|Director of Public Prosecutions -v- Doyle|
| IESC 1|
Supreme Court Record Number:
Court of Appeal Record Number:
High Court Record Number:
Date of Delivery:
Composition of Court:
|Denham C.J., O'Donnell Donal J., McKechnie J., MacMenamin J., Laffoy J., Charleton J., O'Malley J.|
Link to Judgment
O'Donnell Donal J.
An Chúirt Uachtarach
The Supreme Court
Bill number: CC0046/2009
Supreme Court appeal number: 40/2015
Court of Appeal record number: 2012 No. 50
 IECA 109
The People (at the suit of the Director of Public Prosecutions)
Judgment of Mr Justice Peter Charleton of Wednesday the 18th of January 2017
1. On 15th February 2012, after a 22 day trial, the appellant Barry Doyle was convicted by a jury in the Central Criminal Court of the murder of Shane Geoghegan at Clonmore, Dooradoyle in the city of Limerick, at around 01:00 hours on Sunday 9th November 2008. The intended victim of the crime, herein called CD, had apparently been a person in dispute with the criminal gang with which Barry Doyle was associated. Because Shane Geoghegan fitted the very general description of the build and clothing of Barry Doyle’s intended target and because he was in the place indicated at the time predicted for the killing by the crime boss who ordered the outrage, he was shot on the street with a Glock handgun, wounded, pursued into the back garden of a semi-detached house and then shot dead. The late Shane Geoghegan had nothing to do with criminal gangs or criminal activity. He was simply a young man returning to his residence.
2. A key component of the prosecution case was a confession statement made by Barry Doyle while in garda custody following his arrest pursuant to s. 4(3) of the Criminal Law Act 1997 on 24th February 2009. The circumstances of the interview, which was the 15th during his time in custody, are claimed by Barry Doyle to render the confession inadmissible as, he alleges, the confession came about in consequence of an inducement. While the particular circumstances surrounding the confession at issue will be examined in detail later in this judgment, the pivotal issue is the arrest of Victoria Gunnery, Barry Doyle’s former girlfriend and mother of their young daughter. She was arrested at the same time as Barry Doyle. An issue was raised by the defence at his trial that this arrest was used to unfairly induce him to confess to the murder when he otherwise would have remained silent. Part of the supporting evidence for the inducement urged by the defence, curiously, was that Michael O’Donnell, the solicitor for Barry Doyle, had approached the gardaí with an off the record offer that he would confess to the murder of Shane Geoghegan if the gardaí agreed in turn to release Victoria Gunnery. This offer was rejected on the basis that the gardaí wanted Barry Doyle to “tell the truth” and that a confession in such circumstances would not be admissible in evidence. According to the response of the interviewing detectives, his merely stating that he had committed the murder would not enable them to ascertain if he was either telling the truth or lying and such a laconic admission would not enable the release of Victoria Gunnery.
3. Sheehan J was the trial judge. He heard all the relevant evidence at a trial within a trial in the absence of the jury, except for that of Barry Doyle who exercised his right not to testify and of the solicitor Michael O’Donnell who was not called by the defence, despite their right to waive solicitor-client privilege. He also viewed every video recording of all of the interviews. Sheehan J held the confession admissible in law. Carney J was the trial judge in an earlier inconclusive trial. Carney J also had admitted the confession. At the trial from which this is an appeal, the jury found the confession of Barry Doyle sufficiently reliable together with the other evidence to decide that the prosecution had proved the murder charge beyond reasonable doubt. The Court of Appeal rejected the appeal of Barry Doyle, on some 27 grounds argued, in a written judgment of the court, Ryan P, Birmingham and Edwards JJ, dated 8th June 2015;  IECA 109. This Court, by a determination issued on 28th October 2015, allowed an appeal under Article 34.5.3º of the Constitution on the following issues:
4. On the confession, the Court of Appeal held at paras. 40-41 of its judgment that the trial judge was in the best position to adjudicate on the issue of the confession, that “[g]reat weight must therefore be given to his assessment that there was no inducement or threat”. It was further decided that “even if there was something to satisfy the [test for an inducement], and that it operated on the appellant, it was dissipated by the intervention of the appellant’s solicitor.” The Court of Appeal also concluded that their “consideration of the transcripts of the interviews affords factual support for the finding made by the trial judge.”
