the United Kingdom in Cadder v. Her Majesty’s Advocates [2010] UKSC 43. There, at para. 48, Lord Hope, having summarised the principal features of the European Convention on Human Rights jurisprudence concluded that:

“the contracting States are under a duty to organise their systems in such a way as to ensure that, unless in the particular circumstances of the case there are compelling reasons for restricting the right, a person who is detained has access to a lawyer before he is subjected to police questioning.”

[13] I believe that the law in Ireland is identical, as to the need to organise [our system] to take account of detained persons’ rights.
[17] It is, at least prima facie, a matter for the legislature and the State to provide for the time and manner of a person’s arrest and the circumstances of his or her detention. But it is now essential that these matters should be regulated, and if necessary the mode of regulation altered, in order to vindicate the right to legal advice.”

12. In other words, while the right of access to a solicitor before questioning was once again affirmed, Hardiman J. pointed out that there needed to be regulation by the Legislature and the State in the area.
13. In Gormley the issue as to whether a detained person is entitled to a general right to have a lawyer present during an interrogation did not arise. Consequently, any statements on such issue are obiter dicta.

14. In this case the appellant had access to his lawyer just before the key interview. Also, at the solicitor’s request, the interview was interrupted to enable access by the solicitor to the appellant.

15. Consequently, it is clear that the appellant requested access to a solicitor and obtained access to a solicitor. He had access to legal advice. He had access to the solicitor before the important Interview 15, and he had access, at the solicitor’s request, during that interview, when the solicitor phoned in and sought to speak to the appellant as Interview 15 was underway. The interview was interrupted to enable the appellant to speak to his solicitor. There was no request to have the legal adviser present during the interview.

16. I am satisfied that the constitutional right of access to legal advice was met by the attendance of the appellant with his solicitor prior to Interview 15, and indeed by the telephone call from his solicitor which interrupted Interview 15.

17. The constitutional right is a right of access to a lawyer. The right is one of access to a lawyer, not of the presence of a lawyer during an interview.

18. I am satisfied that the appellant’s constitutional rights were met in the circumstances of this case.
European Convention on Human Rights
19. As to Convention rights, I am satisfied that they also were met. Salduz v. Turkey (2009) 49 EHRR 19 and Dayanan v. Turkey (App. No. 7377/03) were opened to the Court. I have already quoted Hardiman J. in DPP v Gormley and DPP v White.
Presence of a Solicitor issue
20. As to the first issue, the presence of a solicitor: the appellant consulted with his solicitor prior to the 15th interview. He also received a telephone call from his solicitor during the 15th interview. Thus, his constitutional right of access to legal advice was met. The appellant, in the circumstances of this case, was not entitled to have a solicitor present during the interview.

21. It is an important factor that since the decision in Gormley, the State has introduced a Code of Practice on Access to a Solicitor by Persons in Garda Custody, which permits the presence of a solicitor during interview, if necessary. Also, of importance is the fact that interviews are video-taped.
The Damache issue
22. As to the second issue, the Damache issue, I agree with the judgment of Charleton J.
The threats and inducement issues
23. As to the third issue, the threats and inducement issues, I agree with the judgment of Charleton J.

24. Consequently, I would dismiss the appeal.

 

 

 

 

 

 

 

Judgment of Mr. Justice O’Donnell delivered the 18th of January 2017

1 I hesitate to add further observations on the issue of entitlement to the presence of a lawyer when a substantial majority of the Court is agreed as to the result, but where a range of different views have been expressed by my colleagues as to the precise reasoning. Here, the fact is that although the accused/appellant had considerable access to a solicitor and advice and representation while in custody, he did not have a solicitor present during the entire period of his detention. Certain dicta, undoubtedly obiter, in DPP v. Gormley & White [2014] 2 I.R. 591 (“Gormley”), are relied on by the appellant as suggesting that a right to the presence of a solicitor during detention and questioning, is or may be, part of the guarantee of a fair trial on a criminal charge pursuant to Article 38 of the Constitution, and that accordingly, the statements made while in detention ought to have been excluded with the result that the conviction must be set aside and, presumably, a retrial ordered.

2 The position as I understand it is that Charleton J. for the majority of the Court concludes that the Constitution should be interpreted as requiring and guaranteeing access to a lawyer but that neither the Constitution nor the European Convention on Human Rights (“the Convention”) require more, and in particular does not require presence of a lawyer during detention and questioning. MacMenamin J. holds that the Constitution does require that a lawyer be present for the full detention. However, he would hold that, insofar as the constitutional right goes, the decision of this Court in DPP v. JC [2015] IESC 31, it would have the effect that the evidence would not be excluded. As for the claim based on the Convention, he concludes that the overall test is the fairness of the trial, and that it has not been established that the trial here was unfair. O’Malley J., would reserve the question of the existence of a constitutional right but considers that even if so, there must be a causal connection between any breach of that right, and the statements sought to be admitted. In the admittedly unusual circumstances in this case, the degree of engagement by the solicitor was more significant and central than might have been the case if he or she was merely present, and accordingly, she concludes that no causal connection has been established so that the statements made were properly admitted. McKechnie J. addresses the inducement issue primarily but would also allow the appellant’s appeal on the ground that presence of a lawyer during questioning is now constitutionally required. An important additional consideration is that at a practical level, matters have moved on since the decision in Gormley, and the State has introduced a code of practice permitting the attendance of a solicitor if necessary under the legal aid scheme, when a suspect is questioned by the gardaí.

3 It might be thought that there is little benefit therefore in considering further this issue since all questioning of suspects in detention since 2015 has presumably been conducted pursuant to the Code of Practice on Access to a Solicitor by Persons in Garda Custody. However, the matter is of relevance, and is indeed acute, in respect of those cases which are still live within the system, and in which statements were taken prior to the introduction of the Code of Practice where access to a solicitor was permitted, but a solicitor was not present during all of the detention. Furthermore, it becomes important to consider the basis of any entitlement to the presence of a lawyer post-2015. If such presence is constitutionally required, and if indeed it is part of the Article 38 guarantee of trial in due course of law, then further consequences might flow in the event that it was not available for any reason, and perhaps irrespective of whether evidence was obtained as a result. Moreover, questions remain as to the precise role of the solicitor during such detention. In my view it would only be productive of uncertainty and confusion to find that there is an entitlement to the presence of a lawyer without specifying exactly what is entailed in such presence. That may depend however on whether presence of the solicitor is something which is constitutionally required, and if so the precise constitutional basis. In any event, the issue also raises the difficult question discussed in the judgment of MacMenamin J. as to the consequences of a novel interpretation of the Constitution on existing cases. It is apparent therefore that issues are touched on in this case, which extend well beyond the outcome of the case, and accordingly I consider it necessary to set out my views.

4 Gormley was a case which explicitly raised the question of pursuing the questioning of a suspect or proceeding to take samples from him or her, in the period between the point at which a suspect had sought a solicitor’s attendance, and the arrival of that solicitor at the garda station. This is clear from the questions certified in Mr. Gormley’s case referred to at page 607 of the judgment of Clarke J.:

“1 Does the constitutional right of access require the commencement of questioning of a detained suspect (who has requested a solicitor) be postponed for a reasonable period of time to enable the solicitor who was contacted an opportunity attend at the garda station?
2 Is the constitutional right of access to legal advice of a detained suspect vindicated where members of An Garda Síochána make contact with a solicitor requested by the suspect but do not thereafter postpone the commencement of questioning for a reasonable period of time in order to enable the named solicitor to actually attend at the garda station and advise the suspect?” (Emphasis added)

In Mr. White’s case, the question referred to at page 607, was whether:

“In circumstances where a person is in custody and has requested a solicitor, are members of An Garda Síochána, for the purpose of ensuring protection of rights of an accused, obliged not to take, or to cease if they have commenced taking, any forensic samples until such time as the person who has sought access to a solicitor, and that solicitor has indicated that he/she will attend, has had actual access to that solicitor.” (Emphasis added)
5 It is clear therefore that the case proceeded on the basis that there was a constitutional right of access to a solicitor while in custody: the only question was whether evidence obtained before that solicitor arrived, could be admissible in a trial. Accordingly, the case did not, and could not, raise the question of a more general right to presence of a solicitor during detention. Accordingly, the observations made by the Court on that issue are obiter.
6 The Court referred to international jurisprudence. In the well known and controversial case of Miranda v. Arizona [1966] 384 U.S. 436, a five to four majority of the United States Supreme Court held that the US Constitution required a bright-line rule that a defendant had a right to the presence of a lawyer (if necessary provided by the state) during questioning, and to be informed of his right. This decision has been heavily qualified in subsequent years in the US, most obviously by the relative facility with which a waiver of the so called Miranda rights can be found. Significantly in 2011, the Supreme Court of Canada rejected the argument that Miranda should be “transplanted in Canadian soil”: R v. Sinclair [2011] 3 S.C.R. 3.

7 The issue has been touched in the jurisprudence of the European Court of Human Rights. The leading decision is that of Salduz v. Turkey (2009) 49 EHRR 19. Mr. Salduz was 17 years of age, and was interrogated in the absence of his lawyer. The Grand Chamber held that this was a violation of his rights. Paragraph 3 of the Convention was a guarantee of fair trial, but could extend to the period before trial, and when the person was being questioned. The overall test was whether the proceedings were fair. In Salduz, the Court used language relating to the “benefit from the assistance of a lawyer … at the initial stages of police interrogation”. Subsequently at paragraph 54, it referred to “early access to a lawyer”, and “access to legal advice [as] a fundamental safeguard against ill-treatment”. At paragraph 55 the judgment, the Court concluded that Article 6.1 required as a rule “access to a lawyer should be provided as and from the first interrogation of a suspect”. Subsequently in Dayanan v. Turkey (App. No. 7377/03), the Court concluded at paragraph 32 that the fairness of proceedings required that:

“an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.”
8 Given the fact that the jurisprudence of the ECtHR has to date largely been developed in the context of civil law systems with early supervision of investigation by a magistrate, it cannot be said that it has been definitively determined that the Convention requires a bright-line rule that in a common law system, an accused person must have not just access to, but the assurance of the presence of, a lawyer during any detention. This is particularly so because, until now, the Convention jurisprudence has not adopted any absolute rule that evidence obtained in breach of a Convention right must be inadmissible, but rather has applied a test of considering the overall fairness of the proceedings.
9 In Cadder v. Her Majesty’s Advocate [2010] UKSC 43, the United Kingdom Supreme Court did consider the application of the Convention and held that the Scots law of criminal investigation which did not permit access to a lawyer, was incompatible with the Convention. The judgment used the language of access and presence interchangeably, but it is clear that the case was not directed to the precise issue raised before this Court. Indeed since the decision in Cadder did not specify an absolute rule of presence during the entire period, it might perhaps be thought to require access and advice only. The issue did not arise, and is unlikely to do so now because the changes to the detention system adopted in the UK in the aftermath of the decision appear to provide for the presence of a lawyer during detention and questioning.

10 In Gormley, Clarke J. referred to the developing jurisprudence of this Court in relation to the right to be assisted by a lawyer in criminal proceedings. In particular, he referred to the well known statements in McGee v. The Attorney General [1974] IR 284, at p.319, where Walsh J. stated that:

“It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts”
Significantly this passage was quoted with approval by O’Higgins C.J. in The State (Healy) v. Donoghue [1976] I.R. 325, at p.347, where the Court held that legal aid in criminal proceedings involving a risk of imprisonment was now a constitutional requirement. The Constitution, O’Higgins C.J. said:
“[falls] to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or acceptable with regard to these virtues at the time of its enactment”.
Accordingly, the Court in Gormley concluded that:
“it is now necessary to interpret the “due course of law” provisions of Bunreacht na hÉireann as encompassing the asserted right to access to a lawyer prior to interrogation or the taking of forensic samples”. (Emphasis added). (p.628 per Clarke J.)
In particular the Court concluded that the Article 38 guarantee of a criminal trial in due course of law was capable of having an application prior to the commencement of the trial proper, and was engaged at the point at which the coercive power of the State in the form of an arrest was exercised against a suspect. In that regard, i.e. the engagement of fair trial rights at the questioning stage, the Irish position was the same as that understood to be acknowledged by the ECtHR and by the Supreme Court of the United States. In relation to the specific issue which arises in the present proceedings, the Court observed:
“[T]he question as to whether a suspect is entitled to have a lawyer present during questioning does not arise on the facts of this case for the questioning in respect of which complaint is made occurred before the relevant lawyer even arrived. However, it does need to be noted that the jurisprudence of both the ECtHR and the United States Supreme Court clearly recognises that the entitlements of a suspect extend to having the relevant lawyer present.” (p.633 per Clarke J.)
11 I recognise the reasons why the Court in Gormley considered that it might be the case that the Constitution could be held to require a bright-line rule of presence of a lawyer. Neatness, clarity and simplicity are powerful practical reasons for a clear bright-line rule. However, there are also strong reasons for caution in that regard. First, the obligation to decide cases on the issues and arguments addressed and in relation to the precise factual circumstances necessarily raised, means that courts must decide cases on their own facts and arguments, rather than on the expression of views by other courts, however considered. Second, for the reasons already addressed, it cannot in my view be said that the ECtHR has adopted a bright-line rule demanding the exclusion of evidence obtained in a common law system where an accused makes a voluntary statement after having had access to an advice from a lawyer. The legal argument for adopting an absolute rule of presence of a lawyer as a matter of constitutional principle, rather than pragmatism or even enlightened administration, rests almost entirely therefore on the decision in Miranda.

12 While undoubtedly such a rule was adopted in 1966 in the United States in Miranda, that occurred in the context of a significantly different criminal justice system to that which applies now in Ireland, and little enthusiasm has been shown here in later years for adopting some of the subsequent developments in the US criminal justice system. It is often forgotten that most of the major developments in the jurisprudence of the Warren Court occurred in the overarching context of that Court’s concerns with the central issue of race. In a federal system much criminal law (and indeed much civil law) is state law, and just as significantly, is enforced and adjudicated upon, at state level. That was a matter of obvious concern in the segregated United States of the early 1960s. The decision appears to rests as much if not more on policy than principle. Indeed and rather ironically, when the majority judgment did refer to case law, it approved the Scots law on admissibility, a system that fell foul of the Convention in Cadder, which is perhaps a warning against too ready reliance on foreign case law. The majority judgment in Miranda also focussed on interrogation practices in the US which, without any undue self-congratulation, are certainly not the norm in Ireland. The judgment made it clear that the rule was introduced as a preventative measure, and that if changes were made to the process of arrest and questioning, the rule might be adjusted. Certainly most of the justifications offered for the rule in Miranda would require reconsideration in context of the regime now applicable in Ireland. A lawyer’s presence is no longer necessary as an independent witness of events during questioning. It is also doubtful that it can be said that function of a lawyer is to provide moral support or indeed that anything in lawyers’ training qualifies them for such a role. Indeed the function of a lawyer is to provide legal advice, which was available, and provided, here.

13 The question posed most starkly now, is whether, when there is a fully accurate record of police questioning and the suspect’s response, a judicial finding that a statement is made voluntarily, and access to and advice from a lawyer, it is nevertheless necessary to exclude the statement from evidence at a trial, because the accused did not have a lawyer present at all stages during his detention was not told (and in this case could not have been told) that he was entitled to have one? As already noted the Supreme Court of Canada was not persuaded to adopt the same approach. Although Miranda was perhaps one of the best know decisions of the US Supreme Court in the 20th century, and although the question of admissibility of statements made in police custody has been the subject of numerous cases in this jurisdiction since Miranda, it has not been adopted in Irish jurisprudence, or it appears in the jurisprudence of any other common law country, in the 50 years since it was decided. Whatever merit Miranda had in the context in which it was decided, and leaving to one side the significant subsequent qualification of the decision in both law and practice in the US, I would be slow to adopt it unhesitatingly in what is now a very different factual and legal context. Neither its own reasoning nor its subsequent treatment suggests that Miranda can be regarded as dispositive of the issue whether the Irish Constitution should now be interpreted to require the presence of a lawyer at all times during a detention.

14 It must be remembered that it was held by the trial judge here, having heard all the relevant evidence and having reviewed the videos of the interviews, that the confession here was voluntary, beyond reasonable doubt. Furthermore, it is apparent from the conclusions of both MacMenamin and O’Malley JJ. that the admission of the statement in evidence is not, and was not, unfair. Third, it must be recognised that if a single bright-line rule is adopted by this Court, it would have the potential to exclude key evidence in the shape of statements voluntarily given, with the benefit of legal advice, in circumstances otherwise beyond criticism. Whatever its virtue in terms of neatness, this is the unavoidable price of a single bright-line rule. If it does not exclude evidence which otherwise would be admitted, it would be of no effect or benefit. I do not doubt that if the Court considered that this was the only way to ensure fairness in garda questioning, that it could and would adopt such a rule. I also recognise in particular the strength of the matters adverted to in the judgment of O’Malley J. in relation to the complex provisions which are now available for the drawing of inferences from refusals or failure to answer questions, and I also recognise the reality that it may in due course be simply easier and neater to provide for presence by a lawyer as the best guarantee that such provisions are operated properly and fairly. Finally, the introduction of the Code of Practice of 2015 on Access to a Solicitor by Persons in Garda Custody is of course a significant practical step, which may in due course render this debate redundant. However, I would for my part stop short at this point of finding that in addition to the video taping of interviews, the access to and advice from a lawyer (provided if necessary by the State), and the requirement that only statements found to be voluntary beyond reasonable doubt be admitted in evidence, the Constitution nevertheless requires and perhaps has always required, the presence of a lawyer at all times during questioning, as a condition of admissibility of any evidence obtained.

15 Furthermore, as O’Malley J. points out, the consequences of a finding that Article 38 is engaged after arrest and during any questioning has not been fully elaborated upon, and I am reluctant to unhesitatingly accept this analysis. It may be that it means no more than that a trial at which evidence was adduced which had been obtained in circumstances which the Constitution condemns, would not be a trial in due course of law. That may also suggest that any breach of the requirement is not itself fatal but must be judged in the context of the trial as a whole. However, if it means that Article 38 guarantee of trial in due course of law applies in its full force after arrest and to detention in a garda station long before a trial, and perhaps even if no trial ensues, then a number of difficult questions arise. A trial in due course of law under Article 38 normally requires an impartial judge, and, in the case of non-minor offences, a jury. Obviously these features are not required at arrest and interview. Other less dramatic issues arise. In particular, is the solicitor permitted only to observe the questioning and to offer advice or may he or she participate, ask questions, and demand disclosure of the information available to the investigating gardaí as they undoubtedly would at a trial? If Article 38 is engaged and breached because a lawyer was not present, would that fact alone require that the trial be prohibited even if no evidence emerged from, or was sought to be adduced, as a result of, the interview? It is true that in Miranda v. Arizona [1966] 384 U.S. 436 (and Escobedo v. Illinois (1964) 378 U.S. 478 which preceded it) it was held that fair trial rights applied at the arrest stage but as one distinguished commentator observed, that required radical (and I think dubious) textual surgery. See: Friendly, “The Bill of Rights as a Code of Criminal Procedure” (1965) 53 Cal. L Rev 929, at p. 946. The approach may have been adopted in the ECtHR of finding that a person was charged, and thus entitled to a lawyer, at a point prior to any formal charge, but that fits more easily in the civil law system, and is not a basis for reading Article 38 of the Constitution as engaged on arrest, particularly since it is not necessary to do so. I should add that I do not doubt that constitutional rights are engaged at the stage of arrest and questioning, and again that Article 38 applies at trial and may require the exclusion of evidence if it is considered that any trial at which such evidence was adduced would be unfair, but I respectfully question however the analysis that Article 38 applies directly, and with full force, at the arrest stage.

16 I accept that many of these difficulties, and the particular difficulty posed in this case, might perhaps be addressed by the application of the decision of this Court in DPP v. JC, as suggested by MacMenamin J. However, that matter was not argued in this Court and it is in any event not self-evident that it would apply. In JC, the accused was not entitled to take advantage of the decision in Damache v. DPP & ors [2012] 2 I.R. 266, to exclude evidence obtained under a search which was valid according to the law at the time at which it was carried out. It did not however suggest that the plaintiff in Damache was not entitled to the benefit of the decision in his favour. If the application of the principle in JC would automatically neutralise any innovation in the constitutional law relating to evidence, then there would be no incentive to raise such issues. This is the first case which squarely raises the question of whether the Constitution requires not just access to, but presence of, a lawyer. If that is the true position, it is not self-evident why the appellant in this case should be deprived of the benefit of a successful argument establishing that right. I also agree with O’Malley J. that a causal connection should be established between a breach of a constitutional requirement and the evidence sought to be admitted, but if there is a constitutional bright-line rule requiring presence, I would have thought that principle required that the prosecution demonstrate that the evidence was obtained irrespective of the breach, or would perhaps have been obtained in any event if the rule had been adhered to.

17 The argument in this case also raises a very difficult and related issue as to the capacity of this Court to limit the effect of any ruling it should make. It is self-evident from the decision in Gormley that if this Court were to hold that the Constitution required the presence of a lawyer not merely access to a lawyer, it could only do so in application of the dicta in McGee and State (Healy) v. Donoghue that the Constitution must be applied in changing circumstances, and because it is, in the language of the well-worn metaphors, a living tree and a document which speaks in the present tense. As it was put in Gormley itself, the necessary conclusion would be that the Constitution now requires such a rule with however the necessary implication that it did not do so until now and interviews held when there was access afforded to a solicitor, even if a solicitor was not present for all of the interview, were lawful, and more importantly, constitutional. What then is the logic of maintaining that the Constitution (or its interpretation) can develop and change but that the new rule must nevertheless be held to have applied apply since 1937, and probably (since Article 38 in this regard follows closely from Article 70 of the Free State Constitution) since 1922? However, if the new rule of a constitutional right to presence of a solicitor is held not to have applied until some point, how is that point to be identified? Is it from the date of the decision in Gormley, the date of the interviews in this case, or the date of this judgment? If such a line is to be drawn, does it include or exclude this case? These are very complex issues, of fundamental importance in relation to the scope and limits of judicial review, which have been much debated in other jurisdictions, in both case law and scholarly analysis and a variety of interpretive solutions have been discussed. This matter has not been much discussed in this jurisdiction beyond the veery general statements in Mc Gee and State (Healy) v Donoghue referred to above, and was not addressed in argument in this case, and I would not consider it appropriate to address it without such argument. Even then it would not be desirable to offer any views on the issue unless it was unambiguously required by the particular circumstances of the case. In this case, such a point could only be reached, if the Court was first persuaded that the Constitution required the exclusion at a trial of a statement made by an accused person which had been demonstrated to have been made voluntarily, and after access to and advice from a lawyer. While I can see many arguments at a practical level for a simple rule, I am not persuaded that the Constitution requires such an approach, and accordingly I agree in this respect with the judgment of Mr. Justice Charleton.

18 Finally, I should say recognise the force of the analysis offered by McKechnie J. on the question of inducement. I also accept that the function of an appellate court is to provide a real and searching scrutiny of the reasoning of trial judges. However, if it is permissible to draw together a number of fragments from interviews spread over time and then collected together in a portion of a submission, in order to discount the findings of a trial judge who not only heard and observed witnesses (which we did not) and who viewed the tapes of the full interviews (which again we did not, and were not invited to), and further make inferences as to the content of communications between client and solicitor, then little if anything would remain of the important division of functions between trial courts and appellate courts. I also consider that the law relating to inducements referred to by McKechnie J. should be reconsidered in the context of a general review of the law relating to detention and questioning in the light of a number of developments already discussed. Should it really be the case that any comment however “slight and trivial,” can be treated as an inducement and result in the exclusion of a statement that is recorded and available to the trial court, voluntary, and made with the benefit of legal advice? It is obvious that developments in the law in this area are not always consistent, and at times point in different directions. It is surely important to recognise on the one hand that the law now provides for extended periods of detention and that there are now a variety of complex statutory provisions that permit the gardaí to pose questions on the basis that inferences may be drawn from a failure or refusal to respond, and on the other hand, that detention is subject to a high degree of regulation and, importantly, that all interviews are now recorded. This is a world unrecognisable to anyone familiar with criminal law and procedure when the rules on inducements were developed. It is desirable in my view that stock should be taken of all the developments in the law and technology , and fresh consideration given to what constitutional fairness or public policy requires in that context at each stage of the process. I would however dismiss the present appeal.

Judgment of Mr. Justice John MacMenamin dated the 18th day of January, 2017

1. Having been convicted of murder after a 22 day trial in the Central Criminal Court, the appellant, Barry Doyle was sentenced to the mandatory term of life imprisonment on the 15th February, 2012. That verdict and sentence was upheld by the Court of Appeal in a judgment (Ryan P.) on the 8th June, 2015 (Unreported, [2015] IECA 109). Subsequently, the applicant applied to this Court to be granted leave to appeal. That application was granted, in order to deal with three issues of general public importance, which, in the interests of justice, should be determined by this Court.

2. It must be said at the very outset that Shane Geoghegan, who was killed on the 9th November, 2008, was an entirely innocent man, well-known, highly respected, and well liked in his own community. He had the misfortune to be mistaken for someone else, in a gangland feud which had caused significant loss of life. These facts do not absolve the Court from the duty of engaging in a detached and objective analysis of the issues which now arise.
The Issues
3. The issues raised in this appeal are as follows:

“(i) Whether or not the applicant was, in the circumstances of this case, entitled to consult with a solicitor, and have a solicitor present prior to, and during, the 15th interview with An Garda Siochana, during which admissions were alleged to have been made. This raises the question as to whether the right to have a solicitor present during questioning is a matter of right of the detained person, or matter of concession by An Garda Siochana.
(ii) Whether the applicant, in all the circumstances, including that he was convicted in the Central Criminal Court on the 15th February, 2012, and the decision of the Supreme Court in DPP v. Damache was delivered on 23rd February, 2012, can rely on that decision on (his) appeal?

(iii) Whether the matters set out in the applicant’s application, under the heading “relevant facts considered not to be dispute”, or any of them, constituted threats or inducements to the applicant, and calculated to extract a confession from him. This is a matter not decided by the court of trial, or the Court of Appeal. Secondly, if they do constitute such threats or inducements, whether their effect had “dissipated”, or “worn off”, by the time of the admissions relied on by the State, as held by the trial judge, and whether or not there was any evidence on which it could have been determined that the effect of these threats, or inducements, (if any), had “dissipated”, or “worn off”, by the time of the alleged admissions.”

4. It is necessary to state at the outset that this trial occurred in the year 2012. Thus, the law, as it was considered by the trial court, was the law as it then stood.
Findings of Fact and Inferences
5. One of the main areas for consideration in this appeal must be the judge’s ruling in the voir dire. That voir dire took up 11 days in the lengthy trial. Consideration of each of the three points makes it unavoidable that matters of fact arising at the trial be analysed, and also the judge’s inferences from those facts. These considerations arise particularly in the case of the first and third issues.

6. The issues of fact-finding and inference drawing were dealt with by the Court of Criminal Appeal in The People v. Madden [1977] I.R. 336. But the principles outlined there were later refined by this Court in Hay v. O’Grady [1992] 1 I.R. 210. Relying on statements of the law in The People v. Madden [1977] I.R. 336, counsel for the appellant submitted that this Court was in as good a position to draw inferences from facts as the trial judge, and should do so in support of the case he advanced.

7. However, in Hay v. O’Grady [1992] 1 I.R. 210 at 217, McCarthy J. observed that:

“3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in “Gairloch,” The S.S., Aberdeen Glenline Steamship Co. v. Macken [1899] 2 I.R. 1, cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p.339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge. …” (Emphasis added)
8. These principles emphasise, first, the critical role of a trial judge, as fact finder, and make clear that an appeal court should be “slow” to substitute its own inferences, where the trial judge’s conclusions are based on oral evidence, and where he or she had the opportunity to assess the credibility of witnesses. Counsel for the appellant relied on a number of extracts taken from transcripts of the garda interviews with the appellant after he was arrested, which were part of the evidence at trial. Counsel submitted that this Court should find that the trial judge had erred in admitting confession evidence, and that this Court should draw other inferences. But, the judge’s findings and inferences were based on real evidence, including video evidence of the interviews. This allowed the trial court to observe how the garda interviews of the appellant were conducted, and his demeanour, conduct and disposition. This video evidence was analysed piece by piece in the voir dire. Prosecution and defence counsel examined and cross-examined the garda witnesses, having regard to what transpired. The judge himself viewed a total of 20 hours of the video evidence. Parts of that evidence went to the jury. This Court has not had the same advantage as the trial judge, and certainly has not seen, or been invited to view, the full range of the interviews which were available at the trial. The three issues raised are now considered in turn.
Issue (1) Access to a Solicitor
9. The facts regarding the arrest of the applicant, and the arrest of his former partner, Victoria Gunnery, are also set out in the judgments of my colleagues Charleton J. and O’Malley J., and do not require repetition. I focus here on the specific evidence pertaining to Issue (1) identified earlier (at par 3 supra), that is, the right of access to a solicitor, or lawyer, generally.

10. On the early morning of the 24th February, 2009 the appellant was arrested, and brought to Bruff Garda Station in County Limerick for questioning. The procedure required by the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 were observed. The appellant was given notice as to his rights.

11. At the very outset, it is to be emphasised that this procedure included advice as to the appellant’s right of access to a solicitor. He availed of this right. His solicitor, Ms. Sarah Ryan, was notified of his arrival at the Garda Station, in accordance with the appellant’s request, at 8.01 a.m. The appellant was not questioned before he spoke to his solicitor. Ms. Ryan telephoned the station at 9.55 a.m. The appellant had a brief consultation with her by telephone. This consultation took place before the appellant’s first interview with the police. In fact, no admissions were made then, or until 26th February, 2009, in any of the interviews. This is considered later.

12. As to the first contact, there is no evidence that there was any limitation placed on the duration of this telephone call. No such submission is made. The call itself was short. The appellant was then interviewed by the gardai. He made no admission. Immediately afterwards, another solicitor, Michael O’Donnell, acting on behalf of the first named solicitor, Ms. Sarah Ryan, attended the garda station at 11 a.m. During that day, a series of garda interviews took place. The appellant made no admissions. On the following day, the 25th February, 2009, the appellant was brought to Limerick District Court for the purpose of an application to extend the period of his detention. Mr. O’Donnell, the solicitor, was present in court, and again consulted with his client. The appellant did not make any admissions, or confessions, on either the 24th or 25th February, 2009.

13. Shortly after 4 p.m. on the 26th February, 2009, the appellant was again being interviewed, in what is now identified as ‘Interview 14’. The appellant asked to see his solicitor again. There was a delay because the solicitor was uncontactable. The appellant then had a short phone conversation with Mr. O’Donnell. The interview then resumed, and the appellant continued to be questioned. At a later point during the interview, the appellant indicated he had not had sufficient time to speak to his solicitor, and wanted to speak to him further. However, garda questioning continued for a further hour before that interview ended. The appellant did not make any admissions of guilt during any part of that interview. Counsel for the appellant lays emphasis on the fact that his client did, however, say words during the interview to the effect that he would answer questions put to him after he had spoken to his solicitor. It is said his will had been broken down. The interviews included discussion of the position of the appellant’s former partner, Victoria Gunnery, who had also been arrested. The circumstances of her arrest are set out in O’Malley J.’s judgment.

14. At 18.52 on the 26th February, 2009, Mr. Michael O’Donnell, the appellant’s solicitor, arrived at the Garda Station. He again consulted with his client. Mr. O’Donnell next had a conversation with Detective Garda Hanley, and Detective Garda Philips. He then held a further consultation with his client. This took approximately 10 minutes. Mr. O’Donnell, the solicitor, had a further discussion with the two gardai. There was then a further shorter consultation between himself and the appellant.

15. A full account of the garda memorandum recording what occurred is set out in the judgments of my colleagues. I refer, in particular, to the detailed analysis of O’Malley J. on what transpired. Mr. O’Donnell is reported as saying, at one point, that the appellant would not admit to murder, and that he would advise his client to say nothing, and that he should let “you”, that is, the gardaí, do the work.
Interview 15
16. The interaction between Mr. O’Donnell and the gardai finished at 19.17 p.m. Mr. O’Donnell left the station. Interview 15 commenced. At the outset of this interview, at 19.43 p.m., the appellant was asked, as he had been on every previous occasion, whether he understood the caution as to his right to silence. He confirmed that he did. He confirmed that he had just held a lengthy consultation with his solicitor. In response to questions which were put immediately after the interview began, the appellant then confirmed that on the night of Saturday, the 8th, to Sunday, the 9th November, 2008, he had been present at Clonmore, Kiltaire, Limerick City, in a navy Renault Espace. At that point, interview 15 was interrupted, because a Garda Cowan came into the interview room to inform the appellant that his solicitor was on the phone, and wished to speak to him. The appellant then had a further telephone conversation with his solicitor, and the interview resumed at 19.57 p.m.
The Admission
17. The appellant was then asked whether he had been involved in the murder of Shane Geoghegan. He then replied “I shot him”. He was then asked “Is that the truth Barry”. He responded “Yeah”. He described seeing “someone” walking across the housing estate in Limerick. He admitted that he held a gun, shot the victim, and then chased him behind a house where he shot him again. The appellant was asked at interview who he had shot, and he identified Shane Geoghegan as being the victim.
Conduct after the Admission
18. But subsequent to these admissions, the appellant was more guarded in what he said. He was asked whether Mr. Geoghegan, the victim, was his intended target. He responded “No comment”. When asked whether he had meant to kill Mr. Geoghegan, he answered “No comment”. When asked did the victim say anything to him, the appellant said that Shane Geoghegan, prior to his death, had said “Please stop”. The appellant refused to disclose who was with him that night. He did describe to the gardai what clothing he himself had been wearing, and the fact that these clothes were later burnt. He admitted firing a total of seven to eight shots altogether. The appellant pointed out, on a map, the point on the road in the housing estate where he first short Shane Geoghegan; the point where he had chased him around the back of a house in the housing estate; and where thereafter he shot him twice in the head. Later, the appellant told the interviewing gardai that the gun he was using had jammed. He said that he tried to shoot, and “it didn’t click”, on two or three occasions. He admitted that he had been lying in earlier interviews, when he said that he had no involvement in the killing. When he was asked whether there was anything else he wanted to say, he said “Sorry”. The appellant signed this statement. All of the interviews were recorded on videotape. Charleton J.’s judgment sets out other salient points as to what transpired.
Treatment while in Custody
19. After interview 15, the appellant was asked, on a number of occasions, how he felt. He responded that he felt alright. In a later interview, he accepted that the gardai had treated him “fairly” in custody, and that he had no complaints. His solicitor made no complaint as to the manner in which his client had been treated. At no stage was it claimed that the appellant had been put under psychological pressure. No request for a doctor was made. There is no suggestion that, at any point during his period in custody, the appellant was physically ill-treated. In the light of the case now advanced, it is also particularly noteworthy that neither the appellant, nor his solicitor, asked that the lawyer be present for any of the interviews, or throughout all of the interviews. The extent and range of his access to a solicitor has been outlined earlier.
The Exclusionary Rule
20. Prior to a description of the trial, it will be helpful briefly to describe the evolution of the law of evidence on admission of statements made in garda custody. The law in this jurisdiction on access to a lawyer by persons in custody has evolved considerably over the years. In The People (DPP) v. Healy [1990] 2 I.R. 73 (at page 81), this Court recognised the right of reasonable access to a solicitor as being of constitutional origin. The right in question is one which arises under Article 38.1 of the Constitution, that is, the right to trial in due course of law. This right implicitly contains recognition of the right to silence, and protection against self-incrimination in criminal proceedings. Access to legal advice is an adjunct to these rights.

21. In The People (DPP) v. Buck [2002] 2 IR 268, this Court considered the situation when, if a suspect requested access to a solicitor, the gardai had the right to continue questioning prior to a solicitor’s arrival in the station. The issue considered there was whether questioning in the interim period, but prior to the solicitor’s arrival, constituted a “deliberate and conscious” violation of constitutional rights, which would render any inculpatory statement inadmissible. Speaking on behalf of this Court, Keane C.J. rejected the proposition that, in such circumstances, there should be a “rigid exclusionary rule” (p. 281), which would treat inculpatory statements made in such circumstances as being inadmissible. He held that the court must have regard to the circumstances prevailing at the time (p. 281). Any determination of admissibility, he held, should be dealt with by the trial judge. Keane C.J. accepted that gardai might continue to question a suspect after access had been requested, provided the gardai had engaged in a bona fide effort to contact the solicitor, and thereby to facilitate a consultation (at p.281). In fact, neither Buck, nor any of the other authorities cited, assist the appellant, for reasons now explained.
The Question of Causation
22. The established jurisprudence makes clear that, to be excluded, an inculpatory statement must have been obtained “as a consequence of the breach of the accused’s right of pre-trial access to a lawyer” (see the authorities cited earlier). In Buck this Court was satisfied that, as there had been no deliberate and conscious breach of the appellant’s right of access to a lawyer, and although the continuation of the questioning by the gardai between the time of request and arrival had crossed a threshold into unlawful detention, no causative link had been established between the breach in question, and the incriminating statements made after the suspect’s consultation with a solicitor. A consequence of the decision in Buck, established later in DPP v. Gormley & White [2014] 2 I.R. 591 (“Gormley”), will be considered later.

23. In The People v. O’Brien [2005] 2 IR 206, this Court confirmed that, in the event of a denial of access to a lawyer, the constitutional rights of an accused person were restored once he was granted access to a solicitor, and that an inculpatory statement which was made thereafter, was admissible in evidence, unless elicited by the use of material obtained during questioning whilst the constitutional right of access to a solicitor had been breached. In O’Brien, McCracken J. at p. 211, par 13, speaking for this Court, approved Keane C.J.’s obiter observations in The People (DPP) v. Buck [2002] 2 IR 268 at 283, to the effect that it was necessary to establish a “causative link” between any breach of an accused’s constitutional rights, arising from the questioning before the solicitor arrived, and the making of incriminating statements. (See also, Finlay C.J. on this “vital issue” in People (DPP) v. Healy [1990] 2 I.R. 73, at 81).
Presence of Lawyer at Interview
24. It is also necessary to consider the question of access to legal advice during (in the sense of “throughout”) interviews. The issue was considered by this Court in Lavery v. Member in Charge Carrickmacross Garda Station [1999] 2 IR 390. There the issue was, whether, having regarding to the limitations on the right to silence introduced by statute, (the Offences Against the State Act, 1939, as amended), a person detained under that Act, was entitled to have the presence of a solicitor during all questioning. O’Flaherty J., at p. 396, speaking for this Court, rejected the proposition that a suspect was entitled to have a solicitor present throughout garda interviews. He held it was not open to a suspect, or his solicitor, to prescribe the manner in which interviews might be conducted, or where. Thus far, therefore, the judgment has set out the law as it stood at the time of the trial.

The Trial

25. As already outlined, the trial had a duration of 22 days before a judge and jury. Almost half of that trial involved a painstaking analysis of the interviews in a voir dire, in the absence of the jury. This involved the judge himself viewing all of the interviews, some 20 hours in total. A videotape of the interviews was shown, and the gardai were examined and cross-examined thereon. Other elements of the prosecution case are set out later in this judgment. Having heard the evidence, and viewed the videos, and heard submissions from counsel, the trial judge (Sheehan J.) ruled on what he had heard and observed. He ruled that the confession evidence might be admitted into evidence before the jury.

26. There are a number of points which might be noted at this stage. Mr. O’Donnell, the solicitor who consulted with the appellant, was not called to give evidence, though a garda memorandum of what transpired between the lawyer and the interviewing gardai became part of the prosecution case. My colleagues describe this interaction with the gardai in their judgments. It is noteworthy that the appellant himself did not testify at the voir dire. He was not under an obligation to do so. The judge’s ruling is set out in more detail in the judgment delivered by Charleton J.

27. In summary, the judge held that the appellant had had access to a solicitor on a number of occasions, and at the times when he requested it. He observed that the appellant had had two consultations with his solicitor while in Bruff Garda Station, prior to making admissions in interview 15, and that he had also been represented by that solicitor in court, when an application was made to extend his detention. He held that the gardai were entitled to continue interviewing the appellant in interview 14, even though he had complained that a telephone conversation was not a proper consultation, and when the solicitor’s arrival at the garda station was expected within an hour. It requires to be reiterated that the appellant did not make any admissions during that interview. The trial judge was satisfied that there had been no breach of the appellant’s constitutional right to legal advice. Applying the principles as found in Buck and O’Brien, the judge found there was no causative link between what occurred in Interview 14 and later, as by then the appellant had consulted with his solicitor.

28. The judge made a number of findings of fact on the question of the appellant’s character, conduct and demeanour during the interviews. He held that the appellant appeared to be physically and mentally strong throughout. He stated that the appellant engaged with gardai when he chose to do so, and refused to answer questions when he did not wish to do so. He described the appellant’s background. He had worked for a construction company as a block layer and played Gaelic football. He also outlined that, at the time of his arrest, the appellant was living in basic accommodation in Limerick City wearing a bulletproof vest. The Court also noted that a few months earlier when asked by members of An Garda Síochána where he had been the previous night (that is the night of the murder), he had responded by saying ‘Fuck off’.

29. The judge held that the interviews had been conducted in a careful, patient and structured way, where the results of the garda investigation were gradually revealed to the appellant, and the appellant first began to engage with Detective Garda Hogan in a limited way, essentially as a result of appeals to his humanity. It must be said the gardai laid very considerable emphasis on the fact that Victoria Gunnery, who was in detention, was herself suffering hardship, and that the child who Victoria Gunnery had with the appellant would have no one to care for it. This included at least one statement that the appellant’s lack of confession was causing Ms. Gunnery to be detained, and to be away from her child, and that this was the appellant’s fault. The circumstances are outlined in O’Malley J.’s judgment. The gardai also laid much emphasis on the fact that Shane Geoghegan, an entirely innocent man, had been shot. Ultimately, the appellant told the gardai about his involvement with the death of Shane Geoghegan.
The Judge’s Decision on Admissibility at the Trial
30. The judge held that the gardai had conducted themselves in a manner which was, at all times, professional, courteous and involved no oppression. He held the appellant was in full control of himself throughout the interviews, and that he had made the admissions which he did because he chose to do so, and on the basis that he engaged with gardai only when he wished to do so. The trial judge rejected the submission advanced by counsel for the defence that there had been a breach of fundamental fairness. There, the judge was referring to the principle outlined in the judgment of this Court in The People v. Shaw [1982] 1 I.R. 1, where Griffin J., speaking for this Court, identified the main overarching question, in ascertaining whether a statement should be admitted in evidence, as being whether the statement had been obtained by means which were unfair, oppressive or as a result of a police stratagem. The statement in Shaw emphasised that the onus was on the prosecution to establish, beyond reasonable doubt, that the statement was voluntary, and that a court must look to the substance of the standards of fairness, rather than mere technical compliance.

31. Having referred to that passage in Shaw, the trial judge directed himself to the principle that he must be astute to ensure that, although a statement may be technically voluntary, it should, nonetheless, be excluded, if by reason of the circumstances in which it was obtained, it fell below the required standards of fairness. He held that there had been no breach of the requirements of fundamental fairness, and held that the confessions were admissible.

32. It is important to point out that the interview process was a simple one, in the sense that the prosecution did not place any reliance upon inferences to be drawn from the silence or conduct of the accused person. This was not a situation where, at trial, reliance was placed on a failure to mention particular facts, on a failure or refusal to account for objects or marks, or a failure to account for his presence at a particular place; all of which, now, may give rise to inferences which may be drawn by a trial court. (See s.18, 19A Criminal Justice Act, 1984, as amended)
Corroboration Evidence
33. The evidence before the Central Criminal Court was by no means confined to the video evidence in the interviews. Additionally, there was ballistic evidence, and testimony relating to the stolen getaway car, which had been stolen a considerable time before the murder, and concealed in a car park in a nearby block of flats. There was evidence of April Collins, who at the time of the murder was the girlfriend of Gerard Dundon. She gave evidence that, on the day before the murder, she had been present in a house on Hyde Road in Limerick when another member of the Dundon family, John Dundon, had ordered the appellant to kill a man named John McNamara with a firearm. April Collins testified she was also present at a meeting in a pub carpark on the outskirts of Limerick on the morning after the murder of Shane Geoghegan, with John Dundon, the appellant, and Gerard Dundon, when John Dundon discovered that Barry Doyle had, in fact, murdered the ‘wrong man’, that is, the unfortunate victim, Shane Geoghegan, and confronted Barry Doyle with this fact. To this the appellant’s response was that it was “him”, that is to say, the intended victim, and not Shane Geoghegan.

34. There was also evidence of Victoria Gunnery, the former partner of Mr. Doyle. One part of her evidence was to the effect that during her interviews whilst in custody, she had indicated that their child was due to attend a medical appointment in Dublin on the day she was arrested, and had told the appellant this. Independently of this, the appellant had told his interviewers about this appointment. However, the evidence of Ms. Deirdre Devlin, an administrator worker in the hospital in question, was to the effect that no such appointment had been made for that day. This evidence was admitted for the purposes of determining whether or not the issue had been an operative factor in the appellant’s thinking when he made the confession.

35. But the evidence of Ms. Gunnery went much further: it included descriptions of a number of conversations with the appellant, subsequent to the murder, from which the jury were entitled to infer that the appellant tacitly accepted that he had committed the crime.
The Judgment of the Court of Appeal
36. The judgment of the Court of Appeal (Ryan P., Birmingham J., Edwards J.) is an extremely full and detailed one. The court considered each of the 27 grounds of appeal which were raised by counsel for the appellant. These issues concerned admissions by the appellant, evidential matters in respect of the two witnesses mentioned above, criticisms of the judge’s charge to the jury, questions regarding material that had been furnished to the jury, and a legal issue arising out of the decision of this Court in the case of Damache v. DPP [2012] IESC 11, [2012] 2 I.R. 266, a decision which was delivered subsequent to the trial. The court ruled that the Central Criminal Court judge had acted correctly. It rejected the suggestion that there had been a breach of constitutional rights in the obtaining of the statement, or the proposition that the confession had been involuntary, made as a result of threats, inducements or oppression, or that the admission had been made as a result of breaches of the accused’s constitutional right to access to legal advice, or that they had been made as a result of breaches of the requirement of fundamental fairness. I return to other issues later in this judgment.
The Appellant’s Case to this Court on the Three Issues Certified

Access to a Solicitor
37. Relying on Article 38.1 of the Constitution, counsel for the appellant submits to this Court that the appellant’s access to a solicitor, both throughout the period of his custody, and specifically prior to, and during, the critical interview, that is, Interview 15, on the evening of the 26th February, 2009, was so restricted that it did not constitute “reasonable access”; that the degree of access was insufficient to offset the inequality generated by the interview process; that the appellant was relatively young and inexperienced; that he was interrogated by experienced police officers, who used a series of identifiable techniques and methods to heighten the inequality between the parties, and thereby encourage a confession. The case is made that the confession evidence should not have been admitted. It is said that the appellant had a right to have a solicitor present throughout the garda interviews. In making these submissions, counsel sought, in particular, to rely on the recent decision of this Court in The People (DPP) v. Gormley & White [2014] IESC 17, [2014] 2 I.R. 591 (“Gormley”); the United Kingdom authority of Cadder v. H.M. Advocate (Scotland) [2010] UKSC 43, [2010] 1 WLR 2601; Salduz v. Turkey 36391/02 [2008] ECHR 1542 (27 November 2008) ; The People (DPP) v. Conroy [1986] I.R. 460; and The People (DPP) v Buck [2002] 2 IR 268. Counsel submits that this Court should now apply principles regarding access to a lawyer during interviews in detention, which he said were identified by the ECtHR in Salduz, and also those enunciated by the Supreme Court of the United States in Miranda v. Arizona, (1966) 384 U.S. 443. The thrust of counsel’s submission is that this Court should not follow its own previous judgment in Lavery (cited earlier at par 24). Additionally, counsel asks the Court to infer causal links between what happened throughout the interviews, and, in particular, between Interview 14 and Interview 14, he submits the former should be linked to Interview 15. He suggests that the appellant’s will was broken down during questioning.
No Causal Link Established
38. While counsel invites this Court to make the inferences which are contrary to those drawn by the trial judge, such contentions must be seen, in the light of the authorities cited earlier, and against the appellant’s own remarks about his fair treatment, and the absence of any complaint by Mr. O’Donnell. There was, in fact, no evidence to suggest that the appellant’s will had been sapped, in a manner that was unlawful. There is no doubt that in Interview 14 questioning continued beyond the point where the appellant said that he wanted a proper consultation with his solicitor. What is more important is that there was nothing elicited in Interview 14 which carried through to Interview 15. The appellant’s remark in Interview 14, that he would answer questions after he spoke to his solicitor, is a very frail, and untenable, basis for inferring that his position was by then, or thereafter, “irretrievably prejudiced”.

39. Moreover, as pointed out in the authorities cited in the earlier part of this judgment, specifically Hay v. O’Grady, an appeal court should be particularly slow to draw inferences in circumstances where it has not been invited to see the videos, which the trial judge did, or any excerpts from the videos. The court of trial made specific findings on the appellant’s strength of mind, and on the limited number of occasions that he had, actually, answered questions put to him by the gardai. The judge described the previous encounter with the gardai as indicating a certain fortitude of mind which had not been undermined.
Gormley
40. In order to understand the next limb of the appellant’s submission, it is necessary to now analyse the decision of this Court in Gormley. In Gormley, this Court had to consider, among other issues, the applicable law where important investigative steps had actually taken place before access to a solicitor had occurred, but vitally, after the accused had requested to have a solicitor present. Mr. Gormley was interviewed by gardai, having been arrested. He gave the names of two solicitors who he wished to have advising him. The very fact of that timely request was a key point in the judgment delivered by this Court. Efforts were made to contact both solicitors. One of the solicitors told the gardai, by telephone, that he would attend the Garda Station shortly after 4 p.m. Despite this knowledge, the appellant was interviewed by the gardai before then, at which time he made a number of inculpatory statements. The solicitor arrived at 4.48 p.m., and consulted with Mr. Gormley. The inculpatory statements were admitted at the trial. On appeal, this Court held that the trial judge had erred in admitting the evidence. The Court held that there had been an unlawful denial of access to a solicitor, and that consequently the subsequent trial of the appellant, Gormley, had not been in accordance with Article 38.1 of the Constitution. That Article requires that any trial shall be in due course of law.

