Detention for Questioning I

Cases

The People v Conroy

[1988] ILRM 4 McCarthy J
The main challenge to the accused’s conviction in this case is that the learned trial judge erred in certain procedural rulings which he made in the course of the trial; in particular, that he failed to observe the procedural requirements which were laid down by the Supreme Court in The People v Lynch [1982] IR 64. As the submissions made in support of this challenge are based, in the view of this Court, on a misunderstanding of what that case decided it would be as well to start this judgment with a comment on it.

In Lynch the Supreme Court quashed a conviction of murder holding that the trial judge should, in the exercise of his discretion, have excluded an incriminating statement as the circumstances in which it was procured were oppressive. But a further issue in relation to the incriminating statement was considered by the court. At the trial the accused had alleged that having gone voluntarily to the garda station in which it was made he later had been detained there against his will. It was urged on his behalf that from then on he was in illegal custody in breach of his constitutional rights, and the statement made during such custody should not have been admitted in evidence. The issue of fact which was raised was whether the accused had requested permission to leave the station and had been refused. This issue had been tried by the trial judge in the absence of the jury in a trial-within-the-trial and in their judgments the Chief Justice and Walsh J commented on the propriety of this procedure.

In his judgment the Chief Justice made a very clear distinction between (a) statements made by an accused which are not voluntary; (b) statements made by an accused which are unfairly obtained; and (c) statements made by an accused obtained in breach of constitutional rights: see p. 79. In relation to an issue arising as to whether a statement has been secured in breach of constitutional rights the Chief Justice had this to say:

This latter issue seemed to depend on whether, as the gardaí swore, the appellant had remained in the garda station of his own free will … or whether (as he swore) he was detained against his will …. This conflict of evidence, and the true facts, ought to have been decided by the jury …. In my view, the jury, either by a specific question or by an appropriate direction ought to have been asked to decide, as a question of fact material to the defence, whether the appellant’s evidence that he had been held against his wishes was or was not true.

A similar distinction is to be found in the judgment of Walsh J. He agreed with the opinion of the Chief Justice that, when a question arises as to whether or not a person was deprived of his liberty, this is a question to be ‘resolved ultimately by the jury’: p.86. And he went on to point out that if a question arises as to whether a statement is voluntary , then this is a matter for the ‘ trial judge in the first instance’ to decide upon its admissibility, the truth of the statement (if admitted) being a matter for the jury.

It does not follow from these judgments that, whenever the admissibility of an incriminating statement is raised at a trial, preliminary issues which arise must always be resolved by a jury (and not by a judge) in a ‘trial within the trial’. The admissibility of an incriminating statement may be challenged on a wide variety of grounds, for example that it was not voluntary, or that it had been taken in breach of the Judges Rules, or in circumstances which were so unfair that the court in the exercise of its discretion should exclude it. In these cases, when a preliminary objection is taken before evidence is tendered and the court is satisfied that a conflict of fact arises such a conflict had, up to Lynch, always been determined by the trial judge himself in the absence of the jury. Having determined the facts he then made a ruling on the point of law which arose. The judgments in Lynch did not decide that such procedures should in every case be discontinued. They dealt specifically and only with the situation where, in the course of a trial, admissibility is challenged on the ground that a statement was taken when there had been a conscious and deliberate breach of the accused’s constitutional rights. Only when such an issue is raised did the court consider that any conflict of fact which arises in that issue be determined by the jury, and not by the judge.

Secondly, when an issue arises in a trial as to the lawfulness of an accused’s custody in which there are disputed questions of fact to be determined by the jury, the Supreme Court did not consider it necessary to specify the exact procedures to be followed. The matter is one which has been left to the discretion of the trial judge. In appropriate cases the trial judge can hold a ‘trial within the trial’ in which the jury is asked to determine the disputed issues of fact by means of specified questions. In the light of the jury’s answers the trial judge can then as a matter of law rule on the admissibility of the impugned statement. But, alternatively, as the Chief Justice indicated in his judgment, the jury at the end of the trial might by an appropriate direction be told of the issue of fact involved and their need to resolve it and the consequences of resolving it in favour or against the accused. But there may also be cases (and counsel for the applicant and the Director have both adverted in their submissions to this point) (a) in which it may be necessary to try, as a preliminary issue in the course of a trial, facts relating to the admissibility of a statement but (b) in which it would not be in the interests of the accused that the issue be tried by the jury (because of the impossibility of excluding extraneous prejudicial evidence). In such cases the accused should be entitled to waive the right to have the questions of fact determined by a jury. Should the statement be admitted the accused would, of course, be free to challenge its veracity and/or the weight to be attached to it. Lynch does not prohibit this type of procedure.

Turning then to the first ground of appeal (which will be considered with the seventh) in this application, it will be seen that these refer to the Lynch judgments. It is submitted that there were ‘at least three matters on which there was a conflict of evidence between the state witness and the applicant’ which should have properly been submitted as issues of fact for the jury’s decision. The first of the issues is

a. The question of whether the applicant was on the 20th December, 1981 in custody in Claremorris Garda Station at the time when the incriminating statements were made.

What happened at the trial was this. After a number of garda witnesses had deposed to the fact that the accused had voluntarily gone to the Claremorris Garda Station on Saturday 19 December 1981 a garda witness was giving direct evidence as to an event which occurred in the early hours of Sunday 20. At this point counsel for the accused (in the absence of the jury) submitted that there were a number of issues of fact which should be submitted to the jury in a ‘trial within the trial’ stating (Book E p. 31): ‘the first matter is whether the accused was transmuted from a state of a person voluntarily in the Station into the state of being a person who was in fact in custody, de facto, as a matter of reality’, adding ‘I wouldn’t like to venture to put a particular time for that to be decided by a jury’. Having heard submissions the learned trial judge asked counsel for the prosecution whether there is anything in the evidence to indicate that the accused was not in voluntary custody (Book E p. 35) and, having been told that there was not, expressed the view that, on the submission made by the counsel for the accused, the issue of fact raised was a speculative one merely. Later (at p. 41) after the trial judge had commented on the fact that no indication had been given by counsel what the disputed issues of fact were, counsel informed the court that if the accused was to give evidence that he would ‘swear that he was under the impression that he couldn’t leave’ the garda station (p. 43). Refusing this part of the application the learned trial judge (at p. 45) held that there was nothing to indicate that there was an issue such as was referred to in Lynch for determination by a jury.

It has been submitted on the applicant’s behalf that the learned trial judge’s ruling was based on the view that a ‘trial within the trial’ can only be allowed at a time when there was evidence to justify such a procedure. But this was not the basis for the ruling which was made. It was based: (a) on prosecuting counsel’s uncontested summary of the effect of the State’s evidence in the case and (b) on defending counsel’s statement as to what his instructions from his client were relating to his presence in the garda station. Secondly, it seems obvious to this court that in the light of what he was then informed the learned trial judge was justified in concluding that the situation was very different to that in Lynch, in which the accused had claimed that requests made by him to leave the station had been repeatedly refused. In the light of what he was told by counsel the learned trial judge was, in the opinion of this Court, justified in concluding that there had not been disclosed any controversial issues of fact which, if resolved in favour of the accused, would have justified the court in excluding the accused’s statement on the ground that it had been obtained in deliberate and conscious violation of his constitutional right to liberty. The ruling given on this point was therefore correct.

At the trial other grounds of inadmissibility were urged and the learned trial judge, having heard submissions, decided to hold a ‘trial within the trial’ in the absence of the jury. Counsel had informed the trial judge that his client would swear that whilst in the garda station he had ‘ten times at least’ stated to various members of the Gardaí that he had wanted to see a solicitor and he urged that their refusal of this request rendered inadmissible the incriminating statement subsequently made. Having heard the evidence of the Gardaí and the accused himself, the learned trial judge decided the conflict of fact against the accused and declined to exclude the statement. On this present application it has been submitted that the learned trial judge erred in deciding the issues of fact himself and it is submitted that they should have been determined by the jury. In the opinion of this court that submission is based on a misunderstanding of the judgments in Lynch. If the accused was voluntarily in the station at the time he made the alleged requests, then, conceivably, exclusion of the statement on the ground of unfairness might be established. But no breach of constitutional right would have been involved so that the Lynch decision did not require the question of fact to be determined by the jury. And even if he had been in custody the accused had no constitutional right to a solicitor (see The People v Farrell [1978] IR 13) so an allegation of a failure to provide one on request is not, on the Lynch case, an issue which a judge cannot himself determine as a preliminary issue.

A third matter was raised (see Book E p. 1) at the trial by counsel on behalf of the accused as to whether or not a co-accused was brought into the room where the applicant was with the applicant’s consent, it being alleged that in the particular circumstances the presence of the co-accused rendered the accused’s subsequent statement inadmissible in that it was not voluntarily made. The trial judge was asked to try this issue himself, and he did so, determining it against the accused. It was submitted in ground (1) of the notice of appeal that he erred in doing so, but this ground was abandoned at the hearing before this Court, and need not now be considered.

Ground (2) on which this application is brought is based, in the opinion of this Court, on a misunderstanding of the ruling made by the learned trial judge. He did not, as is claimed, hold that before he could submit a question of fact to the jury he would require to be satisfied that a prima facie case had been disclosed in the Book of Evidence, and so this ground fails.

Ground (3) refers to the decision which the learned trial judge reached after hearing evidence in the absence of the jury. Although the accused gave evidence in the ‘trial within the trial’ in the absence of the jury, he did not at any time state that he was under the impression that he could not leave the garda station and neither his testimony nor the testimony of the garda witnesses required the trial judge to alter his previous ruling. Nor did anything which subsequently transpired in the course of the trial require him to hold another ‘trial within the trial’.

Grounds (4), (5) and (6) relate to the decisions taken on the evidence heard by the trial judge in the ‘trial within the trial’ and the subsequent ruling on admissibility. This Court cannot interfere with the findings of fact made in this case by the court of trial and in the light of these the decision on admissibility cannot be challenged.

Ground (7) has already been dealt with in this judgment and ground (8) has not been proceeded with. This leaves for consideration grounds (9) and (10) which relate to the judge’s charge. It seems to this court that none of the references made by the learned trial judge to the unsworn statement made by the accused were in any way incorrect and that there was no misdirection as is alleged in paragraph 10. Furthermore, no requisition in respect of them was made at the trial.

This means that all the grounds of appeal fail and this application must be dismissed.

SUPREME COURT
FINLAY CJ

(Hederman J agreeing) delivered his judgment on 31 July 1986 saying: Charles Conroy, the appellant, was convicted on 18 January 1984 by the Central Criminal Court, of murder. He applied after conviction for a certificate of leave to appeal to the Court of Criminal Appeal and that was refused. He then applied for leave to appeal to the Court of Criminal Appeal and on 6 June 1985 that application was refused.

The Court of Criminal Appeal, however, on the application of counsel for the applicant granted a certificate pursuant to s. 29 of the Courts of Justice Act 1924 to enable the applicant to appeal to this Court. The certificate identifies the point of law of exceptional public importance involved in the appeal as being:

Where in the course of trial the admissibility of an inculpatory statement is challenged on the grounds that
(a) it was obtained in conscious and deliberate breach of constitutional rights
(b) it was unfairly obtained
(c) it was not voluntary
1. In what circumstances are the relevant issues of fact to be determined by the jury?

2. At what stage of the trial is such determination to be made?

From the transcript of the evidence at the trial it is clear that the appellant came to Claremorris Garda Station at approximately 10 p.m. on 19 December 1981, the date on which the murder was committed. He remained in the Garda Station throughout that night and at approximately 10 a.m. on the morning of 20 December 1981, made an inculpatory statement.

At the trial, counsel on behalf of the applicant sought that issues of fact on three matters should be tried by the jury in order to determine the question of the admissibility of this statement.

Those matters were, firstly, as to whether at the time of the making of the statement the applicant was in custody and detained against his will in the Garda Station or whether he was there voluntarily, with a view to establishing a base for an allegation that the statement was taken by a conscious and deliberate invasion of his constitutional rights. Secondly, the question as to whether the applicant had repeatedly asked for a solicitor and had been refused access to one, and, thirdly a question as to whether the applicant had sought an interview as the Garda witnesses alleged, with one of his co-accused, or whether that had been forced upon him by a member of the Garda Síochána.

The learned trial judge refused to leave any issue to the jury on any of these three matters and his refusal is one of the grounds of appeal relied upon on behalf of the appellant and in effect giving rise to the point of law certified by the Court of Criminal Appeal.

The issue thus arising involves consideration of the decision of this Court in The People v Lynch [1982] IR 64. During the course of the submissions in this appeal, not only were there arguments submitted with regard to the interpretation and working of the decision in The People v Lynch, but on behalf of the Director of Public Prosecutions counsel asked this Court to review that decision and to contemplate not following it.

This is the first issue which must be determined on this appeal. The People v Lynch was an appeal brought direct from a conviction for murder in the Central Criminal Court to this Court. The appellant was in effect convicted on the contents of an inculpatory statement made by him after he had been in a garda station for a protracted period. The learned trial judge heard the evidence which was relevant to the issue of the admissibility of the statement himself in the absence of the jury, as had been the universal practice up to the decision of this Court in that case, and came to the conclusion that the appellant was not in custody at the material time and admitted the statement. The Supreme Court hearing the appeal consisted of O’Higgins CJ, Walsh and Kenny JJ, and unanimously held that the statement was inadmissible and that as a consequence the conviction must be quashed. The material portion of the judgment of O’Higgins CJ is to be found at p. 74 and is as follows:

The trial judge exercised his discretion to admit these statements on the basis that the allegations made by the Appellant were untrue. In so doing, he ignored the features of oppression, harassment and fatigue which I have mentioned, and which should have caused the statements, even if prima facie voluntary, to be excluded. For this reason, I think his discretion was exercised on a wrong basis, and accordingly I concluded that the statement should not have been admitted and that the appeal should be allowed and that the conviction of the Appellant should be quashed.

He then later on, on the same page, stated as follows:

In view, however, of the wide range of argument advanced, it seems to me that something should be said of a general nature with regard to the admissibility of evidence which is alleged to have been obtained irregularly in the course of garda investigation such as took place in this case.

The judgment then contains a wide-ranging review of the admissibility of evidence obtained by illegal and/or unconstitutional means, and, at p. 79 of the report the following passage which involves the questions at issue in this case occurs:

One further matter deserves comment. In this case, apart from the defence that the incriminating statements were involuntary, or obtained unfairly, it was also part of the defence that these have been secured in breach of the Appellant’s constitutional rights. This latter issue seemed to depend on whether, as the gardai swore, the Appellant had remained in the Garda Station of his own free will, and had never asked to go home or to be put in touch with his wife, or whether (as he swore) he was detained against his will although requesting to be allowed to leave, was not permitted to go. The trial Judge disbelieved the Appellant and therefore did not consider further the question of illegal detention or breach of constitutional rights. In my view, this fact alone rendered the trial unsatisfactory. This conflict of evidence and the true facts ought to have been decided by the jury. On the jury’s finding as to where the truth lay, the trial judge could decide whether or not there had been an illegal detention. In my view, the jury either by a specific question or by an appropriate direction ought to have been asked to decide, as a question of fact, material to the defence, whether the Appellant’s evidence that he had been held against his wishes was or was not true.

Walsh J agreed with the conclusion of O’Higgins CJ that the statement was inadmissible and that the conviction must be quashed, and based his decision on the fact that the evidence led to the conclusion that the appellant had been deprived of his liberty in an illegal and unconstitutional manner for which no extraordinary excusing circumstances existed at the time when he made the alleged admissions. At p. 86, however, he also dealt with the comment which had been made by O’Higgins CJ concerning the trial of the issues of fact in the following words:

I fully agree with the observations in the judgment of the Chief Justice that in matters of this kind where the question arises as to whether or not a person was detained or was deprived of his liberty (being a matter of fundamental importance to the admissibility of a statement made during that period) the question is one which must be resolved ultimately by the jury. It is rather like the situation which arises in reference to a judge’s direction to the jury on the question of corroboration. All the judge can really do is tell the jury that certain evidence is capable of amounting to corroboration, but he must direct the jury that it is for them to say whether or not they accept such evidence. If they do not accept it the judge must warn them that in the absence of any other corroborative material the evidence is uncorroborated: (See The People (Attorney General) v Cradden [1955] IR 130). A similar situation arises with regard to the voluntary character of a statement. It is for the trial judge in the first instance to decide upon the admissibility, but he cannot decide upon the truth of the statement. The judge in such a case must direct the jury that they must be satisfied that the statement is true or true in material respects, before they can accept it as evidence to be acted upon. In many cases consideration of this matter may involve the jury in considering and arriving at a conclusion on the circumstances under which the statement was made or obtained.

Kenny J simply agreed with the conclusion of both O’Higgins CJ and Walsh J that the statement was inadmissible but made no comment with regard to the question of the trial of any issues of fact governing its admissibility.

This decision represented a major change of procedure for the trial of criminal cases with a jury. Up to the time it was delivered, for a very considerable period as far as I can ascertain, the practice had been that all questions of the admissibility of evidence were tried, whether they depended upon questions of fact or of law or as most frequently happens of mixed questions of fact and law by the judge hearing the evidence and submissions in the absence of the jury and ruled upon by him. This procedure is commonly called the voir dire.

Under that practice and procedure it is also clear that as Walsh J states in the conclusion of the quotation which I have given from his judgment in Lynch’s case, the circumstances of the taking of a statement which are material to be considered by the judge in the absence of the jury in order to ascertain whether it is admissible or not, may be and are frequently re-investigated in the presence of the jury who are then invited on behalf of the accused to disregard as credible evidence the statement, even though it has been ruled as admissible by the judge. Such a proceeding, undoubtedly, has always had the disadvantage that the cross-examination of prosecution witnesses with regard to what may be a vital question of the admissibility of a statement takes place in the first instance in the absence of the jury and therefore when the same issues of fact come to be fought out in the presence of the jury, the witnesses are well prepared for the line of cross-examination involved.

After the decision in Lynch’s case had been delivered, the High Court and Circuit Court, to my knowledge as I then was a member of the High Court, interpreted the decision as providing for a separate issue to be left to the jury during the course of the trial in which the jury were asked to answer specific questions of fact and the judge would then upon the findings so arrived at, rule as a matter of law on the admissibility of the statements.

It seems to me clear that the constitutional right of a person charged with anything other than a minor offence to a trial with a jury does not involve nor does the decision in Lynch’s case suggest that it involved a right that issues of fact arising with regard to the admissibility of evidence should be tried by the jury.

I am, however, satisfied that the constitutional right to a trial in due course of law as interpreted by this Court would involve as a fundamental matter the right to trial with a jury from whose knowledge there is excluded any evidence of guilt which is inadmissible at law. For this reason I have the greatest possible difficulty in conceiving circumstances under which, with justice, it would be possible to leave to a jury at the conclusion of the case, evidence the admissibility of which is being challenged, simply giving to them a direction on the issue of fact which is involved and a warning that if they should resolve that issue in favour of the accused they should ignore the incriminating evidence which they had heard. Experience as a judge indicates that even as a trained lawyer there is a very significant difficulty in excluding from one’s mind incriminating evidence on the trial of a criminal case which is inadmissible. In my view, it would be an unreal task to seek to impose on a jury of lay persons and the risk of real injustice flowing from it would be great.

I am to an extent confirmed in this view by the decision of the US Supreme Court in Jackson v Denno (1964) 378 US 368, where the procedure with regard to the determination of the voluntariness of a confession provided by the New York procedure was condemned as violating the due process clause of the 14th Amendment of the United States Constitution. That procedure was that the judge must make a preliminary determination of the voluntariness of a confession and exclude it if in no circumstances could the confession be deemed voluntary. If, however, the evidence presents a fair question as to its voluntariness as where certain facts bearing on the issue are in dispute, or where reasonable men could differ over the inferences to be drawn from the undisputed facts, the judge must admit the confession and leave to the jury under proper instructions the determination of its voluntary character and also of its truthfulness. It was held that the procedure did not provide an adequate and reliable determination of the voluntariness of the confession and did not adequately protect the accused’s right not to be convicted through the use of a coerced confession. The report of that case has as an appendix to the opinion of Black J an extremely valuable analysis of the different methods of determining the admissibility of evidence and in particular of confessions through the different States of the United States. It is clear from it that the determination by a judge under voir dire to which we have been accustomed is by no means the only acceptably constitutional method of determining this question.

In practice, however, the trial of a separate issue during the course of the hearing has created immense difficulties and, in my view, they are of such a nature and quality that notwithstanding the advantage of having the maximum amount of factual issues decided by a jury in a criminal case, the disadvantages of the separate issue before the same jury outweigh them.

In general, it can be said that the entire atmosphere of an investigation or interrogation leading to a confession must be ascertained in order for a decision to be made as to whether the confession is voluntary or fairly obtained or not. It is almost impossible to lead evidence with regard to protracted interrogations, conversations or discussions possibly preceding the making of a written statement, and avoid disclosing to the jury conversations of an inculpatory, or partly inculpatory, character.

Furthermore, even such straightforward issues as the one arising in the instant case, namely, whether a person was or was not held against his will in a garda station, if they are to be tried by and before a jury, present very significant difficulties. In a high proportion of cases, as a matter of practical experience, one of the most forceful arguments towards establishing a detention against the will of a suspect, is the extent of the suspicion and the grounds for suspicion which investigating gardai have, with regard to his involvement in the crime. If the matter is being tried before a judge alone and in the absence of the jury, counsel can safely investigate that and very frequently it becomes a major factor in obtaining a decision to the effect that the person was in custody. If the trial of that issue takes place before the jury it obviously would be highly dangerous for counsel to explore that question, and questions even skirting around it are likely to lead to the introduction of prejudicial evidence.

For the reasons which I have sought to outline in this judgment, I have come to the conclusion that the interests of justice in criminal trials with a jury would be best and most likely served by a return to the procedure of the voir dire and to the principle that issues of both fact and law necessary to determine the admissibility of any evidence should be tried by a judge in the absence of the jury. As I have already indicated, this in no way inhibits the trial of the same issues of fact in the presence of and before the jury, their relevance being not towards the legal admissibility of the evidence being contested, but rather towards its weight or credibility.

This conclusion with regard to the decision in Lynch’s case, in effect, means that the appellant’s appeal, based on the refusal of the learned trial judge to leave the issues of fact to the jury, must fail.

In accordance, however, with the decisions of this Court1, the Court heard grounds of appeal other than those contained in the certificate issued under s. 29. One of those was directed in the alternative to the ground dealing with Lynch’s case, to the failure of the learned trial judge himself to hear and consider an issue as to whether the accused was at the time of the making of the statement (10 a.m. on 20 December) in custody, and in illegal custody.

It would appear from the transcript that the learned trial judge did not rule on this question, largely on the basis that upon enquiring as to what the issue of fact which counsel on behalf of the accused was seeking to have put before the jury was, he was informed, that the accused would, if he gave evidence, swear that he was under the impression that he could not leave the garda station after he had been there for a while. The judge appeared to rule that that was not evidence of fact and would be of no value and, eventually, ruled that there was not evidence to show that there was an issue of fact for determination of the nature of which was dealt with in Lynch’s case. It would appear to me that upon an issue being raised by counsel on behalf of the accused as to whether his client was, at and prior to the time of the making of a confession, in custody, the onus of proof is on the State to establish either that his custody was legal or that he was not in custody and that the judge should ordinarily permit evidence to be adduced of that issue.

In the present case, even on the agreed facts as eventually proved, there would appear to me to be considerable matters that would have to be weighed in the question as to whether he was or was not in custody at this time. One of the garda witnesses upon being asked as to what he would have done if the accused had asked to leave the garda station, said that it would not have been a matter for him; he would have had to consult his superior officer. The accused was brought in meals, his clothes were taken from him and he was constantly in the presence of members of the Garda Síochána, apart from a time when he was put in a cell, the door of which, apparently, could only be opened from the outside.

All these matters taken separately and together were matters on which it was necessary for the judge, in my view, to rule whether the accused was in custody against his will or was voluntarily there. The mere fact that he did not ask to leave is not a sufficient determination of this issue.

In these circumstances, and since the evidence against the accused, of complicity in the crime was dominantly derived from his own confessions, I am satisfied that the trial was not satisfactory and that the convictions should be quashed and a new trial should be ordered on all counts.

WALSH J:

In a criminal trial whether it be before a judge and jury or a judge or judges without a jury no statement made by an accused person can be put in evidence against him unless the prosecution first discharges the onus of establishing that the statement is admissible in law. This rule applies to both incriminatory statements and exculpatory statements. No such statement is admissible in law unless it is proved to be voluntary and has not been obtained by unfair methods and has not been obtained as the result of any conscious and deliberate violation of a constitutional right of the accused. This last test has come into prominence since the decision of this Court in The People v O’Brien [1965] IR 142. In the many cases in which the decision of O’Brien’s case has been applied since, it has been quite clearly established, as was clear from the case itself, that the conscious and deliberate omission or act is the relevant issue of fact. Where as a matter of law it is established that omission or act amounts to a breach of the constitutional right of the accused person, it renders totally inadmissible the evidence obtained as a result of that omission or act save in such extraordinary and excusing circumstances as are consistent with the decision in O’Brien’s case.

At the point in the criminal trial in which it is proposed to offer in evidence the statement of the accused the question of its admissibility must be ruled upon by the trial judge as a matter of law. The judge does that by applying the law to the facts relevant to the issue. The object of the ‘trial within the trial’ is to enable an issue of fact to be decided and when the issue of fact has been decided it is then for the judge to apply the law to the facts thus found. I have used the expression ‘trial within the trial’ which is the one commonly used in this country because to use the expression voir dire might be to create an ambiguity as that expression is commonly applied to an examination conducted by a judge only not merely as to the admissibility of evidence but also as to the competence of witnesses in both civil and criminal matters which may turn upon either the mental condition of the witness or the age of the witness. In a jury trial the voir dire in relation to the question of competence etc., is usually conducted in the presence of the jury. Even when the question of voir dire, in the sense in which I have understood it, concerns the admissibility of evidence in a criminal trial there have been differing views in other jurisdictions as to whether or not it can be conducted in the presence of a jury even though the function of the jury in such a matter if present is simply that of being spectators. On this latter point I am more persuaded by the opinion of Lord Chief Justice Lowry in R v Brinkley [1984] NI 48, than I am by the opinions expressed in other jurisdictions on the same point. However that is not the point in the present case.

The point arising in the present case is whether the issue of fact to which the judge is to apply the law is to be decided by him to the exclusion of the jury or to be decided by the jury to the exclusion of the judge or even if decided by the judge in the first sense it would be finally decided by the jury.

In the present case the issue was whether or not the presence by the accused in the Garda Station for a period of 18 hours before he was formally charged and formally arrested was during all of that time, or during the part of that time in which he made an incriminating statement, an illegal detention. If it was so, the statement is clearly inadmissible. The accused was requested, and agreed, to go to the Garda Station at 9.50 p.m. on 19 December 1981. While he was there he was interrogated by members of the Garda Síochána from 10.30 pm until 2.15 a.m. the following morning. The interrogation continued at 3.50 a.m. and at 5.30 a.m. he requested permission to sleep in one of the cells and he was allowed to do so. Before midnight the appellant had already made an incriminating written statement. The following day about 1.30 p.m. he made an oral incriminating statement and again made oral and incriminating statements at about 2.40 p.m. At 3.25 p.m. he was formally arrested and charged with the murder of Peter Gilmore.

The first issue of fact is, was he free to leave the station at any time between his initial entry there and the time he made the incriminating written statement or at any time thereafter until he was formally arrested and charged. He was certainly not informed of his right freely to leave the station during any of this period as he should have been if that was really the case. Furthermore, as has been pointed out in the judgment of the Chief Justice, one of the Garda witnesses at the trial, when asked what he would have done if the accused had asked to leave the station, said it would not have been a matter for him but he would have to consult his superior officer. That certainly does not indicate that he was free to leave the station. Furthermore his clothes were taken from him in the station and he was always in the presence of members of the Garda Síochána except when he was actually put in a cell, which could be opened only from the outside. Furthermore, while he was in the station, he expressed a desire to see a solicitor before he made any statement. No effort was made by the Garda Síochána to give effect to this expressed desire. If in fact the accused had been truly free to leave the station at any time then the Gardaí were under no obligation to do anything about the solicitor as the accused would have been quite free to walk out of the station and to come back with his solicitor. However, if in fact he was being detained then the failure to accede to his wishes when he expressed desire to see a solicitor puts quite a different complexion on the matter. If he had been free to leave when he had asked for a solicitor he could easily have been told that he should go and get one; but if in reality he was being detained, whether he was conscious of that fact or not, then the failure to make any effort to get him a solicitor would be consistent only with the fact that he was in detention. Furthermore at the trial itself it was indicated to the trial judge that the accused, on this question of admissibility, would give evidence to the effect that he was under the impression that he was not free to leave the station. That impression would seem to be confirmed by his acquiescence, if it was asquiescence, to be put into a cell and finally to request permission to sleep in the cell in preference to anywhere else.

It was quite clear to all parties concerned that the reason the accused was requested to come to the Garda Station in the first instance was to be questioned in respect of the death of the victim. In that unaccustomed environment he and his companions found themselves to be the focal point of attention and investigation and he was interrogated at hours which were beyond the normal time for going to bed at the end of an ordinary day. All these factors are ones which could put in question the fairness to the accused of the whole situation. To that extent the case is not unlike the circumstances prevailing in the case of The People v Lynch [1982] IR 64. It is not without significance that the Oireachtas has in the Criminal Justice Act, 1984, made specific provision for the limitation of the period of interrogation of persons who have not been charged and has discouraged questioning between midnight and 8 a.m. It is, however, for the trial court to decide all the issues of fact relating to the voluntariness, unfairness or a breach of constitutional right. In the present case there was clearly an issue to be tried on the latter point, if not also on the question of unfairness. The learned trial judge appears to have misdirected himself as to whether or not there was an issue of fact in relation to the illegality of detention and does not appear to have directed his mind to the necessity of the prosecution discharging the burden of proof which was upon the prosecution to establish that the detention was not illegal. This misdirection, even taken alone, is sufficient to warrant the quashing of the verdicts in the present case.

So far as obtaining a solicitor is concerned the submission made in this Court on behalf of the Director of Public Prosecutions was to the effect that when the solicitor was asked for, the accused did not expect the Gardaí to get one there and then and, alternatively, that the request ceased to be relevant when it had not been renewed. This really reduces itself to the simple question of fact of whether the accused did want a solicitor or not and that was an issue of fact which had to be decided. The judgment of the Court of Criminal Appeal expressed the view that there was no constitutional right to a solicitor and referred to the decision of the Court of Criminal Appeal in The People v Farrell [1978] IR 13. The first thing to note about Farrell’s case is that the accused person in that case apparently did not ask for a solicitor. The right which was claimed as a constitutional right on behalf of the appellant in that case was, as set out in p. 19 of the report, ‘a right to be informed before interrogation that he has a right to consult a solicitor …’. At p. 20 of the report the following passage appears after the references to the judgments in In re the Emergency Powers Bill 1976 [1977] IR 159 and in The State (Healy v Donoghue [1976] IR 325:

But none of the judgments goes so far as to declare that every person under suspicion of, or faced with, a charge of a criminal offence has a constitutional right to have the services of a solicitor and doctor before being questioned by an investigating Garda. Such rights as are adumbrated in the judgment cited are all related to the particular circumstances of the person whose rights require protection and vindication.’

In referring to the decision in The State (Healy) v Donoghue and other decisions, the Court of Criminal Appeal in Farrell’s case stated at p. 20:

All these judgments lay emphasis on the constitutional duty of a court undertaking the trial of a person charged with a criminal offence be vigilant to ensure that the trial is in all respects fair and just. The several judgments give substantial guidance as to the standards of fairness under the predominant concept of justice to be observed in relation to the particular circumstances of the person appearing before the Court.

Having regard to the nature of the claim being made in The People v Farrell I do not accept the judgment of the court as meaning that a person who asks for a solicitor when he is in custody and being interrogated, or before being interrogated, or being invited to make a statement, has not a constitutional right to have a solicitor present. Furthermore I cannot accept the gloss put on the judgments already referred to as being ‘related to the particular circumstances of the person whose rights require protection and vindication.’ It may or may not be the case, and I do not have to decide this at the moment, that there is a constitutional obligation upon the police to ask a person if he wishes to have a solicitor and that was the point which was before the court in Farrell’s case, but I am satisfied that if he does ask for a solicitor he is entitled to have one. In so far as Farrell’s case might appear to decide the contrary in my view it ought not to be followed. The constitutional right of the appellant in the present case to have a solicitor,if he asked for one, is based upon the constitutional obligation imposed upon the Garda Síochána to abide by the provisions of Article 40.3 of the Constitution, which postulates the observance of basic or fundamental fairness of procedures during interrogations by the members of the Garda Síochána. If such basic fairness of procedures is not so observed by members of the Garda Síochána then it is the duty of the courts to implement constitutional guarantees by excluding the evidence so obtained: see the decision of this Court in The People v Shaw [1982] IR 1. In my view, it could not reasonably be held that a failure to comply with the request of a person in custody, who was being interrogated throughout the night in respect of a possible charge of murder could not be regarded as an unfair procedure of the type which Article 40.3 of the Constitution requires to be avoided. Even if a solicitor is sent for in such circumstances, but the members of the Garda Síochána decide to press ahead with the interrogation before the arrival of the solicitor, I would regard it as a constitutionally forbidden procedure. In this context it is of interest to note that s. 4 of the Criminal Justice Act, 1984, has imposed an express statutory obligation on the member in charge of a Garda Station, where a person has been detained without a warrant on the grounds of suspicion of having committed an indictable offence as specified in the statute, to have the detained person informed without delay of his right to consult a solicitor and to have notification of his detention sent to another person reasonably named by him.