(i) Whether or not the applicant was, in the circumstances of this case, entitled to consult with a solicitor, and have a solicitor present, prior to and during the 15th interview with the Garda Síochána, during which admissions were alleged to have been made. This raises the question of whether the right to have a solicitor present during questioning is a matter of right of the detained person, or a matter of concession by the Garda Síochána.
(ii) Whether the applicant, in all the circumstances, including that he was convicted in the Central Criminal Court on the 15th February, 2012, and the decision of the Supreme Court in DPP v. Damache was delivered on the 23rd February, 2012, can rely on that decision on his appeal.
(iii) Whether the matters set out in the applicant’s application under the heading “Relevant facts considered not to be in dispute”, or any of them, constituted threats or inducements made to the applicant and calculated to extract a confession from him. This is a matter not decided by the court of trial or the Court of Appeal. Secondly, if they do constitute such threats or inducements, whether their effect had “dissipated” or “worn off” by the time of the admissions relied upon by the State, as held by the trial judge; and whether or not there was any evidence on which it could have been determined that the effect of the said threats or inducements (if any) had “dissipated” or “worn off” by the time of the alleged admissions.
5. One of the complaints made on this appeal is that the trial judge did not rule whether there had been any inducement. Since the reliability of the confession is partly to be adjudicated by reference to any other evidence supporting it, Sheehan J’s ruling and the confession statement should be set out.
Confession ruling at trial
6. Neither Barry Doyle nor his solicitor gave evidence at his trial, not before the jury or in the absence of the jury during the trial within a trial as to the admissibility of his confession statement. While the accused has a right not to give evidence, it is more than peculiar that his solicitor allowed the court of trial to simply draw inferences from surrounding circumstances. In particular, there was no direct evidence from the solicitor as to what he did or what assurances he would have been able to give. Any privilege in that regard is that of the client and may be waived by him. If it is not waived, there is no warrant for an assumption that a solicitor whose presence is mandated in assistance to the arrested person either did not do his job at all or did it incompetently. The opposite inference naturally arises, unless clearly displaced. That is done most properly by evidence. The confession statement itself came in the aftermath of the approach to the gardaí made by Barry Doyle’s solicitor Michael O’Donnell. That happened between interviews 14 and 15. That encounter was written up some hours later by Garda Mark Phillips. This was the only available evidence of the encounter. While it was used as a basis for cross-examination by counsel for Barry Doyle, there was no challenge to its accuracy and Michael O’Donnell did not give evidence. That memo, presented with slight grammatical amendments, reads:
7. On the 11th day of the trial, having considered the evidence of all of the relevant interviewing garda officers and custody officers and the custody record, and having viewed the 20 hours of video-recorded interviews with Barry Doyle, Sheehan J ruled as follows:
After a consultation Michael O’Donnell requested to speak to members who went to interview room. O’Donnell started by saying conversation was off record and did not want a memo to be taken of same. Stated that Barry Doyle would admit to killing Shane Geoghegan if his girlfriend, Victoria Gunnery, was released. I stated that there was no way this was possible, that he would have to tell the truth about what happened, and once he told the truth about what had happened we would have no reason to detain Victoria Gunnery any further. Michael O’Donnell stated that he would only answer one question, that he had committed the murder, and answer no more. I said this would not suffice, as we had to know he was telling the truth and not just saying it to get VG released. Michael O’Donnell said ‘sure cant you arrest her again?’ I said that Barry Doyle had to admit to what he had done in an interview and that his girlfriend would not be released before any interview. Michael O’Donnell said he would go back to Barry Doyle and tell him this. There was then a further consultation in the cell. After approximately 10 minutes, returned to interview room, Michael O’Donnell again said that Barry Doyle would not admit to anything prior to his girlfriend being released. I said to Michael O’Donnell ‘that is an inducement’ and there was no possible way that would happen. That any admission would not be upheld in any court if that were to happen. Michael O’Donnell said ‘sure wouldn’t you have it on the cameras?’ Mark Phillips said that didn’t matter. Michael O’Donnell said ‘well he will not admit to it. I have told him to say nothing, to get you to do the work’. I then said to Michael O’Donnell that Barry Doyle had to tell the truth about what had happened. Michael O’Donnell said ‘I think you have a bit more work to do’. Michael O’Donnell again had legal consultation with prisoner. It lasted approximately 4 – 5 minutes. Michael O’Donnell left the station.