41. In the course of his judgment in Gormley [2014] 2 I.R. 591, Clarke J. pointed out at p. 628-629, for a unanimous court (Hardiman J. in a concurring judgment):

“[82] …, I am persuaded that the point at which the coercive power of the State, in the form of an arrest, is exercised against a suspect represents an important juncture in any potential criminal process. Thereafter the suspect is no longer someone who is simply being investigated by the gathering of whatever evidence might be available. Thereafter the suspect has been deprived of his or her liberty and, in many cases, can be subjected to mandatory questioning for various periods and, indeed, in certain circumstances, may be exposed to a requirement, under penal sanction, to provide forensic samples. It seems to me that once the power of the State has been exercised against a suspect in that way, it is proper to regard the process thereafter as being intimately connected with a potential criminal trial rather than being one at a pure investigative stage. It seems to me to follow that the requirement that persons only be tried in due course of law, therefore, requires that the basic fairness of process identified as an essential ingredient of that concept by this Court in State (Healy) v. Donoghue applies from the time of arrest of a suspect. The precise consequences of such a requirement do, of course, require careful and detailed analysis. It does not, necessarily, follow that all of the rights which someone may have at trial (in the sense of the conduct of a full hearing of the criminal charge before a judge with or without a jury) apply at each stage of the process leading up to such a trial. However, it seems to me that the fundamental requirement of basic fairness does apply from the time of arrest such that any breach of that requirement can lead to an absence of a trial in due course of law. In that regard it seems to me that the Irish position is the same as that acknowledged by the ECtHR and by the Supreme Court of the United States. …” (Emphasis added)
42. These observations are now relied on as being the basis of a further extension of the right of the suspect to have access to a lawyer throughout an interrogation. Relying on Gormley and Salduz, and the decision of the Supreme Court of the United States in Miranda, counsel for the defence submits that the appellant had a right to have his solicitor present throughout the interviews.
43. It seems to me that these submissions cannot succeed in the instant case. It is true that, after the judgment in Gormley, the Department of Justice issued a guidance note to members of An Garda Siochana, indicating that lawyers might be present throughout interviews. This is to be welcomed, and it is also, now, a reality.

44. But the primary question which falls for consideration in this case is whether it can be said that there was a “deliberate and conscious” denial of a constitutional right, at the time (2009), when such an asserted ‘right’ had not then been recognised by the courts. It is important to point out that, in Gormley, the appellant had, at the very outset, asked for a solicitor, and yet the gardai continued to interview. It was on that factual basis that the exclusionary rule was brought to bear in that case. Thus, although the analysis was viewed under the rubric of Article 38 of the Constitution, the ratio of Gormley is, in fact, consistent with the established jurisprudence.

45. It is true that, since the Act of 1984, (referred to earlier), inferences may be drawn from conduct during interview, of the type outlined earlier in this judgment. (see paragraph 32 supra). As long back as the O’Briain Report in 1978 (Report of the Committee to Recommend Certain Safeguards for Persons in Custody and for Members of an Garda Síochána), there were views that solicitors should be entitled to be present at garda interviews. It must be recognised that part of this Court’s jurisprudence is that the Constitution is a living document, and regard should be had to “prevailing norms” in the identification and evaluation of rights of an individual (see the judgment of Walsh J. in McGee v. Attorney General [1974] IR 284, at 319, and O’Higgins C.J. in The State (Healy) v. Donoghue [1976] I.R. 325, at page 350, which are referred to in Gormley at p. 627, par 78 and p. 628, par 79 respectively). It is also to be noted that the European Union has issued a Directive (2013/48/EU of the 22nd October, 2013) concerning the right of access to a lawyer in pre-trial detention. Although not binding on Ireland because of a derogation, this document, too, contains a range of protections and values intended to further protect the rights of suspects who are under interrogation, though it does not address the precise consequences which should arise if there is a breach of the right of access, or advice; nor does it specifically say what is entailed, in the sense of whether and to what extent a lawyer’s presence is required during and/or throughout all interviews.

46. But what I think is imperative to bear in mind, is that here (subject to the point made regarding the immaterial Interview 14), the appellant was granted access to a solicitor at the outset of his custody, during his custody, prior to the relevant interview, and even during that interview. His limited confession was that he accepted that he had killed Shane Geoghegan. Unavoidably, the appellant must face the fact that the logic of what is sought to be applied here is a retrospective recognition and application of a then unrecognised constitutional right to have a lawyer present throughout interviews.

47. This proposition has fatal flaws. First, it was not the law at the relevant time. It was not the law, even after the judgment of this Court in Gormley, though it might be seen as a possible logical consequence of that judgment. There is no evidence that the absence of a lawyer at the relevant time was a causative factor in the appellant making his confession. The fact that Mr. O’Donnell did not testify does not allow this Court to draw any inferences of what ‘might have been’. There is no suggestion that Mr. O’Donnell did not testify as a result of unavailability. The Court can only conclude on the evidence, therefore, that the appellant made a deliberate choice. In fact, he was recorded on video as saying “it was my choice to admit what I did” in Interview 17. This is to be seen in the context of an earlier statement in Interview 16, where he said “I shot him. I’m going to get what I deserve”. The question, therefore, which arises is whether observations of this Court in Gormley should be “retrofitted” to this case, in circumstances where Gormley was decidedly not the law at the time of the arrest or detention, or at the time of trial. As already pointed out, Gormley does not, in fact, go so far as to say that, in all circumstances, there must be a right to a lawyer throughout interviews. Furthermore, it is necessary to emphasise that this was not a case where any inferences were sought to be drawn from a suspect’s silence or conduct at interview to be used subsequently at trial. The logical frailty does not end there. Because this is an appeal within a criminal process, in order for the appellant to succeed, the Court must find that there was a “deliberate and conscious” denial of the appellant’s constitutional rights.

48. There, I would hold, the proposition becomes entirely unsustainable. How, on the basis of all the established jurisprudence, can it be argued that there was a deliberate and conscious violation of a right then unrecognised, either under the Constitution, or, as I seek to explain later, under the Salduz judgment, or any of its successors? The proposition stands logic on its head. It is based on an unsustainable premise which must inevitably lead to a flawed conclusion. “Deliberate and conscious” necessitates awareness, and the deliberate ignoring of an established right.

49. This primary conclusion is fortified by the judgments of this Court in a subsequent authority. Subsequent to the trial, the exclusionary rule was again considered by this Court in The People (at the suit of the Director of Public Prosecutions) v. JC, a judgment delivered on the 15th April, 2015 (Denham C.J., Murray J., Hardiman J., O’Donnell J., McKechnie J., Clarke J., MacMenamin J.). There, this court had to consider the question of admissibility of evidence which might have been obtained in breach of constitutional rights. The exclusionary rule, now identified in JC in the judgment of Clarke J at par 5.10, is that:

“Where evidence is taken in deliberate and conscious violation of constitutional rights then the evidence should be excluded save in those exceptional circumstances considered in the existing jurisprudence. In this context, deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned. The assessment as to whether evidence was taken in deliberate and conscious violation of constitutional rights requires an analysis of the conduct and state of mind not only of the individual who actually gathered the evidence concerned but also of any other senior official or officials within the investigating or enforcement authority concerned who are involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned.” (paragraph 5.10) (Emphasis added)
50. But Clarke J., speaking for the majority, then went on to consider the following situation:
“5.11 Next, it seems to me to follow that, where evidence is taken in circumstances of unconstitutionality, but where the prosecution establishes that same was not conscious and deliberate in the sense already identified, the evidence should be admitted if the prosecution can also establish that the unconstitutionality concerned arose out of circumstances of inadvertence or by reason of developments in the law which occurred after the time when the relevant evidence was gathered.” (Emphasis added)
51. While the law may be in a state of development, it does not go so far as the appellant contends. It cannot be logically contended that this confession was taken in “deliberate and conscious” violation of a constitutional right. While the evidence at the trial was, of course, tested in accordance with the then case law, it is not possible to identify any deliberate or conscious violation to which a causative link can be attached. It might be said that, if retrospectivity is looked for, then it must cut both ways, with the consequence that the appellant cannot show any deliberate rights-violation, but also where there have been subsequent “developments” in the law (see the passage from Gormley quoted earlier). It is evident that the appellant seeks to rely on such a development when this was out-ruled in Clarke J.’s judgment in Gormley (see above). The appeal cannot succeed on this constitutional submission.
52. In all the circumstances, and the developments in the law and procedures since Lavery, I would now be prepared to recognise such a right under Article 38.1 in future cases, but that is quite a different matter from the retrospective application the appellant seeks.
Salduz v Turkey 36391/02 [2008] ECHR 1542 (27 November 2008)
53. It is well established that our courts give recognition to Convention jurisprudence, as expressed in the case law of the ECtHR. With this in mind, it is next necessary to consider in more detail the judgment of the Court of Human Rights in Salduz. Notably, the Court has only been referred to that judgment of the court, and not to any other of the very many judgments which were delivered subsequent to that time. (See, for example, Navone v. Monaco, Application No. 62880 [2013] ECHR 1032 (24 October 2013); Dayana v. Turkey 7377/03 [2009] ECHR 2278 (13 October 2009), Brennan v. U.K 39846/98 [2001] ECHR 596 (16 October 2001). See also the case of Borg v. Malta, 37537/13 [2016] ECHR 53 (12 Jan. 2016) for the wide margin of discretion given to national courts regarding the retrospective application of Salduz.

54. Salduz was very different from the instant case. In Salduz, a vulnerable 16 year old applicant, was taken into custody by police officers. He was beaten and insulted while in custody. The Turkish Code of Criminal Procedures stipulated that, for juveniles, legal assistance was obligatory. That right was not vindicated. In those circumstances, the European Court of Human Rights held that Article 6(1) ECHR required that, as a rule, access to a solicitor should be provided, as and from the first interrogation of a suspect by the police, unless it was demonstrated, in the light of the particular circumstances of each case, that there were compelling reasons to restrict that right. The juvenile applicant did not have access to a lawyer at that time, or prior to the time he made statements to the police, the public prosecutor and the investigating judge. No justification for denying him access to a lawyer was given, other than that this was provided for on a systematic basis by the relevant legal provisions. In Salduz, the European Court of Human Rights held at par 55 that:

“Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police,”
Referencing this to the overall trial process under Article 6, the court went on to hold:
“The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.” (Emphasis added) (paragraph 55)
55. The distinctions with the instant case are clear, where, to reiterate, from the very outset, the appellant was granted such access and advice, and continued to have access to a lawyer up to, and including, the time of the confession. To my mind, therefore, the facts of Salduz are very distinct. There is no evidence that the appellant’s confession was brought about as a result of the appellant’s age, conduct, or vulnerability, unlike the distinct situation in Cadder, cited earlier. It was open to the defence to adduce such evidence, if there was such. There is no suggestion that his physical or mental wellbeing was put at risk.
56. There is no doubt, that under ECtHR jurisprudence, the guarantees provided for under Article 6 ECHR are applicable, at minimum, from the moment that a criminal charge exists, or perhaps even earlier. A court must be particularly astute to deal with situations where the issues facing a vulnerable accused may be amplified by increasingly complex legislation on criminal procedure with regard to gathering and using evidence. But none of these considerations arise here, as they did in Salduz, or succeeding cases.

57. But, the appellant’s submission is misconceived for a further reason. As the Court of Human Rights has explained on many occasions, it is not its role to determine, as a matter of principle, whether particular types of evidence, including evidence obtained unlawfully in terms of domestic law, may be admissible. As the ECtHR has explained, the question to be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. It must be acknowledged that prompt access to a lawyer is a vital protection for the vulnerability of suspects in police custody. But that, precisely, was the right which was extended to the appellant in this case. There is no suggestion that the right of access was delayed on the appellant’s arrest. This is not a case where the prosecution is forced to submit there were compelling reasons for some restriction on right of access. In fact, Salduz does not establish a ‘bright line’ rule precluding any use of statements made without legal advice (insofar as that could be said to arise here), where there was interrogation without access to a lawyer. (See, generally, the judgments of the ECtHR, recently summarised in Ibrahim & Others v. United Kingdom, Application 5041/08, 50571/08, 50573/08 and 403521/08, delivered 13th September, 2016).

58. While it might be said that the Miranda jurisprudence of the United States originally created a strict bright line exclusionary rule, this is not the position under Convention jurisprudence (nor, indeed, in subsequent United States Supreme Court jurisprudence: See Connecticut v. Barrett, 479 U.S. 523 [1987]; Oregon v. Bradshaw, 462 US 1039 [1983]). The test under Article 6 is, as I would understand it, rather, a two-stage one, wherein the Court should examine whether there were compelling reasons for a restriction on access or advice, and whether such a restriction impacted on the overall fairness of trial proceedings. The first consideration does not arise. As to the second step there are a number of tests subsequently for ascertaining whether the proceedings were fair. (See Ibrahim, pronounced after the hearing of this case). There is nothing in the instant case to suggest that the evidence which was obtained was unreliable or inaccurate. It was corroborated. It cannot be said that there has been a violation of any other Convention article. There is no suggestion that the appellant actually retracted his statement. Perhaps the most graphic image emerging from the transcripts is the fact that, at interview, the appellant apparently wore a set of rosary beads around his neck, and after having confessed, later gave these rosary beads to the gardai to be given to Shane Geoghegan’s mother. The appellant was convicted by a jury, after the jury had been fully charged regarding the standard and onus of proof in criminal case, that is to say, beyond reasonable doubt. There was no procedural unfairness in the procedure of the trial. As a matter of fact, the appellant in this case had not been charged at the time it is said there was a denial of access to a lawyer. Insofar as ECHR jurisprudence is concerned, a question might arise as to when Article 6 rights are actually triggered. (See the judgment of Judge Mahoney in Ibrahim, cited earlier at paragraph 55).

59. For the reasons which are outlined earlier, it cannot now be successfully argued that the position of the appellant was “irretrievably prejudiced”. What is in question here is, of course, an ex post facto analysis of the conduct of the trial court, and the appeal, and how the evidence was treated. But throughout, the appellant had the opportunity to challenge the authenticity of the evidence, and oppose its use. The exclusionary rule, as it stood, was applied. There was substantial other evidence which supported, and corroborated, the confession. In fact, that corroborative evidence would, in itself, have been sufficient to convict the appellant.

60. I would hold, therefore, this Convention argument on the confession cannot succeed either. I am not persuaded that the right of a lawyer’s presence throughout all interviews is recognised in ECtHR jurisprudence, either in 2009, or now. Thus, such a right cannot be relied on by the appellant, nor is it cognisable in our law.

61. I turn then to the second question regarding the judgment of this Court in Damache v. DPP.
Damache v. DPP
62. In Damache v. DPP [2012] IESC 11, [2012] 2 I.R. 266 this Court decided that a warrant signed by a member of An Garda Siochana, who was part of an investigating team, and issued pursuant to s.29(1) of the Offences Against the State Act, 1939 [OASA], used to enter a suspect’s home was repugnant to the Constitution.

63. Here, the appellant was arrested during a search of his home at 106 Hyde Road, Limerick, carried out on foot of a warrant issued by Superintendent McMahon, who was in overall charge of the investigation.

64. At the outset, it is important to note that during the trial, counsel for the appellant took no issue in relation to the warrant. The prosecution stated to the trial court that there was no issue with the lawfulness of the warrant. This was not contested.

65. The appellant’s case before this Court, it must be said, is surprising. It is said that the prosecution did not bring to the trial judge’s attention the fact that the DPP, as the respondent in Damache, was awaiting the outcome of a determination by the Supreme Court on the constitutionality of a s.29 warrant obtained in similar circumstances to those in this case.

66. It is true that this Court delivered its decision in Damache on the 23rd February, 2012, eight days after the trial had concluded, but before the appellant’s notice of appeal had been filed. The unconstitutionality of the arrest warrant was included as a ground of appeal in the appellant’s notice of appeal before filing. Before the Court of Appeal, it was submitted, that the warrant issued by the Superintendent had been unlawful, and that the appellant’s arrest, and subsequent detention, were consequently unlawful. The trial court had proceeded on the basis that the arrest and detention were lawful. The evidence and framework of the case proceeded on that basis. The Court of Appeal held that the appellant was precluded from making an argument, as it had not raised the issue at all during the trial.

67. This is not a situation where the appellant, either at the trial, or in collateral proceedings, had sought to challenge the constitutionality of s.29 of the 1939 Act on any grounds (see the decision of this Court in Connolly v. The DPP [2015] IESC 40). Moreover, it is to be borne in mind that an adverse ruling at a trial on the lawfulness of the arrest, following a challenge to the search warrant, would not necessarily have had the consequence of rendering the confession of the appellant inadmissible (see The People (DPP) v. JC [2015] IESC 31). Because the issues of the lawfulness of the search, and the arrest of the appellant, were not raised at trial, there was no detailed evidence as to the state of mind of the prosecution witnesses as to the arrest, or subsequent procedures. Having regard to the adversarial nature of the trial process, to raise the point ex post facto inevitably creates unfairness, and would be to constitute an injustice (The People (DPP) v. Cronin (No. 2) [2006] IESC 9, [2006] 4 IR 329). Evidence as to the circumstances of the arrest and the state of mind of the gardai could have been addressed at trial. It was not. Each side proceeded, in good faith, on the basis of the law then in being at the time of the trial. I would reject this ground also.

68. I now turn to the third question.
Inducement
69. Was the confession, then, brought about by inducements? The defence case is that there were inducements, and that these inducements, even if not specific, were implied. It is said that the implication was that if there was a confession, Victoria Gunnery would be released. The trial judge held that, even if these had been offered, their effect had been dissipated. This was a factual determination. (See Hay v. O’Grady, cited earlier). Counsel for the appellant submits that there was no ruling from either the trial court, or the Court of Appeal, on what he submits is an antecedent question as to whether, in fact, inducements had been offered. Counsel invites this Court to conclude that, if the trial judge had found the remarks at interview, now referred to in Charleton J.’s judgment, objectively capable of amounting to a threat, or a promise, it would follow that the confessions must then be excluded from the jury, unless the prosecution had negatived, beyond reasonable doubt, that the accused subjectively understood the inducements, and also negatived, beyond reasonable doubt, that his confession was as a result of the threat or promise (see The People v. McCann [1998] 4 I.R. 397, referred to below).
The Law
70. As the law stands, the threshold for inducements is a low one. The United Kingdom courts have held in the past that even the most general threats, or slight inducements, would taint a confession (see R v. Smith [1959] 2 QB 35, Lord Parker L.C.J.). As will be seen, my view of the legal principles involved coincide with those of O’Malley J. in her judgment.

71. The classical statement of what amounts to inducement in our law was set out by O’Flaherty J. in The People v. McCann [1998] 4 I.R. 397. It is a trifold test. O’Flaherty J. held at page 411:

“As regards what constitutes an inducement, the test would appear to be (a) were the words used by the person or persons in authority, objectively viewed, capable of amounting to a threat or promise? (b) Did the accused subjectively understand them as such? (c) Was his confession in fact the result of the threat or promise?”
72. Other authorities show the courts will carefully scrutinise inducements regarding consequences to family members, or close associates (see The People v. Hoey [1987] 1 I.R. 637). In this context, counsel for the appellant refers to a number of passages in the interviews which, it is submitted, constitute an implied inducement relating to Victoria Gunnery’s detention.
73. In summary, the inducements may be summarised as being to the effect that Victoria Gunnery was in custody for the same offence as the appellant, and was suffering hardship and deprivation having done nothing wrong. It was said their child was also suffering hardship; that the appellant had failed as a father; he should come clean and tell the truth; that unless he confessed he would not get to see the child or his children by another relationship, and that in return for his confession, Ms. Gunnery, who was being detained, would be released.

The Appellant’s Case

74. It is unnecessary to again rehearse the events which occurred in the latter part of Interview 14 up to the time of the confession.

75. There is no doubt that, in the course of the many interviews, the appellant was also asked to think of Ms. Gunnery, their child, and the deceased’s family. His volunteering of rosary beads has been set out earlier. This unusual and bizarre gesture merits some consideration, in the context of the “inducement” controversy. It certainly would provide support for the judge’s conclusion that what actually actuated the confession were appeals to the appellant’s humanity.

76. The case made by counsel for the appellant is that, it was the hope of release for Ms. Gunnery that constituted the inducement. As set out earlier, in fact, the position with regard to the appellant’s relationship with Ms. Gunnery, and with his child, was by no means ideal. Their child, Demi Leigh, had been born in May, 2007. The appellant spent the first Christmas away from the child in Spain. He then moved to Limerick for unspecified personal reasons in 2008, although he was not taking up work, and in moving to Limerick he took himself away from his girlfriend and his children. In 2009, shortly before his arrest, he had been in Dublin for a week, or thereabouts, and had spent the time in a hotel drinking with friends, without visiting his children at all. In the short period prior to his arrest, there had been an extraordinary degree of exchanged text messages between the appellant and his former girlfriend. An exchange of over 100 text messages in one day could lead to a number of different interpretations about the state of the relationship between the appellant and his former partner. It is unnecessary to go through the evidence on the doubtful medical appointment for one of the children.

77. But, the trial judge had seen 20 hours of the video tapes of the interviews. One can only again comment that this gave him a unique vantage point from which to analyse the totality of the evidence. This Court, rather, was invited, in the absence of the surely influential video evidence, to consider only the transcripts of the interviews, and particularly a number of selected passages therefrom. The appellant did not testify in the voir dire. This is not, in any sense, to suggest that there was an onus upon him to do so at the trial, but rather to point out this fact in the context of the legal and evidential tests that arise in considering the second and third strands of the three “McCann” criteria ([1998] 4 I.R. 397 at 411). Relevant, too, is the fact that the trial judge had the opportunity of assessing each of the garda witnesses who testified in the voir dire regarding the circumstances of the interviews. It is to be noted that the appellant did not ask, after the confession, whether Ms. Gunnery would be released.
Strand 1 of McCann
78. It is now said that the three criteria identified in McCann were not directly addressed at the trial, or by the Court of Appeal. Here, what is important to bear in mind is that the learned trial judge ruled, as a fact, that the effect of certain statements made by members of An Garda Siochana had “dissipated” by the time the confession was made. This came after his extensive survey of the video evidence. It is difficult to conclude that such a word as dissipation could convey anything other than that there had actually been inducements in the first place. I infer that the Court of Appeal held to similar effect. For the avoidance of any doubt, I would infer, therefore, that the judge held, (and I would interpret his finding as such), to the effect that the words complained of did constitute inducements. At least by implication, the words used by members of An Garda Siochana, objectively viewed, would be capable of amounting to a threat, or a promise. I would conclude, therefore, that the ‘first strand’ of McCann, is satisfied. The words used, seen objectively, were capable of amounting to a threat, or a promise.

79. It is necessary to consider the second and third elements in more detail. Counsel for the appellant now submits that, had the trial judge found that the remarks were objectively capable of amounting to a threat, or a promise, it would follow that the confessions must then be excluded from the jury, unless the prosecution had proved beyond reasonable doubt that the appellant’s confessions were not obtained as a result of those threats or promises. Here he cites Strand 3, which poses the question, was the appellant’s confession, in fact, the result of the threat or promise? Counsel contends, it is impossible to carry out an examination of Strands 2 and 3 in McCann, until it is decided whether the remarks constituted a threat, or a promise, and that if the trial judge had found that the remarks made were capable of amounting to a threat, it would have been “impossible” for him to be satisfied that the effects of these promises had dissipated, or were not acted upon immediately, in the absence of actual evidence of dissipation or motivation. Counsel further submits that the trial judge assumed, or inferred, dissipation from the appellant’s consultation with Mr. O’Donnell, his solicitor, after interview 14, rather than from actual evidence of dissipation.

80. It is then necessary to look next at Strand 2 of McCann, that is, (b) in the terms set out by O’Flaherty J. ([1998] 4 I.R. 397 at 411)
Strand 2 of McCann
81. Did the accused subjectively understand the inducements? The question to be determined by the judge, which arises here, is on whom does the evidential onus lie, as to subjective understanding? There was, of course, the evidence of Mr. O’Donnell’s attempted brokering of a deal that Victoria Gunnery be released. But this cannot be seen in isolation from the evidence that the gardai explicitly rejected the offer. This is set out in the memo referred to in my colleagues’ judgments in more detail. The garda testimony was that to accept the offer would be, necessarily, to render any statement made by way of confession made by the appellant inadmissible in court. The issue of “subjective effect” is canvassed. It is undoubtedly true that there were a number of garda questions and statements in the interviews – and statements from the appellant expressing concern regarding his former partner, and their child. But against that, there were a range of other statements and conduct constituting prima facie evidence in favour of the prosecution case, which suggested an entirely different motivation, that is, regret for the crime. This was most graphically illustrated by the appellant’s gesture with the rosary beads.

82. Clearly, one cannot suggest that there was an onus on the appellant to testify as to his subjective state of mind. There was no such duty. The duty, at all times, lay upon the prosecution to prove each element of the case beyond reasonable doubt. But, once there was prima facie evidence which made out the prosecutions case, one cannot avoid the fact that it was open to the defence to call the appellant at the voir dire, or even to call Mr. O’Donnell. Neither course of action was adopted, undoubtedly for good reason. Instead, there was a significant body of evidence which the trial judge considered was enough for him to conclude that the second strand subjective test in McCann had not been made out. There was no evidence as to the appellant’s ‘subjective understanding’, or as to whether the inducements were understood as such by him. This is in circumstances where there were a range of other factors at play, including the appeal to the appellant’s sense of humanity and regret that the innocent victim was not the intended victim of the murder. This was, again, the video evidence of what the appellant said and did throughout the interviews, and, moreover, the very selective form of confession which he did make. Can it be said there was any evidence which would assist the appellant, on what is essentially a subjective test? I think not. We are again asked to draw different inferences from the trial judge. Hay v. O’Grady [1992] 1 I.R. 210 governs the position. I would not be prepared to do so, on the basis of the evidence sought to be relied on.
Strand 3 of McCann
83. The third strand of McCann is also of critical importance. Was the confession, in fact, the result of the threat or promise? Again, one proceeds on the hypothesis that both the trial judge, and the Court of Appeal, did accept, inferentially, that there had been inducements. But, even proceeding on that hypothesis, as advanced by counsel for the appellant, there is a further difficulty. Again, it concerns the subjective effect of inducements. In fact, a very considerable period of time elapsed between the last of the inducements, and the confession. This time was interrupted by consultations with the solicitor, and by the telephone conversation which interrupted Interview 15. The judge was able to assess the issue contextually. In truth, there was no factual evidence available to the judge which would have allowed him to come to a conclusion in favour of the appellant. The test of subjective effect must be more than mere assertion by counsel. Without in any way displacing the onus and standard of proof, there must be some evidential material as to ‘effect’ upon which a judge might act. This might emerge from video evidence of the interview, or words at the interview. The Court was not directed to such evidence. The question of dissipation is one of fact. It was a matter within the province of the trial judge to determine, on the basis of the real evidence before him. His findings were based on real evidence. I do not think they can be disturbed. This ground also must fail.

Conclusion

84. The appellant’s conviction was based upon a confession of his guilt, supported by significant independent evidence. This included a description by the appellant of what happened at the scene of the crime examination of matters unknown to the gardai, and ballistic evidence. The conviction was supported by independent testimony from Ms. Gunnery, to whom he (the appellant) made inculpatory remarks outside the confines of a garda station. It was corroborated by evidence from Ms. April Collins, who was present both when the order was given to the appellant to commit the murder, and the following day when the appellant was challenged as to whether or not he had shot the right man, and when he asserted, incorrectly, that he had. The voluntary nature of the confession was proved to the satisfaction of the trial judge based upon a detailed review of all the evidence, including 20 hours of interview process. There is no basis, under the law, upon which it can be contended that the evidence was inadmissible, or that the trial herein was an unfair one. The appeal herein seeks to extend a legal principle to a situation where it can have no application, and for which there is no evidential support. The second, Damache point, is unsustainable. As to the question of inducements, the trial judge was entitled to reach the conclusions that the effect of inducements made by the gardai had dissipated when the appellant confessed, in circumstances where there was sufficient evidence before him to allow that finding of fact.

85. I would dismiss the appeal therefore.

 

Judgment of Mr Justice Peter Charleton of Wednesday the 18th of January 2017

1. On 15th February 2012, after a 22 day trial, the appellant Barry Doyle was convicted by a jury in the Central Criminal Court of the murder of Shane Geoghegan at Clonmore, Dooradoyle in the city of Limerick, at around 01:00 hours on Sunday 9th November 2008. The intended victim of the crime, herein called CD, had apparently been a person in dispute with the criminal gang with which Barry Doyle was associated. Because Shane Geoghegan fitted the very general description of the build and clothing of Barry Doyle’s intended target and because he was in the place indicated at the time predicted for the killing by the crime boss who ordered the outrage, he was shot on the street with a Glock handgun, wounded, pursued into the back garden of a semi-detached house and then shot dead. The late Shane Geoghegan had nothing to do with criminal gangs or criminal activity. He was simply a young man returning to his residence.

2. A key component of the prosecution case was a confession statement made by Barry Doyle while in garda custody following his arrest pursuant to s. 4(3) of the Criminal Law Act 1997 on 24th February 2009. The circumstances of the interview, which was the 15th during his time in custody, are claimed by Barry Doyle to render the confession inadmissible as, he alleges, the confession came about in consequence of an inducement. While the particular circumstances surrounding the confession at issue will be examined in detail later in this judgment, the pivotal issue is the arrest of Victoria Gunnery, Barry Doyle’s former girlfriend and mother of their young daughter. She was arrested at the same time as Barry Doyle. An issue was raised by the defence at his trial that this arrest was used to unfairly induce him to confess to the murder when he otherwise would have remained silent. Part of the supporting evidence for the inducement urged by the defence, curiously, was that Michael O’Donnell, the solicitor for Barry Doyle, had approached the gardaí with an off the record offer that he would confess to the murder of Shane Geoghegan if the gardaí agreed in turn to release Victoria Gunnery. This offer was rejected on the basis that the gardaí wanted Barry Doyle to “tell the truth” and that a confession in such circumstances would not be admissible in evidence. According to the response of the interviewing detectives, his merely stating that he had committed the murder would not enable them to ascertain if he was either telling the truth or lying and such a laconic admission would not enable the release of Victoria Gunnery.

3. Sheehan J was the trial judge. He heard all the relevant evidence at a trial within a trial in the absence of the jury, except for that of Barry Doyle who exercised his right not to testify and of the solicitor Michael O’Donnell who was not called by the defence, despite their right to waive solicitor-client privilege. He also viewed every video recording of all of the interviews. Sheehan J held the confession admissible in law. Carney J was the trial judge in an earlier inconclusive trial. Carney J also had admitted the confession. At the trial from which this is an appeal, the jury found the confession of Barry Doyle sufficiently reliable together with the other evidence to decide that the prosecution had proved the murder charge beyond reasonable doubt. The Court of Appeal rejected the appeal of Barry Doyle, on some 27 grounds argued, in a written judgment of the court, Ryan P, Birmingham and Edwards JJ, dated 8th June 2015; [2015] IECA 109. This Court, by a determination issued on 28th October 2015, allowed an appeal under Article 34.5.3º of the Constitution on the following issues:

(i) Whether or not the applicant was, in the circumstances of this case, entitled to consult with a solicitor, and have a solicitor present, prior to and during the 15th interview with the Garda Síochána, during which admissions were alleged to have been made. This raises the question of whether the right to have a solicitor present during questioning is a matter of right of the detained person, or a matter of concession by the Garda Síochána.
(ii) Whether the applicant, in all the circumstances, including that he was convicted in the Central Criminal Court on the 15th February, 2012, and the decision of the Supreme Court in DPP v. Damache was delivered on the 23rd February, 2012, can rely on that decision on his appeal.

(iii) Whether the matters set out in the applicant’s application under the heading “Relevant facts considered not to be in dispute”, or any of them, constituted threats or inducements made to the applicant and calculated to extract a confession from him. This is a matter not decided by the court of trial or the Court of Appeal. Secondly, if they do constitute such threats or inducements, whether their effect had “dissipated” or “worn off” by the time of the admissions relied upon by the State, as held by the trial judge; and whether or not there was any evidence on which it could have been determined that the effect of the said threats or inducements (if any) had “dissipated” or “worn off” by the time of the alleged admissions.

4. On the confession, the Court of Appeal held at paras. 40-41 of its judgment that the trial judge was in the best position to adjudicate on the issue of the confession, that “[g]reat weight must therefore be given to his assessment that there was no inducement or threat”. It was further decided that “even if there was something to satisfy the [test for an inducement], and that it operated on the appellant, it was dissipated by the intervention of the appellant’s solicitor.” The Court of Appeal also concluded that their “consideration of the transcripts of the interviews affords factual support for the finding made by the trial judge.”

5. One of the complaints made on this appeal is that the trial judge did not rule whether there had been any inducement. Since the reliability of the confession is partly to be adjudicated by reference to any other evidence supporting it, Sheehan J’s ruling and the confession statement should be set out.

Confession ruling at trial
6. Neither Barry Doyle nor his solicitor gave evidence at his trial, not before the jury or in the absence of the jury during the trial within a trial as to the admissibility of his confession statement. While the accused has a right not to give evidence, it is more than peculiar that his solicitor allowed the court of trial to simply draw inferences from surrounding circumstances. In particular, there was no direct evidence from the solicitor as to what he did or what assurances he would have been able to give. Any privilege in that regard is that of the client and may be waived by him. If it is not waived, there is no warrant for an assumption that a solicitor whose presence is mandated in assistance to the arrested person either did not do his job at all or did it incompetently. The opposite inference naturally arises, unless clearly displaced. That is done most properly by evidence. The confession statement itself came in the aftermath of the approach to the gardaí made by Barry Doyle’s solicitor Michael O’Donnell. That happened between interviews 14 and 15. That encounter was written up some hours later by Garda Mark Phillips. This was the only available evidence of the encounter. While it was used as a basis for cross-examination by counsel for Barry Doyle, there was no challenge to its accuracy and Michael O’Donnell did not give evidence. That memo, presented with slight grammatical amendments, reads:

After a consultation Michael O’Donnell requested to speak to members who went to interview room. O’Donnell started by saying conversation was off record and did not want a memo to be taken of same. Stated that Barry Doyle would admit to killing Shane Geoghegan if his girlfriend, Victoria Gunnery, was released. I stated that there was no way this was possible, that he would have to tell the truth about what happened, and once he told the truth about what had happened we would have no reason to detain Victoria Gunnery any further. Michael O’Donnell stated that he would only answer one question, that he had committed the murder, and answer no more. I said this would not suffice, as we had to know he was telling the truth and not just saying it to get VG released. Michael O’Donnell said ‘sure cant you arrest her again?’ I said that Barry Doyle had to admit to what he had done in an interview and that his girlfriend would not be released before any interview. Michael O’Donnell said he would go back to Barry Doyle and tell him this. There was then a further consultation in the cell. After approximately 10 minutes, returned to interview room, Michael O’Donnell again said that Barry Doyle would not admit to anything prior to his girlfriend being released. I said to Michael O’Donnell ‘that is an inducement’ and there was no possible way that would happen. That any admission would not be upheld in any court if that were to happen. Michael O’Donnell said ‘sure wouldn’t you have it on the cameras?’ Mark Phillips said that didn’t matter. Michael O’Donnell said ‘well he will not admit to it. I have told him to say nothing, to get you to do the work’. I then said to Michael O’Donnell that Barry Doyle had to tell the truth about what had happened. Michael O’Donnell said ‘I think you have a bit more work to do’. Michael O’Donnell again had legal consultation with prisoner. It lasted approximately 4 – 5 minutes. Michael O’Donnell left the station.
7. On the 11th day of the trial, having considered the evidence of all of the relevant interviewing garda officers and custody officers and the custody record, and having viewed the 20 hours of video-recorded interviews with Barry Doyle, Sheehan J ruled as follows:

The defence object to the prosecution proposal to call evidence of various admissions made by Barry Doyle in the course of interviews that took place while he was in custody at Bruff Garda Station. The defence contend that these admissions are inadmissible and rely on three grounds.
1) That the admissions were made involuntarily as a result of a combination of threats, inducements and oppression.

2) That the admissions were made as a result of breaches of the accused’s constitutional right of access to legal advice.

3) The admissions were made as a result of breaches of the requirement of fundamental fairness.

In considering these submissions, the Court has had the benefit of oral and written submissions by the defence and by the prosecution as well as booklets of authorities furnished by each side. The Court has heard evidence from Detective Garda Hogan, Detective Garda Hanley and Detective Sergeant Philips, who were the principal questioners, as well as evidence from Detective Inspector Crowe who was heavily involved in managing the investigation and inter alia insuring that the law regarding custody extensions was complied with. Garda Cowen, who gave evidence regarding the custody record. Detective Garda Clayton, who was involved in the questioning of Victoria Gunnery and her transfer to Limerick. The Court also heard from Garda Amanda O’Callaghan who told the Court that it was not garda practice to allow solicitors to be present at custody interviews and the Court also heard the statement of a medical secretary Deirdre Devlin which was read to the Court and which stated that the child of Victoria Gunnery and Barry Doyle had no appointment in February 2009 at the Children’s Hospital in Crumlin.

The Court also had the benefit of viewing well over 20 hours of recorded interviews, being the first 16 interviews, as well as an agreed transcript of all the interviews.

The onus of proof in respect of admissibility is on the prosecution and if confessions are to be admitted in evidence the Court must be satisfied beyond a reasonable doubt that it is proper to do so.

In considering the question of inducement the Court is guided by the decision of the Court of Criminal Appeal in the McCann case and also bears in mind the judgment in R v. Rennie, particularly pages 69 and 70 of that judgment. This court proposes to adopt the rationale put forward by O’Flaherty J in the McCann case and does not propose to follow the judgment of the Canadian Supreme Court in Spencer. The Court has also considered the judgment in the Hoey and Pringle cases, insofar as they relate to inducement.

Regarding oppression, the Court has been guided primarily by the McNally and Pringle judgments. The Court also bears in mind the decision of the Supreme Court in the Shaw case. I will deal first with the question of legal access.

With regard to the question of legal access Barry Doyle had two consultations with his solicitor while he was in Bruff Garda Station prior to making admissions and he was also represented by that solicitor in court when an application was made to extend his detention. The Court does not consider the length of time that either consultation lasted to be relevant in the context of this case. The Court also holds that the Gardaí were entitled to continue interviewing Barry Doyle in interview 15 when he had complained that a short telephone conversation with his solicitor was not a proper consultation and when his solicitor’s arrival at the garda station was expected within an hour. The Court is satisfied that there was no breach of Barry Doyle’s constitutional right to legal advice.

In considering the question of oppression the Court observed Barry Doyle in video recordings over a period of in excess of 20 hours and holds that he appeared to be physically and mentally strong throughout. He engaged with the Gardaí when he chose to do so and refused to answer questions when he did not wish to do so. The Court notes that he had worked for a construction company as a block layer and played Gaelic football. The Court also notes that at the time of his arrest he was living in basic accommodation in Limerick wearing a bulletproof vest. The Court also notes that a few months earlier when asked by a member of An Garda Síochána where he had been the previous night he responded by saying ‘F – off’.

With regard to the questioning by Detective Garda Hogan, Detective Sergeant Philips and Detective Garda Hanley, and indeed Detective Garda Whelan, the Court finds that the interviews were conducted in a careful, patient and structured way in which some of the results of the garda investigation were gradually revealed to Barry Doyle. The Court also holds that Barry Doyle first began to engage with Detective Garda Hogan in a limited way, essentially as a result of Detective Garda Hogan’s appeal to Barry Doyle’s humanity. This engagement was built on by Detective Sergeant Philips and Detective Garda Hanley and ultimately the accused told the Gardaí about his involvement in the death of Shane Geoghegan.

The Court holds that the interviews conducted by Detective Garda Hogan and Detective Garda Whelan and the interviews conducted by Detective Sergeant Philips and Detective Garda Hanley were at all times professional and courteous and involved no oppression. The Court also holds that Barry Doyle was in full control of himself throughout the interviews and holds that he made the admissions that he did because he chose to do so.

With regard to the question as to whether some of the promptings by the Gardaí to Barry Doyle to the effect that he should tell the truth and not keep Victoria Gunnery away any longer from their child, the question arises as to whether this, or any other related promptings made prior to interview 15 and relating to the release of Victoria Gunnery, could amount to an inducement. The first thing to be said is that these remarks must be viewed in the overall context of all that had taken place, which included the various responses of Barry Doyle regarding the death of his brother, the responses regarding his own family, his children by a previous relationship to his relationship with Victoria Gunnery, as well as read or taken in the context of the limited answers he had given about living in Limerick and the fact that he had conceded to Detective Garda Hogan that being in custody on suspicion of the murder of Shane Geoghegan was the lowest point in his life. The context also includes the gradual unfolding of the evidence in the case to him and the context further includes numerous appeals to him to tell the truth.

Notwithstanding the context in which they occurred, and bearing in mind the judgment of Lord Lane in the Rennie case, even if these promptings could possibly amount to an inducement when objectively viewed they were not immediately acted on and their affect, whatever it may have been, was dissipated by the consultation Barry Doyle had with his solicitor and his solicitor’s interaction with Detective Garda Hanley and Detective Sergeant Philips. This broke any possible causative link and it is highly relevant that the solicitor told the detectives that Barry Doyle would not admit to the offence and that they would have a bit more work to do.

The Court holds that when Barry Doyle came to make his admissions in interview 15 he made them voluntarily. Accordingly, the Court holds that the admissions were made not as a result of oppression and were not made as a result of any threat or inducement.

Finally, the Court has considered the objection made by the defence that the admissions were made as a result of a breach of fundamental fairness. The Court has considered all the objections in the round and bears in mind, in particular, what Griffin J said in the People v. Shaw at page 61, and I quote: “Secondly, even if a statement is held to have been voluntarily obtained in the sense indicated, it may nevertheless be inadmissible for another reason. Because our system of law is accusatorial and not inquisitorial, and because (as has been stated in a number of decisions of this Court) our Constitution postulates the observance of basic or fundamental fairness of procedures, the judge presiding at a criminal trial should be astute to see that, although a statement may be technically voluntary, it should nevertheless be excluded if, by reason of the manner or of the circumstances in which it was obtained, it falls below the required standards of fairness. The reason for exclusion here is not so much the risk of an erroneous conviction as the recognition that the minimum of essential standards must be observed in the administration of justice.”

The Court holds that there is no breach of the requirements of fundamental fairness and accordingly holds that the confessions made by Barry Doyle are admissible in evidence

Whereas on this appeal, the prosecution have also sought to also reference the first trial, on 14th March 2011, that has been in the context of a ruling there by Carney J. Trials change as to their content and the impact of particular evidence. The ruling of Carney J can have no impact on this appeal.

The text of the confession
8. The reliability of confession statement is a question of fact for the jury. One of the factors that should be foremost in the minds of the jury is as to whether what the prosecution present as a voluntary admission of guilt contains inaccuracies or, on the other hand, whether it contains details that were not mentioned by the interviewing officers, or were not known to them, and which turn out to have been supported by external evidence; the facts on the ground. While, these are matters of fact for the jury such factual support is also of importance on the appellate reviewing of the soundness of a conviction. Here, there is considerable support. The particular interview at which admissions were initially made is interview number 15. Interview number 14 took place on 26th February between 17:32 hours and 18:35 hours. During the course of it Barry Doyle asked for a solicitor. He indicated that he had not yet spoken to his solicitor Michael O’Donnell properly. At 18:52 hours that particular solicitor arrived and consulted with Barry Doyle. The solicitor then spoke to detective gardaí Bernie Hanley and Mark Phillips. The garda memorandum of this encounter is set out at paragraph 6 above. This was followed by another 10 minute consultation between Barry Doyle and his solicitor. There was then a further brief conversation between the solicitor and those gardaí. There then followed a further consultation between Barry Doyle and his solicitor lasting less than 5 minutes. He returned to the interview room. After being cautioned that he was not obliged to say anything unless he wished to do so, but that whatever he did say would be taken down in writing and may be given in evidence, Barry Doyle indicated that he understood the caution and he then had a meal. Interview 15 commenced at 19:43. Barry Doyle immediately admitted that he was in Clonmore housing estate on the 8th November 2008 as a front seat passenger in a Renault Espace car. At 19:46 hours, the member in charge entered the room and told Barry Doyle that his solicitor wished to speak to him. He left and spoke on the telephone to the solicitor, this call taking 3 minutes. After returning to the room Barry Doyle was asked by the detectives, “Barry were you involved in the murder of Shane Geoghegan?” to which he replied “Yeah, I shot him”. The following extract consolidates both questions and answers during the course of the resulting confession statement, but leaving out those questions put to which there were no answers, and reads:

[Asked what he had said before he left the interview room] I shot him. Yes. Seen someone walking across the estate. I held a gun, shot him, and chased him and shot him again. I got out of the car. I shot at him. He ran. I chased him around the back of the house. I shot again. [Who did you shoot?]Shane Geoghegan. [Was he your intended target?] No comment. [Asked how long he was in Kilteragh Estate] I don’t know…about two hours [Asked what he was wearing] Black top, denim bottoms. [Asked where the clothes are] Burnt. [Asked how many shots he fired as “we have to know that you’re telling the truth”] I’m not going to admit to murder if I didn’t do. Seven or eight. [Asked did he feel better telling the truth] It doesn’t take back what I did. [Asked what time he arrived in the housing estate] I don’t know it was dark. [Asked was he sitting in the front passenger seat waiting] Yep. [Asked where the Renault Espace car was parked] Just through the wall, in the car parking space. At the corner. Wall is there. [Asked where victim was when he began shooting.] Halfway across the road. [Asked where Shane Geoghegan went] Ran around the house, I couldn’t see him. [Asked if he found Shane Geoghegan by following the heavy breathing] Yeah. [Asked where Shane Geoghegan was in the garden] Around, up against the wall. [And how many times did you shoot him when he got to the back garden?] Twice. [Where did you shoot him?] In the head. [Asked if the victim said anything] Please stop. [Where did you run?] Back to the car. [Asked what seat he got into] Passenger. [Asked if he was the only person in the car who got out to shoot at Shane Geoghegan] Yeah. [Asked what happened when he got into the car] Drove off. [Asked if he had hit the victim prior to shooting him in the head in the back garden] I think so. He was holding his side. Can’t think [which side]. [Asked when the victim first saw him] The first time I shot him. [Asked did he say anything to him] No he just turned and ran. [Asked how many shots he fired initially] I can’t think. I just left off a few and went after him again. [Asked whether he fired more shots while running after the victim but before going into the back garden] Maybe one or two. I can’t remember. [Asked did the gun work while he was firing it] Jammed. Just tried shooting and it didn’t click. I pulled it back. 2 or 3 times. [Asked where he was standing when this happened] On the road. [Asked how many times he shot the victim] Twice that I know. [Asked did you see anyone else in the estate] No. [Asked about other cars] One of them. [Asked was this the first time he had fired any gun] Yeah. [Asked if he knew or had ever met the victim before] No. [Asked was he sorry] Yes. [Asked how he felt afterwards] Dunno. [Asked did he feel sick afterwards] I was. My head was all over the place. [Asked if he had told his girlfriend about the murder] I don’t want to involve her. [Asked when he turned his mobile phone off] Haven’t a clue. [Asked when he turned his mobile phone back on] Next day or something. I can’t honestly remember. [Asked if he had taken any drink or drugs before murdering Shane Geoghegan] No. [Asked did you know the Renault Espace was stolen] Yeah. [Asked if he knew where it was parked between being stolen and the night of the murder] No. [Asked why in earlier interviews he had denied involvement in the murder] I was thinking of my family. [Asked was he lying earlier on in denying involvement] Yeah. [Asked how far down the road the house where the murder occurred was] Let me think. I can’t think. [Asked was the victim standing when he was shot] Sort of leaning. Against the wall like. [Barry Doyle is asked to demonstrate this and then asked which side he was leaning on] Left side. I think I’m not too sure. [Asked what he was he was leaning up against] Wall. Wall of the house down the side.[Asked what else he could see] Didn’t even look. Just ran in.. I think there was bins there. Can’t remember. [How close did you get to him?] From here to you. [Asked was the victim facing him] Yeah. [Asked if he saw where he shot the victim] Just shot him in the head. [Asked did you see where exactly in the head he shot him and whether he saw him fall] No. No. [Asked was he moving when he ran away] Don’t know. [Asked what he was wearing] He had his jacket up like that. [Asked did he see any facial hair] Couldn’t really see it was dark. [Barry Doyle then alternately answers that he had not been in the estate before and that he was the only person in the car with a gun and that Shane Geoghegan did not have a gun. Finally he is asked if he is sorry for what happened] Yeah. Sorry I did it. I’m just sorry I did it [Asked if he would do it again] No. [After a memorandum of the interview is completed, Barry Doyle signs it.]

Support in other evidence
9. In the early 1990s, a recurring argument in criminal trials was whether a confession to gardaí should be put before a jury only if accompanied by a corroboration warning. That issue was eventually resolved by this Court. The proposition that a corroboration warning should be given to a jury in relation to confession evidence was rejected by the majority of this Court in The People (DPP) v Quilligan and O’Reilly (No. 3) [1993] 2 IR 305. Nonetheless, in that case, an unsupported but extremely detailed confession to a brutal murder of an elderly man in County Cork, Mr Willis, and the effective ruination of his brother’s life, resulted in a clarification of the proper direction which a trial judge should give a jury, without requiring any specific form of words. That ruling was given in the context of the safeguards then in place, which as will be later detailed were much less than now. Whether there is external support for a confession as an accurate and truthful document in implicating the accused was regarded by this Court as important. It remains so. In the judgment of Finlay CJ for the majority, the role of the jury in analysing the confession in the context both of allegations made by the accused tending to demonstrate involuntariness, and of other evidence that may suggest involuntariness, was emphasised at 333-4:

Where, as has occurred in this case, the issue with regard to the admissibility of statements turns largely on allegations of threats, assault, inducement or harassment, or of what is described as the ʺplantingʺ of statements, then, the function of the jury is, I am satisfied, as follows.
It must be clearly directed by the trial judge to have regard to all the evidence which is before it, including all the evidence suggesting that the statement has been obtained by any of the unlawful methods which I have mentioned above for the purpose of ascertaining whether they are satisfied beyond a reasonable doubt that the confession or incriminating statement made by the accused is true and is a sufficient proof of his guilt.