It is my opinion that the question of whether or not a solicitor was sought by the appellant during the period of his alleged detention in the Garda Station before he was formally arrested and charged is a vital question of fact in the present case on which a finding of fact must be made. It would also be an important finding of fact to determine whether the request was made before or after the incriminating admissions had been made.

That brings me to the question which is central to the present case. Who should make the necessary findings of fact to which the judge’s ruling in law as to admissibility should be directed? In The People v Lynch [1982] IR 64 O’Higgins CJ at p. 79, when discussing the question of the admissibility of evidence alleged to have been obtained during an illegal detention of the accused and dealing with the trial judge’s disbelief of the appellant’s sworn claim that he was detained against his will stated at p. 79:

This conflict of evidence, and the true facts, ought to have been decided by the jury. On the jury’s finding as to where the truth lay, the trial judge could decide whether or not there had been an illegal detention. In my view, the jury, either by a specific question or by an appropriate direction ought to have been asked to decide, as a question of fact material to the defence, whether the appellant’s evidence that he had been held against his wishes was or was not true. (Emphasis supplied).

I think the learned Chief Justice might have, perhaps, more correctly put the question as being whether the prosecution had established as a fact that the appellant had not been held against his will. In my judgment in that case I agreed with that expression of opinion delivered by the Chief Justice. I also expressed the view at p. 85 that ‘like the Chief Justice, I am also of opinion that the evidence points coercively to the fact that he was under arrest in the sense that he was not at liberty to leave the station and, as he had not been brought before a Peace Commissioner or a District Court within a reasonable time, his detention had already become illegal and therefore unconstitutional under Article 40 of the Constitution by the time any “admission” was made’. I also stated at p. 86 of the report that I fully agreed with the observations in the judgment of the Chief Justice that in matters of this kind, where the question arises as to whether or not a person was detained or was deprived of his liberty (being a matter of fundamental importance to the admissibility of a statement made during that period), the question is one ‘which must be resolved ultimately by the jury’. I went on to compare it with the situation which arises with a reference to a judge’s direction to a jury on the question of corroboration. I still think the analogy is good.

On this point the effect of the judgment in Lynch’s case is, in my opinion, that either the judge leaves it completely to the jury to decide or, if he does venture to decide the question himself, it still must ultimately be decided by the jury. The constitutional function of the jury is to decide questions of fact. In the type of criminal case in which the success of the whole prosecution depends on the admissibility of a statement by an accused person (cases of which seem to have become more frequent in recent years) it would seem incongruous if the most vital facts of the case, namely those which will govern the admissibility of the evidence without which the prosecution must fail, should be taken away from the jury. Admittedly until Lynch’s case it was always the practice for the trial judge alone to decide on these matters but the whole question of evidence obtained by unconstitutional methods only surfaced with O’Brien’s case. The law as expounded in Lynch’s case was to adapt to the new situation, as indeed the law did when the Judge’s Rules were formulated and various other rules of evidence dealing with corroboration etc. The whole purpose of judge-made rules is to adapt the law to changing conditions. The purpose of the rule enunciated in Lynch’s case was to ensure that the essential facts in a case are to be decided by the tribunal whose exclusive function it is to decide facts, namely, the jury. In the case of a court of a single judge or several judges, which act without a jury, both functions, namely, the finding of fact and the legal ruling based upon the resolution of the issue of facts must be made by the same tribunal, which thus makes for a much more difficult situation than when the task is divided between the judge and the jury.

It has been argued that the results of Lynch’s case made the system difficult or even unworkable and unfair. Such has not been the experience of those courts which have adapted themselves to it. It does not seem to me that there should be any difficulty for any judge to isolate the essential facts which must be decided and to present them to the jury as a special issue. It has been argued that such procedure breaks up the trial or in some way retards it. I do not accept this view. We have had examples in this Court of non-jury criminal trials where the ‘trial within the trial’ has gone on not merely for hours and days but even for weeks, and that without any resort to a jury, and with the matter still having to be decided when it is raised again after the ruling on admissibility. If the procedure suggested in Lynch’s case, namely to have a special issue tried by the jury, is adopted then that is the end of that particular matter and it does not have to be repeated. If the judge chooses himself to decide the matter in the first instance and in the result to admit the contested statement, he must then be extremely careful in his final directions to the jury who will then have before them the incriminating statement. In a matter such as the present one he would have to explain it to them very carefully and put a special question or questions to enable the jury to find as a question of fact whether at the time when the statement was made the accused person was being detained in circumstances which the judge would have already explained to them would be illegal. If they so find they must therefore ignore the statement and try to put out of their minds any prejudicial effect it may have had upon them. It would seem to me to be a much easier course in most cases to get the jury to decide this during the case without the statement being put before them, and after which the judge could then make his ruling in law as to admissibility.

It has also been urged that in some cases it would be difficult if not impossible to have the circumstances of the taking of statements investigated without reference to the contents of it, and to do that in the presence of a jury might be highly prejudicial to the accused. That could well be, but in my view not so prejudicial as letting the jury retire finally with the same prejudice without a chance of further instructions. Furthermore it leaves out of account the fact that the accused person can always waive the procedure of having the matter decided in the first instance by a jury if he is of opinion that the effect might be prejudicial. There may indeed be very many cases where the accused would prefer it to be done in the presence of a jury. If in such circumstances, the judge rules evidence inadmissible upon the jury’s findings, then he is in a much better position to emphasise to the jury that from that moment and for the rest of the trial they are to have no regard whatsoever to the statement. In the present case it is to be emphasised that the trial judge did not claim that he would have had any difficulty in following the course laid down in Lynch’s case but simply that he misdirected himself as to whether the occasion for it had risen.

Another point raised during the hearing of this appeal was the suggestion that, because of the provisions of the Criminal Justice Act, 1984, which now permit a majority verdict in a criminal case, there would be an anomaly if a unanimous vote of the jury was required on detention or non-detention. In my view that submission was based on a misinterpretation of the Criminal Justice Act, 1984. Technically a verdict is the determination of a jury declared to a judge on a question of fact in either civil or criminal proceedings. It is not confined to ‘guilty’ or ‘not guilty’. Verdicts may include general verdicts, special verdicts, substituted verdicts, particular issues of fact, fitness to plead, verdicts on pleas in bar etc. S. 25 (1) of the Criminal Justice Act, 1984, says:

The verdict of a jury in criminal proceedings need not be unanimous in a case where there are not fewer than eleven jurors if ten of them agree on the verdict.

That provision is not in any way qualified and in my opinion it embraces all the types of verdicts to which I have just referred. The section then goes on in subs. (2) and subs. (4) to make special provision for verdicts of guilty or verdicts of not guilty. Subs. (5) provides that the section shall not apply in capital cases. Subs (3) applies to all verdicts comprised in subs. (1) and requires that a majority verdict shall not be accepted unless it appears to the court that the jury has had such adequate time for deliberation as the court thinks reasonable, and in any event shall not accept a majority verdict unless the jury have at least two hours for deliberation. This latter provision might appear to be one which would cause inconvenience in respect of issues raised during the course of a trial but having regard to the fact that in many cases, when the judge alone undertakes to deal with the factual basis of the admissibility, it may not merely take several hours but run, as it has done in some cases, into days or weeks. Furthermore it is clear from the section that any verdict of a jury dealing, for example, with the fitness to plead or a verdict of ‘guilty but insane’ (which in the relevant statute is referred to as a special verdict), a majority verdict may not be accepted save in accordance with the provisions of subs. (3). In any event inconvenience cannot be permitted to be a decisive element in the proof of guilt.

Ultimately it is a matter for the judge to decide whether he will undertake the decision of fact himself in the first instance and then leave it to the jury when considering the appropriate and final verdict, or have a specific verdict on the issue of fact from the jury during the course of the trial. When exercising his discretion on this matter he should have regard to the possibility of considerable saving on time by following the latter course and should also bear in mind the necessity to safeguard from prejudice as far as possible, the accused’s position. With regard to this aspect of the matter, he should bear in mind that to take a jury’s verdict on the issue, before he admits them to knowledge of the contents of the statement, would be far less prejudicial than giving them the statement and then later instructing how they ought to disregard it if their findings in that factual aspect would render it inadmissible. In this context I would like also to refer to the fact that it appears that some judges permit the question of the admissibility to be decided before the trial proper starts by treating it as a preliminary issue. In my view this practice is not to be commended; in fact, to my own knowledge, many years ago it had been disapproved by this Court. The time to raise all questions as to admissibility is when the evidence is offered, not before. Many things may happen during the course of a case in which it may be decided not to offer the evidence in question. To have a judgement initially as a preliminary issue, however convenient it might appear to be is seriously to distort the procedure.

The judgment of the Court of Criminal Appeal appears to draw a distinction in principle between issues of fact related to unconstitutionally obtained evidence and other issues of fact which would go to the voluntariness of a statement or to the fairness of the circumstances surrounding the making of a statement. In my view the principle enunciated in Lynch’s case applies equally to such issues. In all such cases an issue of fact must be decided and it is for the judge then to apply the law to the facts thus found. As the appendices to the various opinions in Jackson v Denno (1964) 378 U.S. 368 demonstrate, in the United States practice varies from state to state. In many states the task of making the essential finding of fact is left to the judge only; in others it is left to the jury; and in still others both the judge and the jury participate. The U.S. Supreme Court did not condemn any of these variations as being unconstitutional. But what it did condemn in Jackson v Denno was a trial within the trial being conducted on the basis that the jury was permitted to consider both the admissibility of facts and the truth of the statement without specific questions on these issues being left to them to answer so that the global verdict of ‘guilty’ left unknown how they decided the specific issue of the facts relating to admissibility and gave rise to the danger that an acceptance of the truth of the statement overcame the other issue thus being a breach of due process.

I venture to suggest that if a procedure such as the one advised in Lynch’s case had been adopted the result would have been different. If Irish juries are to be allowed to merge all the issues in a single global verdict the very vice condemed in Jackson v Denno will be enshrined in our law.

For the reasons I have given I am of the opinion that the learned trial judge misdirected himself in respect of the disputed questions of fact relating to the detention of the accused prior to his formal charge and arrest. I therefore agree that there should be a new trial.

HENCHY J:

The chief point in this appeal is whether, in a trial of a criminal charge by a judge sitting with a jury, when a question arises as to the admissibility of an inculpatory statement, the necessary ‘trial within a trial’ on the question of admissibility should be conducted and decided by the judge sitting alone, or whether the evidential basis on which admissibility rests should be heard and determined by the jury.

The factual background of the case may be stated as follows.

On the evening of Saturday 19 December 1981 a Miss Mary Connell was fatally attacked in her home near Cahirlestrane, Co. Galway. Earlier on the same day, Edward and Peter Gilmore were also attacked in their home near Hollymount, Co. Mayo, and Peter Gilmore died from the injuries he received.

In the course of their inquiries into the death of Mary Connell, some of the local Gardaí called on Charles Conroy (‘the appellant’), James Cleary and Martin Sweeny and requested them to come with them to Claremorris Garda Station for questioning. That request was complied with. The three men travelled in a Garda vehicle and arrived at Claremorris Garda Station at about 9.50 p.m. on 19 December.

The appellant was interviewed in the station from about 10.30 p.m. until midnight. He was then taken to a television room where he was given refreshments at about 2.15 a.m. on 20 December. The interviewing of the appellant continued in the television room from 1 a.m. until 2.15 a.m. Up to then he had maintained that he was innocent of the fatal attack on Miss Connell, which was the offence of which he was then suspected. He was cautioned by D/Sergeant Tarpey at about 3.50 a.m.

Meanwhile, James Cleary, one of the other men who were being interviewed in connection with Miss Connell’s death, made an incriminating statement at 5.30 a.m.

At about 5.30 a.m. the appellant was allowed to sleep in one of the cells. He was awakened at about 9.45 a.m. by D/Garda Clancy who by then suspected him of the murder of Edward Gilmore. James Cleary was then brought into the cell by D/Garda Clancy and Cleary said to the appellant: ‘Make a statement, Charlie, they know all about it.’ Between about 9.45 a.m. and 11.25 a.m. the appellant made an incriminating written statement and at about 1.30 p.m. he made verbal incriminating admissions in his cell. He made further verbal admissions about 2.40 p.m.

The appellant was formally arrested and charged at 3.25 p.m. with murdering Peter Gilmore. He was then brought before a Peace Commissioner.

It appears that during the period of some 18 hours during which the appellant was in Claremorris Garda Station he was not informed of his right to leave the station. No effort was made to allow him to see a solicitor although it was agreed that he had requested to be allowed to see a solicitor before making a statement.

After an abortive trial in the Central Criminal Court for the murder of Peter Gilmore, the trial out of which this appeal arises took place in that court in January 1984. At that trial the jury convicted the appellant of the murder of Peter Gilmore and he was sentenced to penal servitude for life. He applied to the Court of Criminal Appeal for leave to appeal against that conviction. That application was refused but the court certified, under s. 29 of the Courts of Justice Act 1924, the following point as a point of law of exceptional public importance arising out of its decision (and that it was desirable in the public interest that an appeal be taken to this Court):

Where in the course of a trial the admissibility of an inculpatory statement is challenged on the grounds that
(a) it was obtained in conscious and deliberate breach of constitutional rights
(b) it was unfairly obtained,
(c) it was not voluntary
1. In what circumstances are the relevant issues of fact to be determined by the jury?

2. At what stage of the trial is such determination to be made?

 

The notice of appeal lodged in this Court by the appellant sets out eleven grounds of appeal, but in the event the appeal as presented rested on three main grounds:

(i) that the judge erred in not getting the verdict of the jury as to whether at the time the incriminating statements were made the appellant was being detained in conscious and deliberate violation of his constitutional right to personal liberty:

(ii) that the judge erred in not getting the verdict of the jury as to whether, at the time the incriminating statements were made, the accused was being detained in conscious and deliberate violation of his right to consult with a solicitor; and

(iii) that the judge erred in not getting the verdict of the jury as to whether it was at the instance of the Gardai that the co-accused James Cleary was brought into the appellant’s cell to say, ‘Make a statement, Charlie, they know all about it’, thus vitiating the appellant’s statement for want of voluntariness.

The proposition that the jury’s verdict should have been obtained for the resolution of those issues derives from the following passage in the judgment of O’Higgins CJ (with whom Walsh J concurred) in The People v Lynch [1982] IR 64, at 79:

In this case, apart from the defence that the incriminating statements were involuntary or obtained unfairly, it was also part of the defence that these had been secured in breach of the appellant’s constitutional rights. The latter issue seemed to depend on whether, as the gardai swore, the appellant had remained in the garda station of his own free will and had never asked to go home or to be put in touch with his wife, or whether (as he swore) he was detained against his will and, although requesting to be allowed to leave, was not permitted to go. The trial judge disbelieved the appellant and, therefore, did not consider further any question of illegal detention or breach of constitutional rights. In my view, this fact alone rendered this trial unsatisfactory. This conflict of evidence, and the true facts, ought to have been decided by the jury. On the jury’s finding as to where the truth lay, the trial judge could decide whether or not there had been an illegal detention. In my view, the jury, either by a specific question or by an appropriate direction ought to have been asked to decide, as a question of fact material to the defence, whether the appellant’s evidence that he had been held against his wishes was or was not true.

The suggestion there made or implied, that the contested issues of fact governing the admission or exclusion of an inculpatory statement or other incriminating evidence should be decided by the jury rather than by the judge sitting without the jury, is novel and, so far as can be ascertained, is not supported by either statutory or judicial authority. Indeed, it would seem to be in conflict with all judicial authority in this jurisdiction since The State v Treanor [1924] 2 IR. 193. It is therefore necessary to examine its implications from the point of view of principle and practice.

The principle which appears to underlie the change proposed in Lynch is that all issues of fact must be decided by the jury rather than by the judge. That, of course, is the general principle, but the well-established exceptions to it make the invocation of the principle inappropriate for present purposes. I find the law on the matter stated clearly and correctly in Salmond, Jurisprudence , 11th ed. (ed. Glanville Williams), p. 68

The general rule is that questions of law … are for the judge, but that questions of fact (that is to say, all other questions) are for the jury. This rule, however, is subject to numerous and important exceptions. Though there are no cases in which the law (in the sense, at least, of the general law of the land) is left to a jury, there are many questions of fact that are withdrawn from the cognisance of a jury and answered by the judge. The interpretation of a document, for example, may be, and very often is, a pure question of fact, and nevertheless falls within the province of a judge. So the question of reasonable and probable cause for a prosecution—which arises in actions for malicious prosecution—is one of fact and yet one for the judge himself. So it is the duty of the judge to decide whether there is any sufficient evidence to justify a verdict for the plaintiff; and if he decides that there is not, the case is withdrawn from the jury altogether; yet this is a mere matter of fact, undetermined by any authoritative rule of law. By an illogical though convenient usage of speech, any question which is thus within the province of the judge instead of the jury is called a question of law, even though it may be in the proper sense a pure question of fact. It is called a question of law because it is committed to and answered by the authority which normally answers questions of law only.

To the list of exceptions there set out must be added all questions of admissibility of evidence, which are reserved exclusively for the judge even though such questions may involve or rest entirely on findings of fact. The commonest example is an incriminating statement which the defence contends should be held inadmissible for lack of voluntariness. The standard procedure for dealing with that situation is for the judge to send out the jury and to hold a ‘trial within the trial’, known as the voir dire. Both prosecution and defence may call evidence and the matter may be pursued with a thoroughness and an openness which might not be proper—indeed might prejudice the defence or otherwise invalidate the trial—if the jury were present. If the judge is not satisfied beyond a reasonable doubt that the questioned statement was voluntary, he will exclude it. If he is satisfied beyond a reasonable doubt that it was voluntary, he will rule it to be admissible. The jury will then be recalled to the court and the prosecution will give evidence of the making of the statement. However, the defence will then be free, so far as is thought prudent, to re-agitate before the jury, by way of cross-examination, the matters on which it had relied earlier in the absence of the jury as rendering the statement inadmissible. Indeed it has been held that where an unrepresented accused unsuccessfully used the voir dire to cross-examine the police officer who took a confessional statement from him, with a view to having it ruled out as not being voluntary, and where the judge did not inform the accused that he could again cross-examine the police officer in the presence of the jury, the conviction was set aside as unsatisfactory and a new trial ordered: The People v Ainscough [1960] IR 136. A similar statement of the law by the Privy Council is to be found in R v Chan Wei-Keung [1967] 2 AC 160, where it was pointedly added that it is not for the trial judge who admits a statement as voluntary to tell the jury that they too must be satisfied beyond reasonable doubt that it was voluntary. The function of the jury in such circumstances would appear to be to decide whether in all the circumstances the statement is worthy of being relied on by them.

It is, in my opinion, a well-entrenched principle of trial by jury that in circumstances such as arose in this case it is for the judge, and for the judge alone, to rule on the admissibility of the statements.

Principle apart, the change in the respective functions of judge and jury suggested in Lynch would be capable of producing grave practical problems. If it were mandatory that issues such as whether a statement was voluntary, whether a detention was lawful, or whether there was a conscious and deliberate violation of constitutional rights, be tried by the jury, there might be grave prejudicial consequences for the accused. When admissibility on such grounds is decided by the judge in the absence of the jury, the defence is able to question or give evidence to rebut the prosecution case on the matter, with freedom from the risk of prejudicing the jury. Cross-examination of prosecution witnesses may be pursued in the course of the voir dire along lines which would frequently be incompatible with the prudent conduct of the defence in the presence of the jury. For example, questions may be put to prosecution witnesses which, if put in the presence of the jury, would disclose previous convictions or allow the accused’s character to be put in evidence by the prosecution. To conduct the ‘trial within the trial’ in the presence of the jury would frequently be so restrictive of the defence and so capable of undue prejudice as to be incompatible with a fair trial. It does not come as a surprise, therefore, to learn that the United States Supreme Court has held that such a mode of trial is incompatible with due process: Jackson v Denno [1964] 378 U.S. 368. The court there ruled that the determination of admissibility (in that case voluntariness) must be ‘in a proceeding separate and apart from the body trying guilt or innocence.’

Another practical defect in a trial within the trial in the presence of the jury is that it would frequently make the jury trying the particular issue governing admissibility unfit to try the general issue of guilt or innocence. This would be particularly so where the jury’s special verdict ruled out the questioned statement and there was other evidence which might justify a conviction. A jury thus informed of the circumstances and contents of the rejected statement would lack the characteristics of an impartial jury for the trial of the issue of guilt or innocence. A verdict of guilty thus resulting could not be allowed on appeal to stand. The alternative to such a mistrial would be, after the ‘trial within the trial’ was over, to try the issue of guilt or innocence before another jury. This, however, would be inconsistent with the unitary and unbroken trial with a jury which is necessarily postulated by the constitutional right to trial with a jury: see The People v McGlynn [1967] IR 232. What Article 38.5 of the Constitution guarantees is a single trial with a jury, not a succession of trials.

All things considered, I am of the opinion that the trial within a trial of an issue of or involving admissibility of evidence cannot be had before the jury. It is for the judge, and the judge alone to hear and determine the question of the admissibility of a questioned statement of an incriminating nature, including the factual background of its making. But it is also for the judge, when at the end of the case he addresses the jury, to direct their attention to the circumstances of the questioned statement and to tell them that it is for them to decide, having regard to all the evidence, what probative value, if any, they should give to the statement.

As for the present case, the judge—quite properly, in my view—conducted a trial within the trial as to whether the incriminating statements should be excluded on the ground (a) that they were not voluntary and (b) that they derived from a conscious and deliberate violation of the accused’s constitutional right to consult with a solicitor before making a statement.

As to (b), the decided cases show that a person detained by the police has no constitutional right—at least, in the absence of special circumstances—to consult with a solicitor before making a statement: see The People v Farrell [1978] IR 13, at p. 20. The judge accordingly decided this point against the appellant and that decision cannot in my view be disturbed.

As to (a), the gravamen of the appellant’s complaint was that, before he made his first incriminating statement, James Cleary, a fellow-suspect, was brought into the cell in which the appellant was and directed by D/Gda. Clancy to say to the appellant, ‘Make a statement, Charlie, they know all about it.’ This, it was contended, amounted to a vicarious inducement by a person in authority which rendered the statement inadmissible for lack of voluntariness. However, the judge, having heard in the absence of the jury the relevant evidence, ruled that the suggested inducement was not made and that the statement was admissible as a voluntary statement. Such a ruling by the judge, who saw and heard the witnesses and did not misdirect himself, cannot be upset by this Court.

The third ground on which this appeal was pursued, namely that it should have been tried as a separate issue whether the incriminating statements were obtained as a result of a conscious and deliberate violation of the appellant’s constitutional right to personal freedom, stands on a different footing. I have already in this judgment stated in outline the length and the general circumstances of the appellants stay in the Garda station, and I do not wish to elaborate on them, because in my opinion this ground merits a retrial of the case. The view taken by the judge was that a trial of this issue did not arise because the defence had failed to make out a prima facie case that the accused’s constitutional right to personal liberty had been consciously and deliberately violated. In this respect, I fear, the judge erred. In such circumstances it is not for the accused to make out a prima facie case. To get the matter determined by the judge in a ‘trial within the trial’ it is sufficient if his counsel indicates that he is contesting the admissibility of the statement on the ground that it is the fruit of the conscious and deliberate violation of the constitutional right to liberty of the accused. That was done in this case, but the judge held that it was insufficient. In all the circumstances, particularly having regard to the several allegations made by the appellant as to the circumstances of his detention, it was for the judge to rule whether the questioned statements should be ruled out as deriving from a conscious and deliberate violation of the appellant’s constitutional right to personal liberty.

For that reason I would hold that the trial was unsatisfactory and that there should be a new trial.

As to the certified question (which, unprecedentedly, is in the form of a general question), I would give the answer that where the admissibility of an inculpatory statement is raised, it is for the judge alone to try as a separate issue in a ‘trial within a trial’ the question of admissibility, including the facts on which admissibility depends. It is for the judge, however, in the course of his address to the jury at the end of the case to direct their attention to the contents and circumstances of a questioned statement (if it has been admitted in evidence) and to direct them that it is for them to decide what probative value, if any, they should attribute to it.

GRIFFIN J:

For the reasons given in the judgments delivered by the Chief Justice and Henchy J, I agree that the conviction of the accused in this case should be quashed and a new trial ordered. As to the certified question, I agree with the judgments of the Chief Justice and Henchy J. As however this question is of considerable importance in the administration of the criminal law, I propose to add some observations of my own.

Prior to the decision in The People v Lynch [1982] IR 64, the universal procedure in this jurisdiction had been that the judge alone decided whether the prosecution had proved beyond reasonable doubt whether the inculpatory statement alleged to have been made by the accused was voluntary or had not been obtained in deliberate and conscious breach of the constitutional rights of the accused. For this purpose, a ‘trial within the trial’ (the voir dire) took place in the absence of the jury. If the statement survived that test, it was admissible in evidence and was put before the jury as part of the evidence for the prosecution, the truth of the statement being a crucial question for the jury.

It was then the right of counsel for the defence to cross-examine again, in the presence of the jury, the witnesses who had given evidence in their absence, in the hope of persuading the jury that the statement had been improperly obtained and was therefore unreliable. It was the function of the jury (after proper direction in that behalf by the trial judge) to give to the statement such weight and value as in all the circumstances of the particular case they thought it deserved.

This procedure of a ‘trial within the trial’ was stated by the Court of Criminal Appeal to be the one which should thereafter be adopted in confession cases in The State v Treanor [1924] 2 IR 193—the first reported decision of the Court of Criminal Appeal within a matter of months of the establishment of our courts under the Courts of Justice . In the course of delivering the judgment of the court in that case, FitzGibbon J said 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.

The court is further of opinion that if evidence is tendered to prove the inadmissibility of evidence prima facie admissible, it is the duty of the judge to receive it, and to decide the question of admissibility, before the evidence is given in the hearing of the jury. The court approves of and adopts the statement of the law upon this point by Baron Parke in Bartlett v Smith (1843) 11 M & W 483; and the decision to the contrary of Lord Tenterden CJ in Jones v Fort (1828) Moo & M 196, must be regarded as overruled, as indeed it appears to have been by Boyle v Wiseman (1856) 11 Ex 360.

This procedure may be inconvenient, as Lord Tenterden suggests, but it is better that some inconvenience should be endured rather than that evidence should be given in the hearing of the jury which might, and probably would, affect their decision, no matter how emphatically they may be exhorted to expunge it from their recollections.

In Attorney General v McCabe [1927] IR 129, Kennedy CJ (who was the presiding judge in Treanor’s case) delivering the judgment of the Court of Criminal Appeal said at p. 134:

This court has laid it down that the question of admissibility is to be dealt with and decided by the trial judge before the evidence is received, for which purpose he is to hear any evidence offered on either side upon this question before the evidence is admitted or rejected by him, as the case may be: (The State v Treanor)

Since 1924, there have been a great number of cases in which the procedure laid down in Treanor’s case was followed, and also a great number of cases in which that procedure was accepted by the Court of Criminal Appeal and by this Court as being the correct procedure, and in which it was never questioned until Lynch’s case. Indeed, the trial in question in Lynch’s case was a retrial, in consequence of the order of the Court of Criminal Appeal of which I was a member. The procedure adopted in the first trial was that laid down by Treanor’s case, and neither at the trial nor on the appeal was that procedure challenged. Further, at the retrial, the same procedure was followed by the learned trial judge and was not challenged, nor was its correctness challenged in the notice of appeal to this Court, nor does it appear to have been called into question by Mr O’Donovan, counsel for the accused, in his submissions to this Court.

Having regard to the unchallenged and universal practice for almost sixty years in the jurisdiction, Mr Gaffney SC, counsel for the D.P.P., submitted that the decision in Lynch’s case was what he called ‘ a bolt from the blue ’, and was a remarkable change in procedure in the criminal law. He submitted that there was, in principle, no justification for changing the procedure which had obtained for such a considerable period.

That procedure was far from being novel, and appears to be the one adopted throughout almost the entire of what may be called the common law countries. As appears from the judgment in Treanor’s case, and from the statement of law upon the point by Parke B. in Bartlett v Smith, (1843) 11 M & W 483, approved and adopted by the court, it had been the accepted law from at least the middle of the 19th century. Although Bartlett v Smith was a civil case, the principles stated in it have been held to apply to criminal cases also, as the question of the admissibility of evidence was the same in the case of trial by jury in both civil and criminal cases. In Bartlett v Smith, Lord Abinger said that all questions respecting the admissibility of evidence are to be determined by the judge, who ought to receive that evidence and decide upon it without any reference to the jury. Parke B was of the same opinion, and referred to an Irish case in which a Major Campbell was indicted for murder; a dying declaration was tendered in evidence, and the judge left it to the jury to say whether the deceased knew, when he made it, that he was at the point of death. The question as to the propriety of that course was sent over for the opinion of the English judges, who answered that the course taken was not the right one, and that the judge ought to have decided the question himself. Alderson B was of the same opinion, and Rolfe B concurred.

The same procedure has been consistently followed and approved in England, Australia, Canada, and widely, though apparently not universally, followed in the United States and in most Commonwealth countries. Examples of statements of the principle involved are to be found in England in R v Murray [1951] 1 KB 391, per Lord Goddard CJ (Court of Criminal Appeal); and in the House of Lords in Minter v Priest [1930] AC 558, per Lord Atkin at p. 581; and in the Privy Council in R v Sparks [1964] AC 964, per Lord Morris, and in R v Chan Wei Keung [1967] 2 AC 160, per Lord Hodson, in which latter case the Privy Council approved R v Murray, R v Basto (1954) 91 CLR 628 (an Australian case), and R v McAloon [1959] OR 441 (a Canadian case).

In R v Basto the principle was stated very succinctly by the High Court of Australia at p. 640 of the report in the following terms:

The jury is not concerned with the admissibility of the evidence; that is for the judge, whose ruling is conclusive upon the jury and who for the purpose of making it must decide both the facts and the law for himself independently of the jury. Once the evidence is admitted the only question for the jury to consider with reference to the evidence so admitted is its probative value or effect. For that purpose it must sometimes be necessary to go over before the jury the same testimony and material as the judge has heard or considered on a voir dire for the purpose of deciding the admissibility of the accused’s confessional statement as voluntarily made. The jury’s consideration of the probative value of statements attributed to the prisoner must, of course, be independent of any views the judge has formed or expressed in deciding that the statements were voluntary.

Canadian decisions on the subject are in line with R v Murray and R v Chan Wei Keung and examples are to be found in R v McAloon, and R v McLaren, [1949] I WWR 529.

Whilst all these decisions (other than those of our courts) are in relation to the question of the admissibility of voluntary statements, the same principles apply to the question of the admissibility of statements obtained where there is in question an alleged deliberate and conscious breach of a constitutional right. In this latter case also, the question to be determined is the admissibility of the statement—if it is the “poisoned fruit” of a deliberate and conscious breach of a constitutional right, it is not admissible. The fact that Article 38.5 of the Constitution provides that (save in respect of the trial of offences not relevant to this case) no person shall be tried on any criminal charge without a jury, does not (as pointed out in the judgments of the Chief Justice and Henchy J) require that all questions of fact must be tried by the jury.

If and when it is proposed to change a procedure which has been universally approved and adopted in our courts for upwards of almost sixty years, and which is in line with one almost universally approved and adopted in most democratic countries of the western world, in my opinion there should be compelling reasons for making the proposed change. The change in procedure proposed in Lynch’s case was a fundamental change in the procedure to be adopted on the trial of criminal cases on indictment. In my opinion, there are no such compelling reasons for change in the case of the procedures in question in this case. On the contrary, there are, as the Chief Justice and Henchy J have emphasised in their judgments, compelling reasons in the interest of the accused and of justice generally, why the procedures should not be changed. Although, as the Chief Justice has pointed out in his judgment, where the questioned statement is ruled to be admissible, the witnesses for the prosecution will already have been cross-examined in the absence of the jury, and will therefore be well prepared for the second cross-examination, the obverse side of the coin is that there are, in addition to those detailed by the Chief Justice and Henchy J, decided advantages to be gained by the accused from the voir dire carried on in the absence of the jury. Counsel for the defence will then have the opportunity of conducting his cross-examination of the prosecution witnesses, on the resumption of the trial proper, with knowledge of the possible pitfalls and the consequences to his client if certain questions are asked, and of tailoring his questions accordingly, and this can be of considerable benefit to the defence. Thus, for example,

(i) by the questions asked on the cross-examination of the prosecution witnesses, and by giving evidence himself on the voir dire, the accused may be liable to cross-examination as to his previous convictions or bad character under s. 1(f)(ii) of the Criminal Justice (Evidence) Act, 1924. He can therefore safely challenge the prosecution evidence, without abandoning the right to silence at the trial, as the prosecution is not permitted, on the resumption of the trial on the main issue, to adduce substantive evidence of what he said during the voir dire—see per McMullin J in R v Ng. Chun-Kwan [1974] HKLR 319 at p. 328; R v Wong Kam-Ming [1980] AC 247. His counsel can therefore fully evaluate the risk of making an imputation against the prosecution witnesses and can circumnavigate it by avoiding questions which would result in the admission of evidence of the previous convictions or bad character of the accused before the jury.

(ii) If the accused gave evidence on the voir dire, as he is for all practical purposes obliged to do if there is to be any reasonable hope of excluding the statement, and the statement is subsequently admitted , counsel for the accused can, having regard to the evidence already given by the accused, make a value judgment as to whether the accused should give evidence on the trial proper—if his evidence is likely to be materially different from that given by him during the voir dire he would be exposed to the danger of being cross-examined so as to establish that at the earlier stage of the trial he had told a different story—see R v Wong Kam-ming [1980] AC 247.

