Detention for Questioning II

Cases

Denton v. Director of Public Prosecutions

, Supreme Court, October 29, 1998Denton v. D.P.P. [1998] IESC 30 (29th October, 1998)

Judgment (ex-tempore) delivered on the 29th day of October, 1998, by O’Flaherty J.

1. This is an appeal brought by the respondent, Alice Denton, from the judgment of Mr. Justice McCracken of 1st April, 1998, in regard to the answer that he gave to the first of two question which were put before him by District Judge David Riordan in the course of a case stated.

2. To set the background, I can go to the case stated in which all the relevant details are set forth in the clearest possible way. It is a great help for any appellate court to have a case stated so succinctly and so clearly.

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3. The learned District judge sets forth that he was hearing a case in the Dublin Metropolitan District on 1st May, 1996, in which the Director of Public Prosecutions was the prosecutor and Alice Denton was the accused. The charge laid against Miss Denton was that on the 22nd July, 1995, at St. Peter’s Road, Walkinstown, Dublin 12, in the Metropolitan District, she drove a mechanically propelled vehicle in a public place, while there was present in her body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in her blood exceeded a concentration of 80 mg of alcohol per 100 ml of blood. This was contrary to s. 49 (2) and s. (6)(a) of the Road Traffic Act, 1961, as inserted by s. 10 of the Road Traffic act, 1994.

4. The district judge then goes on to set forth the following facts which were proved or admitted before him:

(1) Garda Fergal Harrington of Crumlin Garda Station, Dublin was driving a patrolcar on the 22nd July, 1995 and at 4.30 am at St. Peter’s Road, Walkinstown, when he saw a red Ford Escort car, registration number 899 WZO, being driven from a garage forecourt onto St. Peter’s Road. It then turned right in the direction of Garda Harrington’s vehicle.
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(2) This vehicle was on the wrong side of the road and did not have any headlights on, although it was dark at the time. Garda Harrington flashed his headlights at this car and the car swerved to his right and came to a sudden and abrupt halt in the middle of the road.

(3) Garda Harrington got out of his patrol car and approached the driver of the car and asked her name and address. She gave her name as Alice Denton of 84 Palmerstown Woods, Clondalkin, Dublin 10. Garda Harrington asked her to explain her driving.

(4) At this stage, the driver became abusive towards Garda Harrington. He asked her to step out of the car. As she did so, she fell against the car.

(5) While talking to her, Garda Harrington got a strong smell of intoxicating liquor from her breath. He noted that her eyes were glossy and her speech was slurred. From this he formed the opinion that Miss Denton had consumed an intoxicant to such an
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extent as to be incapable of having proper control over a mechanically propelled vehicle in a public place.

(6) Garda Harrington then arrested Miss Denton under s. 49 (8) of the Road Traffic Acts, 1961 to 1994, for an offence under s. 49 (2) or 49 (3) of the said Act. He then informed her in plain English that he was arresting her for drunken driving. Garda Harrington stated that the time of arrest was 4.35 am on 22nd July, 1995.

(7) Garda Harrington placed Miss Denton in the rear of the patrol car and conveyed her to Crumlin Garda Station where he handed her over to Garda Jean Leahy for the completion of the custody record. The time of arrival at the station was 4.40 am.

5. The next part of the case stated deals with what took place subsequent to Miss Denton’s arrival at the garda station as regards the taking of the relevant sample and the result of the analysis when it came back from the Medical Bureau of Road Safety which showed a concentration of 156 ml of alcohol per 100 ml blood. Nothing turns on that sequence of events.

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6. An application to dismiss the case at the conclusion of the prosecution case was refused and the accused then gave evidence. She stated that her solicitor had been furnished with a copy of the custody record which had been completed at Crumlin garda station. This was handed into Court and the copy showed the time of arrest as being 4.25 am.. The custody record is something that is provided for in the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations, 1987; S.I. No. 119 of 1987.

7. A submission was then addressed to the District Judge which was to the effect that here there was a contradiction in the case. The guard had given the time of arrest at 4.35 am and here was the custody record showing a time of 4.25.am.

8. It should be stated that, of course, the custody record was not made out by the arresting garda. It was presumably made out by the officer in charge of the garda station at the time.

9. It was never put to Garda Harrington that there was a contradiction between his evidence and the custody record. That is the first thing to be said.

10. In any event, it was submitted to the District judge that here were these two contradictory matters that could not stand together and he was invited to say that he should have a reasonable doubt about the matter and this is what he found:

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“I informed the Court that in my view two different times had been proffered by the prosecution as to the time of arrest and that in the circumstances I had to allow for some room for doubt and accordingly I dismissed the prosecution.”

11. He then went on to recite:

“At the request of the prosecutor, I now state for the opinion of the High Court the following question of law:

(i) Whether in light of the evidence given before me and which was not ruled inadmissible, I was correct in law in holding that the Prosecution were proffering two different times for the arrest of the accused and, as a consequence, that the case must be dismissed?

(ii) If the answer to question (i) is ‘yes’ whether I was correct in law in ruling inadmissible the question posed to the accused by the solicitor acting for the prosecution and the answer of Miss Denton as to whether she accepted that Garda Harrington had given the correct time of arrest?”

12. In regard to this second question, this arose when a question was put by the solicitor representing the Director of Public Prosecutions along the lines apparent from the case stated. In the light of the clear opinion that I have

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formed as to how the first question should be answered it is not necessary to spend time on this question.

13. The learned High Court judge ruled as follows:

“What the judge had before him was first hand evidence of the guard that he stopped and arrested the defendant at 4.30 am and that is the only evidence before him. The custody record filled in an hour later is not evidence of what happened but only evidence of what was written by the member-in-charge. It is not evidence of the truth of what was written down. In the absence of specific evidence the custody record is not evidence. The district judge was bound to hold with the time in accordance with Garda Harrington’s evidence. The prosecution did not offer two different times of arrest. The district judge was therefore incorrect in law in holding that the prosecution did. Accordingly, the second question does not arise.”

14. He made an order that the District judge should enter into continuance of the case. I would uphold the essential finding made by the learned High Court judge. It seems to me that the submission advanced on behalf of the appellant is unsustainable. Leaving aside the quality of the custody record as evidence in the circumstances that it was not put to the garda – and I believe that would have been the correct way to approach matters – leaving aside the fact that it was not proved, and taking it at its face value, it did give a time of 4.25 am.

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15. Mr. Giblin, S.C., invites us to build on that and to say that if the judge was entitled to have a reasonable doubt about the time and that meant that the time 4.25 am as the time of arrest should stand. If 4.25 am is the accepted time, then the correct sequence must be that the garda arrested the woman before he had

formed the opinion that she was drunk and that would vitiate the whole proceeding.

16. But that is to put the entry in the custody record totally out of context and to give it an importance it does not have. The garda had given the clearest possible evidence that he formed the opinion of the woman’s drunkenness in advance of arrest; he produced chapter and verse – and very strong chapter and verse it was – as to the unfitness of this woman to drive a car on that occasion. He formed that opinion and then he arrested her. That finding is there in the case stated.

17. The inexorable result of that must be that the judge would have to hold that everything was in order as it is conceded by the appellant’s counsel that all the requisite procedures under the Act for taking the sample were complied with.

18. So, in the circumstances, the appeal should be dismissed.

Director of Public Prosecutions v Spratt

[1995] 2 ILRM 117
The above named accused stands charged before the District Court on a charge of driving a mechanically propelled vehicle in a public place at a time when the concentration of alcohol in his urine exceeded the legal limit, contrary to s. 49(3)(4) of the Road Traffic Act 1961 as inserted by s. 10 of the amending Act of 1978 and as amended by s. 3 of the amending Act of 1984.

Evidence was given as to the arrest of the accused on the date in question; that he was brought under arrest to Cabra Garda Station where he was put in charge of the station orderly and details of his arrest were entered upon the custody record. A designated registered medical practitioner was sent for, and the arresting garda introduced the doctor to the accused and required the accused to permit the doctor to take a specimen of blood or at his option to provide him with a specimen of his urine, as provided by s. 13(1)(b) of the Road Traffic (Amendment) Act 1978. He also explained to the accused the consequences which would follow should he fail or refuse to comply with the said requirement.

The accused elected to provide a urine specimen and did so. The arresting garda gave evidence of compliance with the requirements of s. 21 of the Road Traffic (Amendment) Act 1978; the certificate from the Medical Bureau of Road Safety was proved in evidence and also the service of the certificate on the accused. The certificate showed that the accused had 168 milligrams of alcohol per 100 millilitres of urine, which was considerably in excess of the limit permitted by law.

The arresting garda, who was the only witness for the prosecution in addition to the medical practitioner, was unable to state whether the accused had been informed of his rights or of his being furnished with a notice of his rights in accordance with the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987, and at the close of the case for the prosecution legal submissions were made by the solicitor representing the accused which have led to the stating of the present consultative case by the district judge, for the opinion of the High Court.

It was submitted on behalf of the accused that there was no evidence before the District Court to establish that the Treatment of Persons in Custody in Garda Síochána Stations Regulations 1987, (made under the provisions of the Criminal Justice Act 1984), had been complied with, and that this invalidated the prosecution of the accused; that there was no evidence that he had been informed of his rights and furnished with a note of his rights by the member in charge in accordance with regulation 8 and regulation 11; that no evidence had been given *121 to show that he had been informed of his right to consult a solicitor while in custody.

Arising out of these submissions and the response made thereto by the State Solicitor, the learned district judge has submitted a total of six questions to which he seeks replies. A good deal of reliance was placed by counsel representing the accused on the provisions of the Criminal Justice Act 1984, s. 7, and the regulations made thereunder.

The relevant provisions of s. 7 read as follows:

7.—

(1) The minister shall make regulations providing for the treatment of persons in custody in Garda Síochána stations.

(2) The regulations shall include provision for the assignment to the member of the Garda Síochána in charge of a Garda Síochána station, or to some other member, of responsibility for overseeing the application of the regulations at that station, without prejudice to the responsibilities and duties of any other member of the Garda Síochána.

(3) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him.

The 1987 Regulations provide in the definition section (s. 2(1)) that an ‘arrested person’ means ‘a person who is taken on arrest to, or arrested in, a station’.

Regulation No. 8 provides as follows:

8.—
(1) The member in charge shall without delay inform an arrested person or cause him to be informed—

(a) in ordinary language of the offence or other matter in respect of which he has been arrested,

(b) that he is entitled to consult a solicitor,

(c) ….

The information shall be given orally. The member in charge shall also explain or cause to be explained to the arrested person that, if he does not wish to exercise a right specified in subparagraph (b) or (c)(i) immediately, he will not be precluded thereby from doing so later.

(2) The member in charge shall without delay give the arrested person or cause him to be given a notice containing the information specified in subparagraph (b) and (c) of paragraph (1) and such other information as the Commissioner of the Garda Síochána, with the approval of the Minister for Justice, may from time to time direct.

Regulation No. 9 imposes an obligation on the member in charge to notify *122 the solicitor as soon as practicable, if an arrested person has asked for a solicitor.

The situation in the present case is that it was not established in evidence before the district judge that these provisions had been complied with, although there was no affirmative evidence tendered to suggest that they had not been complied with.

It was submitted at the outset by counsel for the prosecutor that s. 49 of the Road Traffic Act 1961, as amended by later legislation, provides its own code of conduct dealing with the procedures to be followed when a person is arrested and brought to a garda station in exercise of the powers given by these statutory provisions, and that the provisions of s. 5 of the Criminal Justice Act 1984, and the regulations made under s. 7 of the Act should not be regarded as applicable in relation to persons arrested under s. 49(6) of the Road Traffic Act as amended.

I am unable to find any justification for this interpretation of the provisions of the relevant legislation and I therefore commence by responding in the affirmative to questions 1 and 2 in the case stated.

That being so, I am asked to consider whether non-compliance with the regulations, and particularly regulation 8 thereof, renders the custody of the accused unlawful, notwithstanding the provisions of s. 7(3) of the Criminal Justice Act 1984—

(3) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself … affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him.

The phrase ‘of itself’ is obviously an important one in the construction of the statutory provisions, and I interpret the sub-section as meaning that non-observance of the regulations is not to bring about automatically the exclusion from evidence of all that was done and said while the accused person was in custody. It appears to be left to the court of trial to adjudicate in every case as to the impact the non-compliance with the regulations should have on the case for the prosecution.

In the case of Walsh v. O’Buachalla [1991] 1 IR 56 the applicant for judicial review had been convicted of an offence under s. 49(2) of the Road Traffic Act 1961, as amended by s. 10 of the Road Traffic (Amendment) Act 1978, and sought to have his conviction quashed in reliance on evidence that just before the relevant blood specimen was taken in the station he had asked to see a solicitor, but compliance with his request was deferred until after the specimen was taken.

It was also a case, however, where he had been given notice of his right to consult a solicitor and given access to a telephone for the purpose some 40 minutes before the arrival of the doctor to take the blood specimen, but did not *123 choose to avail of his rights in the period which intervened before the arrival of the doctor.

It was held by Blayney J, refusing his application for judicial review:

(1) That evidence obtained following a deliberate and conscious breach of an accused person’s constitutional rights must be excluded only if it had been obtained as a result of that breach. In the absence of a causative link between the breach and the obtaining of the evidence, such evidence was admissible (People (DPP) v. Healy [1990] 2 IR 73; [1990] ILRM 313 and People (DPP) v. Shaw [1982] IR 1 considered).

(2) That, assuming the refusal of the applicant’s request for access to a solicitor was in breach of his constitutional rights, the certificate was nonetheless admissible in evidence, since the specimen had been obtained after, but not as a result of that breach.

It was strongly urged by Mr Mill-Arden SC, representing the accused in the present case, that not alone was there a legal right to access to a solicitor for an accused person in garda custody, derived from the constitutional guarantees of personal rights, but that it extended further and that there was a constitutional entitlement to be told of the existence of such right of access. I was referred to a very interesting survey of the law on this topic in Ireland and in other jurisdictions — ‘The Right to be Informed of the Right to a Lawyer — the Constitutional Dimension’ by Andrew S. Butler, a lecturer in the faculty of law in Victoria University of Wellington, New Zealand (1993) ICLJ 173.

This right to be informed, however, has not as yet been elevated into a constitutional right in this jurisdiction, so far as I am aware, and I do not propose to do so at this stage. If it were already recognised as a constitutional right, it would have been unnecessary to enact the corresponding provisions already referred to which are to be found in the Criminal Justice Act 1984, and the regulations made thereunder.

I think the correct approach in the present case is to pose the same question which Blayney J asked of himself in Walsh’s case. If a breach of the constitutional rights of the accused person took place, as alleged, in what manner was he prejudiced thereby? Was any information obtained which might not have been otherwise obtained?

It is easy to conceive a situation where an accused person in custody is not informed of his right of access to a solicitor, and does not seek legal advice in consequence, and proceeds to make an incriminating statement when a legal adviser might have counselled silence. In this set of circumstances it can be envisaged that the decision of the trial judge might be to exclude the evidence so obtained.

In the present case, however, as in Walsh’s case, an accused person was in the garda station awaiting the arrival of the registered medical practitioner who was to take a sample of blood or urine, which the accused person was obliged *124 by law to provide for him in accordance with the relevant statutory provisions. Access to a solicitor or advice from a solicitor could not avert this fate, and no further evidence was then required for the purposes of the prosecution save evidence of the circumstances of the arrest, the obtaining of the sample and the formal, technical evidence of what was disclosed by the sample taken.

In the words of Blayney J:

It was submitted on behalf of the applicant that if he had had access to a solicitor he could have been advised by him. But what advice could a solicitor have given him? He would certainly not have advised him to commit an offence by refusing to give one or other of the specimens. All he could have done was to confirm that the applicant was required by law to provide a specimen of blood or urine. No advice could have prevented the specimen being obtained and, accordingly, the applicant’s not having had access to a solicitor in no way affected its being obtained (p. 60).

I propose to reply as follows to the questions raised in the consultative case stated:

1. The provisions of the Criminal Justice Act 1984, and the regulations made thereunder which deal with detention of arrested persons in Garda Síochána custody apply in relation to persons arrested under s. 49(6) of the Road Traffic Act 1961, as amended, save where these provisions are expressly given a restricted application — as, for example, in ss. 4 and 6 of the Act.

2. It is a requisite proof in a prosecution under s. 49(6) of the Road Traffic Act 1961 (as amended) that there has been compliance with the said provisions and evidence should be adduced by the prosecution to found such proof.

3. However, non-compliance with the requirements of the regulations dealing with treatment of persons in custody in Garda Síochána stations, made under the Criminal Justice Act 1984, or failure to give formal proof of compliance with such regulations, does not of itself invalidate the prosecution. It remains a matter for judicial discretion to decide whether the non-compliance, or failure to prove compliance, is of such a character that it should lead to a dismissal of the charge against the accused.

4. The same reply is given in relation to question No. 4 — it should be viewed as a matter of judicial discretion, having regard to all the circumstances of the case.

5. The reply to this question must be ‘not necessarily’ having regard to what has already been stated in the course of the judgment.

6. The prosecution should lead evidence to show that the constitutional rights of the accused have been respected and vindicated in relation to the matters referred to in the Criminal Justice Act 1984, and the regulations made thereunder dealing with detention of arrested persons in Garda Síochána custody in the circumstances referred to in the Act, but failure to do so does not necessarily lead to a dismissal of the charge against the accused, having regard to what is stated in the course of the present judgment.

DPP v Roche

[2015] IESC 67
Judgment of Mr. Justice Hardiman delivered the 23rd day of July, 2015.

1. This is the Director’s appeal pursuant to s.34 of the Criminal Procedure Act 1967 against the acquittal of Colm Roche at his trial before the Tipperary Circuit Criminal Court (His Honour Judge Thomas Teehan and a jury) in November, 2001. The respondent, Mr. Colm Roche, was acquitted on the only two counts of an indictment preferred against him. They alleged possession of cannabis resin contrary to s.3 of the Misuse of Drugs Act 1977, as amended and possession of cannabis for purposes of supply contrary to s.15 of the same Act.

2. This appeal is without prejudice to the acquittal of Mr. Roche.

3. I wish to make two points before entering into the substance of the case. The first is the question of law which comes before the Court was drafted by the prosecution with no input from the defence. This is in accordance with the statute. The question posed is this:

“Where a person has been arrested and detained at a garda station for an initial period not exceeding six hours, pursuant to the provisions of s.4(2) of the Criminal Justice Act 1984, does the fact that no evidence was given that the member-in-charge in the station relieving another member-in-charge… considered whether
(a) There were reasonable grounds for the original detention,

or

(b) There were reasonable grounds for continuing that detention, of itself render the continued detention of that person unlawful.

Despite the way in which this question is phrased, it appears from an examination of the transcript that no issue was at any time raised by the defence as to the legality of Mr. Roche’s original detention once prima facie evidence of it was given. A Garda Brendan O’Halloran, who was the Member-in-Charge at Clonmel Garda Station at 1pm on the 24th December, 2007 gave evidence that he authorised the detention of Mr. Roche, at the request of a Garda Power, at 1.10pm on that day. This was not challenged by the defence. Nor was it ever suggested that the reasonableness of Garda O’Halloran’s initial decision, made at 1.10pm, could be at all affected by what the Member who relieved him as Member-in-Charge at 2pm did or failed to do.
4. It is unfortunate and misleading that the question was phrased in that way. It tends to give the impression that the case raises a point of general application, so that the validity of every detention under s.4 of the 1984 Act might be invalidated by what a new Member-in-Charge of the Garda Station did or failed to do. This is simply not so. The question as phrased might suggest that the case could “open the floodgates”. In reality there is no prospect of this and I do not know why the question was phrased in such a way as to suggest that there was.

5. The second preliminary point I wish to make relates to the summary of the relevant Sections of the Criminal Justice Act 1984 contained in the judgment of Mr. Justice Charleton in this case. Everything Mr. Justice Charleton says in this regard is perfectly true but I am afraid that, if taken literally, the material might create a false impression, in particular a false impression of how the Act operates in practice.

6. The novel feature of the Act of 1984 is that, for the first time outside the context of Offences against the State, it provided that a person suspected of a wide variety of offences could be detained, not for the purpose of being brought before a court as had previously been the case, but for the purpose of questioning. Moreover, it provided that this detention could take place on the authority of a garda known as the “Member-in-Charge”. It is perfectly true, as Mr. Justice Charleton says at para. 14:

“Section 4(2) of the Act of 1984 provides that an arrested person ‘may be taken to and detained in a Garda Síochána station’. Detention for the period established in the legislation may be allowed only ‘if the member of the Garda Síochána in charge of the station to which the person is taken on arrest has at the time of the person’s arrival at the station reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence’.”
7. However, the statement that a person may be detained “only” in the circumstances mentioned is somewhat qualified by the mundane fact that I am unaware of any case in the more than thirty years for which the Section has been operated in which a Member of the Garda Síochána in charge of the station has refused the application of another member of An Garda Síochána to detain a person. My own experience at the Bar and on the Bench does not extend to such a case, and I have never heard of one. In the case of DPP v. Birney [2007] 1 I.R. 377 some difficulty was posed, in the view of some gardaí, by the fact that a Member-in-Charge meticulously processed a number of arrested persons individually. That is the only occasion of which I have been aware of the actions of a Member-in-Charge conflicting with the views of other gardaí. But even in that case, as the Court of Criminal Appeal found, there was no refusal to detain a person. I therefore feel that the precisely correct statements of Mr. Justice Charleton as to the content of the statute have to be read in light of the fact that there is no known instance of a Member-in-Charge of a garda station refusing to detain a citizen when another garda requests it.
8. Secondly, it is perfectly true, as Mr. Justice Charleton says that:

“The Act of 1984 made provision for the first time for statutory regulations to be enacted for the protection of members of An Garda Síochána against unwarranted allegations of brutality, oppression, and for the establishment of a Code of Conduct as to how prisoners should be correctly and humanely treated.”
This is perfectly true, but I do not believe it was the principal purpose of the statute, which was to provide for detention for questioning. Moreover, while regulations for the protection of persons in custody, and for their correct and humane treatment are certainly provided for in the Act, the Act also provides:
“7(1) The Minister shall make regulations providing for the treatment of persons in custody in Garda Síochána stations.
(2) The regulations shall include provision for the assignment of An Garda Síochána in charge of a garda síochána station, or to some other member, of responsibility for overseeing the application of the regulations at that station, without prejudice or the responsibilities and duties of any other member of the Garda Síochána.

(3) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement by him”.

(Emphasis added)

Thus, while it is perfectly true to say that the Act mandates the making of regulations for the protection of persons in custody, those regulations are absolutely extraordinary delegated legislation creating obligations for the breach of which there is no civil or criminal remedy or penalty and expressly providing for the admissibility in evidence of material obtained in breach of regulations, or in the context of a breach of regulations at a Court’s discretion. This is toothless legislation. It must be very clear that if legislation or delegated legislation which creates or defines criminal offences (as in the case in much of the drugs legislation) contained similar immunities for breach of the law or regulations, they would be absolutely unenforceable. This is the position in the case of the 1987 Regulations, relating to the Treatment of Persons in Custody.
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This is an area of high constitutional significance. Article 40.4.1 provides that:

“No citizen shall be deprived of his personal liberty save in accordance with law”.
When Mr. Roche was arrested at 12.20pm on Christmas Eve, 2007, he was thereby immediately deprived of his personal liberty. This deprivation would be unconstitutional unless it was, and continued to be, “in accordance with
law”.

Moreover, by Article 40.3.1:

“The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.
These rights, in the case of Mr. Roche, extend to his right to liberty. By statutory arrangement, and statutory instrument made under the 1984 Act the responsibility of overseeing the detention of Mr. Roche and of ensuring that it was in accordance with the law was delegated to Garda Downey. His very brief account of his discharge of this onerous stewardship will be given below.
As will be seen in the summary of arguments below, the learned trial judge was invited to exercise the discretion which (the prosecution said) was conferred on him by s.7(3) of the Act which is set out above. The exercise of a similar discretion has been considered, somewhat controversially, in this Court in the recent case of DPP v. J.C. (No. 1).

In the judgment of Clarke J. at para. 4.23 he says:

“These matters are addressed in the judgment of Hardiman J. Likewise, I acknowledge that there may well have been a tendency, in cases of illegally, as opposed to unconstitutionally, obtained evidence, for courts to tend to exercise their adjudicative role in favour of the admission of such evidence.”
With great respect there was a great deal more than a “tendency” to exercise the discretion in that way. As mentioned in my judgment in that case I am aware of only one instance where the discretion was exercised in favour of exclusion, and that was, by coincidence, a case where all of the defendants, the parties arguing for exclusion, were all themselves members of the gardaí.
This, however, is a case where a discretion was in fact exercised in favour of an ordinary citizen and the evidence thus excluded. I would be more than sorry to see this exercise of discretion overruled in a case shortly following that of J.C. I do not consider that this Court has power to interfere with an exercise of judicial discretion of this sort, on the evidence which was heard by His Honour Judge Teehan.

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9. What happened in this case emerges clearly from the transcript of the hearing of the 3rd November, 2011. Defending counsel, Mr. O’Shea informed the judge that “I’m going to put the State on proof of certain matters” (p.5). These included the detention of the accused under the 1984 Act. During this detention certain admissions were allegedly made. Accordingly, the admissibility of these alleged verbal admissions was in issue.

The prosecutor intimated that “I am going to need some time then to…”.

At p.8 Mr. O’Shea called on the State “to prove the arrest and the search and the detention and the memo”.

10. On foot of that requirement various garda witnesses were called, gave evidence and were cross-examined in certain instances. As noted above the original detaining Member-in-Charge, Garda O’Halloran was not challenged on the evidence he gave about the decision to detain (pp 39/40).

11. A Garda John Downey then gave evidence and said that he commenced duty as Member-in-Charge of the Garda Station on the 24th December, 2007 at 2pm. He said:

“I took up duty as Station Orderly and Member-in-Charge at Clonmel Garda Station. This is in accordance with s.4 of the Criminal Justice Act 1984.” (p.41)
He continued:
“… on the commencement of duty, relieving Garda Brendan O’Halloran, there was a prisoner in custody, namely Colm Roche of [address] having been arrested earlier that day by Garda Power for an alleged breech of s.15 of the Misuse of Drugs Act… I made relevant entries in relation to my dealings with Mr. Roche. And those dealings were at 2.25pm. The prisoner was taken by Sergeant Hennebry and Detective Garda Quinlan to be photographed and fingerprinted… at 2.47pm the prisoner was returned to cell no.4… at 3.15pm the prisoner was taken to the Interview Room with Detective Garda O’Gorman and Garda Power… at 3.34pm I visited the prisoner in Interview Room and made no requests or complaints were made of me (sic). At 4.05pm the prisoner was returned to the cell. Garda Power handed me three video cassettes one of which was sealed, and at 4.26pm the prisoner was released from garda custody, having no complaints. Mr. Roche signed the custody record to this effect.”
12. There was no cross-examination of this garda.
13. In that state of the evidence Mr. O’Shea cited Professor Dermot Walsh’s book on Criminal Procedure (p.45/46) and particularly the proposition:

“And a Member-in-Charge at the station must have reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the crime.”
Mr. O’Shea submitted, on that basis “that there is a requirement of ongoing appraisal [by] the Member-in-Charge and ongoing enquiry by the Member-in-Charge and the Section itself sets out that… if there are no grounds in detaining him further he must be released forthwith. He referred to s.4(4) of the Act.
14. It should be noted that Garda Downey not only gave no evidence other than that summarised above, but did not produce or prove the custody record relating to Mr. Roche.