A jury is not bound by a finding of fact made by a trial judge in the course of his ruling on the admissibility of a statement such as, for example, a rejection by him of an allegation that a member of the Garda Síochána assaulted the accused whilst in his custody and thus obtained the statement from him. It must be made clear, whether by specific warning or by a positive direction to a jury that their function in having to be satisfied beyond a reasonable doubt as to the truth of a voluntary statement admitted into evidence before them necessarily involves an examination by them of allegations of any description which are relevant to the question as to whether the statement was truly voluntarily given or not. It should be made clear to them that if they have a reasonable doubt as to whether a statement was truly voluntarily given that that would form a very solid ground for also entertaining a reasonable doubt as to whether it was true.

10. In dissenting, holding that there should be a warning requirement in the case of an uncorroborated confession, McCarthy J also emphasised that the jury should look at external facts to determine whether any admission of guilt was to be accepted as reliable. At 344 he stated:

There is no difficulty as to the direction as to corroboration itself – this may be found in a variety of other evidence, including, as in this case, the fact that a significant detail in the admission was born out by subsequent discovery at the instance of the person in detention. Corroboration does not depend upon the evidence of other gardaí, one should look elsewhere. … [Once a statement has been admitted by the trial judge into evidence, that], however, does not in any sense preclude the jury, when evaluating the admission, from looking for support or corroborative evidence in a material particular from outside the admission itself.
Fundamental to any analysis of fact is to consider which facts are obvious, or as a matter of plain reality beyond argument, and then to consider the disputed facts in the light of all of the other relevant evidence. While the corroboration warning requirement for statements of admission in custody has never been introduced as a rule of Irish law, and while the time when this point arose was one where the safeguards required by law were much less, it has always been significant in relying on a confession whether what an accused said fitted in harmony with other known facts and whether other evidence linked the accused to the commission of the crime. That analysis is central to the decision as to whether the prosecution case has been proven. Hence it is important, in looking at Barry Doyle’s admissions, to analyse whether evidence on the ground backs up what he said as to his involvement in the crime. A confession statement which is materially contradicted by the reality of facts to which it refers is one thing; a confession statement that is supported in its narrative by the reality of what occurred is another. Where a confession details facts which are unknown but later investigated and found to be correct, a serious indication is given of inherent reliability.

11. There were a number of elements of support for the confession as an accurate incrimination by Barry Doyle of himself. Firstly, in closing the case, counsel for the prosecution emphasised the accuracy of the map drawn by Barry Doyle during interview 15 from the point of view of the Garda forensic examination of the scene. Secondly, there was the evidence of Victoria Gunnery. Whether the evidence of Victoria Gunnery at the trial was of assistance was a matter left to the jury. While she gave evidence of conversations with Barry Doyle which could support his admission of guilt, on cross examination she put a different interpretation on matters. Thirdly, a woman from Limerick also gave evidence of knowing the gang leader who had ordered the murder, as she had known a relative of his. Part of her testimony, with names redacted where necessary, detailed how the murder was ordered by the gang leader AB. It reads as follows:

The discussion was [AB] was talking, he was telling them that he had everything sussed out about [CD the intended victim] and that he said, “it’s time to make the move” and he said, “I’ve everything sorted” and then EF said to AB, “you don’t have anything sorted”. He goes, “I do”. He said, “I have the gun and the car ready, everything is there to go”, and he was explaining … what he [CD the intended victim] looked like to Barry Doyle. … And Barry was just listening to him and he said to Barry, “the gun is there, you kill him” and he said to EF and to GH, “and one of ye are driving the car and that’s it”… I knew over where AB was talking about. I didn’t know exactly he’s from Doorstep, like, but I knew it was around the roundabout area there by Crescent Shopping Centre.
12. This witness described staying in the Hilton Hotel with her then boyfriend. She testified that she remembered the morning after the murder of Shane Geoghegan. She recalled driving with the gang leader AB to a rendezvous in the Limerick suburbs and meeting Barry Doyle and another man who were in a separate car. Consolidated, that part of her evidence reads:

AB was on the phone, he had another boy on the phone … He asked Barry [Doyle] to describe what kind of man was it that he killed. … and Barry described him and Barry was saying “it’s him, I know it’s him”. [The gang leader AB was] very angry and violent. … AB asked him was it [CD the intended victim], he said it was. He said “I’m sure it was him.” … He says that he was big, the way that AB described him. [Asked where AB and Barry Doyle said they were going] just said they were going to Dublin. They drove towards that way anyway but they didn’t go the whole way, they turned back … to Limerick.
The witness does not resile from this evidence in cross-examination. While questions as to motive and family were put to her, no alternative instructions from Barry Doyle were put to her as to either the meetings or as to the conversations. That evidence was highly incriminating of Barry Doyle.

13. The fourth piece of support to which the jury were entitled to have regard was forensic. Detective Garda Mark Collendar, a ballistics expert from the Garda Síochána technical bureau, gave evidence as to what was found at the scene of the murder. He said that a number of discharged and undischarged live rounds of 9mm calibre ammunition were found in the area. The live rounds had both “an extractor and ejector mark and chamber marks which would be firearm generated marks which would be imparted onto them from being in or cycled through a semi-automatic pistol”. He described these rounds as having been “ejected manually” and said that they “bore the markings of a Glock semiautomatic pistol.” He also describes the process of expelling live rounds. He described the impression that a firing pin would leave when it strikes the primer on the round. He related the particulars of a burnt-out Renault Espace car found in the area. While the detail in relation to the car would have been public knowledge, the fact that the gun had jammed and that the killer had used the ejection of 2 bullets to unblock this Glock pistol was not known to the gardaí prior to the confession statement of Barry Doyle. That, in any event, was the case made on this point by the prosecution.

Admissibility of confessions
14. The maxim nemo tenere prodere se ipsum, that nobody is required to act as a witness against themselves, is the foundational authority for the judiciary’s control of such confessions to crime as are regarded as untrustworthy. Over centuries, it has been on this principle that all rules governing confessions have been based. These have ranged from rules against torture in late medieval times, to a requirement that confessions be the rational product of a free mind in the 18th century, to the requirement of note taking in the early 20th century, to the mandatory provision of legal advice to suspects closer to our time, to video recording as of the present era. It is right to be on guard for, as Alexander Solzhenitsyn remarked in Gulag Archipelago (London, 1973, p 99): “Indeed, the actual boundaries of human equilibrium are very narrow, and it is not really necessary to use a rack or hot coals to drive the average human being out of his mind.” More recently the danger of suggestion to overcome resistance has also been examined. While safeguards against compelled confession are numerous, and at times highly detailed, the underlying principles have remained constant: the reception into evidence of what is both reliable and fairly taken is the weft running through the case law while the rejection of coercion makes up the web. Voluntariness is the legal shorthand for the process of adjudication by a judge to determine whether a confession has proceeded from a coerced mind or from a free one. Through sustained and unremitting pressure, torture, or sometimes through suggestion, a person may make a decision to give way and accept that police suspicions as to their involvement are correct. Such a confession could not be a reliable basis for a finding of guilt. Some such admissions are merely an acceptance, a “Yes, I did it”. In some admissions, such details as are provided have in fact been gradually supplied to the suspect over several police interviews. Some may be detailed and supply particulars unknown to the investigators. Voluntariness is a matter for the judge alone in the absence of the jury while reliability is a matter for the jury where the confession is admitted into evidence. In the context of all of the evidence and its interrelationship, the jury will decide if the prosecution have proved their case. There is a constant guard by the judiciary against coerced confessions because that kind of unreliable admission may possibly be mistakenly seen by the jury as the acceptance of the validity of the entire prosecution case. A genuine admission of guilt to discreditable conduct is, on the other hand, so contrary to human vanity that where circumstances suggest that it is the product of a free will, there may be the highest degree of trust reposed in it. On its own, an admission of guilt is enough to convict. As was put by Nares J and Eyre B as early as 1783 in R v Warickshall 1 Leach 263, 168 ER 234:

A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is submitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt that no credit ought to be given to it; and therefore it is rejected.
Cave J put the fundamental test of voluntariness thus in R v Thompson [1893] 2 QB 12:

By … law … to be admissible, a confession must be free and voluntary. If it proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear, excited by a person in authority, it is inadmissible. On this point the authorities are unanimous.

15. Sometimes the analysis in appellate rulings on confession statements may focus on the issue as to whether the circumstances in which an admission was taken were such as to force a prisoner into a position in which he would be likely to make an untruthful answer; R v Brown [1903] 68 JP 15. It is useful to return to the state of the law as of Irish independence. Archbold puts the test as of 1922 as being: “to exclude a confession made under the influence of a promise or threat, the promise or threat must be of a description which may be presumed to have had such an effect on the mind of the defendant as to induce him to confess”; Archbold – Pleading, Evidence and Practice in Criminal Cases, 26th ed., (London, 1922) at 387. Temporal issues are also of importance since the same authority at 389 states:

The only proper questions are, whether the inducement held out to the prisoner was calculated to make his confession an untrue one, and whether the inducement continued to operate at the moment of the confession; if not, it will be admissible.
16. Ultimately, a reading of all the relevant authorities resolves the question of voluntariness as: can a confession be regarded as a decision freely arrived at by the suspect who has voluntarily admitted as much of his guilt as he or she chooses. It may be a subsidiary question for the jury as to the weight to be given to an admission as to whether he or she has given sufficient detail to indicate the reliability of what is said. This has nothing to do with expecting a total unfolding of everything a prisoner knows. If a prisoner is required to confess, it is not voluntary. If a prisoner is required to confess all that he knows, then he or she will have had no choice. Part of the indicia of reliability may be that the person admitting to guilt in police interviewers makes a free choice as to how much is to be revealed. A confession is consequently not to be regarded as unreliable because accomplices, or those inspiring the crime, are not named. This has particular resonance as to the later interviews with Barry Doyle after the confession statement quoted in para. 8 above from interview 15. He would not say who else was involved. That was a choice he was held be the trial judge to have been free to make. In our system, the enquiry is into personal guilt. It is entirely focused on what the suspect has done not, as in the Spanish Inquisition or as in Soviet interrogation, on rooting out paranoid conspiracies or the naming of heretics or wreckers. Once a challenge to a confession statement is raised by the accused, the circumstances of its taking are to be scrutinised by the trial judge to determine its admissibility before it may be admitted as evidence before a jury. While experience before Irish juries far from supports the supposition that a mere admission that is lacking in detail and is unsupported by other evidence of the accused’s guilt automatically yields a conviction, as with the original motivation for other rules of evidence, judges are suspicious. Thus, historically, there has been seen to be a danger that too much weight will be attached to an admission and that the mere presence of a confession statement will leave a jury feeling that the scrutiny of any other evidence tending to indicate the guilt of the accused or suggesting his exoneration need not be closely examined; R v Baldry (1852) 169 ER 568. As a response to crime within the community, there is tension between the feeling that it may be unfair to convict a person solely on the basis of a confession and, on the other hand, the need to equip the guardians of the peace with the legal authority to make searching enquiries. What is not to be tolerated, on any right-thinking view of what constitutes reliable evidence against those facing serious criminal charges, is any secret process by which coercion is brought to bear on suspects so that they cease to be able to make rational choices in response to allegations. The leading Irish cases support that proposition and are set out instructively in Liz Heffernan – Evidence in Criminal Trials, (Dublin Bloomsbury, 2014) and JSR Cole – Irish Cases on Evidence, (Dublin, 1972).

17. Wigmore considered that the notion “that confessions should be guarded against and discouraged is not a benefit to the innocent, but a detriment.” His view, as expressed at para. 866 of his A Treatise on the Anglo-American System of Evidence in Trials at Common Law, Including the Statutes and Judicial Decisions of all Jurisdictions of the United States and Canada, 3rd edition, (Boston, 1940), was that an innocent person should be enabled by a mere question from the police to make an explanation at the earliest moment and that this would be “often the best means for him of securing a speedy vindication.” While this is correct as far as it goes, absent statutory intervention, the circumstances in law where people are compelled to give information as to their own criminal conduct are rare. An accused has, however, the invaluable right of giving evidence both at a trial within a trial, with a view to allowing the judge to adjudicate on the impact of any coercion complained of on that particular individual, and to contest by evidence the reliability of any confession statement admitted before a jury. This includes the right to contest the circumstances of any admission by cross-examination, as opposed to through the evidence of the accused, but this must be squarely based upon the instructions of the accused. Wigmore, at para. 851 of the same work, was also of the view that every “guilty person is almost always ready and desirous to confess, as soon as he is detected and arrested.” He speaks of the “nervous pressure of guilt” and proceeds to describe it as being “enormous; the load of the deed done is heavy; the fear of detection fills the consciousness; and when detection comes the pressure is relieved; and the deep sense of relief makes confession a satisfaction.” Experience of ideological murders – those committed from adherence to absolute values and demanding a cowardly and inhuman resort to violence against opponents – suggests that in this area of criminal conduct such a view is inapplicable. When it comes to dealing with those involved in criminal gangs, experience has shown that loyalty to the group and surrender of authority to a leader, will also militate against persons relieving themselves of the burden of guilt, although perhaps less strongly. Even where there is a confession in those circumstances, it may be likely to be personal and not to name other names. Thus, circumstances limit the extent to which the guilty person will confess and how far the confession will reveal pertinent details. Another danger is that the accused, through bitterness, will name those who were not involved or raise the level of participation of those who were. Hence, as matter of law, a confession statement of A, though naming B, C and D, is admissible only against A. An accomplice who is first sentenced may of course later give evidence, but subject to the relevant safeguard, a corroboration warning; People (DPP) v John Gilligan [2006] 1 IR 107.

18. The ultimate test is whether the confession came as a result of a decision by a rational mind that has freely exercised a choice to admit guilt. Given the profusion of case law on this issue, the summation of multiple decisions into a workable test by Griffin J in The People (DPP) v Shaw [1982] IR 1 at 60-61 is welcome:

The circumstances which will make a statement inadmissible for lack of voluntariness are so varied that it would be impossible to enumerate or categorize them fully. It is sufficient to say that the decided cases show that a statement will be excluded as being involuntary if it was wrung from its maker by physical or psychological pressures, by threats or promises made by persons in authority, by the use of drugs, hypnosis, intoxicating drink, by prolonged interrogation or excessive questioning, or by any one of a diversity of methods which have in common the result or the risk that what is tendered as a voluntary statement is not the natural emanation of a rational intellect and a free will.

Safeguards surrounding confessions
19. The judicial caution in the admission of confessions is not simply because most statements by arrested persons admitting to a crime have historically been regarded with caution due to having been taken in what was once seen as the confines of a secret process within a police station, but by reason of the very pressure which arrest itself brings to bear on the suspect. As Hayes J put the matter in R v Johnson (1864) LR 2 CCR 15 at 24:

It is manifest to everyone’s experience that, from the moment a person feels himself in custody on a criminal charge, his mental condition undergoes a very remarkable change, and he naturally becomes much more accessible to every influence that addresses itself either to his hopes or fears.
With this in mind, there has developed an accretion of safeguards designed to ensure that there can be, firstly, proper and accurate scrutiny of what has actually happened within the confines of police interrogation and, secondly, a degree of balance which militates against the isolation in confinement of suspects so that their increasing vulnerability has as a counterweight proper treatment, legal advice and access to family. These developments have occurred through judicial action and by legislative intervention. These safeguards have been developed for the benefit of the entire community and are to be abided by and not by-passed through excuses as to the unavailability of legal advice prior to admissions or the unavailability of video recording equipment.
20. With each development of the law, the process by which a confession is taken from a suspect has become more amenable to exact examination. It is important not to slip back into the attitude of a prior era where all a court had was the somewhat weighted contest between the testimony of multiple police officers and the denial of the suspect. The modern system is far from the situation where juries could determine the reliability of the prosecution case only through attempting to gaze through a glass darkly at what may have secretly happened to a person under pressure in a police station. Since we have moved through legislation and judicial scrutiny into an era of transparency, nothing less than the methods through which there is now accountability is acceptable. As times changed so did the challenges posed by accused to the admissibility in evidence of confession statements. There was a time, within the last decades, when a common argument advanced against the admission of a confession statement was that the statement was a so-called planted verbal; in other words that the accused had said nothing or said something innocuous but that the interviewing officers had made up an admission of guilt. There was also a time before that, but within living memory, when the issue as to admissibility tended to focus on allegations of brutality or of secretly hiding an arrested suspect away from legal advice and from the calming attentions of visits from those nearest to them. In the time following that, they were followed by allegations of unremitting pressure. One by one, these kinds of allegation have disappeared. This is because safeguards have been put in place. They are to be kept in place. In Dunne v Clinton [1930] IR 366, it was affirmed that it was impermissible to detain and question suspects to a criminal offence without bringing them before a Peace Commissioner or court and formally charging them as soon as reasonably possible. The use of the time between arrest and the mandatory bringing of a prisoner before a Peace Commissioner or court could, however, be used to question him or her. Section 30 of the Offences Against the State Act 1939 mandates the arrest of anyone suspected of a scheduled offence. Of relevance here are firearms offences, and of those with information in relation to such an offence. With the Emergency Powers Act 1976, such powers of questioning were amplified as to the length of time a person could be kept in custody. With the reference of that Bill to this Court by the President under Article 26.1.1º, In re the Emergency Powers Bill 1976 [1977] IR 159 at 173, O’ Higgins CJ declared that rights to liberty were curtailed by arrest but he also declared that arrest implied appropriate safeguards:

While it is not necessary to embark upon an exploration of all the incidents or characteristics which may not accompany the arrest and custody of a person under that section, it is nevertheless desirable, in view of the submissions made to the Court, to state that the section is not to be read as an abnegation of the arrested person’s rights (constitutional or otherwise) in respect of matters such as the right of communication, the right to have legal and medical assistance, and the right of access to the Courts. If the section were used in breach of such rights the High Court might grant an order for release under the provisions for habeas corpus contained in the Constitution. It is not necessary for the Court to attempt to give an exhaustive list of the matters which would render a detention under the section illegal or unconstitutional.
21. This remains the law. A breach of liberty, such as deliberately continuing to take a confession statement beyond the lawful time for arrest, at that time consequently resulted in the exclusion of that evidence; The People (DPP) v Madden [1977] IR 336. That case was decided according to the law as it then stood. The Criminal Justice Act 1984 was designed to remove the rule that persons arrested were regarded as being at the beginning of their imprisonment and that questioning was merely tolerated up to the time they could first appear for charging before a judicial authority. That Act brought in powers of arrest for questioning on serious offences, those carrying 5 or more years imprisonment and, following the 1978 Ó Briain Report, provided for a system whereby that arrest should be subject to safeguards, including, as later provided by Statutory Instrument, the checking by a custody officer of arrest validity and the keeping of exact records as to the manner in which a suspect was being interviewed, requiring that the arrested person be given breaks, meals, notice as to rights, that the prisoner should not be questioned beyond midnight except where that was requested, and for humane treatment generally. The details of this were filled in though subsidiary legislation; the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 (S.I. No. 119/1987).

22. Nonetheless, allegations of coerced confessions continued to be made after the commencement of those safeguards. In the modern era the pen has been replaced by video recording. The electronic recording of interviews was provided for by section 27 of the Act of 1984. This is such a case. The era of the automatic recording by video of interviews with suspects took a considerable time to arrive as a present reality. In Quilligan and O’ Reilly, O’Flaherty J, concurring in the majority decision that a corroboration warning was not appropriate for confessions, considered that recording of interviews would be the best means whereby proper protection could be given to the accused. At 357 he referred to this as being “as likely to be of benefit to the gardaí as it is to the accused” and “a much better way to ensure that a just verdict is reached than the introduction of a corroboration warning requirement.” While the fifth report of the Morris Tribunal noted in 2006, all of 22 years later, that the use of video recording was not a prerequisite to the admissibility of a confession, by that stage the Court of Criminal Appeal showed signs of losing patience. In The People (D.P.P.) v. Connolly [2003] 2 IR 1 at 18 Hardiman J stated:

The courts have been very patient, perhaps excessively patient, with delays in this regard. The time cannot be remote when we will hear a submission that, absent extraordinary circumstances (by which we do not mean that a particular garda station has no audio-visual machinery or that the audio-visual room was being painted), it is unacceptable to tender in evidence a statement which has not been so recorded.
The Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations, 1997 (S.I. No. 74/1997) had by that stage been enacted, after a delay of 13 years, but the availability of facilities was at first limited to district headquarters, though by now it has become more widely available. It is now used and ought to be used for serious criminal cases. It should also be born in mind that the reasoning of having electronic recording applies to all admissions. Safeguards are rendered meaningless if courts do not apply them. This was case where the appropriate procedures were followed, as they must be. Thus, the era in which the confession statement of Barry Doyle was recorded has a measure of safeguards beyond anything previously contemplated. What Sheehan J was dealing with here was a set of circumstances where the judge can weigh every word spoken and every reaction of the prisoner with a view to considering whether the prosecution has proven that the inculpatory statement in question was voluntary. That is what the interaction of the judicial and legislative approach to this matter has demanded and that is a circumstance designed on behalf of the Irish people to enable the proper scrutiny of contested confessions.

Role of the trial judge
23. In The People (DPP) v Madden [1977] IR 336 at 339-340 the Court of Criminal Appeal followed the judgment of Holmes LJ delivered in the Court of Appeal in the SS Gairloch [1899] 2 IR 1 at 18 as follows:

When a judge after trying a case upon viva voce evidence comes to a conclusion regarding a specific and definite matter of fact, his findings ought not to be reversed by a court that has not the same opportunity of seeing and hearing the witnesses unless it is so clearly against the weight of the testimony as to amount to a manifest defeat of justice.
24. The primacy of the trial judge as the assessor of fact is emphasised in many other judgments; see for instance The People (DPP) v Shaw [1982] IR 1. It may be argued that with the ready availability of video recordings in the course of police interviews, that this role has changed and that somehow an appellate court has been put in as good a position as the trial judge. This is not so. The boundaries to an appeal remain the same in criminal cases as the jurisdiction exercised in civil matters; Hay v O’Grady [1992] 1 IR 210. Furthermore, the cases cited in the foregoing paragraph were the basis of the decision by Sheehan J to admit this confession as voluntary. He heard the gardaí giving evidence and heard and saw their reaction to cross-examination. It might also have helped him to hear from the accused and from his then solicitor but decisions as to the maintaining or withholding of privilege are matters for the accused, as is the decision as to who is to give evidence. Such decisions are made, no doubt, for good reason. On appeal, a judge cannot be in as good a position to decide facts and, as a matter of law, is not. Despite video-recordings of interviews, an appellate court has available merely the text of the cross-examination of garda witnesses as to the allegations of the accused. Those will be searched as to the instructions behind questions where, as in this case, the accused chooses not to give evidence. In the Shaw and Madden cases, the issue on appeal regarding the voluntariness of the confessions in dispute was resolved by reference to the availability of evidence upon which such findings could be made. Indeed, the second and oft-quoted principle enunciated by McCarthy J at 217 in Hay v O’Grady has not been argued on this appeal to be either incorrect or inapplicable:
If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
25. As to inferences, the decision in Hay v O’Grady places the primacy of findings obtained from live witnesses with the trial court, though acknowledges that an appellate court “is in as good a position as the trial judge” where circumstantial evidence is involved. This Court on appeal has had no opportunity to hear or see any witness on this issue. The trial judge was the only person in that unique position. Sheehan J also had the duty to decide on the issue of whether this confession resulted from an inducement or was, instead “the natural emanation of a rational intellect and a free will”; Shaw, quoted above para. 18 from Griffin J at 60-61. Essentially, three points have been argued on voluntariness: firstly, that Sheehan J applied an incorrect test for dealing with inducements; secondly, that the memo recording the meeting with the solicitor prior to the crucial admissions is incapable of any other construction than that there is an inducement; and, finally, that the text of the interview and of prior and subsequent interviews demonstrate that the inducement was operative and cannot have passed. The separate judgment of McKechnie J involves a re-analysis of the facts and arrives at a different conclusion to Sheehan J.

26. No incorrect legal test was applied by Sheehan J. The operative part of his ruling specifically references all of the relevant decided cases and in particular the decision of the Court of Criminal Appeal in The People (DPP) v McCann [1998] 4 IR 397. This had not only been opened to the trial judge but had been discussed in argument and counter argument as to the admissibility of the confession. The three part test set out in that case emphasises that the effect which any action of the interviewers may have had on the particular mental disposition of an accused cannot be ruled out. In emphasising the individual nature of the person under questioning, the particular disposition of each person is to be kept to the front in ruling on this issue. The McCann test rightly sets out three questions:

(a) Were the words used by the person or persons in authority, objectively viewed, capable of amounting to a threat or inducement?
(b) Did the accused subjectively understand them as such?

(c) Was his confession in fact the result of a threat or promise?

27. The separate judgment of McKechnie J correctly emphasises the sequence of these questions. The approach of the trial judge in that regard seems to start at the second question. The appropriate start is the first. As a matter of prudence, even if ruling no on the first question, it assists appellate courts to also make findings of fact where appropriate on the other two. But the sequence should be maintained. It was specifically the text of McCann which is referenced by Sheehan J and any alternate authority was rejected in his ruling. Furthermore, part of the test is whether, if an inducement cannot be completely ruled out, the inducement continued to operate at the moment of the confession; that is the issue of whether a confession resulted from that inducement. That requires a subjective analysis, as the test in McCann states. Here, the ruling of Sheehan J referenced in particular The People (DPP) v Pringle (1981) 2 Frewen 57, which at 82 contains a description of the individual characteristics of the person being questioned; in that case “a man of 42 years of age, in good health, who for some years prior to his arrest had been a fisherman in the Galway area… not unused to conditions of physical hardship.”

28. The operative inducement on this appeal is said to be evidenced from the exchange between the solicitor for Barry Doyle and the interviewing gardaí in respect of interview 15. In this regard, it is to be presumed that a solicitor knows the law and that part of the advice that was available to Barry Doyle in the several consultations which he had with his solicitor just before interview 15 was that neither his detention nor the detention of his ex-girlfriend Victoria Gunnery was capable of being extended indefinitely, 72 hours being the maximum period of detention allowable under section 30 of the Offences Against the State Act 1939, as amended. The interviewing gardaí were confronted with the legal representative for Barry Doyle offering a false and insecure basis for any confession. What is significant is that this was rejected out of hand. The argument advanced on behalf of Barry Doyle is that even if the gardaí rejected this offer, the fact remained that they left open the position that, should Barry Doyle provide a confession statement, Victoria Gunnery would be released was enough to constitute an inducement. It is worth recalling the precise words in which the memo recorded this fact. It is a fair inference, and certainly not one that can be dismissed as a remote possibility, that his solicitor repeated the words of the gardaí to Barry Doyle as the 15th interview that was about to commence. Those words were: “once he told the truth about what had happened we would have no reason to detain Victoria Gunnery any further.”

29. In the context of various forms of detention for police enquiries, be it under s. 30 of the Offences Against the State Act 1939 or the ordinary form of detention under the Criminal Justice Act 1984, the argument often made by the prosecution as to why a detention was continued lawfully once a confession statement was made by the arrested person has been that facts needed to be checked. In other words, it is often said: we could not charge or release the suspect because in light of his statement there were other facts to be checked up on and we may have needed to come back to him having done that. Even if Barry Doyle had made an admission, from whatever motive, it would not have been unreasonable to continue to detain him and to check with whoever had relevant information as to facts mentioned therein for the purpose of cross-referencing such incidents as were relevant to both. In the case of Victoria Gunnery this may not have taken long. Even still, the information from the gardaí on this point may, therefore, have been inaccurate. The question then becomes whether this was the motivation for Barry Doyle in making the statement.

30. It is to be noted that at the trial, the defence claimed that Barry Doyle was oppressed into making the confession. The defence also said that the confession was made in consequence of an inducement. Despite the subjective nature of the effect of the test on a prisoner, as elucidated by the Court of Criminal Appeal in McCann, the evidence most prominent in the notable absence of evidence from the accused was that of the video recordings. Sheehan J after viewing some 20 hours of these, found as a fact that Barry Doyle “appeared to be physically and mentally strong throughout.” Furthermore, the trial judge regarded his interactions with the gardaí as a matter of choice. His background was also of importance in this analysis: what he worked at and the conditions that he was prepared to put up with in his day-to-day life. All of this is relevant as well to the mental toughness that faced the questions posed as to his involvement in the context of the safeguards as to legal counsel, custody supervision, visits, rest and complete recording of interviews. Ultimately, the question is as to the motivation of an arrested person for making the statement. On the criminal standard of proof, in other words rejecting the possibility that there was an operative inducement at the time of the confession, Sheehan J held that it was not in consequence of the references to his former girlfriend and mother of his child. Instead, the trial judge held that the statement emanated from remorse. The primary finding of fact here was that the statement was taken in the context of the gradual unfolding of the evidence against him by gardaí acting in a professional and courteous way and that the statement resulted from remorse at what he did and not from any inducement.

31. The test in law for the review of facts remains whether there was evidence to support such a finding. Any appellate analysis is required by law to be so confined. As McCarthy J stated in Hay v O’Grady, the role of an appellate court is not to count which aspects of the evidence, pointing one way or the other, amount to a majority. There was evidence from Victoria Gunnery, which was put to Barry Doyle in interview 10, on 25th February between 22:38 hours and 23:35 hours. This centred on the use of a phone and the hours within which the phone had been turned off. Here, the relevance was when he was about stalking the victim, as it turned out the wrong man. The reading of her statement to Barry Doyle was in accordance with a modern interpretation of rule 8 of the Judges’ Rules; as it is never sought in consequence of reading a statement to one prisoner to thereby implicate through that prisoner’s response the original maker of the statement. It was put to Barry Doyle that despite the fact that she had done nothing, he had placed her in jeopardy. Reference is made to her having “the same food as you and no visits”, but in fact she had visits from her father, her mother and another individual. It is put to him as well that failure to tell the truth could harm his relationship with the mother of his children. This was because, as it was put to him, he had “shown no remorse.” A confession made from remorse may indicate that no inducement is operative. It was said to him that the only way to move forward was to admit his involvement. An offer is made to him that if he tells the truth that the gardaí will go and tell her that he has told the truth. He was asked: “Can you do that for your own kids?”

32. It was argued on this appeal on behalf of Barry Doyle that it was sinister that Victoria Gunnery was brought to Limerick on the following day for the purpose of extending her detention. Part of the problem with the challenge to this interview was that a vast number of points were raised. On the papers lodged, it does not appear that the trial judge was specifically asked to rule on this; rather it seems that it was used as a rhetorical device on this appeal. Interview number 11, which took place next day between 09:03 hours and 11:12 hours, centred on statements taken by the gardaí tending to show the origin of the plot to murder a person who was mistaken as the eventual victim. A particular statement was put as to the murder of the intended victim CD and the brutality of the person apparently ordering this; the gang leader AB. Interview 13 took place between 15:02 hours and 16:13 hours. The relevance of Victoria Gunnery arose in this interview as questions were put by the gardaí to Barry Doyle as to why his phone had been off on the relevant night when she apparently tried to telephone or text him and vice-versa. It was put to him that she was not lying about this important fact, especially as she is “sitting in a Garda cell or a Garda interview now.” There is a specific reference to her in the following terms:

You brought her into it. You brought her into it, you know? We don’t want to see her in custody. We don’t want to see anybody up in custody to be quite honest with you. We’ve got other things to be doing. But when you go out and kill a man, an innocent man, who had done nothing, absolutely nothing… everyone is involved. And you brought Vicky right into the centre of it and she’s in the centre of it. How many times did you use her phone to contact [named person associated with the gang leader]?
Shortly afterwards it was put to him that he told her “that you were involved in the murder of Shane Geoghegan”. He indicates: “She has no reason to lie.” He then indicates that he’s not answering any more questions. It is put to him that she is in for the “same offence that you’re in for … the same incident”, and that “she’s being interviewed in relation to that investigation”. Whereas the latter is correct, the former is not since the relevant power of arrest under s. 30 of the Act of 1939 extends to anyone with information about a scheduled offence. Not many make that distinction, however. It is argued on behalf of Barry Doyle that a reference to his statement that he did not “want Vicky involved in this” which is answered both by the gardaí saying “it’s on the tip of your tongue” and asking “are you going to fix it and tell the truth?” indicates a clear inducement. In the course of the same interaction, it must also be remembered, it was said by the gardaí:

Think a bit harder. Think a bit harder and do the right thing Barry. Do the right thing. Don’t keep Vicky away from the young one as long, longer than she has to be. Tell the truth. Tell the truth Barry. For the sake of your child. Do the right thing.
33. Barry Doyle then indicates that he wishes to see his solicitor, who is then contacted. Interview 14 took place between 17:32 hours and 18:35 hours on the same day. In the course of that there is what the prosecution claim is a strong indication, that the arrest of Victoria Gunnery was put into its proper context and, furthermore, that there was no operative inducement. At one point the interviewing gardaí address Barry Doyle and say:

Vicky’s arrest is a small thing. Vicky will be let out when we’ve no reason to detain her, okay? If we’ve no grounds to detain her she’ll be let out. So that’s a small thing; not to you maybe, but it’s a small thing. But this man is dead because you came down here. Do you know what I mean? Look, the man is dead because you come down here. Do you agree with that?
Barry Doyle then indicates that he has nothing more to say that he wants to see his solicitor. He is then urged to tell the truth and he says: “I’ll answer your questions after I speak to my solicitor.” This is important as he then had independent legal advice from the solicitor he had chosen. The interviewing Gardaí make reference to Rosary beads which he was wearing around his neck which apparently he received after his brother’s death. A further reference was also made to Victoria Gunnery:

Well, I tell you, I’ll tell you before, yeah, I’ll tell you, right, Vicky is all right. … The truth has to be told. Vicky is all right okay? Vicky is all right, Vicky is being well looked after, okay, and you’re being well looked after. … She’s being better looked after than you, right? … She’s being looked after, okay? All right, you don’t need to worry.
34. Further interviews, after interview 15, centre on the other persons involved in the conspiracy to kill CD, the intended victim of the crime. It is significant that in those interviews, Barry Doyle makes a definite choice not to name the gang leader AB or anyone else involved in the conspiracy to murder. This choice is made no matter how the question is put. On this appeal, emphasis was laid upon interview 20 which took place on 27th February between 15:44 hours and 18:15 hours. On being questioned, Barry Doyle there indicated that when he was involved in the murder that the gun jammed and that he responded by pulling back the relevant lever and ejecting bullets. He resolutely refuses to name anyone else involved. References are made to the fact that after interview 15, when he confessed, he took off the Rosary beads mentioned in interview 14 as being around his neck and handed them to the interviewing detectives with a view to giving the memento of his deceased brother to the Geoghegan family as a mark of his remorse. He was also asked by the gardaí asked to show his remorse by bringing the other people involved in the murder “to justice”. He indicates that he has exercised “my choice” in relation to admitting to the murder and says: “I’ve took on my own responsibility.” He also says: “My girlfriend was arrested down the station. If I had known she was down there I would have said it that day, on the Tuesday.” Asked if that was “the only reason that you admitted to the murder of Shane Geoghegan”, he said:
I’ve admitted to it because I didn’t … I didn’t want people involved in it that weren’t. That hasn’t, because it’s not Vicky’s fault too that … She has a kid from me, like, you know what I mean? She shouldn’t have been … She shouldn’t have been brought into it, you know what I mean?
35. It should be remembered that the gardaí at all times were strongly making the case that because of his actions in committing the murder, several other innocent people had become involved in the investigation. This included the family of the murder victim and it also included those close to Barry Doyle, namely his ex-girlfriend and their child. In the final analysis, an exercise such as this demonstrates that there was potential evidence whereby a decision could be made that the operative factor in relation to the confession was remorse for what had happened in the context of a build up of evidence revealed piecemeal to Barry Doyle which demonstrated what the gardaí knew. There are also strong indications, as found by Sheehan J, that as a prisoner Barry Doyle exercised an entitlement to speak or to refuse to speak both absolutely, by saying nothing, and by choosing to admit only his own involvement and to shun any statement that might involve his gang leader AB or anyone else involved in the conspiracy to murder. That choice did not waver throughout all of the interviews up to interview 22, after which his detention ended. At any stage, Barry Doyle could have disavowed what he had told the gardaí as to his having committed the murder. There was plenty of opportunity. He chose not to do so. At no stage did Barry Doyle indicate that there was never any interaction in relation to phone calls and texts on the night of the murder with Victoria Gunnery. This is an indication that his statement was not made with a view to shielding her from any potential responsibility or with a view to indicating that she did not have any relevant information. Finally, the gesture in presenting the Rosary beads constitutes another piece of relevant information from which the trial judge could make the decision that he did.

36. An overall analysis demonstrates that there was material upon which the decision of Sheehan J could responsibly be made. On the authorities, therefore, the decision cannot be disturbed. Finally, it might be commented that in the light of the safeguards that now prevail, most especially the availability of all the relevant video recordings, the ultimate test as to whether a statement was made in consequence of an inducement or whether it was “the natural emanation of a rational intellect and free will” has been demonstrated as the appropriate test as to whether at a particular time any particular statement was or was not voluntary.

Legal advice
37. In The People (DPP) v Pringle, it was held by O’Higgins CJ at 94-95 that it was not possible to infer a constitutional right to have a lawyer present during custodial questioning. His judgment noted that while the freedom from self-incrimination contained in the Fifth Amendment of the United States Constitution led the US Supreme Court to infer such a right in Miranda v State of Arizona 384 US 436 (1966), there was no similar provision against self-incrimination in the Irish Constitution and thus it was not possible to infer such a right in this jurisdiction. Lavery v Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390 is another instance where this Court reached the same conclusion. The Court of Criminal Appeal on this appeal rejected an argument on behalf of Barry Doyle that his confession statement was inadmissible by reason of no legal representative being with him during questioning. Thus, following precedent, the Court of Criminal Appeal ruled that an accused is not entitled to the presence of a lawyer during custodial questioning. Counsel for Barry Doyle argue on this appeal that he had not only a right to consult with a solicitor while in custody for questioning but that this right extended to having a lawyer present during each interview. This argument is made in the written submissions for Barry Doyle in the particular context of references to his ex-girlfriend:

The trial Court and the Court of Appeal, failed to recognise the illegality and unfairness involved in conducting interviews in such a manner. Had a solicitor been present he would not have permitted the interviews to be so conducted. In this case, the analysis of the interviews illustrates that the exclusion of the solicitor from the interview process led to the creation of an inequality between the parties, to the creation of inappropriate pressures, a degradation of the right to silence and consequently a manifest unfairness and disregard of his constitutional entitlement to due process of law. [Barry Doyle’s] right to reasonable access to legal advice during the detention stage was not provided for adequately by the nugatory access that the Appellant had to his solicitor from his arrest until interview 15 (the details of which are set out above). Immediately prior to his request to see his solicitor on the 26/2/09, the total time with access to his solicitor was approximately 13 minutes, only nine of which were in person. This corresponded to a period of detention spanning approximately 60 hours with almost 20 hours of interviews. The only detail in respect of the allegations given to the Appellant’s solicitor was the nature of the alleged offence. No pre-interview information or other disclosure was provided to him by the Gardaí such as the nature of the evidence against his client. On the facts of this case the Appellant was denied “reasonable assess” to his solicitor
38. The prosecution argue on this appeal that the right to legal counsel when arrested for questioning is one of reasonable access. Further, they argue that Barry Doyle had precisely that right to legal advice. Counsel for the Director of Public Prosecutions contends that he exercised it without hindrance in the context of his arrest and questioning. Summarising their argument in the written submissions, it is urged that the following is the position:

The appellant had repeated access to his solicitor when and for as long as he liked. Every request for access to his solicitor was complied with. On one occasion an interview proceeded after a short two-minute telephone conversation and in circumstances where the appellant told the interviewing gardaí that he required further time with his solicitor. He did not, however, make any admissions in that interview and efforts were being made to secure the attendance of his solicitor. His solicitor attended shortly afterwards and the appellant had approximately 20 minutes of consultation with the solicitor at that time.
39. Barry Doyle was arrested in the early morning of 24th February 2009, arriving at Bruff Garda Station before 08:00 hours. A solicitor was notified of his arrival shortly after he had been informed of his rights. She telephoned about 2 hours later and there was a brief telephone conversation with Barry Doyle. Another solicitor attended the station one hour later and consulted in person with him for 9 minutes. The following day, in the context of a District Court application to extend his detention, his solicitor was notified. The next day, during interview 13 at 16:04 hours, Barry Doyle requested to again see his solicitor. Interviews were not continued because of difficulties contacting the particular solicitor who was caught up in court cases in Newcastle West. At 17:13 hours, there was a telephone conversation with the solicitor but Barry Doyle hung up after 2 minutes, telling the member in charge of the garda station that he had finished. Interview 14, between 17:32 hours and 18:35 hours, commenced with Barry Doyle acknowledging that he had spoken to his solicitor. No further requests were made. It may be reasonably inferred that the short telephone conversation included a request for the solicitor to attend, since at 18:52 the solicitor arrived at the garda station. According to the custody record, there was a consultation in person for 10 minutes. Then the solicitor came to the interviewing gardaí and the interchange is noted at para. 6 hereof. There followed another consultation in person for 10 minutes. This was briefly interrupted for another conversation between the gardaí and the solicitor and the consultation then resumed and continued over 4 minutes or so. At the commencement of interview 15, Barry Doyle admitted that he had been in the front seat of the Renault Espace car suspected to be linked to the murder. The solicitor then called on the telephone and the interview was interrupted while Barry Doyle spoke to the solicitor in the privacy of a room in the station over 3 minutes.
40. As noted above, for decades it has been part of the rights of a person arrested on suspicion of having committed a crime that he or she has access to legal advice; In re the Emergency Powers Bill 1976. That right has been regarded as a counterbalance to a situation where the arrest of a person, constitutionally presumed to be innocent, puts the weight of State resources against the vulnerability of the arrested person. That right applies from the moment of arrest. It applies upon arrest and it applies while a person is being brought to a garda station and it applies before they are handed in the station the standard notice as to their rights. Heretofore, the law has been that admissions made during that period of unlawful detention were inadmissible in evidence; The People (DPP) v. Healy [1990] 2 IR 73, confirming the decision in Madden, and noting that another person could request legal advice for a detained person and that as soon as the solicitor arrived the arrested person had a right to be told of their arrival immediately. No comment is made on the current situation in the light of this Courts decisions in The People (DPP) v. Cash [2010] IR 609 and The People (DPP) v JC [2015] IESC 31. Once the absence of legal advice is remedied, the detention becomes lawful again and does not render any subsequent admission unlawful, provided that any such subsequent admission is not obtained on foot of information given during the period of time in which the rights of the accused were breached; The People (DPP) v. O’Brien [2005] 2 IR 206. Since the decision of the Court of Criminal Appeal in Madden, this entitlement to legal advice has been described as that of a right of reasonable access to a solicitor. What is reasonable must depend on the circumstances, the nature of the case and the nature of any power being exercised by the investigating gardaí. A situation of questioning in the ordinary way may be different to the invocation of a power from which an inference may be drawn in the context of a refusal to answer. To deny access to legal advice would render the detention illegal. What was reasonable, at one time, was to be construed by having regard to all the circumstances, in particular the time at which access was requested and the availability of the legal advisor or advisors sought. The courts were then also of the view that there was no obligation to provide legal advice when no such request was made. In order to exercise certain rights – the right of access to a solicitor clearly being one – awareness of those rights is necessary. The notice of rights under the Custody Regulations, however, spells out that right. Even still, the right does not just apply from then. It applies by reason of the arrest for investigative purposes. Hence, it is operative once there is such an arrest. A notice of rights is required to be read to a person upon arrival in a garda station. None of the above-mentioned cases dealt with the situation which sometimes occurs where, instead of arrest, a person walks into a garda station with the express purpose of confessing to a crime. Such a person would not necessarily be an involuntary arrestee subject to police questioning. Indeed in Miranda v State of Arizona 384 U.S. 436 at 478 (1966), the majority decision given by Warren CJ indicates that there “is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime”. There, a distinction was drawn between voluntary statements, and volunteered statements. The validity and nature of such distinction is not for decision today. That, in any event, might, if acknowledged in due course, be a rare exception to the application of the right from the moment of arrest.

41. In The People (Director of Public Prosecutions) v Buck [2002] 2 IR 268, the issue was, once a request for legal advice is made by a detained person, what degree of effort is required by the gardaí to make such advice available. Constitutional standards of fairness would require the exclusion of a statement of admission unless the gardaí make genuine efforts to comply with a request for legal counsel. Keane J, speaking for the Court of Criminal Appeal, stated at 281:

Assuming that, in the present case, the trial judge was entitled to conclude that the arrest and detention of the defendant was lawful and did not constitute a mala fide attempt to ensure that he was without legal advice while he was being interrogated and that the Gardaí made bona fide attempts to secure the presence of a solicitor when the defendant requested them to do so, it would follow that there was in this case no deliberate and conscious breach of his constitutional right of reasonable access to a solicitor and, on that assumption, his detention remained lawful. It would also seem to me that, where a person being detained under a statutory provision asks for a solicitor to be present and the Gardaí made bona fide attempts to comply with that request, the admissibility of any incriminating statement made by the person concerned before the arrival of the solicitor should be decided by the trial judge as a matter of discretion in the light of the common law principles to which I have referred, based on considerations of fairness to the accused and public policy.
42. In The People (DPP) v Gormley [2009] IECCA 86, the accused was arrested on Sunday but efforts to have a solicitor attend questioning proved fruitless. The Court of Criminal Appeal held that once genuine efforts were made, there was no need to hold up the commencement of interviews. At that time, there was no basis of ‘awaiting a solicitor’ in the Custody Regulations for suspending the duration of a lawful arrest for questioning. Finnegan J stated:

Where the detained person requests access to a solicitor the Gardaí are under a duty to make bona fide attempts to give effect to the request and a failure to do so will constitute a breach of the suspect’s constitutional right of access and render his detention unlawful. However, so long as reasonable efforts are being made to contact the solicitor there is no prohibition on the Gardaí proceeding to question him: The People (Director of Public Prosecutions) v Buck. Difficulties can, of course, arise where arrest is effected over a weekend when access to a solicitor may be difficult to arrange. In the present case there can be no suggestion having regard to the time at which the offence was committed and the arrest made, that there was any deliberate attempt to make it difficult for the applicant to have access to a solicitor. Indeed in this case, having regard to the circumstance that it was a Sunday afternoon, the Gardaí used diligence and resourcefulness in locating the solicitor nominated by the applicant.
43. That and another case were joined in the appeal to this Court, The People (DPP) v Gormley, The People (DPP) v White [2014] IESC 17. The common issue was whether the gardaí were entitled to continue the questioning of a detainee or to take forensic samples from them during the period of time after a request for legal advice had been made, but before the solicitor in question had arrived at the garda station. It is only two years since the judgment of Clarke J in that case, traversing the European Court of Human Rights and other decisions internationally, Hardiman J having given a separate judgment. It is thus pointless to reiterate that analysis. What is of importance is that there is no decision of the European Court of Human Rights stating that there must be a solicitor in the room during the time when a person is being questioned by police in relation to a crime. There is ample authority to support the requirement for legal advice from the time of arrest for questioning; Salduz v Turkey (2008) 49 EHRR 421, Panovits v Cyprus (Application 4268/04 (First Section) 11th December 2008), Murray v United Kingdom (1996) 22 EHRR 29. This right of an arrested person to legal advice, as noted in Gormley and White at para. 9.14 of the judgment of Clarke J, is of “high legal value” and any exceptions to it are to be recognised only in wholly exceptional circumstances, such as ones involving a pressing and compelling need to protect other major constitutional rights such as that of a victim in peril. Exceptions related to transport or to the availability of an appropriate independent legal advisor are not acknowledged. It is an aspect of fair procedures, as Griffin J noted in Shaw, and as earlier authorities referenced arrest as “the beginning of imprisonment” a failure to render legal assistance would breach the pre-trial safeguards inherent in Article 38.1 of the Constitution. In Cadder v HM Advocate [2010] UKSC 43, the issue was the Scottish procedure of questioning upon arrest without the benefit of any legal advice. The right to be respected, according to the Supreme Court of the United Kingdom, was of advice. Hence, “unless in the particular circumstances of the case there are compelling reasons for restricting the right”, a person being questioned under arrest has the right of “access to advice from a lawyer before he is subjected to police questioning.” This does not apply to questions put outside that context, for instance to pre-detention investigations; Ambrose v HM Advocate [2011] UKSC 43, and see the judgment of Clarke J in the Gormley and White case at paragraph 6.0 onwards.