Having regard to the principles involved, to the practice which obtained for almost sixty years, and to the authorities, a change in the procedures laid down by Treanor’s case would, in my opinion, materially operate to the disadvantage of the accused, and would not be in the interests of justice in the administration of the criminal law.

As the learned trial judge was incorrect in failing to hear and determine the issue as to whether the accused was, at the time he made the statement, in custody, and, if he was, whether such custody was in deliberate and conscious breach of his constitutional right to personal liberty I would concur in the order that his conviction should be quashed and a new trial ordered.

 

 

 

 

The People (Director of Public Prosecutions) v. Healy

Finlay C.J. [1990] 2 IR 75
S.C.

 

Finlay C.J.
15th December 1989

This is an appeal by the Director of Public Prosecutions against a judgment and verdict of the Central Criminal Court pronounced on the 21st January, 1987, whereby the defendant was found not guilty by direction of the offences of attempted murder, shooting with intent to do grievous bodily harm, and robbery, all of which arose out of an attempted armed robbery which occurred on the 21st February, 1986, in the city of Dublin.
The only evidence tendered by the prosecution against the defendant which would associate him with participation in the crimes which had been committed was a statement in writing made by him to members of the Garda Síochána whilst in their custody following upon his arrest pursuant to s. 30 of the Offences Against the State Act, 1939.
The admissibility of this statement was challenged by the defence on the ground that prior to the completion of it a solicitor retained by the defendant’s family had arrived at the garda station and requested an interview with the defendant. He was not permitted to see him nor was the defendant informed of his presence until after the completion and signing of the statement.
The learned trial judge ruled:
(a) that the defendant had been, without any excuse, denied a right of instant access to his solicitor, and (b) that he, the learned trial judge, could not be satisfied that the incriminating admissions contained in the written statement were made prior to the denial of that right of access.
He accordingly ruled that the statement was inadmissible in law and directed the jury to acquit the defendant.
The facts
The defendant, who was then about eighteen years of age, was arrested at 7.55 a.m. on the 12th March, 1986, pursuant to s. 30 of the Act of 1939 on suspicion of being in unlawful possession of firearms at Fitzmaurice Road, Finglas, on the 21st February, 1986.
He was brought to Finglas garda station and there interviewed by two members of the Garda Síochána between 8.15 a.m. and 11.20 a.m. and by a further different pair of members of the Garda Síochána between 11.20 a.m. and 1.15 p.m.
He was then placed in a cell and given lunch, having been advised by those interviewing him to consider his position about the crimes of which he was suspected. After lunch he was again interviewed by the same members of the Garda Síochána who had interviewed him immediately prior to lunch, in an interview commencing at 2.50 p.m.
At approximately 3.40 p.m. he stated that “he would tell the truth about the robbery but did not want to involve his colleagues”.
He then commenced to make a statement which was written down and which he signed when it was completed at 4.30 p.m.
At 4.00 p.m. Mr. Dermot Morris, a solicitor who had been retained by a member of the defendant’s family, arrived at the garda station and sought an interview with the defendant. He was informed that the defendant was being interviewed and was asked to wait. He protested at this and asserted a right to be brought to the accused, but was told that he would have to wait. He was eventually permitted to see the defendant at 4.34 p.m., immediately after the completion of the statement.
Detective Superintendent Burns was the garda officer who took responsibility for dealing with the solicitor’s request for an interview. He was aware that the defendant was at the time of the arrival of the solicitor being interviewed but he was unaware that he had agreed to tell the truth about the robbery. The gardaí who were taking the statement from the defendant were unaware of the arrival of the solicitor until after the statement was completed.
The reason given in evidence by Detective Superintendent Burns for not permitting the defendant access to the solicitor before he did was that he felt it would be bad manners on his part to interrupt the interview between the two garda officers and the defendant while it was taking place.

Submissions
On behalf of the Director of Public Prosecutions it was submitted as follows.
1. The right of a person in lawful detention to access to a solicitor was a legal right only, as distinct from a constitutional right, and was a right to reasonable access. If such right were requested, either by the person detained or by other persons bona fide making that request on his behalf, the degree of access which should be deemed reasonable could vary in accordance with the facts and circumstances of every case.
2. In the instant case it was submitted that the defendant’s access to his solicitor was not denied but merely delayed for a short time and that, as the defendant was in the course of being interviewed by the investigating gardaí, that short delay was not unreasonable, whether considered objectively or subjectively.
3. If, contrary to this submission, the right of a person to reasonable access to a solicitor while in detention was a constitutional right and if it was breached, it was submitted that there was no deliberate and/or conscious violation of that constitutional right. For such violation to exist, the argument was, the officer refusing or delaying access would have to be subjectively aware that his action was unreasonable and decide, notwithstanding that awareness, to take it. In the alternative it was submitted that, apart from the fact that the superintendent stated that he felt his action was reasonable, viewed objectively it also was.
In support of this contention as well as the contention that the legal right of access had been reasonably delayed, it was contended that the fact that the defendant had commenced upon the course of making an incriminating statement at the time of the solicitor’s arrival at the station, even though such fact was unknown to the garda officer dealing with the request for an interview with the defendant, was good grounds for postponing that interview by reason of the constitutional importance of permitting the defendant to make a confession. Reliance was also placed on the fact that the probable consequence of permitting the interview which was taking place with the defendant to be interrupted by the arrival of a solicitor would be that the defendant would change his mind and stop making an incriminating statement.
On behalf of the defendant the following submissions were made.
1. The right of a detained person to reasonable access to a solicitor whilst he was in detention was a constitutional right arising from the constitutional requirement of fair procedures in criminal cases, which extended not only to the actual trial by the courts but to the investigation of suspected crime.
2. The detective superintendent involved was aware that he was postponing the right of access by the detained person to his solicitor upon grounds which, objectively, must be deemed unreasonable, as the learned trial judge deemed them, and that accordingly this constituted a conscious violation of the accused’s constitutional rights, it being irrelevant whether the detective superintendent realised that it constituted such a violation or not.
3. Even if contrary to the submissions made the right of a detained person to reasonable access to a solicitor was a legal right only, it was submitted that on the facts of the instant case, the learned trial judge could only exercise a discretion vested in him with regard to the admissibility of this statement in the way that he did, because the reason stated by the superintendent for the postponement of access, namely bad manners involved in the interruption of an interview, was quite unsustainable as being reasonable. The other reason put forward, though unknown to the detective superintendent, on behalf of the Director, namely the necessity to permit the making of the statement to conclude without interruption was, it was urged, also quite unreasonable, having regard to the fact that it vitiated one of the major objectives of the right of access to a solicitor, which is the objective of securing for a detained person reasonable information and advice with regard to his rights and, in particular, with regard to his right of avoiding self-incrimination.
The law
The right in issue in this case is the right of a detained person to have access during his detention to a solicitor whose attendance he has requested, or whose attendance has been requested by other persons bona fide acting on his behalf. No question arises as to any right that a detained person might have to be informed of his right of access to a solicitor by the garda who are detaining him, or of any possible right of a detained person to have a solicitor present while he is being interrogated. I express no view on either of these two rights which may arise for determination in other cases.
Clearly the right which is in question could be defeated in the case of a detainee who himself requests the presence of his solicitor, either by failure to convey such request to the solicitor or by failure upon the arrival of such solicitor to grant the actual access.
In the case of a solicitor who has arrived at a garda station on a request made on behalf of a detained person, which is the present case, the right could be defeated either by failing to inform the detainee of the solicitor’s arrival or, on the detainee having become aware of such arrival and having requested access to the solicitor, by refusing to grant it.
Counsel for the Director did not seek to distinguish between the right of access arising from the detainee’s own request for a solicitor and that arising from the presence of a solicitor sought on his behalf.
Having regard to the view I reached as a judge of the High Court in The State (Harrington) v. Commissioner of An Garda Síochána , (Unreported, High Court, Finlay P., 14th December, 1976) and to the approval of that view contained in the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Pringle (1981) 2 Frewen 57, I am satisfied that no such distinction exists.
The existence of a right of access to a solicitor by a person in detention has been identified and dealt with by judgments of this Court in the following cases: In re Emergency Powers Bill, 1976 [1977] I.R. 159, The People v. Shaw [1982] I.R. 1, and The People (D.P.P.) v. Conroy [1986] I.R. 460.
It has been dealt with by the Court of Criminal Appeal in the following cases: The People v. Madden [1977] I.R. 336, The People v. Farrell [1978] I.R. 13, and The People (Director of Public Prosecutions) v. Pringle (1981) 2 Frewen 57.
In the decision of the Court in In re Emergency Powers Bill, 1976 [1977] I.R. 159, it is dealt with in conjunction with other rights enjoyed by a person who is in custody in the following passage, at p. 173:
“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.”
The bracketed phrase “constitutional or otherwise” contained in this paragraph leaves unresolved the question as to whether the particular right of access to a solicitor which is there described as the right to legal assistance was or was not in the view of the Court a constitutional right.
In The People v. Shaw [1982] I.R. 1 Walsh J. in the course of his judgment firmly identified the right of access to a solicitor in the following passage, at p. 35:
“While he was in custody on the Sunday night, the appellant asked the garda officer in charge if he “could get him a solicitor”. He was informed that the officer had no function in “getting him a solicitor”. In evidence the officer stated that he understood the request to be that he, the officer, should choose a solicitor for him. This was accepted by the trial judge . . . As was pointed out in The People v. Madden [1977] I.R. 336 at pp. 355-356 of the report, while there may be no legal obligation on the Garda Síochána to proffer, without request, the assistance of a legal adviser to a person under arrest, a refusal of a request of reasonable access to a legal adviser would render the detention illegal.”
The judgment of Walsh J. in The People v. Shaw [1982] I.R. 1 was a judgment which though in agreement with the conclusion of the other members of the Court, was in the reasoning by which that conclusion was reached a minority judgment. The other judgments delivered, which were by Griffin J. (with whom Henchy and Parke JJ. agreed) and Kenny J., did not deal in any way with the question of the appellant’s right of access to a solicitor.
The matter was again dealt with by Walsh J. in The People (D.P.P.) v. Conroy [1986] I.R. 460 where he stated at p. 478:
“It may or may not be the case, and I do not have to decide this at the moment, that there is a constitutional obligation upon the police to ask a person if he wishes to have a solicitor and that was the point which was before the Court in the Farrell Case , but I am satisfied that if he does ask for a solicitor he is entitled to have one. In so far as the Farrell Case might appear to decide the contrary, in my view, it ought not to be followed. The constitutional right of the appellant in the present case to have a solicitor, if he asked for one, is based upon the constitutional obligation imposed upon the Garda Síochána to abide by the provisions of Article 40, s. 3 of the Constitution, which postulates the observance of basic or fundamental fairness of procedures during interrogations by members of the Garda Síochána. If such basic fairness of procedure is not so observed by members of the Garda Síochána then it is the duty of the Courts to implement constitutional guarantees by excluding the evidence so obtained: see the decision of this Court in The People v. Shaw [1982] I.R. 1.
In my view it could not reasonably be held that a failure to comply with the request of a person in custody, who was being interrogated throughout the night in respect of a possible charge of murder, could not be regarded as an unfair procedure of the type which Article 40, s. 3 of the Constitution requires to be avoided. Even if a solicitor is sent for in such circumstances but the members of the Garda Síochána decide to press ahead with the interrogation before the arrival of the solicitor, I would regard it as a constitutionally forbidden procedure.”
The judgment of Walsh J. in Conroy’s case was, as to the main issue arising in that case (the question as to whether or not the findings of fact necessary to rule on the admissibility of an alleged statement should be made by the judge or by the jury), a dissenting judgment. The issue of the request alleged to have been made by the defendant for the services of a solicitor was not dealt with in any of the other three judgments delivered by the majority of the Court.
The provisions of s. 5 of the Criminal Justice Act, 1984, which imposes an obligation on the Garda Síochána, where persons are detained pursuant to s. 4 of that Act, to inform them of their entitlement to consult a solicitor and to notify the solicitor if one is named, had not come into operation at the date of the detention of the defendant in this case and have no bearing, in my view, on the issues that arise in this case. The legislative provision contained in that section cannot be taken by the Court as any guide to the status of the right of access to a solicitor, that is, whether it is constitutional or merely legal in origin.
In the course of his judgment, which was the majority judgment of the Court in The People v. Shaw [1982] I.R. 1, Griffin J. stated as follows at p. 61:
“Because our system of law is accusatorial and not inquisitorial and because (as has been stated in a number of decisions by 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 he excluded if, by reason of the manner of or 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 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 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.
The vital issue which arises, therefore, if a breach of the right of access to a solicitor has occurred as a result of a conscious and deliberate act of a member of the Garda Síochána, is whether there is a causative link between that breach and the obtaining of an admission.
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. I reject completely the submission made on behalf of the Director of Public Prosecutions that the test to be applied to the question of reasonable access is a subjective test in the mind of the jailer of the detained person. The test is whether the superintendent’s refusal of access was a conscious and deliberate act, as it clearly was. The fact that he may not have appreciated that his refusal was a breach of the defendant’s constitutional right is immaterial. Furthermore, I would also reject the submission made on behalf of the Director that the fact that a detained person was in the course of making a statement, whether it was exculpatory of incriminatory, at the time of the arrival of the solicitor could possibly be an objectively valid reason for postponing informing him of that arrival, and asking him whether he wished to suspend the making of the statement in order to have access to the solicitor.
Having regard to these conclusions, it is clear on the evidence in this case that the defendant should have been informed at 4.00 p.m. of the arrival of the solicitor, and if he had asked to see him at that time, should have been permitted to see him. The failure to follow that course and the postponement both of the access to the solicitor and of the informing of the defendant of the presence of the solicitor until after the completion of the statement was, in my view, both a deliberate and conscious violation of the defendant’s constitutional right and also a complete failure to observe reasonable standards of fairness in the procedure of his interrogation.
I am satisfied that the conclusion reached by the learned trial judge that it was impossible, on the evidence before him, for him to be satisfied beyond a reasonable doubt or, as he expressed it in his ruling, even as a matter or probability, that the significant incriminating statements which were contained in the tendered written statement were made prior to the arrival of the solicitor at 4.00 p.m. was a conclusion on fact which he was entitled to make and cannot be disturbed on appeal by this Court.
In these circumstances, I would dismiss this appeal.

Walsh J.
I agree with the judgment which has been delivered by the Chief Justice.

Griffin J.
The facts have been set out in the judgment of the Chief Justice and it is not necessary to repeat them.
At the trial, when all the evidence given on behalf of the prosecution was completed, submissions on the admissibility of the statement of the defendant were made to the learned trial judge, Egan J. Counsel for the defendant contended that the right of the defendant to access to a solicitor is a constitutional right, while counsel for the prosecution contended that it was a legal right. Egan J., without deciding whether the right of such access is a constitutional right or a legal right ruled that, in the circumstances of the case, the defendant had been denied reasonable access to his solicitor, which he held was “a right to instant access in the absence of serious excuse”. He further ruled that as it was impossible for him, on the evidence, to be satisfied that incriminating admissions had been made prior to the time when his solicitor, Mr. Morris, should have been admitted, the statement of the defendant should not be admitted.
After he had delivered his ruling, the learned trial judge was invited by counsel for the prosecution to state whether he was holding that there was a breach of a constitutional right, but he declined so to state.
It is beyond question that, when a person is detained on suspicion of involvement in a crime which has been committed, he is entitled to reasonable access to a solicitor. His right of such access is not in issue in this casewhat is in issue is the nature and extent of that right and the consequences of frustration of that right or failure on the part of the authorities to permit or enable that person fully to exercise his right.
The detained person may exercise the right himself by requesting the attendance of a solicitor. It may also be exercised on his behalf by any person who may be considered to be his implied lawful agent in that behalf requesting a solicitor to attend at the garda station where he is detainedsuch persons would obviously include members of his family, his employer, or a close friend, all of whom would have a bona fide interest in engaging a solicitor for him. It was members of his family who retained Mr. Morris to attend at the garda station on behalf of the defendant in this case.
When the detained person himself requests a solicitor, it is the duty of the garda in charge of the investigation to take all reasonable steps to carry out the request. If he refuses or neglects to communicate with the named solicitor there is a clear breach of that duty and of the detainee’s right, but delay in carrying out the request may, in certain circumstances, be tantamount to a denial or frustration of that right. Where, as in this case, the solicitor has been retained on behalf of the detainee by his family, and attends at the garda station, the garda in charge is entitled to enquire from such solicitor as to who requested his attendance. On being informed of the source of the instructions, it is in my view the duty of the gardaí, without delay, to inform the detainee of that fact and to enquire from him whether he wishes to consult that solicitor. If he does, the interrogation should be suspended and suitable arrangements should be made to enable him to obtain the advice of that solicitor. I do not accept the submission of counsel for the prosecution that, where the accused is in the process of being interviewed, or of making a statement, access to the solicitor may be delayed or postponed until the termination of the interview or the completion of the statementdelay may in this case also amount to a denial of the right of access.
I am in complete agreement with the Chief Justice that, whether the request for a solicitor is made by the detainee himself or is lawfully made on his behalf, there is no distinction in principle to be drawn between the rights of the detainee and the duties of the gardaí in either case. Although, as the Chief Justice has pointed out in his judgment, the existence of the right of access to a solicitor by a person in detention has been identified in the judgment of this Court in In re Emergency Powers Bill, 1976 [1977] I.R. 159 without discussing the nature of the right, and the nature of the right was considered by Walsh J. in The People v. Shaw [1982] I.R. 1 at p. 35 and in The People (D.P.P.) v. Conroy [1986] I.R. 460 at p. 478, there has been no case in which it has been decided by this Court that the right of a detained person to a solicitor is a constitutional right. There have however been a number of decisions of this Court in which it has been held that the Constitution guarantees an arrested person basic or fundamental fairness of procedures-see, for example, In re Haughey [1971] I.R. 217 and The People v. Shaw [1982] I.R. 1. In the latter case, in the course of delivering what was the majority judgment of the Court, I said at p. 61:
“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. Whether the objection to the statement be on constitutional or other grounds, the crucial test is whether it was obtained in compliance with basic or fundamental fairness, and the trial judge will have a discretion to exclude it ‘where it appears to him that public policy, based on a balancing of public interests, requires such exclusion’per Kingsmill Moore J. at p. 161 of the report of O’Brien’s Case “.
The concept of fairness is one which is not confined exclusively to rights which are constitutional in origin. If when a person is in custody any procedure is adopted by those detaining him which does not comply with the crucial test of basic fairness, that procedure is flawed, whether the infringed right of such person is a constitutional or a legal right.
It is necessary to consider whether the procedure adopted in this case complied with that crucial test. I have no doubt that it did not. The main, if not the sole, purpose of the right of access to a legal adviser is to enable the detained person to obtain advice as to his rights, and in particular advice as to whether, in the circumstances, it would be in his best interests to make a statement or to refuse to make one. In some cases, where the evidence against him would appear to be overwhelming (as for example where he was caught in the course of the commission of the crime) his legal adviser may consider that his interests would best be served by admitting his guilt, in the expectation of receiving a lighter sentence, and advise accordingly. In most cases, however, the prudent legal adviser would be likely to advise his client that it would not be in his interest to make a statement, unless the circumstances are such that he could make an exculpatory statement. But the detained person is entitled to obtain that advice, and it is then for him alone to decide whether to make a statement or not, and he cannot make an informed decision until he has received that advice. It is therefore essential that, if he requests it, whether personally or through his lawful agent, such advice should be available to him as soon as possible after his arrest. It would indeed be a hollow or empty right if it could be delayed or postponed until his interrogation has ended, or, as in this case, until a statement he is in the course of making has been completed. By that time he may have convicted himself out of his own mouth and any advice he could then receive would be of little value to him. Depriving him of that advice would therefore in my opinion be manifestly unfair to him.
In this case, when the solicitor called to the garda station, the detective superintendent who was in charge of the investigation was not aware that the accused was then in the course of making a statement. He was however aware that the accused was in a room being interrogated by two gardaí, and his stated reason for delaying the access of Mr. Morris was that it would be bad manners to interrupt the interview. That is not a valid reason for delaying access. In my view, it was immaterial whether the accused was at the time being interrogated or making a statementin either case he was being exposed, to his prejudice, to the risk of making admissions which he might not make if he had the advice to which he was entitled. This case is clearly distinguishable from that of The State (Harrington) v. Commissioner of An Garda Síochána (Unreported, High Court, Finlay P., 14th December, 1976), in which the Chief Justice, then President of the High Court, held that delay in providing access to his solicitor to the detainee did not effectively deprive him of his right to legal advice, as he was in his cell, not being interviewed, during the entire of the time his solicitor was being delayed. In the circumstances of the present case delaying the advice effectively constituted a denial of it.
As stated earlier, the learned trial judge held that the statement of the accused was inadmissible in evidence, without deciding whether the right in question was a constitutional or a legal right. In my opinion, he was fully justified in doing so as it was, in the circumstances, not necessary for him to decide that issue, nor is it necessary for this Court to do so. Whether the right in question is a constitutional or a legal right, the statement of the accused was not obtained in compliance with basic or fundamental fairness, and, as it was not possible for the learned trial judge to be satisfied that incriminating admissions in the statement had been made prior to 4 p.m., when Mr. Morris arrived at the garda station, he was in my opinion correct in excluding the entirety of the statement.
I feel that I should add that, if it was necessary to decide the issue as to whether the right in question is a constitutional right or a legal right, I would find little difficulty in accepting that, where a detained person requests a legal adviser or one is provided for him by his family or other lawful agent, his right of such access is a constitutional right. But as I am of opinion that it is not necessary in the circumstances of this case, a final decision on that issue should in my view await a case in which it is necessary to decide it.
I have had the advantage of reading in advance the judgment which McCarthy J. is about to deliver. In it he expresses the opinion that the examination of The People (Attorney General) v. O’Brien [1965] I.R. 142 in The People v. Shaw [1982] I.R. 1, and its reasoning, was not necessary for the decision in Shaw’s case. I respectfully disagree. As in this case, the admissibility of the statements made by the defendant was directly in issue in Shaw’s case. In the court of trial, the Court of Criminal Appeal, and in this Court the arguments advanced rested substantially on the principles enunciated by Kingsmill Moore J. and Walsh J., who respectively delivered the leading majority and minority judgments in that case. It therefore became necessary for this Court to consider the extent to which the principles enunciated in the judgments in that case constituted a binding decision as to the tests to be applied in relation to the admissibility of statements made by the defendant. That was then my opinion and that of my colleagues who concurred in my judgment, and I see no reason to resile from what I said on that issue in Shaw’s case. Further, although in this appeal substantial extracts from the judgments in Shaw’s case were cited by counsel for both parties, at no time was there any argument or submission from counsel on either side that the examination of O’Brien’s case or its reasoning was not necessary for the decision in that case.

I would dismiss this appeal.

Hederman J.
I agree with the judgment which has been delivered by the Chief Justice.

McCarthy J.
I agree that this appeal should be dismissed.
The argument for the Director, as I understand it, is:
1. the prisoner was in lawful detention;
2. he was making a voluntary confession;
3. he had not asked for a solicitor;
4. there was no obligation on the gardaí to ask him if he wanted a solicitor;
5. the fortuitous arrival of a solicitor retained by his family, which event occurred at the time of the making of the confession, was coincidental and irrelevant; and
6. it did not warrant the interruption of the making of the confession.
As was stated by Walsh J. in The People (D.P.P.) v. Quilligan [1986] I.R. 495 at p. 509:
“The object of the powers given by s. 30 is not to permit the arrest of people simply for the purpose of subjecting them to questioning. Rather is it for the purpose of investigating the commission or suspected commission of a crime by the person already arrested and to enable that investigation to be carried on without the possibility of obstruction or other interference which might occur if the suspected person were not under arrest. Section 30 is part of the statute law of the State permanently in force and it does not permit of any departure from normal police procedure save as to the obligation to bring the arrested person before a court as soon as reasonably possible.”
At p. 508, citing In re Emergency Powers Bill, 1976 [1977] I.R. 159 at p. 173, Walsh J. said:
“such person retains at all times the right of communication and the right to have legal and medical assistance and the right to have access to the courts.”
In this instance the right of communication is not to be regarded as one-sided; as the prisoner has the right to communicate with his relatives so have they the right to communicate with him. If they seek to do so through a solicitor then the right of communication is mixed with the right to have legal assistance; in some instances the prisoner may not be able to decide or may not wish to have legal assistance; his family may wish that he should do so; the decision must be his but the rights of the family to communicate their wish to him must be taken into account; he must be told. Further, he must be told at the earliest opportunity. If Mr. Morris’ arrival had been notified to the defendant whilst being interviewed or whilst making his confession, he might well have said he did not wish to be interrupted. Due to the decision not to inform him of the arrival of Mr. Morris, that question must remain unresolved. I doubt if it could be satisfactorily answered with hindsight, that is, by obtaining an admission subsequently as to what he would or would not have done. The matter must be looked at objectively and not by a subsequent subjective test.
In The People v. Farrell [1978] I.R. 13 the Court of Criminal Appeal stated, at p. 20:
“But none of the judgments goes so far as to declare that every person under suspicion of, or faced with, a charge of a criminal offence has a constitutional right to have the services of a solicitor and doctor before being questioned by an investigating Garda. Such rights as are adumbrated in the judgments cited are all related to the particular circumstances of the person whose rights require protection and vindication.”
In The People (D.P.P.) v. Conroy [1986] I.R. 460 the judgment of the Court of Criminal Appeal (of which I was a member) stated, at p. 467:
“And even if he had been in custody the accused had no constitutional right to a solicitor (see The People v. Farrell [1978] I.R. 13) . . .”
This is adverted to by Henchy J. in his judgment in that case, at p. 489:
“The decided cases show that a person detained by the police has no constitutional rightat least, in the absence of special circumstances – to consult with a solicitor before making a statement: see The People v. Farrell [1978] I.R. 13, at p. 20.”
Walsh J. said, at p. 478:
“It may or may not be the case, and I do not have to decide this at the moment, that there is a constitutional obligation upon the police to ask a person if he wishes to have a solicitor. and that was the point which was before the Court in the Farrell Case , but I am satisfied that if he does ask for a solicitor he is entitled to have one. In so far as the Farrell Case might appear to decide the contrary in my view it ought not to be followed. The constitutional right of the appellant in the present case to have a solicitor, if he asked for one, is based upon the constitutional obligation imposed upon the Garda Síochána to abide by the provisions of Article 40, s.3 of the Constitution, which postulates the observance of basic or fundamental fairness of procedures during interrogations by the members of the Garda Síochána.”
I would wish to express the same reservation concerning Farrell’s case and the nature of the constitutional obligation upon the police as was expressed by Walsh J. in Conroy. I share the view expressed by the Chief Justice in the instant appeal 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.
The Director has argued that there must be a balancing of constitutional rights between that of the prisoner and those of the public. In the making of this submission, it may have been overlooked that one major right of the public is to ensure that the constitutional rights of individual citizens are respected and enforced. Quite apart from the interest of the public in the investigation of, punishment for and suppression of crime, the public has a deep interest in ensuring that the individual citizen is not denied any personal right. In that sense, the public has as much an interest in the right of the defendant to have legal assistance and communication from his family as has the defendant himself.
A further argument on behalf of the Director was that albeit there was a breach of the constitutional right, it was not a deliberate and conscious violation within the meaning ascribed to that term by Henchy J., in The People (D.P.P.) v. Quilligan [1986] I.R. 493, at p. 513. The term “deliberate and conscious violation”is not to be found in any statute and is not to be construed as if it were. It is to be found in the judgment of Walsh J., repeated by Kingsmill Moore J., in O’Brien [1965] I.R. 146 and referred to in Walsh [1980] I.R. 294, in Madden [1977] I.R. 336, in Shaw [1982] I.R. 1 and in Lynch [1982] I.R. 64. In Quilligan , Henchy J. said at p.513:
“The only other ground on which the statements could be rejected is if it could be held that they were the fruit of an arrest which was a conscious and deliberate violation of the prisoners’ constitutional right to personal liberty. However, that conclusion was not open, for even if it could be said that the arrest was an unconstitutional act, it was not consciously or deliberately so. In arresting the accused under s. 30 of the Offences Against the State Act, 1939, for a scheduled offence, the arresting gardaí were acting in good faith, because they were merely following a system of arrest which had been followedand given at least tacit approval in the courtsever since prosecutions were first brought in respect of scheduled offences under that Act. It would follow, therefore, that, regardless of any unconstitutionality in the arrest, the statements were admissible in evidence.”
No other member of the Court adverted to this particular issue, possibly because Henchy J. himself dealt with the appeal on the assumption that the statements were inadmissible and, consequently, the observations just quoted were not necessary for the decision. One might infer from the observations of Kingsmill Moore J., in The People (Attorney General) v. O’Brien [1965] I.R. 146, dealing with the facts of that case, that accidental and unintentional infringement of the Constitution is to be distinguished from deliberate and conscious violation. So also, the views of Lavery J., who thought that to hold inadmissible the evidence in question in O’Brien would be wrong to the point of absurdity and would bring the administration of the law into well deserved contempt. Both of these conclusions appear to me to be irrelevant to the present issue. Lavery J., was dealing with the question of admissibility of evidence obtained by illegal means. That was not the sole issue in O’Brien. The evidence was obtained pursuant to a violation of the constitutional right to inviolability of the home, however unintentional or incidental or accidental the error which led to the wrong address being in the search warrant. If O’Brien had refused entry and been necessarily assaulted by the gardaí in order to secure entry, all in the bona fide belief that the warrant was valid, would his action for assault and false imprisonment be defeated in the same way? In my view, if “conscious and deliberate” is a term of art appropriate to be used in the context of constitutional rights and their violation, the only test is whether or not the act or omission that constituted such violation was itself a conscious and deliberate act; the fact that the violator did not realise he was in breach of a constitutional right is irrelevant. If it were otherwise, then if one jailor could distance himself from the others, as the superintendent did in the instant case, there need never be such a violation. It is not the state of mind of the violator that matters; it is the objective assessment of the conscious acts or omissions. A violation of constitutional rights is not to be excused by the ignorance of the violator no more than ignorance of the law can enure to the benefit of a person who, at common law, and by statute law (Criminal Justice Act, 1964, s. 4, sub-s. 2) is presumed to have intended the natural and probable consequences of his conduct. If it were otherwise, there would be a premium on ignorance.
In The People v. Shaw [1982] I.R. 1 Griffin J., with whose judgment Henchy, Kenny and Parke JJ. agreed said, at p. 55:
“Nor do I find myself able to support the opinion that a person’s statement is to be ruled out as evidence obtained in deliberate and conscious violation of his constitutional rights, even though the taker of the statement may not have known that what he was doing was either illegal or unconstitutional. I consider the authorities to be to the contrary effect. For example, in The People (Attorney General) v. O’Brien [1965] I.R. 142 Kingsmill Moore J. (who gave the majority judgment), having held that evidence obtained in deliberate and conscious violation of constitutional rights should be excluded except in “extraordinary excusing circumstances” (which he preferred to leave unspecified), excused as “a purely accidental and unintentional infringement of the Constitution” the violation complained of in that case: see p. 162 of the report. See also The People v. Madden [1977] I.R. 336, at p. 346 where a “factor such as inadvertence” was recognized as capable of being one of the “extraordinary excusing circumstances” envisaged in O’Brien’s Case . In my opinion, it is the violation of the person’s constitutional rights, and not the particular act complained of, that has to be deliberate and conscious for the purpose of ruling out a statement. In the present case, I would rank the superintendent’s well-founded anxiety for the life of Mary as an example of an extraordinary excusing circumstance for keeping the appellant in custody for what otherwise would have been an impermissibly long period.”
The Supreme Court was there dealing with the admissibility of a confession obtained during an otherwise impermissibly long period of detention, which detention was in the hope of producing a result that would save Mary’s life. It was a far remove from the circumstances of the instant appeal, in particular since the superintendent was well aware that the continued detention was prima facie,unlawful but, in what the Court of Criminal Appeal described as “these unique circumstances” (p. 21) the continued detention was, because of an extraordinary excusing circumstance, not unlawful. In Shaw, therefore, the Court decided the appeal on the assumption that the test of admissibility was:
“first, whether each was a statement taken in deliberate and conscious violation of the appellant’s constitutional rights and, secondly, if so, whether it should nevertheless be held admissible because of extraordinary excusing circumstances.” ([1982] I.R. 1 at p.57).
It would appear to follow that the examination of The People (Attorney General) v. O’Brien [1965] I.R. 142 and its reasoning was not necessary for the decision inShaw.

 

People (DPP) v O’Brien

[2005] I.E.S.C. 29
Judgment of Mr Justice McCracken delivered the 5th day of May 2005
___________________________________________________________

This is an appeal from the Court of Criminal Appeal pursuant to s.29 of the Courts of Justice Act 1924. The Court of Criminal Appeal certified as a question of law of exceptional public importance the following:-
“Whether, when a trial Judge finds that an accused person, who has been arrested and detained pursuant to s.4 of the Criminal Justice Act 1984 has been consciously and deliberate deprived of his constitutional right of access to his solicitor while so detained, the trial Judge should, as a matter of law, rule that the entire period of the detention thereafter is thereby rendered unlawful and rule as therefore inadmissible in evidence all inculpatory statements made at any time in the course of the period of detention or whether only such statements as were made prior to the person being afforded access to a solicitor should be excluded.”
The Appellant was arrested on 1 pm on 3rd March 1999 pursuant to the provisions of s.4 of the Criminal Justice Act 1984, which permitted his detention for a period of six hours with the possibility of an extension for a further six hours. He was detained at Pearse Street Garda Station in Dublin City Centre. At 3.40 pm the Appellant requested the services of a solicitor, although not of any particular solicitor. The gardaí recommended a Mr Gaffney, whose offices were in Tallaght, who was a busy sole practitioner and who primarily practised in the Tallaght area. The gardaí did contact Mr Gaffney, but due to his commitments he did not attend at Pearse Street Garda Station until 8.22 pm. At this stage the Appellant’s detention had been extended for the further six hour period. During the period between the Appellant’s request for a solicitor and the arrival of Mr Gaffney the Appellant was questioned on at least two occasions.
When Mr Gaffney arrived, he spoke to the Appellant for approximately half an hour and left at 8.50 pm. The Appellant was immediately interviewed by the gardaí again for a period which lasted up to 11.25 pm, with a twenty minute break.