15. Prosecuting counsel, Mr. Cody said:

“I’m not aware of any authority in which a Member-in-Charge taking up duty from the admitting Member-in-Charge is required to make the inquiries that Mr. O’Shea suggests.”
Mr. Cody then referred to the evidence of Garda Downey to the effect that he was informed by Garda O’Halloran that there was a prisoner in custody, and for what. He continued:
“So even if, and I suggest there is isn’t any requirement on the Member-in-Charge to engage in this exercise… in any event he has received information, Judge, which enables him to take up duty and continue with the detention of Mr. Roche under the Section.”
He then proceeded to rely on s.7 subsection 3, of the Act which has been set out above, and which, State counsel submitted, created a discretion to admit the evidence despite any shortcomings in the treatment of a prisoner.
16. In his judgment, the learned trial judge rejected the challenge to the original arrest and search which led to Mr. Roche being brought to the Garda Station. He continued (p.54):

“With regard to the second application in relation to the detention, Garda O’Halloran was the Member-in-Charge when Garda Power brought the prisoner, Mr. Roche, to the station and it seems to me that the proper procedures were followed as between them and it seems to me also that Garda O’Halloran as the Member-in-Charge in deciding to detain Mr. Roche under s.4 of the Act of 1984 had reasonable grounds for suspecting that his detention was reasonably necessary for that purpose.”
17. Accordingly, it can be seen that the learned trial judge also rejected the challenge to the decision to detain Mr. Roche when he was brought to the Garda Station. He then continued:
“Various other matters then followed and at 2 o’clock he [Garda O’Halloran] was relieved by Garda Downey. Garda Downey gave evidence of having relieved Garda O’Halloran and of the various matters that took place during the time that he was relieving his colleague he did not say anything about satisfying himself of the reasonableness of the continuing detention of Mr. Roche. I am quite certain that if he had even a relatively short conversation with his colleague that he would have satisfied himself because as I said, there were certainly in this case reasonable grounds for directing the detention of the prisoner. But he did not do so. It seems to me that this is not a situation which is covered by s.7(3) of the 1984 Act. Section 7(3) gives a discretion to the Court to admit evidence notwithstanding breach of regulations made under the Section. Now, but this… what is complained of here by the defence is not a breach of regulations but a breach of the actual Section and a criminal provision has to be construed strictly and with considerable hesitation I must accede to the application in this regard and I must rule that the continued detention passed 2 o’clock on the day was unlawful and I think it flows from that… it must be excluded.” (sic)
18. The office of “Member-in-Charge” is defined by the Regulations referred to above:
“4(1) In these Regulations ‘Member-in-Charge’ means the member who is in charge of a station at a time when the Member-in-Charge of a station is required to do anything or cause anything to be done pursuant to these Regulations.”
19. In this case, Garda Downey gave unchallenged evidence to the effect that he was the Member-in-Charge from 2pm on the 24th December, 2007 and that he took over from Garda O’Halloran who had previously acted in that capacity.
20. By Regulation 5(1):

“The Member-in-Charge will be responsible for overseeing the application of these Regulations in relation to persons in custody in the station and for that purpose shall visit them from time to time and make any necessary enquiries.”
It may be important to note that by Regulation 3(2):
“There shall be no unnecessary delay in dealing with persons in custody.”
This provision is absolutely essential to any constitutional provision for detention for questioning. Such a provision is an interference with the right of liberty which of course is a constitutional and not merely a legal right. Where a statute such as the 1984 Act permits detention other than for the purpose of trial or judicially imposed imprisonment, the procedural safeguards pertaining to detainees alone give practical effect and protection to the constitutional right to liberty. See Article 40.4.1 of the Constitution. If a person could be detained for questioning and then simply left for an indefinite period in the intimidating and often unsanitary circumstances of a cell in a garda station, the right to liberty would be set at nought. Therefore it is essential that the Regulations provide, as they do, that “there shall be no unnecessary delay in dealing with persons in custody”.
21. In this particular case it is to be noted that the respondent, Mr. Roche, having been arrested at 12.20pm, and detained in a garda station since 1.10pm was not questioned until 3.15pm. One would not like to think that this was for some trivial reason, such as to allow members of An Garda Síochána to have their lunch while the respondent cooled his heels in a cell for most of the time. But one will never know whether this is so or not because, on the evidence, the member of the Garda Síochána in charge of the station made no enquiry at all about Mr. Roche’s detention or why he was left for two hours and fifty-five minutes from his arrest before being questioned. We will never know this because the member of the Garda Síochána in charge of the station from 2 o’clock on Christmas Eve, 2007, never addressed his mind to it, as far as the evidence goes.

22. It must be borne in mind that these Regulations are made under statutory authority, s.7 of the 1994 Act. This requires the Minister to make Regulations “providing for the treatment of persons in custody in Garda Síochána stations and assigning to some member of An Garda Síochána “responsibility for overseeing the application of the Regulations…”.

23. In my view, that being so, there is an obligation on the State to prove compliance with the statutory duty and specifically to establish that there was no unnecessary delay. In my view this is not merely a regulatory matter but a matter of statutory and indeed constitutional significance.

24. If Garda Downey had turned his mind to the question of the necessity for the continued detention of Mr. Roche, it might have been quite easily established that such detention was necessary. As the learned trial judge said, a short conversation might have been all that was required. But on the state of the evidence in this case Garda Downey did not turn his mind at all to the question of whether there was unnecessary delay, or whether the detention continued to be warranted.

In my view, the prosecution is required to prove that the Member-in-Charge of the Garda Station turned his attention to these matters. In DPP v. Conroy [1986] I.R. 460 the question of whether a prisoner was in lawful detention when something of evidential significant transpired was simply not ruled upon by the trial judge. Finlay C.J. said at p. 474:

“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 this was not evidence of fact, it 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 type which was dealt with in the Lynch case [1982] 1 I.R. 64. 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 making 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 on the issue.”
(Emphasis added)

Mr. Justice Griffin and Mr. Justice Hederman agreed with the judgment of the Chief Justice in Conroy.
25. It appears to me from dicta in the Article 26 reference In Re The Emergency Powers Bill [1977] I.R. 159 and in DPP (Lenihan) v. McGuire [1996] 3 I.R. 586 the 1987 Custody Regulations are designed to provide a procedural safeguard to what is of its nature a constitutional right. Therefore, where the Constitution can be invoked regarding deprivation of liberty in the form of a detention which does not observe the statutory procedural safeguards, it appears to me that the legality of the detention itself is called into question.

26. The Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 (SI No. 119 of 1987) are designed to provide a procedural safeguard to what is a constitutional right, the right to liberty. If the Regulations were not seen in this light then there would be no attempt to discharge the State’s obligation under Article 40.3.1 to vindicate the right of Mr. Roche to liberty. Therefore, the Constitution can be invoked regarding deprivation of liberty in the context of the non-observance, or non-demonstrated observance of an obligation protective of Mr. Roche’s constitutional rights; and any evidence obtained in such circumstances is a breach of his constitutional right and not merely a question of illegality.

As to the position of the Regulations themselves, and of the Member-in-Charge, I wish to quote from the judgment of Kelly J. in DPP (Lenihan) v. Maguire) [1996] 3 I.R. 586 at 593:

“The Criminal Justice Act 1984 is an important enactment dealing, inter alia, with the safeguarding of rights of persons who are in the custody of the garda. Section 7 of the Act of 1984 creates a mandatory obligation on the Minister to make Regulations providing for the treatment of persons in custody in garda stations. The second subsection of that Section requires that the Regulations include a provision for the assignment to the Member of the Garda Síochána in charge of a garda station… of responsibility for overseeing the application of the Regulations made at that station. This is an important responsibility placed on the shoulders of such a person.”
I agree with this. It is in my view part of the proofs of a prosecution which relies in whole or in part on evidential material developed during the period when a person is deprived of his liberty to demonstrate such deprivation was lawful and was in accordance with the Regulations laid down for the treatment of people who have been deprived of their liberty for investigative purposes. If this is not done then the prosecution are at risk of having the evidential material excluded in the exercise of the learned trial judge’s discretion. This is not a thing that often happens, but it happened in this case.
27. It appears to me to be well established from the Statute and Regulations that the Member-in-Charge of the Garda Station is the person designated, under statutory authority for “overseeing the application of the [Treatment of Persons in Custody] Regulations at that station”. This is a role independent of the criminal investigation which leads to the person being in custody.

28. This is obviously an important role. A person in custody is unable to look after his own interests by reason of the very fact of the custody. Apart from that, the unfamiliarity of the surroundings, the intimidating and, as I have said, often unsanitary conditions of a cell in a garda station, may heighten a suspect’s needs for assistance in the validation of his rights.

29. It appears to me that the main statutory features of the detention which require supervision are firstly the requirement that there be no unnecessary delay, that is that a person who is deprived of his liberty and, quite literally, locked up, without having been convicted of any offence and without an immediate intention of bringing him to court, should be held in that way for the shortest time possible. Secondly, the question of whether there is a continuing necessity for his detention must be present to the mind of the Member-in-Charge who must make the necessary enquiries about it. Here there is no evidence that he turned his mind to either of these questions.

30. I am unable to concur in the approach of Mr. Justice Charleton expressed, for example, in para. 21:

“There is nothing to suggest on the evidence in this case that there did not remain reason to continue to suspect, and on reasonable grounds, that Colm Roche had committed the offence for which he was charged.”
In my view, this approach, expressed by two negatives (“Nothing to suggest… that there did not remain…”) does not adequately reflect the fact that on a voir dire of this sort “the onus of proof is on the prosecution to establish… that his custody was legal”, as Chief Justice Finlay put it in Conroy, cited above. We have not been asked to depart from the authority of that case. This omission is a significant aspect of the present case.
31. The formulation used in the judgment of Mr. Justice Charleton, which I have discussed in the previous paragraph, is consistent only with a view either that the onus of proof is on the defence to establish that something occurred which required the Member-in-Charge’s attention or, alternatively, no onus arose until such time as something developed, the proof of which did not lie on the State. This is equivalent to saying that there is some form of evidential burden on the defendant. I do not accept that this is so, on the authority of Conroy.

Moreover, the view that it is sufficient for the State to succeed that there be “… nothing to suggest on the evidence that there did not remain reason to continue to suspect…” is in my view inconsistent with the recent decision in J.C. (No. 1), cited above. There, at para. 5.1 of his judgment, Mr. Justice Clarke said:

“In any criminal trial the onus rests on the prosecution to prove guilt. It seems to me that, as part of that overall approach, the onus rests on the prosecution to establish the admissibility of any evidence in respect of whose admissibility a legitimate question is raised. The first part of any proper test must, therefore, state that:

‘The onus rests on the prosecution to establish the admissibility of all evidence’.”
32. Mr. Justice Clarke continued, at para. 5.4 of his judgment:
“As part of that obligation it seems to follow that the onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places two separate obligations on the prosecution. The first is to put forward whatever argument or basis it is suggested nonetheless justifies the admission of the relevant evidence. Second, and of equal importance, there must rest on the prosecution an onus to establish any facts necessary to justify such basis. … while that obligation stems principally from the general obligation which lies on the prosecution, it also seems to me to be strengthened by the fact that the accused will, in the vast majority of cases, have little or no knowledge of the circumstances which led to evidence being obtained in circumstances of unconstitutionality…”.
33. This passage, indeed, addressed the basis of my inability to concur in the judgment of Charleton J. I believe that where evidence is developed in circumstances where the defendant is deprived of his liberty, such evidence is admissible only if such deprivation is in accordance with law and with the constitutional rights of the detained person, which continue to subsist except in relation to his immediate entitlement to liberty. It appears to me that in this case, as far as the evidence goes, the Member-in-Charge of the garda station unto whom such significant responsibility is discharged did nothing in particular to ascertain the continuing need for the detention. Moreover, in the context of a detention for a maximum period of six hours he permitted (and may or may not have observed) that two hours and fifty-five minutes elapsed before the prisoner began to be interviewed in custody. I am far from saying that there may not have been good reason for this, but no such reason was adduced in evidence. Nor was the Custody Record produced in evidence. This is a document required to be kept under statutory authority and I can think of no good reason for its non-production.
34. Finally, it must be remembered that the learned trial judge, in the context outlined above exercised a judicial discretion to exclude the evidence. I am not aware of any basis on which this discretion can properly be reviewed by this Court which, unlike the learned trial judge, did not have the advantage of seeing and hearing the witnesses.

35. I would dismiss the appeal.

 

Judgment of Mr. Justice Clarke delivered the 23rd July, 2015.

1. Introduction
1.1 It is fair to say that there have been developments in the regime which the law provides in respect of persons arrested for the purposes of investigation over the years. The question which arises in this reference concerns one aspect of that regime. The defendant/respondent (“Mr. Roche”) was acquitted on the only two counts of an indictment which alleged possession of cannabis resin. The prosecutor/applicant (“the D.P.P.”) has referred an issue of law to this Court, without prejudice to that acquittal of Mr. Roche, under s.34 of the Criminal Procedure Act 1967. That section permits the D.P.P. to refer “a question of law” to this Court for determination where an accused is found not guilty on the question of law concerned. While proceedings of this type are sometimes referred to as an appeal without prejudice it is, perhaps, more correct to describe such an application by the D.P.P. as a reference.

1.2 The questions of law which now come before this Court are fully set out in the judgments of Hardiman and Charleton JJ. and it is unnecessary to set them out in detail here. Furthermore, the facts and the issues which were canvassed are likewise fully set out in those other judgments. I have written this separate judgment because I do not fully agree with the position adopted in either of those judgments.

1.3 As appears from the main judgments on this appeal, the key central questions which arise concern the practical operation of the regime which requires that the so-called member in charge of a gárda station keep the validity of the continuing custody of a suspect under review.

2. The Regime
2.1 First, section 4(2) of the Criminal Justice Act 1984 (“the 1984 Act”) requires, in order that the continuing detention of a person for investigative purposes be authorised, that where a person is brought to a gárda station under arrest, the member in charge must have “reasonable grounds for believing that his or her detention is necessary for the proper investigation of” a relevant offence.

2.2 Of particular relevance to the issues which arise in this case are the provisions of subss. (4) and (5) of s.4 of the 1984 Act. Subsection (4) requires that a person be released from custody forthwith (unless there are other grounds for his continued detention) if “there are no longer reasonable grounds for suspecting that he has committed an offence to which this section applies…” Subsection (5), in similar vein, provides for release if there are “no longer reasonable grounds for believing that [the suspect’s] detention is necessary for the proper investigation of the offence to which the detention relates…” There are other provisions, which are not relevant to this case, concerning release during a period of detention or the possible conversion of an inquiry into one offence to an inquiry into another offence.

2.3 What is, however, absolutely clear from the provisions of s.4 of the 1984 Act is that there are two continuing requirements which must be in place in order, ordinarily, for the continued detention of a suspect for investigative purposes to be justified in law. First, the suspicion which justified the arrest of the person, being a suspicion that they committed a relevant offence, must continue. Second, the view which the member in charge formed when allowing for the detention of the suspect when brought to the gárda station, to the effect that the detention of the person in question was required for the purposes of a relevant investigation, must also continue. The corollary is also clear. If either of those bases for the continued detention of a suspect disappears (i.e. if either the reasonable suspicion of having committed a relevant offence or the need for detention to aid the investigation of a relevant offence is no longer present) then the suspect must be released unless other provisions of the legislation (which are not relevant for present purposes) arise.

2.4 The core issue of principle on this appeal is as to how practical effect is to be given to the undoubted entitlement of a suspect to be released in the event that one or other of those requirements justifying continued detention disappears. A subsidiary, although closely connected, issue concerns the extent of the evidential burden which rests on the prosecution to establish the continuing validity of custody in the light of those legislative measures. I turn to those questions.

3. The Issues of Principle
3.1 The starting point has to be to note the language of subss. (4) and (5), both of which speak of it being necessary to release a person where there are “no longer reasonable grounds” for suspicion of the person having committed a relevant offence or for it being necessary to continue their detention for relevant investigative purposes. Those subsections do not specify who is to make the decision as to whether reasonable grounds continue to exist for either of the matters concerned. But it would make a nonsense of the clear entitlement of a suspect to be released in circumstances where those reasonable grounds no longer existed if the obligation to assess those issues did not rest on any particular person.

3.2 It seems to me that it follows that the member in charge, being the person who is given the task of ensuring that a suspect who is to be detained for investigative purposes is properly so detained in the first place, must also be the person who is intended, under the legislation, to ensure that a suspect is released where reasonable grounds no longer exist for either of the conditions which underlie a valid continuing detention.

3.3 However, it is important to note the distinction between the language used in subs.(2), on the one hand, and that contained in subss. (4) and (5), on the other. In order, under subs.(2), for detention for investigative purposes to be valid, the member in charge has a positive obligation to have “reasonable grounds” in accordance with the subsection. Thereafter, the obligation to release arises where such reasonable grounds “no longer” exist. There can be no doubt that it is necessary, at the beginning of an investigative detention in a gárda station, for the relevant member in charge to have positively applied his or her mind to the question of whether relevant reasonable grounds exist in order that there be a valid continuing detention. However, it cannot have been that the legislative intention necessarily required a positive obligation on the member in charge to constantly review the situation on a minute by minute basis. On the other hand, if the member in charge had no obligation to consider the question of whether the circumstances justifying detention continued at all, then the right to be released contained in the legislation would hardly be of any value.

3.4 In those circumstances, it seems to me that the obligation on the member in charge is to address the question of whether the necessary basis for continued detention exists whenever the circumstances ought reasonably to lead to a consideration of whether those conditions do, in fact, remain in place. In his judgment, Charleton J. suggests that the duty to order release is “entirely predicated upon the condition of an event happening which triggers either section”. I agree that there must be something to trigger the obligation. However, in my view, the circumstances which may trigger such an obligation may be positive or negative.

3.5 Where there is a development which might lead to a question over whether there are reasonable grounds for believing that the suspect has committed a relevant offence or whether the suspect’s continued detention is necessary for relevant investigative purposes, then there is a clear positive obligation on the member in charge to consider whether the pre-conditions to continued detention remain. However, in my view, there is also an obligation on the member in charge, particularly in the context of subs.(5) and the need that there be continuing reasonable grounds for believing that detention is necessary for investigative purposes, to consider whether that situation can truly be said to continue to exist where nothing much of an investigative nature seems to be happening.

3.6 That is not to say that a suspect is entitled to be released simply because little by way of investigation has taken place. There may well be good reason why certain aspects of an investigation (for example, the questioning of one particular suspect ahead of another) may lead to little action being taken which is relevant to a particular suspect for a period of time even though there may remain good reason to believe that the continued detention of the suspect in question is necessary for relevant investigative purposes.

3.7 Where, therefore, there are either actual developments in the investigation or there is a lack of activity in relation to any aspect of the investigation, which might raise a legitimate question as to whether a suspect’s continuing detention was necessary for such investigative purposes, it seems to me that an obligation is placed on the member in charge to consider whether the necessary reasonable grounds for continued detention subsist.

3.8 That leads to the particular issue which arises in the circumstances of this case which stems from the fact that there was a change of the member in charge during the period of Mr. Roche’s detention.

4. A Change of the Member in charge
4.1 The question which arises under this heading is as to the extent, if any, to which the obligations on the member in charge may differ because there is a change of personnel. Clearly, assuming that detention was regular in the first place, the original member in charge, being the member who was in charge when the suspect was first brought under arrest to the gárda station in question, must be taken to have been satisfied that there were grounds for suspecting the individual concerned of a relevant offence and that there was a reasonable basis for concluding that detention was necessary for the relevant investigation. The obligation on such a member in relation to continued detention has already been addressed. That member must consider whether the relevant reasonable grounds continue to subsist either if there is a positive development which might call that issue into question or if there is inaction on the investigative side which might raise doubts as to whether continued custody is necessary for investigative purposes. But the original member in charge will know why there were grounds for suspecting the individual of a relevant offence in the first place and will also know, at least in very general terms, why the detention of that person was considered necessary for investigative purposes.

4.2 To take a simple example, it might be considered necessary to question an individual but to do so after another individual, also suspected of involvement in the same events, had been questioned to a certain point. To the original member in charge, it might not be a particular surprise in those circumstances if a suspect was not taken for questioning or any other direct investigative action was not taken relative to the suspect in question for a period of time. In those circumstances, a lack of action might raise no legitimate issues from which it might be argued that grounds for continued custody for investigative purposes did not continue.

4.3 On the other hand, a new member in charge may have a greater obligation of inquiry precisely because that new member in charge may not have the same underlying information as would have been available to a predecessor. To turn to the example given earlier, an original member in charge might, on the basis of information obtained when the suspect first came to the station in custody, be aware that it was unlikely that the suspect would be questioned, or that any other aspects of the investigation which required the presence of the suspect would occur, for a reasonable period of time. The fact that nothing had happened for two or three hours might not, in those circumstances, represent a circumstance which would have required the original member in charge to consider whether a continuing necessity of detention for investigative purposes persisted. However, a new member in charge, who was not aware of those underlying facts, might be put on inquiry by a similar delay. Likewise, a new development in the investigation might, in the context of the knowledge of one member in charge, not truly give rise to any questions concerning the continued necessity for detention but might, in the context of a new member in charge with less information, provide the circumstances which would trigger an obligation to at least consider in more detail whether continuing detention was justified. In summary, it seems to me that the sort of circumstances which may require an active consideration by a member in charge of whether continuing detention is justified will depend on all of the circumstances of the case including, importantly, the state of knowledge of the relevant member in charge. This latter factor can, potentially, alter when there is a change of member in charge, for the information available to the new member in charge may not necessarily be the same as that which was available to the original member in charge.

4.4 In that latter context it is, in my view, important to emphasise that the nature of the change of the member in charge and the length of time for which that change is likely to last may themselves be important factors or circumstances. A member of An Gárda Síochána who takes over on a very short term basis as member in charge may not have any circumstances brought to his or her attention which would warrant giving detailed consideration to the justification for continued detention. Likewise, a brief period of inactivity in the investigation during an equally brief period in charge by a substitute member might not, in all the circumstances, give rise to a need to consider whether continued detention for investigative purposes was truly required. On the other hand a member in charge taking over on a permanent basis and not finding any activity for a significant period of time might well be placed in a position where there was an obligation to consider whether investigative detention continued to be justified.

4.5 In my view, it is not, therefore, the case that there is an automatic obligation on a new member in charge to immediately satisfy him or herself as to the continuing validity of any detention. Rather it is the case that the fact that there is a new member in charge (and, therefore, that the level of knowledge which that new member may have may not be the same as that of a predecessor) is one of the circumstances which must be taken into account in determining whether an obligation to consider the validity of continued investigative detention has been triggered.

5. The Circumstances of this Case
5.1 I should first state that I agree with Hardiman J. that, in reality, the first leg of the question referred to this Court, being the issue of whether the “new” member in charge must give evidence as to whether he/she considered that “there were reasonable grounds for the original detention” did not truly arise in this case. There is no basis in law for requiring a new member in charge to second guess or review the decision made by the member in charge who held that position when the suspect was first brought to the gárda station. The validity of the initial detention after arrival at the gárda station depends on the sustainability of the view taken by the member in charge at that time.

5.2 The specific question, which is relevant to this case, is as to whether the fact that there was no evidence that the “new” member in charge considered that there were reasonable grounds for continuing the detention of itself rendered that continuing detention unlawful. That issue comes down, in the main, to one which relates to the evidential burden on the prosecution. For the reasons which I have already sought to analyse I am satisfied that there is an obligation on any member in charge (“new” or “existing”) to review whether continuing detention is required where the circumstances trigger such an obligation. Those circumstances may be more likely to trigger such an obligation in the case of a “new” member in charge. But the real question, for the purposes of this appeal, is as to whether it is necessary for the prosecution, in establishing the lawfulness of the detention of the relevant suspect, to lead evidence to suggest that the circumstances which might have triggered such an obligation had not arisen. In other words, is the simple fact that, as here, the defence had placed the prosecution on proof of the validity of Mr. Roche’s detention sufficient, of itself, to place an obligation on the prosecution to establish that nothing had happened to trigger the obligation of further consideration?

5.3 In my view, there is not a simple yes or no answer to this question. The question of whether an obligation to consider the validity of continued detention had arisen is one which, for the reasons which I have already sought to analyse, requires consideration of all the circumstances of the case. To the extent that some of those circumstances may be favourable to the prosecution’s proposition that a requirement to consider has not been triggered, then there is a clear onus on the prosecution to establish those circumstances. In that context, I agree with the point made by Hardiman J. to the effect that the obligation to establish any facts relevant to the admissibility of evidence is, on the recent authority of the majority of this Court in D.P.P. v. J.C. (No.1) [2015] IESC 31, a burden which must be borne by the prosecution. However, it does not seem to me necessarily to follow that the only way in which that evidence can be given is by the member in charge expressing a view on the issue. If there is evidence which is sufficient to establish that the circumstances in which an obligation to review the justification for continued detention had not been triggered, even if that evidence comes from sources other than the relevant member in charge, then the prosecution will have, in my view, at least on a prima facie basis, established the lawfulness of the detention in question.

5.4 Obviously, it would be much easier if that information were given in evidence by the member in charge concerned. However, in my view it does not have to be given in that way provided that there is adequate evidence before the Court to satisfy the trial judge that the requirement to review the continuing validity of the custody concerned had not been triggered.

5.5 Given that the trial judge did not ask himself that question in that way it is not, in my view, possible to be prescriptive as to how the trial judge, who heard the evidence, might have answered that question had he posed it to himself.

5.6 In that context, I would also agree with the view expressed by Hardiman J. that the assessment which the Court is required to carry out can only be based on matters which were proved in evidence. That flows from the obligation on the prosecution identified in J.C. If there was, for example, apparent inactivity in the investigation for a sufficient period of time to prima facie trigger an obligation to consider whether continued detention for investigative purposes was required, then an evidential burden would fall on the prosecution to explain by evidence why either, in the circumstances of the case, the requirement was not triggered at all, or if the requirement was triggered, that the relevant member in charge applied his or her mind to the question and came to a reasonable conclusion that continued investigative detention was required.