44. There, this Court did not assert that there was a right to have a solicitor present during questioning as this did not arise on the facts of the case, though the Court did note that such a right exists in the decisions of the United States Supreme Court; see Clarke J at 9.10. If there had been the breach of such a right, then in accordance with Madden, the very nature of the legality of the detention would change. The fundamental requirement of basic fairness applies from the time of arrest; per Griffin J in Shaw at 61, which was cited by Sheehan J in his ruling on admissibility quoted above at paragraph 7. The investigative stage must be distinguished from the process after arrest where a person is deprived of freedom in a context which is “intimately connected with a potential criminal trial”; Gormley and White per Clarke J. at paragraph 8.8. Therefore, it does not necessarily follow that the rights which are typical of and fundamental to the fairness of a criminal trial under Article 38.1 of the Constitution, most especially that of representation by an advocate, apply. Investigation is to be distinguished from questioning under arrest. Arrest and questioning are different to the process of trial. While there is a fundamental requirement of basic fairness which applies from the time of arrest, that requirement of fairness may be met by safeguards other than the presence of a legally trained, or semi-trained, person at police interviews. The taking of samples, which of their nature are static in nature and uninfluenced by the mental state of the arrested person, is again different and does not require advice to be given from a lawyer prior to these being taken; Clarke J at paragraph 8.8 in Gormley and White and see Saunders v United Kingdom (1996) 23 EHRR 313. Regulation 18 of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 provides for the voluntary submission of fingerprints and as to intimate body samples though not non-intimate samples; see section 2 of the Criminal Justice (Forensic Evidence) Act 1990. Conditions of custody must, of course, be reasonable otherwise, as Hardiman J noted at para. 7 of his judgment in Gormley and White, the result may be to undermine the resolution of an arrested person to wait for legal advice. Hardiman J also stated at paragraph 10 of the same judgment that while in that case there had only been asserted the right to have a lawyer’s advice before questioning begins, it would not be long before someone else asserted a right to legal advice in custody on a broader basis. That is the assertion here. Partly, that assertion is based on current practice since Gormley and White was decided. That practice arose from an interpretation of that case by the Director of Public Prosecutions whereby a solicitor is admitted to interviews with an accused. A practice is not, however, of assistance in interpreting the interplay of the rights of victims to fairly access the criminal justice system, the duty of the Executive to investigate crime and the right of the accused to such fairness of treatment as supports the elimination of wrongful conviction.

45. In the United States of America, the Supreme Court decision in Miranda v State of Arizona requires the presence of a lawyer prior to and during questioning. Again, the relevant decisions and subsequent application of Miranda are noted in Clarke J’s judgment in Gormley and White. That US decision has been the main authority urged by counsel for Barry Doyle. As a persuasive authority it carries weight but it is not to be unthinkingly followed. The circumstances, the background and the relevant safeguards in that place in the US at that time and those now applying in this jurisdiction are entirely different.

46. It is now 50 years since that decision. Central to its reasoning was the determination of the Supreme Court not to allow the 5th Amendment rights against self-incrimination to be undermined by police brutality or their substitution by psychological terrorising or 3rd degree methods of interrogation. Several times, the judgment of the majority given by Warren CJ references the grip which the police have over the mind of a person upon arresting an individual and bringing him to a state of non-communication with the outside world within the secrecy of an interrogation room; a state from which he can have no resort to the reassuring presence of family or to proper advice from a lawyer as to his rights. It is clear from reading the entire text of the Miranda judgement that what is at issue is the inability of the courts to discover the nature of the methods used in the extraction of a confession and that this arose from the secretive nature of interrogation, the lack of any balance against whatever lies might be told by the police, their expertise in undermining any wavering determination by an arrestee against incriminating himself, the widespread use of trickery and methods of questioning which were inherently designed to affirm police suspicions as opposed to seeking the truth. Modern psychological research indicates the inherent dangers of such approach, whereby completely innocent people can, through suggestibility and depending upon their individual levels of suggestibility, be led to accept that they committed a crime the details of which have been conveniently supplied over the course of an interrogation with a view to being regurgitated in a confession statement; Gisli Gudjonsson – The Psychology of Interrogations and Confessions: A Handbook (London, 2003), see particularly chapters 1, 3, 5, 6, 8, 9 and 18.

47. Warren CJ in Miranda speaks of his concern with police brutality and references an important 1961 report affirming its continuing presence. He states that brutality and coercion while “undoubtedly the exception now… they are sufficiently widespread to be the object of concern.” He stressed that the modern practice of “in-custody interrogation is psychologically rather than physically oriented.” Quoting from then current manuals for the instruction of police, he instances instructions designed to create an atmosphere which “suggests the invincibility of the forces of the law”, positing the “guilt of the subject … as a fact”, undermining those under interrogation by reference to the unhappy childhood or unsuccessful love life of the suspect, casting blame “on the victim or on society”, as being “tactics … designed to put the subject in a psychological state where his story is but an elaboration of what the police already know – that he is guilty.” Other techniques instanced or quoted by him include the creation of “an oppressive atmosphere of dogged persistence”; “interrogating steadily and without relent, leaving the subject no prospect of surcease”; continuing an interrogation “for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination” and the Mutt and Jeff act of good-cop bad-cop. Another technique from that era included placing a suspect on a line-up in relation to a variety of unconnected offences and making a show of fictitious witnesses identifying him for a host of random crimes, so that it becomes a relief to confess to the crime for which he has been arrested. In each of the joined cases in Miranda, Warren CJ refers to each of the defendants as having been “thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures.” In none of the cases, he says, “did the officers undertake to afford appropriate safeguards at the outset of the interrogation to ensure that the statements were truly the product of free choice.”

48. In contrast to the situation described are the safeguards applicable from the moment of arrest in this jurisdiction that have been closely and carefully constructed over decades of experience. In contract too is the direct applicability of such rights. The most fundamental problem in adjudicating the admissibility and reliability of a confession to police is that interrogations used to take place in secrecy. That is no longer so. This completely undermines the rationale put forward by counsel for Barry Doyle whereby this Court is asked to unthinkingly apply a ruling backed by circumstances which existed two generations ago and designed to lance a poisoned boil of secret compulsion which is utterly foreign to modern police methods. Transparency is the hallmark of the exercise which Sheehan J and Carney J were able to engage in by viewing all of the relevant videos, amounting to over 20 hours, and which cast interviewing techniques under a form of scrutiny which is close to being as contemporary to the events as technology allows. Fundamental to the rationale of the majority judgment in Miranda is the absence in 1966 America of precisely what has been achieved through an accretion of protections in the Ireland of today. Warren CJ rationalised his decision thus:

The presence of counsel at the interrogation may serve several significant subsidiary functions, as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present, the likelihood that the police will practice coercion is reduced, and, if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police, and that the statement is rightly reported by the prosecution at trial.
49. This authority is cogently reasoned and is no doubt persuasive as to its particular time and context. However, the factual, rights-based and legal context is different in this case. It must also be remembered that there is a practice in this jurisdiction of informing people as to their rights both orally and in writing, having a custody officer whose duty it is to ensure that questioning is carried on fairly and for a reasonable time only, not at night unless the suspect requests this, and that an arrested person has access to legal advice before any questioning begins. But, those rights to be meaningful must be consistently applied. Otherwise, the State might find itself in a Miranda environment. They were applied here. Any issues as to brutality, psychological pressure, the crafty planting through suggestive questioning of every detail of the crime prior to any admission in the mind of the arrestee so that the confession statement becomes apparently trustworthy, unfairness or the coercion of the suggestible are visible and susceptible to judicial scrutiny as a result of the presence of video-recording in interview rooms.

50. It cannot therefore be concluded that it is a necessary part of the right to a trial in due course of law under Article 38.1 of the Constitution that a lawyer should be present for the interviewing of a suspect in garda custody.

Damache point
51. It is also argued on behalf of Barry Doyle that the arrest of a suspect at his home in circumstances where the search warrant used to gain entry was legally invalid results in the arrested person’s custody becoming unlawful and any resulting evidence inadmissible. Any such submission, however, has to be nuanced in relation to the decision of this Court in The People (DPP) v. JC [2015] IESC 31. Exploring, for the moment, the basis of the point without reference to any discretion as to the admission of evidence, the following is relevant. Barry Doyle was arrested at his residence in Limerick for the murder of Shane Geoghegan on foot of a warrant issued under s. 29(1) of the Offences Against the State Act 1939, as inserted by section 5 of the Criminal Law Act 1976. At that time, this enabled a Superintendent of An Garda Síochána to issue a legally enforceable order to search premises where there was a suspicion, which general law requires to be reasonably based, that evidence in relation to the commission of a scheduled offence, in this case the possession of firearms, might be found there. This search warrant had been signed by Superintendent Mahon who was in overall charge of the investigation. On the morning of the search and arrest, the gardaí were conducting a series of searches in relation to the investigation, one of which was Barry Doyle’s dwelling. In the absence of any evidence on this point, as of this time it would be difficult to infer that the gardaí acted otherwise than in good faith, believing that the warrant they had was valid and effective. In prior cases of garda arrest of suspects in their own home, what had been of importance had been the nature of the entry thereto: was there consent, for instance if the suspect invited them in, or was there a lack of protest, which might not amount to consent. In the Gormley decision, the Court of Appeal held that for gardaí to go to the accused’s home and to request entry, having asked to “come in and speak to you for a few minutes” to which the answer was “Come in Séamus”, amounted to an entry on consent and that the resulting arrest was lawful. No issue was raised as to the lawfulness or otherwise of the entry at trial in this case. We do not know if the gardaí had the chance to consider knocking on the door and requesting entry after identifying themselves. If that happened, or not, the court of trial was not informed. It is impossible, thus, to predict both the nature of the evidence and the result of any argument. Director of Public Prosecutions v Gaffney [1987] IR 173 is authority for the proposition that in the absence of consent, an entry by gardaí for the purpose of arrest may be a violation of Article 40.5 of the Constitution. There the gardaí had been refused entry twice to a house and on the particular occasion. It was held that there could be no presumption that a lack of an express refusal amounted to an invitation. In view of the fact that the gardaí had twice been refused entry there could be no presumption that there was an invitation to enter either as a matter of fact or law merely because there was no express refusal. Walsh J held at 180 that in the particular circumstances, “the absence of an express refusal or of an express order to leave cannot be construed as an implied invitation or permission to enter”.

52. One can have no idea what the situation might have been here. At best, it is speculation. At trial, the legitimacy of the warrant was not challenged by counsel for Barry Doyle. The circumstances of entry into the dwelling of Barry Doyle were not explored beyond the bare fact of entry on a warrant recited. The trial court had proceeded on the basis that the arrest and detention were lawful, as no issue with the warrant was raised at trial. This had been expressly stated by Tom O’Connell SC as lead counsel for the prosecution, to which no demur had been taken by counsel for Barry Doyle either at that point or at any stage in the evidence. The decision of this Court in DPP v Damache [2012] 2 IR 266 was delivered on 23rd February 2012, a week after the trial of Barry Doyle had concluded. The result of Damache was a declaration that s. 29(1) of the Offences Against the State Act 1939 was unconstitutional. The point now put at issue was thereafter pleaded by Barry Doyle, in the absence of any exploration of evidence, in the notice of appeal to the Court of Criminal Appeal. The Damache case concerned a superintendent who signed a warrant to search a person’s home. Denham J referred to the action of issuing a search warrant as “an administrative act” but one which “must be exercised judicially”. As appears also to be the situation here in this case, the issuing officer was not independent of the investigation. Following that decision, legislation has made the issuing of such warrants a function of the judiciary. On the appeal to the Court of Appeal in this case, [2015] IECA 109, the issue of the lawfulness of the search warrant was raised. The Court of Appeal rejected the claim that the search was unconstitutional, following the decision in The People (DPP) v Patchell [2014] IECCA 6. The Court of Criminal Appeal held that Barry Doyle had not raised the issue of unlawfulness of his arrest and detention during the course of his trial and as a result was unable to do so there. The Court did not refer to the issue raised in Damache but rather focused on the fact that the issue was not raised during trial.

53. On this appeal, the prosecution rely on the judgment of McKechnie J in Patchell. Counsel for the prosecution also claim that, should the arrest and detention of Barry Doyle be found unconstitutional, this would not render the later admissions inadmissible as they would come under the rule of DPP v JC. In the Patchell case, the appellant had made an application to amend his notice of appeal by adding the additional ground which would have allowed him to rely on the decision in Damache. This was also an arrest following entry under the same section of the Act of 1939. It was argued that the warrant issued by the superintendent was unconstitutional and, as such, so was the arrest, detention and subsequent admissions of the suspect while in garda custody; similar to the arguments put forth by Barry Doyle. The Court of Criminal Appeal refused the application on the grounds that the issue had not been previously raised in any way and that the accused at trial had engaged in conduct that disentitled him to raise the issue, that is a concession made during the course of his trial to the effect that no issue was being taken with the validity of the warrant or the lawfulness of the arrest. Giving judgment for the Court of Criminal Appeal, McKechnie J stated that:

…where an appellant, during the currency of his trial, adopts a certain course of action or engages in a particular course of conduct or otherwise evidences a clear intention of pursuing a definite strategy, and does so, he will not thereafter be permitted to resile from such a position and, for self advantage, to act in a manner entirely inconsistent with his previous actions.
54. During the course of Barry Doyle’s trial it is clear that he maintained, or at the very least acquiesced in, the position that the warrant was lawful, as were the actions that followed; namely his arrest, detention and subsequent admissions to the gardaí. This constituted an acknowledgment that the actions of the gardaí were, at the time, valid. To entertain the argument that the warrant, arrest, detention and admissions are now unlawful would be unjust. While traditionally there is no confession and avoidance at criminal trial as to the elements of an offence, this has been changed by legislation whereby admissions can formally or informally be made by the defence as to particular witness statements or as to the admission of particular facts; see particularly sections 21 and 22 of the Criminal Justice Act 1984. Apart from that, it must also be clearly acknowledged there is a reality to the complexity of modern trials requiring the participation of both prosecution and defence. It had always been the case over centuries that if, for instance, there had been an issue as to the admissibility of the results of a search that, at the least, counsel for the defence would notify the prosecution that an issue will arise so that there would be no mention of such evidence in an opening statement to the jury. Similarly, that principle must also apply with any question as to the legality of detention or as to the voluntariness of a confession. Perhaps it is enough for counsel for the defence to state that it is required that the prosecution prove the legality of a search or of an arrest. Then, it is at least clear that some kind of a point arises. Argument subsequent to evidence in the absence of the jury would clearly elucidate what is being driven at. That kind of elucidation of a point is the least that a fair trial entails. Without a point being raised and argued to by counsel for the accused, there could be no sensible basis for a judicial ruling. One might also then ask: what is being appealed? And on what basis?

55. To enable points to be left in abeyance for possible consideration on appeal would be to undermine the fairness of procedures that a criminal trial encompasses under Article 38.1 of the Constitution. As stated by Kearns J in The People (DPP) v Cronin (No 2) [2006] 4 IR 329 at 346, an appellate court is concerned “with a review of the trial and the rulings made therein and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner.” In The People (DPP) v Cunningham [2013] 2 IR 631 and The People (DPP) v Kavanagh [2012] IECCA 65, the Court of Criminal Appeal set out the limited legal circumstances in which an appeal under the Damache ruling may be allowed; that the matter was raised at trial and the appellant has taken no steps to suggest he has acquiesced or waived the point, or the proceedings against the defendant have not yet been finalised. On this appeal by Barry Doyle, it is evident that he does not meet any of these conditions. The issue was not raised before the trial court and the proceedings have been finalised against him. The point has therefore passed. There must be finality to a trial and its conclusion; A v Governor of Arbour Hill Prison [2006] 4 IR 88.
Result
56. The final outcome is that there is no basis for overturning this conviction.
JUDGMENT of Ms. Justice O’Malley delivered the 18th day of January 2017.

Introduction
1. The facts of this case are fully set out in the judgments of MacMenamin and Charleton JJ. and will not be repeated here save where necessary. I agree with their conclusion as to the appropriate result in this appeal, and with their views as to the correct approach to the argument based on Damache v. The Director of Public Prosecutions [2012] IESC 11, [2012] 2 I.R. 266. However, I differ somewhat from them in relation to the question of the implications of the right to access to legal advice, which in this case is closely related to the question whether the admissions made by the appellant were the product of an inducement or threat. On the evidence I agree with MacMenamin J. that the appellant has failed to establish any causative link between his admissions and the alleged breach of a putative constitutional right to have a solicitor present during interview. In my view that is sufficient to dispose of the argument in this case, although I consider that the issue may properly arise for consideration in another case.

2. The appellant relies on the decision of this Court in The People (Director of Public Prosecutions) v. Gormley and The People (Director of Public Prosecutions) v. White [2014] IESC 17, [2014] 2 I.R. 591 for the proposition that the right to a trial in due course of law, as protected by Article 38.1 of the Constitution, requires that a person in Garda custody be given reasonable access to legal advice. It is submitted that in the circumstances of this case his access to a solicitor was, as a matter of fact, so restricted and perfunctory that it did not amount to “reasonable access”. It is further argued that the principle established in Gormley, that there is a constitutional right to have access to legal advice prior to the commencement of questioning, should be extended to encompass an explicit right to have a solicitor present during the questioning.

3. The argument is that, because the appellant’s solicitor was not present at the interviews, there was an unfair inequality between the suspect and the gardaí. The right to reasonable access to legal advice is said to have at its heart the protection of the privilege against self-incrimination. It is submitted that, in the absence of a solicitor during the interviews, the interrogators were free to raise matters of little or no relevance to the investigation in order to pressurise the appellant and to undermine his right to silence. Looking at the evidence in the case, it is submitted that there were many remarks made by gardaí that “would not have been permitted” if a solicitor had been there. The appellant maintains that certain of these remarks amounted to threats or inducements calculated to extract a confession from him. There is a further issue in this respect as to whether the effect of the threats or inducements (if they are found to be such) could properly be considered to have “dissipated” or “worn off” by the time of the making of the admissions relied upon by the prosecution.

4. The relevance of the matters in question turns, for the most part, on the situation of Ms. Victoria Gunnery. Ms. Gunnery was described as the appellant’s “ex girlfriend” and was the mother of his youngest child. This child was approximately one year old at the time. The appellant’s representatives have laid stress upon the relationship between Ms. Gunnery and the appellant, while the prosecution have been anxious to downplay its strength at the relevant time. The trial judge found that there was in fact a continuing relationship. It is in my view unnecessary to consider further the evidence in relation to the matter since one of the central features of the case is that the appellant made an offer, through his solicitor, to confess to murder in return for Ms. Gunnery’s release from garda custody.

The arrest and detention of Ms. Gunnery

5. At around the same time as the arrest of the appellant in the early hours of the 24th February, 2009, Ms. Gunnery was arrested in Dublin pursuant to the power of arrest conferred by s. 30 of the Offences Against the State Act, 1939 in respect of persons who are suspected of being in possession of information relating to the commission or intended commission of an offence under the Act or a scheduled offence. It is in my view important to point out that this is not the same as arrest for the offence of withholding information, which is a statutory offence created by s. 9 of the Offences Against the State (Amendment) Act, 1998. Thus, a person in Ms. Gunnery’s position is not arrested on foot of suspicion of having committed an offence, but on the basis that she or he is believed to have information relating to an offence.

6. Neither the Act of 1939 nor the subsequent amendments dealing with the s. 30 regime, including those dealing with the procedures for the extension of detention, make any express distinction between the two types of arrest. One difficulty that arises is that there is no express limitation on the length of detention permitted for a person in Ms. Gunnery’s position by reference to the progress of an investigation, as there is in respect of the suspect held in extended detention. There appears to be no decision of the Superior Courts dealing with any issue arising from an arrest for possession of information. It is worth noting that the Committee that reviewed the Offences Against the State Acts (Dublin, 2002) considered that the power to arrest on this ground was unconstitutional and probably incompatible with the European Convention on Human Rights. However, for the purposes of this case it must be assumed that the power is valid and permitted by the Constitution.

7. It is accepted by the appellant that Ms. Gunnery’s arrest and detention were legitimate. From what can be gleaned from the portions of transcript made available to the Court, it appears that she was undoubtedly in possession of relevant information. Ultimately she gave evidence in the trial that the appellant had used her phone for purposes related to the murder; that he had said things to her that could be construed as amounting to admissions of his role in it; and that she was present at a conversation, after the murder, between the appellant and the person alleged to have instigated it.

8. On the morning of the 26th February, 2009, Ms. Gunnery was brought to Limerick where an extension of her detention was granted in the District Court, pursuant to the relevant statutory provision. The appellant argues that it was unnecessary to bring her to Limerick for that purpose and asks the Court to infer that the gardaí intended to bring about an improper “confrontation” between Ms. Gunnery and the appellant, with a view to pressurising him. As no such meeting took place, and as there is no evidence to support the proposition that it was planned, I do not propose to discuss the issue further. The basis for the extension order appears to have been evidence adduced in the District Court by the gardaí that she had, during the previous evening, given certain information which they wanted to investigate further.
The arrest and detention of the appellant
9. Also on the 24th February, 2009, the appellant was arrested in Limerick at 7.15 a.m. under the provisions of s.4(3) of the Criminal Law Act, 1997, on suspicion of having committed the arrestable offence of murder with a firearm. He was brought to Bruff Garda Station, arriving there at 7.40 a.m. Shortly afterwards he was detained pursuant to the provisions of s. 50 of the Criminal Justice Act, 2007, which permits an initial period of detention of six hours but may involve extended detention for up to seven days. He was given the information required by the custody regulations and a notice of his rights which, of course, included reference to his right to see a solicitor. It was noted in the custody record that there was no evidence of drugs or alcohol and no visible sign of injury. The appellant said that he was not suffering from any illness and was not on any medication.

10. At 8.00 a.m. the appellant requested that Ms. Sarah Ryan, solicitor, be contacted on his behalf. Contact was made immediately and Ms. Ryan said that she would call back in half an hour. The appellant was then placed in a cell.

11. At 9.55 a.m. the appellant received a telephone call from Ms. Ryan and spoke with her for three minutes. He then had his photograph, fingerprints and buccal swabs taken. An interview commenced at 10.08 a.m. At 11:00 a.m. a Mr. Michael O’Donnell, solicitor, arrived at the station on behalf of Ms. Ryan. The interview was terminated and the appellant consulted with Mr. O’Donnell for about nine minutes. No admissions had been made at that stage.

12. The appellant was questioned extensively over the first two days of his detention, during which time he made no admissions. The evidence was that he was checked regularly by the member in charge of the station and that, while he had occasional requests, he had no complaints. His detention was extended from time to time in accordance with the legislation and nothing turns on that. He saw, or spoke on the phone to, his solicitor for what were undoubtedly short periods of time. It is common case that the total time involved was about thirteen minutes before the evening of the 26th February, 2009. However, it is also agreed that, with one exception dealt with below, he was given access to his solicitor when he requested it. There is no suggestion that he wanted the consultations to continue for longer periods or that he was pressurised to curtail them.

13. At the tenth interview, which took place late in the evening of the 25th February, 2009, the appellant was informed by the gardaí that Ms. Gunnery was under arrest. Certain particulars were put to him as to what she had been telling the gardaí who were questioning her. At various times during this and succeeding interviews reference was made by the gardaí to her position. The complaints now made in respect of what they said focus mainly on the following suggestions, which are described by his counsel as “calculated references to his relationship and responsibilities”:

• That Ms. Gunnery had done nothing wrong but was being detained and suffering hardship because of the appellant;

• That she was in custody because he would not confess, and that she would be released when there was no further reason to detain her;

• That she was having no visitors (this was not correct);

• That their child had been deprived of her mother because of him; and

• That his failure to tell the truth was causing and would continue to cause difficulties for his family.

14. It is also complained that the gardaí commented adversely on his invocation of the right to silence.

15. The appellant made no admissions during any of these interviews. It is accepted by counsel that it was appropriate for the gardaí to put to the appellant the information that had been given by Ms. Gunnery, and that this would in itself have conveyed to him the fact that she was in custody, but it is submitted that in addition they set about deliberate psychological bullying by referring to her conditions of detention.

16. At about 5.15 p.m. on the 26th February the appellant had a two minute consultation with Mr. O’Donnell on the telephone. Interview No. 14 commenced at 5.32 p.m. In the initial stages the gardaí were asking about the number of the mobile phone that the appellant had had at the time of the murder, and whether Ms. Gunnery would have contacted him on that number. The appellant said that he wanted to speak to his solicitor. The initial response of the gardaí was to remind him that he had just spoken to Mr. O’Donnell, to which the appellant replied that he had not spoken to him “properly”. His request was repeated later in the interview, when the gardaí told him that the solicitor was on his way. The interview continued, and reference was again made by the gardaí to the position of Ms. Gunnery and the child. The appellant did not make any admissions but at a certain stage said that he would answer questions after he had spoken to his solicitor. The interview ended at 6.35 p.m.

17. It is contended on behalf of the appellant that the gardaí should not have continued questioning him after the request to see Mr. O’Donnell, and that the statement by the appellant that he would answer questions when he had seen him demonstrated that he was “irretrievably prejudiced”.

18. Shortly after the end of that interview the appellant’s solicitor Mr. O’Donnell came to the station to speak to his client. There was a consultation for what may have been 10 minutes. At that point the solicitor asked to speak “off the record” to Detective Sergeant Philips and Detective Garda Hanley. A conversation then took place between Mr. O’Donnell and the gardaí in the interview room. A memorandum of this conversation was written up later that night by the detective garda. It was stressed in evidence by the gardaí that this document was an aide memoire rather than a verbatim record of questions and answers. However, it is important to note that it has not been queried or challenged by the defence in any respect. The note reads in full as follows:

“After a consultation M O’D requested to speak to members who went to interview room. O’Donnell started by saying conversation was off record. And did not want a memo to be taken of same, stated that Barry Doyle would admit to killing Shane Geoghegan if his girlfriend, Victoria Gunnery, was released. I stated that there was no way this was possible, we wanted him to tell the truth about what happened, and once he told the truth about what had happened we would have no reason to detain Victoria Gunnery any further. M O’D stated that he would only answer one question, that he had committed the murder and no more. I said this would not suffice, as we had to know he was telling the truth and not just saying it to get VG released. M O’D said ‘sure cant you just arrest her again?’ MP said that Barry Doyle had to admit what he had done in an interview and that his girlfriend would not be released before any interview. M O’D said he would go back to BD and tell him this. There was then a further consultation in the cell. After approximately 10 minutes, returned to interview room, M O’D again said that B D would not admit to anything prior to his girlfriend being released. I said to M O’D ‘that is an inducement’ and there was no possible way that would happen, that any admission would not be upheld in any court if that were to happen. M O’D said ‘sure wouldn’t you have it on the cameras?’ M P said that didn’t matter. MO’D said ‘well he will not admit to it. I have told him to say nothing, to get you to do the work.’ I again said to M O’D that B D had to tell the truth about what had happened. M O’D said ‘I think you have a bit more work to do. M O’D again had legal consultation with prisoner. It lasted 4 – 5 minutes. MO’D left station.”
19. In cross-examination Detective Sergeant Phillips said that the phrase “once he told the truth about what had happened we would have no reason to detain Victoria Gunnery any further” required clarification. He said that what the gardaí were doing was explaining the reality of the situation to Mr. O’Donnell. There was no way that they could agree to his proposal. However, Ms. Gunnery had been arrested for having information that she had been given by the appellant, and the appellant knew that. If he told the truth about his own actions to gardaí, there was “a very strong possibility” that there would be no grounds to detain her any further. It was stressed in evidence that the gardaí were not asking Mr. O’Donnell to pass anything on to his client.
20. When asked about the line

“I said that Barry Doyle had to admit to what he had done in an interview and that his girlfriend would not be released before any interview”
D/Sergeant Phillips said that he had no knowledge of Ms. Gunnery’s detention; that she could, for all he knew, have already been released at that stage and that what was intended to be conveyed was that she would not be released as part of the proposed arrangement. Again, he emphasised that the memo was not a verbatim account of the conversation.
21. D/Garda Hanley agreed with the proposition that he and D/Sergeant Phillips were saying that it was not possible that Ms. Gunnery could be released before the appellant made a statement; but that if he made a statement and told the truth there would be no reason to detain her. He further agreed that he needed to be satisfied that the appellant was telling the truth, and not making admissions simply to bring about Ms. Gunnery’s release.

22. The next interview (No.15) started at 7.42 p.m. After about five minutes it was interrupted so that the appellant could take a phone call from Mr. O’Donnell. The interview resumed at 7.51 p.m. and at this stage the appellant admitted to having carried out the murder. After the conclusion of the interview, the appellant gave the gardaí a set of rosary beads that he had been wearing around his neck, with a request that they be given to the mother of Shane Geoghegan.

23. Victoria Gunnery was released from custody at 9:00 p.m. that evening. The evidence of Detective Inspector Crowe was that by that stage she had given a truthful and accurate account of her knowledge of the murder. After her release she returned to the garda station and made a witness statement.

24. In subsequent interviews the appellant continued to admit his own guilt and added some confirmatory details. He did not provide any information about the involvement of any other person.
The voir dire
25. A voir dire was held on the admissibility of the inculpatory statements. For this purpose the trial judge heard the evidence of eight garda witnesses and viewed over 20 hours of videos showing the first 16 interviews.

26. The appellant did not give evidence himself and Mr. O’Donnell was not called on his behalf. In submissions, counsel made the case for exclusion on three grounds including the contention that the admissions were involuntary as being the product of threats, inducements and oppression. It was submitted that the threat and inducement were the two sides of the same coin – the inducement being that Ms. Gunnery would be released and the threat being that her detention would be continued.

27. The trial judge found that there had been no breach of the right of access to a solicitor. He further ruled that there had been no oppression and that the interviews had been conducted professionally and courteously. His own view was that the admissions were made because the gardaí had succeeded, after a “careful, patient and structured” interview process, in appealing to the appellant’s humanity. The appellant had made the admissions because he chose to do so.

28. The trial judge did not make an express finding as to whether the words spoken by the gardaí about Ms. Gunnery’s situation were capable of amounting to an inducement or threat. His first comment on this aspect was that the remarks about her had to be viewed in the overall context of all that had taken place. This included things that the appellant had already said about family matters and his own situation. It also included the gradual unfolding to him of the evidence in the possession of the gardaí and their numerous appeals to him to tell the truth. The trial judge continued:

“Notwithstanding the context in which they occurred, and bearing in mind the judgment of Lord Lane in the Rennie case, even if these promptings could possibly amount to an inducement when objectively viewed they were not immediately acted on and their effect, whatever it may have been, was dissipated by the consultation Barry Doyle had with his solicitor and his solicitor’s interaction with Detective Garda Hanley and Detective Sergeant Philips. This broke any possible causal link and it is highly relevant that the solicitor told the detectives that Barry Doyle would not admit to the offence and that they would have a bit more work to do. The Court holds that that when Barry Doyle came to make his admissions in interview 15 he made them voluntarily. Accordingly the Court holds that the admissions were made not as a result of oppression and were not made as a result of any threat or inducement.”

Discussion of the ruling on the threat/inducement issue
29. The ruling of the trial judge is criticised on behalf of the appellant because, inter alia, he did not make an express finding as to whether there had or had not been words capable of amounting to a threat or inducement, or whether the words had been subjectively understood as such, before moving on to rule that any such threat or inducement had been dissipated. It is submitted that this, in itself, renders the conviction unsafe. I agree that it would be preferable if he had done so. However, I do not believe that the failure to spell out his findings is fatal to the validity of the ruling. It must be borne in mind that mid-trial rulings on issues, even if the trial judge can consider the matter overnight, may not always reach the standards of clarity that a reserved judgment aspires to. The overall finding is perfectly clear.
30. It seems to me that in the first instance the gardaí acted perfectly appropriately in rejecting out of hand the proposal made by the appellant’s solicitor on his behalf. To enter into a bargain of this nature would have been highly improper and would indeed, as they said at the time, have rendered any subsequent admissions vulnerable to the charge that they had been obtained by the inducement that Ms. Gunnery would be released. However, what is to be made of the converse proposition – that Ms. Gunnery would not be released until the appellant confessed in interview? That was also at least potentially improper, insofar as it gave the impression that the duration of Ms. Gunnery’s detention was dependent solely on the appellant’s choice of action.

31. It is perhaps a problem that will arise from time to time because of the vaguely-worded nature of the provision creating the power of arrest for possession of information. Where the garda belief is that the detained individual has received relevant incriminatory information directly from the suspect, it may well be factually true to say that there will be no further purpose to be served by detaining that individual if the suspect confesses. However, great care must be taken not to present this as being a threat to detain until a confession is made by the suspect. Assuming that this power of arrest is not unconstitutional, it must never be used as a form of hostage-taking for the purpose of pressurising the actual suspect in the case.

32. It is accepted that the appropriate test for threats and inducements is that set out in the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. McCann [1998] 4 I.R. 397, where that court adopted the three-strand analysis proposed in Phipson on Evidence, 13th ed., (Sweet & Maxwell, 1982). The questions to be considered by the trial court are as follows:

(a) Were the words used by the person or persons in authority, objectively viewed, capable of amounting to a threat or promise?
(b) Did the accused subjectively understand them as such?

(c) Was his confession in fact the result of the threat or promise?

33. The appellant relies upon the commentary on this test in McGrath, Evidence, 2nd ed., (Dublin, 2014) where, having noted that the first part of the test is objective while the second and third are subjective, the author states that
“In practice, there are likely to be very few instances in which a statement, which is objectively capable of amounting to an inducement, will not be regarded by an accused as such.”
34. It may be noted that this is followed by the observation that it is possible to envisage circumstances where the suspect knows that the promise or threat cannot be fulfilled.
35. In my view this commentary on the McCann principles must be seen as descriptive rather than as an elaboration of the content of the test. It is an observation referring to the obvious fact that in most cases cause and effect may be readily inferred where there is evidence that a statement was made, which is held to be capable of amounting to an inducement, and that the statement was followed by an admission. However, each case will turn on its own facts and the picture presented by the evidence in this case is far from such a clear-cut situation.

36. It is perhaps a statement of the obvious that when a person is arrested and subjected to extended detention there may well be unfortunate consequences for other people closely associated with the suspect. Quite apart from the use of s.30 of the Offences Against the State Act, 1939 to arrest persons who may be in possession of information, there will often be practical difficulties and psychological distress caused to family members. It does not seem to me to be illegitimate for the gardaí to bring this fact to the attention of the suspect. In the circumstances of this case it is difficult to see how the appellant could have been shielded from the knowledge that Ms. Gunnery had been arrested and was being detained, and that the child was therefore without her parents. The issue is whether an illegitimate use was made of that situation.

37. It is certainly possible to form an objective view that the comments made by the gardaí, as recorded by them in the note set out above, were capable of amounting to a threat to keep Ms. Gunnery in detention until the appellant confessed. However, in attempting to ascertain whether the appellant understood the statement to be a threat (or an inducement, on the argument that the implication was that she would be released if he did confess), and whether he made his confession as a result, one is confronted with the fact that the entirety of the crucial discussion between himself and the gardaí was carried out through his solicitor. Neither the appellant nor his solicitor gave evidence, with the result that there was no direct evidence as to his subjective understanding of the situation. This course of action was, of course, the appellant’s entitlement and privilege. It cannot be held against him, in the sense that it cannot of itself give rise to any adverse inferences. However, this does not mean that there are no consequences in terms of the decision to be made by the court determining the issue.

38. The finder of fact, be it a jury or, as in the case of a voir dire of this sort, a judge, must of course apply the presumption of innocence and have regard to the burden and standard of proof. In so doing the finders of fact are entitled to draw such inferences from the prosecution evidence as are rationally available, subject to the principle that where two views are open the inferences favourable to the accused must be accepted. That is because, as was made clear by Hardiman J. in The People (Director of Public Prosecutions) v. Reid [2004] 1 IR 392, the fact that two views are possible means that the prosecution has not proved its case on the issue beyond reasonable doubt.

39. The inference drawn by the trial judge in this case was that the effect of any inducement or threat had been dissipated by the consultation with the solicitor. Was that an inference he was entitled to draw?

40. The rationale for the Constitutional right of access to a solicitor was explained by the Supreme Court in The People (Director of Public Prosecutions) v. Healy [1990] 2 I.R. 73 in the following terms at p. 81:

“The undoubted right of reasonable access to a solicitor enjoyed by a person who is in detention must be interpreted as being directed towards the vital function of ensuring that such person is aware of his rights and has the independent advice which would be appropriate in order to permit him to reach a truly free decision as to his attitude to interrogation or to the making of any statement, be it exculpatory or inculpatory. The availability of advice from a lawyer must, in my view, be seen as a contribution, at least, towards some measure of equality in the position of the detained person and his interrogators.”
41. A central part of the role of the solicitor attending at a garda station is, therefore, to ensure that prisoners receive proper advice as to their rights in relation to matters that arise in the course of the detention, especially where those matters might tend to undermine the freedom of the suspect’s decision to speak or not to speak. I think that, in the absence of any evidence pointing to the contrary, it must be open to a trial court to proceed on the assumption that a solicitor attending a prisoner performed that role, and that the legal advice given was in fact proper and correct.
42. In the instant case, where the solicitor spoke to the gardaí on behalf of the appellant, it must be presumed that he reported back to him their flat refusal to agree to the release of Ms. Gunnery on his terms. In the absence of any evidence from either Mr. O’Donnell or the appellant there is no other rational inference to be drawn. It is true that one cannot speculate as to whether he reported the conversation in summary or word for word, but in the circumstances any belief that the appellant may have had that the gardaí would release Ms. Gunnery in return for a confession must have been displaced. Mr. O’Donnell’s final remarks to the gardaí, to the effect that he had advised the appellant to say nothing, make it abundantly clear that the appellant had again been advised of his right not to incriminate himself.

43. It is also relevant to emphasise that no complaint was made at any stage of the interview process by either the appellant or his solicitor. There was no indication that either of them felt at the time that the appellant was being subjected to undue psychological pressure or indeed that there was any unfair tactic on the part of the gardai.

44. There being no contrary evidence as to the belief or understanding of the appellant in relation to the effect of the statement by the gardaí, I consider that the trial judge was therefore entitled to hold that any threat or inducement had dissipated by reason of the appellant’s access to his solicitor at the relevant time, and to hold further that the admissions were made for reasons other than threats, inducement or oppression. His findings as to those reasons were rationally grounded on his view of the interview videos and the way that the interviews progressed over the course of the detention.
The right of access to legal advice
45. In Gormley and White the existence of the right of reasonable access to a solicitor was not in dispute. The central issue in each case was one of timing – was the suspect entitled, under the concept of fairness identified in State (Healy) v. Donoghue [1976] 1 I.R. 325, to the benefit of legal advice before the commencement of interrogation (Mr. Gormley) or the taking of forensic samples (Mr. White)? The issue arose in Mr. Gormley’s case because he was questioned and made admissions after he had made a request to see a solicitor but before the solicitor’s arrival. On the facts of the case there had been no delay on the part of either the gardaí or the solicitor in securing the attendance of the latter.

46. The judgment reviews the authorities in this jurisdiction from The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 to The People (Director of Public Prosecutions) v. Creed [2009] IECCA 95.

47. Clarke J. at para. 2.11 noted that the jurisprudence of the European Court of Human Rights indicated that the protection of the right against self-incrimination was breached

“…where a person makes an incriminating statement which forms a substantial part of the evidence leading to their conviction in circumstances where the relevant person does not have the benefit of legal advice at the time in question and where they have not waived any entitlement to legal advice.”
48. Particular attention was paid to the judgment of the Grand Chamber of the ECtHR in Salduz v. Turkey (2009) 49 EHRR 19. In that judgment it was noted that Article 6 of the Convention (the guarantee of a fair trial) may be relevant to pre-trial procedures; that the right to be effectively defended by a lawyer, although not absolute, was one of the fundamental features of a fair trial; that national laws might attach consequences to the attitude of an accused at the interrogation stage that could be decisive at the trial stage and that Article 6 would therefore normally require that the accused be allowed to benefit from the assistance of a lawyer at that stage.
49. The ECtHR observed in Salduz that the accused could, at the investigation stage, find himself in a particularly vulnerable position. It was noted that legislation on criminal procedure was tending to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. The Court said (at paragraph 54):

“In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006 IX, and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandi, Jalloh, cited above…). In this connection, the Court also notes the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)…, in which the CPT repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.
Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective”… Article 6.1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6… The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”
50. Clarke J. referred to later cases before the ECtHR as confirming these principles and cited in particular Panovits v. Cyprus (Application no. 4268/04 (First Section) 11th December 2008), where a breach was found in circumstances where a minor had not been informed of his right to consult a lawyer free of charge, and Dayanan v. Turkey (Application 7377/03 (Second Section) 13th October 2009) where the court said at para. 32:

“Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.”
51. Reference was also made to the application of Convention principles by the United Kingdom Supreme Court in Cadder v. Her Majesty’s Advocate [2010] UKSC 43, where it was held that a detained person was entitled, in the absence of compelling reasons, to legal advice before questioning. However, the same court subsequently ruled (in Her Majesty’s Advocate v. P [2011] UKSC 44) that use of the fruits of questioning conducted in the absence of access to a lawyer did not necessarily amount to a violation of Article 6.
52. Clarke J. then went on to consider the jurisprudence of other common law jurisdictions. He expressed the view that the law of the United States of America, as laid down in the seminal case of Miranda v. State of Arizona 384 U.S. 436 (1966), went the furthest in terms of requiring the presence of a lawyer both prior to and during questioning. There was however a clear international view that there was, at a minimum, an obligation on investigating police in most circumstances to refrain from interrogation in the period after a request for a lawyer and before the arrival of that lawyer.

53. It is worth mentioning at this point that the earlier Irish cases on this issue, such as Madden, all seem to have proceeded on the basis that wrongful denial of access to a solicitor would render the suspect’s detention unlawful. The result of a finding to this effect was in those days, pursuant to the principles set out in The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110, that evidence gathered during the relevant time was inadmissible in the trial. This gave rise to situations such as that in The People (Director of Public Prosecutions) v. Buck [2002] 2 IR 268, where a court might find that the detention of a person could alternate between lawfulness and illegality, as access was granted or denied. However, the case made in Gormley and White located the right of access to legal advice within the right to a fair trial as guaranteed by Article 38(1), with the argument being that reliance on evidence obtained in breach of the right was in itself directly unconstitutional as resulting in an unfair trial. Clarke J. noted that acceptance of this argument would amount to a significant development in the Irish jurisprudence. Such a development was, the Court considered, permissible in the light of the consistent view of this Court that the Constitution is a living document which requires to be interpreted from time to time.

54. In considering whether it was appropriate to regard the investigative stage of a case in this jurisdiction as forming part of a “trial in due course of law”, the judgment takes account of the differences between procedures in this State and those followed in many civil law jurisdictions. However, Clarke J. came to the conclusion that the differences were not such as to exclude from the concept a formal investigation directly involving an arrested suspect.

“… I am persuaded that the point at which the coercive power of the State, in the form of an arrest, is exercised against a suspect represents an important juncture in any potential criminal process. Thereafter the suspect is no longer someone who is simply being investigated by the gathering of whatever evidence might be available. Thereafter the suspect has been deprived of his or her liberty and, in many cases, can be subjected to mandatory questioning for various periods and, indeed, in certain circumstances, may be exposed to a requirement, under penal sanction, to provide forensic samples. It seems to me that once the power of the State has been exercised against a suspect in that way, it is proper to regard the process thereafter as being intimately connected with a potential criminal trial rather than being one at a pure investigative stage. It seems to me to follow that the requirement that persons only be tried in due course of law, therefore, requires that the basic fairness of process identified as an essential ingredient of that concept by this Court in State (Healy) v. Donoghue applies from the time of arrest of a suspect. The precise consequences of such a requirement do, of course, require careful and detailed analysis. It does not, necessarily, follow that all of the rights which someone may have at trial (in the sense of the conduct of a full hearing of the criminal charge before a judge with or without a jury) apply at each stage of the process leading up to such a trial. However, it seems to me that the fundamental requirement of basic fairness does apply from the time of arrest such that any breach of that requirement can lead to an absence of a trial in due course of law. In that regard it seems to me that the Irish position is the same as that acknowledged by the ECtHR and by the Supreme Court of the United States.”
55. The judgment went on to hold that the constitutional right to a trial in due course of law therefore implied an entitlement not to be questioned after access to a lawyer was requested and before such access was obtained. There were many reasons why access might be required at an early stage – for example the suspect might need to put in place enquiries which might assist in the building of a defence; or there might be a need for advice on the legality of the detention. However, the most urgent aspect would be the need for advice on the immediate events that occur when a person is arrested, including interrogation by the gardaí. Thus, where significant reliance was placed, in the trial, on admissions made in the course of questioning which occurred in the absence of legal advice in breach of the suspect’s entitlements, the trial was necessarily an unfair one.
56. It was emphasised that the right to legal advice before interrogation was “an important constitutional entitlement of high legal value”, and that if any exceptions were to be recognised, it would be necessary to show “wholly exceptional circumstances involving a pressing and compelling need to protect other major constitutional rights such as the right to life”. It was also emphasised that the right is one designed to provide support for the right against self-incrimination, amongst other rights including the right to a fair trial.

57. The facts in the case of Mr. White were distinguished from those relating to Mr. Gormley. It was held that the taking of forensic samples in a minimally intrusive way, where this was otherwise authorised by law, did not affect his fair trial rights.

58. It is worth mentioning the observation by Clarke J. that the issue in Mr. Gormley’s case could not reasonably be said to have taken the authorities by surprise. The decision in Salduz had been delivered in 2009, and in 2011 the Court of Criminal Appeal had (in The Director of Public Prosecutions v. Ryan [2011] IECCA 6) specifically drawn attention to the potential interaction between the obligations of the State under the Convention and the practice in relation to questioning as it then existed. That Court had referred to the frequency with which garda interviewing practices had resulted in admissions being ruled inadmissible because of breach of the suspect’s right of access to a lawyer. It was now necessary for the State to organise itself in a manner sufficient to allow questioning to take place in conformity with the Constitution and with the jurisprudence of the ECtHR.

59. The judgments in Gormley and White were delivered in March 2014. In May 2014 it was announced that henceforth solicitors would be permitted to attend during interviews in Garda stations. Such attendance is now covered by the Criminal Legal Aid scheme. A Code of Practice, published by An Garda Síochána in April 2015, states expressly that it is based on the advice of the Director of Public Prosecutions to the Garda Commissioner following the Supreme Court decision.

Ibrahim and Others v. The United Kingdom (Applications nos. 50541/08, 50571/08, 50573/08 and 40351/09, [GC] 13th September 2016)

60. In this case, decided after the hearing of the appeal in the instant case and therefore not debated in it, the ECtHR was concerned with the permissibility of restrictions, imposed for purposes associated with public safety, on the right of access to a lawyer prior to interrogation. A week after the terrorist bombings in London in July 2005 that had caused over fifty deaths and hundreds of injuries, there were a number of what appeared to have been attempts to detonate explosive devices on public transport in the city. Three of the applicants were arrested in relation to these incidents. They were subjected to “safety interviews” before being permitted to consult with lawyers. This type of interview was expressly provided for under the relevant legislation, for the purpose of discovering whether the detainees were aware of any immediate danger to public safety. The fourth applicant had been in the process of making a witness statement when the interviewing officers formed the suspicion that he had in fact been culpably involved with the other men. Notwithstanding this suspicion, the officers were instructed to continue taking the statement without cautioning him as to his right not to incriminate himself. He was arrested after completion of the statement.

61. The ECtHR confirmed that for the purposes of Article 6.1 and 6.3 of the Convention a “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of suspicion against him.

62. Under the heading “General approach to Article 6 in its criminal aspect” the Court noted that the right to a fair trial is unqualified, but said that the primary concern was the overall fairness of the proceedings. The minimum rights guaranteed by Article 6.3 exemplify the requirements of a fair trial in respect of typical procedural situations and can be viewed as specific aspects of the concept in a criminal case.

“251. … However, those minimum rights are not aims in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings a whole…”
63. The Court considered that there was scope for access to legal advice to be delayed for “compelling reasons”. It went on to address the consequence of a finding in a particular case that there were no such reasons and ruled that this would not lead, in itself, to a finding of a violation of Article 6 but that it meant that a “very strict scrutiny” of the fairness assessment was required.

64. Under the heading “The privilege against self-incrimination” the court said (at paragraphs 266 – 267):

“266. The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent and presupposes that the prosecution in a criminal case seek to prove their case without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused…The right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6…
267. It is important to recognise that the privilege against self-incrimination does not protect against the making of an incriminating statement per se but, as noted above, against the obtaining of evidence by coercion or oppression. It is the existence of compulsion that gives rise to concerns as to whether the privilege against self-incrimination has been respected…”

65. However, the court said (at paragraph 269) that the right not to incriminate oneself is not absolute. The degree of compulsion applied will be incompatible with Article 6 “where it destroys the very essence of the privilege against self-incrimination”. Not all compulsion would have this effect. The crucial issue in this context is the use to which the evidence obtained under compulsion is put in the course of the trial.
66. At paragraph 273 the court stated that in principle there could be no justification for a failure to notify a suspect of the privilege against self-incrimination and the right to silence. Immediate access to a lawyer is likely to prevent unfairness arising from a failure on the part of the police to give such notification. If access is delayed, and the suspect is not officially notified of his or her rights, then in the absence of compelling reasons for delaying access it will be difficult for the prosecution to rebut the presumption of unfairness.

67. Under the heading “relevant factors for the fairness assessment” the court expressed the view that it would often be artificial to try to categorise a case as one that should be viewed from the perspective of one Article 6 right or another. It then set out a “non-exhaustive” list of factors to be considered when assessing the impact of a pre-trial procedural failing on the overall fairness of the proceedings.
Discussion on the right to legal advice
68. I have noted above that the analysis of the right to access to a solicitor in Gormley appears to have shifted focus from the lawfulness of the accused’s detention to the effect on the right to a fair trial as guaranteed by Article 38(1). Although the consequences of this apparent shift have yet to be fully debated, my view broadly speaking is that it is the correct approach. Since the primary purpose of the detention of a suspect is the proper investigation of the offence, with the ultimate objective of adducing admissible evidence in a trial, it makes sense to consider it as part of the trial process and to scrutinise events in detention for their impact on the fairness of that process. An analysis that has compelled trial courts to find that the detention of the accused moved from being lawful, to unlawful, and back again is one that can lead to unnecessary confusion. It also has the effect that all evidence, of any nature, that is gathered during detention subsequently held to be unlawful is potentially inadmissible. The Gormley analysis can more easily distinguish between issues where the advice of a solicitor is relevant (such as the voluntary making of a statement) and issues where the detainee does not, as a matter of law, have a choice, and the results do not depend on his subjective will (such as the taking of photographs or fingerprints). However, the full impact on the previous approach to the issue is not yet clear.