The learned trial Judge ruled that the Appellant’s constitutional right to be advised by a solicitor had been violated in that the gardaí concerned must have known that by selecting Mr Gaffney, given the circumstances of his practice, a considerable delay would inevitably arise. Accordingly, the statements made by the Appellant prior to the arrival of Mr Gaffney were ruled to be inadmissible. That ruling is not in issue in this appeal. The only issue for decision in this regard relates to the admissibility of the statements made by the Appellant after he had consulted with Mr Gaffney.

While there are a number of authorities relating to the right of a person in custody to consult a solicitor, the particular situation where there has been an unreasonable delay in the arrival of the solicitor requested, which was foreseeable, and the issue as to whether statements made subsequent to such arrival are admissible seems to be undecided.

In the People (DPP) v. Healy [1990] 2 IR 73, Finlay CJ said at page 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.

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 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.”

While this is a clear, and in my view absolutely correct, finding that the right to legal advice is a constitutional right, Finlay CJ went on to find, on the same page:-
“The vital issue which arises, therefore, if a breach of the right of access to a solicitor has occurred as a result of a conscious and deliberate act of a member of the Garda Siochana, is whether there is a causative link between that breach and the obtaining of an admission.”

This would seem to imply that there may be circumstances in which statements taken at a time when an accused’s constitutional rights were being breached could nevertheless be admissible if there was no causative link between the breach and the statement. While it is not what occurred in this case, this seems to me to be a somewhat doubtful proposition. However if the passage refers to an admission obtained after the breach had ceased, then it seems to me to correctly state the legal position.

The question was visited in a slightly different context in Director of Public Prosecutions v. Finnegan (unreported) 15th July 1997, which was a decision of the Court of Criminal Appeal delivered by Barrington J. In that case, the accused had had access to a solicitor, but subsequently in the course of being questioned he requested a telephone conversation with the solicitor. This conversation took place in the hearing of one or more members of the gardaí. It was held that evidence of an interview which subsequently took place was in admissible. At page 42 of the judgment it was said:-
“Even though the right to make a telephone call to a solicitor may not be, per se, a constitutional right, once the telephone call is allowed, the detainee has a constitutional right to make that call in private.

In the present case there was a breach of Mr Finnegan’s constitutional rights when he was denied private access by telephone to his solicitor. From that point on he was in unlawful detention. No evidence was adduced to show that this unlawful detention came to an end at any particular time nor indeed was the point addressed at the trial.”
This case confirms that the right of private access to a solicitor is a constitutional right. It does seem to me to be manifest that where a person is held in detention, albeit that the detention itself was initially lawful, a breach of the constitutional rights of the person detained during the period of detention must render the detention unlawful. However, this case does not answer the question as to whether, once the breach of the constitutional right has been remedied, the status of the unlawful detention is altered, and it becomes lawful.

The case that comes nearest to the present case is DPP v. Buck [2002] 2 IR 268. In that case, as in the present case, there was a very considerable delay between the request for a solicitor and the arrival of a solicitor. However, there were two important distinctions between that case and the present case. Firstly, no statement was made by the accused before the arrival of the solicitor, and secondly the Court held that the delay in the arrival of the solicitor, under the circumstances, was not a breach of the defendant’s constitutional right of access to a solicitor. It follows that there could have been no question of him having been in unlawful custody when he did make the statements. Having made that finding, however, Keane CJ continued, in a passage that is undoubtedly obiter, at page 283 to say:-
“Even if the continuation of the questioning by the gardaí between the time that he asked for a solicitor and the arrival of the solicitor who visited the defendant at 8.33 pm could be regarded as a conscious and deliberate violation of his constitutional rights, there was no causative link between the breach in question and the making of the incriminating statements. The defendant had not made any incriminating statements prior to the arrival of the solicitor and, on the trial Judge’s findings, had been advised by him as to his right not to make any statement. The trial Judge also accepted the solicitor’s evidence that, at that point, the defendant was relaxed and not showing any signs of stress. It follows inevitably that there was, on the evidence, no causative link between any breach of the defendant’s constitutional rights arising from the questioning before the solicitor arrived and the making of the incriminating statements.”
Notwithstanding that this passage was obiter, it does purport to deal with the situation which has arisen in the present case. If the inculpatory statement or admission ultimately made by the Appellant was elicited from him by the use of information disclosed by him while he was in unlawful detention, there would clearly have been a causative link between the breach of his constitutional rights and the making of the statements or admissions. In those circumstances material which had been wrongfully obtained in breach of the Appellant’s constitutional rights would have been used to obtain an inculpatory statement or admission. However, the corollary to this also appears to me to be valid, namely that if the statements were not made as the result of any material obtained in breach of the Appellant’s rights, then they are not tainted by unconstitutionality and, provided the Appellant’s detention was lawful at the time they were obtained, they are admissible. In my view, the statement quoted above from the Buck case is a correct exposition of the legal position.

I would also bear in mind the principle expressed by Finlay CJ in The People (DPP) v Kenny [1990] 2 IR 110 at page 134 where he said:-
“The detection of crime and the conviction of guilty persons, no matter how important they may be in relating to the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional obligation “as far as practicable to defend and vindicate the personal rights of the citizen”.
After very careful consideration I conclude that I must differ from the view of the majority of this Court expressed in the judgment of Griffin J. in The People v Shaw [1982] IR 1. I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless the Court is satisfied that either the act of constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there were extraordinarily excusing circumstances which justify the admission of the evidence in its (the Court’s) discretion.”

In present case, of course, the learned trial Judge held that there was a deliberate breach of the constitutional rights, and that any statements made before the arrival of the solicitor must be excluded. However, two questions still remain unanswered. Firstly, whether, once the solicitor arrived and gave his advice, there was any further breach of the Appellant’s constitutional rights, and secondly, even if the breach had ceased, whether his detention remained unlawful. I have no doubt that the answer to the first question must be that the ultimate access to the solicitor put an end to any unconstitutional situation. The unconstitutionality lay in the absence of legal advice, and once that advice had been obtained, his constitutional right had been complied with.

The much more difficult question is whether the Appellant’s detention, having been rendered unlawful by the breach of his constitutional rights, remained unlawful. The initial arrest of the Appellant was undoubtedly lawful, as was his custody up to the time that he requested a solicitor. Thereafter, 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 Appellant 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 Appellant’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. Logically, therefore, once the breach of the constitutional right ceased, the detention ceased to be unlawful.

I have used the phrase “unlawful detention” in this judgment because it is the phrase that has been used in earlier decisions. I am not sure that it is a correct description of the Appellant’s position during the relevant period. He was arrested and detained pursuant to s.4 of the Criminal Justice Act 1984. The relevant portions of that section are:-
“4 (2) Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies, that person may be taken to and detained in a Garda Síochána station for such period as is authorised by this section if the member of the Garda Síochána in charge of the station to which he is taken on arrest has at the time of that person’s arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence.
( 3 ) ( a ) The period for which a person so arrested may be detained shall, subject to the provisions of this section, not exceed six hours from the time of his arrest.

( b ) An officer of the Garda Síochána not below the rank of superintendent may direct that a person detained pursuant to subsection (2) be detained for a further period not exceeding six hours if he has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence.”
Section 4(2), therefore, authorised the detention of a person for the relevant periods if, firstly, there is reasonable cause to suspect he committed an offence to which the section applied, and secondly, that there are reasonable grounds for believing that detention is necessary for the proper investigation of the offence. The actual arrest of the Appellant is not challenged in the present case, nor are either of the two elements necessary under the section which I have quoted above. His detention, therefore, was lawful under the wording of the section for its entire period.

The breach of the Appellant’s constitutional right did not lie in his detention, it lay in the failure to provide him with a solicitor within a reasonable time. It is common case that he was told of his right to a solicitor, and had he not requested one, his detention and questioning would have been perfectly lawful. Similarly, had he requested a solicitor, and the solicitor had been contacted properly and attended within a reasonable time, the Appellant’s detention was lawful and any statements made by him after the arrival of his solicitor would be admissible. Therefore, what was unlawful in relation to the Appellant in the present case was not his detention in the garda station, but the delay in providing him with legal advice. In my view it must follow that, once his constitutional rights had been restored by the advice from the solicitor, he remained properly arrested and in detention under s.4 so long as his detention was necessary for the proper investigation of the offence and came within the time limit set in s.4. I do not believe that an application for his release could have been made pursuant to Article 40 of the Constitution, as any such application would have been met with the response that he was in lawful custody under s.4.

Even if I am wrong in this, and his custody was unlawful in the strict sense because of the delay in obtaining the attendance of a solicitor, once the solicitor did attend and was consulted by the Appellant, any unlawfulness in his detention would cease. He would still be detained under s.4, and from the time that his solicitor arrived, his detention would comply with the provisions of s.4.

For these reasons, I am satisfied that he was in lawful detention at the time he made the statements subsequent to the arrival of his solicitor and those statements were rightly admitted in evidence.

There were two other matters complained of by the Appellant which I will deal with briefly. On the 15th day of the trial it became known to the trial Judge that one of the potential witnesses, namely Detective Garda Darcy, was acquainted with a member of the jury. Counsel for the Respondent decided that under those circumstances he would not call the witness to give evidence. However, at the request of the Appellant’s Counsel, Detective Garda Darcy did give evidence as to his acquaintanceship with the juror. This evidence was given in the absence of the jury and, having heard the evidence, the learned trial Judge indicated that he would not permit cross-examination on that matter. Subsequently, after further consideration by Counsel for the Respondent, Detective Garda Darcy was tendered for cross-examination, even though he was not going to give evidence in chief. Counsel for the Applicant sought to cross-examine the witness, but the learned trial Judge gave as his view that the correct procedure was that the witness should not be called, and therefore refused to allow him to be cross-examined.

The learned trial Judge was clearly correct in his ruling that, once any acquaintanceship between a witness and a juror had been established, the witness ought not to be called. This decision is, of course, in ease of the Appellant. I fail to see how it could be said that the Appellant has been prejudiced by this decision, and indeed I fail to see what cross-examination could have taken place which would have any relevance to the issues in the trial.

The final point related to the learned trial Judge’s charge to the jury. Exception is taken to four passages in the charge, which are as follows:-
“I am satisfied, as I think you will be from the facts I have just outlined to you, that there was a conspiracy. It was designed in the way it was operating to inveigle monies out of other people upon false pretences.”
“I want to make one thing absolutely clear. It will ultimately be, as in all matter of fact, it is your ultimate decision on it. The gardaí did interrupt a conspiracy. Now, the issue centrally in this case is was it a conspiracy of any of the accused or were they involved in a knowing way.”
“Therefore, as my final remark in this context, conspiracy is a proper charge. It would seem to me from the facts, as they have emerged in this trial, an appropriate charge in these circumstances.”
“In respect of their evidence vis-à-vis the conspiracy and what was occurring, the documents they were getting, the correspondence they were engaged in and the efforts that were made to bring both of them to Dublin, it is very much beyond controversy in some respects, ladies and gentlemen. It is clear correspondence was emanating from worldwide foreign appointments. So there is really little room for controversy on the essential facts when everything is, so to speak, cut back to the bone.”

The objection taken is that the learned trial Judge in effect made a ruling on a question of fact, namely that there had been a conspiracy. The basic facts that there had been an attempt by a number of people to defraud was not in issue, and it seems to me that the learned trial Judge was trying to be helpful by making it clear to the jury that the real issue which they had to decide was the nature of the Appellant’s participation, if any, in the fraud complained of. Purely as a question of law, the undisputed facts did amount to a conspiracy, and the learned trial Judge was perfectly entitled to point this out to the jury. He at all times made it quite clear to the jury that decisions on vital issues of fact were matters for them, and I can see nothing improper about the statements complained of.

Objection is also taken to a further passage in the charge which the Appellant alleges pours scorn on his defence. The passage complained of appears to be:-
“The evidence I should say, so that I can hold your attention, so to speak, on this issue of conspiracy. Again, a number of things were said to you by Counsel in addressing you. In particular the suggestion that this trial was, again I have to make mention of it, “a farce” and that this criminal investigation by the gardaí was “a farce” and “a filthy process” was the description to describe it. In the context of the suggestion being that because Mr Smith and Mr Altoff were people who could never in any circumstances be, so to speak, defrauded and that this charge ought to be nowhere in your considerations.

The charge of conspiracy is a valid charge at law. It certainly had a chequered history dealing with matters of affairs affecting our State as it now is, then was a colony of our nearest neighbour, in another time, in another era. You have had a very useful and interesting discussion in terms of its history. It is a history of another time and of another era. It is utterly inapplicable to the state of the law and the propriety of this trial in this time, in this century, on this occasion. So it is a very proper charge and is even more so, ladies and gentlemen, I suggest to you, when you look at the facts of this case. The undoubted and undisputed and unchallenged facts of the case are to the effect, in my view, that there was a conspiracy afoot.”

This passage must be read in the context of a highly emotive address to the jury by Counsel for the Appellant. The learned trial Judge was clearly entitled, and indeed perfectly correct, to comment on the language used by Counsel. Rather than pouring scorn on the defence the learned trial Judge was directing the jury’s attention back to the real issues in the case. I am quite satisfied that he was perfectly entitled to do so.

For these reasons, I would dismiss the appeal.

 

People (DPP) v A.D.

[2012] IESC 33

Judgment of Mr. Justice Clarke delivered the 24th May, 2012.
1. Introduction

1.1 On the 19th March, 2006 a Russian national complained to An Garda Síochána of having been assaulted and raped. As a result of investigations carried out the applicant/appellant (“Mr. D”) was charged on a number of counts and tried before the Central Criminal Court presided over by White J. In substance Mr. D was convicted of rape and assault. A count of threatening to kill contrary to s.5 of the Non-Fatal Offences Against the Person Act, 1997 was withdrawn from the jury at the close of the prosecution case. One further count gave rise to a non guilty verdict of the jury but Mr. D was convicted on counts 1 and 4, being a count of rape contrary to s.2 of the Criminal Law (Rape) Act, 1981 as amended by s.21 of the Criminal Law (Rape)(Amendment) Act, 1990 and one of assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997.

1.2 Mr. D sought leave to appeal against his conviction and sentence from the Court of Criminal Appeal. That court refused such leave in respect of conviction for the reasons set out in a judgment delivered on the 25th July, 2008 by Finnegan J. (DPP v. A.D. [2008] IECCA 101) The Court of Criminal Appeal did not, on that occasion, deal with the question of severity of sentence. That issue was considered on the 14th October, 2008 when the Court of Criminal Appeal decided, in substance, to reduce the sentence imposed on Mr. D from 12 to 9 years. Thereafter, Mr. D successfully applied for a certificate under s.29 of the Courts of Justice Act, 1924 to the effect that the decision refusing him leave to appeal against conviction 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”.

1.3 The point so certified by the Court of Criminal Appeal is as follows:

“Is the entirety of a non-incriminating statement made by an accused person while in the custody of An Garda Síochána inadmissible if during the making of the said statement the accused’s constitutional right of reasonable access to a solicitor was deliberately and consciously breached?”

1.4 On the basis of that certificate Mr. D has appealed to this Court. In addition a further application was brought on behalf of Mr. D (by motion dated the 24th January, 2012) which sought an order granting leave for argument to be heard and a determination made in relation to part of the decision of the Court of Criminal Appeal which went outside the scope of the point of law of exceptional public importance certified being the question of:-

“Whether the Court of Criminal Appeal erred in that part of its decision in which it determined that the learned trial judge applied the correct test in deciding whether to allow the prosecution case go to the jury”.

1.5 In order to fully understand the precise issues with which this Court is concerned it seems to me to be appropriate to turn to a brief recital of the facts insofar as they are relevant to the limited issues which are for this Court to decide.

2. The Facts

2.1 When Mr. D was arrested in connection with these offences he was questioned by members of An Garda Síochána on two occasions. Both questioning sessions were video recorded and the interviews were contemporaneously written down in the form of questions and answers. It is of some minor relevance to record that Mr. D is a foreign national and required the assistance of an interpreter during the course of the relevant interviews. In the ordinary way when the interviews were completed the written record was read over to Mr. D (again with the assistance of an interpreter) and he was invited to make any alterations and then sign. Mr. D duly signed both accounts.

2.2 At the trial before White J it is important to record that a number of separate objections were made to the respective admissibility in evidence of statements made by Mr. D. The second interview was deemed inadmissible in its entirety by White J on the basis that the trial judge was satisfied that, by the time the interview in question took place, the situation had progressed to one where, in the words of the trial judge, it seemed to him “that the State were in possession of sufficient evidence to charge the accused man prior to the second interview” and that he was not “happy to permit the facts of the second interview to be adduced before this jury”

2.3 So far as the first interview is concerned the evidence at the trial indicated that Mr. D had requested the presence of a solicitor. The solicitor in question arrived as the first interview was coming towards an end. Indeed the interview records a member of An Garda Síochána indicating that the solicitor had arrived and asking Mr. D if he wished to see the solicitor concerned. Mr. D answered that he did wish to see the solicitor. However, the interview did not stop at that stage. What followed was the asking of one final question of Mr. D, the reading over, with translation, of the entirety of the first interview, an invitation to Mr. D to consider whether he wished to make any changes, Mr. D making one change, and Mr. D’s signature. All of these matters occurred at a time prior to Mr. D being actually afforded access to his solicitor. That process took some time, perhaps contributed to by the need to translate, so it is all the more surprising that A.D. was not given access to the solicitor.

2.4 No explanation appears to have been tendered as to why immediate access to the solicitor in question was not afforded to Mr. D. In those circumstances it is hardly surprising that White J concluded that, from the time the solicitor in question arrived, and having regard to the fact that immediate access to the solicitor was not given despite requests, Mr. D was in unlawful custody as a result of a conscious and deliberate breach of his constitutional right of access to a solicitor. In that regard White J, in the course of a ruling delivered by him on the 23rd January, 2007, said the following:-

“It is clear both from the custody record and from the tape that the solicitor acting on behalf of the accused man had called to the station seeking to see his client and when that information was communicated to the accused man he sought to see a solicitor. The interview was not stopped at that stage as it should have been and it is clear from the tape that the interview was to proceed and that the decision to proceed with the interview was made with Garda Egan present. The Member in Charge of a Garda station has a specific duty towards an accused person. The duty of the Member in Charge is that of an independent individual who is there to protect and vindicate the rights of an accused man. It is long established that an accused person has a constitutional right of access to a solicitor and I cannot see any justification for the interview proceeding. It is apparent that one question was asked after notification of the presence of the solicitor and that then the notes were read back and proffered to the accused man for his acceptance and for his signature.”

2.5 Subsequently White J went on to rule as follows:-

“Accordingly, the signed notes will not be an exhibit in this case, but the State will be permitted to adduce evidence as regards the interview with the accused man up to the stage that is indicated in the note, being the events that occurred prior to 20:26.”

2.6 Thus it is clear that White J ruled inadmissible any evidence of the events which occurred at the interview in question after the time when Mr. D indicated a desire to see his solicitor but that request was not complied with.

2.7 It is also of some importance to note the relevance of the interviews with Mr. D to the issues which arose at the trial. In fact Mr. D made no admissions of guilt during the course of either of the interviews in question. On the contrary, he maintained that he had not even been in the town in which the offence was alleged to have been committed at the relevant time. Thus the statements which he made during the interviews in question were entirely exculpatory. In many cases, perhaps most, it would be unlikely, in those circumstances, that there would be any controversy about the admission in evidence of a statement by an accused person which did not admit any facts tending to establish guilt as such. It is in that context that an unusual feature of this case needs to be noted.

2.8 As indicated, Mr. D denied having anything to do with the events alleged by the complainant. The complainant had made an allegation of rape against Mr. D together with an allegation of a serious assault as a result of which she suffered injuries. Medical evidence confirming the relevant injuries was before the court. Mr. D’s position while being questioned by An Garda Síochána was that he was not there at the time when any incident might have occurred. It is also important, for reasons to which I will return, that Mr. D maintained that same position during the course of the second interview which latter interview occurred after he had had an opportunity to consult with his solicitor. Thus his consistent position, both before and after having had the opportunity to consult with his solicitor, on the day when he was interviewed by An Garda Síochána, was one of asserting that he had no involvement whatsoever in the events which formed the subject of the complaint.

2.9 However, before the case came to trial, the authorities had produced forensic evidence which seemed to establish that Mr. D had, in fact, had sexual relations with the complainant on the occasion in question. In those circumstances the case made by and on behalf of Mr. D at the trial was very different. Rather than assert, as he had to An Garda Síochána, that he had no involvement in the events at all, he gave evidence of consensual sexual activity and gave an entirely separate explanation as to how he suggested that the complainant might have suffered from the undoubted injuries which had been noted by medical personnel.

2.10 Against that change of tack it is hardly surprising that counsel for the D.P.P., at the trial, sought to attack Mr. D’s credibility on the basis of his having given an account to An Garda Síochána which he was forced to concede at the trial was entirely false. It is in that rather unusual way that the admissibility of an exculpatory statement by an accused came to assume a significant relevance at his trial.

2.11 One further aspect of the trial needs to be noted in the context of the additional point sought to be argued on behalf of Mr. D. There was a significant debate at the close of the prosecution case as to whether there was sufficient evidence to permit the case to go to the jury. In ruling on that application White J made a comment to the effect that, if he were sitting on the jury, he would return a verdict of not guilty. However, the trial judge went on to state the following:-

“But I cannot simply determine the issue on the basis of how I would vote as a jury member. I must look and ask myself can or should a jury, properly charged, convict without acting perversely. It is not what they should do but what they would do and with a degree of reluctance I have come to a conclusion that it cannot be said beyond reasonable doubt that a jury would be perverse in convicting. Accordingly, with that degree of reluctance, I propose to let the matter proceed to the jury”.

2.12 The additional grounds sought to be advanced arise out of those comments of the trial judge. Against the background of those facts it is next necessary to turn to the issues.

3. The Issues

3.1 Three issues arise for the consideration of the Court. The first is as to the proper principles to be applied in a case where there is an undoubted deliberate and conscious violation of the rights of an accused person while under interrogation but where that violation only arises in the course of the interrogation so that it does not, directly at least, affect the account given by the accused prior to the violation in question arising. That is, in substance, the issue or point of law certified by the Court of Criminal Appeal.

3.2 Second, there is the question, raised on Mr. D’s motion, as to whether this Court should entertain the additional ground sought to be relied on arising out of the refusal by White J of the application made on behalf of Mr. D to withdraw the case from the jury.

3.3 Third, and in the event that the Court decides to entertain that later ground, there is the question of whether the trial judge applied an inappropriate test in deciding whether the evidence was such as ought go to the jury.

3.4 It does need to be noted that a wider range of issues were canvassed before the Court of Criminal Appeal. It is unnecessary to rehearse all of those issues at this stage. However, it is next appropriate to turn to the judgment of the Court of Criminal Appeal insofar as it deals with the issues with which this Court is concerned.

4. The Judgment of the Court of Criminal Appeal

4.1 The section of the judgment of the Court of Criminal Appeal which dealt with the admissibility of the first interview commences on p.17 of that judgment. The judgment sets out the facts which have already been referred to together with the ruling of the trial judge. The judgment also notes that the jury was shown the video tape of the first interview which runs for approximately fifty minutes up to the point where the oral account of Mr. D was excluded. The way in which the issue under consideration was put by the Court of Criminal Appeal was to state that the ground referred to “whether having regard to the interview continuing by the asking a further question and the applicant being asked to sign and signing the note of interview the entire interview ought to have been excluded from evidence”. In discussing that issue the Court started by referring to the judgment of Finlay C.J. in Director of Public Prosecutions v. Healy [1990] 2 I.R. 73, where Finlay C.J. (speaking for the Court) held that a right of access to a lawyer was constitutional in its origin and that, thus, a breach of a right of access to a lawyer must amount to a breach of a constitutional right.

4.2 However, the Court of Criminal Appeal went on to note a further passage from the same judgment (at p.81) in which the following was stated:-

“The vital issue which arises, therefore, if a breach of the right of access to a solicitor has occurred as a result of a conscious and deliberate act of a member of the Garda Síochána, is whether there is a causative link between that breach and the obtaining of an admission.”

4.3 The Court then went on to consider Director of Public Prosecutions v. Buck [2002] 2 IR 268. In discussing Buck the Court of Criminal Appeal noted the observations of Keane C.J., at p.279, in relation to the dicta of Finlay C.J. in Healy to the following effect:-

“It would seem to be implicit in that finding of the Chief Justice that, if the trial judge in that case had been satisfied that the incriminating statement had been made prior to the arrival of the solicitor, it would have been admissible in evidence, since, at that point, there would have been no deliberate or conscious violation of the applicant’s constitutional right of access to a solicitor or so total a failure to observe reasonable standards of fairness as to require the exclusion of the statement.”

To like effect the Court of Criminal Appeal noted the judgment of Barrington J. in the Court of Criminal Appeal in Director of Public Prosecutions v. Finnegan (unreported, Court of Criminal Appeal, Barrington J., 15th July, 1997) where the same passage from the judgment of Finlay C.J. in Healy was referred to in the following terms:-

“The implication of this is that any statement made after 4 p.m. (when the solicitor arrived and was denied access) would have been inadmissible presumably because the prisoner was from that hour in unlawful detention because of denial of his constitutional right of access to a solicitor and any statement obtained from him was therefore inadmissible…In the present case there was a breach of Mr Finnegan’s constitutional rights when he was denied private access by telephone to a solicitor. From that point on he was in unlawful detention.”

4.4 Finnegan J., in giving the judgment of the Court of Criminal Appeal, reached the following conclusions, which are set out at pp.21 and 22 of the judgment:-

“However it is clear from the judgment of Finlay C.J. in Director of Public Prosecutions v Healy that admissibility is to be examined from the view point of cause and effect. In this case while there was a denial of right of access to a solicitor it has not been established that such a relationship of cause and effect existed between that denial and that part of the interview admitted in evidence. No attempt was made in evidence to establish such a relationship which would require that part of the interview admitted in evidence to be inadmissible.

The law it seems to this court is clear that if detention becomes unlawful by reason of the breach of a constitutional right anything that transpires thereafter may become inadmissible but anything which occurred in the course of the detention prior to the detention becoming unlawful remains admissible.”

On that basis the ground under that heading was rejected.

4.5 So far as the issue concerning the trial judge permitting the case to go to the jury is concerned it does need to be noted that the Court of Criminal Appeal was concerned with a wider challenge than that which arises before this Court. In substance it was argued before the Court of Criminal Appeal that the trial judge was wrong, in any event, to let the case go to the jury. The Court of Criminal Appeal conducted a detailed analysis of the evidence and concluded that the trial judge was correct to allow the case to go to the jury. As Finnegan J. put it “… notwithstanding any inconsistencies in the evidence there was sufficient evidence to justify the case going to the jury”.

4.6 So far as the narrower issue sought to be raised before this Court is concerned Finnegan J. said the following at p.13,:-

“In using the phrase quoted the learned trial judge said no more than that it was possible on the evidence in its then state that a jury could convict the applicant. The phrase “reasonable doubt” was not intended to convey that any onus to the criminal standard lay either on the prosecution or the defence on this issue.”

4.7 Having identified the relevant passages from the judgment of the Court of Criminal Appeal it is next necessary to turn to a discussion on the question of severance of a statement made by an accused.

5. Severance of an Accused’s Statement

5.1 Both in the written submissions filed and in oral argument counsel on behalf of Mr. D made three general points. The first was to question whether the summarisation of the law by Finnegan J. (as already cited) was correct, and whether a strict causative connection, between the portion of the statement sought to be excluded and the violation of constitutional rights established, needed to be shown The second concerned the question of the proper application of a causative connection test (if such be applicable) with a case involving, as here, false exculpatory statements, and the third concerned the fairness based exception said to derive from the judgment of Keane C.J. in Buck. I propose addressing each in turn.

5.2 Before so doing it is important that I record that the case made at trial, before the Court of Criminal Appeal, and in this Court was based on Irish constitutional jurisprudence relating to the exclusion of evidence obtained in conscious and deliberate violation of relevant constitutional rights. No case was made, whether relying on the jurisprudence of the European Court of Human Rights or otherwise, which suggested that an accused person has the right to have a lawyer in attendance while being interviewed. In view of the fact that no such case had been made either at trial or before the Court of Criminal Appeal, counsel for Mr. D quite properly accepted that no such issues were before this Court.

5.3. The Court of Criminal Appeal clearly accepted the line of authority deriving from Healy, as explained and interpreted in both Buck and Finnegan, which suggests that there must be a causative connection between the conscious and deliberate violation of the rights of the accused in question and the statement made by the accused whose admissibility is challenged. There can be little doubt but that the passages from the judgments in those cases cited by Finnegan J. in the Court of Criminal Appeal and cited earlier in this judgment support the view that such a causal connection needs to be established in order for the statement in question to be excluded.

5.4 However, counsel for Mr. D drew attention to a decision of the Court of Criminal Appeal in People (D.P.P.) v. Madden [1977] I.R. 336. In Madden the Court concluded that the experienced Inspector of An Garda Síochána who was involved in interviewing the accused must have been aware that “it was wholly improbable that a statement”, the taking of which commenced almost at the end of the relevant detention period permitted on the facts of that case, “could terminate within the period of lawful detention”. The Court went on to note that there was no evidence providing an explanation as to why the taking of a statement commenced so close to the expiration of the period of lawful detention so that the only reasonable conclusion was that “the taking and completion of the statement” invovled circumstances of a deliberate and conscious breach of the defendant’s constitutional rights.

5.5 It seems to me that the proper characterisation of the decision in Madden is that the taking of the statement, from the beginning, was in deliberate and conscious violation of the rights of the accused in that case. The Court concluded that, from the beginning, the Inspector concerned could not have hoped to have completed the process of taking a statement. It follows that the process was unlawful from the beginning rather than being one which was entirely lawful up to a certain point in time but became unlawful because of an intervening fact such as, in this case, the denial of access to a lawyer in a timely fashion. It does not seem to me, therefore, that Madden provides any assistance to the case made on behalf of Mr. D.

5.6 Counsel for Mr. D argued that part of the remit of the Court in cases where a conscious and deliberate violation of an accused’s rights has been established is to act, as it were, as a policeman to ensure respect for constitutional rights and, in that regard, that the Court should lean in favour of excluding statements made when a conscious and deliberate violation of the accused’s rights had been established. It is true that there are passages in some of the earlier judgments by which the jurisprudence in this area developed which do make the point that it is important, for the purposes of maintaining respect for constitutional rights, that an exclusionary rule be applied.

5.7 For example in The People v. Shaw [1982] 1 I.R.1, Walsh J. explained the previous decision in The People (Attorney General) v. O’Brien [1965] I.R. 142 in the following terms, at p.32,

“The case and the decision dealt primarily with two matters concerning the admissibility of evidence. The first was the question of the admissibility of evidence which was obtained illegally but where the illegality did not amount to an infringement of a constitutional right of the accused person. The second point was the question of the admissibility of evidence obtained by illegal methods which constituted infringements of the accused’s constitutional rights. With regard to the first point, the majority of the Court decided that evidence obtained illegally could be admissible at the discretion of the judge, whereas the minority members of the Court took the view that such evidence was always admissible provided that it was relevant and probative. With regard to the second point, the basic proposition was that an objection to the admissibility at a criminal trial of evidence obtained or procured by the State, its servants or agents, as a result of a deliberate and conscious violation of the constitutional rights of the accused person must be upheld, subject to certain exceptions. This general proposition was contained in my own judgment and was agreed to by all the members of the Court. I expressed the view that an exception to this general rule would be where”extraordinary excusing circumstances” existed and I gave three examples, namely, the imminent destruction of vital evidence, the need to rescue a victim in peril, and also evidence obtained by a search which was incidental to and contemporaneous with a lawful arrest, though made without a valid search warrant. I said that, in addition to these “extraordinary excusing circumstances”, evidence obtained without a deliberate and conscious violation of an accused’s constitutional rights was not inadmissible by reason only of the existence of a violation of his constitutional right. In other words, accidental and unintentional infringements of the Constitution would not be sufficient to exclude such evidence.”

5.8 It does, however, have to be noted that the cases in question were concerned with the debate, now well settled, as to the consequences of a statement being made at a time when an accused’s detention was found to have been in deliberate and conscious violation of that accused’s constitutional rights, but where the statement in question was nonetheless voluntary. The question was as to whether the statement should necessarily be excluded or whether the Court retained a discretion. It is now well settled that, save in wholly exceptional cases, the statement must be excluded. To that extent it is true that the courts have taken what might be described as a strong line on cases involving deliberate and conscious violation of constitutional rights. However, almost all of the relevant cases involved a situation where the statement under challenge was made during a period of detention which was found to be unlawful for constitutional reasons. There was, therefore, a clear causative link present in any event in that if the accused concerned had not been in unlawful custody and had, therefore, been released the statement would not have been made in the first place.

5.9 Where, however, a statement is made in circumstances where there was no illegality, let alone unconstitutionality, attaching to the accused’s custody, or to the taking of the statement concerned, up to a certain point in time, is there any reason in principle why the statement up to that point in time should not be admissible? There is, at least in the ordinary way, no obvious causal link between a subsequent lapse into constitutionally unlawful custody and previous statements made by an accused during entirely lawful custody. To impose an exclusionary rule, at the level of principle, to statements made by an accused during lawful custody simply because the accused’s custody later, albeit while the statement taking process was continuing, became unconstitutional would, in my view, be to impose an unnecessarily excessive exclusionary rule not warranted by the need to discourage improper activity by those investigating crime.