5.7 In the context of this case the fact, as noted by both Hardiman and Charleton JJ., that the custody record was not put in evidence would undoubtedly have raised questions, at a minimum, as to whether there was a sufficient evidential basis for a conclusion that a requirement to positively consider whether investigative detention continued to be justified had been triggered.

5.8 Finally, it might be said that one of the issues which tangentially arises from the argument in this case is as to the extent to which there may be any obligation on the defence to positively put forward a basis for challenging the lawfulness of the detention of an accused as part of an argument as to the admissibility of evidence. There is no doubt that the defence, in this case, did no more than to place the prosecution on proof of the lawfulness of Mr. Roche’s custody. Prior to the evidence on that issue being heard, no specific issue was raised by the defence directed towards the particular point which persuaded the trial judge to exclude the relevant evidence, being the point which is at the heart of this judgment. Nor was such an issue raised in the course of cross-examination of any of the prosecution witnesses. There might, potentially, be a question as to the extent to which it is sufficient for the defence to simply put the prosecution on proof of the lawfulness of relevant custody and then, when the evidence has been heard, raise an issue which amounts to a complaint that the prosecution has failed to prove a negative. However, I would not express any view on that issue in this reference. No debate on the point took place before the trial judge. No significant argument, therefore, took place before this Court at the oral hearing. It would, in those circumstances, not appear to me to be appropriate to attempt to deal with what would be a most important issue in the law of criminal evidence in a case where the issue was barely debated and arises only in a very tangential way.

5.9 Having set out the proper approach which, in my view, a trial judge, faced with an issue such as that which arose in this case should apply to the issue of the admissibility of evidence, I do not think it is either possible or appropriate to attempt to indicate how that issue should have been dealt with by the trial judge in this case. In any event it is possible to address the question of law posed to this Court by the D.P.P. without specifying precisely how the application of that question to the facts of this case should have been dealt with.

5.10 Finally, before turning to how the question posed should be answered, I should indicate that nothing in this judgment touches on the question of whether, even if it were to transpire that evidence was taken during a period when Mr. Roche was in unlawful custody, that evidence might nonetheless be admissible in the light of the principles identified by this Court in J.C. Such an issue was not raised at the trial and was not the subject of any argument before this Court on this appeal. I would leave to a case in which such an issue was fully argued any decision on the proper application of the J.C. principles to an unlawful custody situation such as might arise in a case where the Court was not satisfied that it had been established that proper consideration had been given to the question of whether a suspect could continue to be lawfully detained for investigative purposes. I turn finally to the question of law posed on this appeal.
6. The Question
6.1 I would, therefore, propose that the question be answered by indicating that, where the prosecution is required to establish the validity of the detention of an accused who was detained in a gárda station for investigative purposes, there is an obligation on the prosecution to establish that circumstances which might trigger a requirement to reconsider the validity of the detention of the relevant suspect had not occurred. While meeting that burden may most easily be done by leading appropriate evidence from the relevant member in charge it is open to a trial judge to be satisfied that the burden in question has been met on the basis of any sufficient admissible evidence.

6.2 For the reasons already identified, I am not satisfied that the first part of the question posed properly arises in this case at all. In that regard, I agree with Hardiman J. So far as the second part of the question is concerned, strictly speaking I agree that the question should be answered no. However, that answer is very much subject to the qualification set out in the previous paragraph of this judgment and the commentary leading to that qualification to be found in the judgment as a whole.

Judgment of Mr Justice Charleton delivered on Thursday the 23rd day of July 2015.

1. Following on a trial in the Tipperary Circuit Criminal Court before Judge Thomas Teehan and a jury, in November 2011, the respondent Colm Roche was acquitted on the two counts in an indictment alleging possession of cannabis resin contrary to s.3 of the Misuse of Drugs Act 1977, as amended, and possession for the purpose of supply contrary to s.15 of that Act. Colm Roche was presumed at his trial to be innocent and as that presumption of innocence has not been displaced, nothing herein is to be taken as in any way questioning that.

2. This is an appeal by the Director of Public Prosecutions pursuant to s.34 of the Criminal Procedure Act 1967, as substituted by s.21 of the Criminal Justice Act 2006. It is without prejudice to the acquittal of Colm Roche. That procedure allows the Circuit Criminal Court to state a question of law for the opinion of the Supreme Court. The result is without prejudice to the acquittal of the accused Colm Roche.

3. The question is as follows:

Where a person has been arrested and detained at a garda station for an initial period not exceeding 6 hours pursuant to the provisions of s.4(2) of the Criminal Justice Act 1984, does the fact that no evidence was given that the member in charge of the station relieving another member in charge (including the original detaining member in charge) considered whether –
(a) there were reasonable grounds for the original detention, or

(b) there are reasonable grounds for continuing that detention,

of itself render the continued detention of that person unlawful.

Background
4. For the purpose of considering whether an apparent statement by Colm Roche in garda custody should be admissible in evidence, on the 1st November 2011, the trial judge heard testimony as to the circumstances of his arrest and official detention at Clonmel garda station. It appears that on the 24th of December 2007, gardaí flagged down a car near the Seán Kelly Sports Centre in Carrick-on-Suir. There were four people in the car, including Colm Roche. A search was initiated under s.23 of the Misuse of Drugs Act 1977, as amended. A brown-black rucksack was recovered which was situated on the back seat of the car between where Colm Roche and another passenger were seated. The occupants of the car were told that they were being brought to the garda station for a further search. At the scene, the question had been asked of the occupants as to who owned the bag, to which Colm Roche is supposed to have replied that he did but he didn’t “have a clue what’s in it.” There were also other conversations with the gardaí. The rucksack contained six bars of cannabis resin. Whatever the strength, or otherwise, of these perhaps contested admissions and of other conversations prior to the commencement of a formal interview in garda custody, it was whatever was supposedly said by Colm Roche when detained for questioning that was the focus of a defence application.
5. At the trial, on the defence indicating that there was a challenge to the admissibility of whatever may have been said by Colm Roche in garda custody, in the absence of the jury, the trial judge enquired as to what was the issue that he would have to try. He asked: “Is it the admissibility of evidence?” To which counsel for the defence replied: “I’m calling on the State to prove the arrest and the search and the detention and the memo.”

6. Counsel for the Director of Public Prosecutions then proceeded to call the arresting officer and the member in charge of Clonmel garda station who had authorised the detention of Colm Roche and his replacement. The custody record, which by regulation shortly to be referred to, requires the keeping of a note of the reason for arrest and detention of any prisoner in a garda station and a chronological note relating to checks on the proper treatment in accordance with law of the prisoner, was not produced in evidence on this issue to the trial judge. Nor was a general question asked as to whether the relevant regulations had been abided by in the treatment of the prisoner by all those who had dealings with him. As Hardiman J notes in his judgment, the custody record is kept as a document to be accessed at trials in order to resolve issues as to what may have occurred in custody. Had that record been produced during the course of the testimony by various gardaí, the trial judge would have had before him evidence as to what had happened and evidence as to what may have changed or whether the custody period was being properly used by the investigating gardaí. In the separate judgment of Clarke J the importance of adjudicating on the issues on the appeal in the light of the specific evidence available is emphasised as the primary factor. In that context, the absence of the custody record from the evidence meant that even on the appeal this Court could not have regard to it, despite a request that it be produced. In what follows, therefore, it appears that there was a gap in the evidence as opposed to any question of misconduct by any garda officer dealing with the detention of this prisoner. Perhaps inadvertence to the custody record was understandable in the light of the lack of specificity as to the challenge. Piecing together what happened from the pieces of evidence available to the trial judge without the custody record shows, however, that the concerns raised in the judgment of Clarke J as to inertia, and thus a possible failure to use the time that an arrested person spends in custody in accordance with the purpose of the statutory power, are not applicable to the facts in this case.

7. The car in question was stopped at 12:20 hours on the day in question. At 13:00 hours, the prisoner arrived at the garda station under arrest by Garda Helena Power and the member in charge was Garda Brendan O’Halloran. At 13:04 hours Garda O’Halloran told Colm Roche of his rights, including the right to consult a solicitor, and no legal assistance was sought. At 13:10 hours, the arresting officer explained to the member in charge that after searching the car they had found a bag containing suspected cannabis resin and that, after caution, the prisoner had admitted ownership. Garda O’Halloran granted detention for a period of up to six hours, pursuant to the relevant regulations. At 13:11 hours, a search of Colm Roche yielded “a small notch of hash”. At 13:12 hours, article 5 of the Criminal Justice Act, 1984 (Electronic Recording of Interview) Regulations, 1997 (S.I. No. 74 of 1997) was read to the prisoner. At 13:13 hours he was brought to the doctor’s room for the purposes of a further search. At 13:20 hours he was placed in a cell. At 13:52 hours, a garda superintendent gave permission for the prisoner to be fingerprinted and photographed. Garda O’Halloran’s evidence then continued “I informed the prisoner of the same and at 2pm I informed the member in charge that Colm Roche was detained pursuant to section 4 of the Criminal Justice Act … [and] that was the end of my dealings.” No questions were asked by the defence. Garda Helena Power gave evidence of arresting Colm Roche and of bringing him to the station. As to his detention she stated that Garda O’Halloran “entered all details into the custody record” and that she had a conversation with him outlining her “reasons for requiring him to be detained.” She stated that “drugs had been found in a rucksack in a car and that Colm Roche had claimed ownership of this rucksack and bag.” As a result of that conversation she said that “Garda O’Halloran then detained Colm Roche under section 4 of the Criminal Justice Act.” She was later one of the gardaí who interviewed Colm Roche.

8. At the time when Colm Roche was interviewed, Garda O’Halloran had gone off duty to be replaced as member in charge of Clonmel garda station by Garda John Downey. He gave evidence before the trial judge that he commenced duty at 14:00 hours as “station orderly and member in charge … in accordance with section 4 of the Criminal Justice Act 1984.” Having taken up duty, he said, “there was a prisoner in custody, namely Colm Roche of [address redacted] having been arrested earlier in the day by Garda Power for an alleged breach of section 15 of the Misuse of Drugs Act.” Whether in giving his testimony Garda Downey was reading from the custody record or not, it is clear that the details which followed must have come from that source. He testified to making “relevant entries in relation to” his dealings with the prisoner. These included that at 14:25 hours the prisoner “was taken by Sergeant Hennebry and detective Garda Quinlan to be photographed and fingerprinted.” He next noted that at 14:47 hours, “the prisoner was returned to cell No. 4.” He next noted that at 15:15 hours “the prisoner was taken to the interview room with detective Garda O’Gorman and Garda Power.” He stated that at 15:44 hours he “visited the prisoner in interview room and … no requests or complaints were made of me.” He recorded that at 16:05 hours the prisoner was returned to the cell and that Garda Power handed him “three video cassettes, one of which was sealed.” He then said that at 16:26 hours, “the prisoner was released from Garda custody, having no complaints.” He said that “Mr Roche signed the custody record to this effect.” That concluded the evidence on the issue of lawfulness of custody.

9. In closing submissions, counsel for the defence submitted that a member in charge must have reasonable grounds for believing that the continued detention of a person in custody is necessary for the proper investigation of the crime and that there was no evidence that Garda John Downey had ever applied his mind to that issue.

10. On that question, the trial judge ruled as follows:

With regard to the 2nd application in relation to the detention, Garda O’Halloran was the member in charge when Garda Power brought in the prisoner, Mr Roche, to the station and it seems to me that the proper procedures were followed as between them and it seems to me also that Garda O’Halloran as the member in charge in deciding to detain Mr Roche under section 4 of the Act of 1984 had reasonable grounds for suspecting that his detention was reasonably necessary for that purpose. That detention took place at 10 past 1. Various other matters then followed and then at 2 o’clock he was relieved by Garda Downey. Garda Downey gave evidence of having relieved Garda O’Halloran and of the various matters that took place during the time that he was relieving his colleague. He did not say anything about satisfying himself of the reasonableness of the continued detention of Mr Roche. I’m quite certain that if he had even a relatively short conversation with his colleague that he would have satisfied himself because as I said, there were certainly in this case reasonable grounds for directing the detention of the prisoner. But he did not do so. It seems to me that this is not a situation which is covered by section 3 of the 1984 Act because that section – section 7.3, I should say, section 7.3 gives a discretion to the Court to admit evidence notwithstanding a breach of regulations made under the section. Now, but this – what is complained of here by the defence is not a breach of regulations, but a breach of the actual section and a criminal provision has to be construed strictly and with considerable hesitation then I must accede to the application in this request – in this regard, and I must rule that the continued detention of Mr Roche past 2 o’clock on the day was unlawful and I think it flows from that, I think, it [the statement in Garda custody] must be excluded.
11. It was from this ruling that the Director of Public Prosecutions requested the trial judge to state the issue now before the court.
The Criminal Justice Act 1984
12. The Criminal Justice Act 1984 effected two major reforms to the criminal justice investigation system. Prior to that legislation, where it was suspected that a felony had been committed, a garda could arrest the suspected perpetrator where there were reasonable grounds to support that suspicion. Felonies were not logically classified, so that the theft of a chocolate bar from a shop grounded this arrest power whereas a major fraud on a bank did not. The Act of 1984 made offences which could “under or by virtue of any enactment” be punished “by imprisonment for a term of five years or by a more severe penalty and to attempt to commit any such offence” the standard for arrest powers. Prior to the Act of 1984, persons arrested were regarded as being at the beginning of their imprisonment. Therefore, they had to be brought before a court as soon as was reasonably practicable. The time between arrest and the next proximate sitting of such a court could be used for questioning. That time was, however, variable and unregulated. It depended in part on when someone was arrested, on a Friday as opposed to a Monday morning, for example, and as to when a court might be sitting. Apart from judicial decisions as to the admissibility of confession statements, and apart from the Judges’ Rules, there was nothing to ensure that prisoners in custody were properly treated and questioned in such a way that a statement against interest might be publicly regarded as reliable. The Act of 1984 made provision for the first time for statutory regulations to be enacted for the protection of members of An Garda Síochána against unwarranted allegations of brutality, oppression and for the establishment of a code of conduct as to how prisoners should be correctly and humanely treated. Again for the first time, once there was a reasonable suspicion to ground an arrest, a person could be arrested for the purpose of questioning. The time limit was placed on that questioning of six hours but allowing for an extension pursuant to the direction of a Garda superintendent for a further six hours. Since section 9 of the Criminal Justice Act 2006 was introduced, the period may be extended by a chief superintendent for a further 12 hours; section 4(3). But, there are limits. Such limits also existed under the Offences against the State Act 1939, as amended, for arrest under section 30, but the application of that legislation to offences was as random as the categorisation of crimes as felonies and misdemeanours. Hence, maliciously damaging a window, as well as explosives or firearms offences, enabled detention under that legislation for a period of twenty four hours, capable of being extended to forty eight hours on the direction of a chief superintendent, but murder and rape did not.

13. Central to the protections set up by the Act of 1984, is the regulation of the custody of prisoners through subsidiary legislation. For the purposes of this appeal, the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 (S.I. No. 119/1987) applies. The principles upon which those Regulations are based are set out in the Act of 1984. As originally passed, the Act of 1984 did not allow for the suspension of detention for the purposes of the gardaí making “enquiries or investigations” but amendments were introduced by the Criminal Justice Act 2011 in that regard. These were not in force at the time of this arrest and detention and require no further mention.

14. Section 4(2) of the Act of 1984 provides that an arrested person “may be taken to and detained in a Garda Síochána station”. Detention for the period established in the legislation may be allowed only “if the member of the Garda Síochána in charge of the station to which the person is taken on arrest has at the time of the person’s arrival at the station reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence.”

15. This appeal has centred on the meaning of the duties cast on the member in charge by section 4(4) and section 4(5) of the Act of 1984 and these provide:

(4) If at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for suspecting that he has committed an offence to which this section applies, he shall be released from custody forthwith unless his detention is authorised apart from this Act.
(5) if at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for believing that his detention is necessary for the proper investigation of the offence to which the detention relates, he shall, subject to subsection 5A, be released from custody forthwith unless he is charged or caused to be charged with an offence and is brought before a court as soon as may be in connection with such charge or his detention is authorised apart from this Act.

16. As the outline of the legislation above will indicate, there may be cases where the member in charge who originally authorises detention remains in charge of the garda station throughout the whole of that prisoner’s time in custody there. More likely, it is not a leap of the imagination to suppose that people have entitlements pursuant to their work contracts to change shift, or to take a toilet or smoke break or meal break. Hence, it seems that at least every eight hours, and probably more frequently, someone will take over from the original member in charge who has had the relevant conversation with the arresting garda officer and who has authorised the detention. On behalf of Colm Roche it was argued that this subsection cast upon the member in charge who takes over, a duty to inform himself or herself as to the circumstances which originally warranted the arrest and as to the circumstances of the investigation, whereby it continues to be necessary to detain the prisoner for the proper investigation of the offence. That continuing duty, it was asserted on behalf of Colm Roche, was capable of being discharged episodically, so that an interruption for a meal or other temporary substitution would not, without more, disturb the legality of the detention. On behalf of the Director of Public Prosecutions, it was argued that while there was a continuing duty on the member in charge, the subsection did not require evidence that the garda officer taking over from the member in charge, who originally authorised the detention, should have as elaborate a knowledge of the circumstances of the original arrest and the progress of the investigation. If, however, something happened during the course of the detention which meant that the reasonable grounds, whereby the accused was suspected of having committed the offence, evaporated or whereby there were no longer any reasonable grounds for believing that his detention was necessary for the proper investigation of the offence, the member in charge would then have to intervene and require the release of the prisoner. An example of how reasonable grounds for suspecting that the prisoner had committed the offence for which he or she was arrested might evaporate could, counsel for the Director of Public Prosecutions asserted, involve a credible confession by another person; but even in that instance that admission need to be verified or otherwise investigated. Even where the prisoner had made a statement confessing to the crime in question, counsel for the Director of Public Prosecutions asserted that it might not then mean that there were no longer reasonable grounds for believing that the detention was necessary for the proper investigation of the offence. This is because corroborative evidence might need to be looked for or diligent police enquiries might appropriately follow-up on details of the apparent admission.
17. In The People (DPP) v Birney [2007] 1 IR 337, one of the issues before the Court of Criminal Appeal was delay in detaining a number of prisoners who had apparently been validly arrested on suspicion of the commission of the offence of membership of the self-styled Irish Republican Army. It was contended that this delay was contrary to law and rendered the subsequent detention of the prisoners unlawful. In the course of the judgment of the court, Hardiman J emphasised the importance of the member in charge of the garda station having an independent view as to the reasonableness of the suspicion for arresting the accused and of considering whether the detention of arrested persons was, on reasonable grounds, necessary for the further investigation of the offence. At paragraph 58, Hardiman J stated:

This court is of the view that it was clearly the intention of the Oireachtas that the member in charge of a garda station in circumstances where he is asked to detain a prisoner for the purpose of investigation of an offence pursuant to s. 4 should not merely be a rubber stamp. The role of the member in charge involves both a subjective and objective element and subjectively he must believe that the applicant’s detention is necessary and objectively must be satisfied that there are reasonable grounds for his belief. It is clear that the legislature, notwithstanding that s. 4 of the Act of 1984 has to be construed strictly, did intend that a reasonable period would have to be allowed to the member in charge to consider his decision following the arrival at the garda station of the arrested person and in the particular circumstances of this case this court is of the view that there was no departure from the intention of the legislature in the manner in which each of the applicants was dealt with and detained pursuant to s. 4 of the Act of 1984 and that each of the applicants was lawfully detained pursuant to s. 4.
18. Once there is a challenge to the legality of a detention on this ground, the trial judge must be satisfied that the member in charge of the garda station had “an independent bona fide belief that the person who has arrived in custody arrested without warrant, is a person who should be detained by him for a period not exceeding 6 hours from the time of the arrest as a necessary part of the proper investigation of the offence”; per Hederman J in The People (DPP) v O’Toole (Unreported, Court of Criminal Appeal, 20th of July 1990). The centrality of the member in charge in ensuring the proper course of the custody of an arrested person is also emphasised by the Regulations of 1987. Article 3(1) declares that in carrying out their functions such members in charge should “act with due respect for the personal rights of persons in custody and their dignity as human persons” as well as having particular regard to any who have “a physical or mental disability”. One of the abuses which might occur when a person is arrested is deliberate delay, used as a tactic to increase worry and stress. Hence, Article 3(2) forbids “unnecessary delay in dealing with persons in custody.” Persons who are to be members in charge are chosen by the superintendent in charge of a district and they are not to be, “as far as practicable”, involved in either the arrest or the investigation; Article 4(3).
19. One of the most important duties of the member in charge is to keep the custody record under Article 6 of the Regulations of 1987. This requires the recording “as soon as practicable” of such information as pertains to the person in custody. Under Article 7 it is required that record is to be kept of the “date, time and place of arrest and the identity of the arresting member”, of the “time of arrival at the station”, of the “nature of the offence or other matter in respect of which” the arrest took place and of “any relevant particulars relating to … physical or mental condition” of the prisoner. This is all written in the custody record. That form requires that the member in charge of authorising the detention should declare and sign a statement as to the particular prisoner declaring that the member in charge has “reasonable grounds for believing that the detention … is necessary for the proper investigation of the offence(s) in respect of which he/she has been arrested.” Any extension of detention for a further period has also to be particularised, recording the officer’s name and rank and that the officer had “reasonable grounds for believing that such further detention was necessary for the proper investigation of the offence concerned”. The regulations apply to all persons in custody and not simply to those arrested under the Act of 1984. Article 11 provides that an arrested person should have “reasonable access to a solicitor of his choice and be enabled to communicate with” that solicitor privately. The detained person is entitled to information “in ordinary language of the offence or other matter in respect of which” he or she has been arrested; Article 8. Such an arrested person is also entitled to “receive a visit from a relative, friend or other person with an interest” in his or her welfare provided that it would be capable of being properly supervised and not “hinder or delay the investigation of crime.” Article 12 provides that interviews are to be conducted “in a fair and humane manner.” As a matter of practice, the member in charge is to ensure that interviews do not last beyond the 4 hours as specified in Article 12 and, as the evidence before the trial judge indicates, periodic inspections are carried out. One such inspection was carried out in this case in compliance with the Regulations. Article 20 declares that persons in custody should not be subject to “ill-treatment of any kind or the threat of ill-treatment” and that there should be no threats to “the person himself, his family or any other person connected” with him or her. Article 24 provides for the preservation of custody records for “at least 12 months” or until the close of criminal or civil proceedings or the final determination of any complaint that might be made. Provisions as to information are contained in Articles 10 and 16. The proper conduct of personal searches is provided for in Article 17, including that the person to be searched “understands the reason for the search” and there is a duty on the garda conducting the search to pursue it with “due respect for the person being searched.” Provisions as to fingerprinting and photographing are contained in Article 18, and these were clearly followed on the basis of the evidence before the trial judge. The Regulations must be abided by, though a breach of the Regulations may be excused under some circumstances, as set out in s.7(3) and s.27(4) of the Act of 1984. There is no provision allowing for a breach of the Act to be excused. Any proposed exclusion of evidence should detention become unlawful would, as of the present time, be subject to an appropriate analysis in accordance with the decision of the Supreme Court in The People (DPP) v JC [2015] IESC 31.
Awareness
20. Certain aspects may be highlighted as to the awareness that is required of the member in charge of a garda station to which arrested prisoners are brought for the purpose of investigation under section 4 of the Act of 1984. Firstly, it is abundantly clear both under the terms of the legislation itself and on the authorities which have considered the matter, that the member in charge has a role in permitting the detention only of persons who are reasonably believed to be required to be detained for the proper investigation of the offence. Section 4(2) makes it clear that no detention should take place, even though a prisoner may have been arrested with reasonable cause in respect of the commission of an arrestable offence, unless on arrival at the station the member in charge is given reasonable grounds for believing that the detention is necessary. It is to be noted that the subsection confers that duty on “the member of the Garda Síochána in charge of the station to which the person is taken on arrest”. The requisite belief of the member in charge is to be formed “at the time of the person’s arrival at the station” or if the prisoner is actually arrested in the station, then at the time of “his or her arrest in the station”. That is a serious and solemn duty, which was clearly fulfilled on the basis of the evidence before the trial judge.

21. Secondly, there is a continuing supervisory duty over the detention which is exercised by the member in charge or any other member who replaces him as member in charge. That awareness concerns an ongoing obligation to ensure that a person is not continued to be detained in custody where the grounds for suspecting that the prisoner has committed an offence have dissipated. There is nothing to suggest on the evidence in this case that there did not remain reason to continue to suspect, and on reasonable grounds, that Colm Roche had committed the offence for which he was charged. That reasonable suspicion might be said to have finally dissipated with the ultimate verdict of the jury.

22. There is, thirdly, an obligation on the member in charge to ensure that there is no breach of the Custody Regulations. Nothing was adverted to either on the state of evidence as presented by the prosecution and there was nothing by way of testimony called by the defence, which would show that there had been any breach of the Regulations. A trivial breach, such as the recording of a routine matter might be excused, where however, there is a serious breach related to the human rights of the suspect, that could well be subject to a different analysis. Therefore, in that regard, it should be noted that nothing happened whereby the detention was rendered unlawful.

23. The condition, fourthly, for the release of a prisoner where there is no longer any “reasonable grounds for believing that his detention is necessary for the proper investigation of the offence to which the detention relates” is cast in section 4(5) in conditional terms. There must be a release but only, as the subsection indicates, “If at any time during the detention of a person pursuant to this section” the reasonable grounds which underpinned the necessity for the detention of the prisoner for the purpose of the ongoing investigation are removed. On the state of the evidence before the trial judge, that did not happen. The obligation cast in the section is clearly conditional upon the removal of the grounds upon which it became necessary to detain the prisoner for the proper investigation of the offence.

24. Colm Roche was properly detained upon his arrival in Clonmel garda station by Garda Brendan O’Halloran because there were objective circumstances which allowed him, as member in charge, to believe that his detention was necessary for the proper investigation of the offence. That decision was the justification for the legality of the detention of Colm Roche. It is correct that the initial period of 6 hours, as set out in section 4(3) of the Act of 1984, is not a minimum period for which a person may be detained unless a superintendent or a chief superintendent authorises detention beyond that maximum or any subsequent maximum period. Detention, instead, may be up to 6 hours. Nor, on the state of the evidence before the trial judge, did the gardaí in Clonmel approach the section under any erroneous state of mind. Once an interview had concluded, the process of releasing Colm Roche from detention was initiated about three hours and twenty minutes after his detention had been initially authorised. In the meanwhile, every significant event had been noted by the replacement member in charge, Garda Downey, in the custody record.