69. There is, I think, some strength in the argument that the thinking of this Court in Gormley and White, as supported by reference to Salduz and to the jurisprudence of other common law jurisdictions, could logically lead to a reconsideration of the decision in Lavery v. Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390 and to a ruling that the right to a fair trial implies a constitutional right to the presence of a solicitor during questioning. The question of any “public safety” limitations on such a right does not yet arise for consideration. It might be observed that the State has anticipated that this situation could come about and has provided for it by establishing the scheme now in existence.

70. My own view would be that this is an issue that might soon come to the fore in the context of one or more of the many legislative provisions that now provide for the drawing of inferences from failure to answer questions. There are at this stage half a dozen separate enactments permitting adverse inferences to be drawn from the exercise of the right to silence under garda questioning, the most far-reaching being the possibility that inferences will be drawn at trial from a failure to mention at interview any fact relied upon in the trial.

71. However, I do not believe that the instant case is an appropriate one in which to reach a definitive view on the matter and would prefer to reserve my position on it. In the circumstances of the case I do not feel it appropriate to address the issue on the basis of whether or not a breach of an acknowledged right of this nature could be excused by reference to The People (Director of Public Prosecutions) v. J.C. [2015] IESC 31 (which, obviously, was not canvassed in the trial); or alternatively whether the right could be held to have been waived in the circumstances of the case (in the absence of any evidence of a knowing and deliberate waiver). Rather, I consider that the question of the existence of such a right does not truly arise on the admittedly unusual facts of this case.

72. Largely, this is because of the unusually central role, discussed above, taken by Mr. O’Donnell in the events immediately preceding the admissions. Prior to that, it is true that the appellant did not see his solicitor for any great length of time. However, it is also clear that he was aware of his right to see him; that he saw him when he wanted to, for as long as he wanted; and that he was under no pressure to relinquish or curtail his right of access. It is also clear that while he answered some questions in some interviews he did not incriminate himself prior to Interview No.15.

73. I do not accept the contention that the statement by the appellant (in Interview No. 14) that he would answer questions when he saw his solicitor demonstrates that he was “irretrievably prejudiced” by the garda decision to continue asking questions despite the request for the solicitor. I cannot see that it should be interpreted as a decision to incriminate himself – he committed himself to nothing, and certainly not to admitting guilt. There is no evidence that his will was overborne to any extent, still less to the extent that a consultation could not assist him.

74. The actual admissions came about in the circumstances discussed above. The role of the solicitor was, in fact, far more central than would be envisaged where a lawyer is present in the interview room – the gardaí and the appellant were actually communicating through him, rather than directly with each other. He had complete privacy to advise his client while carrying on the discussion with the gardaí and also a greater degree of control than would be normal over what was said on behalf of the client and how it was presented. For the reasons already discussed, therefore I consider that not only was the trial judge entitled to conclude that the admissions were the result of a fully voluntary decision by the appellant, but that there is nothing to indicate that the exercise of the right now contended for would have altered the situation in any material respect.

75. In those circumstances I would dismiss the appeal.

JUDGMENT of Mr. Justice William McKechnie delivered on the 18th day of January, 2017.

 

Introduction:
1. In the early hours of the morning of the 9th November, 2008, Mr. Shane Geoghegan was murdered at Clonmore, Kilteragh, Dooradoyle, a housing estate on the south-western outskirts of Limerick City. The murder occurred as Mr. Geoghegan, who lived with his girlfriend at No. 2 Clonmore, was walking home through the estate from a friend’s house nearby. He was first shot and wounded as he crossed a green area. He was then pursued as he attempted to escape by fleeing into the back garden of No. 38 Clonmore; there he was shot repeatedly, including a gunshot wound to the head. This resulted in his death.

2. Mr. Geoghegan was a well-liked, respected and upstanding member of the community. He had no connection to organized crime anywhere, including that which was then endemic in the Limerick underworld. His murder was a case of mistaken identity. The intended victim, who lived locally, was apparently linked to a rival gang which was involved in a long-running and violent dispute with criminal associates of the appellant. Mr. Geoghegan’s shocking murder provoked fully understandable public outrage. The resulting garda investigation, in terms of resources and manpower, was intensive.

3. On the 15th February, 2012, Mr. Barry Doyle (“the accused” or “the appellant”) was unanimously convicted by a jury of the murder of Mr. Geoghegan. He received the mandatory sentence of life imprisonment. The trial lasted 22 days, which was evenly split between a voir dire and the evidential hearing. The matters of law determined by the judge in the absence of the jury have in large part been re-agitated in both the Court of Appeal and, by leave, in this Court. This is my judgment on such issues.

4. As part of the background it will be helpful at the outset to extract from the extensive and wide-ranging Notice of Appeal, containing some 27 grounds, those issues which were ruled upon during the course of the trial. Those relate to certain admissions made by the appellant, evidential matters in respect of two witnesses, criticisms of the judge’s charge and the material that was furnished to the jury. In addition, there was a further issue arising out of the judgment of the Supreme Court in Damache v. DPP [2012] 2 I.R. 266 (“Damache”), which was decided after the appellant’s trial. The Court of Appeal (Ryan P., Birmingham and Edwards JJ.), in a comprehensive judgment delivered by the President on the 8th June, 2015 (2015 IECA 109), concluded that none of the grounds so advanced could succeed. It held that the trial was satisfactory and that the conviction of Mr. Doyle was safe. That Court’s decision in respect of each issue of continuing relevance to this appeal is set out in the corresponding section of this judgment.

The Issues on This Appeal:
5. As provided for by the Thirty-third Amendment to the Constitution and the Court of Appeal Act 2014, the appellant sought a further appeal to this Court. He was granted permission to do so on three matters, each of which was acknowledged to be of general public importance ([2015] IESCDET 45). Whilst the precise questions on which leave was granted are set out later in this judgment, a short description of each at this point helps the narrative:-

i. Whether the appellant’s confession was brought about by a threat and/or an inducement and, if so, whether the threat/inducement had dissipated;
ii. Whether the appellant was entitled to have a solicitor present during interrogation by the police; and,

iii. Whether the appellant can rely on the decision in DPP v. Damache.

The issues raised were presented to the Court in that order in the parties’ written submissions, and thus will likewise be addressed in this judgment.

Background and Procedural History:

Mr. Doyle’s Arrest, Detention and Confession:
6. At 07:15 on the 24th February, 2009, the accused was arrested pursuant to section 4(3) of the Criminal Law Act 1997 during a search of his residence at 106 Hyde Road, Limerick. This search was carried out on foot of a warrant issued under section 29 of the Offences Against the State Act 1939 by Superintendent Anne Marie McMahon, who was in overall charge of the investigation into Mr. Geoghegan’s murder. Ms. Victoria Gunnery, the appellant’s former girlfriend and mother of one of his children, was also arrested around this time on the basis that she possessed information relevant to the crime (paras. 18-21, infra).

7. Overall, Mr. Doyle was continuously detained until 14:31 on the 28th February, 2009, following which later that day he was charged with murder. During the detention period, which was extended from time to time in accordance with section 50 of the Criminal Law Act 2007, he was interviewed a total of 23 times. Ms. Gunnery was released without charge at 21:00 on the 26th February, 2009.

8. Subsequent to his arrest, the appellant was brought to Bruff Garda Station, where, upon his detention, he was read his notice of rights. At 08:00 he requested to speak with a solicitor, Ms. Sarah Ryan, and was notified that she would call him back in half an hour. He had a brief telephone conversation with her of approximately two minutes duration at 09:55. The first garda interview commenced a short time later at 10:12. A solicitor, Mr. Michael O’Donnell, on behalf of Ms. Ryan, arrived at the station at 11:00 and the first interview then concluded at 11:03. After a nine minute consultation with Mr. O’Donnell from approximately 11:05 to 11:14, Mr. Doyle was interviewed a further five times on the 24th February, with the final interview concluding at 23:42. On each occasion he declined to sign the memorandum of interview.

9. On the 25th February, 2009, the appellant was interviewed on four more occasions. Again he declined to sign the memorandum of any session. That evening he was taken to Limerick District Court for the purposes of an application to further extend his detention. Mr. O’Donnell was in attendance when the period was extended for a further 72 hours. Mr. Doyle was then returned to Bruff Garda Station, where the final interview of that day, and the tenth interview overall, took place between 22:38 and 23:35. At around the same time, but before 23:00, Ms. Gunnery, in her ninth interview with the gardaí, provided information about contacts with the appellant on the 8th and 9th November, 2008. The signed memorandum of this interview was referred to during the last mentioned interview with the appellant; this was the first occasion on which he was told that Ms. Gunnery too had been arrested and was being detained.

10. On the 26th February, 2009, the appellant was interviewed a further six times (Interviews 11-16 overall). The most important interviews for the purposes of this appeal are those numbered 14 and 15, although the preceding three also have particular relevance as it is submitted on Mr. Doyle’s behalf that the confessions which were ultimately obtained were the product of threats and/or inducements made to him over the course of all such interviews. The particular comments said to constitute these threats or inducements are set out in full below (para. 27, infra). In summary, the argument in this regard is that the gardaí said, or at least led him to believe, that Ms. Gunnery would not be released from detention until such time as he had confessed to the murder of Mr. Geoghegan. He thus claims that the confessions subsequently made were involuntary and should not have been admitted at trial.

11. In light of the central importance attaching to the interviews held on the 26th February, 2009, it is worth setting out in detail the precise sequence of events which occurred that day. The appellant was interviewed from 09:03 to 11:12 (Interview 11), from 12:22 to 13:43 (Interview 12) and from 15:02 to 16:13 (Interview 13). Several of the alleged inducements/threats were made during Interview 13. At 16:04 he indicated that he wished to see his solicitor. A number of unsuccessful attempts were made to contact Mr. O’Donnell on his mobile phone: he was in court at the time. Ultimately his office was contacted and his secretary undertook to inform him of Mr. Doyle’s request. The appellant was told of this situation at 16:31, and at 17:13 was taken from his cell for a telephone consultation with Mr. O’Donnell; this lasted approximately two minutes.

12. Interview 14 commenced at 17:32. The investigating members at this point were Detective Gardaí Phillips and Hanley. Some of the comments which are alleged to have constituted threats or inducements were made during this interview. At the outset Mr. Doyle confirmed that he had spoken with his solicitor and that he had no further requests at that time, but he later stated that he wanted to speak to his solicitor again as he had not spoken to him properly. The interview continued. He again asked to speak with his solicitor; again the interview continued and he was then told his solicitor was on his way. He had no complaints when the Member in Charge visited the interview room at 18:30. Interview 14 was suspended at 18:35.

13. Mr. O’Donnell arrived at the Garda Station at 18:52 and left again at 19:17. A number of significant events occurred during this period – the precise timeframe of each rather surprisingly was not noted, but approximate estimates were given in oral evidence. It appears that Mr. O’Donnell had a ten minute consultation with the appellant, after which he spoke to Detective Gardaí Phillips and Hanley. That was followed by another ten minute consultation between solicitor and client, after which Mr. O’Donnell again spoke to the Detective Gardaí. He then had a final five minute consultation with Mr. Doyle and left the station.

14. Late at night on the 26th February, 2009, or perhaps in the early hours of the morning of the 27th, Detective Gardaí Phillips and Hanley prepared what was referred to at trial as an aide memoire or memorandum detailing the events above described. The aide memoire, which is headed “Meeting with Michael O’Donnell Solicitor on Thursday 26th February 2009”, was read to the trial court during the voir dire. It is worth setting out in full:

“Met at station. Explained about consultation with a client to be done in the sight but outside hearing of members. Consultation in cell. After consultation Michael O’Donnell requested to speak to members. Went to interview room. O’Donnell started by saying conversation was off record and did not want a memo to be taken of same. Stated that Barry Doyle would admit to killing Shane Geoghegan if his girlfriend, Victoria Gunnery, was released. I [Detective Garda Hanley] stated that there was no way this was possible, that he would have to tell the truth about what happened, and once he told the truth about what had happened we would have no reason to detain Victoria Gunnery any further. Michael O’Donnell stated that he would only answer one question, that he had committed the murder and answer no more. I said this would not suffice, as we had to know he was telling the truth and not just saying it to get Victoria Gunnery released. Michael O’Donnell said ‘sure can’t you arrest her again?’ I said that Barry Doyle had to admit what he had done in an interview and that his girlfriend would not be released before any interview. Michael O’Donnell said he would go back to Barry Doyle and tell him this. Further consultation in the cell. After approximately 10 minutes, returned to interview room, Michael O’Donnell again said that Barry Doyle would not admit to anything prior to his girlfriend being released. I said to Michael O’Donnell ‘that is an inducement’ and there was no possible way that would happen, that any admission would not be upheld in any court if that were to happen. Michael O’Donnell said ‘sure wouldn’t you have it on the camera?’ [Detective Garda] Mark Phillips said that didn’t matter. Michael O’Donnell said ‘well he will not admit to it. I have told him to say nothing, to get you to do the work.’ I again said to Michael O’Donnell that Barry Doyle had to tell the truth about what had happened. Michael O’Donnell said ‘I think you have a bit more work to do’. Michael O’Donnell again had legal consultation with prisoner, lasted approximately 4-5 minutes. Michael O’Donnell left the station.”
15. Interview 15 was conducted by the same gardaí and commenced at 19:43. At the outset, the appellant admitted to being in Clonmore on the 8th November, 2008, as a front seat passenger in a motor vehicle thought to be involved in the crime. At 19:46 the interview was interrupted so that Mr. Doyle could take a phone call from his solicitor, which lasted about three minutes. The interview then resumed, whereupon the appellant made admissions in relation to the murder of Mr. Geoghegan. The appellant also drew and marked a sketch map of the scene of the murder. He signed the memorandum of interview and the interview ended at 21:05, at which point the video recording had been switched off. It therefore did not show that the appellant then took a set of rosary beads from around his neck and asked “will you give them to Shane Geoghegan’s ma?” A further interview, Interview 16, was held between 22:09 and 23:29.

16. Five more interviews were conducted on the 27th February, 2009. The appellant had a two minute phone consultation with his solicitor prior to the first interview that day. During that interview, Interview 17 in total, the appellant confirmed his admissions from the previous night and referred to his act of handing over the rosary beads, as he did to his killing of Shane Geoghegan. He had a personal consultation with his solicitor for about five minutes from approximately 15:27 that afternoon. In Interview 20 that night he marked an aerial map and photograph shown to him by the gardaí, and demonstrated how he had cleared undischarged rounds from the gun used by pulling back the slide. Mr. Doyle once again declined to sign any of the memoranda of the interviews conducted that day.

17. The appellant was interviewed twice on the 28th February, 2009, bringing the number of interviews to 23 in total. At 14:31, he was released from section 50 detention for the purposes of charge. After a brief consultation with his solicitor, at 15:15 the appellant was arrested and charged with murder. He was then taken to Limerick District Court.

Ms. Gunnery’s Arrest, Detention & Questioning:
18. Before addressing what happened at trial, it is necessary to recount the situation in respect of Ms. Gunnery. As mentioned above, she was the appellant’s former girlfriend and mother of his infant child. She was arrested around the same time as Mr. Doyle, pursuant to section 30 of the Offences Against the State Act 1939, which confers such a power in respect of persons whom a member of An Garda Síochána suspects of being in possession of information relating to the commission of a scheduled offence. In this instance, the relevant scheduled offence was possession of firearms with intent to endanger life on the evening of Mr. Geoghegan’s murder.

19. In passing may I draw attention to the absolute peculiarities of this section of the 1939 Act: a person’s liberty can be taken on suspicion of having information simpliciter, even though the basis for such arrest is not otherwise criminalised in our system. I consider the provisions questionable at least.

20. In any event, Ms. Gunnery was arrested at her home in Dublin at approximately 08:30 on the 24th February, 2009. Having been detained at Ballymun Garda Station, she was interviewed on four occasions on that date. Her detention was extended for 24 hours by Chief Superintendent Gerry Mahon at 08:10 on the 25th February, 2009; thereafter she was interviewed five times during the course of that day. In the last of these interviews, her ninth overall, Ms. Gunnery provided information to the gardaí about contacts she had had with the appellant on the 8th and 9th November, 2008.

21. Shortly after midnight, at 00:26 on the 26th February, 2009, she was taken to Limerick for the purpose of an application to extend her detention the following morning. The supposed basis for this transfer was an erroneous belief on behalf of the investigating gardaí that the proper court to which such an application should be made was Limerick District Court. How such a view could have been arrived at and then entertained is disturbing. In any event, her detention was extended by that court and she was then detained at Roxboro Road Garda Station in Limerick, where she was interviewed a further three times on the 26th February. Ms. Gunnery was released from custody at 21:00 that night, shortly before the conclusion of the 15th interview of the appellant but after he had confessed to the murder of Shane Geoghegan.

The Trial:
22. The prosecution of the appellant duly came on for hearing in the Central Criminal Court, with Sheehan J. presiding. This was a retrial following a previous disagreement by the jury. It lasted 22 days, with an equal portion of that consisting of a voir dire into the admissibility of the confessions made by the appellant. Over 20 hours of video recordings were played in court and the interviewing officers gave evidence in chief and were cross-examined. Ultimately the learned judge was satisfied to admit the confessions; his ruling in this regard is dealt with at paras. 29-32, infra.

23. The main pillars of the case against Mr. Doyle were (i) the admissions previously referred to, which were in part supported by other evidence, including ballistics evidence found at the scene and also evidence in relation to the stolen getaway car; (ii) the evidence of April Collins, former girlfriend of crime boss Gerard Dundon, who said that she was present when John Dundon ordered the appellant to kill the intended victim, and present again when John Dundon discovered that the wrong man had been murdered; and (iii) the evidence of Ms. Victoria Gunnery, who testified as to certain remarks made by the appellant which tended to implicate him in the murder.

24. On the 15th February, 2012, the verdict reached was unanimous; the decision of the Court of Appeal of the 8th June, 2015, was to dismiss the grounds of appeal in their entirety. That decision, or at least its substantive part, is traced through the rest of this judgment.

This Further Appeal:

Issue 1:
Whether the confession was procured by a threat(s) and/or an inducement(s) and, if so, whether the threat(s)/inducement(s) had dissipated by the relevant time

25. The first question which I propose to address was phrased as follows by this Court in granting leave:-

“Whether the matters set out in the applicant’s application under the heading ‘Relevant facts considered not to be in dispute’, or any of them, constituted threats or inducements made to the applicant and calculated to extract a confession from him. This is a matter not decided by the Court of Trial or the Court of Appeal. Secondly, if they do constitute such threats or inducements, whether their effect had ‘dissipated’ or ‘worn off’ by the time of the admissions relied upon by the State, as held by the trial judge; and thereby whether or not there was any evidence on which it could have been determined that the effect of the said threats or inducements (if any) had ‘dissipated’ or ‘worn off’ by the time of the alleged admissions.” (Emphasis added: see para. 57, infra)
There are therefore three aspects to this question, the last of which is critical to the issue of a causative link between any inducement and the confession.
26. It will be recalled (para. 9, supra) that the appellant first learned of Ms. Gunnery’s detention during Interview 10, the final interview held on the 25th February, 2009, the second day of his detention. On this first question the case made, which previously has been summarised at para. 10, supra, is that certain comments made by the gardaí during this session and subsequently during Interviews 11, 12, 13 and 14, all held on the 26th February, 2009, amounted to threats or inducements intended to extract a confession from him. The essence of this argument is that the gardaí led him to believe that his former girlfriend, Ms. Gunnery, would not be released until he confessed to the murder of Mr. Geoghegan, with consequential hardship both for her and for their infant child so long as he refused to do so. Thus, it is claimed that the confessions were involuntary and on that basis should have been ruled to be inadmissible.

27. In his amended written submissions to this Court, Mr. Doyle has set out a comprehensive list of what he alleges are the inducements and/or threats put to him during Interviews 10-14. In order to preserve detail and context it is necessary to set these out in full:-

– “That Vicky Gunnery was in custody ‘for the same offence’ arising out of the ‘same incident’, namely the murder of Shane Geoghegan; [Interview 13, page 30 – ‘13.30’]

– She was in custody the same amount of time as the defendant; [10.8]
– She had done nothing wrong [10.8];

– She was being detained because of the defendant [10.8];

– She was suffering hardship and deprivation [10.9] [14.16];

– Because of Victoria’s detention their child was suffering hardship and was being deprived of its mother, which was the defendant’s fault [10.9] [14.16];

– That unless he confessed his family difficulties were going to get worse [10.9] [10.11] [10.13];

– That the defendant was failing his daughter as a father by not confessing [10.8] [10.12];

– That he should ‘come clean and tell the truth’ for ‘everybody’s sake’ [14.13];

– That he should ‘do the right thing … tell the truth’ and ‘don’t keep Vicky away from the young one longer than she has to be … for the sake of your child.’ [13.32].

– That unless he confessed he’d never get to see the child again [10.12];

– That he would not get to see his other children (by a different mother – Anita) [10.11];

– Unless he confessed he was going to end up in hardship regarding his family [10.13];

– In return for a confession the Gardaí would put in a good word to Vicky Gunnery to help the defendant’s position vis-à-vis his family [10.19].

– That Vicky’s detention was not what the Gardaí wanted but caused by the defendant’s lack of confession [13.20-21];

– That the Appellant’s lack of confession was causing Vicky to be detained and away from her child and that if he confessed she would be released – so he should do the right thing [13.32];

– That Vicky would be released when the Gardaí had no reason to detain her, i.e. when the defendant confessed [memo][14.18];

– ‘Do you see what you’ve brought your family and friends down to? Barry look at me. Do you see what you’ve brought your family and friends down to? Your child without their mother because of you, because of you. Your child has no mother for the last few days because of you.’[10.7]

– ‘Your ex girlfriend now, the mother of your child, is now in a station cell very similar to yours lying on a mattress very similar to yours, eating the same food as you and no visits and I tell you to take a mother away from her child like that, that’s your fault; that’s not our fault, that’s your fault…’[10.7]”

The fact that these statements were made has not been and could not be disputed.
28. Evidently, the series of events described at paras. 11 to 16, supra, are of central importance to this ground of appeal. These matters span from Interview 10 on the night of the 25th February, 2009, to the appellant’s confession in Interview 15 conducted on the following night.

The Trial Judge’s Ruling:
29. On this ground of objection, as above noted (para. 22, supra), Sheehan J. conducted an extensive inquiry, viewing many hours of video recordings, listening to the interviewing officers giving evidence and being cross-examined, and carefully considering both written and oral submissions on the point. He concluded as follows.

30. As regards the question of inducement, the trial judge was guided by the decision in People (DPP) v. McCann [1998] 4 I.R. 397 (“McCann”) and also had regard to the judgment in R v. Rennie [1982] 1 WLR 64 (“Rennie”). In addition, he considered People (DPP) v. Pringle (1981) 2 Frewen 57 (“Pringle”) and People v. Hoey [1987] 1 I.R. 637 (“Hoey”) but declined to follow the judgment of the Canadian Supreme Court in R v. Spencer [2007] SCC 11.

31. Sheehan J. first noted that any alleged inducements prior to Interview 15 must be seen in the overall context of everything that had taken place. This included the gradual unfolding of the evidence and the appeals to the prisoner to tell the truth. The learned judge considered that “even if these promptings could possibly amount to an inducement when objectively viewed they were not immediately acted on and their effect, whatever it may have been, was dissipated by the consultation [between the appellant and his solicitor] and the solicitor’s interaction [with the gardaí].” In his view, therefore, these matters broke any possible causative link, a conclusion also influenced by the fact that the solicitor told the gardaí that the appellant would not admit to the offence. Overall the trial judge was satisfied that the admissions were voluntary and not made as a result of a threat or inducement.

32. As regards oppression, the court was guided primarily by People (DPP) v. McNally (1981) 2 Frewen 43 and Pringle, and also took account of DPP v. Shaw [1982] I.R. 1 (“DPP v. Shaw”). The learned judge noted that he had watched the videos and that Barry Doyle appeared mentally and physically strong throughout. He noted factors which suggested that the appellant would not be easily amenable to oppression: that he worked as a block layer, that he played Gaelic football, that he slept wearing a bulletproof vest and that he had previously told a garda officer to “fuck off”. Sheehan J. was satisfied that the appellant engaged with the gardaí when he chose to and refused when he chose to. He found that the interviews were “conducted in a careful, patient and structured way”, that the gardaí were “at all times professional and courteous” and that there was no oppression involved. The learned judge further found that the appellant first began to engage with the gardaí in a limited way because of the appeals to his humanity. Sheehan J. found that Barry Doyle was in full control of himself throughout and that he made the admissions because he chose to. He therefore found that the confessions were not the result of oppression, nor were they the result of a breach of fundamental fairness. Whilst the question of oppression as such was not part of the grounds of appeal to this Court, nonetheless the trial judge’s ruling on this point is relevant for other reasons, in particular its bearing on the issue of the dissipation of any inducement.

The Judgment of the Court of Appeal:
33. The Court of Appeal accepted that the law on inducements, which involves a three-pronged test, is laid out in McCann and Rennie (see para. 53 infra).

34. The Court held that it was clear from his ruling that the trial judge found that there was no evidence of inducement, and that even if there had been, the same had been dissipated by, inter alia, a combination of the visit by Mr. O’Donnell to his client and the offer which the solicitor made to the gardaí, which was unambiguously rejected. Both of these matters excluded the possibility of the third McCann element being present. In this context it stated that an appellate court will be extremely reluctant to overturn a trial judge’s view where his assessment depended on seeing witnesses and observing their demeanour whilst being questioned. The Court furthermore rejected the view that the solicitor’s offer represented the implementation of the McCann triad and held that the whole transaction refuted any argument based on inducement.

35. The Court further found that the argument based on what it described as “selected statements and comments” was not made out. No threats were uttered, nor was any explicit inducement offered. Any inducement would therefore have to be inferred, and the Court once again highlighted the superior position of the trial judge in this regard. The trial judge found that the appellant opened up because of the gardaí’s appeal to his morality and better nature, and there was evidence to support this. Mr. Doyle was now trying to draw inferences which were not justified by an examination of the transcripts. The Court also found it significant that the admissions were limited to the appellant’s own role in the murder, which showed his capacity for judgement and the fact that his will was not overborne. Further, it emphasised that he furnished considerable detail to illustrate what had happened and where. It also stated that the inducement theory falls down when one considers that the appellant did not demand confirmation of his ex-girlfriend’s release after Interview 15.

36. In conclusion, the Court of Appeal was satisfied that there was evidence to support the judge’s rejection of the inducement or threat theory. In this regard, the interaction between Mr. O’Donnell and the gardaí was decisive in disproving the inducement hypothesis. Thus the Court held that the trial judge was entitled to find that the admissions were not brought about by inducement or threat and that the trial judge’s interpretation of the interviews was correct.

Submissions of the Appellant:
37. The appellant submits that even the most gentle threat or slight inducement will taint a confession (R v. Smith [1959] 2 Q.B. 35; R v. Zaveckas [1970] 1 All E.R. 413). For example, in Hoey a threat to visit the family home and to interrogate members of a suspect’s family with a view of getting one of them to take responsibility for a firearm led to the exclusion of a confession. The appellant also refers to Pringle, on which see para. 77, infra. There were many other such examples, but these will suffice to make the point.

38. The appellant claims that certain comments by the gardaí, set out at para. 27, supra, put psychological pressure on him to confess for the sake of his ex-girlfriend and child: he did so as he was offered a quid pro quo whereby a confession would secure her release. The gardaí pressed on with questioning in Interview 14 for an hour after he had requested to speak to his solicitor. Further pressure was put on the appellant during this time and although he made no admissions, the thrust of the remainder of the interview was to persuade him to surrender his right to silence and to confess. In this regard the aide memoire fully supports the concerns which Mr. Doyle had for Ms. Gunnery and the fact that there was a deal on the table.

39. The appellant submits that the effect on him of the disclosure of Ms. Gunnery’s detention was evident, in that the gardaí clearly recognised that it had upset him. He expressed concern for Ms. Gunnery and his child and eventually said “I’ll answer your questions after I speak to my solicitor.” It is submitted that the content of the aide memoire discussed above illustrates the appellant’s concern for Ms. Gunnery generated by the preceding interviews. It is submitted that the memorandum clearly establishes a relationship between the confession and her release; the only contention was the order in which this was to occur. It is further submitted that the appellant was induced by the remarks of the gardaí in Interviews 1-14 into making admissions in the interviews that followed – the appellant points out that he made his confession almost as soon as Interview 15 commenced.

40. The appellant accepts that the correct test is that laid down in McCann but at the core of his submission on this point is the argument that the trial judge incorrectly applied the test. It is stated that his failure to address the first strand renders the conviction unsafe, as this question merited rigorous determination. If the trial judge had found the words objectively capable of constituting a promise or threat, then the confessions would have to have been excluded unless the prosecution proved beyond reasonable doubt that they were not understood as an inducement (strand two) or were not a result of the promise/threat (strand three). It is submitted that strands two and three of McCann cannot be examined until the first prong is determined. Instead the trial judge just assumed dissipation from Mr. Doyle’s consultation with his lawyer between Interviews 14 and 15. This was entirely unjustified, as can be seen, for example, from the appellant’s ongoing concern for his ex-girlfriend and his child, which was expressed in subsequent interviews (16, 20 and 21) long after the consultation with his solicitor.

41. Finally, it is submitted that an appellate court is in as good a position as a court of trial to determine the first strand of McCann. This depends neither on the intention of the maker nor the understanding of the recipient. The appellant thus argues that the Court of Appeal failed to engage in an isolated analysis of this strand and was unduly deferential to the trial judge. Indeed, the more basic complaint is that the trial judge did not determine this issue at all, but rather having skipped over the second strand went straight to the final point of the test. Therefore, there were multiple errors in what should have been a sequential application of McCann and this Court is asked to correct or remedy those.

Submissions of the Respondent:
42. The DPP submits that the appellant is simply trying to re-argue the issue of admissibility once again, which is not permissible. Once the absence of a causal link was found to exist there was no basis for contesting admissibility, and as a result there is no purpose in separately analysing strands 1 and 2 of McCann, an issue which is now moot. In any event, the Court of Appeal reviewed the transcripts and found the trial judge’s decision to be correct.

43. It is further submitted that the trial judge considered all of the evidence, having viewed over 20 hours of recordings and having had the benefit of observing the witnesses first-hand. This aspect of the trial lasted nine days, at the end of which extensive submissions were made. It is said that one cannot focus on isolated extracts from the interviews, for to do so is divorced of context. The trial judge had the totality of the circumstances in his vision and both his conclusions and overall ruling are correct.

44. The respondent submits that Ms. Gunnery’s arrest was legitimate, and was lawfully carried out pursuant to section 30 of the Offences Against the State Act 1939 on the basis of a suspicion that she possessed information relating to a scheduled offence. During her initial interview she began to give relevant information, and whilst in custody in Limerick gave a full witness statement. She gave evidence at trial that could have been construed as incriminatory of the appellant. Defence counsel conceded that there had been no issue with extending her detention. Thus there can be no suggestion that she was wrongly arrested solely for the purpose of putting pressure on the appellant to confess. It is further submitted that the appellant and Ms Gunnery were not on good terms at the relevant time.

45. The respondent also submits that there was no error of law. A court must have some evidential basis to conclude that the words used were understood as an inducement and that the confession was made as a result. In this sense there is an evidential burden on the defence. The respondent maintains that there has been no evidence of either issue. Indeed, in one interview the appellant said that “it was my choice to admit what I did.” Furthermore, per McCann, interrogation necessarily entails more than gentle questioning, and gardaí are entitled to persist with such questioning. As in McCann, the appellant here had access to legal advice, regular refreshment and a chance to sleep. In Rennie it was stated that the person best able to get the flavour of the circumstances in which a confession was made is the trial judge; where he properly applies the law, deference is owed to his determination on the voluntariness of the confession. Here the trial judge observed the recordings and heard the witnesses. The appellant concedes that there was no oppression. It is therefore submitted that the trial judge did not commit any error of law.

46. The DPP submits that there is no causative link between any alleged inducement and the confession. A key feature of this “unusual” case is that this is not a case where the gardaí offered an inducement; rather, the appellant offered the gardaí a confession as an inducement to secure Ms Gunnery’s release. This was explicitly rejected, leaving the appellant in no doubt that there was no inducement on offer to him. It is submitted that the gardaí properly recoiled from what they regarded as a ploy to lure them into giving an inducement which would have invalidated the confession. The respondent also points out that the appellant spoke to his solicitor for approximately 25 minutes before Interview 15 commenced, and again during the interview.

47. Finally, it is submitted that there were other aspects of the interviews which supported the ruling of the trial judge. These included the fact that the appellant omitted references to any accomplices; that he said it was his choice to admit to the murder; that he indicated in Interview 15 that he was feeling alright; and that he accepted in Interview 20 that he had been treated fairly in custody. The appellant’s submission that he made reference to the pressure continuing to play on his mind in later interviews is taken out of context. The fact that he gave his rosary beads to the gardaí supports the contention that the interviewing officers had played to his conscience. Furthermore, it is submitted that the significance of his relationship with Ms. Gunnery was not what is now contended by the appellant, and that she had never visited him in Limerick, nor did he see her on occasion when he was in Dublin.

48. The respondent concludes that the trial judge was uniquely well placed to come to a conclusion on these factual matters, and was justified in concluding that the confession made during Interview 15 was voluntary and not the result of oppression or a threat or inducement. Enquiries as to voluntariness are especially fact sensitive and the trial judge conducted a very thorough enquiry and applied the correct legal principles in his adjudication of those facts.

Decision:
49. It is unclear from his ruling what precise findings were made by the trial judge on this issue: did he hold that objectively the disputed questioning amounted to a threat or an inducement, and did he hold that Barry Doyle himself so viewed the impugned remarks? On one reading he must have done so, as otherwise the causative issue would not have arisen. On the other hand, however, the learned judge may have assumed or simply proceeded on the basis that such could be regarded as having been established without so holding or finding, as in any event, in his view, any possible effect on voluntariness had ceased by the time of the confessions. It is difficult to know which is the case. I make this point not for the sake of it, but for some important reasons which I will outline in a moment. He did, however, clearly set out his reasons on the dissipation point.

50. This of course is an appeal not directly from the decision of the trial judge, but rather from the Court of Appeal. Whilst the findings of that Court are above set out (paras. 33-36, supra), it is useful to refer to them again in the briefest of terms. The Court, in its review of the judge’s ruling, found in the first instance that he had entirely rejected the inducement complaint but that in any event he had also held that even if a threat or promise had been made, the same had no legal effect on the confessions. As there was evidence to support these findings, the conclusion so reached could not be disturbed.

51. The Court then offered its own assessment on this issue, but in the process deferred significantly to the ruling as made: this by reason of the trial judge’s preferential position. It did however state, first, that the existence of any threat or inducement had to be inferred, as there was no express evidence to that end. Secondly, the Court of Appeal was satisfied that there was evidence to support the view that it was the prisoner’s sense of morality and better nature that caused him to confess, and not any other reason. Finally, on the overall question, the Court was also satisfied that the solicitor’s interaction with the gardaí was decisive in disproving the inducement hypothesis.

52. Assuming that what is above stated, when read in conjunction with the fuller description previously given, is a reasonable summary of both the trial judge’s ruling on this issue and the Court of Appeal’s review of that ruling, as I am satisfied it is, I am left in a position of some uncertainty as to what precisely was decided by the learned trial judge, and what precisely was accepted or rejected at the first appellate level.

The Law on Inducements: People (DPP) v. McCann [1998] 4 I.R. 397 (“McCann”)
53. McCann not only set out what the law is, but also how it should be applied. At p. 411 of the Report, the Court of Criminal Appeal, in quoting Phipson on Evidence (13th Ed.) at para 2.20, said:-

“As regards what constitutes an inducement, the test would appear to be (a) were the words used by the person or persons in authority, objectively viewed, capable of amounting to a threat or promise? (b) Did the accused subjectively understand them as such? (c) Was his confession in fact the result of the threat or promise?”
It is not in dispute but that this is the correct test in determining whether a confession was produced by a threat or an inducement. It is also accepted that gardaí are evidently persons in authority. What is at issue is the application and implementation of that test. In this regard this Court is asked to pronounce upon the mechanics or sequencing of the three prongs of the test, and also on the evidence that may be required to satisfy each constituent element thereof.
54. Perhaps rather surprisingly, given its centrality to any inducement challenge, the McCann triad does not appear to have been the subject of any great level of scrutiny in any reported judgment since it was pronounced in 1998. Evidently, in the intervening period it must have been frequently applied, one assumes without objection, whenever this type of issue was in play. Nonetheless, in light of the importance of garda questioning and interrogation to modern criminal investigation and evidence gathering practices in this jurisdiction, it is necessary that the proper method of applying the test should be clarified.

55. By way of introduction to this issue, it is worth setting out briefly some of the background on the law relating to induced confessions. At the core of this matter is the rule that only a voluntary confession is admissible, with the onus, to the criminal standard, being on the prosecution for this purpose (DPP v. Boylan [1991] 1 I.R. 477). Whilst the evolution of the rationale underpinning this concept need not overly concern us, nonetheless, it is of interest to note that whilst once resting at the door of reliability, it is now – and has been for more than 50 years – generally founded upon the principle that no one should be compelled to incriminate himself (People (Attorney General) v. O’Brien [1965] I.R. 142, per Walsh J. at p. 166). It is principally for this reason that the accuracy of a confession in terms of detail no longer carries the weight which it formerly did (see para. 35, supra). A further basis for the rule, sometimes cited, is that related to the reputation and integrity of the criminal justice system, an aspect of which is to discourage or deter police interrogation practices designed to obtain a confession at all costs (see generally McGrath, Evidence, 2nd Ed., (Dublin, 2014) at paras. 8-98 to 8-111).

56. In a review of a series of cases stretching from The Queen v. Johnson 15 Ir. C.L.R. 60, to The People (Attorney General) v. Manning 89 I.L.T.R. 155, the Court of Criminal Appeal in The People (Attorney General) v. Galvin [1964] I.R. 325 examined each of these decisions so as to deduce from them what the established position was regarding threats or inducements. The Court’s conclusion can be summarised as follows:-

(i) that answers given, statements made and confessions obtained must be ruled inadmissible unless made voluntarily, that is, without the influence of “hope of advantage or fear of prejudice”, or, as now more commonly expressed, without threat or inducement, excited or held out by a person in authority;
(ii) that in the absence of a causative link or temporal connection between inducement and confession, the latter will not be excluded solely because of some antecedent but ineffectual promise or threat; and, thirdly,

(iii) that even if the challenge should not be sustained, the Court still retains a discretion whether to admit or reject such a confession.

57. In fact Kenny J. could have added to this review the classic formulation of voluntariness as set out by FitzGibbon J. in the first reported decision of the recently defunct Court of Criminal Appeal, State v. Treanor [1924] 2 I.R. 193 at p. 208:

“A confession made to any person under the influence of a promise or threat held out by a person in authority, calculated to induce the confession, is inadmissible, unless it be clearly proved to the satisfaction of the Judge, whose duty it is to decide the question, that the promise or threat did not operate upon the mind of the accused, and that the confession was voluntary notwithstanding, and that the accused was not influenced to make it by the previous promise or threat.” (Emphasis added)
Subject to two observations, first, that evidently the standard of proof is beyond reasonable doubt, and, second, that the intention or motive of the person making the statement is irrelevant (Hoey, per Henchy J. at p. 652), the above passage nonetheless illustrates that the general principle is a long-established and deeply-rooted one in this jurisdiction; indeed, it is quite clear that the rule far predates even that judgment.
58. At a general level, the voluntariness test has expanded in scope over time such that now it encompasses not just induced confessions, but also confessions obtained by reason of objectionable events or circumstances, such as persistent or incessant questioning, the frequency and duration of interviews, the nature, wording or intensity of the questions, the treatment of the prisoner whilst in custody, or through disregard of some personal infirmity which materially affects the rationality of that person’s intellect and free will. The classic generalised statement in this regard is the judgment of Griffin J. in DPP v. Shaw at pp. 60-61. Although the appellant originally argued on these broader concepts of oppression and unfairness at both trial level and also in the Court of Appeal, his submission to this Court is much narrower and is solely focused on the inducement issue.

59. Sometimes in the literature and jurisprudence one will see references to “an inducement or threat” – indeed, even the point of appeal for this Court was so framed (para. 25, supra). However, I am satisfied on balance that the latter is really a subset of the former, and that an inducement should be considered as an umbrella term encompassing both promises and threats; thus an inducement may take the form of either the carrot or the stick.

60. The case law illustrates that any distinction which may exist between either description is of no relevance to the general application of the test. In any event, as the facts of this case illustrate, it can sometimes be difficult to differentiate between threats and promises, or suggestions, questions, or offers (Hoey, Walsh J. at p. 649), and in fact such expressions may sometimes be rolled up as one, or travel in tandem with each other. Therefore, in this judgment, unless otherwise made clear, I will use the word “inducement” as covering both threats and promises; in addition, I will treat the word as having the same meaning as the phrase “improper inducement”, where that might be used.

Application of the McCann test:
61. In my view, it is of the first importance that a trial court should approach this issue in the sequential order which McCann ordains. The individual elements of the test should not be judicially collapsed or even inadvertently subconsciously merged.

62. The first step in the process, therefore, is to decide whether the words used, objectively viewed, are capable of amounting to a threat or promise. If not so capable, the inquiry is at its end. If, however, the contrary is the case, it is then necessary to proceed to the second limb: has the accused subjectively understood them as such? Again, if this is not the situation, this ground of challenge cannot succeed. If the second limb is also satisfied, the trial judge should then proceed to the final question and determine the existence or absence of a causal link between the inducement and the confession so obtained. Where the accused has raised and sufficiently engaged with the issue, the DPP must satisfy the court that one or more of such elements do not exist: if she does, the objection made should be rejected; otherwise the court must hold that the confession procured was inducement-related.

63. There are, in my opinion, substantial reasons for this approach. First, it has the benefit of compelling the judge to look at each issue separately, and to consider within that issue the particular facet of the test which is in question. This approach should be repeated for each limb of the test so that a detailed and individual determination is made at each level. Such should have the immediate effect of sharply focusing the judge’s attention on what evidence is available on that particular aspect and what findings or inferences might be open to him. It should help avoid the possibility of inadvertent movement between the strands and of the judge incorrectly assigning a particular piece of evidence to the wrong strand. In addition, it facilitates an increased consciousness of where the burden of proof is at all stages. Moreover, each characteristic of the test poses a different challenge and requires a different focus. It is notorious fact that where the correct question is addressed, it is far more likely that the correct answer and result will follow. All of these potential risks are avoidable and confusion can be averted if this sequential approach is adhered to. Further, I am satisfied that it is more analytical, objective and clinical in its approach, requirements which are entirely commensurate with the powerful impact which confessions are apt to have on convictions. If what I suggest is adhered to, one should see the application of the rule in its full force.

64. The second reason for this suggested approach is that it facilitates a much better understanding of the issues from the perspective of an appellate court. It is unsatisfactory for such a court to have to infer from a ruling what was in the judge’s mind on some one or more particular aspect of the test. If no clear finding on each element is made, it makes review much more difficult. It is also more transparent and will leave the parties in no doubt as to the basis of the decision.

65. The third reason is significant for the overall administration of justice and it relates to the interrogation of suspects while in custody. In such context, it surely must be of importance to know whether or not in the court’s view this particular type of suggestion or that particular line of questioning falls foul of the first aspect of the McCann test. A decision one way or the other must be of benefit not only to members of the force involved in interrogation and their superiors, but also to the public generally. Such knowledge may well influence future behaviour.

66. This case provides a good illustration as to why the approach which I advocate should be and should become the normal and routine application of the test. Contrast what the trial judge said with the Court of Appeal’s view of what he said. In his ruling, the trial judge stated that “[t]he first thing to be said is that these remarks must be viewed in the overall context of all that had taken place” but went on to say that:-

“Notwithstanding the context in which they occurred … even if these promptings could possibly amount to an inducement when objectively viewed they were not immediately acted on and their effect, whatever it may have been, was dissipated by the consultation Barry Doyle had with his solicitor and his solicitor’s interaction with Detective Garda Hanley and Detective Sergeant Philips. This broke any possible causative link…”
67. The Court of Appeal, in its own analysis of the transcript, stated that “[s]ome of the Garda comments are colloquial, to say the least, but there are no threats uttered. Neither is any explicit promise or inducement offered. It follows that any inducement or threat must be an implied one.” On the question of an implied inducement, the Court endorsed the trial judge’s approach, saying that “[g]reat weight must … be given to his assessment that there was no inducement or threat”, and continued that “… it is clear that the judge did not think that there was any inducement but went on to hold that even if there was something to satisfy the first leg of McCann/Rennie, and that it operated on the appellant, it was dissipated by the intervention of the appellant’s solicitor”.

68. With the greatest of respect, it does not seem so readily apparent to me that the trial judge in fact found that, objectively viewed, there was no inducement. Nor was it that obvious to at least one other member of the Court, with MacMenamin J. being expressly of opinion that the trial judge in fact found that the words complained of constituted an actual inducement in the first place. Whilst I believe that this is the better view of what occurred, nonetheless there remains the possibility that no definitive finding was reached on this, or indeed on the second aspect of the test. If that be the case, the same is perhaps understandable in that the learned judge may have felt that his conclusion on dissipation rendered the preceding questions largely academic. For the reasons given, I believe that such an approach was incorrect.

69. In advocating this stepped assessment I am not suggesting that each prong can be rigidly compartmentalised or that aspects of the evidence may not overlap. An overly refined approach may unnecessarily complicate the rule in its application. However, once the separation above-described is adhered to, the trial court should have no undue difficulty in implementing this type of analysis.

Applying McCann to this case:
The Most Material Evidence:

70. What then is the evidential scaffolding that this Court can confidently utilise so as to analyse this aspect of the case? The most important pieces of evidence in my view, which incidentally are not materially dependent on seeing or observing the witnesses or on the advantage of being the trial judge, are as follows:-

(i) that during the last interview conducted between 22:38 and 23:35 on 25th February, 2009 (Interview 10), Mr. Doyle was informed by the gardaí for the first time that Victoria Gunnery, whose relationship and motherhood was known to them, had been arrested and detained;
(ii) that during interviews conducted on the day following, the 26th February, (Interviews 11-14), the gardaí as part of their questioning made the statements and uttered the remarks which are outlined at para. 27, above;

(iii) that Interview 14 ended at 18:35 that day; the prisoner’s solicitor arrived at 18:52 and departed the station at 19:17 and the next interview, namely Interview 15, commenced at 19:43;

(iv) that during Mr. O’Donnell’s 25 minutes at the station, the following occurred:-

• a ten minute consultation was first had with the client;
• the solicitor then went off and spoke to the gardaí;

• the solicitor then returned for a further ten minute consultation;

• the solicitor again spoke with the gardaí; and, finally,

• after a further 4 – 5 minute consultation, he left the station.

These periods must be approximate, given the arrival and departure time of the solicitor.
(v) the details of the exchange between solicitor and gardaí are noted in the aide memoire (para. 14, supra), the accuracy of which was not seriously challenged at trial; and

(vi) that pretty much immediately after Interview 15 had commenced, Mr. Doyle admitted to being in Clonmore on the night in question and a short time thereafter, following a further three minute telephone conversation with his solicitor, he admitted to the murder of Mr. Geoghegan.

First Prong

71. I am satisfied that an appellate court can of itself assess the first prong of the McCann test and to that extent, whilst always remaining conscious of the views of the trial judge, does not have to be nearly as deferential as might appear from the judgment of the Court of Appeal. Therefore, I should think that in the ordinary course of things, an appellate court is well placed to make an “objective” determination, on the basis of the ordinary and natural meaning of the words used, of whether the comments made were or were not capable of amounting to an inducement.

72. The judgment in DPP v. Hoey [1987] I.R. 637 (“Hoey”) offers support for this view, even if it was a non-jury trial. In that case the Special Criminal Court had held that a certain question put by the gardaí was “the occasion” but not “the cause” of the admission, and accordingly that the confession was voluntary; the Court of Criminal Appeal, although agreeing as to outcome, took the view that the remarks had caused, or, as the Court put it, “induced” the confession. However, it granted a Certificate under section 29 of the Courts of justice Act 1924 on the question of whether it necessarily followed from this view that the question put to the appellant also constituted an “improper” inducement. The Supreme Court unanimously held, in each of the three separate judgments delivered, that the comments made (para. 75, infra) had indeed amounted to such an improper inducement and had directly led to the confession. What this aspect of Hoey therefore illustrates is that an appellate court may arrive at a different conclusion than the trial court on the question of inducement or no inducement.

73. If words, in context, are to have any understandable meaning, how can what the investigating officers said to Mr. Doyle during Interviews 11-14 (see para. 27, supra) be interpreted as anything other than that the following was the situation:

(i) that Victoria Gunnery was in custody for “the same offence” arising out of “the same situation” as he was, which could only mean that following her arrest and detention she was being interrogated for the murder of Shane Geoghegan. Mr. Doyle had no way of knowing that this was false;
(ii) that in reality the gardaí knew that she was innocent; that her detention and interrogation was because of him and that he was responsible for the hardship and distress which such detention was causing, and also for the fact that their child was being deprived of her mother; and

(iii) that there would no longer be any reason to detain her if he should tell the truth: if he should confess, she would then be released.

This is very much an incomplete survey of what previously has been set out, but it fairly and accurately represents the remarks as made.
74. The first question, then, is whether the words used were capable of amounting to an inducement. There are a great many decisions on what might constitute a threat in this context; the most obvious example would be a threat to do violence to the accused or a close family member. Any suggested inducement falls to be determined according to its own facts and the particular circumstances of the case. Even viewed objectively, what is an inducement in one situation may not necessarily be so in another. I am therefore of the opinion that cases dealing with direct threats of violence, or threats to the accused generally, are of little value in this situation. Even as between relatively similar inducements, a minor charge in circumstance may be such as to strip a comparison of its worth. Nonetheless, it is still at least somewhat instructive to briefly refer to the following cases.