5.10 The causative link test is well established in the jurisprudence to which reference has been made. It seems to me that that test meets the legitimate requirements of discouraging constitutionally impermissible investigation while at the same time permitting lawfully obtained evidence to be placed before the Court as part of the criminal process. I am not, therefore, satisfied that there is any legitimate basis for departing from the causative link test identified by Finlay C.J. in Healy.

5.11 However, a number of other observations are necessary for the purposes of dealing with the issues which arise on the facts of this case. The first is to note that in many cases the causative link will be obvious. Where an accused is in unlawful custody deriving from a conscious and deliberate breach of the accused’s constitutional rights, then, for the reasons already analysed, the causative link does not need any further establishment.

5.12 Second, it seems to me that the Court can, at the level of principle, sever those portions of a statement or interview given by an accused which occurred during a period of constitutionally unlawful custody from those which occurred during a period of lawful custody. As a starting point there can be no doubt but that entirely separate statements or interview processes can be the subject of legitimately different conclusions. Thus one statement made during a period of lawful detention may be admitted while another statement made during a period of constitutionally impermissible detention may be excluded. Further it is to be noted that in The People (Director of Public Prosecutions) v. O’Brien [2005] 2 IR 206, this Court held that the constitutional rights of an accused were restored once he was granted access to a solicitor and that it followed that any inculpatory statement made by the accused after he had consulted a solicitor was admissible unless it was elicited from him by the use of material obtained during questioning while his constitutional right of access to a solicitor was being breached. It is clear from the judgment of McCracken J. (speaking for this Court) that the proper course of action to adopt was to analyse whether the breach of constitutional rights concerned (in that case, as here, a refusal of timely access to a lawyer) actually caused or even contributed to the statement concerned. As the accused had had access to his solicitor (albeit belatedly) before he made the statement under challenge then there was no causal connection between his previous constitutionally unlawful detention and the inculpatory statement unless a further link could be shown connecting the admissions later made with earlier statements made by the accused while in unconstitutionally unlawful custody.

5.13 I can see no good reason why the same analysis can not apply to two portions of the same statement taking or interview process where one portion occurs during lawful custody while the other occurs during constitutionally unlawful custody. Unless there is some sufficient nexus between the two parts of the statement or interview process so as to taint the otherwise lawful portion, then there is no reason to exclude that part of the interview or statement which was made while the accused was in lawful custody.

5.14 It seems to me to follow that the test adopted by the Court of Criminal Appeal in this case was correct. It is necessary that there be a causal link between any constitutionally unlawful custody and the making of a statement in order for the statement to be properly excluded. In principle it follows that any part of the statement made during lawful custody is admissible. However, where there is a link between the two parts of the statement such that there is a causal link which taints the part of the statement taken while the accused was in lawful custody then it may be necessary to exclude the entirety of the statement.

5.15 The facts of this case are clear. All that happened after Mr. D was denied access to his solicitor was that one further question was asked and answered, the statement was read over, Mr. D made one correction to the statement and signed it. None of the matters which occurred after Mr. D’s detention became constitutionally unlawful were such as to create an unfairness or nexus between what occurred during his constitutionally unlawful custody and what had gone before while he was in lawful custody. The situation might well be different if it proved impossible, with any degree of confidence, to disentangle those aspects of the accused’s account which occurred within and outside periods of lawful custody. It must be recalled that in Healy the entirety of the statement was excluded because the trial judge had been unable to determine whether the incriminating statements in that case had been made prior to or after the breach of constitutional rights complained of. In modern conditions, where the interrogation of suspects is conducted with the aid of video recording and timing, it is much less likely that any such difficulty would arise. Indeed, it is instructive to note that the ruling of White J was able to pinpoint, by reference to a precise minute on the video evidence, the point at which Mr. D’s custody became constitutionally unlawful.

5.16 However, there may be other circumstances which may create a difficulty in seeking to disentangle parts of a statement made in respectively lawful and unconstitutionally unlawful custody. The interview may range forward and backward over the events under investigation so that it is impossible, without a real risk of unfairness, to sever the portion of the statement made in constitutionally unlawful custody. There may well be cases where there would be a real risk that the admission of a portion only of a statement would give a misleading account of what was said by the accused if the jury were only to be told of the portions of the accused’s account which were given while he was in lawful custody. The significance of any account sought to be removed by severance must, of course, be assessed in the context of the real issues likely to arise at the trial.

5.17 However, I am not satisfied that any such concerns exist on the facts of this case. In the light of the limited events which occurred while Mr. D was in constitutionally unlawful custody on the facts of this case, there was not, in my view, any real risk of unfairness by admitting the portion of the interview which occurred while Mr. D was in lawful custody.

5.18 It is next necessary to say something about the point made on behalf of Mr. D about the exclusion of exculpatory statements. In substance the argument made by counsel on Mr. D’s behalf under this heading stemmed from the use made by the prosecution at the trial of Mr. D’s statement for the purposes of undermining his credibility. As pointed out earlier Mr. D gave evidence at the trial and was forced to admit that the original account given to An Garda Síochána was false. It was argued on behalf of Mr. D that there was a realistic prospect that, had he been afforded access to his solicitor when he should, his solicitor might have advised him to, as it were, come clean, thus significantly reducing the extent to which his statements, taken as a whole, might have been used to discredit him at the trial. Thus, even to the extent that the Court was persuaded that a causal link needed to be established, it was said that a causal link did exist between the unconstitutional deprivation of access to a solicitor and the adverse evidential consequences for Mr. D of the admission of the partial statement in this case.

5.19 While there may be some theoretical validity to the point made by counsel, it seems to me that the answer given on behalf of the D.P.P. to this point was, on the facts of this case, coercive. Attention was drawn to the fact, as already noted, that Mr. D had made a second statement or interview after he had had access to his solicitor and received whatever advice might have been forthcoming. Despite that fact Mr. D continued to maintain that he was not there on the occasion in question. Whatever might, therefore, be the possibility in another case that an accused might have mitigated any adverse effects of having given an initial false account to An Garda Síochána by coming clean during the same interview process with the benefit of legal advice, that possibility has no application to the facts of this case for it is clear that, despite legal advice, Mr. D did not change his account.

5.20 Under this heading it should finally be noted that the trial judge had the benefit of a transcript of the second interview and was thus able to assess the account given by Mr. D on that occasion. While it is true that the trial judge excluded the second statement as evidence which could be admitted to prove the guilt of the accused at the trial, it does not seem to me that the trial judge was required to exclude that second statement from his consideration in deciding whether or not to admit either or both statements. In addition, it does need to be said that no argument was addressed to the trial judge concerning the possibility that the accused might have come clean had he had the benefit of legal advice and might, therefore, have reduced the extent to which his false denial of any involvement could have been used to affect his credibility.

5.21 In summary under this heading I am, therefore, satisfied that the causal link test is one which needs to be applied in circumstances where an accused comes to be detained in conscious and deliberate violation of constitutional rights. It follows that a part of a statement made or interview given during a period when the accused is in constitutionally unlawful custody must be excluded but that, prima facie, any part of the statement made or interview given during a period of lawful custody can be admitted. However, that latter statement is subject to the caveat that, if it can be shown that there is a real risk of unfairness by admitting only part of a statement, then it may well be that the trial judge will have to exclude the entirety of the statement concerned. It also follows that the overall consideration of fairness, identified by Keane C.J. in Buck, is met by the application of that caveat.

5.22 On the facts of this case it seems to me that Finnegan J was correct in concluding that the portion of the statement made prior to the denial of access to a lawyer was correctly admitted by the trial judge for there was no basis on which it could have been concluded that the admission of that portion of the statement gave rise to any real risk of unfairness. Having dealt with the points certified by the Court of Criminal Appeal it is next necessary to turn to the two issues which arise from the motion in which it is sought to raise further argument.

6. Should the additional point of law be considered?

6.1 No application was made to seek to certify the point of law now sought to be raised as an additional point for the purposes of a certificate under s.29(2) of the Courts of Justice Act, 1924. Indeed it was, in effect, accepted by counsel on behalf of Mr. D that the point would not have warranted certification. In those circumstances the matter is now governed by a s.29(5A) of the Courts of Justice Act, 1924 (as inserted by s.59 of the Criminal Justice Act, 2007) which provides as follows:-

“The Supreme Court, in an appeal under subsection (2) or (3) of this section, may, if it considers it appropriate to do so, hear argument and make a determination in relation to any part (not only the point of law of exceptional public importance which is the subject of the certificate concerned issued under whichever of those subsections is appropriate) of the decision of the Court of Criminal Appeal concerned.”

6.2 The previous jurisprudence of this Court made it clear that a rehearing of the entire appeal was possible if a s.29 certificate was granted, even though the s.29 certificate related only to a limited aspect of the issues which arose before the Court of Criminal Appeal. It was suggested by Geoghegan J in D.P.P. v. McKevitt [2009] 1 IR 525 at p.529 that the right “to argue different grounds has now been greatly restricted by section 59 of the Criminal Justice Act, 2007”.

6.3 In truth s.29(5A) gives very little guidance as to the circumstances in which it is appropriate for this Court to allow grounds beyond those certified to be argued. The test is no more than that this Court “considers it appropriate so to do”. It seems clear that there is now a discretion vested in this Court but the precise criteria by reference to which the discretion should be exercised are not clear.

6.4 It was argued on behalf of the D.P.P. that the point sought to be argued is very much one which depends on the facts of this case and is of no general application and that that was a factor which ought lean against the court exercising its discretion to entertain the point. It does not seem to me that this is the case in which it is necessary to set out any exhaustive analysis of the circumstances in which this Court ought to “consider it appropriate” to entertain additional points to those certified. The motion was heard at the same time as the trial and the court decided de bene esse to hear argument on the merits of the point. I am satisfied that there is a point of some importance raised in the issue sought to be argued. It might be said, to borrow a term used in relation to the construction of legally binding documents, that, on a literal construction of what the trial judge said in his ruling on the question of whether the case should go to the jury, an incorrect test was applied. The question raised is as to whether, having regard to the overall context of the argument which the trial judge had heard and on which the trial judge was ruling and the further context of the ruling itself, taken as a whole, it can be said that the trial judge, in truth, applied a wrong test. In those circumstances it seems to me to be appropriate to go on to consider the merits of the point sought to be argued.

7. What test did the trial judge apply?

7.1 It is agreed by both sides and does not appear to have been in dispute, to any significant degree, at the trial, that the test to be applied when an application is made of “no case to answer” is as set out by the English Court of Appeal in R. v. Galbraith [1981] 73 Cr. App. R 124, which is as follows:-

“How then should the judge approach a submission of “no case”? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

7.2 These principles have been approved and adopted in this jurisdiction in a number of cases not least The People (D.P.P.) v. M. (unreported, Court of Criminal Appeal, Denham J. 15th February, 2001).

7.3 It is sometimes said that the test is as to whether a jury would be perverse in convicting. That is, perhaps, a shorthand for saying that a jury properly directed could not convict. Be that as it may the only issue which arises under this heading is as to whether the trial judge applied the Galbraith test or whether the wording of his ruling, which has already been cited, and which uses the phrase “that it cannot be said beyond reasonable doubt that a jury would be perverse in convicting”, suggests that the trial judge applied a wrong or different test.

7.4 Taken in total isolation and entirely out of context it might be said that the words just cited could be taken to imply that the trial judge considered that the case should go to the jury unless he was satisfied beyond reasonable doubt that a jury would be perverse in convicting.

7.5 In that context it is important to note that this Court is now concerned with a ruling of the trial judge on an application made in the absence of the jury. This is not language used by the judge in the presence of the jury or, in particular, in the judge’s charge to the jury. In such circumstances the Court may well have to consider what effect the use of particular language might have had on the jury itself whose members will not, of course, have legal training. Here, however, the Court is simply concerned with interpreting an ex tempore ruling of the trial judge made in the course of the trial after full legal argument on both sides.

7.6 It is important to note that there was no real dispute between the parties as to the test to be applied. In addition, as recorded in the transcript, the trial judge makes specific reference to Galbraith in his ruling. The trial judge noted that counsel on behalf of Mr. D had placed reliance on Galbraith together with other authorities. The trial judge also noted that counsel on behalf of the Director of Public Prosecutions had argued that “having regard to the decision of the Court of Criminal Appeal in The Director of Public Prosecutions and M., a judgment delivered by Mrs Justice Denham, that it should be slow to withdraw this case from the jury, and that this is a matter that is quintessentially a matter for the jury, and that the issues of reliability and credibility are quintessentially matters for the jury.”

7.7 That analysis by the trial judge of the argument of counsel on both sides comes immediately before the passage from his ruling already cited from which it is argued that the trial judge applied a wrong test. There is nothing in the ruling of the trial judge to suggest that there was any real dispute between counsel as to the test to be applied or that any argument was put forward on behalf of the Director of Public Prosecutions to the effect that the test was not as found in Galbraith. Rather it is clear that the trial judge took the view that the basic principles to be applied were as agreed by counsel with the difference between the respective positions of counsel being as to the application of those principles to the facts of the case. Against the absence of any disagreement at the level of principle between counsel coupled with the absence of any suggestion in the ruling of the trial judge that he proposed departing from the principles agreed by counsel, it would be surprising in the extreme if White J, without setting out detailed reasons, would have departed from those principles. The passage from his ruling already cited, and on which counsel for Mr. D places reliance for his argument, needs to be seen in that context.

7.8 It also needs to be noted that no intervention came from counsel immediately after the ruling was made to suggest that the trial judge had applied an incorrect test. While it might be said that it would not be appropriate for counsel to question the ruling of the trial judge after it had been made nonetheless, if it had transpired that the parties agreed, in argument, on the appropriate test and the trial judge, off his own bat, had applied an entirely different test, it could hardly be said that it would not be open to counsel to seek to have the issue revisited. The only reasonable conclusion to reach is that counsel did not consider, on the day in question, that the trial judge had done other than apply the agreed Galbraith test.

7.9 But perhaps of even more importance is the fact that the trial judge himself identified in his ruling the Galbraith test and referred to it in a way that does not imply any disagreement with or any refinement of it.

7.10 It seems to me that Finnegan J was entirely correct when he concluded that the proper construction to place on the ruling of the trial judge was that the trial judge meant no more than “that it was possible on the evidence in its then state that a jury could convict the applicant”.

7.11 It follows that the appeal under this heading must also be dismissed.

8. Conclusions

8.1 In those circumstances I would dismiss the appeal on the grounds certified by the Court of Criminal Appeal, allow Mr. D to raise the additional point sought to be raised in his motion, but dismiss the appeal on that ground as well.

DPP v Gormley and DPP v White

[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 O’Neill

[2007] I.E.C.C.A. 6
JUDGMENT of Mr. Justice Kearns delivered on the 16th day of March, 2007.

The applicant was convicted of rape on the 8th April, 2006 following a trial in the Central Criminal Court and was thereafter sentenced to eight years imprisonment by Carney J. on 22nd May, 2006. Leave to appeal was refused by the learned trial judge and the present application for leave is based on a single ground, namely, that the learned trial judge erred in law in excluding all the contents of a memorandum of interview of the accused in circumstances where objection had only been taken to the admissibility of part of the memorandum of interview.
The evidence at trial was that the complainant, who in March, 2004 was aged 18 years, lived with her family in a housing estate in Kildare. She and the accused knew each other well, having grown up and resided in close proximity to each other. The sister of the applicant was a close friend of the complainant. On Saturday 6th March, 2004 the complainant and the accused were socialising in various pubs around Kildare town with their friends. They met during the evening in one of the bars and kissing took place. It seems this was the first time that any degree of intimacy had occurred between the couple. In the early hours of the 7th March, 2004, the complainant and the applicant walked home together towards their respective homes in Kildare town. Their route took them past Saint Bridget’s Park. The couple entered the park where an act of sexual intercourse ensued.
On 8th March, 2004, the complainant made a complaint to the gardaí that she had been raped by the applicant.
On the same day, Garda Karen Pound and Garda Pat Dooner of Kildare Garda Station called to the applicant’s home in Kildare to interview the applicant regarding the matters alleged by the complainant. A memorandum of the interview was recorded by Garda Pound in her notebook. In the course of this interview, the accused was asked a series of questions about the events of the previous evening. In the course of the interview, the applicant admitted having had sexual intercourse on a consensual basis with the complainant for a short period until the complainant asked him to desist. In the latter part of the interview, however, the applicant admitted that he raped the complainant. The evidence of the garda officers was that the applicant was then told he would have to come to the garda station to make a full cautioned statement. The applicant elected to go with the gardaí to the station where he made a signed cautioned statement admitting rape. Carney J ruled that as the statement made in the garda station had not been video-taped, he could not be satisfied that it was admissible having regard to decisions of this Court in Director of Public Prosecutions v. Michael Murphy [2005] 4 IR 504 and Director of Public Prosecutions (Ivers) v Murphy [1999] 1 IR 98.
Having succeeded in excluding the cautioned statement made in the garda station, counsel on behalf of the applicant then objected in the absence of the jury to the admissibility of portion of the interview which had taken place in the kitchen of the family home of the accused and which had preceded the visit to the garda station. It was argued on behalf of the applicant that this memorandum of interview had been obtained in an improper manner and in breach of his rights in that, inter alia, he had not been cautioned and it had not been read over to him before he signed it. No objection was raised by the defence to the admissibility of the earlier part of the memorandum of interview which was largely exculpatory.
In the voir dire hearing about the interview, the applicant gave evidence that at a certain stage of the interview the attitude or the demeanour of the two gardaí changed. He testified that Garda Dooner said he was dissatisfied with his responses and threatened that the applicant would be taken into custody unless he furnished answers which were to his (Garda Dooner’s) satisfaction. The applicant stated that he would not have admitted to the rape except for the pressure he was put under by the gardaí. He also maintained that Garda Dooner had told him that CCTV footage existed which showed the applicant with the complainant on the night in question. Later enquiries by the applicant’s solicitor, Connell Boyce, indicated that, following an enquiry made to the local garda superintendent, Mr Boyce had received a letter in reply from Supt Murphy confirming that no footage was in fact in garda possession. Mr Boyce gave evidence to this effect.
On behalf of the prosecution, Ms. Walley S.C. objected to the severance of the memorandum of interview arguing that the interview was either conducted in breach of the applicant’s rights or it was not. If taken in breach of the applicant’s rights, then all of the interview should be excluded. She characterised the application by counsel for the applicant as an exercise in cherry- picking in that he wished to exclude the incriminatory parts of the interview but get the benefit of the exculpatory portions. Counsel for the applicant had seen fit to put the exculpatory portions to the complainant in cross-examination before the jury. His decision thereafter to make objection to the interview before evidence about its contents was led by the prosecution – rather than at the point where it was alleged the applicant was put under pressure – was a tactical matter for the defence over which the prosecution had no control. It was certainly not open to the defence to argue thereafter that it was at a disadvantage because the effect of the ruling might be to create a requirement to call the applicant as a witness to substantiate matters put to the complainant in cross-examination.
The trial judge gave his ruling on the matter at the end of the day’s hearing on 4th April, 2006 where he decided as follows:-
“In the light of the evidence of Mr. Boyce and also the documentary material furnished by Superintendent John Murphy, I am unable to be satisfied to the standard of beyond reasonable doubt that this interview was wholly voluntary, and accordingly, I am required by law to exclude it.”
When the case resumed the following day, counsel for the applicant reiterated that he had not objected to the earlier part of the memo which contained his client’s exculpatory account of the events of the evening. He stated that he had conducted his cross-examination of the complainant by reference to the exculpatory portions of the statement and contended that he would be placed at “a severe disadvantage” if the first portion of the interview was now to be excluded.
However, having heard counsel from both sides, Carney J. stated:-
“I said that the evidence of Mr. Boyce, combined with what we have from the Superintendent put me in a position where I could not be satisfied to the standard of beyond reasonable doubt that the interview was voluntary in the legal sense and, accordingly, I excluded the interview and I accept your proposition that if the interview is excluded, the interview is excluded.”
In the course of argument before this Court, Mr Grehan, senior counsel for the applicant candidly accepted that he had an option as to the timing of his objection. He accepted he could have allowed the evidence in relation to the interview to proceed to the point where, on his client’s instructions, the sequence of questions and answers had moved from being voluntary to involuntary. He was concerned, however, that Garda Dooner in his statement in the book of evidence had made a number of prejudicial references to the applicant and to certain knowledge which he had concerning the applicant’s family. For that reason he had decided not to take the risk that such evidence might be admitted by the trial judge. In reply, Ms. Walley argued that the supposed prejudicial material could not, in any event, have been led in evidence by the prosecution, so that if this was the basis for a tactical decision to challenge the interview from the outset, it was not a good reason and it was not now open to the defence to “have it both ways”. She maintained the trial judge was correct in law in excluding the entirety of the memorandum. Where a memorandum of interview is “mixed” in the sense that it contains both inculpatory and exculpatory parts and is deemed inadmissible in law because of the illegal or inappropriate matter in which it has been obtained, then the correct approach in law is to exclude it in its entirety. In the instant case, the learned trial judge was not satisfied that it was wholly voluntary, and was therefore bound to exclude it.

Decision
This appeal raises an interesting point of law in respect of which it appears there is a dearth of decided authority in this jurisdiction. The point in essence is whether or not a judge in a criminal trial may “sever” a statement (or in this case a memorandum of interview), so as to exclude inculpatory portions but to preserve and admit into evidence those portions or lines in an interview or statement which may be regarded as exculpatory of an accused person.
Counsel for the prosecution in the course of argument relied to some extent on the decision in The People (Director of Public Prosecutions) v. John Clarke [1994] 3 IR 289 in which this Court had to consider whether a distinction could be drawn between incriminatory and exculpatory parts of a statement made by an accused.
In the course of delivering judgment in the case, O’Flaherty J. stated at p. 303:-
“The law on this topic was reviewed extensively in the decision of the Court of Criminal Appeal in The People (Attorney General) v. Crosbie (1961) 1 Frewen 231 (31 July 1961). The Court comprised Maguire C.J., McLoughlin and Teevan JJ. The judgment in the case was given by Teevan J.
The true position in law, as established by that case, and which we take this opportunity of reiterating is that once a statement is put in evidence as in this case by the prosecution, it then and thereby becomes evidence in the real sense of the word, not only against the person who made it but for him as to facts contained in it favourable to his defence, or case. A jury is not bound to accept such favourable facts as true, even if unrefuted by contrary evidence but they should be told to receive, weigh and consider them as evidence.”
The Court noted the position in England as outlined in the judgment of the Court of Appeal, Criminal Division in R v. Duncan [1981] 73 CR. App. R. 359 where the judgment at p. 365 says as follows:-
“Where a ‘mixed’ statement [meaning thereby one that contains incriminatory as well as exculpatory matter] is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge, may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence.”
Mr. Grehan, with considerable ingenuity, argues that the decision in Director of Public Prosecutions v. Clarke and the principles enunciated in R v. Duncan are of little or no relevance to the point he is making. He did not contend that the distinction of importance lay between inculpatory and exculpatory portions of an interview, rather that the true distinction lies between portions of an interview which are voluntary and portions of an interview which are involuntary. The jury should be entitled to receive such evidence as is voluntarily obtained, particularly in circumstances where it had already been relied upon by counsel for the defence to cross-examine the complainant and where its exclusion effectively compels the defence to call the accused as a witness.
There can be no doubt but that a court must exclude a statement if it is not voluntary. As Griffin J noted in The People v Shaw [1982] I.R. 1 at p. 48:-
“It is for the trial judge to decide, when he has heard all the evidence on the question, whether a statement made by an accused person is admissible. If he is satisfied that it was not voluntary, his decision can only be to exclude it; he has no discretion to admit such a statement…”
The present application seeks to have admitted portion of an interview which has been ruled out in its entirety. Counsel for the applicant has offered a reason for not waiting until the unobjectionable portion (which is the first portion) was led in evidence. However the Court is not satisfied that the timing of the challenge to the supposedly involuntary portion of the interview could not have been postponed until that stage of the evidence had been reached. The reason for making the challenge at the outset was a tactical one, based on counsel’s apprehension that there was a risk of prejudicial material from the garda member who conducted the interview being admitted into evidence. The Court has no reason to think this apprehension was well founded.

It seems to the Court that the approach urged by counsel for the applicant could lead to very undesirable results. For example, it could be that an interviewee might drift from a state of voluntariness to one of involuntariness for any particular reason at any particular moment during the course of interview. A trial judge would be in an impossible situation if he is of the view that the interview as a whole is suspect and should on that account be excluded would then nonetheless be obliged to dissect the interview on a line by line basis, giving rulings on the admissibility of each line and the voluntariness or otherwise thereof.
There may, of course, be certain cases, perhaps exceptional in nature, where a voluntary process of question and answer may alter in mid-stream, but the reasons offered by the learned trial judge for ruling out the interview in the instant case do not contemplate or acknowledge the occurrence of any such exceptional event. He took the view, as he was entitled to do on the evidence, that the entire interview process was tainted because he found that Garda Dooner had said to the applicant that he had been caught on CCTV footage leaving a particular licensed premises with the complainant. In the view of the trial judge that assertion, which had been proved in evidence to be untrue, undermined the reliability of everything that followed, whatever its effect.
The Court is satisfied that, once he had reached that conclusion, the learned trial judge was correct to exclude the entirety of the interview. In this regard, it must be borne in mind that an interviewee will in many instances endeavour to place an exculpatory account in the balance with an inculpatory account in a self-serving way so that to sever the one from the other within the same process so as to admit only exculpatory portions could lead to a very distorted picture being given to a jury.
That is not to say that there will not in certain cases be statements or interviews which may require “editing”, either by agreement between the prosecution and the defence, or by ruling of the trial judge, to exclude material from an otherwise admissible statement on the basis that it may be irrelevant or prejudicial in the sense that it is unrelated to the offence charged. Where, however, the entire process is found to have been tainted, the Court is of the view that the safer course is to exclude the entirety.
The Court will therefore refuse the application for leave.

People (DPP) v Cunningham

[2007] I.E.C.C.A. 49

JUDGMENT of the Court delivered the 24th day of May 2007 by Finnegan J.

The applicant was convicted of murder the particulars being that on the 24th December 2003 in the county of Louth he murdered one Laurence Garvey. The learned trial judge granted a certificate on one ground in the following terms:
“I do hereby certify that the case is a fit case for an appeal by the said Kenneth Cunningham to the Court of Criminal Appeal upon the following ground. ‘Whether the judge erred in refusing to discharge the jury after the prosecution witness Gráinne Hearty gave recognition evidence despite such having been ruled inadmissible’.”
The notice of appeal raised other grounds in respect of which leave to appeal is sought.
It is proposed to deal with each ground of appeal in turn.
Ground 1
Whether the judge erred in refusing to discharge the jury after the prosecution witness Gráinne Hearty gave recognition evidence despite such having been ruled inadmissible.
Ms. Hearty gave evidence in the course of a voir dire. On the night of the 23/24 December 2003 she was staying at her mother’s house in Dundalk. At about 12.15 a.m. on the 24th December she drove to the junction of The Laurels and Philip Street with the intention of performing a U-turn. She was driving with dipped headlights. At the junction in Patrick Street she saw one man jumping up and down on another who was lying on the ground and then kick him to the head. She did her U-turn and returned to her mother’s house, got a blanket and drove back to assist the man lying on the ground. At the corner of Culhane Street and Philip Street she stopped intending to turn right. She saw “the man” on the corner of Culhane Street. She was asked in relation to that man was he the man she had seen earlier. She said it was the same man. She shouted to her mother “that’s him”. The man lifted up his arms and cheered. She described the man as five foot six or five foot seven inches tall with very dark hair cut short. He was muscular or tubby. He was wearing a round neck wine coloured long sleeve top with a design to the front, dark trousers more like jeans and dark shoes.
In cross-examination she said that her observation was momentary, but that she saw his face and would never forget the face.
Mapping evidence given at the trial was that it was fifty metres from the point where Ms. Hearty observed the assault to the place in Patrick Street where the assault occurred and that it would not be possible at that distance to recognise facial features.
At the conclusion of the voir dire the trial judge ruled that it was not open to the prosecution to call Ms. Hearty to identify the man she saw in Patrick Street with the man in court. She could, however, give evidence describing the man she saw in Patrick Street and the man she saw in Culhane Street leaving the matter of conclusions and inferences to the jury.
When Ms. Hearty was giving her evidence before the jury she said:
“I noticed the man on the corner of Culhane Street, the man that was jumping up and down in Patrick Street”.

The defence objected and sought to have the jury discharged. The learned trial judge ruled that the description which the witness had given was a composite description comprising what she had seen in Patrick Street and at the corner of Culhane Street. That description was an error on her part in that it included facial features which she could not have seen in Patrick Street. It would be outside the earlier ruling if this description was tied only to what she had seen at Culhane Street. The witness should not be led in a way that tied the description which she had given in evidence to Patrick Street. The witness could not be asked to describe the man she saw in Patrick Street. The learned trial judge refused to discharge the jury. The appropriate way to deal with the situation, he ruled, was for a direction to be given to the jury to disregard the evidence of Ms. Hearty associating the man seen by her at the corner of Culhane Street as being the same man that she saw jumping on the other man on Patrick Street. The judge duly directed the jury as follows –
“It is important that I emphasise to you that there is no description from this witness of the man that was seen in Patrick Street. The description is of the man in Culhane Street. And I want to emphasise that to you, because it is something that is quite important. You are to approach the case on the basis that there is no evidence before you from Ms. Hearty linking the man she saw and described at Culhane Street with the man who she says she saw jumping on another man at Patrick Street. This is important and I must emphasise this point to you. In the first place there is no description from Ms. Hearty of the man at Patrick Street at all. Secondly, there is a description of a man at Culhane Street and this witness gave only one description of a man she saw that night. Thirdly, Mr. Cleary, the lighting expert, says one cannot see the face of a person, even with car headlights on, at Patrick Street from the vantage point that was the position of Ms. Hearty on the night so she couldn’t have done it.

Next you may well recall that the witness says that the man at Culhane Street, when she sighted the man at Culhane Street, she turned and said to her mother in the car ‘that’s the man’. Now I am directing you that you may not treat this as evidence establishing through this witness that the two are the same, for the reasons which must appear clear having regard to the general principles I have already told you, and also what I have just said about Mr. Cleary.

First of all she did not give any description of the man she saw at Patrick Street. Second of all, she could not have done so in terms of the only description she gave at Culhane Street which included a detailed description of the man’s face, impossible according to Mr. Cleary from her vantage point at Patrick Street. Third, it may be that she might herself have mistakenly imposed the features of the man that she saw at Culhane Street and the man that she saw earlier, because you will recall that in cross-examination she said about the man she saw at Patrick Street ‘I will never forget his face’ but on being pressed in cross-examination she said that referred to the man she saw that night, that is, the man she saw at Culhane Street.

You might well then ask, and this is ‘just what is the prosecution’s case in relation to the man at Patrick Street?’ I’ll just remind you that it is a circumstantial case. The prosecution do not say ‘we have an eye witness’. They do not say ‘we have forensic proof’ like blood or fingerprints or anything else. It is a circumstantial case, based on the various circumstances and I won’t detail them all to you, because I think I have alluded to them already in what I have said so far”.
In a civil case Dawson and another v Irish Brokers Association Supreme Court 6th November 1998 O’Flaherty J. said –
“Even if inadmissible evidence gets in, the jury should be taken as likely to abide by the trial judge’s ruling in all matters of law and by their oath to do essential justice between the parties.”
Again –
“Once again, it is necessary to reiterate, as this court is doing with increasing frequency, that the question of having a jury discharged because something is said in opening a case or some inadmissible evidence gets in should be a remedy of the last resort and only to be accomplished in the most extreme circumstances. Juries are much more robust and conscientious than is often thought. They are quite capable of accepting a trial judge’s ruling that something is irrelevant, or should not have been given before them, as well as in the face of adverse pre-trial publicity. See D v Director of Public Prosecutions [1994] 2 I.R. 465, Z v Director of Public Prosecutions.”

In D v. Director of Public Prosecutions Finlay C.J. said –

“I am satisfied that there is much strength in the arguments submitted on behalf of the Director of Public Prosecutions in the hearing of this appeal that this court should not disregard both the capacity of a trial judge strongly and effectively to charge a jury in a manner which would indicate to them beyond question their obligation to try the issues before them only on the evidence adduced, and the robust commonsense of juries who might well ignore dramatic or sensational newspaper articles.”
In Z v Director of Public Prosecutions Finlay C.J. in the context of an application for an order of prohibition at p. 507 said –
“With regard to the general principles of law I would only add to the principles which I have already outlined the obvious fact to be implied from the decision of this Court in D. v The Director of Public Prosecutions that where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge”.
In Director of Public Prosecutions v JEM [2001] 4 I.R. 385 the trial judge ruled that evidence of an alleged conversation between a witness and the accused would be admissible as to the accused’s demeanour but that one element of her statement –
“At one stage he threatened to kill me”
would have to be excluded. During the course of the trial the witness gave evidence to like effect as in the excluded element. The learned trial judge refused to discharge the jury. The Court of Criminal Appeal was satisfied that the trial judge’s decision was taken after consideration, with reasons given, having analysed any prejudicial aspect of the matter and held that there was no basis upon which the court could interfere with the exercise of the judicial discretion.
In the present case, the court is satisfied that the learned trial judge properly exercised his discretion. In his charge, he was at great pains to ensure that the jury excluded from their consideration the evidence improperly admitted and that they should make no connection between the applicant and the man committing the assault on the basis of that evidence.