25. Essentially, the question of law raised in this case concerns the fact that no evidence was given that the member in charge of the station relieving another member in charge, including the original detaining member in charge, considered whether there were reasonable grounds for the original detention. On the evidence before the trial judge, there was an absence of testimony that Garda Downey had applied his mind as to whether or not there were reasonable grounds for the original detention. It is difficult to see any basis upon which Garda Downey, having regard to the provisions of the Act of 1984, could have any role in considering whether the decision of Garda O’Halloran to detain Colm. Roche was correct or not. If there were reasonable grounds for the detention of Colm Roche when he was brought to the Garda station and when Garda O’Halloran made the decision to detain, there could be no basis for Garda Downey to re-consider that decision. That decision, on the evidence, had been made in a responsible way by Garda O’Halloran and it was arrived at in the manner in which he was required to do it on the arrival of the prisoner at the station. In the absence of such evidence, the prosecution would have failed to prove that the initial detention was lawful.

26. A second limb of the question posed for the opinion of the Supreme Court concerns whether the fact that no evidence was given that the member in charge of the station relieving another member in charge, in this case the original detaining member in charge, considered whether there are reasonable grounds for continuing that detention, of itself render the continued detention of that person unlawful. It is best to return to what the learned trial judge in the course of his ruling on the matter observed:

Various other matters then followed and then at two o’clock he was relieved by Garda Downey. Garda Downey gave evidence of having relieved Garda O’Halloran and of the various matters that took place during that time that he was relieving his colleague. He did not say anything about satisfying himself of the reasonableness of the continued detention of Mr. Roche. I am quite certain that if you had even a relatively short conversation with his colleague that he would have satisfied himself because as I said, there were certainly in this case reasonable grounds for directing the detention of the prisoner. But he did not do so.
27. The trial judge could not have been correct in his conclusion on this point. On the face of the custody record, it was plain that at 13.52, a Garda Superintendent had given permission for the prisoner to be fingerprinted and photographed. Garda Downey himself testified that at 14.25 hours the prisoner “was taken by Sergeant Henneberry and Detective Garda Quinlan to be photographed and fingerprinted”. Thereafter, he noted that the prisoner was returned to his cell and subsequently that the prisoner was taken to the interview room. What is clear at this point is that when Garda Downey took over from Garda O’Halloran as member in charge, there were no circumstances present which would have called into question the continued detention of the prisoner. On the contrary, it appeared from the custody record itself that there was a valid reason for continuing the custody of the prisoner; namely, that as part of the ongoing investigation a Garda Superintendent had given permission for the prisoner to be fingerprinted and photographed. In those circumstances it is impossible to see how Garda Downey could ever have come to the conclusion that the continued detention of the prisoner was not necessary at that time. While there was no evidence given of any specific conversation between Garda O’Halloran and Garda Downey as to “satisfying himself of the reasonableness of the continued detention of Mr. Roche” the custody record made it abundantly clear that such continued detention was necessary. Garda Downey, at that stage, could hardly have come to the view that the continued detention of the prisoner was no longer necessary. It is puzzling, as Hardiman J notes in his judgment, why the prosecution did not ask one of the witnesses to prove the custody record.
28. Furthermore, the decision to detain the prisoner had, on the evidence, been made in a responsible way by Garda O’Halloran, in the manner in which he was required to do so, on the arrival of the prisoner at the station. To amount to a failure by the prosecution to prove that the detention was lawful, either that evidence had to be absent, which it was not, or there had to be some piece of evidence which on the prosecution case, the defence having not called any evidence, a situation had occurred whereby either: (a) the reasonable grounds justifying the arrest of Colm Roche had disappeared entirely or had become so weakened as to cease to be a basis for reasonable suspicion at all; or (b) some development had to have occurred whereby there were no longer “reasonable grounds for believing that his detention [was] necessary for the proper investigation of the offence to which the detention relat[ed]”.

29. The reality of this case is that no event occurred prior to the release of Colm Roche from custody which would have rendered his detention unlawful. There was nothing on the basis of the prosecution evidence in chief, and there was nothing brought out by cross examination by counsel for the defence, which demonstrated an absence of reasonable suspicion against Colm Roche in respect of the offence for which he had been arrested. Further, there was nothing in the prosecution evidence in chief, and there was nothing brought out by cross examination by counsel for the defence, which demonstrated any change in circumstances, whereby the decision carefully arrived at by Garda O’Halloran would have given Garda Downey any grounds for ordering the release of the prisoner on the basis that there were no longer any reasons for Colm Roche’s continued detention for the proper investigation of the offence. In short, the overall state of the evidence should have been looked at by the trial judge and not just one aspect of the relevant testimony.
In summary
30. In summary, therefore, Colm Roche was, on the evidence before the trial judge, properly arrested on the basis of a suspicion that he had committed an offence under s.15 of the Misuse of Drugs Act 1977, as amended. That suspicion did not, at any stage during the time when he was in garda custody for the purposes of the investigation of the offence, either dissipate or weaken. On arrival in Clonmel garda station, it was the duty of Garda O’Halloran, as the member in charge, to make enquiries of the arresting officer and to only authorise the detention there of Colm Roche where he subjectively believed, and where there was objective grounds to suggest, that the detention of the prisoner was necessary for the proper investigation of the offence for which he was arrested.

31. While there is an ongoing duty cast on the member in charge, and on the Garda replacing him as member in charge, to ensure that the Custody Regulations are complied with, there is nothing on the evidence in this case to suggest that this duty was cast aside or ignored. The evidence is quite to the contrary. While there is an ongoing duty to ensure that where the detention of an arrested person is no longer necessary for the proper investigation of the offence, that they should be released, there is not the slightest evidence before the trial judge that any such event occurred. The duty to order release either because the grounds for arrest have dissipated, or because there are no longer reasonable grounds for believing that the detention of the prisoner is necessary for the proper investigation of the offence, are entirely predicated upon the condition of an event happening which triggers either section. Hence, both s.4(4) and s.4(5) of the Act of 1984, begin with the words: “If at any time during the detention of a person pursuant to this section there are no longer …”

32. The trial judge concentrated on one aspect of s.4, as to the absence of evidence, but did not consider the conditional nature of the requirement for release. That condition in the legislation is entirely explicable and it logically flows from the scheme of detention whereby there should be an initial enquiry on “arrival at the station” and whereby detention should only be authorised on reasonable grounds but, once that is done, it requires the occurrence of a further event, whereby the failure to release renders unlawful the continued detention of a prisoner because of something happening. That could be new information. But, no such thing occurred. Therefore, the ruling by the trial judge was erroneous.
Questions
33. Both questions should therefore be answered in the negative. Whereas failure to give evidence that the member in charge of the station relieving another member in charge considered whether there were reasonable grounds for the original detention, or whether there were reasonable grounds for continuing that detention, was correctly highlighted by the defence, that, of itself, is not enough to render the continued detention of that person unlawful unless there is, on the evidence, an occurrence which requires the release of the prisoner already properly held from that detention.

 

People (DPP) v PA

[2008] I.E.C.C.A. 21
dgment of the Court delivered on the 21st day of February 2008 by Finnegan J.

The applicant was charged with one count of an offence of making a false statement, contrary to section 12(a) of the Criminal Law Act 1976. The particulars of the offence are that on the 18th June 2003 at Kevin Street Garda Station Dublin he knowingly made a false statement to Detective Garda Brian Kavanagh tending to show that offences of indecent assault and buggary had been committed by a male person during the approximate period of February and May 1981.
The Criminal Law Act 1976 section 12 provides as follows:-
“12. Any person who
(a) knowingly makes a false report or statement tending to show that an offence has been committed, whether by himself or another person, or tending to give rise to apprehension for the safety of persons or property, or
(b) knowingly makes a false report or statement tending to show that he has information material to any inquiries by the Garda Siochána and thereby causes the time of the Garda Siochána to be wastefully employed,
shall be guilty of an offence and shall be liable –
(i) on summary conviction, to a fine not exceeding £500 or to imprisonment for a term not exceeding twelve months, or to both, or
(ii) on conviction on indictment, to imprisonment for a term not exceeding five years.”

On the 27th April 2003 the applicant made a complaint that he had been sexually abused by a priest. He made a formal statement on the 18th June 2003. The complaint was investigated by Detective Garda Brian Kavanagh and other Gardai and their investigation disclosed numerous discrepancies in details given by the applicant in his statement to the Gardai. These discrepancies were put to him at a cautioned interview on the 18th October 2003 but at that interview he maintained his complaint.
On the 20th March 2004 the applicant was arrested at his parents house when five Gardai in all attended. Following his arrest he was taken to Kevin Street Garda Station. Two Gardai, Detective Garda Kavanagh and Detective Sergeant Walsh, remained behind at his parents’ house and interviewed his mother who at that time was seriously ill. A statement had previously been taken from her and on this occasion a further statement was taken. At this time the applicant’s mother was confined to bed, a bed having been made up for her on the ground floor of the house. Present throughout the interview was the applicant’s sister C. A.
At Kevin Street Garda Station the applicant was advised of his rights and given Form C72S. He requested a solicitor, Mr Hanahoe. He telephoned Mr Hanahoe’s office but not surprisingly this being a Saturday before 10 a.m. there was no answer: he was, however, advised of a mobile phone number which he could ring. He duly rang that number and left a message. Mr Hanahoe returned his call and spoke to the applicant but told him that he would not attend Kevin Street Garda Station.
Thereafter the applicant was interviewed on four occasions, the first, second and fourth interview being recorded on video. For the third interview there was no recording as the interview room in which the video recording equipment was situate and the equipment itself were in use. The applicant denied the offence resolutely in the first two interviews but in the third interview conceded the same. In the fourth interview the entire notes of the third interview were read over to him and he did not demur from the same. Between the second and third interviews the applicant had a visit from his sister.
The trial commenced on the 14th May 2007 and continued until the 5th June 2007. The first five days were consumed by a voir dire concerning the admissibility of the third interview.
In short the submissions on behalf of the applicant on this application were that the third interview was not voluntary because of a number of circumstances which surrounded its conduct and these circumstances as summarised by senior counsel for the applicant are as follows:-
1. The interview conducted with the applicant’s mother on the day of his arrest and the applicant being told before the commencement of the third interview by his sister that his mother was greatly distressed during the same.
2. The applicant had never previously been involved with the Gardai.
3. At interview conducted with the applicant on the 18th October 2003, when the discrepancies in his statement were discussed, Gardai were verbally abusive to him and threatening. He was also threatened that his father and mother would go to prison for five years if he persisted in his complaint.
4. Interviews 1 and 2 were from 10.39 a.m. to 12.54 a.m. and from 2.12 p.m. to 5.20 p.m., a total duration of five hours fifty three minutes and that this was excessive.
5. Non-compliance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997.
The totality of these circumstances it was submitted amounted to oppression. Reliance was placed on dicta of Sachs J. (as he then was) in a note to Martin Priestly [1966] 50. Cr.App.R. 183 at 51 Cr.App.R.1.
“I turn to what was really the main theme of defending counsel’s overall argument, that this was a case where the police had used oppression, or at any rate, if I may put it more exactly, that the prosecution had not disproved the allegation of oppression. Here it is convenient to refer to one short passage of what I said in Priestly. There I mentioned that I had not been referred to any authority on the meaning of the word “oppression” as used in the preamble to the Judge’s Rules, nor would I venture on such a definition, and far less try to compile a list of categories of oppression, but, to my mind, this word in the context of the principles under consideration import something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary…Whether or not there is oppression in any individual case depends upon many elements. I am not going into all of them. They include such things as the length of time of any individual period of questioning, the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not, and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of a tough character and an experienced man of the world.”

The court has also been referred to a number of Irish authorities. In The People (D.P.P.) v Bernard McNally and Osgur Breathnach, Court of Criminal Appeal, 16th February 1981, Finlay P. said –
“This court accepts with approval the description of oppressive questioning given by Lord McDermott in an address to the Bentham Club and adopted by the criminal division of the Court of Appeal in England in R. v Prager [1972] 56 Cr.App.R.151. In that address Lord McDermott described it as ‘questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hope (such as the hope of release) or fears, and so affects the mind of the subject that his will crumbles when he speaks when otherwise he would have stayed silent.’
This court would adopt with approval the definition of “oppression” in the context of questioning contained in the note of the judgment of Sachs J.(as he then was) in 51 Cr. App. R.1 where he defined it as follows:
“…to my mind this word in the context of the principles under consideration import something which tends to sap and has sapped that free will which must exist before a confession is voluntary…””

Again the court was referred to Shaw v The People (Director of Public Prosecutions) [1982] I.R. 1. In that case in his judgment Griffin J said:
“Since the admissibility of such statements is directly in issue in this case, I think it proper and desirable to express an opinion as to the correct approach to the question of admissibility of such statements. Before such statements are admissible, two conditions must be satisfied by the prosecution.
The primary requirement is to show that the statement is voluntary, in the sense in which that adjective has been judicially construed in the decided cases. Thus, if the tendered statement was coerced or otherwise induced or extracted without the true and free will of its maker, it will not be held to have been voluntarily made. The circumstances which will make a statement inadmissible for lack of voluntariness are so varied that it would be impossible to enumerate or categorise them fully. It is sufficient to say that the decided cases show that a statement will be excluded as being involuntary if it was wrung from its maker by physical or psychological pressures, by threats or promises made by persons in authority, by the use of drugs, hypnosis, intoxicating drink, by prolonged interrogation, by excessive questioning, or by any one of a diversity of methods which have in common the result or the risk that what is tendered as a voluntary statement is not the natural emanation of a rational intellect and a free will. As to the present case, there is no question but that the questioned statements were made voluntarily.

Secondly, even if a statement is held to have been voluntarily obtained in the sense indicated, it may nevertheless be inadmissible for another reason. Because our system of law is accusatorial and not inquisitorial, and because (as has been stated in a number of decisions of this Court) our Constitution postulates the observance of basic or fundamental fairness of procedures, the judge presiding at a criminal trial should be astute to see that, although a statement may be technically voluntary, it should nevertheless be excluded if, by reason of the manner or of the circumstances in which it was obtained, it falls below the required standards of fairness. The reason for exclusion here is not so much the risk of an erroneous conviction as the recognition that the minimum of essential standards must be observed in the administration of justice. 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. This is a fairer and more workable test than a consideration of whether the questioned statement complies with specific constitutional provisions, because most of the criminal trials in the State are held in courts (the District Court, the Circuit Court and the Special Criminal Court) which, in terms of their judicial personnel, judicial experience, and vested jurisdiction, are not designed for constitutional interpretation or the balancing of constitutional rights, or for the preferment of one invoked constitutional provision over another.”

The court accepts these principles and in the light of the same proposes to look at the individual issues raised on behalf of the appellant and whether individually or cumulatively they affect the third interview and the voluntariness of the admissions made thereat.
1. The Interview conducted with the applicant’s mother on the day of his arrest and the applicant being told before the commencement of the third interview by his sister that his mother was greatly distressed during the time.
When the applicant was arrested Detective Garda Kavanagh and Detective Sergeant Maura Walsh remained behind and spoke with the applicant’s mother. She had suffered a stroke and was quite ill and died shortly afterwards. The evidence of both Gardai was that Detective Garda Kavanagh sat at the end of the bed and Detective Sergeant Walsh sat on a chair beside the bed holding Mrs A’s hand during the course of taking the statement. The total time for which they remained in the house after the arrest was approximately fifteen minutes. In cross-examination it was suggested that the reason for remaining behind and speaking to Mrs A. was to put pressure on the applicant and this was denied. It was put to the witnesses that C.A. was distressed by the manner in which her mother was being questioned and this was denied. It was put to the witnesses that Detective Garda Kavanagh asked C.A. to call and see the applicant at the Garda Station at approximately 4.30 p.m. because she was close to the applicant and this was denied. C.A. did attend at Kevin Street Garda Station at 4.30 p.m. and later had a meeting with the applicant after which he was upset and crying. Garda Kavanagh’s evidence was that after the meeting C.A. told him that the applicant had told her that he had been telling lies. Almost immediately after that the third interview commenced and the applicant immediately made admissions.
The applicant gave evidence. When speaking to his sister he had decided to admit the offence because he did not want his mother to be further distressed. At the interview on the 18th October 2003 he had been threatened that if he did not admit that he had not been abused his mother and father would go down for a number of years, that they would be sent to prison for five or ten to twelve years. His sister had told him that Detective Garda Kavanagh and Detective Sergeant Walsh had remained behind after his arrest and interviewed his mother and that she was very upset and was crying a lot and was very worried.
C.A. gave evidence. Her mother had died on the 10th May 2004. She was present at the interview of her mother on the 20th March 2004. During the interview she was comforting her mother who was crying. The questioning was constant and she thought it unfair and it annoyed her. Detective Garda Kavanagh and Detective Sergeant Walsh were in the house from 8.45 a.m. to midday. Detective Garda Kavanagh asked her if she could come down to Kevin Street Garda Station at 4.30 and she asked him why and he said because she “was close to the applicant”. She agreed to go down to the Garda Station and attended there at 4.30 p.m. After about thirty minutes she met with the applicant in the detention cell. The applicant was very distressed and withdrawn and was unable to speak for almost five minutes. She told him that her mother and father were very upset over what had happened that morning. After meeting the applicant she was asked by Detective Garda Kavanagh whether the applicant had given any indication that he was going to make a true statement. She then went back and met again with the applicant who told her that he wanted to make a statement to protect his mother and father from going to prison as he had been threatened that they would go to prison for five to ten years. She encouraged the applicant to stick to his original statement. The applicant was distressed and crying. She then had a third meeting with the applicant during which he told her that he was frightened and wanted to protect his mother and father and that he was going to make a statement admitting that he had been lying. In cross-examination she denied that Detective Sergeant Walsh was holding her mother’s hand during the interview. She said that Detective Garda Kavanagh was extremely abusive and aggressive at the interview and as a result she swore at him.
In his submission at the end of the voir dire counsel for the applicant submitted that the invitation to C. A. to attend at Kevin Street Garda Station at 4.30 p.m. on the day the applicant was arrested was a cynical ploy to put pressure on the applicant. The learned trial judge rejected the evidence of the applicant and C.A. She was satisfied on the evidence of the videoed interviews that the applicant was not intimidated or under pressure. She was satisfied beyond a reasonable doubt that the admissions made were voluntary and not in breach of the applicant’s constitutional rights. The suggestion of “a cynical ploy” was not pursued before this court.
2. The applicant had never previously been involved with the Gardai.
The applicant had indeed previously been involved with the Gardai. He had made his initial complaint, he then attended at Kevin Street Garda Station to make a formal statement and further attended for a cautioned interview on the 18th October 2003. This interview on his own account was extremely unpleasant. The Gardai, he claimed, were verbally abusive to him and threatening towards him and towards his parents even though he had attended voluntarily. At the end of the interview he was not permitted to leave but was ordered to remain in the Garda Station for fifteen minutes. However he had never been charged or interviewed in relation to an offence prior to these events.
3. At interview conducted with the applicant on the 18th October 2003, when the discrepancies in his statement were discussed, Gardai were verbally abusive to him and threatening. He was also threatened that his father and mother would go to prison for five years if he persisted in his complaint.
The circumstances which attended this interview on the applicant’s account have already been set out.

4. Interviews 1 and 2 were from 10.39 to 12.35 and from 2.12 to 5.20, a total duration of five hours fifty three minutes and that was excessive.
This is factually correct. However the applicant was given food – a hamburger and chips. His sister brought him a sandwich. While on his own account he did not eat, on his sister’s account he did indeed eat both the hamburger and chips and the sandwich. There was much discussion as to whether he was given access to appropriate medication but he was given medication and had access to a doctor. The first interview lasted from 10.39 a.m. to 12.54 p.m. He was then allowed rest until 2.12 p.m. when the second interview commenced which continued until 5.20 p.m. He then had a further break, before the third interview, of one hour thirty minutes.
5. Non-compliance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997 (S.I. No. 74 of 1997)
At Kevin Street Garda Station one interview room only was equipped with video recording equipment. Another prisoner was taken to that room for interview at 6.25 p.m. and he was there with a three minute break only until 8.25 p.m. The applicant’s interview did not commence until 6.50 p.m. and finished at 8.10 p.m. This is the explanation for the failure to video the third interview. These facts are independently verified by the custody record.
The regulations at Regulation 4(3)(a)(ii) provide that where equipment is already in use at the time the interview is to commence and the member-in-charge considers on reasonable grounds that the interview should not be delayed until the equipment becomes available an interview is not required to be electronically recorded. Regulation 4(4) requires that where an interview is not recorded the member-in-charge shall enter or cause to be entered in the custody record of the person to be interviewed a note setting out the fact that the interview was not electronically recorded and the reason.
Sergeant McAvinchey was the member-in-charge at the relevant time and gave evidence that the third interview of the applicant started at 6.50 p.m. and at that stage the interview room equipped with electronic recording equipment was in use. He accepted that he did not make the entry required by Regulation 4(4) in the custody record. He could give no account of having considered whether or the grounds on which he determined that the interview of the applicant should proceed.
The Criminal Justice Act 1984 section 27(4) provides that any failure to comply with a provision of the electronic recording regulations shall not by itself render inadmissible in evidence anything said during such questioning. Again the Criminal Justice Act 1984 section 7(3) in relation to custody regulations, and in particular the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987, is to similar effect and a failure to observe any provision of the regulations shall not of itself affect the admissibility in evidence of any statement made by a person detained.
CONCLUSION
As to the first circumstance relied upon by the applicant the learned trial judge found on the evidence beyond reasonable doubt that there was no deliberate or cynical ploy on the part of the Gardai in conducting the interview with the applicant’s mother on the date of his arrest and suggesting to C.A. his sister that she should attend at the Garda Station that afternoon. The circumstances which occurred in The People (D.P.P.) v Ward, unreported Special Criminal Court, 27th November 1998 differ considerably from the present case. There Ward while in custody had a visit from his girlfriend after which he made admissions having refused to do so in the course of five previous interviews. His girlfriend had been arrested and interviewed at length allegedly aggressively. She was threatened that she would be charged as an accessory to murder. She was crying and very distressed. She did not ask to visit the accused but was nonetheless brought from Ballyfermot Garda Station to Lucan Garda Station to visit him. She was interviewed again at Lucan Garda Station and remained upset and frightened. She was told that a charge sheet was being prepared but was asked to go and see the accused and ask him where the gun was to be found and that if the accused told the Gardai where the gun was to be found they would let her and the accused go home. She asked the accused to give the Gardai the information which they sought. The Special Criminal Court held that there was no credible explanation as to why the interview at Lucan Garda Station took place. The accused’s mother, a woman of seventy four years of age was also arrested and detained at Cabra Garda Station. She did not ask to see the accused but nonetheless was brought to Lucan Garda Station where she was immediately taken to meet the accused. This distressed him. These events the court held amounted to a deliberate ploy. In this case there was evidence before the learned trial judge which she accepted and which justifies her finding. She had the benefit of seeing the relevant witnesses and so was far better placed than an appellate court to evaluate their credibility. There were conflicts between the evidence of the applicant and C.A. examples being his evidence that he had nothing to eat and her evidence that he had and his evidence that he would say anything at the third interview to get out of custody and go home to his mother while her evidence was that he did not wish to go home but wanted to go to hospital.
As to the second circumstance relied upon, this is to a large extent correct in that the applicant had involvement with the Gardai only in relation to his complaint which led to the charge preferred against him, the making of his statement and his interview on the 18th October 2003. This court is satisfied that his inexperience in these matters is not such as of itself to render his admissions involuntary.
As to the third circumstance the applicant’s evidence that at the interview on the 18th October 2003 threats were made to the applicant in relation to his father and particularly his mother the learned trial judge had regard to the circumstance that this occurred some five months prior to his arrest. The allegations were denied by the Garda witnesses. The learned trial judge did not make any finding on the evidence but rather considered it in the context of the decision to interview the applicant’s mother on the day of arrest and the invitation to his sister to attend at the Garda Station that afternoon as part of a cynical ploy. In this context she found that she was satisfied beyond a reasonable doubt that there was no such ploy.
On the next circumstance the learned trial judge was satisfied that the first and second interviews were not over long or oppressive. The Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations (Regulations 1987) Regulation 12(4)) provides that if an interview has lasted for four hours it shall be either terminated or adjourned for a reasonable time. The longer of the two interviews lasted three hours. Allegations made in the Circuit Court that the applicant had been denied food and medication was not pursued in this court. There were adequate and appropriate breaks between the first and second and between the second and third interviews. The applicant relied upon the The People (Director of Public Prosecutions) v Bernard McNally and Osgur Breathnach Court of Criminal Appeal 16th February 1981. In those cases there were very lengthy periods of questioning the interviews extending over forty four hours interrupted by one night’s sleep only and without the attendance of a solicitor notwithstanding repeated insistence that he should be afforded one.
Finally there was a non-compliance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997. Regulation 4(4) requires that where an interview is not recorded because, in this case, the equipment was already in use at the time of the interview, the member-in-charge shall enter or cause to be entered in the custody record of the person to be interviewed a note setting out the fact that the interview was not electronically recorded and the reason. Further the member-in-charge is required to consider on reasonable grounds that the interview should not be delayed. The Garda witnesses were unable to give evidence in relation to any discussion of the grounds but as found by the learned trial judge on the evidence the equipment was indeed in use throughout the entire period of the third interview except for a matter of minutes when there was a short break. Further there were only two hours left of the applicant’s period of detention. This court is satisfied that that these factual circumstances, notwithstanding the absence of evidence as to the grounds in fact relied upon for the interview taking place, justified the interview taking place in the absence of recording facilities. The Criminal Justice Act 1984 section 27(4) provides that any failure to comply with a provision of the recording regulations shall not by itself render inadmissible in evidence anything said during questioning. It is accordingly appropriate to look at the other circumstances mentioned above in conjunction with this failure and to determine whether cumulatively they affect the admissibility of the statement. Having done so this court is satisfied that the cumulative effect of the circumstances is not such as to render the statement inadmissible. Again there was a non-compliance with the electronic recording regulations and the custody regulations in that the fact that the interview was not electronically recorded and the reason was not recorded in the custody record. In this regard section 7(3) of the Criminal Justice Act 1984 is to the like effect of section 27 so that the failure by itself does not render the statement inadmissible. Again the court has regard to the other circumstances relied upon by the applicant. The court is satisfied that the cumulative effect of the circumstances relied upon has not the effect of rendering the statement inadmissible.
In these circumstances the applicant fails on the grounds relied upon before this court and accordingly the court will treat the application for leave as the hearing of the appeal and dismiss the same.

DPP v Howard

[2016] IECA 219

Judgment of the Court delivered by Mr. Justice Edwards on 20th day of July 2016
1. The appellant was convicted of two counts of murder in the Central Criminal Court on 25th May, 2012, following a twenty six day trial.