Whereas on this appeal, the prosecution have also sought to also reference the first trial, on 14th March 2011, that has been in the context of a ruling there by Carney J. Trials change as to their content and the impact of particular evidence. The ruling of Carney J can have no impact on this appeal.
The defence object to the prosecution proposal to call evidence of various admissions made by Barry Doyle in the course of interviews that took place while he was in custody at Bruff Garda Station. The defence contend that these admissions are inadmissible and rely on three grounds.
1) That the admissions were made involuntarily as a result of a combination of threats, inducements and oppression.
2) That the admissions were made as a result of breaches of the accused's constitutional right of access to legal advice.
3) The admissions were made as a result of breaches of the requirement of fundamental fairness.
In considering these submissions, the Court has had the benefit of oral and written submissions by the defence and by the prosecution as well as booklets of authorities furnished by each side. The Court has heard evidence from Detective Garda Hogan, Detective Garda Hanley and Detective Sergeant Philips, who were the principal questioners, as well as evidence from Detective Inspector Crowe who was heavily involved in managing the investigation and inter alia insuring that the law regarding custody extensions was complied with. Garda Cowen, who gave evidence regarding the custody record. Detective Garda Clayton, who was involved in the questioning of Victoria Gunnery and her transfer to Limerick. The Court also heard from Garda Amanda O'Callaghan who told the Court that it was not garda practice to allow solicitors to be present at custody interviews and the Court also heard the statement of a medical secretary Deirdre Devlin which was read to the Court and which stated that the child of Victoria Gunnery and Barry Doyle had no appointment in February 2009 at the Children's Hospital in Crumlin.
The Court also had the benefit of viewing well over 20 hours of recorded interviews, being the first 16 interviews, as well as an agreed transcript of all the interviews.
The onus of proof in respect of admissibility is on the prosecution and if confessions are to be admitted in evidence the Court must be satisfied beyond a reasonable doubt that it is proper to do so.
In considering the question of inducement the Court is guided by the decision of the Court of Criminal Appeal in the McCann case and also bears in mind the judgment in R v. Rennie, particularly pages 69 and 70 of that judgment. This court proposes to adopt the rationale put forward by O'Flaherty J in the McCann case and does not propose to follow the judgment of the Canadian Supreme Court in Spencer. The Court has also considered the judgment in the Hoey and Pringle cases, insofar as they relate to inducement.
Regarding oppression, the Court has been guided primarily by the McNally and Pringle judgments. The Court also bears in mind the decision of the Supreme Court in the Shaw case. I will deal first with the question of legal access.
With regard to the question of legal access Barry Doyle had two consultations with his solicitor while he was in Bruff Garda Station prior to making admissions and he was also represented by that solicitor in court when an application was made to extend his detention. The Court does not consider the length of time that either consultation lasted to be relevant in the context of this case. The Court also holds that the Gardaí were entitled to continue interviewing Barry Doyle in interview 15 when he had complained that a short telephone conversation with his solicitor was not a proper consultation and when his solicitor's arrival at the garda station was expected within an hour. The Court is satisfied that there was no breach of Barry Doyle's constitutional right to legal advice.