Ground 2

The learned trial judge erred in refusing to find that in the particular circumstances of the entry of the dwelling of the accused the Gardai were obliged to inform the accused of his constitutional right to refuse them such entry and as a consequence of their failure to do so, the learned trial judge erred in fact and in law in failing to rule inadmissible the following evidence:-
(a) The negative results of the search of the room in which the accused was arrested.
(b) The results of the search of the rest of the dwelling of the accused including the fireplace and in particular alleged remains of burnt clothes and shoes of the accused, and
(c) The results of the arrest and detention of the accused and in particular the evidence of Garda interviews with the accused.

The circumstances in which the entry into the applicant’s house arose were the following. Detective Garda Lynam called to the applicant’s home shortly after 1 a.m. on Christmas Eve. He could clearly see the reflection of a large fire when he looked through the front door. The house was unlit. At 5.50 that morning together with Garda Geraghty, Detective Sergeant Piper, Detective Garda Molloy, Detective Garda Sheridan and Garda Hanlon he again attended at the applicant’s home. They knocked on the door for a number of minutes before the applicant opened an upstairs window and recognised Detective Garda Lynam. Detective Garda Lynam asked him to come downstairs because they wished to talk to him. The applicant came downstairs and admitted the Gardai. They entered the sitting room. Subsequently Detective Garda Lynam entered the kitchen and saw a large pile of ashes in the fireplace still glowing. At 6.22 a.m. the applicant was arrested. Detective Sergeant Piper gave evidence to the like effect. Detective Garda Molloy’s evidence was that when the applicant opened the door, Detective Sergeant Piper told him that they were investigating an incident. The applicant replied –
“How bad is it? You’d better come in.”
The Garda party and the applicant then entered the front room. The applicant was then cautioned by Detective Sergeant Piper. The intention of going to the house was to arrest the applicant but the applicant was not informed of this although he was cautioned. He agreed with counsel for the defence that the applicant was not told that he had a right to refuse entry into the house.
The applicant’s case is that the Gardai would have been entitled to enter the dwelling on foot of their powers of arrest to effect an arrest but they did not do this. They entered on foot of an invitation but without informing the applicant of his right to refuse to admit them.

Counsel for the applicant relies on The People (D.P.P.) v Walsh [1980] I.R. 294 and The People (Attorney General) v McGrath) (1960) 99 I.L.T.R 59. However in this case in the light of the evidence there can be no suggestion that the entry was illegal. The invitation to enter was given by the applicant. It was unsolicited in that no request to enter was made. There was no trick. In the circumstances where an invitation is issued no obligation to advise the applicant of his constitutional rights could arise.
The applicant fails on this ground.

Ground 3
The learned trial judge erred in fact and in law in refusing to find that the accused was as a matter of fact and law detained without lawful basis for the period from the time of entry of the dwelling of the accused to the time of his arrest and in failing to rule inadmissible on that ground the evidence set out at Ground 2(a)(b) and (c).

Counsel for the applicant relies on the judgment of Hamilton P. in The People (D.P.P.) v Coffey [1987] I.L.R.M. 727. In that case the defendant voluntarily attended at a Garda Station in the first instance. The Gardai left for the purpose of checking his account of his movements and on their return the defendant was a very real suspect. It was held that at that time he should have been told he was free to go if he so wished. In these circumstances the onus was on the State to show that he was made aware of his right to leave the Garda Station or that he was aware of his right to do so. In that case in the course of his attendance at the Garda Station the defendant was asked for his car keys and he handed them over: at no stage were they returned to him. Throughout his time in the station he was constantly interviewed and questioned and this would indicate to him that he was not free to leave. No indication was given to him that he was free to leave. It was irrelevant that he did not ask to leave and the court was satisfied that during the relevant period the defendant was in detention and the statements made by him were inadmissible. In the course of his judgment in that case Hamilton P. referred with approval to a passage from the People v Lynch [1982] I.R. 64 –
“Of course, if an intention has been formed to charge him, he must also be informed that he is not obliged to answer any questions. The necessity to be informed of his freedom to leave at any time arises from the fact that a person in a police station in connection with the investigation of a crime, even if he initially goes there voluntarily, is in an unaccustomed environment and finds himself the focal point of attention. He may very well reasonably assume that he is not free to leave until he is so told, and he may not venture to assert his belief in his right to leave. It was for similar reasons that in the Judges’ Rules the necessity to warn a person that he is not obliged to answer any questions was introduced. Generally speaking, nobody is obliged to answer any questions and, if one were to assume that everybody knows that that is the law, there would be no need for the warning; but practical experience has shown that there is a need for such a warning. In my view, the same should apply to persons who are invited to come to a Garda Station for the purpose of being questioned about an offence. They should be made aware that at all times they are free to leave until the point is reached when they are in fact not free to leave.”

In the present case the applicant was in his own home. The Gardai were present at his invitation. He had been duly cautioned. He was clearly not in the same position as the defendant in The People v Lynch who was in the unaccustomed environment of the Garda Station. In these circumstances the evidence referred to at (a), (b) and (c) was not obtained in breach of any constitutional right of the applicant nor is it tainted with any illegality.

Ground 4
The learned trial judge erred in fact and in law in refusing to discharge the jury having regard to the prejudicial comments on a particular internet website and in drawing the attention of the jury to the existence of such a website by making enquiry of the jury despite the defence submission that such a step should not be taken.

On the eighteenth day of the trial counsel for the defence drew the learned trial judge’s attention to a print-out from a website called the El Paso Times. The website relates to matters concerning Dundalk. The website referred to the trial and there were comments on the website in the nature of blogs relating to the trial, some 15 in total. Some of the postings counsel said were matters for concern. Counsel for the applicant submitted that as it was not known if any juror had accessed the site, it would have been prudent to give a warning at the commencement of the trial that they should not access the internet and that was not done in this case. It was further submitted that it was now too late to give a warning and that the jury should be discharged. The learned trial judge notwithstanding objections by counsel for the applicant determined to deal with the issue before the jury. He did so in the following terms:
“I just wanted to say something to you: you recall that virtually every time we break up, I tell you not to talk to anybody else outside the 12 of yourselves or to let anybody else outside the 12 of yourselves speak to you about the case. Perhaps I should have made it more explicit, that includes, and I should have made this more explicit to you, that includes, for example accessing the net, the website or any website that might discuss or comment on the case just as obviously that would be within that. I am making that clear to you now, so you will understand when I give that warning, but that is what I intend. But just in case I had not made that clear to you I would like to know from you, has any one, by any chance made a hit on the net that would have involved a discussion of any kind of information or background or comment or reference to this case? I would like each of you to take a moment just to consider. There is no criticism or anything like that. I just want to know if that might have happened in this particular case. Has anybody?”

The jury answered “No”.
The learned trial judge went on to warn the jury not to consult the web or anything of that nature.
On the twenty fifth day of the trial counsel for the applicant drew to the learned trial judge’s attention to the fact that the web site had been referred to in an article in the latest issue of the Sunday Times and discussed on RTE Radio 57 Live and so brought to the attention of a wider audience. In neither instance was there a reference to the crime or the trial. There had also been an additional posting relating to the trial on the El Paso Times site. The learned trial judge refused to discharge the jury.
Earlier in this judgment the court has referred to Dawson and Another v Irish Brokers Association, D. v Director of Public Prosecutions [1994] 2 I.R. 465 and Z. v Director of Public Prosecutions 1994 2 I.R. 476. Juries are quite capable of accepting a trial judge’s ruling that something is irrelevant. If properly directed they can be expected to abide by their oath and find facts on evidence properly before them. The question asked by the learned trial judge of the jury was appropriate and their answer should be accepted and as they had not consulted the website prior to the learned trial judge’s warning the court is satisfied that they would not do so thereafter and that there is no real risk of unfairness arising out of the existence of the website. To hold that such a risk exists would require that at least one juror had visited the website and read the relevant blogs, will be prejudiced against the applicant because of the same, will not comply with his/her oath as a juror and will not comply with the charge of the trial judge. The applicant fails on this ground.

Ground 5
The learned trial judge erred in fact and in law in finding that Ms. Linda McKeown was a hostile witness and in permitting counsel for the prosecution to cross-examine her. The learned trial judge’s discretion to allow such cross-examination was wrongly exercised in such exceptional circumstances as to require it to be reviewed on appeal.

Ms. McKeown is the applicant’s partner and they have five children. Counsel for the prosecution requested and was granted a voir dire in anticipation of Ms. McKeown giving evidence in conflict with answers given by her in questioning after caution. In the course of the voir dire she made it clear that such a conflict would indeed arise. Her evidence in the voir dire was that she had been threatened, verbally abused and put under pressure by Gardai and that it was in this context she answered questions at interview.
A hostile witness is a witness who at some point after he is sworn appears unwilling, if called by a party who cannot ask him leading questions, to tell the truth and the whole truth: R. v Hayden and Slattery [1959] V.R. 102 at 103. As in this case, the issue tends to arise where the witness’s testimony under oath diverges in a material way from an account provided earlier in a pre-trial statement. A trial judge’s decision as to whether the witness should be treated as hostile or not is based to a large extent upon a live impression of the witness’s demeanour and credibility and appellate courts in the absence of clear error are reluctant to substitute their opinion for that of the trial judge. In the present case a detailed examination of the witness took place and evidence was also received from her solicitor and three garda witnesses. At the conclusion of the voir dire the learned trial judge gave a detailed ruling in which he analysed the evidence which had been adduced. He records his impression of the witness in the box that she is alert, intelligent, assertive and capable of standing up for herself in what is clearly an alien environment namely the witness-box. He had regard to the specific nature of the detail which she provided in the interview in answer to questions. He formed the opinion that the witness was not willing to tell the truth or the whole truth in her evidence and accordingly acceded to the application.
This court can find no error in the manner in which the learned trial judge approached the voir dire. The learned trial judge had the benefit of observing the witness in the witness-box throughout a protracted examination and cross-examination. Such observation must be a major factor in the determination of the issue as to whether a witness is hostile or not. This court has not the opportunity of observing the witness and should be slow to substitute its view for that of the trial judge in his decision on the exercise of his discretion.
The applicant fails on this ground also.

Ground 6
The learned trial judge erred in fact and in law in refusing to exclude the evidence of the garda interviews with the applicant on the ground that they were not video recorded.
When the applicant’s solicitor attended at the Dundalk garda station, he made it clear that he objected to the applicant being interviewed without the interview being video recorded. No video recording facilities were available in Dundalk garda station.
Counsel for the applicant relied in his submissions on The People (DPP) v Connolly [2003] 2 I.R. 1, The People (DPP) v Michael Murphy, unreported, Court of Criminal Appeal (Kearns J.) 5th May 2005 and The People (DPP) v Diver, unreported, Supreme Court (Hardiman J.) 29th July 2005.
In the first mentioned case Hardiman J. at pp. 17-18 said –
“It is clear from the history of legal and legislative concern with uncorroborated confessions over a period of nearly two decades that legislators and judges alike have emphasized the importance of the audio visual recording of interviews. This is routine in most first world common law countries. Its failure to become routine, or even remotely to approach that status in this country, nearly twenty years after statutory provision for it was first made, has ceased to be a mere oddity and it is closely approaching the status of an anomaly. … 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 video 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 court has referred to and has considered the provisions of the Criminal Justice Act, 1984, s. 27 and the Regulations made thereunder and the Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations, 1997. S. 27(4) of the 1984 Act provides –
“(4) Any failure to comply with a provision of the regulations shall not by itself render a person liable to civil or criminal proceedings, and (without prejudice to the power of the court to exclude evidence at its discretion) shall not by itself render inadmissible in evidence anything said during such questioning.”
The evidence was that there were no video recording facilities in Dundalk garda station. There were such facilities in Carrickmacross some thirteen miles away but situate in a different garda division. There were facilities at Drogheda and Kells. To move the interview to either of those stations would have disrupted the investigation. The learned trial judge accepted that such disruption would be caused if the interview was moved and had regard to the circumstance that matters were transpiring on Christmas Eve, a busy family and social occasion. He ruled that the interviews were admissible in evidence.
This court notes that the events in issue here occurred on the 24th December, 2003 the judgment of the Court of Criminal Appeal in The People (DPP) v Connolly having been delivered on the 7th May, 2002. However, the trial judge carefully considered all the circumstances having heard detailed submissions and ruled that the statements were admissible. The Act of 1984 s. 27(4) explicitly provides that a failure to comply with a provision of the same shall not by itself render inadmissible evidence. This is without prejudice to any power of the court to exclude evidence at its discretion. The learned trial judge clearly took the view that the disruption which would be caused by moving the investigation to a different garda station justified the interviews being conducted in Dundalk garda station without video recording. He took into account that the relevant events occurred on Christmas Eve and that day and days following were an important family holiday and that it would be difficult to pursue the investigation vigorously on those days: disruption should be avoided. He considered these factors to outweigh the circumstance that video recording facilities were available at other garda stations. This court is satisfied that the learned trial judge properly exercised his discretion in this regard and that such exercise should not be interfered with.
The applicant fails on this ground also

Ground 7
The learned trial judge erred in fact and in law in failing to direct the jury that counsel for the prosecution’s repeated statements in addressing the jury as to “reasonable doubt” were incorrect and that it was clearly conveyed to the jury that such a doubt should be of sufficient weight to be decisive in an important matter as opposed to being of sufficient weight to cause significant pause for thought or a delay in the making of an important decision.

Both before the learned trial judge and before this court, counsel for the applicant objected to the manner in which counsel for the prosecution addressed the jury both in opening and closing on the question of reasonable doubt. While it is appropriate to look at the entirety of the opening and closing speeches on that issue and also at the learned trial judge’s charge we propose to set out the passages to which exception is taken. In opening the case, counsel for the prosecution said –
“There are some of us who are worriers and are not capable of making any decision. The role of the jury is not to be, so to speak, the worrier who can never make a decision about anything, for if that were so the jury would say ‘well there is evidence one way in this case, there is evidence the other way so therefore I must have a doubt so I must acquit.’

That is not the role of the jury. The jury’s role is to assess the evidence and see whether it amounts to proof beyond reasonable doubt. As I say in relation to unreasonable doubt, some of us are familiar with these sort of doubts. The sort of niggling doubt we might have if we went off on holidays and think that, even though there is no rational explanation for it, we might have left the gas on or all the lights on in the house. These are the sort of niggling things that are not based on any reason. Again, this is all subject to the direction of the judge in relation to the case. My view of the law, a reasonable doubt is, of course, a doubt which is based on a sound reason which when you analyse the reason simply will not go away.”

Again, he dealt with reasonable doubt as follows –
“A reasonable doubt, if I might paraphrase it, is something which gives you pause to stop and not make an important decision in your life. For instance all of us when we get married or again move a child from school or whatever may have some doubts in relation to that decision. If on the other hand we, having considered and weighed up all the pros and cons, come to that decision and, so to speak, put the doubts aside and are satisfied to make the decision, notwithstanding our residual doubts we have, we can regard those perhaps as not reasonable doubts. That would be an example of the standard of proof beyond reasonable doubt. If you are satisfied to that extent then your duty is to convict, if you are not satisfied, by the same token, your duty is to acquit. So the jury in the case have to look at the matters objectively and weigh up the evidence.”
In closing, counsel for the prosecution had this to say –

“By the same token, we may proceed with a decision and in that case, we may be said to have our doubts, we may still have doubts about it, but we may have decided, look, these doubts are not so reasonable that I am going to not make the decision, so therefore despite of my doubts I am proceeding and I am putting whatever residual doubts I have in the category of not reasonable.”
And –
“We all understand, in a decision-making process, that there are people amongst us and we have encountered them all ourselves, who are worriers and who are not capable of making decisions. Unfortunately, the role of the jury in the case does not allow that. What the jury are asked to do in relation to the case is to weigh up the evidence and come to a decision if that is possible.”
And finally –
“You will appreciate that there are many classes of doubt, which are not reasonable. Again, we are all, I think, to some extent plagued by unreasonable doubts. The worry of what if I wake up in five or six year’s time and I feel that I have done the wrong thing. The worry that we may have gone off, as I say, on our holidays leaving the gas on, the lights on, everything on. These are the sort of unreasonable doubts that do plague people. They are not the basis on which obviously the jury is asked to come to its decision. What is a reasonable doubt, in other words, is not that sort of fanciful doubt and it is not what I would describe as a manufactured scruple.”
Counsel for the applicant dealt with reasonable doubt in the following terms –
“It’s not something that … it is not theoretical or fanciful. It’s if you were to consider … the description was given of moving house or moving your job or moving your child from one school to another. It’s a doubt that would give you significant pause for thought, if you have that kind of consideration about it, then you have a doubt about that kind of decision. If you have that kind of doubt in relation to the allegations against the defendant, or indeed in relation to any aspect, any particular step of the allegation then you have a reasonable doubt and it is not as if it would stop you making a decision. If you have a doubt that stays with you that gives you pause for thought, your obligation is to presume the defendant, presume that in favour of the defendant.”
The learned trial judge in his charge dealt with the issue as follows –
“Now, both counsel have given you examples of what is a reasonable doubt and I agree with their examples. It is a doubt which continues on in your mind when you are addressing something of importance as significant to you in you own life, in your business life, in your family life or whatever, something to do with the children, an important decision you may be having to take, whether you move them from school or let them go or go to the same school or whether you decide to remortgage the house and raise money, let’s say, or whether you decide to move house, buy a car or not, or whatever, some important, and we all have to do these things and big things in our life. If you approach such a problem or an issue rather, not a problem so much, an issue in your life as to whether you should or should not do something of that kind and you think ‘I think we’ll raise the money and get a second mortgage’ or something like that, but you are not entirely satisfied, you are not at rest, you are not completely content in your mind; then that is what is considered by the law to be a reasonable doubt. It is a doubt based on reason, reason in the sense of a good reason or a good basis for having that residual feeling of unhappiness. Now, if you have any doubt in relation to the salient features of the case that have been proved or claimed to have been proved by the prosecution, of that kind in your mind, if you have some tug like that then that is a reasonable doubt. That means that the State has not proved the case in that particular or if it is in relation to the whole, beyond a reasonable doubt. ‘Beyond’ means so as to exclude or eliminate from your mind a reasonable doubt.

Counsel have said correctly that it is not a whimsical doubt we are talking about, it is not mathematical certainty. That is not what the obligation is on the State. It is to do with the kind of decision that I have already referred to. If you do have a reasonable doubt, then so be it, that is a reasonable doubt and the State has failed to prove its case in that regard and the presumption is, and I hope by now you know what I am going to say, the presumption is that Mr. Cunningham is innocent or in relation to the salient element in the case, you take the more favourable view of that given that the State has not established in that regard its case beyond a reasonable doubt.

It is sometimes, and I think incorrectly, described as giving the accused the benefit of the doubt. It is not a benefit: it is a right as I have already mentioned. So you are not doing any favours. You are not being a generous jury, as opposed to being a mean or a liberal as opposed to being a conservative. That doesn’t enter into the law, it’s a right and it’s the law. So that is the way you solve or make the decisions if it comes to a question of doubt. Then the benefit applies and you take the most favourable view of it.”
Counsel for the applicant raised a requisition specifically directed to the references to “worriers” and which the learned trial judge appeared to accept as appropriate in his charge when he stated that he agreed with the examples given by both counsel other than that the charge was not objected to. In response to the requisition, the learned trial judge addressed the jury to the effect that they must be satisfied in regard to a proposition advanced by the defence. They must ask themselves whether it might reasonably be true and if they feel it might then that is a reasonable doubt and their obligation is to find for the version favourable to the accused.
Counsel for the applicant in this court was concerned about the references by counsel for the prosecution to “worriers”. The references are perhaps not particularly helpful to a jury but taken in the context of the prosecution’s opening and closing as a whole and the judge’s charge as a whole, this court is satisfied that they are not objectionable. Again, objection was taken to counsel for the prosecution’s categorisation of the doubts as doubts which prevent a decision being taken as opposed to, as counsel for the defence suggested, doubts which would linger even if the decision was made. Again, taking the prosecution’s opening and closing as a whole and the judge’s charge as a whole it is quite clear that the it was made clear to the jury that they should have regard to reasonable and not to unreasonable doubts. This courts concern is with the judges’ charge as a whole and whether he properly explained the standard of proof: The People (D.P.P.) v Kelly Court of Criminal Appeal 21st March 2001 McGuinness J. The court is satisfied that the learned trial judge appropriately explained the standard of proof.
The applicant fails on this ground also.

Ground 8
The learned trial judge erred in fact and in law in refusing to direct a verdict of not guilty at the close of the prosecution case.

In support of this ground, the applicant relies on all submissions made at the trial. This court has considered the same in full and is satisfied that the case was an appropriate one to be left to the jury.

Ground 9
The learned trial judge erred in fact and in law in failing to recharge the jury adequately and in accordance with the following requisitions made on behalf of the appellant –
(a) The weight to be attached to the video evidence that was available by way of CCTV footage.
(b) To the absence of video recording of the interviews with Ms. McKeown.
The jury were shown a video taken within a public house and several street videos. The learned trial judge did not, in the course of his charge, make any reference to the weight to be attached to the videos. On behalf of the applicant, it was submitted to the learned trial judge that the jury be recalled and that they be informed that the video should be considered ancillary to oral evidence. The learned trial judge did not accede to the requisition. Having carefully considered the transcript of the evidence given in relation to the video, this court is satisfied that it was a matter for the jury to attribute weight to the video evidence and that a direction from the trial judge was not required in this regard. Ms McKeown’s interviews were conducted under caution. However in the applicant’s trial she was a witness only. There is no requirement that an interview with a witness should be recorded on video. The applicant fails on this ground also.
The appeal pursuant to certificate is dismissed and leave to appeal on the other grounds is refused.

 

McCormack v DPP

[2008] 1 I.L.R.M. 49

JUDGMENT of Mr. Justice Charleton delivered on the 17th day of April, 2007

1. On Sunday 4th of July, 2004, Renata Bubeniene drove into the city centre from Lucan and parked her car. As she was walking along Amiens Street, a young man came along and yanked her handbag out of her possession and ran away towards Buckingham Street. She reported the crime to Store Street Garda station and described the culprit. As it happened, the applicant had been seen by Garda Wayne Kelly, some fifteen minute before this incident had occurred, on Amiens Street. The clothing of the applicant matched the description given by the victim. Shortly after the complaint, the applicant was seen by the gardaí and, fitting the relevant description, he was arrested. He was cautioned in accordance with the Judges’ Rules and taken to Store Street Garda station. There, he was detained pursuant to s. 4 of the Criminal Justice Act, 1984, and was required to undergo two periods of interviews by gardaí. These were conducted in accordance with the Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations 1997. The accused denied the offence. On being charged, he was granted bail and the case was set for trial before the Circuit Criminal Court. The trial has not yet taken place.
2. On 20th June, 2005, Kevin McCormack was given leave by the High Court to commence an application for judicial review. In these proceedings he seeks to restrain the respondents from trying him on the offences with which he is charged. His grounds are that the gardaí failed to properly conduct and make a written record of the interviews they had with him while he was briefly in custody when arrested on this matter; and that his right to a fair trial has been seriously undermined by reason of the failure of the gardaí to preserve all closed circuit television footage taken from security cameras in or around the place where the crime occurred.

3. The Video
The applicant argues that the video evidence of the two Garda interviews with him discloses a “disgraceful situation”. In the video recordings, it is claimed, derogatory comments are made about the accused and about his solicitor. The questioning of the gardaí, it was alleged, was littered with profanities. To make matters worse, I was told, one of the gardaí used the time when he should have been concentrating on interviewing the accused to practice playing yo-yo. A legal issue also emerged. It was said that an accused person on arrest has an entitlement to be given a chance to make his case; and that the unstructured and chaotic nature of this interview deprived the accused of an opportunity to make on video his answer to the charge of handbag stealing. His case in defence was, his counsel told me, that he was indeed in Amiens Street in or around the relevant time but that, by the time the offence had been committed, he had gone to his granny’s house to have dinner; in consequence, he did not commit the offence.
4. It might be regarded as unusual for an accused, even in the form of an applicant for judicial review before the High Court, to claim that the gardaí should give him an opportunity to present his defence. The rule in criminal cases is that the accused, subject to some very limited exceptions, is not obliged to make any case in defence of a criminal charge and the prosecution, in general, are not entitled to know what the defence case is unless a statutory exception applies, such as that related to the notification to an alibi. There is a growing practice, however, of persons arrested for crime to use the opportunity of being questioned in Garda custody to deny the offence. Sometimes the statements made will be entirely self-serving but may, nonetheless, subject to the discretion of the trial judge as to the admissibility of confession evidence, be presented as part of the prosecution case. In The People (D.P.P.) v John Clarke [1995] 1 I.L.R.M. 355, the trial judge hearing a murder case, had told the jury that a mainly ex-culpatory statement made in Garda custody by the accused, was not evidence as to fact, but merely evidence of what had been said to the gardaí. The Court of Criminal Appeal, relying on The People (A.G.) v. Crosbie (1961) 1 Frewen 231, held that a statement of the accused, once put in evidence by the prosecution, is to be treated as evidence of the facts stated. I quote at p. 367:-
“The true position in law, as established by that case, and which we take this opportunity of reiterating is that once a statement is put in evidence, as in this case by the prosecution, it then and thereby becomes evidence in the real sense of the word, not only against the person who made it but for him as to facts contained in it favourable to his defence, or case. A jury is not bound to accept such favourable facts as true, even if unrefuted by contrary evidence, but they should be told to receive, weigh and consider them as evidence.”
5. The Court of Criminal Appeal did not comment adversely or at all on the instruction of the trial judge to the jury in that case that such evidence should be weighed by them bearing in mind that such a statement was not sworn or subject to cross-examination. This is, to my mind, a correct direction. It can perhaps be wrong for the jury to be asked to consider a long series of entirely ex-culpatory statements by the accused. In rape cases, this practice can lead to an imbalance in the proceedings. The rule that statements by an accused person were admissible in evidence was grounded on an exception to the hearsay rule that an admission against interest should be considered by the tribunal of fact. A self-serving statement does not fall within that exception, but the vast majority of cases of this kind, as in Clarke’s case, are mixed; proving, if accepted, some facts for the prosecution and asserting a defence for the accused. In rape and sexual assault cases, the accused may use the opportunity of every interview to reiterate, for instance, that his encounter with the alleged victim was consensual.
6. Must all of these be repeated in evidence in front of the jury? Where the alleged victim apparently comes at the first opportunity that reasonably presents itself and complains freely that he or she has been raped or sexually assaulted, it is usually only the first complaint that is admitted in evidence; and that solely to show the consistency of the case being made by the complainant. This rule is an exceptional one and it only applies in sexual assault type cases. To allow the repetition of the complaint, under the doctrine of recent complaint, as it is known, would be to infringe the rule against self-corroboration. It is difficult to know how an accused’s statement should be subject to any different rule if admitted in evidence. The control of this, in the interests of fairness, must be a matter for the trial judge.
7. In The People (DPP) v. John Lawless (Unreported, Court of Criminal Appeal, 29th November 1985), the accused argued, at a time prior to the enactment of the Criminal Justice Act, 1984, (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987, that he had not been brought before a court and charged at the first reasonable opportunity. This occurred, it was argued, because the gardaí, instead, used the opportunity of having him in custody, upon his arrest in apparent possession of heroin, to put to him the material recovered from the sewer leading from the flat from where he was arrested in order to obtain a reaction; possibly amounting to an admission. McCarthy J., at p. 8 of the judgment rejected an argument that the accused should have been brought before a court, instead of being questioned, and stated as follows:
“The mere production of an exhibit, indeed of the critical incriminating articles found in or about the premises where the accused was arrested, whilst awaiting arrangements to bring him before a court or a judicial officer is in no way a breach of that duty; it might forcefully be suggested that it would be unfair to the accused not to produce these incriminating articles to him at the earliest possible opportunity.”
8. The duty of the gardaí in investigating crime is to act reasonably and practicably so as to attempt to gather together such statements, and items of evidence, as may assist in a true judgment in the case; Ludlow v. The DPP [2005] IEHC 299. In consequence, on arresting a suspect it is fair for the gardaí to put forcefully to the accused such portions of the case as might reasonably suggest suspicion. The accused has a right to silence and evidence of an admission is not admissible unless it is proved by the prosecution to have been a voluntary emanation arising from the choice of the suspect; Re National Irish Banks Limited (No. 2) [1999] 3 IR 190. The legal burdens cast upon the police in investigating crime are sufficiently well defined. The police are entitled to make rational choices as to whether they put matters to a suspect or as to what matters they put to a suspect. It is not for this Court to determine how the police should go about investigations, apart from laying down general principles for their guidance. This has already been done in the cases cited and I would go no further. I would expressly hold that it is not the purpose of a police interview to enable the accused to make a case on video so that it can be played as part of the prosecution case in front of a jury. The accused has, for that purpose, the option of cross examining witnesses at trial, of calling evidence or of giving evidence himself or herself. Whether an entirely self serving statement by an accused, that is repeated again and again, is admissible as to every repetition as an exception to the rule against self-corroboration, is a matter for the trial judge.
9. When one turns to the video, one also realises that the factual matrix contended for is absent. Firstly, the Garda is not playing with a yo-yo, or even practising yo-yo. What appears is that one of the two gardaí is swinging his arm, to and from his forehead and, then, backwards and forwards along the ground for a short period of the interview while his colleague is attempting to write down the somewhat breathless answers of the accused. At one particular point he may be playing with a piece of rolled up paper. That does not matter. Secondly, the accused is in fact given an opportunity to make a case and does so. The accused tells the gardaí, explicitly, that it is not his style to snatch handbags from ladies; that he has an alibi because he was in his granny’s for dinner; and that it does not matter that he was later picked out in an informal identification procedure because he did not commit the crime. All of this may be said in a piecemeal way but, when you put it together, it is all there.
10. Since the time when members of police forces were required, pursuant to the Judges’ Rules, to attempt to write down an accused person’s answer to an accusation, it has always been complained that this was done through a filter of “Garda prose” or that what was said is not accurately reflected in the written document; people, in general, speaking about seven times faster than they write. Now that tape recordings of interviews are available it has to be expected that interviews recorded on video will be either chaotic, laconic or otherwise reflect the real circumstances of conversation between people who may be under pressure of accusation, of work or of life. That is what these videos, in fact, reflect. I do not regard the language used, with the occasional profanity, as being beyond the norm that one would hear in this city at any time of the day or night. I do not think that saying that “any solicitor will advise a client to remain silent” degrades anyone. Nor do I regard the interview as being unstructured. In fact, it occurs to me that the gardaí were doing a good job of attempting to keep the accused to the point in his answers and of dealing with the material which it was necessary for them to deal with in the course of the interview. So, there was no opportunity lost to the accused supposing he wished to avail of it, and supposing he was entitled to it, and there was no abuse of his rights. Of course, the written note gets only some of what was said. The relevant rule requiring a written note is soon to be changed and, in any event, it was never the law that absolutely everything had to be written down by gardaí conducting an interview.
11. Lost Evidence
The sworn evidence of Garda Wayne Kelly was that he went to every relevant closed circuit television system that might have had a potential view of the handbag snatching incident and recovered the tapes. These were all viewed by himself and his colleagues in a Garda station. The incident was not captured, he has sworn, on any of the cameras.
12. An argument can arise at trial that the failure to preserve relevant evidence may cause a serious risk that a fair trial of the accused may never take place, notwithstanding appropriate rulings and directions to the jury by the trial judge. This is not such a case. If there is an issue as to whether Garda Kelly was telling the truth that he conducted his duties by acting reasonably and practicably to gather and preserve evidence that is matter for the trial judge. It is also a matter that can legitimately be used by the accused in cross examination.
13. In the course of his judgment in McFarlane v. The DPP [2006] IESC 11 at p. 17 Hardiman J. quoted with approval the following passage from McGrath on evidence (Dublin, 2004) at p. 691:-
“A material object is any object, the existence, appearance or condition of which is relevant to the issues in a case. Common examples would include the alleged murder weapon in a murder case, stolen goods in a prosecution for receiving stolen goods and the product in a products liability case. In general such objects are produced in court for inspection and examination by the Tribunal of Fact. However, where it is not possible or practical to produce the actual object, secondary evidence of it may be adduced. This may take the form of photographs or films of the object or the oral evidence of someone who had seen it.”
14. This principle, which I approve, applies expressly to this case. Objects which contain smudges, as opposed to fingerprints, do not have to be preserved for trial. Samples of body tissue or fluids from which it has been impossible to construct a DNA profile need not be preserved. In some cases, prudence might dictate that preservation would be a good idea, in order to lessen arguments founded on the non-production of particular objects. The obligation to act reasonably and practicably in gathering evidence relevant to a criminal prosecution does not extend, however, to the gardaí being obliged to preserve every useless exhibit or every item which has yielded no practical forensic result. Further, the gardaí having examined an object and photographed it, may be entitled to dispose of it; even when it be of assistance to the prosecution. An example of that is found in Bowes v. DPP [2003] 2 I.R. 25 where the Supreme Court held that it was not necessary for the gardaí to keep possession of a car in which drugs had been found. In that case, a description of the place where the drugs were concealed could be given, either orally or through a photograph. In this case, potentially in aid of the defence, Garda Kelly might be asked the question as to whether this incident was captured on any closed circuit television camera in the area, and his answer might be of assistance to the defence, or regarded as neutral. It might also show that he had done a professional job in this case. That would be my view, on the evidence before me.