2. A number of grounds of appeal are made by the appellant in relation to his conviction. For convenience, these grounds of appeal will be addressed in four separate sections in the course of this judgment. These sections will address the following:-

(i) The grounds of appeal relating to the appellant’s arrest.
(ii) The grounds of appeal relating to the admissibility of interviews of the appellant whilst in garda custody (including the alleged breach of the appellant’s constitutional rights in relation to his request to see a solicitor).

(iii) The ground of appeal relating to the authorisation of the extension of the appellant’s detention in Kevin Street garda station.

(iv) The ground of appeal relating to the learned trial judge’s charge to the jury.

Background facts
3. Mr. Paddy Mooney and Mr. Brendan Molyneaux were both killed by gun shot wounds on 10th January, 2010, at 4G Pearse House, Dublin 2. The gardaí were alerted, and a double murder investigation commenced.
4. The appellant was arrested at 9:25 p.m. on 10th January, 2010, following a forcible entry into the premises at his home in Finglas, where he was present with his partner and their young child. Immediately after the arrest, a search warrant which the gardaí had earlier obtained was shown to the appellant’s partner, and the house was then searched on foot of that warrant. The validity of the search warrant was not challenged by the appellant. The appellant was brought to Kevin Street garda station, where his detention was authorised by Sergeant Brian Burke pursuant to s. 50 of the Criminal Justice Act 2007 (“the Act of 2007”) at 10:29 p.m. Sergeant Burke said he was satisfied that the appellant’s detention was necessary for the full and proper investigation of the offences with which he was arrested, namely, the murders of Mr. Mooney and Mr. Molyneaux.

5. Whilst in custody, the appellant was interviewed on a number of occasions by the investigating gardaí, in the course of which admissions were made in respect of the double murder.

6. After an initial period of detention of six hours in Kevin Street garda station, the appellant’s detention was extended by authorisation of Detective Superintendent Gabriel O’Gara. It is contended by the appellant that this authorisation of the extension of detention by Detective Superintendent O’Gara is not valid because he was not independent of the investigation into the double murder.
(i) The grounds of appeal relating to the appellant’s arrest
7. Submissions were made to the learned trial judge in the course of a voir dire on Day 4 of the trial (20th April, 2012) in relation to the issue of the appellant’s arrest. Evidence was given by Sergeant Paul Tallon, Superintendent Gabriel O’Gara and Chief Superintendent John Twomey in respect thereof.

8. Sergeant Tallon gave evidence that he attended at the scene of the double murder at approximately 8 p.m. on 10th January, 2010. He received confidential information which suggested that the appellant was the perpetrator of the double murder. A search warrant was obtained from Detective Superintendent O’Gara (s. 29 of the Offences against the State Act 1939 as amended) in relation to an address in Finglas, where it was known that the appellant was residing with his girlfriend and young child. A search team was assembled, including Sergeant Tallon as well as members of both the Emergency Response Unit (ERU) and the Organised Crime Unit of An Garda Síochána. On arrival, gardaí forced the front door and entered the premises. Sergeant Tallon stated in evidence that his purpose in entering the premises was two fold: one was to arrest the appellant, and the other was to search the premises.

9. Sergeant Tallon’s evidence was that immediately upon entering the premises by force, the team confronted the appellant and arrested him at 9:25 p.m. The appellant’s hands were placed in plastic bags for evidence related reasons. The appellant’s partner was then informed about the search warrant; it was shown to her, and the premises were subsequently searched.

10. When asked about the power of arrest under which he had operated when arresting the appellant, Sergeant Tallon stated “for an arrestable offence under the Criminal Law Act 1997”. Sergeant Tallon was extensively cross examined in relation to the basis upon which he arrested the appellant.

11. Mr. Gillane S.C., counsel for the appellant, made a detailed submission to the learned trial judge in relation to the arrest issue. He concluded his submission in the following terms:-

“But the Supreme Court .. indicated that it could not, and would not, separate what would have otherwise been a lawful from an initial unlawful arrest where the unlawful factor was the dominating factor through which and by which the arrest was achieved. And in this case, I respectfully submit that the arrest of Mr. Howard, the dominating factor in the arrest of Mr. Howard was the warrant, which everyone at the time was relying on, and which was used to secure entry into the premises and is the only authority invoked by anybody to explain their presence there and was, in fact, the authority through which and by which an arrest was secured. And in my respectful submission, that ultimately leads to the conclusion, as in Laide, that the arrest must be unlawful.”
12. The learned trial judge ruled that the arrest of the appellant was lawful. He stated:-
“In this case the lawfulness of the arrest of the accused has been challenged. That been so, the onus lies on the prosecution to prove the lawfulness of the arrest and to prove it to the standard of beyond reasonable doubt. The material evidence which was adduced on this application is as follows. Sgt. Tallon is a member of the Divisional Crime Task Force and he attended the scenes of these killings at 8 p.m.. He spoke to Detective Superintendent O’Gara who gave him confidential information to the effect that the accused, Gary Howard, was implicated. He conveyed that he had sensitive information in his possession that Mr. Howard had made arrangements for Mr. Molyneaux (one of the deceased), to be in the flat at the material time and that he had bicycled over. He was satisfied that Mr. Howard was the person responsible for the killings. At Pearse St. garda station Superintendent O’Gara told him of confidential information that Mr. Howard had returned home. He applied to the Superintendent for a search warrant. He was satisfied that he was residing there. And Superintendent O’Gara issued a warrant under s. 29 of the Offences against the State Act. He was searching for a firearm and for a mobile phone which he believed would be found there. He went to Finglas and met the Emergency Response Unit and briefed them. He was satisfied that Mr. Howard would be present on the premises and he feared an armed confrontation would take place. He had two purposes in mind. One was to effect Mr. Howard’s arrest, and secondly, to carry out a search. The plan was that entry would be effected by force, and the door was closed; this was 9.25 p.m.. He stood behind members of the ERU because they were armed. The front door was put and he described specialist tools being available for that purpose. He was met by Mr. Howard in the hallway and he put him to the floor. This was at 9.25 p.m. He arrested him for double murder and he cautioned him. Plastic bags were put over his hands to preserve any forensic samples that might be there. Mr. Howard was handcuffed. He was removed from the scene in a patrol car.. Inside was Jennifer Brown and I showed her the warrant and told her we would search. She was arrested when her mother arrived to care for the child, and taken to Kilmainham garda station. Now, Mr. Howard was arrested for the arrestable offence of murder .. But we are dealing here with a situation where two people have been executed out of the blue in the one room, and the persons whom the guards are satisfied has perpetrated this is behind a closed door, armed to the best of their knowledge, information and belief. What is the State to do? Is it to throw its hat at the situation or is it to try and look to see if it has any alternative powers?
In my opinion, the clear duty of the State was to look to see if they had any alternative powers to deal with the situation, and they looked at s. 6 of the Criminal Law Act 1997 and decided that it was applicable and saved the day for them on this particular issue. Maybe it did, maybe it did’nt, that will ultimately for another court to decide. But so far as I am concerned they found powers which were applicable to the situation, and which, on this issue, have saved the day for them …

The conditions between the two cases are wholly different [this was a reference to a comparison of the facts in this case and the facts in DPP v. Laide and Ryan [2005] 1 I.R. 209]. Now, it cannot in the first instance be expected that the guards are going to exercise powers and say at the time “in the case these powers turn out to be found wanting in some respect by the Supreme Court we are going to invoke any fall back powers we might be able to find” and secondly, nice polite expressions cannot be expected where the guards are in front of a door, behind which they suspect is somebody who is armed and has killed within the last two hours. In my view the arrest in this case was lawful and the prosecution has discharged the onus that rested upon them.”

13. As already stated, Sergeant Tallon’s evidence, in response to a question asked of him about the power of arrest that he had used in relation to the appellant, was to state “for an arrestable offence under the Criminal Law Act 1997” (Day 4 p. 7). When asked what the purpose was in seeking to enter the appellant’s premises, Sergeant Tallon stated “I had two purposes on arrival. One was to arrest Gary Howard, and two was to search the premises.” (Day 4 p. 5). Sergeant Tallon also stated the basis for his belief that the appellant resided at the Finglas premises where the forcible entry and arrest took place. He stated the following (Day 4, p. 3):-
“… Superintendent O’Gara informed me of again confidential information of a secretive and sensitive nature which stated that Gary Howard had returned to his residence of 2 Dunsoghly Grove in Finglas.”
14. He was then asked “Did you know who he was living there with?,” to which he replied “His girlfriend, Jennifer Brown … and his child”.
15. Sergeant Tallon was later asked “Were you satisfied he was residing there?”, to which he replied “Yes, and I was satisfied that he had returned there as well …”

16. Section 4(3) of the Criminal Law Act 1997 provides as follows:-

”Where a member of the Garda Síochaná, with reasonable cause, suspects that an arrestable offence has been committed, he or she may arrest without warrant anyone whom the member, with reasonable cause, suspects to be guilty of the offence.”
17. Section 6(2) of the Criminal Law Act 1997 provides:-
” For the purpose of arresting a person without a warrant for an arrestable offence a member of the Garda Síochaná may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where that person is or where the member, with reasonable cause, suspects that person to be, and where the premises is a dwelling the member shall not, unless acting with the consent of an occupier of the dwelling or other person who appears to the member to be in charge of the dwelling, enter that dwelling unless-
…

(d) the person ordinarily resides at that dwelling.”

18. Section 6(2) of the Criminal Law Act 1997 therefore provides for the forcible entry into a dwelling “[f]or the purposes of arresting a person without a warrant for an arrestable offence” and “search any premises … where that person is …”, if “the person ordinarily resides at that dwelling”.
19. The fact that the gardaí had in their possession a valid search warrant for the premises in question did not of itself invalidate the arrest, because it took place before the production or operation of the search warrant. The existence of the search warrant was to facilitate a search of the premises. The procedure sanctioned by a search warrant is separate and distinct to the process of effecting an arrest, although there will often be a close association between the two.

20. In the circumstances of this case, and having regard to the evidence of Sergeant Tallon, s. 4(3) and s. 6(2) of the Criminal Law Act 1997, independently of each other, permitted the gardaí to arrest the appellant immediately upon entering the premises and prior to the production of the search warrant relating to the premises. The gardaí had good reason to be concerned about their own safety, the safety of the public and indeed the appellant’s safety, having regard to the fact that a short time prior to their arrival at the premises it was their belief that the appellant had murdered two men in what appeared to be quite brutal circumstances. An unannounced and forcible entry into the premises followed by the immediate arrest of the appellant was of the utmost importance. There was no requirement in the circumstances for the gardaí to delay the arrest of the appellant until after the production of the search warrant.

21. This Court is therefore satisfied that the arrest of the appellant was lawful.
(ii) The grounds of appeal relating to the admissibility of interviews and the request for a solicitor
22. The grounds of appeal relating to these issues are as follows:

1. The learned trial judge erred in fact and in law in determining that the interviews with the appellant whilst in garda custody were admissible in evidence in the trial.
2. In relation to same, the learned trial judge erred in law and in fact in holding that the said interviews were not the result of inducements and/or threats or oppression and/or were not a breach of the appellant’s constitutional rights and/or were not otherwise inadmissible in law as being unsafe and unreliable and contrary to fundamental fairness of procedures.

23. In the course of the appellant’s detention, between his arrest on 19th January, 2010, and the evening of 15th January, 2010, the appellant made certain important admissions in the course of a number of interviews in Kevin Street garda station. At the trial, the prosecution sought to admit these, and other, inculpatory statements. Their admissibility was challenged by the appellant on a number of grounds. These were the subject of submissions and legal argument in a voir dire over a number of days to the effect, (inter alia), that recorded admissions made by the appellant in the course of an interview on the afternoon of 13th January, 2010, should be excluded from the jury because a request by the appellant to see his solicitor had not been followed up by the gardaí. At its conclusion, the trial judge ruled as follows:-
“I am satisfied to the standard beyond reasonable doubt of the following matters. One, the guards were investigating a most nasty and brutal assassination of two completely innocent people. Two, they had confidential and secret information which they absolutely believed that the accused was the hit man. Three, he was lawfully arrested and was in lawful custody. Four, his rights of access were generously vindicated and, where there was any delay, he was not prejudiced thereby. Four, he knew the score and spoke the language, and when he spoke about being sectioned before he was not speaking about the mental health acts. Five, his rights of access to medical attention was fully vindicated. Six, any interference with his right of access to his family was for necessary and justifiable operational reasons. Seven, thorough and vigorous interrogation was required to get him to engage with the interview process, and any techniques employed were justified by the exigencies of the situation. Eight, it is fanciful to say that he could have been coerced into confessing during an off camera moment. His demeanour and trembling while actually confessing could not have been feigned as a result of any coercion in an off camera moment or otherwise. Nine, I am satisfied to the standard beyond reasonable doubt that the admissions were voluntary ones made without coercion, deception, threats or promises at a point in time when the accused was taking a realistic view of his situation and confronting it. His demeanour and trembling to me rule out any other rational hypothesis. Ten, in reaching my conclusion I have relied primarily on the custody record and on the video record of the interviews. The material contended for, I find it to be admissible. Jury back please.”
24. Prior to giving his ruling, the learned trial judge viewed the relevant video recordings of the interviews.
25. The appellant contends that his request to speak to his solicitor made in the course of an interview between 4:03 p.m. and 4:25 p.m. on 13th January, 2010, which was conducted by Detective Sergeant Whitelaw and Detective Garda Cronin, was not processed and that that failure to contact his solicitor amounted to a denial of his constitutional rights, with the consequence that his inculpatory statement, made less than one hour later, should therefore have been ruled inadmissible by the learned trial judge. As indicated above, the learned trial judge ruled that the appellant’s “rights of access to a solicitor were generously vindicated, and where there was any delay, he was not prejudiced thereby.”

26. In the course of the interview between 4:03 p.m. and 4:25 p.m. on 13th January, 2010, the appellant asked to speak to his mother, and to his solicitor. In the course of this approximately twenty minute interview, the appellant made this request on three occasions. This was accepted as correct by Detective Garda Cronin. The decision was made not to facilitate the requested meeting with the appellant’s mother, and no steps were taken to contact the appellant’s solicitor. Normal procedure in these circumstances would have been for one of the interviewing gardaí to advise the Member in Charge of the request (to speak to his solicitor), and the Member in Charge would make the necessary contact. The request was not communicated to the Member in Charge, and contact with the appellant’s solicitor was therefore not made. It is not suggested that the failure to advise the Member in Charge, and more particularly the failure to contact the appellant’s solicitor, was in any way deliberate. In the period between the conclusion of the interview at 4:25 p.m. and the commencement of the interview at 4:50 p.m. (during which interview the inculpatory statement was made), the appellant was brought to the exercise yard for a cigarette and then returned to his cell for a short period of time where he consumed a bottle of coca cola, all at his request. During this time, the request to see his solicitor was not repeated by the appellant. Towards the end of the interview that had commenced at 4.50 p.m., the request to see his solicitor was repeated by the appellant, when he said “I might have more to tell yous, I just want to see me ma, see me solicitor and get a bit of exercise”.

27. The appellant’s first interview with Detective Sergeant Whitelaw and Detective Garda Cronin took place at 8:40 a.m. on 11th January, 2010, the day following his arrest. In the course of 11th and 12th January, 2010, and up to the interview commencing at 4:03 p.m. on 13th January, 2010, thirteen such interviews took place. In the course of his entire period of detention, the appellant had contact with his solicitor on approximately sixteen occasions; on seven of these occasions, the appellant spoke to his solicitor by telephone, and on nine occasions the appellant had face to face meetings with his solicitor in the garda station. On another occasion the appellant’s solicitor came to the garda station to see the appellant, but did not wait to do so. On two or three occasions the appellant declined to speak to his solicitor, who had contacted the garda station by phone. The appellant’s first contact with his solicitor was on the day of his arrest, 10th January, 2010. This contact was by telephone and within twenty minutes of his arrival at Kevin Street garda station. Shortly afterwards, the appellant’s solicitor visited the garda station and spoke to the appellant. On that occasion the appellant’s solicitor was in the garda station for approximately one hour. The following day, 11th January, 2010, the appellant spoke to his solicitor in the garda station on two occasions, and on 12th January, 2010, he spoke to his solicitor on two occasions and met him on one occasion. On 13th January, 2010, the appellant spoke to his solicitor by telephone less than three hours before the commencement of the 4:03 p.m. interview. Approximately one hour or so following the conclusion of the 4:50 p.m. interview, the appellant had a face to face meeting with his solicitor. Later that evening, the appellant had another face to face meeting with his solicitor.

28. Throughout the period of his detention, the appellant frequently invoked his right to silence in the course of a number of interviews. Early on the morning of 13th January, 2010, in the course of an interview, the appellant specifically referred to advice given to him by his solicitor to make no comment. In the course of that interview and a second interview at 10:50 a.m. on that morning, he invoked his right to silence. He again referred to advice given to him by his solicitor to remain silent in the course of an interview at 1:49 p.m. on 13th January, 2010. On 14th and 15th January, 2010, there were a number of occasions when, in the course of interviews, the appellant invoked his right to silence. During an interview which commenced at 7:40 p.m. on 14th January, 2010, and immediately following a consultation with his solicitor, the appellant made admissions and expressed his apologies to the families of the two murdered men in the course thereof.

29. In the course of his submissions, counsel for the appellant referred the court to the judgment of Clarke J. in the case of The People (Director of Public Prosecutions) v. Gormley and White [2014] 2 I.R. 591. The facts of that case (insofar as they related to Mr. Gormley) were that Mr. Gormley had been arrested and subsequently interviewed by the gardaí after his solicitor had been contacted, but before the solicitor had arrived at the station and been afforded the opportunity to give legal advice to Mr. Gormley. At p. 634 Clarke J. stated:-

“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 Saludz v. Turkley (App. No. 36391/02) (2009) 49 EHRR 19 and by the United States Supreme Court in Miranda v. Arizona (1966) 384 U.S. 436, 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.”
30. Clarke J. went on to state:-
“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.”
31. The decision in the Gormley case is a clear authority for the proposition that the right to legal advice before interrogation is an important constitutional entitlement of high legal value and, as stated by Clarke J. in the course of his judgment, that:-
“[i]f any exceptions to that right are to be recognised then it would be necessary that there would be wholly exceptional circumstances involving a pressing and compelling need to protect other major constitutional rights such as the right to life.”
32. There are important distinguishing features between the facts in the Gormley case and the facts in the case under appeal. In Gormley, following his arrest Mr. Gormley was informed of his rights, and he gave the gardaí the names of two solicitors. Efforts were 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. At 3:06 p.m. the solicitor contacted the garda station and confirmed that he would attend at the station shortly after 4 p.m. Notwithstanding that fact, and prior to the solicitor calling to the garda station, Mr. Gormley was interviewed at 3:10 p.m. by the investigating gardaí, in the course of which he made a number of inculpatory admissions. The solicitor later arrived at 4:08 p.m., after the conclusion of the relevant interview. In the case under appeal, the appellant was arrested on 10th January, 2010, at 10:10 p.m. Within half an hour or so, both at the appellant’s request and prior to him being interviewed, the nominated solicitor was contacted and spoke to the appellant for five or six minutes. Within an half an hour or so thereafter, the solicitor arrived at the garda station and had a consultation with his client. There was contact between the appellant and his solicitor both by phone and on a face to face basis over the following two to three days, during which the appellant was interviewed on a number of occasions, and in the course of which interviews he invoked his right to silence on some of those occasions. By the time the appellant was interviewed on the afternoon of 13th January, 2010, he had been visited by his solicitor and had spoken to him on a number of occasions for varying periods of time. It is certainly the case that in the course of 10th, 11th, 12th and in the early part of 13th January, 2010, the appellant had had regular contact with his solicitor. No requests to see his solicitor were denied during this period of time. To this very important extent, there is a significant difference in the circumstances that were present and evident in the case under appeal, as compared to the Gormley case.
33. It is evident that by the afternoon of 13th January, 2010, the appellant had received comprehensive legal advice from his solicitor and had understood that advice. On many occasions during this period, the appellant invoked his right to silence and occasionally referred to the fact that he had received advice from his solicitor to so do. He was not in the position of an individual who was unaware of his legal rights, particularly his right to remain silent and to make no comment in response to questioning by gardaí. As commented by the learned trial judge, the appellant “knew the score and spoke the language”.

34. Undoubtedly, having regard to the circumstances in this case, the appellant’s request to see his solicitor, made by him in the course of the 4:03 p.m. interview on 13th January, 2010, should have been conveyed by the interviewing gardaí to the Member in Charge, and arrangements should have been made to contact the solicitor. Regrettably, this was not done. Similar requests had been complied with on a number of occasions previously, and indeed subsequently. There is nothing to suggest, and it certainly does not appear to be the case, that the failure to follow up on the appellant’s request to see his solicitor was in any way deliberate on the part of the gardaí.

35. This Court is satisfied that by the afternoon of 13th January, 2010, the appellant had had numerous opportunities to engage with his solicitor and that he had done so quite extensively; he had received legal advice, including his legal entitlement to remain silent at interview, and he had acted upon such advice. It could not therefore be said that the failure to contact his solicitor on this single occasion amounted to a breach of his constitutional rights such as would imperil the admissibility of the statement made by him in the course of the afternoon of 13th January, 2010.
The complaint of oppression
36. The appellant also alleges that the trial judge’s ruling upon his general complaint of oppression, which complaint was based upon the circumstances and manner in which he was interrogated, was incorrect both as to the facts and in law, and that evidence of the admissions made by him on the 13th of January, 2010, and subsequently, ought properly to have been excluded from the jury on the grounds that they were not voluntary.

37. In particular, it was submitted that the appellant had been placed in an extreme position of pressure throughout his detention. It was contended that the conditions of the appellant’s detention were such that any admissions produced during it were in circumstances falling “below the required standards of fairness”, which were identified in The People (Director of Public Prosecutions) v. Shaw [1982] I.R. 1 at p. 61 as being the litmus test in such matters.

38. The questioning of the appellant took place during 26 interviews in total, conducted over five days from the 11th of January, 2010, until the 15th of January, 2010. Based on the transcript of the trial, and a chronology helpfully appended to the respondent’s written submissions, the course of the interviewing process may be synopsised as follows:-

Interview No. 1: 11/01/2010 8:40 a.m. – 10:59 a.m.
The appellant is interviewed by Detective Sergeant Whitelaw and Detective Garda Cronin. During this interview, the appellant relies on his right to silence in stages and denies any involvement in the murders of Mr. Molyneaux and Mr. Mooney. He tells the interviewers to fuck off.

Interview No. 2: 11/01/2010 11:15 a.m. – 12:35 p.m.

The appellant is interviewed by Detective Garda Williams and Detective Garda Donnelly. During this interview the appellant relies on his right to silence.

Interview No. 3: 11/01/2010 2:20 p.m. – 3:50 p.m.

The appellant is interviewed by Detective Garda Des Rogers and Detective Sergeant Tallon. In this interview the appellant accepted that he had been in 4G Pearse House before. He denied involvement in the murders and said that on that day he had walked from York House (where his father resided) through Temple Bar to Amiens Street. The appellant also answered questions about shooting his horse with a Dillinger the previous Friday.

Interview No. 4: 11/01/2010 4:20 p.m. – 6:35 p.m.

The appellant is interviewed by Detective Sergeant Whitelaw and Detective Garda Cronin. During this interview the appellant says that his partner, Jennifer Browne, drove him into town on the 10th January, 2010. He relies on his right to silence in answer to certain questions, but he also says that, although he would have been breaking an exclusion order to which he was subject, he was in Sheriff Street at the time of the murders with Christopher McCarthy, Leroy Howard, Adrian Barrett, Stephen Byrne and Joanne Farrell.

Interview No. 5: 11/01/2010 10:30 p.m. – 11:50 p.m.

The appellant is interviewed by Detective Garda Des Rogers and Detective Sergeant Tallon. During this interview the appellant relies on his right to silence mostly but does say that he would be surprised if someone said he was at 4G Pearse House at the time of the murders.

Interview No. 6: 12/01/2010 8:35 a.m. – 10:17 a.m.

The appellant is interviewed by Detective Sergeant Whitelaw and Detective Garda Cronin. During this interview the appellant relies on his right to silence.

Interview No. 7: 12/01/2010 10:50 a.m. – 12:32 p.m.

The appellant is interviewed by Detective Garda Williams and Detective Garda Donnelly. During this interview the appellant relies on his right to silence.

Interview No. 8: 12/01/2010 2:28 p.m. – 4:13 p.m.

The appellant is interviewed by Detective Garda Des Rogers and Detective Sergeant Tallon. During this interview the appellant is shown CCTV from 4G Pearse House, and he says that at the time of the murder he was at Sheriff Street. He also says that he hid his phone in the back garden because he thought that his house was going to be raided from seeing Garda cars outside his house as it had happened on previous occasions. The appellant is asked why he does not wish to co-operate with the investigation, and the appellant replies that he is ‘acting on the advice of my solicitor, he told me not to answer any questions’.

Interview No. 9: 12/01/2010 4:38 p.m. – 6:32 p.m.

The appellant is interviewed by Detective Sergeant Whitelaw and Detective Garda Cronin. During this interview the appellant relies on his right to silence.

Interview No. 10: 12/01/2010 7:56 p.m. – 8:35 p.m.

The appellant is interviewed by Detective Garda Williams and Detective Garda Donnelly. During this interview the appellant is questioned about the alibi he provided during earlier interviews putting him in the Amiens Street/Sheriff Street area in the company of other people at the time of the murders.

Interview No. 11: 12/01/2010 10:57 p.m. – 11:43 p.m.

The appellant is interviewed by Detective Garda Des Rogers and Detective Garda Philip Byrne. During this interview the appellant is shown CCTV from Spar and York House. For the most part, he relies on his right to silence.

Interview No. 12: 13/01/2010 08:33 a.m. – 10:24 a.m.

The appellant is interviewed by Detective Sergeant Whitelaw and Detective Garda Cronin. During this interview the appellant is questioned about the comments he made to his mother at a court hearing the previous evening. He replies the ‘corporation has me excluded from the area, and the boys would think they were doing me a favour by not telling the truth’. He says that if he breaks this exclusion order then his ‘ma gets fucked out of the house’. The appellant says at one point that he ‘is sticking to my solicitor’s advice and have no comment to make’.

Interview No. 13: 13/01/2010 10:50 a.m. – 12:37 p.m.

The appellant is interviewed by Garda O’Donovan and Garda Daly. During this interview the appellant is questioned about the comments he made to his father the previous evening prior to a court hearing. The appellant relies on his right to silence.

Interview No. 14: 13/01/2010 1:49 p.m. – 3:55 p.m.

The appellant is interviewed by Detective Garda Williams and Detective Garda Donnelly. During this interview the appellant confirmed that he had been advised to remain silent by his solicitor. He also tells the interviewers that he had previously been ‘on sections in Ballymun and Blanchardstown and they have been able to tell me what’s on my phone without having my phone’. At the conclusion of the interview, the appellant is asked if the notes are correct, and the appellant replies that he wants ‘to change a few things, on all the questions that I answered I now want to say no comment on the advice of my solicitor’.