In considering the question of oppression the Court observed Barry Doyle in video recordings over a period of in excess of 20 hours and holds that he appeared to be physically and mentally strong throughout. He engaged with the Gardaí when he chose to do so and refused to answer questions when he did not wish to do so. The Court notes that he had worked for a construction company as a block layer and played Gaelic football. The Court also notes that at the time of his arrest he was living in basic accommodation in Limerick wearing a bulletproof vest. The Court also notes that a few months earlier when asked by a member of An Garda Síochána where he had been the previous night he responded by saying ‘F – off’.
With regard to the questioning by Detective Garda Hogan, Detective Sergeant Philips and Detective Garda Hanley, and indeed Detective Garda Whelan, the Court finds that the interviews were conducted in a careful, patient and structured way in which some of the results of the garda investigation were gradually revealed to Barry Doyle. The Court also holds that Barry Doyle first began to engage with Detective Garda Hogan in a limited way, essentially as a result of Detective Garda Hogan's appeal to Barry Doyle's humanity. This engagement was built on by Detective Sergeant Philips and Detective Garda Hanley and ultimately the accused told the Gardaí about his involvement in the death of Shane Geoghegan.
The Court holds that the interviews conducted by Detective Garda Hogan and Detective Garda Whelan and the interviews conducted by Detective Sergeant Philips and Detective Garda Hanley were at all times professional and courteous and involved no oppression. The Court also holds that Barry Doyle was in full control of himself throughout the interviews and holds that he made the admissions that he did because he chose to do so.
With regard to the question as to whether some of the promptings by the Gardaí to Barry Doyle to the effect that he should tell the truth and not keep Victoria Gunnery away any longer from their child, the question arises as to whether this, or any other related promptings made prior to interview 15 and relating to the release of Victoria Gunnery, could amount to an inducement. The first thing to be said is that these remarks must be viewed in the overall context of all that had taken place, which included the various responses of Barry Doyle regarding the death of his brother, the responses regarding his own family, his children by a previous relationship to his relationship with Victoria Gunnery, as well as read or taken in the context of the limited answers he had given about living in Limerick and the fact that he had conceded to Detective Garda Hogan that being in custody on suspicion of the murder of Shane Geoghegan was the lowest point in his life. The context also includes the gradual unfolding of the evidence in the case to him and the context further includes numerous appeals to him to tell the truth.
Notwithstanding the context in which they occurred, and bearing in mind the judgment of Lord Lane in the Rennie case, even if these promptings could possibly amount to an inducement when objectively viewed they were not immediately acted on and their affect, whatever it may have been, was dissipated by the consultation Barry Doyle had with his solicitor and his solicitor's interaction with Detective Garda Hanley and Detective Sergeant Philips. This broke any possible causative link and it is highly relevant that the solicitor told the detectives that Barry Doyle would not admit to the offence and that they would have a bit more work to do.
The Court holds that when Barry Doyle came to make his admissions in interview 15 he made them voluntarily. Accordingly, the Court holds that the admissions were made not as a result of oppression and were not made as a result of any threat or inducement.
Finally, the Court has considered the objection made by the defence that the admissions were made as a result of a breach of fundamental fairness. The Court has considered all the objections in the round and bears in mind, in particular, what Griffin J said in the People v. Shaw at page 61, and I quote: "Secondly, even if a statement is held to have been voluntarily obtained in the sense indicated, it may nevertheless be inadmissible for another reason. Because our system of law is accusatorial and not inquisitorial, and because (as has been stated in a number of decisions of this Court) our Constitution postulates the observance of basic or fundamental fairness of procedures, the judge presiding at a criminal trial should be astute to see that, although a statement may be technically voluntary, it should nevertheless be excluded if, by reason of the manner or of the circumstances in which it was obtained, it falls below the required standards of fairness. The reason for exclusion here is not so much the risk of an erroneous conviction as the recognition that the minimum of essential standards must be observed in the administration of justice.”