15. Jurisdiction of This Court
This court has no jurisdiction to decide issues of admissibility at trial by way of an application for judicial review. Trial judges, whether in the Central Criminal Court, the Circuit Criminal Court or the District Court have the same responsibility in that regard. Their function is to apply the rules of evidence and to exercise judicial discretion in accordance with the relevant balance which the law requires in particular instances. The High Court has absolutely no function in deciding issues as to the admissibility of evidence, by way of an application for judicial review, in advance of a trial; Byrne v, Grey [1988] I.R. 31. This is so even though a discreet legal issue arises as to the validity of a warrant; Berkley v. Edwards [1988] I.R. 217. Those issues are to be disposed of in the court of trial. It is different if an issue as to delay causing a serious risk of an unfair trial. Denham J. in D.P.P. v O’C (P) [2006] IESC 54 said:-
“There is no doubt that the trial court has a general and inherent power to protect its process from abuse and that this power includes a power to safeguard an accused person from oppression or prejudice. However, this applies during the course of the trial and does not establish a right to a separate, discrete, preliminary process at the commencement of a trial to inquire into issues of delay. The correct procedure pre-trial is to make an application for leave to seek judicial review. It must be stressed that whether such an application for judicial review is granted or not, and even if such an application results in a refusal to grant an injunction or prohibition, the trial court retains its inherent power to protect its process and to make such orders as are necessary during the course of the trial. This includes orders arising from evidence or issues relating to delay.”
16. This case is classically one which might require rulings by the trial judge. It seems to me that there is no case to be made, on the evidence before me, that there is any Garda misconduct, or any lost opportunity or any failure to act fairly. These principles, in any event, are not isolated principles which stand alone as if the purpose of a criminal trial was to examine Garda conduct and not to try the accused. The purpose of a criminal trial is to test whether the prosecution have sufficient admissible evidence to discharge the burden of proof to the requisite standard. Any argument that might be made as to unfairness, or lost opportunity, must be placed squarely within the existing common law principles as to the rules of evidence where, I might add, they can only impact on any question as to admissibility of evidence in the rare cases where an appropriate discretion is vested in a trial judge; and there only in circumstances where the trial judge is bound to take these vague notions into account. The only relevant example is the limited discretion to exclude unfairly obtained evidence.
17. The jurisdiction of the High Court to prohibit a criminal trial should be exercised with great caution. In D.C. v. DPP [2005] IESC 77, Denham J. stated:
“However, bearing in mind the duty of the courts to protect the constitutional rights of all persons, in exceptional circumstances the court will intervene and prohibit a trial. In general such a step is not necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial. The basic assumption to apply in relation to all pending trials is that they will be conducted fairly, under the presiding judge. However, in circumstances where there is a real or serious risk of an unfair trial the courts will intervene so that a defendant may not be exposed to the commencement of the process, it being the assumption that should such a trial commence it will be stopped by the direction of the trial judge because of the real or serious risk of an unfair trial… Such a jurisdiction to intervene does not apply where the applicant has minutely parsed and analysed the proposed evidence and sought to identify an area merely of difficulty or complexity. The test for this Court is whether there is a real risk that by reason of the particular circumstances that the applicant could not obtain a fair trial.”
18. The burden of proof is on the applicant in asserting that a trial should be prohibited. The applicant must show that there is a real or serious risk that a fair trial has become impossible by reason of an occurrence which precludes a fair trial ever taking place notwithstanding the power, and duty, of the trial judge to make appropriate rulings as to the admissibility of evidence and to give appropriate directions as to the law to be applied in weighing evidence to the jury, or to himself or herself in the District Court or Special Criminal Court; Z. v. DPP [1994] 2 I.R. 476 at 506, Bowes v. DPP [2003] 2 I.R. 25 at 35. As Hardiman J. explained in Dunne v. DPP [2002] 2 I R 305, arguments are not to be advanced in judicial review that a risk of an unfair trial has occurred on a “remote, theoretical or fanciful possibility” basis. The duty of the High Court in considering an application for prohibition, or for an injunction in the case of a non-judicial officer, is to consider whether the applicant has discharged the burden of proof in accordance with this test; Mitchell v. DPP [2002] 2 I.R. 396.
19. The questions raised in this judicial review are ones correctly to be resolved by the law of evidence. The issues have nothing to do with the supervisory jurisdiction of the High Court.

 

The People (Director of Public Prosecutions) v Liam Towson

Court of Criminal Appeal

5 July 1978

[1978] I.L.R.M. 122
(ex tempore) (O’Higgins CJ, Finlay P and Costello J)

O’HIGGINS CJ

delivered the Judgment of the Court on 5 July 1978 saying: the court has considered this appeal which has been brought by the defendant against his conviction and sentence for the offence of murder. The appeal has been prosecuted here by his counsel, Mr MacEntee SC, pursuing the grounds of appeal which have been lodged in court. These grounds of appeal were some ten in number. One was not moved and the last was not really a ground of appeal and was not treated as such by counsel. The first two grounds of appeal were taken together and they related to the matter of the arrest of the accused. The facts were that the accused was arrested apparently in pursuance of the provisions of s. 2 of the Emergency Powers Act 1976, for the offence of being in possession of a firearm with intent to endanger life. Mr MacEntee SC has submitted that this arrest was unlawful and in argument he put forward three grounds for that submission.

First of all he submitted that in principle there is no legal justification for arresting somebody for a lesser crime when the true reason for the arrest is a more serious crime. Secondly, he submitted that the actual arrest effected for the offence stated was in itself bad because sufficient particulars had not been given. And, third, he submitted that in the circumstances and on the evidence in this case the effecting of an arrest under s. 2 was a device used by the garda authorities for the purpose of abrogating or frustrating the constitutional rights which the accused would have been in a position to exercise.

These submissions have to be understood in the light of the evidence in the case which was to the effect, and is admitted by the garda officers in charge of the investigation, that in fact the accused was wanted for the murder of Captain Nairac and that at the time and prior to his arrest the garda authorities had reasonable grounds for suspecting his complicity or involvement in that murder and also in the light of that state of mind and that knowledge, it was a positive decision on the part of the garda authorities to effect the arrest for the scheduled offence. And in these circumstances, Mr MacEntee SC submitted the real reason or motive for the arrest was not stated and, accordingly, this arrest was wrong in principle. In pursuance of his argument he relied on Christie v Leachinsky [1947] AC 573, which was an authority dealing with the arrest of a person for a stated reason, namely, an offence under a local statute affecting the city of Liverpool. In fact, the arresting police officers had sound reasons for effecting a common law arrest because they suspected the person arrested to have been involved in black market activities, receiving stolen goods. In fact, the arrest which was effected — the reason for it — was not within the local statute and therefore had no legal authority, and Christie’s case does not appear to have relevance here because the actual arrest effected in Christie’s case was an arrest which was not lawful and therefore it is understandable that the court would hold that, not having effected a lawful arrest which they could have, the arresting police officers could not cure something which was in fact devoid of legal authority. It does not appear to be an authority any further than that. In this particular case, there being a reasonable suspicion that the accused had been involved in or committed the murder of Captain Nairac by shooting him, that suspicion involved inevitably a suspicion that he was guilty of an offence of being in possession of a firearm with intent to endanger life. Accordingly, there was no spurious invention of some imagined offence; it was a correctly held suspicion of an offence arising directly out of the matter being investigated by the investigating officers. Accordingly, in the view of this Court, the arrest could not be faulted on that ground. It was an arrest which came within the terms of s. 2 of the Emergency Powers Act and, the offence being a scheduled offence, authority was given to effect an arrest if there were reasonable grounds for suspecting that such an offence had been committed.

Secondly, Mr MacEntee SC had submitted that that being so, if an arrest is an arrest under s. 2 of the Emergency Powers Act, in the particular circumstances effecting an arrest merely for being in possession of a firearm with intent to endanger life was not in itself sufficient, because sufficient particulars as to time and place were not given to the accused. Two things ought to be said in the view of the court in regard to that. The first is, as put by the late Chief Justice Maguire in In re O Laighleis [1960] IR 93 where in testing whether an arrest would be lawful or not he said: ‘The arrest will not be lawful unless the person being arrested is told why he has been arrested or unless he otherwise knows.’ That reason for knowing why you are being arrested is, of course, in order that the person arrested may be aware of his rights and may have regard to his rights in order to use them as speedily as possible to regain his liberty. If he is arrested under a particular statute it is, as in this case, possible that the statute itself defines what is to happen to him and what his rights are to be following arrest; and an arrest under the Emergency Powers Act enables him to know the period for which he may be detained without being charged and his rights in relation to being charged and where he is to be charged. In this particular instance the accused was told why he was being arrested; he was told that he was being arrested under s. 2 of the Act for an offence which was specified and which is covered by s. 2. In these circumstances the Court is of the opinion that all necessary particulars were given by the arresting guard in effecting the arrest and that the failure to state the time or the place was not in any way a defect in the arrest which was effected.

Thirdly, on this ground of appeal, Mr MacEntee SC has submitted that in the circumstances of this case, the reality being that this accused was wanted for murder — a specific, known murder — the use of the powers of arrest in the circumstances for the lesser offence was in fact a deliberate device to abrogate his constitutional rights, the point being made that murder being a common law offence, reasonable suspicion gave the authority to the gardai — indeed, to anybody else, but to the gardai in this case — to arrest, but if a common law arrest were effected it would have to be followed immediately by a charge, and there could be no detention or holding without charge as could take place under the Emergency Powers Act. Now in regard to that submission, which is very clearly put by Mr MacEntee SC, the position is that this is a power given by statute to the officers in this particular case, or in such a case, it is a power which is additional to other powers which they may have; it is a power which is given and which was exercised in this particular case under the authority of the statute. It cannot be urged with any reality that merely because in the investigation of an offence or, rather, a happening contemplated by the Emergency Powers Act, merely because a common law offence may have been committed, or an offence which is not a scheduled offence, that in those circumstances only an arrest in respect of that offence could be permitted. That submission would be to disregard the specific provisions of the Act which is an Act passed in contemplation of the Constitution, and by the Oireachtas under the powers given by the Constitution. It does follow that in exercise of a lawful authority given under s. 2 that rights which would be otherwise protected by the Constitution may in fact be abrogated or set aside. That is the effect of the legislation and it is not any reason why this Court would in any way interfere with or cast doubt upon what was done. Accordingly, in the view of the Court, grounds one and two fail.

Mr MacEntee SC then submitted under the fourth ground of appeal in relation to the oral statement, the verbal statement, made by the accused on Monday that the court ought not to have held in the circumstances that that was a voluntary statement proper to be admitted in evidence. Mr MacEntee SC admitted that to succeed, in effect, he would have to show that the court’s finding in this respect was perverse, that it was not a finding justified by the evidence and by the circumstances of this case. The Court has come to the conclusion that not only does that submission not commend itself to the Court but, on the contrary, that in the light of the evidence in this case and in the circumstances attending upon the making of that verbal statement the court was perfectly entitled to come to the conclusion it came to. Whatever might have been said about the statement at any other time during the course of the detention, the fact is that this particular statement was preceded by a period in which the accused was in bed resting until the morning, where he was washed and shaved and afterwards he received medical attention, and was seen by two doctors at his own request. He saw members of the family, his wife and his brother. He later, at his own request at about one o’clock, saw a priest. There was a period where, on the evidence, he was not harrassed or interfered with in any respect and in which the court was perfectly entitled to say there was no evidence of any kind of harrassment or oppression; and the court was affected by the garda evidence that he appeared to be relaxed and that he had not complained at all: when asked, he had no complaints to make. In these circumstances a finding by the court that the statement after that period before four o’clock on that date, whatever the precise hour may have been, that such a statement was voluntary; was not the result of any threat or oppression of anything of any kind; that it was not induced for any wrong reason, it is impossible for this court to conclude or to accept the submission that such a finding was perverse. Accordingly that ground of appeal does not succeed.

Mr MacEntee SC then argued together grounds three, five and six which dealt with the allowing of this statement as evidence in another way. It is his submission that by reason of the fact that this was a verbal statement, although for the purpose of this argument, admittedly a voluntary statement, but since it was verbal it offended Rule 9 of the Judges’ Rules because it had not been reduced to writing. Suffice to say that Rule 9 of the Judges’ Rules does provide that: ‘Any statement made in accordance with the above Rules should, whenever possible, be taken down in writing and signed by the person making it after it had been read to him and he has been invited to make any corrections he may wish.’ In the particular circumstances, that was not done and Mr MacEntee SC says that this is, in the circumstances, fatal to the admission of the statement. He did concede that, as is the law, the Court has a discretion as to whether in such circumstances to admit the statement or not. But he said that this discretion should be used grudgingly and, in fact, so grudgingly as to be very rarely exercised. With regard to that, I think it is proper to note that the purpose of Rule 9 is to prevent a particular mischief, and that is to prevent a situation in which invented or planted oral statements are adduced in evidence by the stronger side to the detriment and harm and injury of a weak and oppressed defendant; and it is to make sure that that kind of either intentional — or perhaps unintentional — difficulty about what words were said and how they were said, to prevent that that the rule is that a statement should be reduced to writing. But it is understood that there may be circumstances which may justify and explain why a statement has not been reduced to writing. This is where discretion comes in. It has been held that a proper exercise of the discretion to allow such statements is that the court is satisfied in the circumstances that there was a reasonable explanation why the statement was not recorded.1 In this particular case, the statement having been made, immediately afterwards the accused ex- pressed a desire to make a more formal statement that would be a statement in greater detail, a more formal statement which would be taken down in writing, and he named two officers to whom he wished to make such a statement. They were sought for but could not be found and by the time they could not be got it was too late to record the original statement. In the circumstances the court accepted that as an explanation for not taking it down in writing. In the view of this Court that was a reasonable exercise of discretion. In any event in this particular case, the first issue the court had to decide was whether in fact the statement had been made or not and, having decided on the evidence and having heard that the statement had been made, there was no question of any concocted or planted statement being in issue at the time when the question of exercising discretion came into consideration. For these reasons this ground also fails.

Mr MacEntee SC dealt with ground number seven which relates to the time at which the verbal statement was made. Suffice to say that this related to the alteration in the time recorded by the garda officer. The evidence was heard by the court. It is a question of credibility. The court accepted the explanation to be innocent and this Court has no function to interfere with a matter of that kind which is clearly a matter for the trial court, a matter of credibility.

With regard to the last ground argued, which was to the effect that there was no evidence upon which the court could act that Captain Nairac had in fact been murdered,2 in the view of this Court this submission is without substance. There was, first of all, sufficient circumstantial evidence in the broad context of this case and, secondly, a statement by the accused to the effect that he had shot and, reading the statement, shot and obviously killed Captain Nairac. Mr MacEntee put forward an ingenious theory which, while consistent with the statement, might possibly raise some question as to whether or not the person who was shot was really Captain Nairac. The Court feels that to approach this submission on that basis would be unsound. It is not to consider the bizarre or far fetched that cases of this kind have to be approached. There was, in the circumstances of this case, abundant evidence that this unfortunate soldier was killed and murdered. There is abundant evidence in this case that the accused admitted so doing and the court was perfectly entitled to hold that this very bad and cruel murder had been committed and that it had been committed by the accused. For these reasons the appeal is dismissed.

The People (Director of Public Prosecutions) v. Buckley

Finlay C.J. [1990] IR 14
C.C.A.

P
[In accordance with the provisions of s. 28 of the Courts of Justice Act, 1924, the judgment of the Court of Criminal Appeal was delivered by one of the members of the court.]

Finlay C.J.
31st July 1989

This is an application for leave to appeal against a conviction entered after the trial in the Special Criminal Court on the 24th June, 1987, of the applicant in respect of the offence of robbery.
Four grounds of appeal were submitted on behalf of the applicant but the issue arising in the case was in effect argued on ground no. 1 of those grounds, which was in the following terms:
“1. That the Special Criminal Court erred in law in holding that the alleged verbal admissions made by the applicant to Detective Garda Mahony and Detective Sergeant Kevin Dillon were admissible in evidence.”
The applicant was arrested pursuant to s. 30 of the Offences Against the State Act, 1939, on suspicion of having committed a scheduled offence under the Firearms Act, 1964, being the use of firearms in connection with the robbery. He was then brought to Tralee garda station and was interviewed by a number of members of the Garda Siochana.
Relevant to the issues arising in this case are three interviews. The first of those was an interview with Garda Hanley and Walsh, at which there was supplied to the applicant a statement alleged to have been made by one of his co-accused, Mr. Galvin. Upon being given that statement the applicant, on the evidence, asked the gardai­ to read it to him and they did so. After the conclusion of the reading the applicant asked the gardai certain questions concerning the statement and after that he was asked by the members of the gardai present to tell the truth. Having been so asked, he made the remark: “Haven’t ye got the story there?”
This verbal admission was ruled inadmissible by the Special Criminal Court on the grounds that the request by the gardai to the applicant after the reading of the statement by his fellow accused constituted an invitation to make a reply to that statement and that accordingly it was in breach of Rule VIII of the Judges’ Rules, and the court exercised its discretion to exclude it as evidence.
Shortly after that had occurred, two other members of the Garda Siochana entered the room in which the applicant was with the co-accused, Mr. Galvin. A conversation then took place between Mr. Galvin and the applicant, and this conversation was tendered in evidence. The Special Criminal Court held that the entry of Mr. Galvin into the room was a novus actus interveniens and that a new caution should have been given to the applicant, though he had been previously cautioned, and that in those circumstances certain statements made by the applicant which were incriminatory in nature should be ruled out of evidence as inadmissible. This interview had concluded at approximately 5.00 to 5.15 p.m.
A further interview then commenced at approximately 6.45 p.m. between the applicant and Detective Sergeant Dillon and Detective Garda Mahony. On the evidence as accepted by the trial court, the applicant was then cautioned and was asked to tell the truth about the Sunday night. In reply to that the following conversation took place. The applicant said: “Ye know all about that”, and, on being asked what he meant: “Sure Galvin told you who loaded the lorry. I’ll give ye no names anyhow.” He was then asked to tell his own part in the affair and his reply was: “You know I was on the job and I told the other two lads. It was hard luck that I was stopped so near that farm place.” He was then asked about the robbery and he stated: “I was there. Ye know that. I am saying nothing more about that.”
It is in respect of these last verbal statements at the interview commencing at approximately 6.45 p.m. which were admitted in evidence by the trial court that the whole issue on this appeal arises.
It was submitted on behalf of the applicant that by reason of the fact that the applicant had already, on two separate occasions, made incriminatory statements to other members of the Garda Siochana, in circumstances which have been ruled inadmissible by the trial court, this must be taken to have coloured the making of the subsequent statements, notwithstanding the intervening caution, and in particular, that he must no longer be considered to have had a free will in relation to whether or not he would admit guilt at the time of the making of these statements.
Reliance was placed on The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64; R. v. Meynell (1834) 2 Lew C.C. 122; R. v. Rue (1876) 13 Cox C.C. 209; and on R. v. Smith [1959] 2 Q.B. 35. Reference was also made on behalf of the respondent to the decision in the People (Attorney General) v. Galvin [1964] I.R. 325.
This court is satisfied that the cases to which reference has been made would appear to establish a principle that where an accused person makes a statement which is incriminatory in nature and has previously been induced to make a statement either by promise, threat or oppression, also incriminatory in nature, which is by that fact rendered inadmissible, the court must, in respect of the later statement, even though no immediate circumstances of oppression, threat or inducement surround it, have regard to the possibility that the threat or inducement remains so as to affect the free will of the party concerned and, therefore, the voluntary nature of the statement.
The court is, however, satisfied that very different considerations apply and arise in a case where a previous admission of guilt has been made which is rendered inadmissible, not by virtue of any oppressive circumstances, nor by the holding out of any inducement or threat, but rather by the exercise by the court of a discretion concerning a breach of the Judges’ Rules.
In this case the court is satisfied that having regard to the lapse of time and having regard to the uncontested evidence that, at the interview which commenced at 6.45 p.m. on the evening of the 2nd September the applicant was duly and properly cautioned, and that a very short time after that he made these incriminating statements, the Special Criminal Court was correct in reaching a conclusion that since they were not tainted by the continuance of any oppression, inducement or threat, and since the earlier statements had been ruled out on a different ground from that of inducement or threat, they were properly admissible in evidence. The court is satisfied that once that ruling was correct, there was sufficient evidence to support a conviction in this case and, accordingly, the application for leave to appeal must be refused.

McCarrick v. Leavy

Davitt P. [1964] IR 225
High Court.

 

DAVITT P. :
The essential facts of this matter appear to be as follows: the respondent was at all material times the owner of a motor taxi-cab whose registered number was IY 8222. On the 24th December, 1957, it was involved in a collision with a pedestrian under circumstances tending to show that the driver was guilty of the offence of dangerous driving contrary to s. 51 of the Road Traffic Act, 1933. The taxi-cab did not stop after the accident, but its number was taken.
The complainant, Guard McCarrick, ascertained that the defendant was owner of the taxi-cab and interviewed him at Clontarf Garda Station where he had come by appointment. The defendant was in due course prosecuted for offences under ss. 51 and 173 of the Road Traffic Act and the case came on for hearing before District Justice Walter Molony. Evidence of the facts I nave summarised having been given, Guard McCarrick said in evidence that when he interviewed the defendant he told him that he was making inquiries about a hit-and-run accident which took place on the night of the 24th December, 1957, in which a large black motor car bearing the registration number IY 8222 was involved. He said that he asked the defendant if he was the registered owner of the motor car, and that the defendant replied that he was. He then asked the defendant:Who was driving the car at the time of the accident?”
At this stage counsel for the defendant objected to the Guard giving evidence of the answer made by the defendant, as he had not received the usual caution. The Guard, on being questioned on the matter, said that at the time he put the question he had not made up his mind to prosecute the defendant. He said, further, that the reason why he had not made up his mind was that until he knew who had driven the car on the occasion in question he did not know whom to prosecute.
The learned District Justice, after hearing argument, decided not to admit evidence of the answer to the guard’s question on the ground that it would not be a voluntary statement. As there was no evidence connecting the defendant with the accident, he dismissed the complaints made against him. He stated this Case for the opinion of this Court and it came on for hearing on the 14th January, 1959, whereupon it was remitted to the District Justice for his finding of fact whether Guard McCarrick, at the time he asked the question, had made up his mind to prosecute the defendant.
On the 20th March, 1959, the learned District Justice supplemented the original Case Stated as follows:Guard McCarrick, on being questioned at the hearing before me as to his intention, said that he had not made up his mind to charge the defendant at that stage as he could not know against whom a prosecution would be taken until he knew who had driven the motor car on the occasion. Notwithstanding this, I felt that he had in fact meant to charge Patrick Leavy. I did not think he was giving a deliberately misleading answer because in my experience this reply is a stock one and is usually given in the form of an expostulatory question, albeit questioning is not permitted to a witness, as follows:’How could I make up my mind to charge him if I didn’t know who was driving the motor car at the time of the accident?’
The complainant had not at any time resorted to s. 177, sub-s. 4, of the Road Traffic Act, 1933; nor could I find any evidence that he ever even considered doing so.
The situation presented in this case is part of a pattern constantly arising in my Court and I most earnestly and most respectfully ask for a direction from the High Court.”
The learned District Justice says that he felt that, although the complainant did not intend to mislead him by his answer, he had in fact made up his mind to charge the defendant no matter what answer he received from him. The only ground he gives for this feeling is that the situation which developed is of common occurrence in his Court, and that Guards in the position of the complainant invariably answer questions similar to that addressed to the complainant by asking:How could I know whom I was going to charge until I knew who was driving the car?”
The learned District Justice did not allow the complainant to give the defendant’s answer in evidence. He assumed I am sure correctlythat it amounted to an admission, and decided that in the absence of the usual caution it should not be treated as being voluntary.
It is hardly necessary to restate the law as to the admissibility of confessions. A confession must be voluntary. That fact must be affirmatively established to the satisfaction of the trial judge. This is usually done by circumstantial evidence, by negativing any improper inducement, etc. Judges’ Rules were framed with the object of preventing confessions being improperly elicited from suspects by police officers. These Rules have been frequently applied and acted on here The rule relevant in this case is that which provides that where an officer has made up his mind to charge a suspect with an offence he should caution him in the usual way before he asks him any question. It was never intended that in making investigations as to who committed an offence a police officer should caution every person of whom he proposed to ask a question.
The issue as to whether the defendant’s answer to the complainant’s question was voluntary or not was one for the learned District Justice in his discretion to decide; and if he had exercised that discretion in a judicial way his decision, even if in our opinion erroneous, should not be set aside. It seems to me, however, that in this case the learned District Justice did not exercise his discretion in a judicial way. He has shown no grounds whatsoever for his feeling that the complainant had made up his mind to charge the defendant no matter what answer he gave. If the complainant had any evidence whatsoever connecting the defendant with the offences in question, other than the defendant’s answer to the crucial question, it would doubtlessly have been offered. None was offered. In these circumstances the only reasonable conclusion seems to be that there was no such evidence. If there was no such evidence I fail to see how, or why, on any basis of reason, the complainant should have made up his mind to charge the defendant when he had no evidence to sustain the charge. It seems to me that his explanation, that he had not made up his mind to charge the defendant because he did not know whom to prosecute until he knew who was driving the car on the occasion in question, is eminently reasonable. I do not see what other explanation he could give.
The learned District Justice, in his supplement to the Case, says that the complainant had not at any time had recourse to s. 177, sub-s. 4, of the Road Traffic Act, 1933; nor could he find any evidence that he had ever even considered doing so. The sub-section is as follows:
“Where a member of the Garda Siochana alleges to the owner of a mechanically propelled vehicle that an offence under this Act has been committed in relation to such vehicle by a person other than such owner, it shall be the duty of such owner to give to such member all such information in his possession or procurement as shall be demanded of him by such member for the purpose of the identification or the apprehension of the person by whom such alleged offence was committed, and if such owner fails or refuses to give to such member such information or gives any such information which is to his knowledge false or misleading such owner shall be guilty of an offence under this section.”
It is not easy to see clearly what relevance this had in the circumstances of this case. It applies only where a Guard alleges that an offence has been committed by some person other than the owner of the mechanically propelled vehicle in question. The complainant was in the dilemma that he did not know whether to allege that the owner of the taxi-cab was guilty of an offence or whether someone other than the owner was guilty.
In my opinion the complainant was perfectly entitled to ask the question which he did ask of the defendant. I can see no reasonable grounds for the District Justice’s feeling that he was not telling the literal and actual truth when he said that he had not made up his mind to charge the defendant at the time he asked the question.
In my opinion the learned District Justice did not exercise his discretion judicially and the question which he submits should be answered:No.”

From the above judgment the defendant appealed to the Supreme Court (1).
O’DALAIGH C.J. :
6 June

I concur in the judgment which Mr. Justice Walsh is about to read.

KINGSMILL MOORE J. :
I also concur.

WALSH J. :
During the hearing in the District Court of a charge of dangerous driving brought pursuant to s. 51 of the Road Traffic Act of 1933, the complainant, a member of the Garda Siochana, said in evidence that, in the course of his investigation of the matter and before the defendant had been charged, he had an interview with the defendant. During the interview he informed the defendant that he was making enquiries into the circumstances of the accident which gave rise to the complaint and he asked the defendant if he was the registered owner of the motor car involved and the defendant replied that he was. The Guard was then asked if he had asked the defendant:Who was driving the car at the time of the accident?” Counsel for the defendant objected to the witness giving in evidence the answer to this question on the ground that it was the duty of the witness to caution the defendant. The complainant was then examined on the question as to whether at the time he asked this question he had already made up his mind to prosecute the defendant. In reply to this the complainant said that he had not so made up his mind, but apparently the answer was given in such equivocal terms, to the District Justice’s mind, at least, that the District Justice came to the conclusion, as is stated in his supplementary Case Stated, that in fact the witness had already decided to charge the defendant. The District Justice then decided that the evidence which it was proposed to tender, namely, the reply to this question, was inadmissible on the ground that it would not be a voluntary statement. There being no further evidence offered by the complainant the prosecution was dismissed. Subsequently a notice of appeal by way of Case Stated on behalf of the complainant was served and the question on which the opinion of the High Court was sought was whether the District Justice was right in holding that the evidence tendered was inadmissible and whether he was, accordingly, correct in dismissing the complaint.
A certain confusion of thought seems to have arisen in the District Court when the question objected to was put. It seems to be quite clear that the objection which was taken in the first instance, namely, that it was the duty of the complainant to caution the defendant, and the subsequent examination of the complainant as to whether or not he had made up his mind to charge the defendant, was inspired by rule 2 of what are known as “The Judges’ Rules.” That rule reads as follows:
“Whenever a police officer has made up his mind to charge a person with a crime he should first caution such person before asking any questions or any further questions, as the case may be.”
The District Justice’s finding as to the state of mind of the complainant at the relevant time was that this rule had not been complied with; that is to say, the question had been asked without the caution having been first given to the defendant at a time when the complainant had already made up his mind to charge the defendant with the offence. The error into which the District Justice fell after so holding was that he accepted the submission made to him that this failure to comply with the Judges’ Rules in itself made the evidence inadmissible. That is not so. A failure to comply with the provisions of the Judges’ Rules gives a discretion to the trial judge to refuse to admit the evidence in question, but the exercise of that discretion is not governed by whether or not the statement is voluntary. A statement obtained in breach of the provisions of the Judges’ Rules is admissible provided it is a voluntary one. But the fact that it is a voluntary one does not take away the trial judge’s discretion to refuse to admit the evidence if it has been obtained in violation of the Judges’ Rules.
It was submitted in this Court on behalf of the complainant that the discretion of the trial judge in such a case is limited, but no submission was made as to the extent of such limitation. It was suggested that the observations of Kennedy C.J. in The Attorney-General v. McCabe (1) and which was cited with approval in the recent decision of the Court of Criminal Appeal in The People v. Galvin (unreported) did indicate that there are limitations imposed upon this discretion. The passage is as follows:
“It can be posited, however, that it is not the law that a statement must be excluded from evidence on the sole ground that either the statement was made in answer to questions put by a police officer or that it was made without a caution having been first administered. But in such cases it is a matter for the Judge at the trial to decide whether, in his judicial discretion, he will admit the statement or not, having regard to all the circumstances, and observing the legal requirement that the statement shall be voluntary, though not necessarily volunteered. He will differentiate between statements led to by questions put to a person not in custody for the purpose of the investigation of crime and the tracing and arrest of the guilty party and confessions resulting from questions put to a person in custody, not so much to clear up doubtful matters in a narrative by him as to trap him or put pressure upon him.”
While that passage deals primarily with the question of admissibility it is, in my view, an authority against the proposition in support of which it was advanced in this Court. In dealing with the absence of a caution the learned Chief Justice said it was a matter “for the Judge at the trial to decide whether, in his judicial discretion, he will admit the statement or not . . . and observing the legal requirements that the statement shall be voluntary . . .” As there is no discretion to admit a statement which was not a voluntary one the Chief Justice is quite clearly acknowledging the existence of the discretion to exclude the statement even when it is a voluntary one. There is, in my opinion, nothing in the passage quoted to indicate that the learned Chief Justice was fixing limits to the discretion to exclude the statement.
Mr. McCarthy, for the complainant, informed this Court that he could find no other authority for his proposition and I have not been able to find any such authority. The matter is not, however, without authority for the proposition that the discretion is not limited in the manner suggested. In Regina v.Bass (1), at p. 684, the following passage occurs in the judgment of Byrne J., who was giving the judgment of the Court of Criminal Appeal, composed of Lord Goddard C.J., Byrne and Parker JJ.:. . . this Court has said on many occasions that the Judges’ Rules have not the force of law but are administrative directions for the guidance of the police authorities. That means that if the rules are not complied with, the presiding Judge may reject evidence obtained in contravention of them. If, however, as Rex v. Voisin (2)shows, a statement is obtained in contravention of the Judges’ Rules, it may nevertheless be admitted in evidence provided that it was made voluntarily.” (See also the observation of Lord Goddard C.J., recorded at p. 682 of the report). Again, in Regina v. Smith (3) it is made quite clear that a Court has a discretion to admit or not to admit evidence which has been obtained as the result of an infringement of the Judges’ Rules.
It has been submitted by Mr. McCarthy on behalf of the complainantand, in my view, correctly submittedthat when it is sought to put in evidence some admission or statement by an accused person and where the circumstances warrant an enquiry as to whether or not the Judges’ Rules have been complied with, then the onus is upon the person tendering the evidence to show, for example, as in this case, that at the time the question was asked the police officer concerned had not already made up his mind to charge the person. The position in the present case appears to be that the District Justice came to the conclusion that the complainant had in face made up his mind to charge the person and that is the interpretation put by the High Court upon the District Justice’s statement of the facts. Having regard to the onus of proof which I have just referred to, I think, from the District Justice’s point of view, it is sufficient if the prosecution has failed to satisfy him that the complainant had not made up his mind to charge the defendant and that much, at least, certainly emerges from the District Justice’s statement of the facts. There does not seem to be any evidence to indicate that the statement was not a voluntary statement, but neither does it appear that that particular matter was enquired into at all. The position seems to have been that there was such a confusion of the Judges’ Rules with the question of whether the statement was voluntary or not that the distinction between these two matters was overlooked. If the Justice was not satisfied, as he does not appear to have been, that the complainant had not made up his mind to charge the defendant, then in the exercise of his discretion he is entitled to reject the evidence, without any inquiry into the question of whether or not the answer was a voluntary one, on the ground that the evidence was obtained in contravention of the Judges’ Rules. However, notwithstanding such contravention he is equally free to admit the answer or statement provided that he is satisfied that it was free and voluntary. To be a free and voluntary statement it must not have been induced by hope held out or fears or threats caused or used by or in the presence of persons in authority, and it lies upon the prosecution to establish that. I have not given an exhaustive definition of a “voluntary statement” and the cases on this subject are too well known to require any elaboration in this case. It is, however, sufficient to point out that non-compliance with the Judges’ Rules does not in itself render a statement inadmissible in law and that fact, in itself, does not establish that the statement is not a voluntary statement.
The learned District Justice was therefore wrong in holding that the evidence tendered was inadmissible in law on the ground that it was taken in violation of rule 2 of the Judges’ Rules. The case should go back to the District Justice to continue the hearing of the complaint. It is open to him in the exercise of his discretion to refuse to admit the evidence because it was taken in breach of the Judges’ Rules, but if in his discretion he decides to admit it he may do so provided that he is satisfied that it was a voluntary statement.