Interview No. 15: 13/01/2010 4:03 p.m. – 4:25 p.m.

The appellant is interviewed by Detective Sergeant Whitelaw and Detective Garda Cronin. During this interview a statement from Thomas Nalty is read to the appellant. The appellant immediately replies that it is ‘lies’ and that Mr. Nalty believes the appellant stole €1,000 from him. He requests to stop the interview. He requests some fresh air and exercise as he feels sick. He also asks to speak to his mother and to speak to his solicitor. Thomas Nalty is deceased at the time of the appellant’s trial, but his statement which was read to the appellant purports to set out that Mr. Nalty was present at 4G Pearse House when the appellant shot Mr. Mooney and Mr. Molyneaux. The request for a solicitor is not communicated to the Member in Charge, Sergeant Sourke.

Interview No. 16: 13/01/2010 4:50 p.m. – 5:23 p.m.

The appellant is interviewed by Detective Sergeant Whitelaw and Detective Garda Cronin. The appellant made clear and concise admissions in relation to the double murder. Toward the end of this interview, the appellant asks to see his mother and says ‘I might have more to tell yous, I just want to see me ma, see me solicitor and get a bit of exercise’.

Interview No. 17: 13/01/2010 9:00 p.m. – 10:06 p.m.

The appellant is interviewed by Detective Garda Des Rogers and Detective Sergeant Tallon. During this interview the appellant seeks to retract his earlier admissions due to comments made off camera, and says he has no further comment to make on the advice of his solicitor. He says the only reason he made the admissions was to see his mother, ensure his partner would be released and that he thought he might be able to see his child as well. He alleges that gardaí had put him under “too much pressure”. He also says at the end of the interview that he had meant to say “duress instead of pressure”.

Interview No. 18: 13/01/2010 11:43 p.m. – 11:56 p.m.

The appellant is interviewed by Detective Garda Des Rogers and Detective Sergeant Tallon. During this interview the appellant relies on his right to silence.

Interview No. 19: 14/01/2010 8:49 a.m. – 10:01 a.m.

The appellant is interviewed by Detective Garda Donnelly and Detective Garda Williams. During this interview the appellant relies on his right to silence. In addition, he says he was acting under duress when he made the earlier inculpatory statement. In response to being asked how his mother feels about ‘all of this’, he threatens to ‘slap the head’ of the interviewers before apologising.

Interview No. 20: 14/01/2010 10:23 a.m. – 10:50 a.m.

The appellant is interviewed by Detective Garda Donnelly and Detective Garda Williams. The appellant relies on his right to silence.

Interview No. 21: 14/01/2010 10.53 a.m. – 12.22 p.m.

The appellant is interviewed by Detective Sergeant Whitelaw and Detective Garda Cronin. At 12:05 p.m. Detective Sergeant Whitelaw informs Sergeant Millea that the appellant had requested a doctor, and Dr. Maloney is contacted. The appellant relies on his right to silence and confirms again that was ‘on the advice of my solicitor’.

Interview No. 22: 14/01/2010 2:40 p.m. – 4:15 p.m.

The appellant is interviewed by Detective Garda Des Rogers and Detective Sergeant Tallon. During this interview the appellant makes further full admissions in relation to his involvement in the double murder and draws a map of his route leaving Pearse House. At 3:53 p.m. the appellant leaves the interview room as he says that he is feeling unwell and is provided with a cup of water. He returns when he says he feels better and wants to return to the interview. The appellant also requests a doctor, and he later sees Dr. Maloney at 5:45 p.m., who pronounces him fit to be further interviewed.

Interview No. 23: 14/01/2010 6:21 p.m. – 7:21 p.m.

The appellant is interviewed by Detective Garda Donnelly and Detective Garda Williams. During this interview the appellant again makes full admissions in relation to the double murder. This interview is interrupted at 7:21 p.m. when Sergeant Sourke informs the appellant that Mr. Ruane has arrived at the station, and he is brought to the doctor’s room for a consultation. The appellant then consults with Mr. Ruane in the Doctor’s room.

The interview continues after the appellant speaks with his solicitor, and the appellant continues to make admissions. He accepts exhibits that are put to him. The appellant also apologises to the families of Mr. Mooney and Mr. Molyneaux.

Interview No. 24: 14/01/2010 8:45 p.m. – 9:37 p.m.

The appellant is interviewed by Detcetive Sergeant Whitelaw and Detective Garda Cronin. The appellant continues to make admissions in relation to the murder and confirms CCTV that is shown to him and identifies himself on same. He states that he is stressed and wants to go to bed.

Interview No. 25: 15/01/2010 10:09 a.m. – 10:38 p.m.

The appellant is interviewed by Detective Sergeant Whitelaw and Detective Garda Byrne. During this interview the appellant retracts the later admissions. He says he was told what to say by the gardaí. He tells the interviewers the gardaí asked him to enter witness protection.

Interview No. 26: 15/01/2010 10:09 a.m. – 10:38 p.m.

The appellant is interviewed by Detective Sergeant Whitelaw and Detective Garda Byrne. The appellant continues to dispute his admissions and alleges the gardaí told the Star newspaper that the appellant was entering the Witness Protection Programme. He says his solicitor was informed about an article in the Star about the witness protection programme but would not say anymore.

39. The basis for the allegation of oppression, which the appellant contends was intended to break or sap his will, is elaborated upon in the written submissions filed on his behalf. In addition to re-iterating the complaint that the controversial admissions followed upon a request made for access to, and advice from, his solicitor which was denied (an issue we have already addressed at an earlier stage of this judgement), the appellant makes the following further specific complaints.
40. It is alleged that his interrogators placed him under undue pressure by drawing to his attention that his partner, Jennifer Browne, was also in custody; by suggesting that he had dragged her into it; and by suggesting that if he would “take the rap”, he could “drag her out of it”. It was further complained that inappropriate and excessive pressure was exerted upon him when, in response to being asked whether Jennifer Browne had had any involvement, to which he had asked rhetorically “[d]o you think I would involve me girlfriend, especially a pregnant girlfriend?” (and had then gone on to expressly assert that he had not done so), it had been put to him: “We know you did, the fact we know you did”, and he was then urged to “Start thinking about that, Gary, that she’s pregnant, you’re not that bad , Gary, for God’s sake man, take the rap.”

41. He further alleges that yet another aspect of generally oppressive behaviour by his interrogators was their refusal to respect his lawful assertion of his right to silence, relying in that regard on the advice of his solicitor. It was asserted in cross-examination, and not denied by the garda to whom it was put, that when the appellant had attempted to invoke his right to silence (and in doing so had offered the explanation that he was acting on the advice of his solicitor), this had elicited the response from one of his interviewers that “I don’t give a fuck whose advice you’re acting on, if you’re acting on the advice of my hairy fucking goat”.

42. The appellant further points to multiple other instances of robust remarks by gardaí to the appellant in the course of the controversial interviews urging him to confess.

43. Further, the appellant also relies upon references by gardaí, from an early stage, to what “Eamon” would think of the appellant’s position. This, it was submitted, was ostensibly a reference to an “Eamon Dunne”, who was a reputed gangland figure, and it was submitted that this was designed to put pressure on the appellant.

44. It was further submitted that yet another aspect of the generally oppressive circumstances in which the appellant was interviewed was that he was being held incommunicado for long periods of his detention on foot of a decision by Superintendent O’Gara and not the Member in Charge of the garda station.

45. It was also submitted that yet further inappropriate pressure was applied to the appellant in the course of the said interviews by suggestions that he had potentially landed his family in trouble (the implication was not with the police, but with unnamed third parties), that he should “be a man and stand up and take it like one”, that his mother could lose her home, and that family members might be arrested or subjected to garda inquiries in the context of the ongoing investigation.

46. Responding to these complaints, counsel for the respondent has pointed out, inter alia, that the submissions made do not in any way properly address why the trial judge was incorrect in not ruling out the three interviews on the 14th January, 2010, (interviews 22, 23, and 24) where the appellant made full, clear and concise admissions in relation to the double murder. The difficulty for the appellant in this regard is that he complains that the fifth interview on the 13th January (interview 16) should not have been admitted as evidence given that he had asked at the end of the previous interview (interview 15) to have access to a solicitor in order to seek advice on a specific issue; yet, following on from this, he had had three consultations with his solicitor in Kevin Street garda station. The first was between 6:24 p.m. and 6:50 p.m. on the 13th of January, the second was between 8:20 p.m. and 8:44 p.m. on the same date, and the third was from 7:21 p.m. to 7:40 p.m. on the 14th of January. During this period he explained in interview 17 why he had made the earlier admissions and stated that they were not true. He was interviewed on several further occasions after he had sought to retract his earlier admissions, and he relied on his right to silence. He was also not afraid to make threats to the interviewers, as occurred in interview 19. He then makes the critical further admissions in interviews 22, 23 and 24. It was submitted that it was of significance that during one of the interviews where he makes admissions on the 14th January, 2010, (interview 23), the appellant’s solicitor arrived at the station and consulted with his client who then returned to the interview and continued making inculpatory statements. Moreover, shortly before this interview, the appellant was also seen by Dr. Maloney who advised that he was fit for interview, and he was described in the custody record as ‘relaxed’ with ‘no problems’. It was submitted that it is difficult to see in any manner how the appellant’s will was broken as is simply asserted in general terms. There was simply no evidence before the trial judge to suggest any such ‘breaking’ or ‘sapping of will’.

47. With respect to the complaints concerning the manner in which the interviewing of the complainant was conducted, it was submitted that the trial judge was right to rule as he did. The judge had viewed the video recordings of all of the interviews and, having observed the appellant’s conduct and demeanour, had been satisfied beyond reasonable doubt that the admissions “were voluntary ones made without coercion, deception, threats or promises at a point in time when the accused was taking a realistic view of his situation and confronting it.” It was submitted that there was objective evidence supporting the view taken and that, in those circumstances, both the trial judge’s assessment and ruling were unassailable.

48. In the context of the general ground of oppression being put forward by the appellant, reliance had been placed by his counsel on The People (Director of Public Prosecutions) v. McNally (1981) 2 Frewen 43, which adopts the description of oppressive questioning that was set out in R v. Pager [1972] 1 All E.R. 1114 (at p. 1119):-

” …questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent.”
49. However, the trial judge had found as a fact on the evidence before him that ‘he knew the score and spoke the language and he spoke of about being sectioned before, he was not speaking about the Mental Health Acts’. Again, it was submitted, this Court should not interfere in circumstances where there was objective evidence capable of supporting the trial judge’s said finding.
50. Counsel for the respondent further referred to the following remarks of O’Flaherty J, when giving judgment in the former Court of Criminal Appeal in the case of The People (Director of Public Prosecutions) v. McCann [1998] 4 I.R. 397, where he stated (at p. 410):-

” …the very word ‘interrogation’ means more than some form of gentle questioning and provided there are no threats or inducements or oppressive circumstances then the Gardaí are always entitled to persist with their questioning of a suspect.”
51. Counsel for the respondent points out that it was never contended at trial that the appellant was mistreated during the course of his interviews. It was submitted that the reality of the evidence that was presented to the trial judge was that the conduct of the investigating Gardaí towards the appellant did not amount to oppression as it is to be understood from the case law on the issue. The appellant in the instant case adopted a stance during interviews, and having regard to this the manner of interrogation adopted by the gardaí was perfectly reasonable and legitimate.
52. It was submitted that one has only to look at the attitude adopted by Mr. Howard towards the end of the third interview on the 13th January, 2010, to see that this was a person who, when making admissions, was doing so in a voluntary manner and as a result of ‘taking a realistic view of his situation and confronting it’:-

“Question: What do you mean by that?
Answer: I shot him in the back of the head, then went over to Paddy, fired a shot at him. I think he said, ‘Get a doctor.’ I tried to shoot again. The gun was jammed so I fixed it and put one into the side of his head. Shot him in the side of his head and then left.

Question: Did you take the gun with you?

Answer: Yeah, I didn’t want to do that crime, yous don’t know how much pressure I was put under to do it. I didn’t want to do it because I knew the two of them very well.

Question: Who do I mean by the two of them?

Answer: Paddy and Brendan, I didn’t want to do it but it was either me plus me child or else them.

Question: Is that what you were threatened with?

Answer: Yeah, there was a gun put in my mouth then pointed out me child and I was told if I wanted to see his next birthday and live to see it meself I had to go down and shoot Brendan in Paddy’s and shoot Paddy cause he would have been a witness.

Question: Why was Brendan a target?

Answer: Because he was on CCTV outside somebody’s house on a date in October and that person believed that Brendan and the other person that was with him were there to shoot him, but didn’t because there were kids at the hall door and they went straight past and were seen a number of other times after that walking around on the cameras of this person’s house and he believed that they were there to do one thing and that was to kill him.

Question: Remember the video you were shown of the gun man going into the flat, was that you?

Answer: Yeah.

Question: What were you wearing when you went in?

Answer: Black trousers with green stripes, black Nike runners, blue and black jacket.

Question: Had you changed your clothes from earlier in the day?

Answer: Yeah.

Question: And did you change back again?

Answer: Yeah.

Question: Where are those clothes now?

Answer: I don’t know.

Question: Did you go over on a push bike?

Answer: Yeah.

Question: What route did you take on that date?

Answer: Down Gill Street, I think that’s what it’s called, then across the new bridge on the quays, turned right on to the quays, went down to Windmill Lane, and took the left and then the left, took the right at the back of the EUROSPAR, don’t know the name of that road, left me bike on Crane Street, went into the flats and done the job. Can I see me ma now?

Question: We’ll see what we can arrange?

Answer: I might have more to tell yous, I just want to see me ma, see me solicitor and get a bit of exercise.

Question: I’ve read these notes over to you, do you wish to make any additions or alterations to them, Gary?

Answer: No.

Question: Are they correct?

Answer: Yeah.

Question: Will you sign them?

Answer: Yeah.”

(Underlining by this Court)
53. It was submitted that this excerpt from the appellant’s interview illustrates in a very vivid manner that he was very much in control of himself and not under any influence as suggested in his submissions. It was submitted that of crucial significance was the appellant’s indication that he ‘might have more to say’ but wanted to see his mother and solicitor first.

54. Furthermore, counsel submitted, it is clear that none of the matters complained of by the appellant led to the confessions made. Mr. Howard’s attitude in general in response to the questions posed to him is not one of ‘crumbling’ , but in fact far from it. The evidence presented established that when Mr. Howard was interrogated and the matters complained of were put to him (or raised as stated in the submissions), he offered denials, refutations or relied on his right to silence, and sometimes threatened and abused the interviewing gardaí. Counsel for the respondent submits that it is beyond reasonable doubt that the conduct complained of did not have any coercive effect on the appellant.

55. It was further submitted that if, which the respondent did not accept, any aspects of the conduct of the interviewing Gardaí had in fact been oppressive, any such oppression would have dissipated by the time the appellant made his admissions.

56. Insofar as there were references to the detention of Jennifer Browne, to him dragging other persons into it, and to his family potentially being in trouble, these occurred during interview no. 9 on the 12th of January, 2010. The respondent relies on the finding of the trial judge in his ruling at end of the voir dire. The trial judge had observed the appellant’s recalcitrant attitude and demeanour during the interview in question on video, and his said attitude is in any case apparent from the transcript. The appellant had offered both denials and refutations in respect of matters put to him, and at various points had smirked at questions put to him, or had been abusive: inter alia, telling the interviewers to “Fuck off.” Moreover, the first substantive admissions made by the appellant were not made until seven interviews later.

57. With regard to the reference to “Eamon” during the questioning of the appellant, counsel for the respondent submitted that it is of fundamental importance to note how this line of questioning came about. It was the appellant himself who raised the issue of there being an ‘Eamon’ in the very first interview with the gardaí. The trial judge heard evidence of the following exchange in interview:-

“Question: Gary, why shoot dead someone you know and got on with, how do you feel?
Answer: I don’t know, I didn’t shoot anybody.

Question: Are you feeling any remorse?

Answer: Why should I, I didn’t do anything, there are two men dead, two men I knew well.

Question: Why did you kill them so?

Answer: I didn’t kill anybody.

Question: So, why not help us?

Answer: Look, Brendan was an IRA head and if he got whacked I could get shot, whacked if Eamon can get statements.

Question: Who is Eamon?

Answer: I don’t know who you’re talking about.

Question: Was it Eamon who told you to do the killings?

Answer: Who’s Eamon? No one told me to do the killings, I didn’t do anything.

Question: Gary, we know you did the shooting, we know how you set it up, what we want to know is why, were you under threat yourself to do the shooting?

Answer: Nothing to say, I was under threat, but not to do the shooting.

Question: Who were you threatened by?

Answer: No reply.”

58. Later, it was put to the appellant:-
“Question: Was it Eamon Dunne that would get ye whacked as you mentioned him earlier?
Answer: He’s not the only Eamon Dunne I know. ”

59. The appellant, having raised the issue of there being an ‘Eamon’, was then asked on a number of further occasions questions relating to this issue and whether he was threatened by this ‘Eamon’ or ‘Eamon Dunne’. It was submitted that it was fanciful to suggest that the appellant was put under some kind of pressure as a result of the references to ‘Eamon’ , when it was the appellant himself who had raised ‘Eamon’ as an issue at a very early stage.
60. Counsel for the respondent sought to similarly contextualise the references, of which the appellant now complains, to his mother possibly losing her home. Again, the point is made that this suggestion in fact came from the appellant in the first instance. In the interview in which it occurred, the appellant was being asked about comments he had shouted to his mother, during a visit to court:-

“Question: When you shouted at your ma in court, outside the court to tell her to tell the boys to say you were with them, why did you say this?
Answer: The Corporation has me excluded from the area, and the boys would think they were doing me a favour by not telling the truth…

Question: This exclusion order Gary, what happens if you break it?

Answer: Me ma gets fucked out the house.

Question: Are you happy that your ma is fucked out of her house?

Answer: No comment.

Question: Are you happy that your ma is fucked out of her house?

Answer: No comment.

Question: How long is she living there?

Answer: No comment.

Question: Why the exclusion order?

Answer: They found 13 Es in the house.

Question: And they were yours?

Answer: Yeah.”

61. It was clear that the subject of his mother possibly being put out of her home by Dublin City Council was introduced by the appellant himself, that he had then been asked legitimate questions about that, and that there was no attempt to threaten him, pressurise him or coerce him in any way.
62. Finally, counsel for the respondent also sought to deal with the complaint that the curtailment of personal visits had been used to oppress the appellant. This complaint is refuted by the respondent, who contends that the decision to curtail personal visits was entirely justifiable for operational reasons in connection with the investigation. It was submitted to be of significance that in the interviews leading up to the appellant being brought to the Criminal Courts of Justice in connection with an application to have his detention further extended by a judge, he had offered an alibi stating that he was with certain persons on Amiens Street and Sheriff Street in Dublin around the time of the shooting. After the court hearing, the appellant was overheard saying to his mother “Tell Adam Barrett, Stephen Byrne, Joanne Farrell and Christopher McCarthy that I was with them on Sunday night”. These were in fact the comments that had provoked the questioning quoted in para. 60 above. The alibi provided was completely false, and it was clear that the appellant was making efforts by communicating with his mother to encourage others to support that false alibi. This demonstrated that there was a serious risk that the investigation would be compromised by further contact between the appellant and his mother during his detention, and justified the decision to curtail visits to the appellant while he was in detention. Evidence given at the trial concerning the making of these comments was not challenged on behalf of the appellant.

63. In addition, counsel for the respondent points out that a visit by the appellant’s mother was in fact facilitated under supervision on the 14th January, 2010, (which was before the later admissions). During this visit the appellant and his mother openly discussed what he might say, and her response was ‘All I want to say is, I’d rather have a son that’s murdered than a rat’.

64. This Court has carefully considered the submissions made by both sides. It is clear that some of the questioning of the appellant was robust. However, we are satisfied that the manner of questioning was not oppressive or unfair. The appellant was a suspect in a double murder investigation, and the gardaí were entitled to question him robustly, tenaciously and comprehensively. We attach much significance to the fact that each of the twenty six interviews with the appellant were recorded on video and that the trial judge viewed the relevant video tapes. While it was open to this Court to repeat that exercise, we have not found it necessary to do so in circumstances where it is clear from the transcript what the attendant circumstances were, and what the context of each of the lines of questioning in respect of which the appellant makes complaints was. The trial judge’s ruling on the issue of oppression was clear and concise, and we are satisfied that it was justified on the evidence he had before him. We therefore also reject the ground of appeal based upon alleged oppressive and unfair questioning.
(iii) The ground of appeal relating to the authorisation of the extension of the appellant’s detention
65. Ground no. 6 of his Notice of Appeal asserts that the trial judge erred in law in determining that there was no requirement that a garda superintendent who was independent of the investigation in respect of which the appellant was arrested ought to receive any application for, and subsequently authorise, an extension of the detention of the appellant whilst he was in custody in Kevin Street garda station.

66. At the trial, counsel for the appellant had argued in the course of a voir dire that the extension at 5:35 a.m. on the 11th of January, 2010, of the appellant’s detention under s. 50 of the Act of 2007 for a further eighteen hours from 6 a.m. by Detective/Superintendent O’Gara, who was not independent of the investigation, was unlawful and not valid on that account.

67. The appellant complains that the trial judge did not address this issue at all in his ruling, or that, if he did, he failed to give any reasons for his decision in circumstances where the appellant was entitled to reasons.

68. It bears remarking upon that this issue was one of multiple issues raised in the course of a lengthy voir dire that commenced on Day 5 of the trial and lasted until Day 17, when the trial judge gave his ruling. The ruling has already been quoted in full at para. 23 of this judgment. As can be seen, the trial judge rejects all of the issues raised on the voir dire in a rolled up ruling in which he sets out ten discrete reasons for doing so. It is true that the trial judge does not isolate for specific attention the claim that Superintendent O’Gara’s extension was unlawful and invalid in circumstances where he was not independent of the investigation. However, he did express himself satisfied that the appellant “was lawfully arrested, and was in lawful custody.”

69. While the ruling was certainly terse and brief, neither counsel for the defence nor, for that matter, counsel for the prosecution saw fit to complain that any matter had been overlooked, as it would have been their duty to do if they had believed that to be the case. As to the sufficiency of the reasons offered, counsel for the defence neither made any complaint in that regard nor requested any elaboration.

70. We consider that a number of further comments require to be made. Before doing so, however, it may be instructive to set out the terms of s. 50 of the Act of 2007 (to the extent relevant) as well as relevant provisions of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 (S.I. 119 of 1987) (hereinafter “the Regulations of 1987”).

71. Section 50 of the Act of 2007 (to the extent relevant) provides:-

“ (1) This section applies to—

(a) murder involving the use of a firearm or an explosive,
(b) murder to which section 3 of the Criminal Justice Act 1990 applies,

(c) an offence under section 15 of the Act of 1925

(d) an offence under section 15 of the Non-Fatal Offences against the Person Act 1997 involving the use of a firearm, or

(e) an offence under Part 7 of the Criminal Justice Act 2006

(2) Where a member of the Garda Síochána arrests without warrant, whether in a Garda Síochána station or elsewhere, a person (in this section referred to as “the arrested person”) whom he or she, with reasonable cause, suspects of having committed an offence to which this section applies, the arrested person—

(a) if not already in a Garda Síochána station, may be taken to and detained in a Garda Síochána station, or
(b) if he or she is arrested in a Garda Síochána station, may be detained in the station,

for such a period or periods authorised by subsection (3) if the member of the Garda Síochána in charge of the station concerned has at the time of the arrested person’s arrival at the station or his or her arrest in the station, as may be appropriate, reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence.
(3) (a) The period for which a person may be detained pursuant to subsection (2) shall, subject to the provisions of this subsection, not exceed 6 hours from the time of his or her arrest.

(a) A member 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 18 hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
(b) A member of the Garda Síochána not below the rank of chief superintendent may direct that a person detained pursuant to a direction under paragraph (b) be detained for a further period not exceeding 24 hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.

….”

72. Regulation 4 of the Regulations of 1987 contains the following provisions with respect to a “Member in Charge”:-
“Member in charge

(1) In these Regulations ‘member in charge’ means the member who is in charge of a station at a time when the member in charge of a station is required to do anything or cause anything to be done pursuant to these Regulations.
(2) The superintendent in charge of a district shall issue instructions in writing from time to time, either generally or by reference to particular members or members of particular ranks or to particular circumstances, as to who is to be the member in charge of each station in the district.

(3) As far as practicable, the member in charge shall not be a member who was involved in the arrest of a person for the offence in respect of which he is in custody in the station or in the investigation of that offence.

(4) The superintendent in charge of a district shall ensure that a written record is maintained in each station in his district containing the name and rank of the member in charge at any given time.”

73. It will be noted that while sub-regulation (3) of regulation 4 of the Regulations of 1987 does impose a requirement of independence with respect to the Member in Charge, it is not an absolute requirement, but one that is to be adhered to “as far as practicable”. Moreover, neither the Act of 2007 nor the Regulations of 1987, nor for that matter the Criminal Justice Act 1984 (the Act of 1984) under which the said regulations were first promulgated, impose any requirement that in order to validly extend a detention a superintendent of An Garda Siochána, or higher officer, should be independent of the investigation.
74. The custody schemes provided for in both the Act of 1984 and the Act of 2007 (and also their analogue in the custody scheme under Criminal Justice (Drug Trafficking) Act 1996) allow for the lawful abrogation of the right to liberty of an arrested person, which is otherwise guaranteed by Article 40.4 of the Constitution. Although the right to liberty is not absolute, and although it may be lawfully abrogated, it is clear from various authorities, including the seminal case of Heaney v Ireland [1994] 3 I.R. 593 (concerning interference by the Oireachtas with constitutionally protected rights), that there requires to be proportionality between any proposed interference with an individual’s constitutionally protected right to liberty and the public interest, the protection of which is said to require such an interference. Any such interference should be to the minimum extent necessary to achieve the legitimate aim being pursued and, further, it is desirable that there should be adequate safeguards against possible abuses.

75. The argument advanced by the appellant is built around that which had proved successful before the Supreme Court in Damache v. Director of Public Prosecutions [2012] 2 I.R. 266. In the Damache case, s. 29(1) of the Offences Against the State Act 1939 was found to be repugnant to the Constitution on the grounds that it permitted a search of the appellant’s home on foot of a search warrant which was not issued by an independent person. The Supreme Court held that, save in extraordinarily urgent or otherwise exceptional circumstances, the constitutional inviolability of the home was such that the issuance of a warrant to search a dwelling should adhere to fundamental principles, encapsulating an independent decision maker who was able to assess the conflicting interests of the State and the individual in an impartial manner, and in a process that may be reviewed.