75. In Hoey, the accused was being questioned in relation to firearms and ammunition found in the bedroom of the home where he lived with his mother, his sister and other relatives. In the course of this questioning, during which for the most part he remained “intransigently silent as to his responsibility” (Henchy J. at p. 652), the following was put to him by the interviewing garda: “It must be somebody in the house. Will I have to get some member to go up to your family and find out from them if anybody at 78 Rossmore Avenue is going to take responsibility for the property?” In the very next exchange, the accused made a statement in which he admitted responsibility for the guns and ammunition.

76. The manner in which each court viewed the statement and dealt with its consequences is set out above, and need not be further repeated. What is of interest in the present context is the unanimous opinion of the Supreme Court that the obvious implication of what was said was that if Mr. Hoey refused to take responsibility, then his family members would be further interrogated to identify who would, whereas if he did confess, they would be left undisturbed and not further interviewed. This, in the Court’s view, clearly amounted to an improper inducement which was causatively linked to the resulting admission, and thus that admission could not be said to have been voluntary.

77. Another example with some similarity to the instant case is DPP v. Boylan [1991] 1 I.R. 477, where, although decided on other grounds, McCarthy J. referred to an “allegation … of threat and if it were true, a very grave threat, that of going to the applicant’s home and making life unpleasant for his wife and family.” Quite evidently, if sustained the same would have amounted to an inducement. Finally, The People (DPP) v. Pringle (1981) 2 Frewen 57 has also been mentioned, where the interviewing gardaí told the accused that a lady with whom he had a “close relationship” had been questioned about the alleged crimes and the accused’s involvement in them, that she might be charged as an accessory, that “the situation looked bad” for her, and that she was in “a very bad state” and had been physically sick in the Garda Station. The accused was told that if he gave an account of his movements on the night in question, “the whole matter of Eva [the lady] being, at worst, charged, or, at least, having to give evidence wouldn’t arise.” The resulting admissions were held to be inducement related: the Special Criminal Court “viewed … with concern the nature of the statements made … and [was] satisfied that the effect thereof could and consequently must be regarded as constituting a threat or an inducement to the accused to make a statement.” This conclusion was not disturbed by the Court of Criminal Appeal, although it endorsed the trial court’s finding that the threat was dissipated by subsequent events (see para. 94, infra).

78. Whilst I refer to these cases as illustrating the type of statement that amounts to an inducement, it is important to reiterate that each case is an individual one and must be assessed as such. What is clear, however, is that once the yardstick is met, even a slight or trivial threat, promise, offer etc. may constitute an inducement.

79. As appears, both Hoey and Boylan, and to a lesser extent Pringle, largely involved a single inducement: the instant situation is more complicated given that the remarks complained of were made during the course of several interviews. It should be stated, however, that even where the underlying interview process is conducted over a protracted period, this does not necessarily mean that each remark should be regarded as individually objectionable. That is not the case. I therefore wish to make clear that what is under consideration as constituting a potential inducement is the trade-off between release and confession. It is thus only where some other statements feed into this that they too are relevant.

80. It is impossible for me to conclude otherwise than that when objectively viewed such statements, in the context in which they were made, consisted of an offer or promise that in return for a confession, Victoria Gunnery would be released. It may be that one could also see what was said as a form of a threat, in that her detention would continue in the absence of a confession. Either way, I so conclude at the very first level of principle. If what was said in Hoey was considered unanimously by this Court to be an inducement, it must follow, in my view, that the impugned remarks in this case must likewise be so regarded.

Second Prong:

81. The murder of Shane Geoghegan was a horrendous act of cold-blooded criminality. There was a massive public outcry at its happening and the resulting garda investigation was intense. He was, as I have said previously, an utterly innocent victim. Any person found guilty of any murder would of course get a life sentence, but in the circumstances which I have described such a verdict could possibly have an added influence on the actual incarceration period of that sentence. All of these matters were either well known or most obvious. So why did Mr. Barry Doyle try and cut a deal? In so doing at a time when his interrogation had otherwise really produced nothing of value, why was he prepared to advance his own conviction, with the inevitable consequences of so doing? The aide memoire is strikingly informative, and, in my view, decisive on this point.

82. Before adverting to its terms, however, it is of some significance to note the exchange which Mr. Doyle was involved in towards the end of Interview 14, which clearly showed that he was concerned for the welfare of Ms. Gunnery and their child. As an example, he said:-

“I am just thinking about the baby …”
“Can I ring Vicky?”

“Was the door [of Vicky’s home] put in?”

This I quote as an indication of Mr. Doyle’s mindset just over an hour before the admission of murder was made. Therefore, whatever impact this and the preceding interviews (Interviews 11-13) may have had on Mr. Doyle occurred prior to the solicitor’s arrival at the station, which is timed at 18:52. This critical fact seems to have been lost sight of with the concentration being almost exclusively on Interview 15. If the inducement theory is to hold, however, the earlier questioning is inextricably linked to the latter.
83. It is clear beyond doubt from the aide memoire that Mr. Doyle gave instructions to his solicitor as to what he hoped to achieve. In simple terms: “I will confess but I want Victoria Gunnery released first.” Disregarding the timing point for a moment, one cannot in my view better an understanding of why the accused embarked upon this approach other than his belief that by confessing, Ms. Gunnery would in fact be released. It would be a major read down of the established circumstances to reject that what he perceived as being required to secure Ms. Gunnery’s release was not uppermost in his mind when giving the instructions which he did to his solicitor. Although the trial judge and the Court of Appeal felt that he sought this deal because of appeals to his humanity and better nature, he was described in the same breath as a strong and robust person and no stranger to risk: he slept with a bullet proof vest. In any event, it is unclear how these matters could have affected the appellant’s subjective understanding of what was said. This suggested explanation, in my view, is not plausible, and arguably not relevant on this point. Accordingly, as there is no other reason to be found in the evidence as to why he sought this deal, it follows that the impugned statements were understood by him as the making of an offer that in return for a confession, the release of Ms. Gunnery would occur. Therefore I am satisfied that strand No. 2 of McCann has been met.

84. In so holding, I am not in any way standing down the respect which an appellate court should give to the role of the trier of primary fact. Evidently, there may be circumstances where a transcript of comments made in the course of questioning does not fully convey the atmosphere of the interrogation room or the tenor of the questions being put; it is certainly conceivable that a particular tone or demeanour could turn an ostensibly innocent comment into something more sinister, or perhaps negate that which appears to be a threat but in reality was quite benign, but such circumstances do not overshadow the evidence upon which this conclusion is reached. Accordingly, I am satisfied at this point of the analysis, first, that certain of the remarks made by the investigating officers objectively amounted to threats or promises, and, secondly, that they were subjectively understood as such by the appellant. This then in turn leads to the third prong of the McCann test.

Third Prong:

85. This aspect of McCann centres on whether the confession was in fact the result of the inducement. Critical to this issue of causation is the question of dissipation – whether the effect of any inducement was broken or had worn off by the time the confession was made in Interview 15, which commenced at 19:43 on the 26th February, 2009. This, being the first admission point of guilt, is the critical juncture at which this issue must be judged. In examining this issue it is important to recall what was asked of this Court in the Determination granting leave on Issue No. 1, that being “…whether or not there was any evidence on which it could have been determined that the effect of the said threats or inducements (if any) had ‘dissipated’ or ‘worn off’ by the time of the alleged admissions”. The focus of this aspect, therefore, is on an examination of the relevant evidence.

86. In the view of the trial judge, the Court of Appeal, and the majority of this Court, the interactions between the appellant and his solicitor, and his solicitor and the gardaí, between Interviews 14 and 15 are the critical factors which ground the conclusion that if there was an inducement, it had dissipated prior to the first admission, and its effects had ceased. It is said that this is evidenced by the transaction recorded in the aide memoire. Inherent in this approach is the view that whatever quid pro quo, so to speak, that Mr. Doyle may have thought existed, was firmly off the table following the gardaí’s rejection of the conditional offer made to them on his behalf.

87. In support of this conclusion my colleagues above referred to have noted that the learned trial judge found, though not in his discussion on dissipation but rather when dealing with oppression, that the appellant had first begun to engage with the gardaí as a result of appeals to his humanity. He held that this engagement was built on by the investigating members and that ultimately the confessions could be traced to these appeals. To this, which it supported, the Court of Appeal added in his ‘better nature’.

88. It must be recalled that neither Mr. O’Donnell nor the accused gave evidence. Those who did, by that fact alone, could not have nuanced what the documentation shows. Whilst acknowledging that the trial judge viewed the recordings and can thus be said to have seen the interaction between the accused and the gardaí during interviews, such an advantage did not extend to the interactions which are relied upon to justify the dissipation conclusion. No one has a live picture of the solicitor’s engagement with the gardaí or what occurred between solicitor and client. What there is, is the aide memoire referable to the former, which also contains what Mr. O’Donnell told the gardaí of his conversation with his client. The trial judge was not, therefore, in any real sense in a better position than this Court to make a determination in respect of these critical intervening matters.

89. Against this background, I am of the opinion that the aide memoire admits of an entirely different conclusion than what my colleagues have held. In the knowledge of what transpired during Interview 14, including the detainee’s statement that “I’ll answer your questions after I speak to my solicitor”, and working on the basis of the memorandum, the following appears to have been the situation. Mr. O’Donnell arrived at the station and consulted with Mr. Doyle. The solicitor then asked, one can only presume at the behest of the appellant, to speak to the garda officers and communicated the proposed trade: an admission in exchange for Ms Gunnery’s prior release. As stated above, the fact of this exchange being floated at all is strongly suggestive of the fact that at the end of Interview 14, the appellant was under the impression that an inducement had been offered and that a quid pro quo could secure his ex-girlfriend’s immediate release. Mr. O’Donnell was told that this would not happen, that only the truth would suffice, and that once that happened there would be no reason to detain Ms. Gunnery any longer. He told the members that the appellant would answer one question only, and was again told that this would not suffice. Mr. O’Donnell was then told that the appellant would have to admit to what he had done in an interview and that Ms. Gunnery would not be released before any such interview. The solicitor then returned to Barry Doyle and one can fairly assume communicated what was said to him.

90. Mr. O’Donnell then returned to the investigating gardaí and reiterated that Mr. Doyle would not say anything prior to Ms. Gunnery being released. He was told that this was an inducement and that there was no way it would happen as it would not be admissible. Mr. O’Donnell responded that he had instructed Mr. Doyle to say nothing and that he would not admit to the murder. Mr. O’Donnell was then told that “Barry Doyle had to tell the truth about what happened”, and he replied that the gardaí had a bit more work to do. Following another short consultation, Mr. O’Donnell left the station. These are the established facts and are not in any way dependent on oral evidence, or on an individual witness assessment.

91. It is not clear how anything in this transaction necessarily leads to the view that Mr. Doyle must have known that the quid pro quo was no longer an option. The content of the aide memoire does not in any way suggest that the gardaí sought to retract or otherwise to withdraw the previous comments, observations or suggestions made during Interviews 10-14. In fact the aide memoire reaffirms, in express terms, the continuing position of the gardaí; may I quote the following from it:-

“I [interviewing garda] stated that there was no way this would happen, that he would have to tell the truth about what happened, and once he told the truth about what happened we would have no reason to detain Victoria Gunnery any further. … I said that Barry Doyle had to admit what he had done in an interview and that his girlfriend would not be released before any interview.”
In other words, Ms. Gunnery would not be released before any confession was made, and the position previously stated remained as outlined. It would have been quite simple for the gardaí to have entirely disassociated Ms. Gunnery’s release from the appellant’s continuing detention and questioning. A statement to the effect that her ongoing detention was a matter entirely distinct and separate from his position, and that what he might say would have no influence on same, would have accomplished this. Whilst several opportunities arose to vouch such a statement, it is striking that the gardaí chose not to do so.
92. The interaction above mentioned leaves entirely open the possibility that the appellant believed that Ms. Gunnery’s release was dependent upon a confession. Simply because the gardaí rejected the timing sequence, but instead rightly insisted that he tell the whole truth, does not negate the distinct possibility that he may well have believed that Ms. Gunnery would be detained so long as he did not confess. Once this possibility realistically exists, it is immaterial that a contrary possibility may also be found, as in all such situations the inference most favourable to the presumption of innocence must be given to the accused. Without more, therefore, it is difficult to say beyond a reasonable doubt that the underlying inducement was not still operative.

93. Indeed, what transpired next could well be read to suggest that the inducement did produce the confession. Presuming the aide memoire accurately reflects what Mr. O’Donnell had been telling the appellant, Mr. Doyle had been advised by his solicitor, very shortly before the confession, to say nothing; in other words, to exercise his right to silence. Nonetheless, at the very outset of Interview 15, he delivered up to his interviewers for the first time a valuable piece of information: he acknowledged his presence at Clonmore on the night of the murder. Then, following a brief telephone consultation, his admitted his responsibility for the murder, and went on to give a detailed description thereof. If the appellant had not understood there still to be an inducement, or if the inducement had dissipated, it must be asked, in the face of advice to remain silent, why would he have capitulated so immediately and so fully as he did at the outset of Interview 15? This is all the more curious given the serious nature of the crime, the public backlash at the killing of an innocent man, the likely impact which a confession would have on his trial, and the consequences for the appellant if convicted.

94. The only alternative suggestion which is being offered to explain why Mr. Doyle spoke when previously he had been silent is the gardaí’s appeals to his humanity, morality and conscience, an explanation also advanced under the second limb of the McCann test (see para. 83, supra). The trial judge and the Court of Appeal accepted this as the true cause of the appellant’s confession, although such perhaps jars slightly with the trial judge’s description of the appellant as a robust person and no stranger to risk. This reasoning in my view is simply not plausible; more significant, however, is the fact that subject to the paragraph following, there is no evidence whatsoever to sustain such a finding. Such is in sharp contrast to the Pringle case, where the accused told the gardaí, before any admissions were made, that he knew that they could not legally do what they had threatened (para. 77, supra). Furthermore, in his direct evidence he very much repeated the same point to the court. It is therefore not difficult to see how dissipation was evidentially established in that case.

95. The handing over of the rosary beads is pointed to as an evidential manifestation of the “morality/humanity” theory of the confession. The reason why this act was not captured by the recording is that such equipment had been turned off as Interview 15 had ended. It is therefore immediately obvious that this occurred after the confession had been made. Such an act is not in any way inconsistent with the inducement theory; having confessed to this awful murder, it is no surprise that a person would show remorse or contrition. The fact that they do so after confession is scarcely suggestive that it was their own conscience or innate humanity which led them to break their silence in the first instance. It would be quite a different matter if that event had occurred prior to the confession. It did not, however.

96. I also reject any contention that dissipation can be inferred from the fact that the appellant did not immediately confess following one or other of the inducing statements. There may be circumstances where a temporal interval between inducement and confession is, of itself, a basis to find that the former did not cause the latter. However, I do not think that this is such a case.

97. The alleged inducements were put to the appellant in Interviews 11 (09:03 – 11:12), 12 (12:22 – 13:43), 13 (15:02 – 16:13) and 14 (17:32 – 18:35). The confession was made during Interview 15, held from 19:43 to 21:05, and evidently was made close to the outset of that session. Given the nature of detention in a Garda Station, with its attendant pressures and inherent coercive force, I do not think that the passage of time from a continuous series of inducements made in the morning, afternoon and early evening of the 26th February, 2009, could of itself sustain a dissipation finding by approximately 20:00 that evening; nor, as outlined above, do I believe that it was cured by his access to legal advice. Indeed, as the above analysis shows, the interactions referred to in the aide memoire credibly support an interpretation that the inducements so made were reaffirmed immediately prior to Interview 15, during Mr. O’Donnell’s visit to the station. I would therefore not infer dissipation from any temporal gap between inducement and confession.

98. Nor am I convinced that the fact of the appellant’s confession being somewhat controlled, in that he spoke only of his own involvement and did not implicate others, is inconsistent with the argument that the confession was involuntary. The mere fact that a person does not blab freely and reveal all they know about a crime is, without more, wholly irrelevant on the causation point; it is entirely plausible that a person in the appellant’s position might confess so as to avoid the punishment or gain the advantage held out to them by their interrogator, whilst at the same time being mindful of the perceived consequences of a fuller confession, not only for himself but also for another; in this instance, for example, for Ms. Gunnery upon her release.

99. Finally, there is perhaps more to be made of the fact that he did not inquire into whether Ms. Gunnery had in fact been released immediately following his confession, and if that had continued to be the situation it may indeed have been a weighty factor upon which appropriate inferences could be drawn. But that was not the situation. During Interview 16, which commenced at 22:09 that evening, the appellant stated “If I was thinking about myself, I wouldn’t have told you that I did.” He later asked the interviewing gardaí “Is Vicky still up there? [that is, in custody] Is she?”, and either having obtained no response or one considered inadequate, he continued “I am saying nothing if Vicky’s still up there”. Further relevant interventions on his part can be seen in later and subsequent interviews. Therefore, in my view, the fact that it was some two hours after the confession was made when he first inquired about Ms. Gunnery does not hold much significance on this particular point.

100. On this review, I must conclude that the DPP has not discharged the onus of proving beyond a reasonable doubt that the confessions were not procured by an inducement, be it offer or threat. Accordingly, as such were not made voluntarily, they were inadmissible and should have been ruled out. In these circumstances, whilst it remains a matter for the DPP, I am satisfied that this is an appropriate case for a retrial to take place.

101. Before leaving this first question, could I refer to para. 18 of the judgment of O’Donnell J., in which he criticises my assessment of the issues arising. His reading of this aspect of my judgment leads him to conclude that I have entirely abandoned Hay v. O’Grady [1992] 1 I.R. 210 and that, in effect, I have stood down the distinction between the role of the trial court and that of an appellate court. With the greatest of respect, this is a mischaracterisation of my script on this issue.

102. First, on each and every aspect of the inducement issue I have addressed this point: see paras. 71, 83, 84, 88 and 94. Secondly, the evidence which I have looked at on this matter is identified at para. 70, supra, and is set out under six different headings, not one aspect of which is referable, in any true sense, to the demeanour of witnesses, memory recall or recollection, nor does the question of credibility come into play. All of the critical evidence given was, in essence, documentary based, the meaning of which does not depend on either being a trial judge or an appellate judge.

103. Furthermore, Prong 1 of McCann calls for an objective assessment. Prong 2, in the absence of any evidence from Mr. Doyle or perhaps from his solicitor, becomes an inferential issue. In any event, I would be keen to see where the trial judge made any finding of fact, either in a primary sense or at all, on either of those prongs. In fact I believe that the better view is that no findings were made by him on either of these issues.

104. With regard to the third limb, namely, dissipation, the most critical evidence was what occurred during Interviews 11-14, and Interview 15, as well as the aide memoire. True, the trial judge felt that the confession resulted from pleas to Mr. Doyle’s better nature and humanity; however, there is simply no evidence upon which a finding of primary fact could be made to this end, so the view of the learned judge could not rest on such basis. Notwithstanding this, it might be said that by viewing the tapes he had an advantage over this Court in finding as he did: even so, such conclusion leaves standing, side by side with it, the possibility which I have articulated above. If such is at least equally sustainable, as I am satisfied that it is, then the appellant is entitled to the benefit of it as I have identified in para. 92, supra.

105. In these circumstances I am satisfied that I have remained faithful to Hay v. O’Grady.

106. Finally, on this aspect of the case, I have not lost sight of this appalling murder. However, I am reminded of what Henchy J. said in Hoey at p. 651:-

“The underlying principle would appear to be that, while it is a matter of public policy that those who have committed crimes should be apprehended, tried and convicted, the requirements of basic fairness, which necessarily underlie the administration of justice, demand that no accused person shall be convicted as a result of an incriminating statement made by him, unless the prosecution show beyond a reasonable doubt that the statement was voluntary, in the sense of representing the accused’s own free will.”

Issue 2:
Whether the appellant was entitled to have a solicitor present during interrogation by the gardaí

107. The second issue which arises on this appeal also relates to the interviews of the appellant while in Bruff Garda Station. The question posed for consideration by the Court was:-

“Whether or not the applicant was, in the circumstances of this case, entitled to consult with a solicitor, and have a solicitor present, prior to and during the 15th interview with the Garda Síochána, during which admissions were alleged to have been made. This raises the question of whether the right to have a solicitor present during questioning is a matter of right of the detained person, or a matter of concession by the Garda Síochána.”
108. In essence, the appellant seeks to assert a constitutional entitlement to have a solicitor present during questioning by An Garda Síochána. It is accepted that the appellant did not ask for a solicitor to be present in the interview room and that any such request would have been rejected, as the prevailing position at the relevant time was that there was no right to have a solicitor present during interview.

The Trial Judge’s Ruling:

109. The issue of whether there is an entitlement to the presence of a solicitor during police questioning does not appear from the trial judge’s ruling on the admissibility of the confessions to have had much prominence in the court of trial, although the appellant did raise it. The trial judge held that the appellant had adequate access to legal advice. He noted that the appellant had two consultations with his solicitor while in the Garda Station prior to making the admissions, and that he was represented by his solicitor in court when the application was made to extend his detention. Sheehan J. did not consider the length of either consultation to be relevant. He also held that the gardaí were entitled to continue interviewing the applicant after he had complained that a short phone call with his solicitor was insufficient and when his solicitor was expected to arrive at the station within the hour. Thus there was no breach of Mr. Doyle’s constitutional right to legal advice.

The Judgment of the Court of Appeal:

110. Equally, the Court of Appeal did not directly consider this issue in the same manner as this Court is mandated to do by virtue of the question upon which leave was granted. In fact it covered several matters which do not arise from that question. In any event, it considered the breach of the right of access to a solicitor in the context of oppression and fundamental fairness (DPP v. Shaw). It held that Mr. Doyle had access to his solicitor for as much time and on as many occasions as he or his solicitor requested. It thus found that there was no oppression.

111. Furthermore, the Court noted that the appellant’s solicitor did not ask to be present during garda questioning. The Court acknowledged, however, that any such request would have been refused and stated that it was not the understanding at the time that a lawyer was entitled to be present. The Court thus held that this “does not make the detention of the appellant retrospectively unconstitutional on the basis of a hypothetical refusal of a request that was not made.” It found DPP v. Gormley; DPP v. White [2014] 2 I.R. 591 (“Gormley and White”) to be of little relevance and considered the quoted European Court of Human Rights (“ECtHR”) jurisprudence to be wholly distinguishable from the circumstances of the present case. The Court further held that it was by no means clear whether the presence of a solicitor would have been of any great assistance to the appellant as the same questions would still have been put to him. The right to silence does not imply a right not to be asked questions.

112. Overall the Court considered the key point to be the fact that the interviews were video recorded and most were viewed by the trial judge to ascertain what went on during the course of such interrogation. The Custody Regulations were complied with and there was access to a solicitor. Thus the Court of Appeal concluded that the appellant had not established that the trial judge was in error in the conclusions he reached, or that he had misapplied the law.

Submissions of the Appellant:

113. The appellant submits that his access to a solicitor, throughout his period of custody but specifically prior to and during the critical Interview 15, was so restricted and perfunctory that it did not constitute “reasonable access”. At the heart of this requirement for reasonable access is the protection of the right not to self-incriminate. Access must be meaningful and here the appellant’s solicitor was not given sufficient information to protect his client’s rights. The only detail his solicitor was told regarding the allegations was the nature of the crime. It is further submitted that prior to his request for access on the 26th February, 2009, the appellant had had only 13 minutes of access to his solicitor, of which only nine were in person; this in the context of a 60-hour detention with 20 hours of interviews. The appellant also points out that his request to postpone the continuation of Interview 14 until he had had a proper consultation with his solicitor was ignored, and that further inducements, threats and pressure were applied over the remaining hour of that interview. It is submitted that such access as the appellant had with his solicitor was insufficient to offset the inequality between him and the experienced garda officers who interrogated him, and that the confession evidence should be excluded. This failure to ensure reasonable access resulted in a failure to ensure a trial in due course of law.

114. It is also submitted that Interview 14 was unlawful and constitutionally forbidden, and that the appellant’s position was irretrievably prejudiced following this interview. Such prejudice was not cured by the subsequent consultation with his lawyer. The appellant stated “I’ll answer your questions after I speak to my solicitor” during that interview, indicating that he had decided by that point to incriminate himself and to use his solicitor to broker the agreement.

115. In a related but in some ways distinct argument, and one which more directly addresses the point on which leave to appeal was granted, the appellant also contends that he had a right to have his solicitor present throughout the garda interviews. His underlying contention in this regard is that the presence of a solicitor in the interview room would have prevented the gardaí from pursuing certain lines of questioning which, it is suggested, reduced the appellant’s capacity to withstand pressure. He thus says that the Court should depart from its previous judgment in Lavery v. Member in Charge, Carrickmacross GS [1999] 2 IR 390 (“Lavery”). Furthermore, since the decision in Gormley and White, the Department of Justice has communicated with the Law Society indicating that defence solicitors may be present at interviews with suspects, but the appellant submits that this should be a constitutional right rather than a concession. The undisputed policy of the gardaí at the relevant time was to refuse to allow solicitors to be present during interrogation and thus the Court of Appeal was in error in considering that any refusal of access during interview was “hypothetical.” The right should not be dependent on a request being made and should be considered to have been denied unless the suspect was informed of his entitlement.

116. The appellant acknowledges that Gormley and White only establishes an entitlement to reasonable access to legal advice prior to interrogation, but argues that the entitlement to reasonable access also encompasses an entitlement to legal advice during garda interviews. It is submitted that many remarks made during the interview, inter alia concerning the appellant’s ex-girlfriend and his children, would not have been permitted had a solicitor been present, and that such comments were intended only to increase the psychological pressure on the appellant to confess. Thus it is submitted that the absence of a lawyer in the room gave the interviewers a free hand to raise matters of no relevance to the investigation in order to undermine the appellant’s right to silence. The appellant refers at length to Miranda v. Arizona 384 U.S. 436 (1966) (“Miranda”), which established the right to have counsel present during questioning in the US. It is submitted that many of the deceptive methods and stratagems of interrogation identified in Miranda were utilised against the appellant. Thus it is submitted that the exclusion of a solicitor from the interview process led to inequality between the parties, created inappropriate pressures, and resulted in manifest unfairness. The absence of a lawyer in the room meant a failure to redress the imbalance which existed between the appellant and his interviewers.

117. The appellant recognises that the ECtHR has not yet held that suspects in custody have an invariable right to the presence of a lawyer during questioning. However, he states that there are significant principles of general application in Magee v. UK (2001) 31 EHRR 35 (“McGee”), where it was held that denial of access to a lawyer for long periods is incompatible with the rights of the accused under Article 6. The appellant also refers at length to Salduz v. Turkey (2009) 49 EHRR 19 (Application no. 36391/02, judgment of the 27th November, 2008) (“Salduz”), another case where an admission was made without any access to a lawyer. The ECtHR in that case held that “access to a lawyer should be provided as from the first interrogation of a suspect by the police.” This case was considered by the UK Supreme Court in Cadder v. HM Advocate [2010] UKSC 43 (“Cadder”), which noted that the ECtHR is determined to tighten up the approach to duress or pressure of any kind being applied to a suspect. The UK Supreme Court also noted that the ECtHR understands the privilege against self-incrimination to be primarily concerned with respecting a suspect’s will to remain silent in the face of questioning.

Submissions of the Respondent:

118. The DPP submits that the appellant had substantial and unrestricted access to legal advice. It is pointed out that the appellant had repeated access to his solicitor when and for as long as he liked. It is acknowledged that the appellant requested more time during Interview 14 following a two minute telephone call, and that the interview proceeded regardless, but it is submitted that he did not make any admissions during this time and that he was given a 20 minute consultation before Interview 15. The respondent also submits that the question of having a solicitor present in interview does not arise. Reasonableness of access to a solicitor only arises where access is denied, restricted or limited in some way; where a suspect has had all the access he sought, the question does not arise at all. No complaint regarding access to a solicitor was made at any stage over the course of the investigation. Gormley and White is distinguished on the basis that in that case important investigative steps were taken between the request for access and the granting of access. As the appellant made no request for a lawyer to attend during questioning, and had access to a lawyer immediately before and during the relevant interview, it is submitted that the question of whether a suspect is entitled to have a lawyer present during questioning does not arise on the facts of the case – nor did it arise in Gormley and White.

119. The respondent also submits that as a fundamental matter of basic fairness a solicitor was not required to be present during Interview 15. The fact that an accused is entitled to legal advice and representation throughout trial does not necessarily lead to a requirement for the presence of a lawyer in interview, as not all rights available at trial apply before trial. The appellant has submitted that the presence of a lawyer would have led to the interviews being conducted differently, but the appellant has in fact never complained about the conduct of the interviews, which were held by the trial judge to be professional and courteous. It is also submitted that the appellant had the opportunity to consult with his solicitor immediately prior to the confession and that the presence of the solicitor would have added nothing.

120. Furthermore, the learned trial judge was perfectly placed to assess the conduct of the interviews and to assess whether the appellant was in control throughout. The respondent submits that it is clear that the appellant’s solicitor was fully apprised of the possibility of a confession and it appears that he advised the appellant not to confess. It is also pointed out that the appellant sought to use his solicitor to broker an unlawful deal with the gardaí. It is submitted that, in all the circumstances, no case has been made out that establishes any unfairness to the appellant from the absence of a solicitor at the fifteenth interview, or indeed at any other interview. The DPP additionally submits that even if the right to have a lawyer present during interview exists as a matter of Irish law, the appellant by his conduct waived that right or failed to invoke that right.

121. Furthermore, it is submitted that the authorities cited by the appellant do not support the extension of the right to legal advice in the manner contended by the appellant. The respondent refers to the Salduz case and submits that it requires only that a suspect should have legal advice, but not that a lawyer must be present during questioning. The respondent refers also to the Lavery decision, which is consistent with this position. The respondent submits that the Cadder decision also requires only access to a lawyer before questioning. Finally, in relation to Miranda, it is submitted that the legal, factual and cultural context of that decision bear no relation to the regulation of custodial interrogation in modern Ireland. That judgment was concerned with the dangers of incommunicado interrogation, a consideration which simply does not apply in this jurisdiction. Finally, it is submitted that even if the confession was obtained in circumstances of unconstitutionality, the same was not conscious and deliberate but derived from inadvertence or subsequent legal developments; the confession should thus have been admitted in evidence in accordance with DPP v. J.C [2015] IESC 31.

Decision:
122. In Mr. Doyle’s submission on this issue he makes two arguments in addressing both aspects of the question set out at para. 107, supra: first, he says that he did not have reasonable access in accordance with the law as currently prescribed; and, secondly, as a related but distinct point, he asserts a right to have had a solicitor present with him during the interview process. His first complaint is based largely on a number of requests, which he made during Interview 14, to the effect that the previous contact he had had with his solicitor was inadequate and that he wished to see him again. Despite such requests, the interview continued; this, it must be said, was a less than desirable situation.

123. In a series of cases from The People (DPP) v. Madden [1977] I.R. 336 to The People (DPP) v. Creed [2009] IECCA 95, and indeed continuing to date, it was established that a person detained in custody for questioning has a right of reasonable access to a lawyer. The early case law was uncertain as to the precise status of such right and for the most part was preoccupied with what was “reasonable” in the circumstances, and whether or not a request for such access had to be made. The former issue was conclusively determined in People (DPP) v. Healy [1990] 2 I.R. 73, with the majority of the Supreme Court finding that “the right of access to a lawyer must be deemed to be constitutional in its origin, and that to classify it as merely legal would be to undermine its importance and the completeness of the protection of it which the courts are obliged to give” (Finlay C.J., p. 81). Accordingly, its setting is undeniably within the constitutional framework.

124. Individual circumstances were considered in cases arising during the period which followed Healy, which gave the courts an opportunity to tease out the scope and extent of such right, as well as the consequences of its breach or violation. Save for the latter point, it is unnecessary to further dwell on the case law, it being sufficient to simply remain conscious of this background. For present purposes, therefore, the Irish authority most decisively in play on the key point arising is the decision in DPP v. Gormley; DPP v. White [2014] 2 I.R. 591 (“Gormley and White”).

125. Before looking at that case, however, I should say that I have found nothing to support Mr. Doyle’s first line of argument and I am satisfied that the evidence falls significantly short of establishing any breach of the reasonable access right, as previously understood in the case law

126. In any event, the major debate was not on the first strand of the appellant’s argument. The real point at issue, as outlined in the certified question, is whether, where reasonable access to advice has been afforded, a solicitor’s attendance at the interview process is nevertheless one as of right, or is by concession. Whilst the existing domestic law is relevant as a significant footprint in this context, it does not and has not decided this particular issue. Moreover, much of the ECHR jurisprudence, including Salduz, has as its backdrop the failure or refusal to provide or allow any access before interrogation leads to admissions. That is not the background to this case, where such advice was available and availed of.

127. Notwithstanding such, however, this ground of appeal raises squarely an issue which has been looming since at least the decision in Gormley and White, if not indeed for significantly longer than that. Both judgments in that case adverted to the likelihood of this point coming before the Court before long. First, the brief facts of that case.

128. Mr. Gormley was convicted of attempted rape and received a sentence of six years imprisonment with five years post-release supervision. The essential evidence which secured his conviction was that contained in an admission which he had made whilst in custody following arrest and detention. Prior to any police interview he had requested access to a nominated solicitor, whom the gardaí attempted to contact. It was a Sunday, however, and it took some time. Whilst there was no question of a culpable delay, nonetheless the interrogation commenced prior to the solicitor’s arrival and the inculpatory statement was obtained prior to any consultation between solicitor and client. He sought to have the confession excluded at trial and on appeal, but was unsuccessful in that regard.

129. The factual situation of Mr. White was somewhat different. Like Mr. Gormley, he had requested access to his solicitor, who some thirty minutes after the initial contact telephoned back confirming that she was coming “immediately”. Before her arrival, however, a blood sample, a buccal swab from the mouth and a hair sample were taken from Mr. White under the Criminal Justice (Forensic Evidence) Act 1990. Mr. White had no objection to this occurring. However, at trial and again on appeal he unsuccessfully sought to have such evidence excluded on the basis that it had been obtained prior to any consultation with his solicitor.

130. The commonality between both cases, which travelled in tandem to this Court, was the argument that before any interrogation commences or any forensic samples are taken, it is a constitutional right of a suspect in custody to have the benefit of legal advice.

131. In the Court’s judgment, delivered by Clarke J., a distinction was made between the nature of the evidence obtained in both cases. It was held that access to legal advice was classically designed to deal with a situation whereby an admission or confession would be obtained, which may not have been the case if such access had been provided; however, the situation in respect of forensic material was different, in that the results of any analytical sample could not differ regardless of whether legal advice was or was not received. Accordingly, the submission asserted on behalf of Mr. Gormley was accepted; that made on behalf of Mr. White was rejected. Other than outlining this conclusion, it is unnecessary to explore more fully the entirety of the judgments as delivered, it being sufficient to concentrate on what both Hardiman J. and Clarke J. had to say touching on the issue presently under consideration.

132. In his judgment, Clarke J. said:-

“75 The first real question of principle [is] whether the entitlement to a trial in due course of law, guaranteed by Article 38.1 of Bunreacht na hÉireann, encompasses an entitlement to have access to legal advice prior to the conduct of any interrogation of a suspect arrested and/or prior to the taking of any forensic samples from such a suspect. If that proposition is accepted at the level of general principle then many more questions of detail would, of course, arise. Questions such as … the extent to which a lawyer is entitled to be present during the questioning … and, doubtless, many others would arise. By no means do all of those issues arise on the facts of these cases. …
82 However, I am persuaded that the point at which the coercive power of the State, in the form of an arrest, is exercised against a suspect represents an important juncture in any potential criminal process. Thereafter the suspect is no longer someone who is simply being investigated by the gathering of whatever evidence might be available … It seems to me that once the power of the State has been exercised against the suspect in that way, it is proper to regard the process thereafter as being intimately connected with a potential criminal trial rather than being one at a pure investigative stage. It seems to me to follow that the requirement that persons only be tried in due course of law, therefore, requires that the basic fairness of process identified as an essential ingredient of that concept by this Court in The State (Healy) v. Donoghue [1976] I.R. 325 applies from the time of arrest of a suspect … However, it seems to me that the fundamental requirement of basic fairness does apply from the time of arrest such that any breach of that requirement can lead to an absence of a trial in due course of law. In that regard it seems to me that the Irish position is the same as that acknowledged by the European Court of Human Rights and by the Supreme Court of the United States.
93 … [T]he question as to whether a suspect is entitled to have a lawyer present during questioning does not arise on the facts of this case for the questioning in respect of which complaint is made occurred before the relevant lawyer even arrived. However, it does need to be noted that the jurisprudence of both the ECtHR and the United States Supreme Court clearly recognises that the entitlements of a suspect extend to having the relevant lawyer present.” (Paragraph numbers as per the Irish Reports)
Likewise, Hardiman J., in his concurring judgment, noted that:

“5 For many years now judicial and legal authorities have pointed to the likelihood that our system’s option for the very widespread questioning of suspects who are held in custody for that purpose, was very likely to attract a right on the part of such suspects, not merely to be advised by lawyers before interrogation, but to have lawyers present at the interrogation, and enabled to intervene where appropriate. This has now come to pass in countries with similar judicial systems: see the developments surveyed by Mr. Justice Clarke, and also under the European Convention on Human Rights (“ECHR”), to which Ireland is a signatory and which it has incorporated to a limited extent in Irish law by the European Convention on Human Rights Act 2003.
It is notable, however, that Mr. Gormley has not asserted that right to its full extent but has asserted only a right to have a lawyer to advise him, in custody, before the questioning starts. Manifestly, however, it will not be long before some person or other asserts a right to legal advice in custody on a broader basis. I say this in explicit terms in order that this may be considered by those whose duty it is to take account of potential developments.”

133. Given the terms on which leave was granted to appeal to this Court, it would appear that this is the very case anticipated by the learned judges, at least in respect of whether there is a right to have a solicitor present during garda questioning. The DPP has argued, however, that the question of having a solicitor present in interview does not in fact arise on the facts of this case: this submission must be rejected for the several reasons set out in this part of the judgment dealing with the second issue.

Recent Domestic Developments:
134. At the outset I should mention some practical developments which have occurred in the interim and which, although not decisive from a legal and constitutional perspective, are nonetheless of high significance. In May, 2014, almost certainly in response to the Gormley and White judgment in March of that year, and perhaps in anticipation of the likely outcome of whatever case squarely raised the issue now under consideration, the DPP issued a direction to the Commissioner of An Garda Síochána to the effect that a request by a suspect detained in a Garda Station to have a solicitor present during interview should be acceded to. Following on from this, the Department of Justice issued a circular to the Law Society on the role of solicitors in Garda Stations, which was said to include, inter alia, presence and participation during questioning.

135. In recognition of these developments, An Garda Síochána published, in April, 2015, its Code of Practice on Access to a Solicitor by Persons in Garda Custody. It is striking to note the following from p. 8 of that document: “[i]n light of the judgment in Gormley it is necessary to allow a solicitor to be present at interview if requested by the suspect. Furthermore, the Director of Public Prosecutions has advised that all suspects detained in Garda stations for questioning be advised, in advance of any questioning, that they may request a solicitor to be present at interview.” This passage introduces section 10 of the informal code, which provides for the presence of a solicitor during interviews. This section sets out such details as the seating arrangements of the solicitor, the role of solicitors during interviews and the circumstances in which a solicitor may be removed from an interview. In December, 2015, the Law Society issued its Guidance for Solicitors Providing Legal Services in Garda Stations. In addition to setting out the Society’s view on the role of solicitors during interview, it also offers its perspective at pp. 13-15 on many of the other matters in the Garda Code of Practice. Not surprisingly, given the competing interests at issue, the two guides take divergent views and approaches on certain issues. Whilst a common approach must still be finalised, nonetheless there has been no suggestion that these developments have had any adverse impact on the effectiveness of custodial interrogations.

136. Of course, such was not the practice at the time of Mr. Doyle’s detention and questioning. It is also evidently clear that neither document has any legal effect in the context of which we speak, and that in reality they are akin to a practice direction from each body to its own members. Accordingly, the existing discretionary practice of allowing solicitors to sit in on interviews does not amount to any sort of recognition by the DPP or An Garda Síochána that this is a constitutional right or entitlement of a suspect whilst in garda custody; this is evident from the DPP’s submissions on this issue. However, although this newly-established practice is not definitive in the legal analysis of whether such a right exists, nonetheless the shifts which I have described, being both potent and influential, are significant and should not be underestimated. Reality, as it now stands, must be faced up to.

137. By the same token, should the Court find that the right of a suspect to have a solicitor present during interview is grounded in the constitution, as a necessary requirement, inter alia, for a trial in due course of law and as a recognition of the privilege against self-incrimination, the fact that such developments have occurred does not of itself adequately safeguard this right; a mere concession by the gardaí, which may be granted or withheld at will, is no substitute for constitutional recognition of a right, if such be the case.

Miranda v. Arizona 382 U.S. 436:
138. The appellant has quoted extensively from the majority judgment in this case which, when delivered, was indeed ground breaking and historic. It famously required the police to give specific warnings and/or information to a suspect as a condition of custodial interrogation. The one relevant to this case was expressed by Chief Justice Warren as follows:-

“The need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.”
The Supreme Court, in the intervening period, has created several exceptions which in effect disapply the rule in certain circumstances; nonetheless, whilst the decision may have lost some of its energy, it still remains a viable and powerful source of suspect protection.
139. It is abundantly clear, however, from a reading of the majority’s decision, that their opinion was primarily motivated by concerns regarding the then prevalent practice of incommunicado interrogation. When such methods were looked at in conjunction with the general conditions of detention then prevailing, and the documented instances of other highly objectionable police practices, the decision must be seen in the context of a particular legal, social and historical culture which is highly distant from that now – or indeed ever – existing in this jurisdiction.

140. I therefore reject any suggestion that the questions and comments put by the gardaí to Mr. Doyle can be likened to the more nefarious practices described in the Miranda judgment. Whilst I have found that some of these comments amounted to improper inducements, nonetheless, provided that oppression is avoided (DPP v. Shaw) and that the line between voluntariness and involuntariness is not crossed, this judgment should not be read as suggesting that robust questioning or strategic interviewing is impermissible. As indicated in McCann, police interrogation is not and does not have to be a genteel encounter.

141. A further factor in distinguishing Miranda is that the incommunicado interviews at issue in that case were not subject to video or audio recording. The introduction of such practice in this jurisdiction is a welcome safeguard of the rights of a suspect during the interview process, and it also helps to ensure effective judicial oversight of that which occurs in the interview room. The time has long since passed that the Irish courts will overlook a failure to record an interview which is then sought to be used against the suspect at trial, save perhaps in the most extreme and urgent of excusing circumstances. In the absence of the protection which the recording of interviews provides, and in light of the other practices resorted to at the time, the presence of a lawyer was adjudged necessary.

European Court of Human Rights Case Law:
142. Of potentially much greater persuasive value is the contemporary jurisprudence of the European Court of Human Rights, which for both brevity and convenience can have as its starting point the case of Salduz v. Turkey (2008) 49 E.H.R.R. 421.

Salduz v. Turkey:

143. The appellant relies a good deal on this case in support of the proposition that there exists a right to have a solicitor present during questioning. For certain this is an oft-quoted decision when it comes to the parameters of the right to legal assistance under Article 6 of the European Convention on Human Rights (“the Convention”), the relevant provision of which is Article 6 § 3(c) thereof. This reads as follows:

“3. Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”.

144. The relevant paragraphs of the judgment, laying out the general framework of this right, are those at paras. 50-55. Although lengthy, these should be quoted, as the case reviewed a number of the Court’s previous decisions, and in effect rationalised what the position then was:-

“50. The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions … As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 …
51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial …
52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. …

53. These principles, outlined in paragraph 52 above, are also in line with the generally recognised international human rights standards … which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. …

54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial … At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings … In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused … Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination …
55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 … The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.” (Emphasis and ellipses are my own).
145. I accept the respondent’s submission that these paragraphs do not establish a right to have a lawyer present during questioning. The emphasised passages illustrate that the right specifically at issue was one of access to a lawyer, so that legal assistance could be obtained, at a point prior to any interrogation of the suspect. As the facts of that case indicate, Mr. Salduz, who was 17 years old at the time, made confessions in circumstances where he had not yet had any access to a lawyer whatsoever. It is apparent that this was the basis for the Court’s finding that Article 6 § (3) (c) had been violated, rather than the fact that there was no lawyer present during questioning. The express language of the Court and the facts of the case do not permit any such principle to be deduced or clearly inferred therefrom. Thus while Salduz was rightly read as supporting Mr. Gormley’s arguments in Gormley and White, it does not follow that it directly supports the additional safeguard being argued for by Mr. Doyle in this case. Equally, nothing in the comprehensive analysis of the Sadluz judgment by the UK Supreme Court in Cadder v. HM Advocate [2010] UKSC 43; 2011 SC (UKSC) 13 changes my reading of that judgment in this regard. That case is considered in greater detail below (paras. 159-160, infra). Finally, the decision in McGee does not advance the situation any further.

More Recent Jurisprudence from the Court:

146. Salduz, however, is far from the end of the line as far as the European Court’s evolving interpretation of the right to legal assistance in Article 6 § (3) (c) is concerned. In Dayanan v. Turkey (Application no. 7377/03, Judgment of the 13th October, 2009), a judgment of the Second Section of the Court, it was held that:

“30. In relation to the absence of legal assistance in police custody, the Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial …
31. The Court is of the view that the fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody pre-trial detention.
32. In accordance with the generally recognised international norms, which the Court accepts and which form the framework for its case-law, an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned … Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.” (Emphasis my own).
As the law in Turkey then stood, it was not legally possible to afford the applicant any legal assistance whilst in police custody; accordingly, the Court held that such a systemic restriction, of itself, constituted a violation of Article 6 of the Convention, notwithstanding the continued silence of Mr. Dayanan during this period.

147. In Navone and others v. Monaco (Application Nos. 62880/11, 62892/11 and 62899/11, Judgment of the 24th October, 2013), the First Section of the Court held, at paragraph 79, that:

“79. La Cour souligne à ce titre qu’elle a plusieurs fois précisé que l’assistance d’un avocat durant la garde à vue doit notamment s’entendre, au sens de l’article 6 de la Convention, comme l’assistance « pendant les interrogatoires » (Karabil c. Turquie, no 5256/02, § 44, 16 juin 2009, Ümit Aydin c. Turquie, no 33735/02, § 47, 5 janvier 2010, et Boz, précité, § 34), et ce dès le premier interrogatoire (Salduz, précité, § 55, et Brusco, précité, § 54).”
I understand the reference to “pendant les interrogatoires” to meaning “during interrogations”, and that the effect of the paragraph is that Article 6 requires the assistance of a lawyer during custodial interrogation.

148. In the case of A.T. v. Luxembourg (Application no. 30460/13, Judgment of the 9th April, 2015), the Fifth Section of the Court, having set out much the same general framework as in Salduz and Dayanan, stated that:

“65. The Court has had occasion to reiterate that, first of all, a person “charged with a criminal offence” within the meaning of Article 6 of the Convention is entitled to receive legal assistance from the time he or she is taken into police custody or otherwise remanded in custody and, as the case may be, during questioning by police or by an investigating judge …” (Emphasis my own)
149. Finally, based on the available translation of the judgment in Simons v. Belgium (Application no. 71407/10, Judgment of the 28th August, 2015), the Court in that case referred to another decision in the French language, Brusco v. France (Application no. 1466/07, Judgment of the 14th October, 2010), stating that:

“30. … In the Brusco judgment … the Court added that the right of a person in police custody to be assisted by a lawyer from the beginning of that measure, and during the interview itself, is all the more important where he or she has not been notified by the authorities of the right to remain silent.”
150. I would summarise the main points as follows:

(1) The basic purpose and intent of Article 6 is to ensure that a person obtains a fair trial before a competent Tribunal on any criminal charge. To that end such a person is entitled to have access to and avail of the services of a lawyer; in essence, he or she has the right to be “effectively defended” by a lawyer, which is a root pillar of safeguarding the fairness of trial.
(2) Such a right, which must be functionally effective, is not restricted to the courtroom aspect of the trial. Its practical implementation commences as and from the point of incarceration and continues until the conclusion of the criminal process.

(3) The underlying reason why access should commence as specified is that a detained person may be particularly vulnerable during the initial stages of the police questioning, and therefore legal assistance is necessary so as to prevent self-incrimination, in circumstances other than those resulting from the free and voluntary choice of the detained person.

(4) Evidence which may be gathered during police interrogation is always important in determining the ultimate charge, and, if admissions or confessions are involved, can be such as to almost foreclose on any effective defence at the trial itself.

(5) In addition, the case law displays an ever increasing willingness to stretch the compass of protection to whatever is necessary to ensure the effective implementation of this principle. Thus, where appropriate, the lawyer should have the capacity to preserve, enhance and deal with each and every fundamental aspect of the intended and available defence. He or she should be in a position, without undue restriction, to discuss the case, to collect evidence favourable to his client, to prepare that client for questioning, to support the accused in distress and to check on the conditions of his detention. All such matters, and indeed many others, are inherent in such right.

(6) In the passages quoted at paras. 146-149, supra, it seems clear that the judgments have made express reference to a suspect’s right to have a lawyer present during the interview process. Thus on one reading it could be said that this right has already been clearly established. However, I am not aware of any decision reflecting the particular facts of Mr. Doyle’s situation (para. 126, supra) in which the Court has definitively declared the existence of such right.

(7) These rights can be waived.

Directive 2013/48/EU
151. Note should also be taken of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 ‘on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty’. Of course, as acknowledged at Recital 58, Ireland, like the United Kingdom, did not take part in the adoption of this Directive and therefore is not bound by it or subject to its application. Nonetheless, the Directive is of relevance insofar as it informs what the position of other EU Member States is or will soon be on this very question.