 

 

The People (Attorney General) v. Galvin.

Kenny J. [1964] IR 327
Court of Criminal Appeal.

KENNY J. :
2 Feb.

The accused, David Galvin, was tried at the Central Criminal Court before Mr. Justice Teevan and a jury on a charge that he murdered Elizabeth Gould on the 28th March, 1961, at Black Ash, which is near the City of Cork. The trial lasted fifteen days. The accused was found guilty and sentenced to death. The trial Judge refused an application made by counsel for the accused for a certificate to appeal. The accused now applies to this Court for leave to appeal.
The body of Elizabeth Gould was found on the morning of the 29th March in a field near a by-road. Her head had been beaten in by a number of blows and two blood-stained stones were found near her body. A pool of blood was found on the by-road and it was a reasonable inference from the evidence that a number of the blows were delivered when she was on the by-road and that her body was lifted over a stone wall and placed in the field. She had left her parents’ home in the City of Cork at 8.30 p.m. on the 28th March to visit a friend. At 8.50 p.m. on that evening she was seen on a street called Friars’ Walk when she was speaking to a man who was sitting on a bicycle which he had stopped beside her and there was evidence that she sat on the cross-bar of the bicycle and went towards the City of Cork. The accused knew Elizabeth Gould who was a relative of Miss Maisie Cremin to whom the accused was engaged and the three of them had met on a number of occasions at the Cremins’ house.
The Gardai suspected the accused of having met Elizabeth Gould on the evening of the 28th March in Friars’ Walk and thought that he knew the name of the person who met her later on that evening: they believed at this time that she had been murdered at about midnight. They arranged that the accused would call at the Garda station at Union Quay on the evening of the 5th April and a Miss O’Driscoll who had seen Elizabeth Gould speaking to a man on a bicycle in Friars’ Walk on the 28th March was at Union Quay in a police motor car. When she had left the car to obtain a better view, she recognised the accused as the man who had been speaking to Elizabeth Gould on the evening of the 28th March at 8.50 p.m. in Friars’ Walk. On the 7th April the accused, who was not then suspected by the Gardai of having killed Elizabeth Gould, made a written statement in which he stated that he had left a public house between 8.30 p.m. and 9 p.m. on the 28th March, that he cycled to Maisie Cremin’s house and remained there until 11.30 p.m. He also stated that he had cycled along Friars’ Walk when he was going to the Cremins’ house but that he did not meet or see Elizabeth Gould at any time on the evening of the 28th March.
The Gardai arranged that a number of young men, who were known to be associates of Elizabeth Gould, were at the Barrack Street Garda Station on the evening of the 8th April: the accused was one of those present. What has been called throughout this case an identification parade took place and Miss O’Driscoll picked out the accused as having been the man whom she had seen speaking to Elizabeth Gould on the evening of the 28th March in Friars’ Walk at 8.50 p.m.
When the identification parade had ended, the accused and another man were asked to remain in the Garda station and the accused was questioned by three of the officers who were investigating the murder. The purpose of what seems to have been a skilful and persistent cross-examination which began at 8.50 p.m. was not to induce the accused to admit that he had killed Elizabeth Gould but to get him to admit that he had met her on the evening of the 28th March and to tell the Gardai where he had brought her and the name of the person whom she had met. For this purpose the accused was asked to explain why Miss O’Driscoll should have identified him as being the man seen speaking to Elizabeth Gould if he had not been doing so and was also asked to explain a number of inconsistent remarks which he had made to members of the Garda Síochána. He was also questioned about what seemed to have been his peculiar reactions to the news of the murder. The Gardai had found out that Elizabeth Gould had had sexual relations with a number of men in Cork and they questioned the accused as to whether he had been one of these. At about 12.10 a.m. Inspector McMahon told the accused that he”should not be keeping us here all night and to tell the truth and be finished with it,” and, immediately after this, the accused put his head between his hands and said:Let me think.” He then said that he had met Elizabeth Gould that night and he started to draw a rough sketch of Friars’ Walk and the surrounding area. He said that he had been speaking to Elizabeth Gould for a few minutes: the questioning was then taken up by Sergeant Maher. The accused drew a second sketch of Friars’ Walk, threw down the pen which he was using, and said:It was I done it.” He was immediately cautioned by Sergeant Maher: he had not been cautioned before this. Some further questions which he answered were asked about the meeting with Elizabeth Gould and about the way in which he had killed her. At 1.30 a.m. Superintendent Flynn who had arrived at the Garda barracks again cautioned the accused that he was not obliged to say anything and that anything he did say would be taken down and used in evidence. In reply to this the accused said:I have nothing to say.”
When the accused had made this confession, an examination of his bicycle became important and Inspector Michael O’Riordan, who was in the Garda station in Barrack Street but who had not taken part in the interrogation of the accused, called at the accused’s home at 2.20 a.m. on the 9th April. He met the accused’s parents, who were in the living room when he arrived, and, when he had collected the bicycle, they came back to Barrack Street Garda Station with him. He had told them that the accused was detained in the Garda station. He did not ask them to come with him or suggest to them that they should come and they accompanied him at their own volition.
Inspector O’Riordan and the parents arrived at the Garda station at 2.40 a.m. and the parents were brought to the room where the accused was. There was a difference in recollection between the witnesses as to whether the accused’s father asked, “What is it?” or whether the accused said spontaneously: Father, they told you I killed the girl.” The accused’s father then said:Oh David, you didn’t, don’t, but you didn’t, did you” and the accused replied:I did it.” When the accused said this, Inspector Ainsworth, who was in the room, rose from the chair where he was sitting, pointed his hand towards the accused, and, having got his attention, said:Remember you have been cautioned, David.” The conversation then ceased for some time. The accused’s father then said:Why David,” and the accused replied:I don’t know.” The accused’s father then said:But you didn’t do it, did you?” and the accused replied:
“I did, go on home.” Some further conversation took place and the parents left the room at 2.47 a.m. After the parents left, the accused was heard to say:Why did I do it, oh why did I do it?” At 3.10 a.m. the accused asked if he would be allowed to go to bed; a bed was made up for him in the Garda station and he slept from about 4 a.m. until 10 a.m. the next morning. At 11.5 a.m. on the 9th April the accused’s parents again called to see him and in the course of the interview the accused’s father asked him:Were you out there, David?”and the accused replied:I was, Dad.” The accused was charged with murder before a Peace Commissioner on the evening of the 9th April and was remanded in custody. When the accused was coming down the stairs of the Garda station after he had been remanded, he shook hands with Sergeant Maher and said:You found me, you found your man.”
Counsel for the accused objected to the admission in evidence of anything said by the accused after the questioning of him began at 8.50 p.m. on the 8th April on the ground that the interrogation of the accused on the evening of the 8th April was of such a searching, persistent and prolonged nature that the confessions and admissions made by the accused were not voluntary. In the absence of the jury the trial Judge heard the evidence of the Garda officers who had been present at the interrogation and of those who had had custody of the accused. The taking of this evidence in the absence of the jury and the argument on the admission of the statements seems to have taken about six hours. It was not argued by counsel for the accused that any of the admissions made by the accused had been obtained by any inducement. His main argument was that the purpose of the interrogation on the evening of the 8th April was to “break down” the accused because he was suspected of the murder of Elizabeth Gould.
The trial Judge ruled that he would not allow the answers of the accused admitting that he had met Elizabeth Gould and the subsequent admission made by him that he had killed her to be given in evidence. The Judge’s view was that the accused may have thought that by admitting that he had met Elizabeth Gould on the evening of the 28th March he was admitting his guilt and that, as the interrogation about meeting her was of such a persuasive and prolonged nature, he was not a free agent when admitting this meeting, a meeting which he had previously so consistently denied. The trial Judge, however, admitted the whole of the conversations between the accused and his parents at 2.40 a.m. and at 11.5 a.m. on the morning of the 9th April, and also admitted the statement made on that evening to Sergeant Maher. Counsel or the accused has argued that the trial Judge was wrong in admitting in evidence before the jury the conversations between the accused and his parents because the statements made to the parents were so closely connected in point of time with the earlier admission that they should not have been admitted and because the accused would not have made the admissions which he did in the course of the conversations with his parents if he had not made the earlier admission. The dissenting judgments of Lefroy C. J. and Pigot C.B. in The Queen v. Johnston (1) were cited by counsel in support of his argument. At the invitation of this Court, counsel has also argued that the remark made by Inspector McMahon at 12.10 a.m., which indicated to the accused that the questioning would continue until he admitted that he had met Elizabeth Gould, was an inducement.
The admission in evidence of incriminatory statements has been the subject of numerous judgments and rulings which are not easy to reconcile, but as this case raises some unusual features and as it was strongly pressed on us that the dissenting judgments in The Queen v. Johnston (1) (and not the judgments of the majority) were a correct statement of the law, we propose to deal with the law applicable. We preface this by pointing out that there are two distinct issues involved: the first is whether a statement is voluntary in the sense that it has not been obtained from an accused person either by fear of prejudice or hope of advantage exercised or held out by a person in authority; the second is that even when a statement is proved by the prosecution to have been voluntary in this sense, the trial Judge may, in his discretion, refuse to allow the statement to be given in evidence when he is of opinion that the statement was obtained under circumstances of such pressure that it ceased to be one freely made. The two issues seem to us to be essentially different.
In Rex v. Gibney (2), which was an opinion of all the Irish judges on a reserved case, the prisoner was charged with the murder of his infant. The body of the infant was found in a field and the prisoner was brought to the field where the body lay. Before he was brought there the constable, in whose custody he was, told him that he had committed a terrible offence and that it was a terrible thing for a man to murder his own child. When the prisoner and the constable had left the field, the constable stated to the prisoner that he must be a very unhappy boy to have murdered his own child and asked him whether he had killed the child. The prisoner said he had done so. All the judges were of opinion that this confession was properly received in evidence. They held the rule to be well established that a voluntary confession is to be received in evidence but that if hope has been excited or threats or intimidation held out, it should not be: the fear to be produced, however, must be of a temporal nature and there was no such threat or intimidation nor any fear of a temporal nature produced by the constable’s remarks.
The Queen v. Johnston (1) was a decision of eleven Judges and has been described by Professor Wigmore as “the great case of The Queen v. Johnston ” (1). In that case two policemen spoke to the accused at Westland Row Station. One of them told her that they belonged to the police and that she had been described to them as having stolen boots from shops in the city. He then said to her that she was charged with committing a felony and asked her what she had in the parcel. He gave evidence that he would not have let her go but that he did not tell her this. He asked her what she had in the parcel, and, having taken it from her, asked her where she got the boots which were in it. She said that she had been made a present of them and the policeman then told her that he had seen her in a shop in Kingstown and asked her whether she had got them there. She then admitted that she had taken them out of the shop. She was then told that she was not bound to say anything that would incriminate her and that she was being arrested. The question of the admissibility of the statements made by the prisoner was reserved. Eight of the judges held that the admissions made by the prisoner were admissible while three were of opinion that they were not. Deasy B. (with whose judgment Fitzgerald J., Hughes B., Fitzgerald B. and Keogh J. concurred) held that statements made in answer to questions put by policemen are admissible in evidence against the person who made them even if the prisoner was in custody at the time when the statements were made, if they were not made under the influence of fear or hope. The same opinion was expressed by Ball J. and by Monahan C.J. in their judgments. Mr. Justice Hayes was of opinion that the statements, having been made at a time when the prisoner neither was in custody nor felt or supposed herself to be in custody, were admissible in evidence but expressed the view that, if the accused had felt herself to be in custody on a criminal charge, then the statements would not have been receivable unless prefaced by a caution. Mr. Justice O’Brien, one of the dissenting judges, was of opinion that the case must be treated as if the prisoner had been arrested at the time when she answered the questions and that answers by persons in custody to questions put by a policeman should not be given in evidence against a prisoner.
Pigot C.B. was of opinion that an answer made by a person in custody to a question put by all officer of the law was not voluntary because “the very act of questioning is in itself an indication that the questioner will or may liberate the answerer if the answers are satisfactory, and detain him if they are not.” In a later part of his judgment he said (at p. 124):In my judgment, the relative positions of the constable who has custody of the prisoner and of the prisoner who is in custody of the constable, negative the fact that the prisoner is a free agent. It rebuts any presumption that the prisoner’s statement is voluntary, and furnishes the strongest presumption that it is not. It is calculated to cause the answers elicited by interrogatories to be influenced by hope and fear.” Lefroy C.J. quoted a statement from Hawkins'”Pleas of the Crown” as authority for the principle that the law will not suffer a prisoner to be made “the deluded instrument of his own conviction.” He thought that the course of proceeding adopted by the policemen was but an ingenious stratagem which had the effect of making the accused the deluded instrument of her own conviction.
In Ibrahim v. Rex (1) Lord Sumner said when he was delivering the advice of the Judicial Committee of the Privy Council that it had long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. In a later part of the advice he said that the Board did not propose to intimate what they thought the rule of English criminal law in relation to statements obtained by questions put by members of the police to persons in custody ought to be, much as it was to be desired that the point should be settled by authority.
In Attorney-General v. M’Cabe (2) the Court of Criminal Appeal had to consider the admissibility in evidence of exculpatory statements made by the accused. The judgment of the Court was delivered by Kennedy C.J. who pointed out that it had been assumed during the argument that the law relating to exculpatory statements was the same as that relating to incriminatory statements and that the Court would proceed on that basis. The principal argument advanced against the admission in evidence of the statements in that case was that they were made in answer to questions by Garda officers. The first statement was made while the accused was a free man, but subsequent statements were made when he was detained on suspicion in a Garda station and before he was formally arrested and charged with the crime. The judgment contains the following passages (at p. 134):Though this matter has been much discussed with varying opinion for many years, it is somewhat difficult, and perhaps not desirable, to extract a general positive rule from the judgments and text-writers. It can be posited, however, that it is not the law that a statement must be excluded from evidence on the sole ground that either the statement was made in answer to questions put by a police officer or that it was made without a caution having been first administered. But in such cases it is a matter for the Judge at the trial to decide whether, in his judicial discretion, he will admit the statement or not, having regard to all the circumstances, and observing the legal requirement that the statement shall be voluntary, though not necessarily volunteered. He will differentiate between statements led to by questions put to a person not in custody for the purpose of the investigation of crime and the tracing and arrest of the guilty party and confessions resulting from questions put to a person in custody not so much to clear up doubtful matters in a narrative by him as to trap him or put pressure upon him.”
This statement of the law supports the view that a statement, voluntary in the sense already defined, is admissible in evidence but that the trial judge may in his discretion refuse to allow it to be given in evidence. In M’Cabe’s Case (1) there were five statements distinguished by the letters, “A,” “B,””C,” “D,” and “E.” The trial Judge had refused to allow the statement marked “B” to be admitted in evidence and the statement marked “C” was withdrawn by counsel for the Attorney-General. It was argued that the statements”D” and “E” could not be given in evidence as those lettered “B” and “C,” which were prior in point of time, had been ruled out or withdrawn, an argument similar to one of the arguments advanced in this case. The judgment of Kennedy C.J. contains the following passage (at p. 136):There is no substance whatever in the suggestion that once the statement marked ‘B’ had been rejected and the statement ‘C’ withdrawn to the knowledge of the jury, the statements ‘D’ and ‘E’ became thereby vitiated, and should not for that reason have been admitted.”
Counsel for the accused in this case relied on the decision of Gavan Duffy J. in The People (Attorney General) v. C. (2) in which a member of the Garda put to the accused twenty-five questions: these questions and answers were in a written document which was signed by a police officer and another officer.

The document was tendered in evidence by the prosecution and was rejected by the trial judge. The case is not an authority for the proposition that answers by an accused person to questions put to him by a member of the Garda are inadmissible in evidence and if the decision as reported means this, it is clearly wrong. In The People (Attorney-General) v. Murphy (1) the judgment of the Court of Criminal Appeal contained (at p. 241) the following passage relating to the judgment in The People v. C. (2):If the judgment of Gavan Duffy J. means that every statement, made by an accused person in answer to questions put to him by a police officer, is inadmissible in evidence, we are of opinion that it is inconsistent with repeated and uniform decisions of this Court and cannot be supported in law. If, on the other hand, it merely means, as it seems to us to mean, that the questioning may be of such a character and carried on to such an extent that the statements thereby evoked cease to be free and voluntary statements, it is clearly right and in accordance with well established rules of evidence.” The decision in The People (Attorney-Generalv. Murphy (1) related to the effect of an inducement as a result of which a statement was made.
In The People (Attorney General) v. Manning (3) a statement was made by the accused at 2.30 a.m. as a result of questions put by a member of the Garda Síochána. Counsel for the accused in that case objected to the admission of the statement at the trial but the statement was admitted in evidence. An appeal was taken to the Court of Criminal Appeal and the judgment of the Court contains the following passage:The first ground of the application is that the trial Judge was wrong in admitting as evidence a statement dated the 19th November, 1953, made by the applicant to an Inspector of the Civic Guards at his home, 7 Moore’s Place, Limerick, at approximately 2.30 a.m. on that morning. The objections to the admissibility of the statement are (1) that it is a confession, full of detail, (2) that it was taken at this early hour of the morning when, as alleged, the applicant was awakened when he was in bed, and in the presence of a number of officers of the Civic Guards, (3) that the applicant showed signs of having drink taken the night before, (4) that it was taken as a result of question and answer and that garments of the applicant were produced to him and identified by him. This Court is satisfied that the statement in question was taken in a proper manner, that it was voluntary and that it was properly admitted by the trial Judge.”
These cases establish that the views expressed in the dissenting judgments of O’Brien J., Pigot C.B. and Lefroy C.J., in The Queen v. Johnston (1), have not been adopted by the Court of Criminal Appeal and that the judgment of Deasy B. is a correct statement of the law with the modification that the modern cases emphasise that even when a statement is voluntary in the sense already defined, the trial judge may, nevertheless, in his discretion, refuse to admit it in evidence if he is of opinion that the circumstances (such as those referred to by Kennedy C.J. in The Attorney-General v. M’Cabe (2) show that the statement should not be admitted.
The trial Judge in the case decided to admit the evidence as to the conversation between the accused and his parents which took place at 2.40 a.m. on the 9th April on the ground that the admissions made by the accused in the course of that conversation were voluntary and spontaneous. It was not argued before him that the remark made by Inspector McMahon at 12.10 a.m. was an inducement affecting the mind of the accused at 2.40 a.m. and it is clear to this Court that it could not then have had any such effect. When the remark was made at 12.10 a.m. the accused was not in custody as he was not then a suspect, he was not being questioned as to any complicity in the crime of murder and had not been cautioned. Assuming that the remark to the accused was an inducement to him that if he answered the questions put to him he would be allowed to leave the Garda Station, the effect of such inducement had become spent long before his interview with his parents. At the time of the conversation with his parents at 2.40 a.m. the accused had been cautioned twice, had been told that he was being detained in connection with the murder and the questioning of him by the Gardai had ceased some hours before.
On the evidence before the trial Judge he could not have held that the remark by Inspector McMahon could have had any effect on the mind of the accused when making the admission which he did during his conversation with his parents at 2.40 a.m.
This Court is satisfied that the same considerations apply to the subsequent remarks made by the accused after his parents had left, to the conversation with his parents at 11.5 a.m. and to what he said to Sergeant Maher on the evening of the 9th April. Moreover, it is to be noted that the remark made to Sergeant Maher was made after the accused had been formally charged before a Peace Commissioner, again cautioned and remanded in custody.
It was argued that when the trial Judge had ruled out the earlier admissions, he was bound to exclude all subsequent admissions made by the accused because the later admissions would not have been made if the earlier admissions had not been uttered. Counsel cited the ruling in Reg. v. Rosa Rue (1)in support of this argument. In that case a child was found dead in a ditch: the child’s mother asked the accused, a servant girl, whether she had anything to do with the disappearance of the child. The mother held out an inducement to the accused as a result of which she made a confession; this confession was not admitted in evidence at the trial. Shortly after this confession the mother sent for a neighbour and told him of the confession. He then had an interview with the accused during which she made a further confession: he did not hold out any inducement to her. Denman J., after consultation with Kelly C.B., held on the facts of that case that the second confession was so connected with the original inducement that it was not admissible in evidence.
In this case, however, the ruling of the trial Judge that the challenged admissions were voluntary and unconnected with the earlier admissions is amply supported by the evidence and it is difficult to see how on the evidence before him the trial Judge could have taken any other view. The Judge’s ruling on this point is similar to that of the Courts Martial Appeal Court in R. v. Smith (2).
The grounds of appeal based on the admission in evidence of the statements made by the accused fail.
Another ground of appeal related to the admission in evidence of the events at the identification parade held on the 8th April. The Gardai had arranged that Miss O’Driscoll had an opportunity of identifying the accused before this parade was held. A number of suggestions were made by counsel for the accused to Miss O’Driscoll and to the Gardai witnesses in connection with the first identification: the substance of these was that the Gardai may have by some accidental motion or behaviour alerted Miss O’Driscoll when the accused was coming into her view. None of these suggestions was accepted by any of the witnesses. The events of the identification parade held at the Garda station on the 8th April were clearly admissible in evidence. The trial Judge in the course of his charge told the jury that the important identification was that made by Miss O’Driscoll on the 5th April and added that what happened at the identification parade on the 8th April followed from the identification on the 5th April. In effect the Judge invited the jury to direct their whole attention to the identification of the 5th April and to regard the identification parade of the 8th April as no more than an occasion to confront the person Miss O’Driscoll had identified three days earlier. The weight to be attached to the identification on the 8th April was a matter for the jury and we are satisfied that the trial Judge’s directions to them in this matter were adequate and fair.
It was argued that the trial Judge should not have continued with the trial because he was alleged to have expressed the view during the hearing of some evidence in the absence of the jury that the accused was guilty. The Court indicated to counsel for the Attorney General that they did not require to hear him on this point. The trial Judge did not at any stage say anything which indicated his belief in the guilt of the accused and the attempt to spell this meaning into some words used by the trial Judge is a misinterpretation of what he said. When the evidence was being heard in the absence of the jury in relation to the admission of the statements made by the accused, the trial Judge attempted to reconstruct the way in which the accused might have reasoned. He pointed out that the admission by the accused that he had met Elizabeth Gould in Friars’ Walk was, so far as the accused was concerned, the vital admission because the accused did not know that he was not suspected of the murder. From the transcript before us this Court has no difficulty in asserting its view that the remarks complained of were made by the Judge solely for the purpose of grounding a ruling upholding an objection to the admission in evidence of certain damaging statements made by the accused.
The grounds of appeal relating to the charge of the trial Judge to the jury occupied a considerable time. The first of these arose out of a passage at the beginning of the charge in which the trial Judge referred to the gravity of the charges made by counsel for the accused against the Gardai who investigated the murder. The Judge pointed out that none of these charges had been put to the witnesses against whom they were made. These charges were contained in the closing speech of counsel for the accused, a speech which was delivered after counsel for the Attorney General had summed up the case. A transcript of counsel’s speech is not available and its contents can be gathered only from quotations from it in the trial Judge’s charge and in the statements made by counsel on this appeal.
This Court does not wish to say anything which could be thought to restrict counsel in the discharge of his duty to his client. This Court, however, thinks it right to say that when serious charges are to be made against witnesses in a closing speech, a basis for them should be laid by examination or cross-examination and the witnesses against whom the charges are to be made should be given an opportunity of answering them. When this course has not been taken, a trial Judge may stop counsel making such charges in the course of his closing speech to the jury or may direct the attention of the jury to the fact that a basis for these charges has not been laid. The course to be taken when such a situation arises is a matter for the trial judge who has all the circumstances before him.
This Court has considered this ground of appeal most carefully and is of opinion that the way in which the trial Judge dealt with this matter cannot be regarded as having made his charge unbalanced or unfair.
The next ground of objection was that the case for the defence was not adequately put to the jury by the trial Judge. The principal defence seems to have been what was referred to as an alibi. It had two aspects; one was that the accused arrived in the Cremins’ house at 9.10 p.m. on the 28th March and spent the evening there and, therefore, could not have killed Elizabeth Gould at Black Ash; the second was that Elizabeth Gould was alive at 10.10 p.m. When the accused was interviewed by a member of the Gardai in the presence of Maisie Cremin on the 4th April, she said that the accused arrived at her home at 9.30 p.m. but at his suggestion she changed this to 9.10. In his written statement to the Gardai made on the 5th April the accused said that he was unable to state the time at which he arrived at the Cremins’ house. There are many references to the time element in the Judge’s charge and, though he did not gather together all the evidence about time in relation to the events after 8.50 p.m. on the 28th March, the Court is of opinion that the Judge dealt with this branch of the case in a satisfactory manner. There was abundant evidence on which the jury could hold that the accused arrived in the Cremins’ house at 9.30 p.m., that he had sufficient time to cycle with Elizabeth Gould on the cross-bar of his bicycle from Friars’ Walk to Black Ash, to commit the crime there and to be back in the Cremins’ house at 9.30 p.m. On the second aspect of this defence this Court has examined the trial Judge’s charge and is satisfied that the jury were adequately directed on this matter. The evidence on this topic may be briefly summarised: it was that at 10.10 p.m. on the 28th March a man was seen cycling into Black Ash with a woman on the cross-bar, but no witness purported to indentify the woman as Elizabeth Gould. The evidence of the witness who saw the man cycling into Black Ash at 10.10 p.m. was referred to by the trial Judge during his charge to the jury and when the jury were recalled at the request of counsel for the accused, the Judge read to the jury the evidence given by the witness. We are of opinion that this aspect of the defence was adequately put before the jury.

Complaint is also made that the Judge in his charge did not attach sufficient weight to the evidence of the Cremins that there were no signs of blood on the accused’s garments when he arrived at their house at 9.30 p.m. on the 28th March. The Judge told the jury that there were no signs of blood on the accused’s garments when he arrived at the Cremins’ house.
At the end of his charge the Judge told the jury what the principal defences were and he stated all the relevant facts to the jury in the course of his charge. Eighty-four witnesses gave evidence for the prosecution: the defence did not call any evidence. It was essential that the trial Judge should correlate the evidence given by such an unusual number of witnesses; when he was doing this, he drew the attention of the jury to the points made by the defence.
A further ground of appeal was that the trial Judge did not direct the jury that they might convict the accused of manslaughter. This Court indicated to counsel for the Attorney General that they did not require to hear him on this ground as there was, in the opinion of this Court, no evidence upon which the jury could find that the killing of Elizabeth Gould was manslaughter. Her head had been beaten in by a number of blows with a stone or stones and it was suggested that this showed that the killer was probably in a frenzy when he did it. Killing by a frenzied attack does not, without more, reduce the killing to manslaughter.
One of the witnesses in the District Court (Samuel Cremin) was unable to attend the trial at the Central Criminal Court owing to illness. His deposition was not read at the trial but counsel for the accused asked the Judge to allow the witness to be cross-examined on commission. The Judge refused this application. This Court is of opinion that the ruling of the trial Judge on this matter was correct as there is no way by which this could have been done.
One of the grounds of appeal which was not elaborated in argument was that the trial Judge did not give a proper direction to the jury as to the onus of proof. The Judge gave an adequate direction on this at the beginning of his charge and referred to it again at the end of his charge. Moreover, he referred to it on several occasions when reviewing the evidence for the prosecution. This Court is of opinion that the trial Judge dealt with the onus of proof adequately and, in certain respects, in a manner very favourable to the accused.
A number of other minor grounds of complaint about the Judge’s charge were advanced. This Court has examined all of them and is satisfied that there is no foundation for any of them.
This Court is of opinion that all the grounds upon which leave to appeal is sought are incorrect and that this application for leave to appeal fails.

 

The Director of Public Prosecutions v W. F.

The Central Criminal Court

1 October 1979

[1980] 114 I.L.T.R 110
Finlay P.

Finlay P.:

The issue in this case which I must ddetermine at this stage, I am determining in accordance with the practice that I think is correct and, though it is novel, may well be followed in other cases: I am determining it before the case has been opened to the jury, and after the accused has been arraigned, pleaded not guilty, and been put in charge of the jury. The issue is as to whether a written statement taken from the accused on the 12th January, 1978, and subsequent oral statements taken at the scene of this crime, are admissible in evidence. The issue is that the Prosecution must satisfy me beyond a reasonable doubt that the statements are true and voluntary: that is to say that they were not taken as a result of the offering of any inducement or the making of any threat, or under circumstances of oppression which would sap the free will of the accused when making the statements. On this issue I have heard the evidence of Detective Garda Carroll, of Garda Kiely and of the accused himself. There are points of difference in the evidence of the two Guards on the one hand and of the accused on the other; and not only am I satisfied that the Guards have given me the more credible account of what took place, but I reject the account given by the accused. Insofar as there are issues of fact arising before me, I am satisfied beyond reasonable doubt that, in substance, the true account of the events surrounding the taking of this statement have been given to me by Garda Carroll and Garda Kiely.

Very shortly, those facts are these: the offence was committed on the night of the 8th, into the morning of the 9th January, 1978, and consisted of the breaking and entering into and the burning of a building. At some time in the afternoon — probably about 5.30 of the 12th January, the accused, who was then fourteen years of age, was working in a coal yard, where he was employed for some months. He lived in the town of Newbridge and both his parents lived with him. The evidence before me indicates that on this particular day his father was working in Dublin and would be returning, and did return in the evening about 7 o’clock; his mother was available in Newbridge during the entire of the day. The uniformed Guard, Guard Kiely, came into the place where the accused was working and asked him to come outside to speak to him for a few moments. The accused got out. Garda Kiely who, I am satisfied, was in a car, not outside it, which was a Garda car — contained another uniformed Guard driving it, Garda Keogh — simply said to the accused that he wanted to speak to him concerning the investigations he was making and would he come down to the Garda Station. The accused did not object, but he did not agree either. In fact, he made — it is of some significance — no reply to that, insofar as that must be considered to be an invitation. Garda Kiely opened the door of the car and the accused got in and travelled to the Garda Station. He was told on the way down that they were investigating the burning of the Curragh Bloodstock Agency, and he was adjured or advised on the way down by Garda Carroll in the car, on the five-minute journey, to tell the truth.

He then arrived at the Garda Station and he was brought into a room towards the back of the Station. He went in with two Guards, one in uniform and one not, and was again told to tell the truth about the burning of Garda Carroll and Garda Kiely that over a period of something between ten minute and fifteen minutes that the accused was repeatedly told by both Guards that he should tell the truth. His first reaction was to deny any involvement in the burning of the building and thereafter to remain silent. On the evidence of the Guards his eyes then filled with tears and he then said he would tell the truth. Immediately he said that he was given a caution in the full legal form by Guard Carroll, i.e. he was told that he need not say anything, but anything he did say would be taken down in writing and might be given in evidence. But, unfortunately, immediately after that caution was administered, he was informed by the same Guard — a repetition of what he had been told before:— You should tell the truth — or tell the truth.

Thus, practically in one breath, he was cautioned — the purpose of which was to tell him he had two choices: one to speak and one to remain silent. At the same time he was immediately, by the same person, adjured to speak and to speak truthfully. After that a statement was taken from him.

I am satisfied on the evidence that there was not a hectoring or cross-examining situation in regard to that statement. Some questions undoubtedly were asked, but I do not think they exceeded the questions necessary to clear up matters or to keep the narrative flowing — taking the statement took something like an hour.

The first issue then before me is as to whether under those circumstances that statement should be admitted in evidence, having regard to the onus of proof that is on the Prosecution. In my view it should not. I am satisfied that in relation to a person of fourteen years of age, it is, in general, most desirable, in the interests of justice, that what I am satisfied is the usual procedure of the Garda Siochana be adhered to, and that, unless there are practical impossibilities arising that if that person of about that age is suspected of the commission of a crime, he should not be questioned or interrogated except in the presence of a parent or parents, or some person of an adult kind who is looking after him as an effective guardian. There are no reasons in this case why that course could not have been adopted, and, in my view, the absence of it raises a fundamental doubt in my mind as to whether the situation and circumstances surrounding the taking of the statement might not have been oppressive. That doubt is strengthened, if anything, by the very candid and, in my view, extremely truthful evidence of both these Guards, to the effect that immediately before making the statement, or commencing to make the statement, which is an admission of guilt, the accused’s face filled with tears. That means that a fourteen-year old boy started to cry. It is not unknown to the Courts that an adult or any peson may start to cry under interrogation, through remorse, through a feeling of depression at the situation into which they have led themselves; but there is at least as equal a chance, which I cannot put out of my mind, that this young man started to cry on this occasion because he was frightened. If he was frightened to the extent of crying, then his will and the freedom of his will to choose or decide as to whether he would make a confession of guilt or remain silent, as he was entitled to do, could not have been present.

In these circumstances and on those doubts having been raised in my mind, I am satisfied that this statement is not admissible in evidence and should not be admitted.

Exactly the same situation and circumstances and considerations apply, in my view, to the subsequent oral statements made at or near the scene of where this crime occurred. There does not appear to be any conceivable justification for not having awaited a visit to the scene of the crime until after the boy’s father, who was by then back in Newbridge from his work, had been obtained. There does not seem to have been any reason why that visit was necessary, in the interests of the boy, nor was it necessary, in my view, to do so without involving one or other of his parents. Whatever about the original situation, immediately after the making of the total confession of this crime there was a clear duty on the Garda Siochana, before involving the boy in anything else, to take him to his parents or to bring his parents to him, and then properly to charge him.

In these circumstances, I would rule as inadmissible both these pieces of evidence.