The Court holds that there is no breach of the requirements of fundamental fairness and accordingly holds that the confessions made by Barry Doyle are admissible in evidence
The text of the confession
8. The reliability of confession statement is a question of fact for the jury. One of the factors that should be foremost in the minds of the jury is as to whether what the prosecution present as a voluntary admission of guilt contains inaccuracies or, on the other hand, whether it contains details that were not mentioned by the interviewing officers, or were not known to them, and which turn out to have been supported by external evidence; the facts on the ground. While, these are matters of fact for the jury such factual support is also of importance on the appellate reviewing of the soundness of a conviction. Here, there is considerable support. The particular interview at which admissions were initially made is interview number 15. Interview number 14 took place on 26th February between 17:32 hours and 18:35 hours. During the course of it Barry Doyle asked for a solicitor. He indicated that he had not yet spoken to his solicitor Michael O’Donnell properly. At 18:52 hours that particular solicitor arrived and consulted with Barry Doyle. The solicitor then spoke to detective gardaí Bernie Hanley and Mark Phillips. The garda memorandum of this encounter is set out at paragraph 6 above. This was followed by another 10 minute consultation between Barry Doyle and his solicitor. There was then a further brief conversation between the solicitor and those gardaí. There then followed a further consultation between Barry Doyle and his solicitor lasting less than 5 minutes. He returned to the interview room. After being cautioned that he was not obliged to say anything unless he wished to do so, but that whatever he did say would be taken down in writing and may be given in evidence, Barry Doyle indicated that he understood the caution and he then had a meal. Interview 15 commenced at 19:43. Barry Doyle immediately admitted that he was in Clonmore housing estate on the 8th November 2008 as a front seat passenger in a Renault Espace car. At 19:46 hours, the member in charge entered the room and told Barry Doyle that his solicitor wished to speak to him. He left and spoke on the telephone to the solicitor, this call taking 3 minutes. After returning to the room Barry Doyle was asked by the detectives, “Barry were you involved in the murder of Shane Geoghegan?” to which he replied “Yeah, I shot him”. The following extract consolidates both questions and answers during the course of the resulting confession statement, but leaving out those questions put to which there were no answers, and reads:
Support in other evidence
9. In the early 1990s, a recurring argument in criminal trials was whether a confession to gardaí should be put before a jury only if accompanied by a corroboration warning. That issue was eventually resolved by this Court. The proposition that a corroboration warning should be given to a jury in relation to confession evidence was rejected by the majority of this Court in The People (DPP) v Quilligan and O’Reilly (No. 3)  2 IR 305. Nonetheless, in that case, an unsupported but extremely detailed confession to a brutal murder of an elderly man in County Cork, Mr Willis, and the effective ruination of his brother’s life, resulted in a clarification of the proper direction which a trial judge should give a jury, without requiring any specific form of words. That ruling was given in the context of the safeguards then in place, which as will be later detailed were much less than now. Whether there is external support for a confession as an accurate and truthful document in implicating the accused was regarded by this Court as important. It remains so. In the judgment of Finlay CJ for the majority, the role of the jury in analysing the confession in the context both of allegations made by the accused tending to demonstrate involuntariness, and of other evidence that may suggest involuntariness, was emphasised at 333-4:
[Asked what he had said before he left the interview room] I shot him. Yes. Seen someone walking across the estate. I held a gun, shot him, and chased him and shot him again. I got out of the car. I shot at him. He ran. I chased him around the back of the house. I shot again. [Who did you shoot?]Shane Geoghegan. [Was he your intended target?] No comment. [Asked how long he was in Kilteragh Estate] I don’t know…about two hours [Asked what he was wearing] Black top, denim bottoms. [Asked where the clothes are] Burnt. [Asked how many shots he fired as “we have to know that you’re telling the truth”] I’m not going to admit to murder if I didn’t do. Seven or eight. [Asked did he feel better telling the truth] It doesn’t take back what I did. [Asked what time he arrived in the housing estate] I don’t know it was dark. [Asked was he sitting in the front passenger seat waiting] Yep. [Asked where the Renault Espace car was parked] Just through the wall, in the car parking space. At the corner. Wall is there. [Asked where victim was when he began shooting.] Halfway across the road. [Asked where Shane Geoghegan went] Ran around the house, I couldn’t see him. [Asked if he found Shane Geoghegan by following the heavy breathing] Yeah. [Asked where Shane Geoghegan was in the garden] Around, up against the wall. [And how many times did you shoot him when he got to the back garden?] Twice. [Where did you shoot him?] In the head. [Asked if the victim said anything] Please stop. [Where did you run?] Back to the car. [Asked what seat he got into] Passenger. [Asked if he was the only person in the car who got out to shoot at Shane Geoghegan] Yeah. [Asked what happened when he got into the car] Drove off. [Asked if he had hit the victim prior to shooting him in the head in the back garden] I think so. He was holding his side. Can’t think [which side]. [Asked when the victim first saw him] The first time I shot him. [Asked did he say anything to him] No he just turned and ran. [Asked how many shots he fired initially] I can’t think. I just left off a few and went after him again. [Asked whether he fired more shots while running after the victim but before going into the back garden] Maybe one or two. I can’t remember. [Asked did the gun work while he was firing it] Jammed. Just tried shooting and it didn’t click. I pulled it back. 2 or 3 times. [Asked where he was standing when this happened] On the road. [Asked how many times he shot the victim] Twice that I know. [Asked did you see anyone else in the estate] No. [Asked about other cars] One of them. [Asked was this the first time he had fired any gun] Yeah. [Asked if he knew or had ever met the victim before] No. [Asked was he sorry] Yes. [Asked how he felt afterwards] Dunno. [Asked did he feel sick afterwards] I was. My head was all over the place. [Asked if he had told his girlfriend about the murder] I don’t want to involve her. [Asked when he turned his mobile phone off] Haven’t a clue. [Asked when he turned his mobile phone back on] Next day or something. I can’t honestly remember. [Asked if he had taken any drink or drugs before murdering Shane Geoghegan] No. [Asked did you know the Renault Espace was stolen] Yeah. [Asked if he knew where it was parked between being stolen and the night of the murder] No. [Asked why in earlier interviews he had denied involvement in the murder] I was thinking of my family. [Asked was he lying earlier on in denying involvement] Yeah. [Asked how far down the road the house where the murder occurred was] Let me think. I can’t think. [Asked was the victim standing when he was shot] Sort of leaning. Against the wall like. [Barry Doyle is asked to demonstrate this and then asked which side he was leaning on] Left side. I think I’m not too sure. [Asked what he was he was leaning up against] Wall. Wall of the house down the side.[Asked what else he could see] Didn’t even look. Just ran in.. I think there was bins there. Can’t remember. [How close did you get to him?] From here to you. [Asked was the victim facing him] Yeah. [Asked if he saw where he shot the victim] Just shot him in the head. [Asked did you see where exactly in the head he shot him and whether he saw him fall] No. No. [Asked was he moving when he ran away] Don’t know. [Asked what he was wearing] He had his jacket up like that. [Asked did he see any facial hair] Couldn’t really see it was dark. [Barry Doyle then alternately answers that he had not been in the estate before and that he was the only person in the car with a gun and that Shane Geoghegan did not have a gun. Finally he is asked if he is sorry for what happened] Yeah. Sorry I did it. I’m just sorry I did it [Asked if he would do it again] No. [After a memorandum of the interview is completed, Barry Doyle signs it.]
10. In dissenting, holding that there should be a warning requirement in the case of an uncorroborated confession, McCarthy J also emphasised that the jury should look at external facts to determine whether any admission of guilt was to be accepted as reliable. At 344 he stated:
Where, as has occurred in this case, the issue with regard to the admissibility of statements turns largely on allegations of threats, assault, inducement or harassment, or of what is described as the ʺplantingʺ of statements, then, the function of the jury is, I am satisfied, as follows.