152. An essential aim of the Directive, per recital 12, is to lay down minimum rules, inter alia, concerning the right of access to a lawyer in criminal proceedings. It thereby seeks to promote the application of the Charter of Fundamental Rights of the EU, in particular Articles 4, 6, 7, 47 and 48 thereof, by building upon Articles 3, 5, 6 and 8 ECHR, as interpreted by the European Court of Human Rights. Of particular importance for the present case is Recital 25, which provides as follows:-

“Member States should ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when they are questioned by the police or by another law enforcement or judicial authority, including during court hearings. Such participation should be in accordance with any procedures under national law which may regulate the participation of a lawyer during questioning of the suspect or accused person by the police or by another law enforcement or judicial authority, including during court hearings, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. During questioning by the police or by another law enforcement or judicial authority of the suspect or accused person or in a court hearing, the lawyer may, inter alia, in accordance with such procedures, ask questions, request clarification and make statements, which should be recorded in accordance with national law.” (Emphasis added)
153. In order to reflect in a substantive and binding way the terms of this Recital, Article 3(3)(b) of the Directive provides as follows:-

“3. The right of access to a lawyer shall entail the following:
…
(b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned”. (Emphasis added)

This measure had a transposition deadline of the 27th November, 2016

154. It is therefore apparent that Ireland may soon be in a somewhat incongruous position in the EU context if a right for a lawyer to be present during questioning is not recognised in this jurisdiction. This, of course, results from the government’s decision, generally applicable in the area of freedom, security and justice, to participate in such matters only via an opt-in mechanism, which it has decided not to exercise in this case. In making this point I do not intend to reflect on its competence to so act. Respecting that position, as I do, it therefore seems to me that such a right should only be recognised in this jurisdiction if there is a compelling rationale within the Irish legal order for so holding. Irrespective of that rationale, however, the Directive illuminates the directional focus of other Member States, and offers further evidence of a prevailing trend amongst fellow members of the Union.

155. Also worth noting is a further point made in A.T. v. Luxembourg, discussed above, in which the European Court of Human Rights assessed whether there had been a violation of the right to consult with a lawyer prior to questioning. In so doing, it took account of Article 3(3)(a) of Directive 2013/48/EU, which addresses that very point. This is at least indicative, at a most general level, of the possibility of Article 3(3)(b) also being utilised in this way.

The Committee for the Prevention of Torture
156. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), in its 21st General Report (CPT/Inf (2011) 28), addressed the right of access to a lawyer as a means of preventing ill-treatment. In the course of its Report it stated, at para. 24, that:

“The right of access to a lawyer should also include the right to have the lawyer present during any questioning conducted by the police and the lawyer should be able to intervene in the course of the questioning. Naturally, this should not prevent the police from immediately starting to question a detained person who has exercised his right of access to a lawyer, even before the lawyer arrives, if this is warranted by the extreme urgency of the matter in hand; nor should it rule out the replacement of a lawyer who impedes the proper conduct of an interrogation. That said, if such situations arise, the police should subsequently be accountable for their action.”
157. It can fairly be presumed, and certainly hoped, that the particular evils which that Committee guards against are confined to history in the Irish context, at least insofar as police interrogation techniques are concerned. However, it should be noted that the Committee’s recommendations and findings are addressed to all Member States equally. It is no answer to a failure to provide minimum safeguards for a State to say that the particular measure is unnecessary in its jurisdiction because of the unlikelihood of a violation of Article 3 of the Convention occurring during the course of police questioning. To the extent that the CPT acknowledges any exception, such is based on the exigency of the situation, rather than the availability of other safeguards, no matter how ostensibly adequate these may be.

The Position in the United Kingdom
158. In England and Wales, a detainee who has been permitted to consult a solicitor shall be entitled on request to have the solicitor present when they are interviewed, unless a designated exception applies (para. 6.8 of the Revised Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, Police and Criminal Evidence Act 1984 (PACE) – Code C). Guidance Note 6D to that Code of Practice provides, inter alia, that:

“The solicitor’s only role in the police station is to protect and advance the legal rights of their client. On occasions this may require the solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens a prosecution case. The solicitor may intervene in order to seek clarification, challenge an improper question to their client or the manner in which it is put, advise their client not to reply to particular questions, or if they wish to give their client further legal advice.”
The position in Northern Ireland is very much the same under the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Police & Criminal Evidence (Northern Ireland) Order 1989 – Code C) (see para. 6.7 thereof), with the revised Code applying as from the 1st June, 2015.

159. As regards UK case law, I do not believe that the decision in Cadder v. HM Advocate, referred to by each of the parties in their submissions, adds greatly to the precise point in issue. As mentioned above, it contains a thorough analysis of Salduz and some of the subsequent case law, as well as the implications for Contracting States of the recognition, at ECtHR level, of the right to consult a solicitor prior to questioning. However, the issue for consideration by the Court in Cadder was the prevailing situation in Scotland at the time, which permitted the reception into evidence of confessions made by a detainee during an interview by the police prior to him or her having had access to legal advice. Whilst it is also the case that such person did not have access to legal advice during questioning, the core point was more akin to the one raised in Gormley and White and Salduz than that currently under discussion. I therefore could not accept any view that by not declaring the existence of the right in issue in this case, the Court was by implication suggesting that such a right did not exist; that matter did not arise for consideration.

160. Against that limitation it is of particular interest to note that the Cadder judgment would seem to have spurred considerable developments on this front in Scotland and the position there, as of the passing of the Criminal Justice (Scotland) Act 2016, is that there is now a right to have a solicitor present while being interviewed by a constable about an offence which the constable has reasonable grounds to suspect the person of committing (section 32(2)). This right can be waived, but otherwise the interview must not commence prior to the solicitor being present, subject to the usual ‘exceptional circumstances’ proviso.

Summary of Movement:
161. As appears from this brief and, let it be said, quite limited review of movement external to this jurisdiction, there has been a significant shift in the acknowledgment of this right across other diverse legal regimes. When the steps taken by the major domestic players, almost certainly in response to Gormley and White (March, 2014), are factored in, the current situation providing for the right or entitlement to have a lawyer present during interrogation has developed as follows:-

International
• The ECtHR jurisprudence, even from the starting point of Salduz, has moved considerably since then, including through the Dayanan v. Turkey (2009), Navone v. Monaco (2013), A.T. v. Luxembourg (2015) and Simons v. Belgium (2015) judgments;
• The CPT publishes its 21st General Report (2011);

• Directive 2013/48/EH is adopted (October, 2013);

• In the United Kingdom/Northern Ireland, the most recent PACE Code C applies as from June, 2014/June, 2015, respectively;

• In Scotland, the right to have a solicitor present during questioning is put on a statutory footing (2016).

National
• The DPP issues a direction advising the Commissioner of An Garda Síochána to permit the presence of solicitors during interview (May, 2014);
• The Department of Justice issues a circular to the Law Society (2014);

• The Commissioner publishes the Garda Code (April, 2015);

• The Law Society issues guidance for its members (December, 2015).

Conclusion
162. The prevailing situation under Irish law, however, and notwithstanding these developments, remains that as set out in Lavery v. Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390. In the course of his judgment, O’Flaherty J. stated that:-

“Counsel for the State submitted to the High Court Judge that in effect what Mr. MacGuill was seeking was that the garda should give him regular updates and running accounts of the progress of their investigations and that this was going too far. I agree. The solicitor is not entitled to be present at the interviews. Neither was it open to the applicant, or his solicitor, to prescribe the manner by which the interviews might be conducted, or where.” (pp. 395-396 of the report) (Emphasis added)
This is a well-established position, and the undisputed policy of An Garda Síochána at the time of Mr. Doyle’s arrest was to refuse any request for a solicitor to be present during interview. Indeed, it was conceded in evidence that had Mr. Doyle requested this, it would have been denied. So, between 1999 and 2014 both law and practice coincided; since Gormley and White, however, practice has led the way, without any undue disruption to the interrogation process, and in my view it is now time that the law keep pace with it. It would be a first, to my knowledge, if this progressive step was to be curtailed or reversed by case law.

163. For the reasons herein given, I have decided that the constitutional entitlement to a trial in due course of law entails the right of a person, detained in a Garda Station, to have a solicitor present during questioning if he or she so requests. This conclusion is based on a consideration of the events, factors and prevailing trends outlined in this judgment, as well as a firm belief that such a step is a necessary but proportionate one in furthering the protection or safeguards which such persons should enjoy during custodial detention. The time has now come for a clear acknowledgment that such a right exists and I so hold via the same constitutional route as was used by the Court in Gormley and White (see pp. 627-628 of the Report)

164. In addition, as with several other rights enjoyed by those subject to interrogation, it is an indispensable requirement of the effective use of such rights that those in control or in charge of a person’s detention inform that person, in a timely and obvious way, of the existence of such a right. If the same should be exercised, then the rationale of the Gormley and White decision as applying to Mr. Gormley would follow.

165. Such a right exists in the United States, in England and Wales, in Scotland and in other EU Member States, at least by virtue of Union law in light of Directive 2013/48/EU, and represents the position of the Council of Europe as is clearly evident from the CPT Report mentioned above. Whilst this international trend cannot be overlooked, given its clear and widespread recognition that such an entitlement is a necessary further step for the protection of those being interrogated, nonetheless that of itself would not be a decisive reason for an Irish court to establish or declare the existence of such a right in this jurisdiction. This is for a number of reasons, including the variances which exist in the respective cultural, historical and legal landscapes of different countries, particularly those relative to pre-trial safeguards of suspected persons. These differences, which cannot easily be adjusted so as to provide for any direct comparison, may readily explain the discrepancies in approach which many countries have shown to this issue. Nonetheless, one cannot but be ever so mindful of the influence of this international backdrop in considering the underlying question.

166. There is of course one source, in part external, of particular relevance in the comparative analysis above mentioned, which is the jurisprudence of the European Court of Human Rights. For many years the Irish courts have accorded high persuasive value to the judgments of that Court, judicial notice of which must now be taken pursuant to section 4 of the European Convention on Human Rights Act 2003. As such, its case law is of considerable influence and importance to the point under consideration on this aspect of the appeal.

167. Whilst it appears that the point at issue has not been as precisely defined as above described (para. 126, supra), or ruled upon in that way (see summary at para. 150, supra), nevertheless, I believe that on balance the existing case law of the ECtHR is already to the effect that the Convention does in fact require the presence of a lawyer during questioning. The judgments quoted at paras. 146-149, supra, and many others, all make express reference to the existence of such a right in clear-cut and deliberate terms. To the reservation that this position has not been definitively spelled out, I believe that if the settled and current trend of dealing with the availability of legal protection should continue, then it is more likely than not that the outcome of any case where the precise point was directly in issue would support the conclusion which I have arrived at. Of course this anticipation may be wrong, but, even if so, the existing state of jurisprudence is of such force in this regard that such of itself is highly influential in calling for such a right. I should add that I do not see how the establishment of such a right would be fitting in a civil law system but less so, or perhaps even not at all, in our common law system. Be that as it may, it is necessary to outline why in my view the criminal justice system in this jurisdiction should now have within in, at a constitutional level, the right as identified.

168. In our system, certainly since 1984, the investigation of crime involves the widespread arrest and detention of persons, many of whom may never be charged with the underlying or indeed any offence. Although this sits somewhat uncomfortably with the right to liberty and perhaps the presumption of innocence, it is nevertheless seen as a necessary requirement of the public interest in the detection of crime. Whilst this course has been adopted by the legislature and must be respected, so also must the legislature protect suspects’ rights.

169. When first introduced, the maximum period of detention under the Criminal Justice Act 1984 was 12 hours, that being an initial period of 6 hours, subject to a further 6 hours being authorised by a garda officer not below the rank of superintendent in accordance with section 4(3)(b). Prior to this the Offences Against the State Act 1939 provided for a maximum period of detention of 48 hours under section 30, with the initial 24 hour detention being capable of a 24 hour extension. Otherwise than in respect of the offences covered by that Act, however, the 1984 Act was to precipitate a major change in the manner in which crimes are investigated in this state. Since then, a number of other pieces of legislation have been enacted which give rise to a power to detain a person for questioning; equally, the maximum periods of such detention have increased since 1984 also. Assuming the statutory requirements for extensions are satisfied in a given case, the maximum periods of detention are as follows: under the 1984 Act itself, it is now 24 hours (section 4(3)(bb), as inserted by section 9(c) of the Criminal Justice Act 2006); under the 1939 Act, the maximum is now 72 hours (section 30(4) as substituted by section 10 of the Offences Against the State (Amendment) Act 1998); section 42 of the Criminal Justice Act 1999 provides for up to of 24 hours detention; most strikingly, both the Criminal Justice (Drug Trafficking) Act 1996 and the Criminal Justice Act 2007 currently provide for that a person may be detained in a Garda Station for up to 168 hours, that is to say, 7 days (section 2 and section 50, respectively).

170. Thus, as the instant case partly demonstrates, a person can now be held in custody purely for interrogation purposes, that is, without charge, for days at a time, up to one full week. Again, as this case shows, during that period one can be interrogated multiple times, either by the same interviewing officers or by different teams. Such a process may commence relatively early in the morning, continue throughout the day and, as both Interviews 10 and 14 show, end only late in the evening. Whilst at all stages the individual in question has a constitutional right of reasonable access to his solicitor, there can be long periods where, for a variety of reasons, there is no contact between solicitor and client. It therefore must be asked why such lacuna, which can have most grave consequences for the person in question, should not be removed from interrogation practice.

171. For a great number of people this may be an entirely new experience, with the surrounds of a police station, never mind the atmosphere of an interview room, presenting a daunting and frightening situation. Whilst hardened criminals may not be as affected, the preservation of their rights is no less important if the legitimacy of this aspect of the investigation of crime, conducted by an institution as critical as the gardaí, is to enjoy the widespread support which is so necessary even to sustain the very rule of law itself.

172. Both the substantive criminal law and its attendant procedural landscape have continued to grow ever more complex, with many of its provisions having a direct feed into the custodial interrogation part of the process. Examples which readily come to mind are the inference provisions of the Criminal Justice Act 1984, (sections 18 and 19), which have undergone substantial amendment in the Criminal Justice Act 2007 (sections 28 and 29). Section 18 refers to a person’s failure or refusal to account for objects, substances or marks on his person, on his clothing or otherwise in his possession, or in any place where he or she might have been during a specified period, while section 19 relates to a person’s failure or refusal to account for his presence at a particular place at or about a particular time. Indeed, section 30 of the 2007 Act also inserted a new section, section 19A, into the principal Act; section 19A may apply to a person who, during detention, has failed to mention a fact which subsequently he wishes to rely upon in his defence. One can add several other provisions with like or similar effect, such as section 2 of the Offences Against The State (Amendment) Act 1998, as amended, which applies to a person’s failure to answer any question put to him which is material to the investigation.

173. In all situations where either one or more of these provisions are in play, inferences adverse to the accused may be drawn. Such may have potentially dramatic consequences at his trial, depending on the person’s response, or non-response, as the case may be, to the questions asked. That being so, and given that the provisions are complex and difficult to operate from even a skilled practitioner’s or an experienced garda member’s perspective, it seems self-evident that the availability of ongoing legal advice may be of critical importance to the detained individual.

174. Whilst judicial overview is an important tool in this regard, it suffers by its very nature from an inherent weakness in that in its examination of an issue it can only react to abusive behaviour. It is incapable of achieving what is readily capable of prevention in the first instance. Thus the former prohibits, whereas the asserted right prevents, abuse.

175. This case is a good illustration of the point. The inducement issue is an attempt by Mr. Doyle, on a retrospective analysis of what took place, to have the confessions rendered inadmissible, whereas if a solicitor had been present, it is highly likely that in the first instance no offending offers or promises would have been made, thus eliminating even the possibility of raising such an argument. This would be entirely more desirable than that which is presently available.

176. No organ of the State should in any way be concerned with the practical implementation of rights vested in each individual at the highest level of our legal hierarchy, or have any objection to an authorised practice which has the effect of giving fuller expression to deep-rooted, long-established and cherished rights such as the right to silence and the right not to incriminate oneself, to mention but two. Equally so in respect of another longstanding and related rule, namely, that only confessions which are voluntary are admissible in evidence. How could legitimate objection be taken to a solicitor intervening during the interview process in a timely but not disruptive manner to remind his client, and indeed the interviewing team, of these constitutional rights? Any rule of law which, even in part, and certainly if in large measure, depends on a lessening or reducing of such rights in order to secure a conviction should have no place in our society. The State, with the armoury and array of resources at its disposal, should pride itself on only obtaining convictions where the preceding process has been conducted, and the material evidence obtained, in full and due compliance with such rights.

177. The benefit of the recognition and realisation of such a right, of course, is that any resulting confession or admission will truly be reflective of a free will, and the product of a free choice. This is all the more important as interviewing techniques become more subtle and more psychologically orientated.

178. I do not believe that the present safeguards sufficiently address the inequality which now exists in the interview room and which can so threaten the rights being presently discussed. For certain there are other protective measures in place in this jurisdiction which differentiate the present Irish context from, say, the prevailing position in the United States pre-Miranda; I am referring, primarily, to the requirement of audio and video recording of interviews, and the resulting judicial scrutiny and oversight of the conduct of interrogating gardaí, even if such conduct is rarely – if ever – reviewed at a regulatory level. Even so, I am not convinced that this ex post facto supervision is an adequate surrogate for the presence of a solicitor at the interview itself.

179. The cardinal rule relating to the requirement of voluntariness of confessions is so deeply entrenched in this jurisdiction as to hardly merit restatement; it goes to the essence of the privilege against self-incrimination. Given the centrality that questioning has assumed in the evidence-gathering process, and in light of the critical importance routinely attached to confessions at trial, I take the view that stronger safeguards are necessary to fully vindicate the privilege against self-incrimination of the interviewed suspect. In light of the wide range of factors which potentially vitiate the voluntariness of an inculpatory statement – threats, promises, oppression, unfairness and more – often involving, as they do, a marginal judgement call either way on the point, I believe that what is herein asserted is an essential protection of that privilege. Regardless of the degree to which a solicitor takes part in the process, I am convinced that even a mere presence would have a telling impact on both the client’s position and the conduct of the interrogation. Those who suggest otherwise fail to appreciate the chilling effect which detention and interview has on a great number of people. Lawyers experienced in criminal practice will readily vouch to the tension and highly-charged atmosphere of the interview process.

180. In the other judgments delivered by members of this Court, assessment of the practical consequences in this case of the absence of a solicitor from the interview has seemed to focus for the most part on Interview 15. When viewed through this lens, and bearing in mind that the appellant did have access to legal advice immediately prior to, and indeed during, that interview, it has been said that even to the extent that there may have been a breach of the right to have a solicitor attend at interviews, the same was not causatively linked to the ultimate confession. Indeed, it is hard to argue but that Mr. O’Donnell had more input, in terms of advising the appellant, in Interview 15 than he would have had if he had been in the room. This approach, however, presupposes that Interview 15 is the crucial interview in respect of which the impact of a solicitor’s absence must be assessed.

181. From my perspective, this is not so: the critical interviews during which the presence of a solicitor would have made a difference are the preceding ones, Interviews 10-14. It was during this period that a solicitor could have made a practical impact by timely but not intrusive interventions. This is fully, or at least in part, borne out by the majority judgments which accept that the subject statements put to Mr. Doyle during these interviews were objectively capable of being viewed as inducements. Even if not satisfied on the other strands of McCann, surely the recognition that improper inducements had been held out in the first instance serves to illustrate the important role that a solicitor has to play, and the impact which his absence from the interview room may have. Whilst it is unnecessary to enter a full discourse on what precisely the solicitor’s role may be, it is noteworthy that both the Garda Code and the Law Society’s Guidance each acknowledge a right to intervene or object when that fine line between robust interrogation and improper questioning has been crossed. In this regard, the fact that the trial judge found the interviews to have been conducted in a professional and courteous manner does not lead to the conclusion that the presence of a solicitor may not have made a meaningful difference. A solicitor can guard against more than outright intimidation or threats, and a polite and amiable interview laden with improper promises could be as destructive of the free will protected by the privilege against self-incrimination as an oppressive interrogation.

182. The admissibility of confessions has assumed an almost transcendent importance in many modern trials, this because of the sheer weight and probative value of such admissions, which are so frequently alleged to have been involuntarily made. In this regard, rather than having contentious, costly and time-consuming legal argument after the fact over whether this comment overbore the will of the suspect, or that question rendered the confession involuntary, the admissibility of these central pieces of evidence will be much more readily established where the highest protection has been afforded to the rights of the suspect during the interview process.

183. I therefore believe that in order to fully protect and vindicate the rights of a suspect, it is necessary that there be a solicitor present during garda interrogation. This is of such fundamental importance that, in my view, it is a requirement of the constitutional imperative that a criminal trial be conducted in due course of law.

184. It should be said that attendance at interview by the solicitor should not lead to the stymieing of evidence gathering in the course of criminal investigations. Robust and strategic questioning remains an integral part of that process and there should be no expectation that such presence will interfere with the effectiveness of this important function. Whilst his role at interview is to represent his client, it is not to obstruct the proper and lawful questioning of suspects. The framework in place since the enactment of the Criminal Justice Act 1984 has elevated detention and questioning to a position of prominence, which must be respected; so, whilst it is important that the same be conducted with full regard for the rights of the suspect, this is not to suggest that An Garda Síochána should be impeded in the carrying out of its duties.

185. The underlying question, set out at para. 107, supra, in essence asks this Court whether the sitting in on interview by a solicitor is a right or is a concession. That issue has been addressed and answered by what is above stated. The question, which it must be assumed was carefully worded and narrowly focused by the Court when granting leave, did not involve and does not require this Court to go any further than what I have said. In particular, it is no part of the Court’s function to establish any sort of general framework within which such a right should be exercised, or otherwise to define the parameters of how to give full expression at a general level to such right.

186. There are several good reasons for this, starting with this Court’s established jurisprudence of deciding only the issues before it. As experience has shown, subsequent cases may identify other issues related to or connected with what has previously been decided. If such should arise, particularly with any frequency, a body of case law will emerge over time covering perhaps many aspects of the exercise of the underlying right. It is only in this way that the courts can be involved in the incremental development or clarification of an issue such as that arising in this case.

187. In general, a breach of the right to have a solicitor present during questioning will almost inevitably attract consequences for the admissibility of the resulting evidence and/or impact on the dual requirement of a fair trial and one in due course of law. However, because a retrial has been ordered as a result of the first ground of appeal addressed in this judgment, it is unnecessary to further explore these complex and difficult issues. I have therefore deliberately refrained from a high-level discussion on such matters, and likewise on issues such as waiver, estoppel or locus standi arising out of Barry Doyle’s failure to request the solicitor’s presence in this case. However, it must be said that I have grave reservations about DPP v. J.C. [2015] IESC 31 having any role in this regard: certainly I could not agree that Mr. Doyle should be deprived of the benefit of the establishment of such a right in his case and the consequences which might inure for him as a result. Whatever may be the position of others, a situation I expressly reserve my views on, I cannot see how DPP v. J.C. can be used to neutralise the appellant’s personal position.

188. Whilst the right which I suggest exists has been solely attached to Article 38 of the Constitution, this is reflective of how the argument was presented and the submissions made. In so doing, I am not necessarily, nor indeed at all, to be taken as suggesting that the right may not be found in, nor its breach have consequences pursuant to, other constitutional provisions.

189. In this context some debate was had as to the precise time, point or event in the investigative process at which Article 38 rights apply. Where detention leads to interrogation which results in a confession, grounding the essential evidence upon which a conviction depends, there can in my opinion be no debate but that such rights apply; such is the case in Mr. Doyle’s situation. Finally, I should say for the avoidance of doubt that, in the situation as described, the overall fairness of the proceedings as a whole has seriously been compromised (see Ibrahim and Others v. The United Kingdom (Applications nos. 50541/08, 50571/08, 50573/08 and 40351/09), Judgment of the 13th September 2016, at paras. 250 et seq.).

190. Accordingly, whilst I am satisfied to recognise the right in question, it is not for the courts to determine how best it should be given effect to, either in the general context in which it will apply, or in the individual situations in which it will be exercised. If such a course was thought desirable, then that perhaps may be a matter for intervention by the Oireachtas. If this was to take place, it is likely that it would entail a delicate balancing of many important considerations, reflecting, on the one hand, the desirability of effective law enforcement and the efficient functioning of the justice system and, on the other hand, the non-negotiable respect for and adherence to the rights of suspects. One would also expect that the precise role of the solicitor during interview would be looked at in a manner which, inter alia, facilitates his essential function of safeguarding his client’s rights, but at the same time without affording him a free reign to impede the questioning process without good cause. Beyond that it is inappropriate to say more, as it is certainly not the courts’ role to prescribe what responsibilities the solicitor may perform, just as it is not for An Garda Síochána or the Law Society to determine this point. Whether and in what way the legislature might intervene is of course a matter for it, at least in the first instance.

191. The recognition of such a right is of course of importance at a constitutional level, but its anticipated conception had been well flagged in Gormley and White. With commendable foreseeability, some of the main actors involved – in fact, two of the most critical – have already taken steps to facilitate its effective functioning at a practical level. Therefore, the further changes which may be required should not be unduly burdensome.

Issue 3:
Whether the appellant can rely on the decision in Damache

192. The final issue on which leave was granted was set out thus:

“Whether the applicant, in all the circumstances, including that he was convicted in the Central Criminal Court on the 15th February, 2012, and the decision of the Supreme Court in DPP v. Damache was delivered on the 23rd February, 2012, can rely on that decision on his appeal.”
193. On this issue I agree in general with the conclusion reached by the other members of the Court and would add only that I do not think that any fundamental injustice or unfairness arises out of holding that the appellant is not entitled to rely on the Damache decision. I would accordingly dismiss this ground of appeal.

Conclusion
194. I would allow the appeal on the inducement issue, and consequently I would set aside the conviction and order a retrial. On the second issue addressed in this judgment, regarding the right to have a solicitor present during interview, I would allow the appeal and make a declaration reflecting the existence of such right. On the third issue, namely, the Damache point, I would dismiss the appeal.

People (DPP) v MD

[2018] IECA 277

JUDGMENT of the Court delivered on the 28th day of June 2018 by
Mr. Justice Hedigan

1. The appellant was tried before a judge and jury in Dublin Circuit Criminal Court between 13th and the 19th May, 2015 in relation to three counts. The appellant was found not guilty in relation to a count of assault contrary to section 3 of the Non Fatal Offences Against the Persons Act 1997 and a count of criminal damage contrary to section 2 of the Criminal Damage Act 1991, both alleged to have occurred between 10th and 12th June 2013. The appellant was found guilty in relation to a count of assault causing serious harm contrary to section 4 of the Non Fatal Offences Against the Person Act 1997, alleged to have occurred on 18th June, 2013. He was sentenced to 8 years imprisonment. The appellant now seeks to have his conviction quashed by this Court.
Background
2. The injured party in this case, Ryan Hickey gave three statements to the Gardaí in which he nominated the appellant as having assaulted him. At trial, the injured party retracted his statements and stated that an individual named “Whacker” had committed the assault against him, not the appellant. Given that the facts of the case are disputed, for clarity, this judgment will set out the conflicting factual accounts given by those concerned in chronological sequence.

3. On 18th June, 2013 at approximately 8.10 pm Mr Hickey stated that he was in a car with his friend, Niall Byrne rolling a joint. The car was parked in Mr Byrne’s driveway in Castle Park Estate, Tallaght. The appellant came up to the car in the driveway, and asked to be let into the car to have a chat. Mr Hickey got out of the car and lifted his seat to let the appellant into the car. The appellant got into the back of the car and stated “I heard you were a mad rat, Indo”. The appellant proceeded to attack Mr Hickey with a Stanley blade. Mr Hickey stated that Mr Byrne pulled at the appellant’s arm to loosen his grip. At this point, Mr Hickey managed to escape, got out of the car and ran home. His mother and girlfriend were home and he asked them to call an ambulance. At the time, he told his mother that “Fat Farreller” (the appellant) had assaulted him.

4. Garda Jennings gave evidence that at approximately 8:25 pm, he received a call informing him that Mr Hickey had been stabbed. He attended Mr Hickey’s family home at 8:30 pm. Upon arrival, he described seeing Mr Hickey as having towels over his head and face, with blood dripping down through his hands and the towels. Garda Jennings asked Mr Hickey who had stabbed him. Mr Hickey informed him that “Fat Farreller” had assaulted him. This was noted by Garda Jennings in his notebook. Mr Hickey was then taken to hospital.

5. Garda Jennings stated that he later took a statement from Mr Hickey in Tallaght Hospital at approximately 1:00 am on 19th June, 2013. This was approximately four hours after the assault had occurred. This was the first of the three statements Mr Hickey gave to the Gardaí. The injured party nominated the appellant as having assaulted him, stating that the appellant “sliced him” with a Stanley blade. Mr Hickey made a second statement at Tallaght hospital the next day, at approximately 2pm. Mr Hickey had been discharged and was waiting on a prescription from the doctors at the time. Mr Hickey again nominated the appellant as having assaulted him, stating that the appellant had “cut the head off him”.

6. On 25th June, 2013 Mr Byrne (the friend of Mr Hickey who had been present in the car at the time of the assault) declined to make a statement when requested to do so by Gardaí. He stated that he hadn’t seen anything on the night in question. Later, on 5th August, 2013, Mr Byrne made a statement to the Gardaí claiming that a fourth person called “Whacker” had been present in the vehicle and that “Whacker” had assaulted Mr Hickey, not the appellant.

7. On 25th September, 2013, Mr Hickey made a third written statement to the Gardaí at Terenure Garda Station confirming the appellant assaulted him, that there were only three people in the car when he was attacked including himself and that he didn’t know anyone called “Whacker”.

8. At trial, Mr Hickey gave evidence that there was in fact a fourth person in the vehicle called “Whacker” and it was “Whacker” and not the appellant who had assaulted him.
Grounds of Appeal
9. The sixteen grounds of appeal were set out as follows:

i) The Learned Trial Judge erred in law and in fact in allowing the prosecution to introduce into evidence the statements in the book of Evidence of Ryan Hickey pursuant to the provisions of S.16 of the Criminal Justice Act 2006 in circumstances where there was not sufficient evidence before the Court of the reliability of the said statements and in particular having regard to the manner in which certain statements had been taken from the Appellant.
ii) The introduction into evidence of the statements in the Book of Evidence of Ryan Hickey was wrong in law and not in accordance with the strict requirements of S.16 of the Criminal Justice Act 2006.

iii) The Learned Trial Judge incorrectly charged and misdirected the jury in relation to the provisions of section 16 of the Criminal Justice Act 2006 and in particular how the jury should assess and deal with evidence of such a nature, particularly having regard to the circumstances of its admissions in the circumstances of this particular trial.

iv) The Learned Trial Judge erred in law and in fact in declaring the witness Ryan Hickey to be hostile and in allowing the prosecution to treat him as a hostile witness.

v) The trial was unfair and unsatisfactory by reason of the late addition by the prosecution to the Indictment of two further counts (Counts 1 and 2) that related to offences alleged to have occurred on dates different to the offence alleged in count 3 of the Indictment which was unfair and prejudicial to the conduct of the Appellant’s defence.

vi) The Learned Trial Judge erred in law and in fact in refusing an application for separate trials as between count 3 and counts 1 and 2 of the Indictment.

vii) The Learned Trial Judge erred in law and in fact in failing to give the identification warning in accordance with the People v Casey having been requisitioned by Counsel so to do.

viii) The Learned Trial Judge erred in fact and in law in allowing the prosecution introduce and rely upon the evidence of identification by a witness Ryan Hickey (that evidence being given pursuant to S.16 of the Criminal Justice Act 2006) where no identification parade had been held by An Garda Síochána in circumstances where the Appellant had become a suspect and the witness was amenable to view an identification parade. The failure to hold such a parade deprived the Appellant of trial in due course of law in breach of the Appellant’s Constitutional rights.

ix) The Learned Trial Judge failed to adequately warn the jury in relation to the difficulties with identification evidence and in particular, he failed to particularise the relationship of the problems of visual identification evidence to the particular evidence of same in this particular Prosecution case against the Appellant.

x) The trial was unsatisfactory in that the previous convictions of a witness, Niall Byrne, who gave evidence at the trial, were revealed to the jury in circumstances where such evidence of the witness’s previous convictions was not admissible in law and/or in circumstances where its admission was unfair and prejudicial to the Appellant.

xi) The cross-examination by Counsel for the Prosecution of the witness Niall Byrne was unfair having regard to matters put to the witness in relation to his previous convictions which rendered the trial unsatisfactory and the verdict unsafe.

xii) The Learned Trial Judge’s charge failed to properly deal with the manner in which the jury should deal with and approach the evidence of Niall Byrne.

xiii) The Trial was unsatisfactory and the conviction of the accused unsafe by reason of the failure of the Learned Trial Judge to put adequately or at all the defence case, being one where it had at all times been put by the defence that the Appellant was present but had been mistakenly identified by the witness.

xiv) The Learned Trial Judge erred in law and in fact in admitting into evidence, evidence of fibre lifts which had no probative value or that whatever probative value it had was far outweighed by its prejudicial and unfair effect.

xv) The finding of the jury that the Appellant was not guilty on counts 1 and 2 but guilty on count 3 is perverse having regard to all the circumstances of the case, particularly in circumstances where the Learned Trial Judge allowed the admission of the Complainant’s evidence pursuant to S.16 of the Criminal Justice Act 2006.

xvi) The manner in which the evidence was adduced before the jury and the trial judge do not, in the circumstances, support a safe conviction. Consequently, the verdict of the jury was illogical and perverse and against the evidence and the weight of the evidence.

Submissions of Counsel for the Appellant
Previous Inconsistent Statements of Mr Hickey
10. At trial, Mr Hickey denied that the appellant had assaulted him, directly contradicting his previous statements:

“ […] up until yesterday morning when I walked into this court, I believed it was Sean Farrell that cut me up […] And when I seen him, I thought that’s not the man, I’m after giving the wrong bloody name. […] So would you rather I came in and lied to the Court and says “Yes, that’s him” and he gets locked up for it, like. Am I not meant to be truthful here if anywhere?”
11. In the absence of the jury, counsel for the prosecution made an application pursuant to section 16 of the Criminal Justice Act 2006 to admit the previous statements. The learned trial judge ruled that counsel for the prosecution could put the three previous inconsistent statements to Mr Hickey in cross-examination before the jury, and that a copy of each of the three statements could be provided to the jury.
12. Whether or not a statement is reliable is an essential touchstone of admissibility. Counsel for the Appellant stresses that the first two statements were taken from Mr Hickey in hospital at a time when he was seriously injured. Mr Hickey had smoked a number of joints prior to the assault. Further, the statements were not properly recorded by the Gardaí. In evidence, Mr Hickey stated that he did not remember making the statements.

13. The third statement was taken some months after the assault and was recorded, however in evidence Mr Hickey stated that when he gave that statement, “I was stoned out of my head […] I was suicidal that day. I was only back from England and I’m dragged into a Garda station to give statements, you know what I mean. I was in shock.”

14. The learned trial judge in ruling in the statements failed to have sufficient regard to the evidence on oath of Mr Hickey, that he had misidentified the appellant as having attacked him. The previous statements did not meet the criterion of reliability as required by section 16 and should not have been admitted by the learned trial judge.

15. Further, it is submitted that the learned trial judge failed to give reasons as to the admissibility of the statements. InDirector of Public Prosecutions v. Murphy(Unreported, Supreme Court, McKechnie J, 18th January, 2013), McKechnie J was critical of the trial judge’s failure to give “somewhat more detailed or discursive” reasons as to why he admitted statements in that case. McKechnie J stated that the language of section 16 implies a discretion in the court of trial such that “the reception of such a statement does not automatically follow”. As such, it is submitted that a trial judge must give reasons as to the admissibility of statements under section 16. This was not adhered to in this case.

16. It is further submitted that it was wrong in law to allow the jurors to keep a copy of the three statements during their deliberations, and that the jury were not properly instructed as to how the provisions of section 16 should be applied by them. Heffernan & Ní Raifeartaigh inEvidence in Criminal Trials(Bloomsbury 2014) state:-

“Further questions surround the manner in which the jury receives the previous statement. The statement, or the relevant parts therein, will have been read aloud in court during the examination of the witness, and referenced in the trial judge’s summing up. InR v Hulme, the Court of Appeal criticised a trial judge’s decision to allow the jury to take the statement with them when they retired to consider their verdict. As with any analogous written materials, such as a transcript of evidence of a video recording of an interview, there was an “undoubted risk that the jury would place disproportionate weight on the content of the document, as compared with the oral evidence”. A procedure whereby the jury are permitted to read the contents of the written statement in the jury box prior to retiring was defective for the said same reason. Even if exceptional circumstances arose where it was appropriate for the jury to read the statement or take it with them, the situation would call for “robust directions by the judge” over and above any general direction concerning evidence admitted under Section 119 [Section 119 being the equivalent to Section 16 Criminal Justice Act, 2006]”.

Judge’s Charge in Relation to Section 16 Application
17. The learned trial judge charged the jury in relation to the section 16 application in the following terms:
“The law facilitates evidence to be admitted to a jury in this situation. Mr. Colgan describes it as unique but it is not so a unique occasion because it’s provided for by legislation specifically that was passed in the year 2006 and it was passed in law specifically designed to meet the needs of a case such as this. Back in the early 2000s, shortly before 2006, there was a notorious murder trial heard in the city of Limerick and there the accused on trial was faced with a series of witnesses, I think in all seven, if not eight, who came into the witness box having earlier made statements implicating the accused, went into the witness box and each one after the other said I don’t wish to give evidence., I’m not going to tell the jury anything. They were allowed stand down and after that had been gone through the judge had no option but to direct the acquittal of the accused of the charge of murder. The legislature, faced with that situation, then introduced S.16 of the Criminal Justice Act of 2006 specifically designed that in cases where a victim or a witness gives evidence or, sorry, makes a statement to Garda Siochana to initiate and assist them in the initiation of a criminal investigation, then comes to court and seeks to retract or vary what they said, allows the prosecution to prove in evidence the original statements […]
The rationale is that, as is evident from this case, that a victim such as Mr. Hickey within a short time of being very, very seriously injured and feeling aggrieved of all of that is likely to tell the Gardaí what actually happened and in this case he had repeated that account on three occasions. First he relates it in the backyard, then repeats it within an hour of midnight, repeats it again in the afternoon of the same day and then confirms it when they’re read to him in interview in September some weeks later and saying yes, they are correct, that’s accurate and answers questions consistent with it and the State say that this body of evidence, taken together, is reliable, you can act upon it. You can have confidence that that is where the truth is.

The defence make the very fair and obvious observation on all of that. Mr Hickey is either lying now or he was lying when he was making his statements, either way he is a person who is inconsistent. He is untruthful. And you might therefore pause before you act upon his account, his evidence, his statements, whichever. He is untruthful. There is no two ways of putting it. It is open to you to conclude nonetheless that he came into this court with one objective in mind and that was not to assist the prosecution but to ensure that Mr Farrell is not made answerable to what he says was the wrongs done to him originally and it is for you, ladies and gentlemen, to assess the evidence, the details as given by Detective Garda Jennings of the conversation in the yard, back yard, of the interviews that have been reduced to writing and you have, and of your observation of Mr Hickey as he was being interviewed on the third occasion, all of that’s available to you to assess and the State says that based upon that you can have confidence that that is where you’ll find the truth. The defence say otherwise. The accused man himself in interview has said he is innocent and didn’t do it and Mr Niall Byrne has come forward to support him.”

18. To say to the jury that the law was passed specifically designed to meet the needs of a case such as this was unfair and prejudicial to the appellant’s case. In referring to a murder case in Limerick, the learned trial judge imposed an atmosphere of intimidation on the case.
19. Evidence introduced under section 16 should only be allowed where a jury is fully appraised as to how to deal with the evidence given viva voce and the previous inconsistent statements. Crucially, having regard to an accused person’s presumption of innocence, the difference between unsworn written statements introduced pursuant to section 16 and evidence given on oath was not explained to the jury. InDirector of Public Prosecutions v. Murphy(Unreported, Supreme Court, McKechnie J, 18th January, 2013), it was stated that a judge’s charge where an application pursuant to section 16 has been acceded to should draw attention to the risks associated with admitting evidence pursuant to section 16. McKechnie J was critical of this not having been done in the trial court. Specifically, the following ought feature in a judges’ charge: the historical role of the hearsay rule and the reasons underlying it; the court’s preference for direct sworn evidence tested by existing safeguards; the difference between oral statements and witness statements. Further, the Supreme Court stated that the judge’s charge must be tailored to the particular case, and that a judge should point out if sworn evidence is inconsistent with a previous statement – “unless the jury is so fully informed, their critical role in this context will almost certainly be impaired and could easily be fatally jeopardised”.

20. Recently, inDirector of Public Prosecutions v. Jonathon Douglas(Unreported, Court of Appeal, Mahon J, 21st December, 2015) Mahon J described the manner in which a trial judge should charge a jury with regard to previous inconsistent statements. It is submitted that the learned trial judge in this case did not adequately inform the jury as was prescribed in Douglas to the difficulties associated with evidence introduced against an accused person under section 16. Undue weight was placed on the value of the unsworn statements over and above the evidence given on oath by the injured party.

Declaration of Mr Hickey as a Hostile Witness
21. The prosecution sought to have Mr Hickey declared a hostile witness such that he could be cross-examined by the prosecution as to his previous statements. It is submitted that such an application should not have been granted, that the cross-examination far exceeded what is permitted and that the significance of the evidence adduced under such cross-examination was never explained to the jury.
22. A witness should not be declared hostile merely because he is unfavourable or forgetful. Mr Hickey was not recalcitrant, he gave his evidence and he was clear that he now realised that he had misidentified the appellant. The subsequent cross-examination of Mr Hickey was the longest cross-examination of any witness in the trial. It is submitted that it was unfair and over-zealous.

23. Further, having been granted the application to declare Mr Hickey a hostile witness, counsel for the prosecution sought an application to rely on inadmissible hearsay evidence and evidence contrary to the rule against narrative as part of the hostility cross-examination. The learned trial judge allowed the prosecution to cross-examine Mr Hickey on what other witnesses stated that he had said to them, for example in relation to what Mr Hickey had said to his girlfriend and mother. On foot of the trial judge’s ruling, counsel for the prosecution adduced hearsay evidence from Garda Jennings and Sandra Hickey, Mr Hickey’s mother. Garda Jennings stated: “Yes, he said it was a person called Fat Farrell”. Sandra Hickey stated: “He was just getting weak at that stage and I was the one – I was going hysterical and I was asking him what happened to him, what happen – like, I was pressing him, what’s happen – what happened to you, what happened to you. He wouldn’t tell me anything. And then he told me that Fat Farreller person had attacked him again.” In closing, counsel for the Defence appears to ask the jury to ignore the hearsay evidence, however, it was unsatisfactory for the evidence to have been put to the jury in the first place.

24. The learned trial judge failed to deal with the status of the evidence given pursuant to the hostility cross-examination in his charge to the jury, and as to how the jury should have approached such evidence. He failed to explain that the purpose of hostility cross-examination is to allow a party to discredit their own witness by proving a previous inconsistent statement.

Unfairness in relation to the Indictment
25. The fifth and sixth grounds of appeal relate to the late addition of two counts to the indictment (of which the appellant was found not guilty by the jury) and the refusal of the application for a separate trial as between the section 4 count and the two other counts.
26. The appellant was arrested in relation to the section 4 charge alleged to have occurred on 18th June, 2013 at 6 Castle Park Estate, Tallaght. He was never questioned in relation to any previous incidents. The Book of Evidence served on the appellant only contained a section 4 charge. On the 27th April, 2015, two weeks before the trial commenced, the appellant became aware that he was facing two further charges, one of criminal damage and a section 3 assault charge. These charges were included on the indictment, albeit relating to a totally separate incident dated between the 10th and 12th June, 2013.

27. It is submitted that it was unfair and oppressive to include two further counts on the indictment. A count which is wholly different from and unrelated to the main matter to be tried should not be allowed to proceed at the same time. The addition of the two further counts may have indicated to the jury that the appellant was a person with a bad animus towards the injured party and that he was continuously involved in serious crime, making the section 4 assault more difficult to defend. Separate trials ought to have been granted in respect of the section 4 count and the two additional counts.

Identification
28. Grounds 7, 8 and 9 of the appeal relate to the failure of the judge to give a Casey warning when requisitioned to do so, the fact that evidence of identification was admitted where no identification parade had taken place, and the failure of the learned trial judge to warn the jury as to the difficulties associated with identification evidence.
29. It is submitted that this was a case where an identification parade should have taken place following the arrest and detention of the appellant. The question of mistaken identity was at the core of the appellant’s defence. The learned trial judge charged the jury as follows: “In this case the central issue is was it Mr. Farrell and was it Mr. Farrell on each occasion”. The learned trial judge failed to address the fact that the witness, Mr Hickey had claimed on oath that he had named the wrong person as his aggressor, and no warning was given in relation to the issue of identification and the difficulties associated with identification evidence. Counsel for the defence sought aCaseywarning from the learned trial judge, who stated:

“No, there’s no issue of mistaken identity in this case whatsoever […] All right. The defence has conceded in this case that Mr Farrell was present in the motorcar. The issue is not one of whether he could identify him or not or was mistaken in his identity. Its whether he did it or not. That is the issue central to this trial. It is not a case that requires any Casey warning and I don’t propose to give the direction in that respect.”
30. The optimum method of pre-trial identification is an identification parade, because of the dangers associated with identification evidence. The desirability of holding identification parades was stressed inDirector of Public Prosecutions v. Lee(Unreported, Court of Criminal Appeal, Murray J, 20th July, 2004). Murray J. stated:
“…because of certain inherent dangers in relying exclusively or predominantly on evidence of visual identification there is an onus on the investigating Gardaí and the prosecution to ensure that evidence of visual identification is obtained in the most reasonably reliable form which, in the absence of reasonable cause, should be in the form of a formal identification.”
31. A trial judge must convey the dangers of acting on identification evidence to a jury. Further, a trial judge ought carefully examine the identification evidence with a view to pointing out to the jury any matters which might have affected its reliability.

Unfair Treatment of a Witness called by the Defence
32. In the course of his charge to the jury, the learned trial judge stated the following about Mr Byrne, the friend of the injured party present at the time of the assault who had stated that a man named “Whacker” had attacked Mr Hickey, and not the appellant:
“The accused man himself in interview has said he is innocent and didn’t do it and Mr Niall Byrne has come forward to support him. He was in the car and he says it wasn’t the accused. Now, Mr Byrne isn’t someone who might impress you much and the State challenge him on the basis that he is a man of dishonesty. He has committed crime in the past. He has gone to prison for it and he is someone who has no regard for authority and the police in particular from the evidence you’ve heard from the last witness called to comment on his status.”
33. It is submitted that revealing Mr Byrne’s previous convictions was unfair and prejudicial to the appellant.
34. Further, it is submitted that the cross-examination of Mr Byrne by the prosecution as to his previous convictions went beyond what is fair or permissible. The learned trial judge failed to address the manner in which the jury should approach the evidence of Mr Byrne.

Defence Case
35. It is submitted that the defence case, namely that the appellant was present at the assault but was mistakenly identified by the injured party as having committed the assault was never put to the jury by the learned trial judge in his charge. The learned trial judge failed to instruct the jury that the main prosecution witness, Mr Hickey claimed on oath that he had misidentified the appellant and another person had assaulted him.

Forensic Evidence
36. Evidence was given in relation to forensic investigations carried out after the assault. A chemical test indicated the presence of blood on the tongue area of Mr Farrell’s left runner, but that the sample was insufficient such as to generate a DNA profile. It is submitted that the prejudicial effect of this evidence outweighed its probative value. Evidence was also given in relation to various items, including a Stanley knife found in the appellant’s home. No blood was found on any of these items. It is again submitted that the prejudicial effect of the evidence outweighed its probative value and ought not have been admitted.
37. Dr Bridget Fleming gave evidence that she had forensically tested a blue hoodie that the appellant had been wearing when arrested. The purpose of this evidence was to implicate the appellant as being the person sitting in the back seat of the vehicle where the assault took place. She found 18 fibres that matched the fibres of the appellant’s hoodie. Dr Fleming stated that the fibre findings provided moderate support for the view that the hoodie was in contact with the rear driver’s seat at the time of the incident. It is submitted that the level of support offered by the forensic expert was not sufficient such that it should have been admitted into evidence.

Perverse Verdict
38. It is submitted that the finding of the jury of not guilty on counts 1 and 2 but guilty on count 3 is perverse having regard to all of the circumstances of the case.
39. Despite the injured party’s explanation that he had made a mistake in his identification, the appellant now stands convicted of a crime which he has always denied, in circumstances where the injured party has sworn on oath that it was not the appellant that assaulted him. It is submitted that this is a perverse verdict and one that should be remedied by this Court.
Submissions of the Respondent
40. The majority of the submissions made by the appellant (as drafted by his newly appointed legal team) were not raised in the trial court and therefore are not appropriate grounds of appeal, as perDirector of Public Prosecutions v. Cronin[2004] 4 I.R. 329. As is well settled, the appellant was bound to requisition the learned trial judge following the charge to the jury if the appellant was unhappy with the manner in which the case had been left to the jury, as was stated inDirector of Public Prosecutions v. Finnegan and Morrison[2011] IECCA 47.

41. Specifically, the appellant did not object to section 16 being utilized in the present case. In opposing the application to have Mr Hickey declared a hostile witness, counsel for the appellant stated: “I’d respectfully submit that in this particular instance, section 16 [of the Criminal Justice Act 2006] would suffice, were the Court to go that way.” In light of the quotations set out it is difficult to see how the appellant can make the arguments as set out in the grounds of appeal relating to the admission of the previous statements under section 16.

42. Garda Jennings gave evidence outlining in detail how each statement was obtained from Mr Hickey who was then extensively cross examined as to the reliability of the statements taken. Counsel for the prosecution made clear the procedural steps that would be adopted, including providing the jury with copies of the previous statements. Counsel for the appellant made no objection at any stage.