76. By analogy, it is argued in the present case that any garda officer considering either an initial detention or any extension to an existing detention of an arrested person under s. 50 of the Act of 2007 should be independent of the investigation, in order to be able to assess the conflicting interests of the State and those of the arrested person in an impartial manner.

77. While this argument is superficially attractive at one level, it seems to this Court that it is flawed in that it assumes that in the case of any proposed authorisation by the Oireachtas of an interference with a constitutionally protected right, the only effective safeguard against inappropriate use, or possible abuse, of the powers to be so created will be to confine their exercise to a decision maker who is independent. We do not consider that such an assumption is justified, and we are satisfied that the facts underlying the decision in Damache v. Director of Public Prosecutions [2012] 2 I.R. 266 were very different from those of the present case and that that case is legitimately distinguishable.

78. In so far as the right to liberty is concerned, a person detained in accordance with the custody schemes variously provided for in the Act of 1984, the Act of 1996 and the Act of 2007 has the benefit of a great many safeguards.

79. First, in all of these schemes the initial detention is authorised by the Member in Charge, who must be satisfied that there are reasonable grounds for believing that the suspect’s detention is necessary for the proper investigation of the offence for which he or she has been arrested. If the Member in Charge is so satisfied, he authorises the suspect’s detention for a period not exceeding the initial period provided for in the relevant legislation (6 hours in the case of s. 4 of the Act of 1984, s. 2 of the Act of 1996 and s. 50 of the Act of 2007). It is important to appreciate that detention is not authorised by the Member in Charge for any fixed period. It is detention for a period not exceeding a relevant fixed period.

80. Secondly, the Member in Charge is required in so far as is practical to be, and in this case actually was, independent of the investigation.

81. Thirdly, the Member in Charge’s role includes informing the detainee of the basis on which he is being detained, advising the detainee at the time of his detention concerning his rights both orally and in writing, opening and maintaining a written record concerning the detainee’s custody, and maintaining throughout the detainee’s detention on overall supervisory role with respect to his/her treatment while in custody. It is uncontroversial that all of this in fact occurred in the present case.

82. Fourthly, in each of the analogous statutory custody schemes alluded to, it is expressly provided that if at any time during the detention of a person pursuant to the relevant provision “there are no longer reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence to which the detention relates, he or she shall be released from custody forthwith” unless he or she is to be charged, in which case the person must be brought before a court “as soon as may be” (subject to a qualifier contained in all of the said custody schemes (but not relevant to the circumstances of the present case) providing for the person’s possible further detention in appropriate circumstances for the proper investigation of another offence).

83. Fifthly, amongst the rights about which the detained person must be advised is his right to consult a solicitor.

84. In the present case, the appellant having been so advised, availed of his right in that regard and consulted on numerous occasions with his solicitor in the course of his detention. In particular, following his initial detention at 10:29 p.m. on the 10th of January, 2010, he spoke by telephone to his solicitor, Mr. Ruane, at 10:37 p.m. Mr. Ruane subsequently visited him at Kevin Street garda station, and they had a conversation in private in the doctor’s room from 11:51 p.m. to 12:05 a.m. (on the 11th of January, 2010).

85. Sixthly, under each of these broadly similar custody schemes, it is possible for there to be an extension, or a number of extensions, of the period of time during which the prisoner may be detained, up to a legislatively specified maximum period and subject in all cases to the continued existence of reasonable grounds for believing that the prisoner’s detention remains necessary for the proper investigation of the offence for which he/she was arrested. Moreover, each application for an extension of the prisoner’s detention must, up to a certain point in time, be authorised by a garda officer of legislatively specified minimum rank, and beyond that point in time (if continued detention is possible under the scheme) it may only be authorised by a judge.

86. In the case of detention under s. 50 of the Act of 2007, the Member in Charge may authorise an initial detention for up to six hours. That initial six hour period may be extended in the first instance for up to a further eighteen hours, provided that an officer of superintendent rank or higher authorises it. Thereafter, it may be extended for a further twenty four hours provided that, once again, an officer of chief superintendent rank or higher authorises it. However, no prisoner may be held beyond forty eight hours in total under s. 50 solely on the basis of garda decisions. The legislation goes on to provide that to have a prisoner detained beyond forty eight hours in total, under s. 50, requires the making of an application by a garda officer of chief superintendent rank or higher either to a judge of the District Court or, alternatively, to a judge of the Circuit Court. Either court may, on foot of such an application, authorise the continued detention of the prisoner for a further period not exceeding seventy two hours in the first instance. Either court may then, on foot of a further such application or applications, authorise the continued detention of the prisoner for a further period or periods not exceeding forty eight hours in total. No person may be detained under s. 50 of the Act of 2007 for more than 168 hours in aggregate.

87. In this case, a first extension of the appellant’s initial six hour period of detention was authorised by Detective Superintendent O’Gara at 5:35 a.m. on the 11th of January, 2010, for a further period not exceeding eighteen hours commencing at 6:00 a.m. on that date. This was the controversial extension. The appellant was duly informed by the Member in Charge at 5:39 a.m. that his detention had been so extended. Having been so informed, the appellant again spoke to Mr. Ruane by telephone for three minutes at 8:37 a.m.

88. Seventhly, at all times a detainee who considers that he is in unlawful detention or that his constitutional rights are being breached has the possibility of having the lawfulness of his detention reviewed, by applying to the High Court for an order of habeas corpus (an enquiry under Article 40.4 of the Constitution of Ireland).

89. In this case the appellant sought no such relief, notwithstanding that he was in continuous custody from the time of his arrest at 9:25 p.m. on 10th January, 2010, until he was released from the provisions of s. 50 detention at 7:25 p.m. on the 15th of January, 2010, and had had access to legal advice at all stages during this period.

90. In any consideration of the safeguards applicable to the custody schemes alluded to, it requires to be recognised that while in each of them the respective roles of a Member in Charge on the one hand and a superintendent or higher officer on the other hand overlap to a degree, they are not identical, and the Member in Charge has functions not shared by garda officers of superintendent rank or higher who may be involved in the granting of extensions. Although it is true that in general a Member in Charge is required to be independent of any investigation, it is not a case of comparing like with like. In particular, and unlike a superintendent or higher officer involved in the authorisation of an extension, it is clear that the Member in Charge maintains on overall supervisory role throughout the prisoner’s detention with respect to his/her treatment while in custody, whether that be during any initial period of detention authorised by the Member in Charge himself, or any extended period of detention authorised either by a senior officer or, indeed, by a court. Arguably, it is that aspect of the Member in Charge’s role that makes it particularly important that he be independent.

91. It also bears reiterating that there is no mention in the legislation of any requirement that a garda officer of superintendent rank or higher involved in authorising the extension of a prisoner’s detention should be independent of the investigation. Moreover, the Act of 1984, the Act of 1996 and the Act of 2007 are all post 1937 statutes and enjoy a presumption of constitutionality. The appellant has not sought to challenge the constitutionality of s. 50 of the Act of 2007 which creates the specific custody scheme with which we are concerned. These considerations suggest that the trial judge was correct in his ruling that the appellant was at all times in lawful custody, and prima facie would seem to be dispositive of the issue raised by the appellant. However, the appellant’s case goes further in that he contends that even if the legislation is not unconstitutional in its terms, it must still be operated in a constitutional fashion. According to this argument, notwithstanding the absence of any express requirement in the statute that the decision maker with respect to an extension of detention should be independent, such a requirement must necessarily be implied if the legislation is to be operated in conformity with the Constitution.

92. If such a requirement were held to exist, it is not difficult to see how it could give rise to significant practical difficulties in everyday policing, given the number of persons detained nationally every day. A significant consideration in this regard is that the cohort of gardaí (who may act as members in charge) is numerically very much greater than the cohort of officers at the rank of superintendent or higher (who may authorise extensions). While it is possible to routinely appoint a garda who is not involved in a particular investigation to act as Member in Charge of his/her garda station, it requires to be recognised that, in the case of superintendents, there might be only a single officer of that rank in a particular garda district at any time. Due to the organisational structure of An Garda Siochána, which is divided into divisions (which may comprise a number of districts) presided over by chief superintendents and districts (which in turn embrace a number of individual garda stations) presided over by superintendents, not to mention detective and specialist units, middle ranking officers such as chief superintendents and superintendents (and particularly the latter) will often be actively involved in investigations of serious crimes, at least to the extent of co-ordination of resources and provision of oversight. While as a matter of common sense the higher the rank of the officer concerned the more likely it is that he/she would not actually be involved in a particular investigation in any hands on sense, and would be de facto independent of that investigation, this would not invariably be the case. It is therefore not difficult to appreciate how in many situations an officer of superintendent rank or higher who is independent of the investigation might not be readily available.

93. All of that having been said, in the present case Detective Superintendent O’Gara was not in fact a district superintendent. Rather, he was an officer of superintendent rank in a detective unit based at Kevin Street garda station, which is a major urban garda station and which, it may be inferred, was likely to have had at least one other officer of superintendent rank based there, namely the district superintendent.

94. Be that as it may, we are not satisfied that there is any requirement, express or implied, that a superintendent or higher officer of An Garda Siochána who is considering an application to extend a detention should be independent of the investigation, providing other safe guards exist to ensure that an appropriate balance is maintained between the conflicting interests of the State and those of the person sought to be further detained. We are satisfied that in the circumstances of the present case there were more than adequate safeguards in place to ensure that any deprivation of the appellant’s liberty was proportionate. Chief amongst these were the fact that he was fully informed as to the basis for his initial detention and the proposal to further detain him, that he was fully aware of his rights, that his conditions of detention were being supervised by an independent Member in Charge, that he had the benefit of legal advice at all stages, and that he had the right to seek habeas corpus (an enquiry under Article 40.4) if he believed that he was being unlawfully detained.

95. We also feel that, in considering this issue, there has to be some engagement with the actual facts of the present case, particularly with reference to Detective Superintendent O’Gara’s involvement. It seems to us that the chronology as to what actually happened in the lead up to the controversial extension of the appellant’s detention is significant, particularly in terms of assessing the reality of the complaint made and whether there is in fact any credible basis for believing that, in the circumstances of the case, the appellant’s rights were breached by Detective Superintendent O’Gara authorising the extension of the appellant’s detention when he lacked independence from the investigation.

96. The appellant arrived at Kevin Street garda station at 10:10 p.m. on the 10th of January, 2010, having been arrested by Sergeant Paul Tallon. He was introduced to Sergeant Brian Sourke who was the relevant Member in Charge pursuant to the Regulations of 1987. Following a conversation with Sergeant Tallon, Sergeant Sourke authorised the detention of the appellant pursuant to s. 50 of the Criminal Justice Act 2007, having been satisfied that there were reasonable grounds for believing that his detention was necessary for the full and proper investigation of the offences for which he had been arrested. The appellant’s hands were noted by Sergeant Sourke to have been in tamper proof bags. Sergeant Tallon also requested that the appellant should not see any visitors until such time as samples were taken from him under s. 2 of the Criminal Justice (Forensic Evidence) Act 1990, as amended.

97. At 10:29 p.m. the appellant was informed in the custody area by Sergeant Sourke that he was being detained under s. 50 of the Criminal Justice Act 2007. He was further informed by Sergeant Sourke of the periods of possible detention, and was advised of his rights. Following this, the appellant requested to speak with Yvonne Bambury of Fahy Bambury McGeever Solicitors.

98. At 10:37 p.m. Sergeant Sourke then contacted the nominated solicitor’s firm and, though Ms. Bambury was not immediately available, he spoke with her associate Conor Ruane for approximately five to six minutes. The appellant was then permitted to speak with Mr. Ruane over the phone in the custody area.

99. At 10:45 p.m. Detective Superintendant Gabriel O’Gara authorised the taking of samples under s. 2 of the Criminal Justice (Forensic Evidence) Act 1990, as amended. The appellant was taken to the custody area in the first instance while this was being organised.

100. At 11:05 p.m. Mr. Ruane arrived at Kevin Street garda station and was informed that swabs were about to be taken from the appellant, authorisation having been given for same. Mr. Ruane was also informed that the preservation of evidence was a priority, that Mr. Howard had yet to be searched and also that he required medical attention. Sergeant Sourke informed Mr. Ruane of his belief that a visit with the appellant at this stage could result in a cross contamination as Mr. Ruane had informed Sergeant Sourke that he was also representing other persons arrested in connection with the offence for which the appellant had been arrested.

101. At 11:08 p.m. the appellant was informed that his solicitor was present and that on completion of swabs being taken, he could consult with him. Then, at 11:12 p.m. the appellant was taken to the doctor’s room in Kevin Street garda station for the purpose of forensic samples being taken from him along with his clothing.

102. At 11:40 p.m., following samples being taken, the appellant was asked whether he wished to consult with Mr. Ruane or to see the doctor. The appellant stated that he wished to see the doctor, and he was then seen by Dr. Maloney. Following this, Dr. Maloney informed Sergeant Sourke that the appellant was to be moved to hospital for treatment. The appellant was then allowed to consult with Mr. Ruane in the doctor’s room from 11:51 p.m. until 12:05 a.m. (on what is now the 11th of January, 2010). Upon exiting the doctor’s room, Mr. Ruane was informed that the appellant was to be moved to hospital for treatment.

103. At 12:20 a.m. the appellant was removed from Kevin Street garda station to the Mater Hospital and was informed that his detention was being suspended for the period during which he would be attending the hospital. At 2:55 a.m. the appellant was returned to Kevin Street garda station. He was then informed that his detention was no longer suspended, and he was placed in a dry cell.

104. At 5:35 a.m. Detective Superintendent Gabriel O’Gara, whom it is accepted was involved in the investigation, authorised the appellant’s further detention pursuant to s. 50(3) (b) of the Criminal Justice Act 2007 for a further period of 18 hours from 6:00 a.m. The appellant was informed of this at 5:39 a.m.

105. It is clear from this chronology that at the time of Detective Superintendent O’Gara’s decision to extend the appellant’s detention, the appellant had not yet been interviewed. The greater part of the first six hour period had been taken up with the need to process him into detention, with the taking of forensic samples, with facilitating his right to access legal advice, and with ensuring that he was provided with appropriate medical attention. It was beyond peradventure that, in the context of the double murder investigation that was ongoing, the investigating gardaí would require to interview the appellant in due course for the proper investigation of the offence for which he had been arrested. In the circumstances it could not be contended on any credible basis that there was anything remotely abusive of the appellant’s rights, and in particular his right to liberty, in Detective Superintendent O’Gara’s decision to authorise his continued detention beyond 6:00 a.m. on the 11th of January, 2010. It would be fanciful to suggest otherwise.

106. We are satisfied, in all of the circumstances, that this ground of appeal cannot be upheld.
(iv) The ground of appeal relating to the learned trial judge’s charge to the jury.
107. Ground of appeal no. 7 complains that the trial judge misdirected the jury in that he failed to put the case for the appellant fairly before them and, further, that he failed to do so despite being requisitioned to that effect on behalf of the appellant.

108. The trial judge charged the jury on Day 25 of the trial and provided a summary of the evidence in the case to the jury during the course of it. The following requisition was raised about the trial judge’s charge in that regard. The trial judge was asked to re-address the jury on an issue relating to the CCTV evidence in the case. Two specific witnesses were identified in this requisition:-

“Mr. Gillane: The other thing is- and I know obviously and I’m not asking the Court to go through this evidence – it’s an evidential matter. The Court indicated to the jury that Garda Michael Moore gave them evidence in relation to CCTV and timing. Could I ask your Lordship to just remind the jury that two other witnesses also gave evidence on timing and that’s Patricia Johnson by way of section 21, and Garda Fiona Deevy also. I’m not asking you to go though that evidence but just to remind them of that fact.
Judge: Okay. Could we have them back please.”

109. When he re-charged the jury, the trial judge stated:-
“Now, the other matter is in relation to Garda Moore. I told you that there were considerable adjustments in times and I’m simply asked to bring to your attention that in relation to two other witnesses similar considerations arose in that times fell to be adjusted. I’m just asked to bring that to your attention and not even to take time giving you their evidence….”
110. The evidence of Patricia Johnson and Garda Fiona Deevy, respectively, related to the retrieval of CCTV footage from a Spar Shop on Hanover Street, which was close to the murder scene. Garda Deevy had outlined in her evidence that the footage in question was three minutes behind the talking clock.
111. The importance of this evidence was that the CCTV evidence shown to the jury by Garda Michael Moore had identified that a man had entered Pearse House at 18:30 hours and exited from it at 18:41 hours on the relevant date. The prosecution case was to the effect that this man was the perpetrator of the two murders.

112. However, the CCTV footage of a man leaving the area on a bike and travelling along Windmill Lane past the Spar Shop camera was timed as having occurred at 18:40 hours by Garda Moore on the basis of a corrected time. This was, itself, incorrect as Garda Deevy had identified that the timing on the camera was three minutes slow rather than six minutes slow as stated by Garda Moore. This put the correct timing of the footage from the Spar Shop camera as being 18:37 hours.

113. As previously stated, the footage from Pearse House identified the murderer as leaving that complex at 18:41 hours. However, the person on the push bike in question was, according to the footage from the Spar Shop on Hanover Lane, already leaving the vicinity some four minutes earlier at 18:37 hours. Moreover, even if Garda Moore had been correct in his timing, which on the evidence he was not, that would have put the person on the bicycle as cycling past the shop cameras at 18:40 hours, still at a time before the alleged murderer was recorded as having left the Pearse House complex. In either scenario the footage from the Spar Shop was ostensibly inconsistent with the prosecution case.

114. The defence have contended that the CCTV evidence has a particular importance as the appellant’s admissions (most notably in interviews on Thursday, 14th January) refer to his use of a bike as a getaway vehicle for the murder, and he made admissions after sight of the CCTV footage in question. It was a major aspect of the defence case that such admissions were contradicted by the CCTV evidence, in as much as the person to be seen cycling away from the scene on the push bike was doing so at a time when the murderer was still in Pearse House.

115. It has been submitted that in those circumstances the CCTV evidence and, in particular, the evidence of timings given by Garda Deevy with reference to the Spar Shop footage, had a particular importance in the case. It was submitted that the requisition made by counsel for the appellant was restrained yet of vital importance to the defence. It was a request to refer to two named witnesses who had given evidence, namely Garda Deevy and Patricia Johnson. That, it was contended, would have alerted the jury to the issue in question. However, the trial judge did not set out their names to the jury even though it appeared that he had agreed to do so.

116. Counsel for the appellant acknowledges that the trial judge had told the jury during the course of the charge that there were “significant variations in time” in the timings of the CCTV footage. However, it was submitted, the trial judge’s charge did not mention the footage from the Spar Shop at all or, indeed, there was no reference to the footage of the person on the push bike in any real form. Rather, the CCTV evidence was dealt with in a perfunctory manner.

117. It was submitted that, in the circumstances, the trial judge had failed to put forward the defence case fairly and fully. The movements of the person on the push bike and, in particular, the uncontroverted evidence that that person had passed the Spar Shop at 18:37 hours (per the evidence of Patricia Johnson and Garda Deevy on timings), when the murderer was still within Pearse House, were particularly relevant to any consideration by the jury of the reliability and credibility of the appellant’s alleged admissions to the murder.

118. It was submitted that the failure to alert the jury to the evidence of Patricia Johnson and Garda Deevy despite the request to do so by counsel for the appellant was unfair and prejudicial to the appellant. The trial judge made a vague reference in his re-charge to “two other witnesses” without identifying those witnesses to the jury. It was submitted that this was unfair where the jury had heard voluminous evidence from both civilians and gardaí in the case.

119. Counsel for the respondent has argued in response that the trial judge adequately re-charged the jury in response to the requisition that had been raised. He did so by reminding them that “there were considerable adjustment[s] in times”, and that times fell to be adjusted for two witnesses. This was precisely the requisition raised by counsel, and that that is so is reflected in the fact that once the jury was re-charged on this issue, no further requisition was made on this or any other issue.

120. In addition, counsel for the respondent points out, the trial judge specifically told the jury during the course of his charge that there were “significant variations in time” in the timing of the CCTV footage. Having regard to this, and the requisition made and acceded to, it was submitted that the trial judge fairly put the appellant’s case to the jury. It is suggested by the appellant that the trial judge had failed in this regard by “failing to alert the jury to the issue concerning the CCTV.” However, this issue had been raised by counsel for the appellant in his speech to the jury, it was again addressed by the trial judge in his charge, and furthermore the trial judge had re-charged the jury specifically on what was requisitioned of him, namely that two witnesses other than Garda Moore had also given evidence on timing.

121. This Court has carefully considered the complaint made by the appellant but is not disposed to uphold it. We are satisfied that the trial judge dealt adequately with the requisition made of him and that the defence case was properly put before the jury. They had been specifically told that there were “significant variations in time” in the timing of the CCTV footage, and they were reminded that two witnesses other than Garda Moore had also given evidence on timing. The Court has considered the transcript of the closing speeches, and of the trial judge’s charge and recharge. Having regard to the manner in which they had been addressed by counsel for the defendant in his closing, the jury could not have been under any misapprehension as to what the trial judge was alluding to in his re-charge. The fact that no request was made for a further re-charge is significant in our view and was indicative that defence counsel was satisfied at the time with the terms of the re-charge. Moreover, if the jury had indeed been mystified, or in any way uncertain or unclear as to what he was alluding to when he stated that “in relation to two other witnesses similar considerations arose”, as is apparently now apprehended, one would have expected them to come back with a question seeking clarification. However, they did not do so.

122. We are satisfied that in all the circumstances of the case the requisition was adequately dealt with, and there was no unfairness to the appellant

123. We therefore reject this ground of appeal also.
Conclusion
124. In circumstances where the Court has not been disposed to uphold any of the grounds of appeal advanced by the appellant, the appeal against conviction is dismissed.

 

 

DPP v Connors

[2016] IECA 420
JUDGMENT of the Court delivered on the 21st day of December 2016 by
Mr. Justice Birmingham

1. On the 17th December, 2015, the appellant was convicted of the offence of murder following a thirteen day trial. The verdict was by a 10 – 2 majority. The appellant now appeals against that conviction.
Background
2. In summary the evidence at trial was that on the night in question, the 24/25th January, 2012, the appellant called to the home of the deceased at No. 14 Hollyville Heights, Wexford. Words were exchanged between the appellant and the deceased while the deceased was at the window of his apartment on the second floor and the appellant was on the ground outside the apartment. As the appellant walked away from the door, the deceased emerged from the apartment and followed the appellant carrying a miniature baseball bat with metal studs. The prosecution suggested that CCTV footage established that the appellant waited for the deceased to emerge from the apartment and to begin following him.

3. A physical altercation took place between the appellant and the deceased in another part of the housing estate, outside No. 26 Hollyville Heights. The location of the actual physical altercation was not covered by CCTV. There were independent witnesses who suggested that the first blows were struck by the deceased with the baseball bat. The altercation ended and the deceased was seen on CCTV walking back towards his apartment still carrying the miniature baseball bat but holding his side. When he arrived home his girlfriend/partner was concerned about his condition and called an ambulance and also the gardaí. It emerged that he had been wounded in the side and he died from his injuries.

4. In subsequent interviews with gardaí, the appellant admitted stabbing the deceased a number of times during the altercation, but claimed that he was acting in self defence in circumstances where the deceased had attacked him first and was striking him with the baseball bat.

5. It was not in dispute at the trial that the deceased died as a result of wounds inflicted by the appellant, but the issue was whether the appellant was acting in self defence. The appellant sought a verdict of not guilty, but as a fall back position a verdict of not guilty of murder but guilty of manslaughter. The appellant now appeals and has advanced a number of different grounds of appeal.

6. These might be summarised as follows. Grounds contending that several elements of inadmissible evidence were in fact admitted. A ground of appeal relating to the extension of the appellant’s period of detention. Grounds relating to the judge’s charge, the length of the jury deliberations and a contention that the verdict of murder was perverse and against the weight of the evidence.
Inadmissible evidence
7. This ground gives rise to a number of sub issues namely two issues arising from the evidence of witness Samantha Hoare, an issue arising from the evidence of witness Mary Connors and an answer given by the appellant during the course of questioning while detained.

8. The two issues that arise from the evidence of Samantha Hoare relate to evidence given by her about an earlier altercation between the deceased and the appellant which took place some weeks before the fatal incident and also evidence given by her about telephone conversations that she had with the appellant some three years earlier. To put these arguments in context, it is necessary to explain that Samantha Hoare was the girlfriend/partner of the deceased. She had in the past been in a relationship with the appellant and that relationship ended at a time that James Connors was serving a prison sentence.

9. Her evidence was that as the relationship ended, that Mr. Connors rang her on a number of occasions from prison and in the course of these calls, stated that when he got out that he would kill whoever it was that she was with at that stage. Her evidence was also that there was a physical altercation between the appellant and the deceased prior to Christmas 2011 during the course of which the deceased was stabbed by the appellant.

10. The admissibility of each of these aspects of the evidence was challenged, but the trial judge ruled that the evidence sought to be tendered by the prosecution was admissible.

11. There was also a procedural aspect to this arising from the fact that the statement of evidence of Samantha Hoare that was contained in the book of evidence did not deal with either of these issues. This was so notwithstanding the fact that the statement of evidence taken by the gardaí shortly after the incident had seen Ms. Hoare deal with both topics and it appeared that her original statement was then edited for inclusion in the book of evidence by the deletion of the sections that dealt with these issues.

12. On the first day of the trial on the 30th November, 2015, the prosecution served a notice of additional evidence to be given by Ms. Hoare dealing with the two topics. The position then was that the evidence that was now being indicated as that which would be given by Samantha Hoare coincided with her original statement made to the gardaí which had been made available to the defence as part of the disclosure process.

13. Counsel for the appellant has accepted that he was not in a position to make the argument that the conduct of the defence had been impaired by reason of the late service of additional evidence, but said that what had happened was wrong and unfair.

14. The Court would deprecate the fact that the defence was only informed on the first day of a trial that had been listed previously on two occasions that the prosecution intended to adduce significant additional evidence. However, while that was far from a satisfactory state of affairs it was evidence of which the defence were on notice and it is accepted that the defence were not impaired in the conduct of the defence. In those circumstances the focus has to be on the substantive issues of whether the specific sections of the evidence should have been admitted.
The prison phone calls
15. Ms. Hoare’s evidence was that about “three years ago” when Mr. Connors was in prison that she had told him that their relationship was over but that he “kept ringing me from prison and he said ‘no matter who you are with when I get out, I’m going to kill him’. I think he thought I was with someone else at that stage, which I wasn’t”.