It must be clearly directed by the trial judge to have regard to all the evidence which is before it, including all the evidence suggesting that the statement has been obtained by any of the unlawful methods which I have mentioned above for the purpose of ascertaining whether they are satisfied beyond a reasonable doubt that the confession or incriminating statement made by the accused is true and is a sufficient proof of his guilt.
A jury is not bound by a finding of fact made by a trial judge in the course of his ruling on the admissibility of a statement such as, for example, a rejection by him of an allegation that a member of the Garda Síochána assaulted the accused whilst in his custody and thus obtained the statement from him. It must be made clear, whether by specific warning or by a positive direction to a jury that their function in having to be satisfied beyond a reasonable doubt as to the truth of a voluntary statement admitted into evidence before them necessarily involves an examination by them of allegations of any description which are relevant to the question as to whether the statement was truly voluntarily given or not. It should be made clear to them that if they have a reasonable doubt as to whether a statement was truly voluntarily given that that would form a very solid ground for also entertaining a reasonable doubt as to whether it was true.
Fundamental to any analysis of fact is to consider which facts are obvious, or as a matter of plain reality beyond argument, and then to consider the disputed facts in the light of all of the other relevant evidence. While the corroboration warning requirement for statements of admission in custody has never been introduced as a rule of Irish law, and while the time when this point arose was one where the safeguards required by law were much less, it has always been significant in relying on a confession whether what an accused said fitted in harmony with other known facts and whether other evidence linked the accused to the commission of the crime. That analysis is central to the decision as to whether the prosecution case has been proven. Hence it is important, in looking at Barry Doyle’s admissions, to analyse whether evidence on the ground backs up what he said as to his involvement in the crime. A confession statement which is materially contradicted by the reality of facts to which it refers is one thing; a confession statement that is supported in its narrative by the reality of what occurred is another. Where a confession details facts which are unknown but later investigated and found to be correct, a serious indication is given of inherent reliability.
There is no difficulty as to the direction as to corroboration itself – this may be found in a variety of other evidence, including, as in this case, the fact that a significant detail in the admission was born out by subsequent discovery at the instance of the person in detention. Corroboration does not depend upon the evidence of other gardaí, one should look elsewhere. … [Once a statement has been admitted by the trial judge into evidence, that], however, does not in any sense preclude the jury, when evaluating the admission, from looking for support or corroborative evidence in a material particular from outside the admission itself.
11. There were a number of elements of support for the confession as an accurate incrimination by Barry Doyle of himself. Firstly, in closing the case, counsel for the prosecution emphasised the accuracy of the map drawn by Barry Doyle during interview 15 from the point of view of the Garda forensic examination of the scene. Secondly, there was the evidence of Victoria Gunnery. Whether the evidence of Victoria Gunnery at the trial was of assistance was a matter left to the jury. While she gave evidence of conversations with Barry Doyle which could support his admission of guilt, on cross examination she put a different interpretation on matters. Thirdly, a woman from Limerick also gave evidence of knowing the gang leader who had ordered the murder, as she had known a relative of his. Part of her testimony, with names redacted where necessary, detailed how the murder was ordered by the gang leader AB. It reads as follows:
12. This witness described staying in the Hilton Hotel with her then boyfriend. She testified that she remembered the morning after the murder of Shane Geoghegan. She recalled driving with the gang leader AB to a rendezvous in the Limerick suburbs and meeting Barry Doyle and another man who were in a separate car. Consolidated, that part of her evidence reads:
The discussion was [AB] was talking, he was telling them that he had everything sussed out about [CD the intended victim] and that he said, “it’s time to make the move” and he said, “I’ve everything sorted” and then EF said to AB, “you don’t have anything sorted”. He goes, “I do”. He said, “I have the gun and the car ready, everything is there to go”, and he was explaining … what he [CD the intended victim] looked like to Barry Doyle. … And Barry was just listening to him and he said to Barry, “the gun is there, you kill him” and he said to EF and to GH, “and one of ye are driving the car and that’s it”… I knew over where AB was talking about. I didn’t know exactly he’s from Doorstep, like, but I knew it was around the roundabout area there by Crescent Shopping Centre.