43. The learned trial judge properly instructed the jury as to the provisions of section 16 and how to apply them contrary to the submissions of the appellant:

“ […] it is a matter for you, the jury, to assess that evidence and in doing so, in estimating the weight the act says to be attached,if any, to the statements regard shall be had to all the circumstances on which any inference can reasonably be drawn as to the accuracy or otherwise. So, you have to have regard to all of the evidence and how these statements were obtained andwhether or not ultimately you can place any weight upon them, act upon them in other words.” [Emphasis added by Counsel for the Respondent].
44. No requisition was sought regarding this direction to the jury and the appellant now seeks on appeal to revise the position held by him at trial.
45. Counsel for the appellant submits that the learned trial judge erred in law and in fact in allowing the prosecution to cross-examine Mr Hickey as a hostile witness. The learned trial judge gave a comprehensive ruling granting the prosecution application to declare Mr Hickey a hostile witness, having listened to the evidence heard and the submissions of both counsel:

“The second leg of the application then is that Mr Hickey be considered a hostile witness, and the authorities and in particular, the judgment of Carney says that hostile means more than being merely adverse to the hopes or prospects of the prosecution’s case, and clearly that is the case here. I have fairly concluded that Mr Hickey’s is about the object of not giving evidence in pursuit of his original statements, and not to be obliged to say anything to implicate the accused man Mr Farrell in the alleged wrongdoing against him. He is, to my mind, hostile to the process. He’s certainly not truthful in my mind. He is intent, as I say, in the way I’ve indicated and in pursuit of that is prepared to tell untold lies about the events […] For these reasons, Mr Hickey can be treated by the prosecution as a hostile witness and be, therefore, cross-questioned, against the normal rule, on his evidence, subject to the limitations that it would appear Mr Staines is well mindful of.”
46. It is clear that the learned trial judge carefully evaluated all the relevant factors in arriving at his determination. Counsel for the appellant now takes issue with the manner in which counsel for the respondent conducted his cross examination of Mr. Hickey, however no objection was raised before the trial court to the manner in which the examination proceeded.
47. It is further argued by counsel for the appellant that prosecution counsel improperly introduced hearsay evidence in the course of his cross examination of Mr Hickey. Prosecution counsel made an application in the absence of the jury specifically to ensure that his intended method of cross-examination would not offend against the rule against narrative (rather than hearsay which it is submitted had no application to the present circumstances). He stated:

“[…] the second aspect of the cross-examination, effectively, is to seek to have the witness recant and accept that what he originally said is the truth. And I say that, by putting those statements to him, that at the time he said x, y and z to various people, that is consistent with the purpose that I’m seeking to advance, which is to, effectively, get him to recant and accept that what he said in his statements – that the jury will have – is the truth and what he’s now saying to the jury is untruthful”.
48. This was accepted by counsel for the appellant who stated “there will be certain issues that I will be raising with the witnesses in respect of what was said, soI don’t see any difficulty at this stage in respect of the matterso”. [Emphasis added by counsel for the respondent]. The trial judge then stated:
“All right, well then the order in which you present your evidence is a matter for you, I don’t need to rule on it, and I’m satisfied, having regard to the submissions you’ve made, that you are entitled to lead the evidence and put to Mr Hickey what it is he is alleged to have said to others in respect of who was his assailant”.
49. In light of the above, it is respectfully submitted that no error in law arose in respect of the manner in which the hostile witness application was dealt with.
50. With regard to the joinder of counts 1 and 2 to the indictment, both counsel made detailed submissions and the jurisprudence on the subject was fully opened to the court. The learned trial judge ruled as follows:

“No substance has been put to the unfairness in all of that other than clearly they have come very late in the date, but we’re now at the 13th of May. The charges were laid and the accused knew as from the 27th of April of this year that he was being presented with a trial on these facts as well based upon counts 1 and 2. No application for an adjournment has been made.”
51. In considering counsel for the appellant’s application for a separate trial as between count 3 and counts 1 and 2, the learned trial judge ruled as follows:
“It’s clear, and the State submits, that there is a factual matrix here; and it would seem to me that there is a close relationship and connection between the events of some eight days, eight to six days before the events between counts 1 and 2 and count 3. For that reason, therefore, I would not be disposed to order a separate trial…”
52. The learned trial judge did not err in law or fact in refusing the appellant’s application. He considered the submissions of both counsel in conjunction with the legal authority opened to him before delivering an appropriate ruling.
53. It is conceded that counsel for the appellant raised a requisition in respect of “identification evidence, whether identification or recognition” with the learned trial judge. The following merits quotation:

“MR COLGAN: Just one matter, Judge, that kind of strikes me
JUDGE: Yes.

MR COLGAN: in respect of the identification evidence, whether identification or recognition, whether the Court should give a Casey No. 2 warning in respect of it where it’s proved over time

JUDGE: No, there’s no issue of mistaken identity in this case whatsoever.

MR COLGAN: Well, there is a case in respect

JUDGE: In my view there isn’t and I don’t propose to give any direction to the jury

MR COLGAN: Insofar as that Mr Hickey had to concede that he didn’t know Mr Farrell that well, that he was out of the jurisdiction and that he had returned and that he wasn’t familiar with him.

JUDGE: All right. The defence has conceded in this case that Mr Farrell was present in the motorcar. The issue is not one of whether he could identify him or not or was mistaken in his identity. It’s whether he did it or not. That is the issue central to this trial. It is not a case that requires any Casey warning and I don’t propose to give the jury any direction in that respect .”

54. The learned trial judge later noted in ruling that Mr Hickey could be treated as a hostile witness that the victim and the appellant were familiar with one another:
“In his statements he admits to knowing Mr Farrell well, it’s suggested over a period of seven years or thereabouts he knows of him by his name, his address, his girlfriend, he knows of him by being the friend of an associate, and yet it’s only when he arrives into the courtroom yesterday that he realises that, in fact, for the first time, it isn’t the man. He tells untruths in respect of the presence of the fourth person or not in the motorcar, and whether or not he knew a person called Whacker, whom he now says in fact is the name of the man who assaulted him on the occasion.”
55. It is submitted that the possibility of mistaken identification or recognition applied to the facts of the present case is an entirely artificial construct. It cannot be now suggested that an identification parade should have been conducted where the prosecuting authorities were dealing with an allegation from Mr Hickey that he had been attacked by the appellant, a person well known to him.
56. In relation to the grounds of appeal concerning the cross examination of Mr Byrne, it is submitted that the prosecution’s cross examination of Mr Byrne focused on his credibility as a witness, his reluctance to deal with the Gardaí, and the suspicious similarities of the account offered by him to the Gardaí and the evidence given by Mr Hickey at trial. No objection was raised as to this issue at trial and the Appellant now seeks on appeal to revise the position held by him at trial.

57. No objection was raised in relation to the defence case not being adequately put to the jury at trial, and again, the appellant seeks to revise on appeal the position held by him at trial.

58. Counsel for the defence did not raise any objection based on the potential prejudicial effect of the evidence of the fibre lifts being admitted at trial. In any event, the evidence was highly probative as it amounted to circumstantial evidence from which the jury could infer that the appellant was in the car where the assault occurred and more specifically was seated behind the appellant during the assault. Further, the evidence was probative as the appellant baldly denied committing the offence in interview but gave no further details. The appellant did not admit to being present in the vehicle until late in the trial.

59. It is submitted that the finding of not guilty on counts 1 and 2 but guilty on count 3 is not perverse for the following reasons. The only evidence of the alleged assault and criminal damage contained on counts one and two on the indictment was the witness statements given by Mr Hickey. There was no contemporaneous complaint to the Gardaí nor was there any corroborating forensic evidence to support the witness statements. By contrast, there was a body of evidence to support the allegations made in respect of the slashing incident, including: Mr. Hickey’s statements; Mr Hickey’s contemporaneous complaints; Mr Hickey’s oral testimony and the inconsistencies therein; the evidence of Mr Byrne; the evidence of Ms Sandra Hickey; the appellant’s comments to Gardaí in interview; the fibre lifts taken from the vehicle where the assault took place; the medical evidence and photographs outlining the injuries sustained by Mr. Hickey.

60. It is respectfully submitted that the weight of evidence relating to the two separate incidents is incomparable and that the findings of the jury were objectively reasonable verdicts in the circumstances of the present case.
Supplemental Submissions of the Appellant
61. Counsel for the Respondent submits that the appellant should be precluded from raising most of the grounds of appeal because those issues were not raised at trial by his then legal team, relying upon the doctrine enunciated inCronin. It is submitted that there is no coherent basis on which the Appellant’s then legal team could have failed to raise the various issues now raised on appeal. There is a substantial basis for arguing that this failure was due to oversight on their part such as to create a serious risk that the appellant’s trial was not in due course of law.

62. It is submitted that it is not in the interests of justice that the appellant is precluded from making his substantive arguments as to the unfairness of his conviction by reason of theCronindecision. Counsel for the appellant therefore seeks to add an additional ground of appeal. The first matter to be considered by the Court is this motion to add a new ground, and the Court will then turn to the substantive issues on appeal.
Judgment of the Court on the appellant’s motion to add an additional ground of appeal
63. By a Notice of Motion dated the 15th of May 2017 the applicant ( the appellant in the substantive appeal, and hereinafter “the appellant”) seeks the leave of this Court to amend his Notice of Appeal by the addition of the following further ground of appeal:

“[22]. The trial of the appellant was unsatisfactory and his conviction unsafe by reason of the failure of his then legal representation to properly protect his interests prior to and during the course of his trial.”
64. This amounts to a claim of inept, ineffectual and indeed incompetent legal representation of the appellant at his trial. Moreover the claim is further particularised in the Notice of Motion as follows:
i) It is submitted in the circumstances of the case that the failure of the appellant’s legal representatives to object to the admission as evidence of witness statements made prior to trial by the victim of the assault causing serious harm with which the appellant was charged, as sought by prosecution pursuant to the provisions of section 16 of the Criminal Justice Act 2006, (the Act of 2006) constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. The said evidence was the core evidence in the case against the appellant in the absence of which no jury, properly instructed, could have convicted the appellant. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.
ii) It is further submitted in the circumstances of the case that the failure of the appellant’s legal representatives to object to the giving to the jury of copies of the said witness statements after they had been admitted in evidence constituted an error or oversight of substance on their part capable, in conjunction with their other errors or oversight, of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to this procedure and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

iii) It is further submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the omission by the prosecution, when cross-examining the victim of the assault in the voir dire as to the admissibility of his witness statements, to put to him expressly that what he had said in the said statements was true and that the evidence he was now giving in Court was untrue. There was no apparent element of tactical strategy in not objecting to the procedure thus adopted by the prosecution and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

iv) It is submitted in the circumstances of the case that the failure of the appellants legal representatives to object, adequately or at all, to the prosecution application that the victim of the assault be treated as a hostile witness constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

v) It is further submitted in the circumstances of the case that the failure of the appellants legal representatives to requisition the trial judge on that part of his charge to the jury in respect of section 16 of the Act of 2006 as dealt with the circumstances in which the said statute was enacted and which referred to a situation that has arisen in Limerick, constituted an error or oversight of substance on their part capable, in conjunction with their other errors or oversight, of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not making the said requisition and the appellants then legal representation has not, despite request, tendered any explanation for their failure to do so.

vi) It is submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the admission of hearsay evidence given by Saundra Hickey, Audrey Cunningham and, in part, Garda David Jennings, constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

vii) It is submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the admission of the forensic evidence given by Sarah Fleming and Bridget Fleming, in respect of blood on the appellant’s runners, knives found in the appellant’s house, blood staining and blood swabs, and fibre lifts taken from the locus of the crime, which evidence was of no probative value or in respect of which the probative value were significantly outweighed by its prejudicial effect, constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

viii) It is submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the admission of evidence in respect of clothing found in a washing machine in the appellant’s house which evidence was of no probative value or in respect of which the probative value were significantly outweighed by its prejudicial effect, constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

ix) It is further submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the manner of the cross examination, by the prosecution, of Niall Byrne, a witness for the defence and, in particular, the immediate putting to him at the commencement of the cross examination of his previous convictions constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the procedure thus adopted by the prosecution and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

x) It is submitted in the circumstances of the case that the concession by the appellants legal representatives, pursuant to the provisions of section 22 of the Criminal Justice Act, 1984, that the appellant was present in the motor vehicle in which the assault occurred at the time the assault occurred constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in making this concession.

xi) It is submitted in the circumstances of the case that the various omissions and failures of the appellants legal representatives, taken as a whole, constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in the various matters constituting the said omissions and failures and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.

65. The motion is grounded upon the affidavit of Siúna Bartels, Solicitor, sworn on the 15th of May 2017, and a subsequent affidavit sworn by her on the 22nd of March 2018, the contents of which this Court has carefully considered together with relevant exhibits. Ms Bartel’s exhibits correspondence with the appellant’s previous solicitor, in which, on the advice of counsel engaged for the purposes of the appeal, she posed a number of questions concerning the strategies adopted by the original legal team at trial.
66. In a letter dated the 5th of January 2017, written to the appellant’s former solicitors Ms Bartels stated, inter alia:

“In particular, we would ask you to comment upon the following matters which appear to us to be significant:
1. For what reason was no objection taken to the statements of Ryan Hickey being admitted pursuant to S.16 of the Criminal Justice Act 2006? In particular, was there a reason why objection was not taken to the voluntariness of the statements, particularly the first two statements, given the onus of proof and where Mr. Hickey’s evidence was that he had no recollection of making those statements or of their surrounding circumstances. In relation to the application to have the statements admitted, why was no submission made that Ryan Hickey was now adamant under oath that he had misidentified the accused as his assailant and that therefore, the content of the statements did not refer to the accused.

2. For what reason was objection not taken to copies of the statements that were admitted under section 16 being given to each of the jurors? The jurors had the statements at all times following their admission and all through their deliberations.

3. Was the third statement by Ryan Hickey served on the defence by way of additional evidence? It does not appear in the Book of Evidence and does not appear to have been served by way of Notice of additional evidence.

4. With respect to the prosecution’s cross examination of Ryan Hickey in thevoir dire, why was objection not taken to the fact that it was never expressly put to him by the prosecution that what he had said in the statements to the Gardai was the truth and that he was not telling the truth in Court.

5. Why, apart from seeking to have the issue deferred, was no objection taken to the application by the prosecution to have Ryan Hickey treated as a hostile witness.

6. Why was no objection made during the prosecution cross-examination of the witness which went well beyond what is normally allowed under such a process.

7. Why was no requisition made on the manner in which the Judge McCartan charged the jury on the S.16 procedure. Further, and on his direction that”it (the law contained in S.16) was passed in law specifically designed to meet the needs of a case such as this”and his account of the situation in Limerick that appears to have given rise to the necessity for this particular legislation? You will note that other flaws in the Judge’s charge on the S.16 procedure are raised in the Applicant’s submissions – however, no requisitions were made in relation to this part of the charge. Why were any these matters not the subject of requisitions?

8. At transcript Day 3, pages 1 – 4, why was no objection taken to the prosecution application for the admission of the hearsay evidence of Saundra Hickey, Audrey Cunningham and Garda David Jennings? The prosecution refered, incorrectly, to this evidence as narrative evidence. Why was no objection made to this evidence being adduced before the jury during the cross-examination of Ryan Hickey and in the evidence in chief of each of these witnesses?

9. Why was no objection taken to the admission of the evidence of:-

(i) Blood on the tongue area of the left runner of the Applicant taken from him at the Garda Station. [Transcript Day 4, page 2]
(ii) A Stanley knife, two blades, a scalpel knife and another knife. [Transcript Day 4, page 3]

(iii) Blood staining (the blood of the Applicant) found on a broken mobile phone face found at the Applicant’s residence. [Transcript Day 4, page 3]

(iv) Evidence of blood swabs. [Transcript Day 4, page 3]

10. Why was no objection taken to the evidence of fibre lifts as adduced from the witness Bridget Fleming, which appears not to have any probative value having regard to the standard of proof required in a criminal trial? [Transcript Day 4, page 7.
11. Why was no objection taken to the admissibility of the evidence in respect of the clothing in the washing machine? It appears that the prosecution case was that at least some of the clothes the Applicant was wearing when arrested were the clothes he was wearing in the car i.e. not in the washing machine. In addition there does not appear to be any evidence that the clothing in the washing machine belonged to the Applicant.

12. Why was no requisition made in relation to the way the Learned Trial Judge charged the jury in relation to the wet clothes in the washing machine, and that the washed clothes could account for the fact that there was no forensic evidence linking the Applicant with the assault?

13. Why was no objection taken to the way Niall Byrne was cross-examined by Counsel for the prosecution and, in particular, the immediate putting to him of his previous convictions and the calling of rebuttal evidence to discredit his testimony?

14. In closing the case, in circumstances where Ryan Hickey had sworn on oath that he had misidentified Sean Farrell as his assailant, why were the jury asked to deliberate upon the following issue?:- “What weight, if any, do you attach to them (the statements introduced pursuant to S.16) because either Mr Hickey was lying then back in 2013 when he said it was Sean Farrell or he told the truth back then or he is lying now or he is telling the truth now in respect of what he said about Sean Farrell because no one else assists in respect of the matter.””

67. These queries were replied to by the solicitor concerned in a letter dated the 18th of December 2017. It states,inter alia:
“We rely, in part, on this letter as demonstrating that the general tone of your assertion of a lack of strategic awareness in the approach to Mr. Farrell’s defence is misconceived.
In or around this time this firm was also instructed in relation to a personal injuries action, which representation also terminated on your appointment. We further made several appearances in Dublin and Naas District Court in relation to road traffic matters. We also represented Mr. Farrell’s partner in respect of a number of Road Traffic matters in the District Court. On all such occasions Mr. Farrell discussed his then pending trial with Solicitor and/ or Counsel.

On review of our records we can confirm that consultations were held with Mr. Farrell on the following dates:

lst November 2013 – Circuit Criminal Court 1st Mention

6th January 2016 2014 – High Court Bail Application

9th January 2014 – Arraignment

13th January 2014 – Bail Application

16th January 2014 – Further Arraignment Date

16th May 2014 – Consultation with Counsel

23rd May 2014 – Pre-Trial

6th June 2014- Consultation with Counsel

3 rd July 2014 – Consultation with Counsel

7th July 2014 – Initial trial date

8tb January 2015 – District Court matter

12th February 2015 – District Court Matter

13th March 2015 – Further pre-trial consultation with Counsel

16th April 2015 – District Court Matter

27th April 2015-Trial, CCJ

In addition to the foregoing dates, there were extensive telephone discussions with Mr. Farrell.

Mr Farrell’s trial eventually came on for hearing on the 27th April 2015. In circumstances where the prosecution was insistent that the matter needed to be prosecuted while witness availability was assured, the matter rolled over on a daily basis from the 27th April to the 13th May when the trial in fact commenced. On each of these 13 days on which the matter was mentioned before the Court, Mr. Farrell met with both Junior and Senior Counsel.

The trial proceeded until the 19th May and obviously Mr. Farrell discussed matters with both Counsel throughout.

In relation to the “Book of Evidence”, additional evidence and disclosure in the case, we wish to put on the record that it was agreed with Mr. Farrell from the very earliest point, that evidence of clothing found in the washing machine of his home would be relied on in his defence as same disclosed absolutely no forensic evidence linking Mr. Farrell to the crime. Mr. Farrell was advised that this evidence demonstrated not merely an absence of evidence but was evidence of absence. It was explained to him that positive evidence of this sort was of assistance to his defence. Mr. Farrell maintained this strategy throughout the period in advance of his trial and throughout his trial. As is quite obvious from the foregoing, there was a significant number of opportunities to express concern. On the contrary, Mr. Farrell was quite satisfied with this proposed course.

In response to the matters raised in your letter of the 5th January 2017 the following arises:

1. There was no indication that the statements were involuntary. Your assertion of Mr. Hickey’s lack of recollection is irrelevant in light of the fact that the statements were made in the usual format (complying with the requirements of the Criminal Procedure Act (as amended)) and Mr. Hickey did not deny making the statement. While you complain that no objection was made you fail to identify any stateable basis, in fact or law, that would support a submission that the statements were involuntary.

2. This point is either mis-stated or misconceived. S.16 provides that the statement itself is evidence. This is the evidence that is to be given to the jurors. It can be contrasted with the reading of statements under section 21. Again, you make a specious comment by way of criticism but no criticism in fact arises. As stated, your comments are misconceived or your understanding of the law is flawed.

3. In the absence of our files we cannot definitively answer this query. It may be the case that same was served during the course of the 2-week mention period that preceded the commencement of the trial and so was handed directly to Counsel.

4. We have discussed this matter in detail with junior counsel, it appears you complain that we failed to object that a question was not asked by the Prosecution. You have not identified any legal basis for such an objection to be made in the course of a cross-examination. Counsel advises that objections are made to answers to questions, not a failure to ask a question.

5. It was agreed with and understood by Mr. Farrell that it was inevitable that Mr. Hickey’s statements would be admitted under s.16. It was further agreed that the best basis on which a challenge might be brought to a ruling by the Trial Judge was in the event that he did not await Mr. Hickey’s evidence before the Jury, in the face of the content of his statements having been admitted before treating him as hostile. In furtherance of this strategy it was decided to invite the Court to defer the question of declaring Mr. Hiclcey hostile until his evidence was given after the statements had been admitted.

6. It is impossible to answer this query as it is completely vague and discloses no identifiable basis of complaint.

7. You have not identified any issue you take with the manner of Judge McCartan’s charge on the s.16 procedure. In relation to your “further” complaint that no requisition was made in respect of references to “a case such as this” and “the situation in Limerick”, we can only assume that you infer that these remarks were prejudicial. We would agree if that is the case. It was decided it would be more prejudicial still, to further draw the jury’s attention to the fact that s.16 had been invoked and that Mr. Hickey had been treated as hostile as Judge McCartan was clearly unimpressed with these features of the trial and further adverse prejudicial comments may have been made, whether legitimate or otherwise.

8. First, there was no reason to believe that Ms. Hickey, Ms. Cunningham or Gda. Jennings would give evidence other than in accordance with their statements. Mr. Hickey was a witness in the case. What these witnesses testify as to what Mr. Hickey said to them, where Mr. Hickey is a witness in the case cannot be said to be hearsay. Insofar as your complaint suggests that [prosecuting counsel’s] recital of that evidence is hearsay we refer you to the absence of any reason to believe those statements would be contradicted. You certainly have not identified any such contradiction nor was any contradiction in fact made, in evidence before the Jury. Further, as [defence Senior Counsel] tangentially refers to, at Day 3, page 4 line 10, there were matters to be put in cross-examination and testing those witnesses at that point in the absence of any basis for same would have equated that test with a rehearsal. It would have rendered the cross-examination before the jury as a mere repeat. In short, the element of surprise in respect of 3 crucial prosecution witnesses would have been lost. This 8th point raised by you yet again makes a vague complaint without any identifiable evidential or substantive legal reason for same.

9. The logic in not making objections to this evidence is identical to that concerning forensic analysis of the clothes and washing machine – these exhibits were positive evidence of absence of corroboration for the prosecution case. These matters were agreed as a strategy with Mr. Farrell since 2013.

10. The same response as to point 9 arises

11. The same response as to point 9 arises

12. Yet again in order to answer your complaint we must make sense of it by inferring that the basis for it is that the comments were prejudicial, the concern expressed earlier that affording the Trial Judge a further opportunity to address the jury may have further aggravated Mr. Farrell’s position before the jury arises by way of reply.

13. And yet again, you fail to identify why it was impermissible that Mr. Byrne’s previous convictions be put tohim. Are we correct in thinking that you take further objection on the basis that they were immediately put as opposed to put at some later stage? It ought to be unnecessary to point out yet seems warranted by your question, Mr. Byrne was not an accused person before the Court. He enjoys no protection against disclosure of such convictions by reason of the Woolmington principle. There was no basis to make any objection to his cross-examination. We must continue to point out that you have not identified any basis why any objection ought to have been made.

14. They were asked to consider what weight was to be attached to his previous statements for the reason identified by you, he had given evidence on oath that Mr. Farrell had been misidentified.”

The Law
68. There are relatively few cases in the jurisprudence of the Irish appellate courts dealing with alleged ineffectual representation by a party’s legal team, or “ineffective assistance in litigation” as it is characterised in the case law of the Supreme Court of the United States of America. The leading Irish case isThe People (Director of Public Prosecutions) v McDonagh[2001] 3 I.R. 411, which we will review in some detail momentarily. Other cases of potential relevance to a greater or lesser extentare The People (Director of Public Prosecutions) v Flynn(Unreported, Court of Criminal Appeal, July 30, 2003);The People (Director of Public Prosecutions) v. Doherty[2009] IECCA 17;The People (Director of Public Prosecutions) v. W.G.[2004] IECCA 43 andThe People (Director of Public Prosecutions v O’Regan[2006] IECCA 54 (CCA) & [2008] ILRM 247 (SC).
69. Before proceeding to review theMcDonaghcase and the other Irish cases it is appropriate to refer to the approaches which have been taken in some other common law jurisdictions.

70. In the United States of America the seminal case is that of Strickland v Washington 466 US 668. InStricklandthe US Supreme Court held (inter alia) that:

1. The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (696-698)
2. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction, or setting aside of a death sentence, requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. (687-696).

(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. These standards require no special amplification in order to define counsel’s duty to investigate, the duty at issue in this case. (687-691).
(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. (691-696).

3. A number of practical considerations are important for the application of the standards set forth above. The standards do not establish mechanical rules; the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. A court need not first determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed.
71. In the United Kingdom, particularly in England and Wales, differing positions have been taken at different times and the jurisprudence in this area has been somewhat in flux. Amongst the most significant cases in this developing jurisprudence are those ofR v Ensor[1989] 1 WLR 497; R v Clinton [1993] 1 WLR 1181;R v Nangle[2001] Crim L.R. 506 and R v Thrakar [2001] EWCA 1096. In Scotland the position is as set out inAnderson v HM AdvocateHCJ (1996 JC 29).
72. In theEnsorcase the Court of Appeal (Criminal Division), following the approach commended in the earlier cases ofR. v Gautam, The Times, 4 March 1987, and R v Irwin [1987] 1 WLR 902, stated that a conviction should not be set aside on the ground that a decision or action by counsel in the conduct of the trial later appeared to be mistaken or unwise. This was so even if the decision or action was contrary to the accused’s wishes. There was an exception in the case of flagrantly incompetent advocacy on the part of the accused’s counsel.

73. In the subsequentClintoncase the Court of Appeal (Criminal Division) signalled something of a departure from its earlier test requiring the establishment of “flagrant incompetence” before an appellate court would interfere, holding that, although the cases where the conduct of counsel could afford a basis for appeal were wholly exceptional, where a decision was taken either in defiance of, or without proper instructions or contrary to the promptings of reason and good sense, it was open to an appellate court to set aside the verdict on the grounds that it was unsafe and unsatisfactory. The court commented that “[i]t is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel’s alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict”.

74. InNangleandThrakarthe Court of Appeal (Criminal Division) reiterated that flagrant incompetence might not now be the appropriate measure, in the light of the Human Rights Act 1988 and having regard to Article 6 ECHR. InThrakar, it was said that “… the test is whether, in all the circumstances, the conviction is safe. Nonetheless, if such failures have prevented an appellant from having a fair trial, that will normally mean that the conviction is unsafe and should be quashed.”

75. In the Scottish case ofAndersoncase the High Court of Justiciary formulated a number of principles which may be summarised as follows:

i) Although it cannot be asserted as an absolute rule that the conduct of the defence by an accused’s counsel or solicitor will not be a ground of appeal, the circumstances in which this will be permitted must be defined narrowly;
ii) The conduct complained of can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. This, in turn, can only be said to have occurred where the conduct of the case was such that the accused’s defence was not presented to the court. This may be because the accused was deprived of the opportunity to present his defence, or because his counsel or solicitor acted contrary to his instructions as to the defence he wished to be presented, or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him;

iii) The principle of finality demands that the right to a fair trial should not be viewed as involving a right to a re-trial simply because things at trial might have been done differently. It that were so, there would be no end to the process of putting an accused on trial for his offence;

iv) While an accused has the right to have his defence presented to the court, his counsel or solicitor is not subject to direction by him as to how that defence is presented. In other words, although the representative must act according to his instructions as to what the defence is, the way in which he conducts the defence within those instructions is a matter for him. As a general rule, an accused is bound by the way in which the defence is conducted on his behalf.

76. Turning then to the Irish authorities, the case ofThe People (Director of Public Prosecutions) v McDonagh[2001] 3 I.R. 411 arose out of a violent confrontation between members of two families, in the course of which the applicant was alleged to have struck the deceased with a billhook causing his death. The applicant sought leave to appeal against his conviction on the grounds,inter alia, that the preparation for and/or the conduct of the applicant’s defence by his legal advisors was seriously inadequate and thereby deprived the applicant of his constitutional right to a trial in due course of law as guaranteed by Article 38.1 of the Constitution. In this regard, the applicant relied upon the failure of his legal advisors to interview certain potential witnesses, the advice given to the applicant not to give evidence in his own defence and the failure of his legal team to serve an alibi notice pursuant to s. 20(1) of the Criminal Justice Act, 1984. It was further submitted that the defence was seriously prejudiced by the fact that the senior counsel originally retained by the applicant handed over the defence brief at such a late stage as to deprive the applicant of an opportunity of retaining a replacement of his choice. Further, the senior counsel to whom the case was handed over did not have an opportunity to meet with the applicant or discuss the case with the other members of the defence team until the morning of the trial.
77. The Court of Criminal Appeal dismissed the application. Keane C.J, giving judgment for the court, stated:

“It has already been noted that, when delivering the judgment of the court on the hearing of the second interlocutory application in this case, Murray J. said that the conduct of a trial, including steps taken preliminary to the trial by an accused’s legal advisers could, in exceptional circumstances, give rise to a ground of appeal. That view is clearly consistent with the requirement of Article 38.1 of the Constitution that no person is to be tried on any criminal charge “save in due course of law”. A criminal trial, in which the defence of the accused was conducted with such a degree of incompetence or disregard of the accused’s interests as to create a serious risk of a miscarriage of justice, could not be regarded as a trial in “due course of law”. That would apply as much to the steps taken by the accused’s legal advisers prior to the trial as it would to the conduct at the trial itself.
That is not to say, however, that what might properly be regarded as an error by the accused’s legal advisers is, of itself, sufficient to justify the setting aside of the verdict and the ordering of a retrial. As was pointed out by Rougier J., giving the judgment of the English Court of Appeal, inR. v. Clinton[1993] 1 W.L.R. 1181 at p. 1188:-

‘It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel’s alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict …’

It was also said, in that case, that the circumstances in which a court is entitled to set aside the verdict of a jury when the grounds consist wholly or substantially of criticisms of the conduct of the defence at the trial, or of the preparations for the trial, must of necessity be “extremely rare”. In particular, where counsel has fully discussed the case with his or her client, and has made careful and considered decisions as to how best the defence should be conducted in his or her client’s interests, an appellate court should not intervene simply because it appears that counsel might have been mistaken in the view he took. This, it was said inR. v. Clinton[1993] 1 W.L.R. 1181 at p. 1188, applied particularly to the decision as to whether or not to call the defendant, which is one of the issues that has arisen in this case. It was however held that, exceptionally, where the decision in question was taken either in defiance of or without proper instructions or when all the ‘promptings of reason and good sense’ pointed the other way, it might be open to an appellate court to set aside the verdict.
The exceptional nature of the circumstances in which an appellate court should intervene on such a ground were also emphasised by Lord Lane C.J. giving the judgment of the same court inR. v. Wellings(Unreported, Court of Criminal Appeal, 20th December, 1991), also cited inR. v. Clinton[1993] 1 W.L.R. 1181 where he said at p. 1187:-

‘The fact that counsel may appear to have made at the trial a mistaken decision, or has indeed made a decision which in retrospect is shown to have been mistaken, is seldom a proper ground of appeal. Generally speaking, it is only when counsel’s conduct of the case can be described as flagrantly incompetent advocacy that this court will be minded to intervene.’

Subject to the caveat that the last sentence may arguably set the threshold for intervention at too high a level, the court is satisfied that the observations quoted set out, in necessarily general terms, the limited circumstances in which an appellate court may properly set aside the verdict of the jury where the grounds relied on consist essentially of criticisms of the conduct by the accused’s legal advisers of the defence of the trial or steps taken preparatory to the trial.”
78. The case ofThe People (Director of Public Prosecutions) v Flynn(Unreported, Court of Criminal Appeal, July 30, 2003) was a case in which the central complaint was not alleged ineptitude or incompetence, but rather an alleged failure to follow the client’s instructions, a claim ultimately not upheld by the Court of Criminal Appeal. Fennelly J, giving the judgment of the court, which applied the approach commended inMcDonagh, stated in addition that:
“Subject to the general obligation to follow his client’s instructions, counsel is, on the other hand, not only entitled but bound to conduct the defence in accordance with his own professional judgment. He must conduct the defence competently in accordance with his instructions.”
79. The case ofThe People (Director of Public Prosecutions) v. W.G.[2004] IECCA 43 concerned an applicant who had pleaded guilty to various sexual offences on the advice of counsel, then had misgivings about doing so, then following further legal advice was prepared to prepared to maintain his pleas, and then having been sentenced sought to appeal on the basis that that he entered pleas of guilty in circumstances where he had been in receipt of legal advice which was incomplete and inaccurate, and also that he was not given sufficient time to consider whether to plead guilty. The Court of Criminal Appeal dismissed the application, applying the McDonagh jurisprudence while also referencing the decisions inDPP v. Lynch(Unreported, Court of Criminal Appeal, Barron J 27th July 1999), andDPP v. B[2002] IR 246, both of which specifically concerned attempts on appeal to set aside pleas of guilty.
80. The case ofThe People (Director of Public Prosecutions) v. Doherty[2009] IECCA 17, was concerned with a claim that a rape trial was conducted in an unsatisfactory manner because the legal representation on behalf of the applicant failed generally to protect his interests, and in particular counsel for the applicant permitted certain evidence prejudicial to his defence to be admitted, and/or failed to challenge the admissibility of other evidence tendered by the prosecution. These claims were particularised in great detail by Macken J who gave judgment for the Court of Criminal Appeal. Counsel for the applicant at the leave to appeal hearing had argued that although the complaints then being made on appeal were not made in the course of trial, because of the incorrect and irrational tactics adopted by defence counsel, the arguments then sought to be made should be fully ventilated, as an exception to the general rule that points not made at trial are not normally permitted to be made in the course of an application for leave to appeal. The points then being made were intended to ensure that justice is done. Moreover, counsel argued the position fell squarely within the principles foundin The People (Director of Public Prosecutions) v Cronin (No. 2)[2006] 4 IR 329, in particular the following extract from the judgment of Kearns, J:

“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner”.
81. Counsel for the Director of Public Prosecutions in the Doherty case contended that the application was misconceived. The documents and materials in issue were led by the prosecution in the trial without objection but rather with the consent of the defence, it being clear that these were sought for the purposes of allowing the defence to follow a particular course of action at the trial for the perceived benefit of the applicant in his defence. The complainant and other witnesses led by the prosecution were all cross-examined to that end, which was clearly to the effect that the complainant was both inconsistent in her statements to several persons, and was a fantasist. It was perfectly proper in the circumstances for the evidence to be put before the jury.
82. The Court also heard a lengthy submission from counsel for the impugned previously instructed counsel who had accepted an invitation from the Court to participate as Notice Parties to the proceedings.

83. The Court of Criminal Appeal concluded that:

“There is no doubt but that the applicant may not be precluded in an appropriate case, from raising the above grounds of appeal by reason of the jurisprudence epitomised, inter alia, by DPP v Cronin, supra., and jurisprudence along similar lines. Nor is there any doubt but that in exceptional circumstances, claimed serious incompetence of counsel may be a basis for a good ground of appeal. It is however inappropriate for this court to engage in a general enquiry into how a defence was chosen between an accused and counsel or with its details where as in this case, no allegation is made that the applicant was not consulted on his defence. Rather it should look at the basis for the complaint made and its contended for effect on the trial.”
84. The Court of Criminal Appeal went on to quote the passage from the judgment of Keane CJ in theMcDonaghcase, cited earlier in this judgment at paragraph 13 above, before observing:
“In preparing for a case of this nature with its particular features, defence counsel clearly had a choice to make, which was to consider whether the balance of advantage lay in probing the inconsistencies in the statements eventually admitted, or whether it would make better sense from the perspective of defence tactics to exclude all of the evidence that was capable of being excluded, and to confine the case, as far as possible, to one of assertion and mere denial by means of vigorous cross-examination. The latter is what [counsel for the applicant] contends for. There were, however, as is clear from the above, undoubted disadvantages associated with whichever approach was adopted and therefore that choice was not an easy one.”
85. Ultimately, the Court of Criminal Appeal concluded as follows:
“The court is of the view that the case was conducted by defence counsel in accordance with a pre-thought out agreed strategy. That involved allowing into evidence material such as the content of the above accounts given at different stages by the complainant in relation to the abuse to which she alleged she was subjected or other evidence of which complaint is now made. The legal issue which arises is whether such an approach is one which counsel, properly instructed, could properly and reasonably adopt. It is clear from the authorities that cases in which “a court is entitled to set aside the verdict of a jury when the grounds consist wholly or substantially or criticisms of the conduct of the defence at the trial, or of the preparations for the trial, must of necessity be ‘extremely rare’.
[…]

In the present case, the court does not find that the conduct of defence counsel at the trial is open to the criticism now made of it or that the defence actually adopted was not put to the jury. Counsel was confronted with a very difficult situation and a particular approach to the defence was adopted with the applicant’s consent or on his instructions. Two or even more counsel may of course advise taking different valid approaches. Having regard to the analysis made by [Senior Counsel for the previously instructed counsel] of the factual and evidentiary issues arising, as set out above, it is not possible to conclude that the approach actually adopted was irrational, as claimed, nor that it was incompetent, nor in disregard of the applicant’s interests or his instructions. The defence strategy adopted was unsuccessful, it is true, but that has emerged with the benefit of hindsight.”

Discussion and Decision
86. This Court has read the entire trial transcript and has carefully considered the complaints made in the context of the trial as a whole. The focus of our enquiry has been on whether the matters complained of represented such a disregard of the accused’s interests that it cannot be said that he received a trial in “due course of law” as is required by Article 38.1 of the Constitution, or in other words a fair trial. This Court’s task has been made somewhat more difficult by the decision of the previous legal team not to avail of the opportunity to be joined as Notice Parties and to be separately represented at the appeal, as usually occurs when allegations of ineffectual representation by a previous legal team are made, e.g., as occurred in theMcDonagh,FlynnandDohertycases cited earlier in this judgment. They have been content to rely instead on the solicitor’s reply dated the 18th of December 2017 to Ms Bartel’s letter of the 5th of January 2017, both quotedin extensoearlier in this judgment. Despite this sub-optimal level of engagement by the previous legal team, we have ultimately not been persuaded that the appellant’s trial was unfair or that he did not receive a trial in due course of law.
87. It is clear from the correspondence exhibited that there was extensive consultation with the appellant both in the pre-trial phase and during the trial itself. It is contended by the former defence solicitor in his letter dated the 18th December 2017, and there is no affidavit from the appellant contradicting the assertion, that the defence legal team met with the appellant on each of the thirteen days of the trial. The defence legal team expressly take issue with any“assertion of lack of strategic awareness in the approach to Mr Farrell’s defence”and it is implicit in this that strategy and how the trial was progressing was regularly discussed during those thirteen days.

88. As regards the main defence strategy, the view appears to have been taken that the trial judge was unlikely to be sympathetic to any technical objections raised by the defence to the admission of the section16 statements, and that the previous statements of Mr Hickey would inevitably be admitted. Operating on that premise, it is to be inferred from how the case was approached overall by the defence, as reflected in the transcript, that the defence team’s overall strategic objective was not to waste time by challenging the admissibility of the s.16 statements in a voir dire they perceived was doomed to failure, and by doing so to provoke the ire of an already unsympathetic trial judge, but rather to try to convince the jury, who might be more open to the argument than the trial judge, that Mr Hickey, having changed his story in the manner in which he did so, was not to be regarded as either credible or reliable. In circumstances where Mr Hickey was the lynchpin of the prosecution’s case, the jury would be obliged to acquit Mr Farrell if they could not be satisfied as to his credibility and reliability to the standard of beyond reasonable doubt. This was certainly a viable and coherent strategy, even if others might not have regarded it as necessarily the best strategy.

89. In addition, but consistent with what we believe to have been the overall strategy, some other specific strategic decisions were identified by the former defence solicitor as having been taken. These included:

i) to rely on evidence that clothing found in the appellant’s washing machine provided no forensic link to the crime.
ii) that there was no point in challenging the voluntariness of the statements of Mr Hickey that it was sought to introduce under s.16 of the Act of 2006, as they each contained the standard declaration, and Mr Hickey was not denying making them (merely claiming no recollection of making them), and there was no other ostensible basis for doing so.

iii) that as it was inevitable, in counsel’s judgment and estimation, that Mr Hickey’s statements would be admitted under section 16 of the Act of 2006, the Court should be invited to defer declaring Mr Hickey as hostile until after he had given evidence before the jury, his previous statements having been first of all placed in evidence before the jury. It was anticipated that this application would most likely be refused, and that this refusal would provide a potential ground of appeal.

iv) that to raise a requisition in respect of somewhat prejudicial remarks made by the trial judge in charging the jury on section 16 of the Act of 2006, would do more harm than good in that it would re-emphasise, and remind the jury of, what the trial judge had said.

v) that to cross-examine the witnesses Ms Hickey, Ms Cunningham or Gda Jennings on the voir dire would likely only yield limited results, and would have the undesirable effect of giving those witnesses a rehearsal or dry run in respect of evidence they would be required to give again before the jury. It was thought better to preserve the element of surprise for their cross-examination before the jury.

vi) that to requisition the trial judge in relation to how he charged the jury with respect to the wet clothes in the washing machine would be unwise, as the trial judge might well make further remarks to the jury that would be unhelpful to the defence.

90. All of these decisions were matters of judgment to be taken by the defence legal team, in consultation with their client. It is clear there was extensive consultation. While some of the judgments made might perhaps be questioned, or second guessed, with the benefit of hindsight, an appellate court is not entitled to intervene simply on that basis. It must be established that the judgments made were contrary to “all the promptings of reason and good sense”. We are not satisfied that that is the case here.
91. We consider that very substantial deference must be given to the judgment of the defence legal team that was acting at the time. They were best placed to have a feeling for how the trial was going, how the trial judge would respond to different scenarios were they to play out, and how the jury were reacting to the evidence. Much of that dynamic will be undiscernible from the arid pages of a transcript. We agree with the principle enunciated inStrickland v Washingtonthat judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of that performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. We further agree that a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. This is consistent with Keane CJ’s comment in theMcDonaghcase that “the circumstances in which a court is entitled to set aside the verdict of a jury when the grounds consist wholly or substantially of criticisms of the conduct of the defence at the trial, or of the preparations for the trial, must of necessity be “extremely rare”. We do not see this case as coming within that category of extremely rare cases.

92. In so far as the complaints based on alleged failures to raise objections are concerned, we consider that many of the responding points made in the former defence solicitor’s letter are points well made. As is pointed out, objections are normally raised to questions which invite inadmissible evidence, or to answers which have proffered inadmissible evidence. There is no legal basis for objecting to the prosecution’s failure to ask questions. If the failure to do so results in a lacuna in the prosecution’s proofs, then that is to the benefit of the defence. The defence can then, at the appropriate time, make a submission to that effect either to support some application that they may decide to make or to resist some application on behalf of the prosecution.

93. Defence counsel is not obliged to pursue every conceivable objection that might be made in defence of his/her client. If a strategic defence is being run, and the objectionable matter is not potentially fatal to his/her case, counsel may prefer to remain focused on the main strategy or tactical objective and eschew pursuing collateral issues that might only serve to distract him/her, the judge and the jury from the immediate goal then being pursued. Just because a new team of lawyers, having reviewed the transcript, is critical of how the case was defended, and indicates that they would have defended it differently, does not mean that the appellant did not receive a fair trial.

94. We are satisfied in all the circumstances of this case that there is no reason to believe that the appellant’s trial was unsatisfactory, that it was unfair and that his conviction is other than sound. The justice of the case does not therefore require that the appellant should be allowed to ventilate and rely upon his proposed additional ground of appeal.

Conclusion
95. The Court is not disposed to grant the relief sought in the appellant’s Notice of Motion, and the application to add an additional ground of appeal is refused.
Decision
96. The Court having ruled out the amendment sought, must now consider the implications for this appeal of the Supreme Court decision inDPP v. Cronin[2006] 4 IR 329. In that case the court provided an authoritative statement of the criteria for admitting on appeal points not raised at the trial. Kearns J. stated as follows;

“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner.”
The possibility of raising such points is not entirely excluded. They may be admitted if they are “substantial and of fundamental importance to the fairness of the trial.” SeeDPP v. Boyce[2005] IECCA 143. The overriding duty of the Court is to see that justice is done. The restriction has a long history in Ireland. In Sandes “Criminal Practice Procedure and Evidence in Éire(2nd Ed., 1939) the learned author states;
“The specific grounds of appeal must be stated in the notice of appeal… The Court of Criminal Appeal will not permit a defendant or his counsel, after he has read through the transcript of evidence and has made a meticulous scrutiny of it, then to formulate grounds of appeal.”
97. As to grounds 1 and 2, upon the basis of the law established in the above authorities, it is hard to see how the issues surrounding the section 16 admission of the statements of Mr. Hickey can be raised before this Court. As is clear from the transcript and from matters outlined above in our decision on the motion, it was an issue that was considered by senior counsel for the accused and the decision was taken for stateable tactical reasons not to object. In their letter in response to the motion, the solicitors for the appellant stated that Mr. Hickey never indicated his statements were involuntary and never denied that he made them. No argument has been advanced as to why the section 16 statements should not have been admitted. There was no objection taken to the section 16 statements being given to the jury. Nothing of substance or going to the fairness of the trial can be identified here. Thus grounds 1 and 2 cannot be entertained.
98. As to ground 3, the appellant’s legal team made a tactical decision not to challenge the learned trial judge’s reference to the “Limerick situation”. They considered that emphasising the point might prove even more prejudicial. There was every opportunity for senior counsel for the appellant to requisition the judge and he chose not to do so. This was a tactical decision clearly and justifiably taken. No point is raised in this regard that rises to the level of substantial or that raises a question over the fairness of the trial. Senior counsel’s only request was to give the jury aCasey (No. 2)warning. This was refused. In the light of the section 16 statements that clearly show how well the appellant knew Mr. Farrell, there is no substance in this point. The learned trial judge may not have referred to that in his response to senior counsel but it had been amply canvassed beforehand, notably in the voir dire which took most of one day.

99. It is not possible to identify any defect in the manner in which Mr. Hickey was treated as a hostile witness or cross examined as such. He clearly was a hostile witness. Counsel for the DPP had clearly outlined to the Court how he intended to cross examine the witness and no objection was taken by senior counsel for the appellant.

100. Grounds 5 and 6 were raised by the appellant. The addition of the two charges was argued in some detail. The learned trial judge held that the only real unfairness raised was the lateness of the application. However he also noted that the appellant did in fact know at least two weeks in advance of the fact that he would face trial on those facts as well and no application for an adjournment was made. It was the choice of the appellant’s team at the time not to apply for an adjournment. These points also cannot be raised.

101. Grounds 7 to 9 deal with the refusal by the learned trial judge to give aCasey (No. 2)warning, his allowing the evidence of identification by Mr. Hickey when no identification parade had been held and failing to adequately warn the jury of the difficulties with identification evidence in this particular instance. As noted above, it was only in connection with aCasey (No. 2)warning that senior counsel for the appellant requisitioned the judge who refused. As also noted above, the evidence of the section 16 statements discussed extensively during the voir dire showed that Mr. Hickey knew Mr. Farrell quite well over a period of seven years. In the light of this evidence there is no reality whatever to a requirement for an identification parade, aCaseywarning or any other kind of warning about identification issues. This ground fails.

102. As to grounds 10 to 12 concerning the defence witness Niall Byrne, the manner in which he was cross examined by counsel for the DPP and the treatment of his evidence by the learned trial judge, none of these points were raised by the appellant’s team. This is probably because as observed by the letter of the solicitors for the appellant dated the 5th January 2017, they are devoid of any merit.

103. Ground 13 deals with the alleged failure of the learned trial judge to put the defence case adequately, being that the appellant was present but mistakenly identified. The ground appears devoid of reality in that nobody present in court during the trial could have been in any doubt as to what the defence was. In any event, not surprisingly, no point was raised at the trial and cannot be now.

104. Ground 14 deals with the admission of evidence of fibre lifts. It is argued that this evidence had no probative value or alternatively that any such value was outweighed by its prejudicial effect. It is clear that this evidence was highly probative. It allowed the jury to infer that Mr. Farrell was in the car where the assault occurred and seated behind Mr. Hickey. It should be noted that the appellant did not admit to his presence in his car until the first morning of the trial. This ground, again unsurprisingly, was not raised by the appellant at the trial and cannot be raised now.

105. Grounds 15 to 16 argue that the jury verdict was perverse. This argument is based upon the proposition that it was illogical and inconsistent to find the accused guilty on count 3 but not guilty on counts 1 and 2. This however is clearly not so. The only evidence supporting the first two counts were the statements of Ryan Hickey. There was no evidence of complaint to the Gardaí, nor any supporting photographic, forensic or other evidence to support Mr. Hickey’s statements. In clear contrast to this was the substantial body of evidence in support of the charge on count 3. This was;

(a) Ryan Hickey’s statements,
(b) Ryan Hickey’s contemporaneous complaints,

(c) Ryan Hickey’s oral testimony and the inconsistencies therein,

(d) the evidence of Niall Byrne,

(e) the evidence of Saundra Hickey,

(f) the appellant’s comments to the Gardaí at interview,

(g) the fibre lifts taken from the vehicle where the assault took place,

(h) the medical evidence and photographs outlining the injuries sustained by Ryan Hickey.

This seems clear evidence that the jury very carefully considered the different charges and weighed the evidence before them carefully in respect of each of the separate counts. Their verdict seems entirely logical and firmly based on the relative evidential weight backing up the different counts.
106. Thus we reject all of the grounds of appeal put forward by the appellant in his notice of appeal. The appeal is dismissed.