16. On behalf of the defence it has been argued that this amounted to evidence of prior misconduct which was not sufficiently relevant to any particular issue in the case and to the extent that the evidence had any probative value at all, that this was clearly outweighed by its prejudicial effect. The appellant says that this evidence was very tenuous and that the phone calls, if made, were made long before Ms. Hoare had started going out with the deceased Jason Ryan. Accordingly they could not be construed as a threat directed at the deceased and so they had very limited probative value.

17. In the Court’s view the telephone evidence was of probative value. The accused threatened that when he got out of prison that he would kill whoever was the person that Ms. Hoare was going out with. He did exactly that and in a situation where a key issue at trial was whether the accused was acting in self defence or whether he intended to kill or cause serious injury, then the relevance of this evidence is obvious. The Court is of the view that the evidence in relation to the phone calls received was highly relevant and it was properly admitted. The defendant has contended that the evidence was prejudicial in that it established that the appellant had been in prison some three years prior to the incident and by implication since then. The jury had heard through admissions made pursuant to s. 22 of the Criminal Justice Act 1984, that he had been released, on temporary release from prison on the 18th December, 2011, and so this was indicating to the jury that the matter which had led to his imprisonment was a serious matter giving rise to a significant sentence. However, while that is the defence contention that is not necessarily so. While it was possible that the appellant’s imprisonment at the time of the fatality and some three years before, was explained by a lengthy sentence where a matter of real seriousness was involved, it was also possible that the appellant had served a number of short sentences for minor matters.
The pre-Christmas altercation
18. Ms. Hoare was permitted to give evidence in relation to a physical altercation that she said had occurred “before Christmas” involving the deceased and the appellant in which she says that the deceased suffered stab injuries. The issue of particular concern from the perspective of the defence is that the evidence puts Mr. Connors in possession of a knife in a public place which he was prepared to use in certain circumstances to inflict injuries. The defence says that two evidential rules are engaged which should have resulted in the exclusion of the evidence namely, the general rule that even relevant evidence can be excluded when its prejudicial effect exceeds it probative value and secondly, the so called rule against misconduct evidence. The classic statement of the rule against misconduct evidence is to be found in the case of Makin v. the Attorney General for New South Wales [1894] AC 57. There Lord Chancellor Herschell, in a much quoted passage, commented:-

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it is relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.”
It may be noted that the Lord Chancellor went on to add:-
“The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.”
19. The passage of time has proved the correctness of that observation about the difficulty in drawing the line.
20. The matter was the subject of detailed consideration by the Supreme Court in the case of People v. Kirwan [1943] I.R. 279. There, the appellant had been convicted of the murder of his brother. He had served a term of penal servitude for another offence previously and for a number of different reasons the prosecution was anxious to adduce evidence arising from his period in custody. The prosecution case was that a limbless trunk of a human body had been found in a bog some distance from where the brothers lived. There was evidence that the dismembering of the body could have been effected only by a person possessed of some anatomical skill and knowledge such as that possessed by a doctor, veterinary surgeon or butcher and the prosecution was anxious to establish that the appellant had that knowledge. The complicating factor was that he had acquired the knowledge because he had on a number of occasions butchered the carcases of pigs while in custody in a manner that was very similar to what had been performed on the torso. The prosecution was also anxious to put before the jury evidence that while in custody the appellant had been administered a particular drug “luminal” for insomnia and had thus become acquainted with the effects of that drug. The relevance of this was that the prosecution were suggesting that an occupant of the Kirwan house had been drugged with luminal so that he would not observe the disposal of the body and clothing of the deceased. The third matter of interest to the prosecution was that it was suggested that the appellant was in possession of significant sums of cash shortly after his brother disappeared, his brother having been in possession of significant sums of cash and the prosecution was anxious to establish that during the years the accused spent in custody he was not in a position to earn money. The Court of Criminal Appeal and the Supreme Court, to which the matter went on a s. 29 certificate, were all agreed that the appeal should be dismissed, but there were certainly differences of approach evident in the Supreme Court. Black J. in particular felt that the evidence in relation to butchering skills and familiarity with luminal could have been adduced, if that was sought without any reference being made to the fact that the appellant had at one stage been a prisoner.

21. The issue is considered in recent time in the Supreme Court in the case of DPP v. McNeil [2011] IESC 12. This case raised the issue of whether or not so called “background evidence” is admissible in a case involving allegations of sexual abuse where the prosecution sought to adduce evidence of abusive conduct outside the parameters of the indictment.

22. In the course of her judgment, Denham J. pointed out that “background evidence” in the context under consideration had a specific meaning. It was evidence which is relevant and necessary to a fact to be determined by the jury. At para. 50 of her judgment, under the sub-heading “The Test”, she observed as follows:-

“In considering whether background evidence may be admitted, relevant consideration may include:-
(i) Consideration of whether the background evidence is relevant to the offence charged.

(ii) Consideration of whether background evidence is necessary to make the evidence before the jury complete, comprehensible, or coherent. Whether without such background evidence the evidence may be incomplete, incomprehensible or incoherent.

(iii) Consideration of evidence of the commission of an offence with which the accused is not charged, but that is not of itself ground for excluding the evidence.

(iv) Consideration of whether the background evidence may be necessary to show the real relationship between the relevant persons.

The test to be applied by the court is whether the background evidence is relevant and necessary. The test is not that it would merely be helpful to the prosecution to admit the evidence.”

23. The defence has focused in particular on the statement that the test to be applied is whether the background evidence is relevant and necessary and the further statement that the test is not that it merely be helpful to the prosecution to admit the evidence.
24. In contending that the evidence in relation to the physical altercation was of little if any probative value, the appellant has emphasised the fact that the witness commented that she did not know who “struck the first blow”. However, in the view of the Court, the focus on the comment that she did not know who struck the first blow does not fully reflect the tone and tenor of her evidence and hence its relevance in the context of the case. Her overall evidence to this topic left no room for doubt but that in her view it was the appellant who initiated contact and it was he who was the aggressive party. It was he who according to her started the row. Indeed, in the course of cross examination she indicated that before the appellant approached her late boyfriend and herself that he had been hiding in bushes outside the apartment.

25. In these circumstances the question of whether the appellant was initiating a physical confrontation some weeks before the fatal incident was of considerable significance and the fact that he was prepared to use a knife and inflict wounds was also of significance. Accordingly, in the Court’s view the issue was of such significance and such relevance it was properly admitted in evidence.
Issues arising from the evidence of Mary Connors
26. This issue arose on day 4 of the trial. Ms. Connors was a distant relative of the appellant and it appears that he was staying with her during the period that he was on temporary release from prison. He had an amount of contact with her on the night of the fatal stabbing. In particular Ms. Connors arranged to collect the appellant at a location known as the Faythe in Wexford and did so just before he was arrested by the gardaí for being unlawfully at large. According to her statement in the book of evidence, as the appellant got into her car, a garda car pulled up alongside them and gardaí got out and approached her car. Her statement stated that the appellant dropped a phone in the passenger seat and told her to “delete the numbers”. Ms. Connors took the phone home and according to her deleted the numbers but also went further and deleted the “call logs and texts”. The admissibility of the evidence as to what was said to Ms. Connors by the appellant was challenged by the defence on the basis that it was prejudicial. It was said that the jury might speculate that the appellant might have wanted to have the numbers deleted because the phone would provide an indication that he was involved in some form of criminal activity other than the incident involving Jason Ryan.

27. The prosecution contended that the evidence was admissible as it showed the destruction of potential evidence in circumstances where the accused had just recently been involved in a violent incident as a result of which someone had been stabbed and had died. Before this Court, counsel for the Director has indicated that the prosecution interest was in part motivated by the fact that it showed the appellant in control of his situation and making decisions for himself and that went some distance to rebutting the suggestion from the defence that he was very intoxicated and not fully in control of his actions. The Court was somewhat surprised at this submission on the part of the prosecution as it was not an argument that was addressed to the trial judge.

28. In considering the significance of this aspect of the evidence and the extent to which it is prejudicial, the Court notes that there was evidence at trial that Mr. Connors had burned a hoodie that he had been wearing and that Ms. Connors washed the clothes that he was wearing. Against that background, the evidence in relation to the phone was really of quite limited significance. Taken in conjunction with the evidence in relation to the washing of clothes and the hoodie it does indicate that the appellant’s instincts were to block or impede garda lines of inquiry. Such evidence is relevant and that the prosecution would have an interest in adducing it is understandable. In the view of the Court, they were entitled to do so.
Failing to exclude a portion of an interview dealing with CCTV cameras
29. The issue arises out of a question put to the appellant during the course of interview No. 3 of his detention. The question and answer in dispute were as follows:-

“Q. Have you ever been at Jay’s house before?
A. No, never in Jay’s house but would have walked past it on the way to Jim’s. Too many cameras around here. I wouldn’t live up here. I remember saying to Jim or Womper.”

30. The defence objected to the reference to “too many cameras around here” and said that the prejudicial effect of this answer exceeded its probative value. The prosecution submitted that the evidence was relevant to their case that the appellant was very aware and cognisant of the location of cameras and deliberately lured the deceased to a part of the estate which was not covered by CCTV cameras. The judge dealt with this issue by saying that if it was part of the prosecution case that the accused man lured the victim into an area where there were no cameras, then in her view that was relevant and so the phrase “too many cameras around here” should not be redacted from the memorandum of interview. However, she felt that the balance of the answer namely “I wouldn’t live up here, I remember saying to Jim or Womper” should be deleted.
31. The Court agrees with the trial judge’s approach. The prosecution was making the case that the appellant set out to lure the deceased to a particular part of the estate and did so for a very particular reason. In those circumstances the prosecution had a legitimate interest in establishing his level of awareness in relation to CCTV cameras. Both at trial and on appeal, the appellant has drawn attention to the fact that the issue was raised in the course of a later interview, interview No. 5, when the question was asked “would you have been aware there is CCTV in Hollyville Heights” and the answer given “yah”. However, in the Court’s view this later question does not tip the balance against admitting what was said in interview No. 3.
The failure to exclude evidence arising from the period of detention following the purported extension of the detention by Chief Superintendent Roche at 10.32 pm on the 27th January, 2012
32. This issue arises against the following background. On the 25th January, 2012, James Connors was arrested at 11.00 a.m. at Wheatfield Prison. He was brought to Wexford garda station where Garda David Fitzgerald was acting as Member in Charge by Detective Garda Patrick O’Brien and Garda Brian Cummins. Garda Fitzgerald decided to detain Mr. Connors when an application in that regard was made to him pursuant to s. 4 of the Criminal Justice Act 1984.

33. At 4.50 p.m. that day, Superintendent Gralton, on foot of an application from Detective Sergeant Griffin, authorised the extension of the detention. Then, at 10.32 p.m. a further detention for a period of twelve hours was authorised by Chief Superintendent John Roche. During the course of detention, the appellant was interviewed on seven occasions in all. The fourth interview was in progress at the time that Chief Superintendent Roche extended the detention further. There were no admissions to murder at any stage and in broad terms Mr. Connors took a consistent position that he had acted in self defence. However, while no admissions as such were made, the defence took the view that answers given by Mr. Connors during the course of the last three interviews, interviews conducted following the extension of the detention by Chief Superintendent Roche, were unhelpful from their perspective and they sought the exclusion of evidence arising from this period. In that regard, it is the case that the prosecution referred to certain matters that arose from these later interviews when closing the case which lends support to the defence view that Mr. Connors situation was not helped by what he had to say at the later interviews.

34. The primary ground on which the admissibility of the later interviews is challenged is that the extension of the detention was not recorded in writing by Chief Superintendent Roche, or perhaps more accurately that there was no evidence before the Court that the extension was recorded in writing. While that was the issue in the case, the defence also pointed to the fact that there was no evidence that Superintendent Gralton, who had authorised an earlier extension, had recorded that in writing and a point was also raised about the validity of the decision by Member in Charge Fitzgerald to initially detain the appellant.

35. While there was no issue about the admissibility of what was said during the earlier interviews, the roles played by Member in Charge Fitzgerald and Superintendent Gralton were significant because the prosecution in seeking to establish that Chief Superintendent Roche had validly extended the detention were required to establish that at the time he purported to do so that Mr. Connors was in lawful custody.
The role of the Member in Charge
36. Garda Fitzgerald gave evidence in the course of a voir dire that at 12.35 on the 27th January, 2012, he was acting as Member in Charge when Garda Brian Cummins, the arresting garda, applied to him seeking the detention of Mr. Connors pursuant to s. 4 of the Criminal Justice Act 1984. He gave the following evidence:-

“Q. And did Garda Cummins inform you of the reasons why he was requesting you to do this?
A. He did.

Q. And did he explain the ongoing investigation into the death of Mr. Ryan?

A. He did judge. As part of that conversation, judge, Garda Cummins informed me that a large number of inquiries had been made involving door to door inquiries and examination of CCTV for the area concerned judge. He also informed me that there was a large number of witness statements – had been – made and had been recorded in writing within those witness statements, judge. Garda Cummins informed me that Mr. Connors had been placed at the scene of the alleged incident before and after the incident judge.

Q. Yes? And having considered the information given to you by Garda Cummins, I think you made a decision to grant his application to have Mr. Connors detained?

A. That’s correct judge.”

37. It was submitted on behalf of Mr. Connors that the evidence that was adduced was not sufficient to establish either that the Member in Charge had the requisite opinion required by s. 4(2) of the Criminal Justice Act 1984, or, if he did have that opinion that there were no reasonable grounds for such a belief. The defence say that at its height, the evidence of Garda Fitzgerald was that information was given to him which put Mr. Connors at the scene, but did not go any further than that and did not indicate that there was any basis for believing that he had any involvement in the crime.
38. The prosecution submitted that the evidence established that the Member in Charge, both subjectively and for objective reasons believed that the appellant’s detention was necessary for the proper investigation of the murder of the deceased. The trial judge dealt with the matter in these terms:-

“This Court is satisfied that on the evidence of Garda Fitzgerald as a Member in Charge at the relevant time, notwithstanding that he did not give direct evidence, that he subjectively believed that Mr. Connors’ detention was necessary and objectively that he was satisfied that there was reasonable grounds for his belief, that he did in fact subjectively believe his detention was necessary, and that there were reasonable grounds for his belief. And this Court can satisfactorily infer the same given that he clearly stated in his evidence that he had been informed that Mr. Connors had been arrested on suspicion of the murder of Jason Ryan, and following a consideration of the information given to him by Garda Cummins he made a decision to have Mr. Connors detained in accordance with s. 4 of the Criminal Justice Act 1984. Accordingly, the Court rejects the submissions of the defence in relation to that aspect of the application.”
39. In the Court’s view this was essentially an issue of fact to be resolved by the trial judge. In the Court’s view the conclusion arrived at by the trial judge was one that was open to her. One aspect that was relevant to her consideration, which is also relevant to the role played by Garda Fitzgerald, was that this was a case where Mr. Connors was taken from prison to be arrested and that had happened on foot of a warrant issued by a court. Therefore this ground of appeal fails.
The lack of evidence that the decisions to extend the detention were recorded in writing
40. This is an issue which arises in relation to the authorisations from both Chief Superintendent Roche and Superintendent Gralton to extend the detention of the appellant. Neither officer dealt with the question of whether their decision to authorise an extended detention was recorded in writing. Following argument the matter was dealt with as follows by the trial judge:-

“This Court is not in a position to find on the evidence of either Superintendent Gralton or Chief Superintendent Roche that the oral extension granted was recorded in writing as soon as practicable. There is simply no evidence in that respect. However, the Court considers that a failure to comply with this requirement does not necessarily lead to a conclusion that the prisoner’s continued detention therefore becomes unlawful. It is of course the statutory requirement touching upon the right to liberty, but within the general context of the section it cannot be considered to be of the first importance.
The Court is satisfied on the evidence of both the Superintendent and the Chief Superintendent that the first and second extensions of detention were validly granted. There is no suggestion that the accused was not properly informed of each extension of detention. There is no indication of a policy to ignore the record and requirements of the Act. In the circumstances and on reading the section the Court finds that the failure to prove compliance with this particular aspect does not oblige you to rule that either of the extended periods of detention should be regarded as unlawful. The Court having considered the evidence, the submissions made, the statutory authority and the case law relied upon is satisfied that the application by the defence fails on all grounds.”

41. The statutory provision which was in issue here is s. 4 (3)(c) of the Criminal Justice Act 1984 which provides a direction to extend the detention of a detained person made under para. (b) or (bb)) may be given orally or in writing and if given orally shall be recorded in writing as soon as practicable. Paragraph (b) relates to the power of a Superintendent to direct a further detention for a period not exceeding six hours and para. (bb) relates to the power of a Chief Superintendent to direct the further detention for a period not exceeding twelve hours.
42. The defence says that the obligation is clearly mandatory and that there is nothing in the terms of s. 4 to indicate that a failure to comply with the requirement shall not of itself affect the lawfulness of the detention or the admissibility of evidence. It points out that this is to be contrasted with the provisions of s. 5 of the Criminal Justice Act 2006, in relation to the designation of a place as a crime scene which again provides that the direction may be given orally or in writing and if given orally that it shall be recorded in writing as soon as reasonably practicable, but it goes on to provide that a failure to record the direction shall not by itself render any evidence inadmissible. It is of course also the case that there is a provision that a breach of the custody regulations as distinct from a breach of the Criminal Justice Act does not of itself render any evidence inadmissible.

43. In the Court’s view, the conclusion reached by the trial judge was the appropriate one. The position is that a Superintendent has the power to direct the further detention for a period of six hours and the Chief Superintendent, the power to direct the detention for a still further twelve hours. That the Superintendent and Chief Superintendent authorised the extended detentions was not in dispute and the evidence in that regard was unchallenged. In those circumstances, in the view of the Court, the fact that there was no evidence from either the Superintendent or Chief Superintendent dealing with the recording in writing does not render the detention unlawful or the evidence arising from that detention inadmissible.

44. In passing and in passing only, because the issue was not dealt with in the course of argument, the Court would simply draw attention to the evidence of Garda David Fitzgerald on the 7th December, 2015. At p. 5 of the transcript, the following exchange between prosecution counsel and Member in Charge is recorded:-

“Q. I think the prisoner was returned to his cell and at 16.50 hours you were informed that an extension of questioning had been granted by Superintendent Gralton for a period of six hours, is that right?
A. That’s correct judge.

Q. I think its 16.51 you spoke to the prisoner and informed him of this and by whose authority and the length of time of the extension?

A. That’s correct judge.”

At p. 6 the following question and answer is recorded:-
“Q. Now, at 22.46, I think you informed Mr. Connors that his period of detention had been further extended by Chief Superintendent Roche?
A. That’s correct judge.

Q. And this extension was for a period of twelve hours commencing from 22.32 is that right?

A. That’s correct judge.

Q. And this was in accordance with the provision of the Criminal Justice Act 1984 and I think at 23.31 hours, the fourth interview concluded?

A. That’s correct judge.”

At p. 10 the following questions and answers are recorded:-
“Q. And during his detention, I think you say – did you – did you look after all the provisions of the Criminal Justice Act, Treatment of Persons in Custody Regulations?
A. Yes judge I believe I did so.

Q. Yes and made all relevant entries into the custody record?

A. Yes Judge.

Q. And that custody record is there?

A. Yes judge I have it here with me.”

45. It is abundantly clear from a reading of the transcript of the evidence of Garda Fitzgerald that he was giving his evidence by reference to the custody record so that in fact it appears that the authorisations to extend detention were recorded. It will be noted that the statutory obligation is not on the Superintendent or Chief Superintendent to record the directions in writing, but rather the directions should be recorded. It should also be noted that Chief Superintendent Roche, concluded his direct evidence by saying that he directed Detective Sergeant Griffin, who had sought the extension of the detention, to inform the Member in Charge of his decision and to have his decision recorded in the custody record of the prisoner at Wexford garda station. It is slightly surprising that the trial judge was not reminded of this aspect of the decision. In truth there appears to be little substance to this point.
46. A further issue is raised that is specific to the evidence of Chief Superintendent Roche. The issue arises in the following circumstances. In the course of his direct evidence, Chief Superintendent Roche stated as follows:-

“Judge, I authorised the further detention of the prisoner at 10.32 p.m. as I had reasonable ground for believing that the further detention was needed for the proper investigation of the offence for which he had been arrested and detained.”
47. In cross examination the following exchange took place:-
“Q. At the time you made that decision, what to your mind was that offence?
A. It was a serious assault at – at the time.”

48. On behalf of the appellant it was submitted that the prosecution was required to prove that the Chief Superintendent had the requisite state of mind and that such state of mind had to relate to the “proper investigation of the offence concerned”. In this case the offence was murder, but it was argued that the evidence established that Chief Superintendent Roche erroneously believed that Mr. Connors was being detained on suspicion of an assault.
49. The trial judge dealt with this matter as follows:-

“This Court is satisfied to infer from the evidence of Chief Superintendent Roche that he had the requisite state of mind, that the further detention of Mr. Connors was necessary for the proper investigation of the offence in respect of which he had been detained up to that point, namely, the offence of murder. And the Court does not accept the contention by the defence that the answer given in cross examination by the Chief Superintendent in relation to serious assault could only relate to s. 3 or s. 4 in the light of the whole of the evidence as given by Chief Superintendent Roche.”
50. In the Court’s view the conclusion reached by the trial judge was certainly one that was open to her. This emerges with particular clarity if one looks to the introductory questions to the examination in chief. There it is recorded:-
“Q. [Mr. Clarke (prosecution counsel)] Sorry, did you receive a communication from Detective Sergeant Griffin of Wexford garda station?
A. That’s correct judge, he telephoned me.

Q. Yes and were you made aware of circumstances under which James Connors had been arrested?

A. Yes judge.

Q. And that he was being detained under the provisions of s. 4 of the 1984 Act, as amended, is that right?

A. Yes, judge, yes judge.

Q. Did Detective Sergeant Griffin explain to you the background facts and the investigation which was in progress?

A. Yes judge he did.

Q. Did he inform you concerning the detention of James Connors?

A. Yes judge.

Q. And did he set out reasons why he was requesting an extension of the detention?

A. Yes judge, he did.

Q. Can you tell the Court what they were as you recall?

A. Yes judge. My recollection – my recollection, judge is that the prisoner had been interviewed on three occasions and the fourth interview had just commenced. It was outlined to me that there was extensive CCTV footage from the scene in the estate of Hollyville Court to be viewed and the – and to be analysed and the result of examination of that CCTV was to be put to the prisoner. There was a number of exhibits including an alleged weapon used in the alleged incident to be put to the prisoner during further interview. There was mobile phone analysis of both the prisoner and the witnesses after the alleged incident, and the result of the analysis was to be put to the prisoner during further interview. And also the statements and interviewing of the potential witnesses had not yet been completed and when completed the result of such statements was still to be put to the prisoner.

Q. As a result of all that information, what decision did you make?

A. Judge I authorised the further detention of the prisoner at 10.32 p.m., as I had reasonable grounds for believing that the further detention was needed for the proper investigation of the offence for which he had been arrested and detained.

Q. And authorised that he be detained for a further twelve hours?

A. Yes judge. At 10.32 p.m. I authorised the prisoner’s twelve hour detention and I informed Sergeant Griffin of my decision and I also directed Sergeant – Detective Sergeant Griffin to inform the Member in Charge of my decision, and to have my decision recorded in the custody record of the prisoner at Wexford garda station.

Q. Yes thank you.”

51. If the evidence of the Chief Superintendent is viewed in the round there was certainly a basis for the judge concluding that the Chief Superintendent was very much on top of the investigation and aware of the developments that had taken place up to that point including the details of his arrest and detention. Therefore the appellant is unsuccessful with this ground of appeal.
Issues that were grouped together in argument

Failure of the trial judge to properly relate the principles governing self defence to the evidence in the case
52. It is acknowledged by the defence that the trial judge gave the jury comprehensive directions in relation to the general principles of law governing self defence. However counsel on behalf of the appellant submitted that at that stage the trial judge made only a very brief reference to the evidence in the case which was of relevance from a defence perspective. At another stage in her charge, the trial judge, it is accepted by the defence, provided a comprehensive summary of the evidence, but it is said that this was not related by the trial judge to the general legal principles. At the conclusion of her charge, the trial judge was requisitioned and the judge indicated that she had no difficulty re-charging the jury. However, it is said that in re-summarising the evidence she omitted to deal with witnesses that were significant from a defence perspective.

53. In the Court’s view, this was a case where the issues were very straightforward. It was not in dispute that Mr. Ryan had met his death at the hands of James Connors, but the issue was whether James Connors was acting in self defence. No elaborate direction was required to be given to the jury in order for them to identify all of the evidence that they had heard that was relevant to this issue. Read as a whole, the charge and re-charge were careful, comprehensive and balanced and this ground is rejected.
Refusal to discharge the jury after they had completed in excess of nine hours deliberation
54. At first sight this might seem a somewhat surprising requisition. Indeed, it becomes even more surprising if one has regard to the contents of the transcript. At 4.00 p.m. on the 15th December, 2015, (day 12 of the trial) after the jury had been deliberating for nine hours and 30 minutes, the following exchange took place between the trial judge and the foreman:-

“Judge: Right, Mr. Foreman thank you very much. Is there any prospect of you reaching a majority decision or are you disagreed?
Foreman: I think if we had another half an hour, maybe an hour, we could reach a decision.”

55. The jury were asked to retire at that stage and in their absence counsel for the appellant applied to have the jury discharged having regard to the lengthy period of time they had been deliberating. The trial judge refused the application and, because it was not possible for the Court to sit later that day or indeed on the following day, the jury was asked to return on Thursday the 17th December, to resume their deliberations. On that morning when the judge asked the jury to resume their deliberations, she informed them that if a majority of at least ten of them could not agree, that was called a disagreement and that the issue paper should be completed accordingly. At that stage the jury retired and deliberated for a further period of 1 hour and 41 minutes before reaching a majority verdict.
56. In fairness to counsel for the appellant, he explained that this ground of appeal, and the next which contends that the verdict of the jury was perverse and against the weight of the evidence is to be seen in the context of the fact that this was a particularly finely balanced case. The Court does not disagree that this was a finely balanced case, but it was nonetheless entirely proper that in a situation where the jury were indicating that further time would be of use to them and that they were likely to be in a position to reach a verdict to give the jury the opportunity to conclude their deliberations. The Court has no hesitation in rejecting this ground of appeal.
The verdict of the jury was perverse and against the weight of the evidence.
57. The Court has accepted that this was a finely balanced case, but it was quintessentially a case for the jury to consider. There is no possible basis on which this Court could substitute its view of the facts for that of the jury. The findings of fact in this case were, by virtue of the Constitution, a matter for the jury and the jury alone. For this reason, the Court must dismiss the appeal. In doing so, it has regard to well established jurisprudence such as the case of the People (DPP) v. Luke Egan [1990] ILRM 780 about the primacy of the jury as judges of fact.

58. The Court has considered each of the grounds of appeal but it has not upheld any of them and so the Court must dismiss the appeal and affirm the conviction.