The witness does not resile from this evidence in cross-examination. While questions as to motive and family were put to her, no alternative instructions from Barry Doyle were put to her as to either the meetings or as to the conversations. That evidence was highly incriminating of Barry Doyle.
AB was on the phone, he had another boy on the phone … He asked Barry [Doyle] to describe what kind of man was it that he killed. … and Barry described him and Barry was saying “it’s him, I know it’s him”. [The gang leader AB was] very angry and violent. … AB asked him was it [CD the intended victim], he said it was. He said “I’m sure it was him.” … He says that he was big, the way that AB described him. [Asked where AB and Barry Doyle said they were going] just said they were going to Dublin. They drove towards that way anyway but they didn’t go the whole way, they turned back … to Limerick.
13. The fourth piece of support to which the jury were entitled to have regard was forensic. Detective Garda Mark Collendar, a ballistics expert from the Garda Síochána technical bureau, gave evidence as to what was found at the scene of the murder. He said that a number of discharged and undischarged live rounds of 9mm calibre ammunition were found in the area. The live rounds had both “an extractor and ejector mark and chamber marks which would be firearm generated marks which would be imparted onto them from being in or cycled through a semi-automatic pistol”. He described these rounds as having been “ejected manually” and said that they “bore the markings of a Glock semiautomatic pistol.” He also describes the process of expelling live rounds. He described the impression that a firing pin would leave when it strikes the primer on the round. He related the particulars of a burnt-out Renault Espace car found in the area. While the detail in relation to the car would have been public knowledge, the fact that the gun had jammed and that the killer had used the ejection of 2 bullets to unblock this Glock pistol was not known to the gardaí prior to the confession statement of Barry Doyle. That, in any event, was the case made on this point by the prosecution.
Admissibility of confessions
14. The maxim nemo tenere prodere se ipsum, that nobody is required to act as a witness against themselves, is the foundational authority for the judiciary’s control of such confessions to crime as are regarded as untrustworthy. Over centuries, it has been on this principle that all rules governing confessions have been based. These have ranged from rules against torture in late medieval times, to a requirement that confessions be the rational product of a free mind in the 18th century, to the requirement of note taking in the early 20th century, to the mandatory provision of legal advice to suspects closer to our time, to video recording as of the present era. It is right to be on guard for, as Alexander Solzhenitsyn remarked in Gulag Archipelago (London, 1973, p 99): “Indeed, the actual boundaries of human equilibrium are very narrow, and it is not really necessary to use a rack or hot coals to drive the average human being out of his mind.” More recently the danger of suggestion to overcome resistance has also been examined. While safeguards against compelled confession are numerous, and at times highly detailed, the underlying principles have remained constant: the reception into evidence of what is both reliable and fairly taken is the weft running through the case law while the rejection of coercion makes up the web. Voluntariness is the legal shorthand for the process of adjudication by a judge to determine whether a confession has proceeded from a coerced mind or from a free one. Through sustained and unremitting pressure, torture, or sometimes through suggestion, a person may make a decision to give way and accept that police suspicions as to their involvement are correct. Such a confession could not be a reliable basis for a finding of guilt. Some such admissions are merely an acceptance, a “Yes, I did it”. In some admissions, such details as are provided have in fact been gradually supplied to the suspect over several police interviews. Some may be detailed and supply particulars unknown to the investigators. Voluntariness is a matter for the judge alone in the absence of the jury while reliability is a matter for the jury where the confession is admitted into evidence. In the context of all of the evidence and its interrelationship, the jury will decide if the prosecution have proved their case. There is a constant guard by the judiciary against coerced confessions because that kind of unreliable admission may possibly be mistakenly seen by the jury as the acceptance of the validity of the entire prosecution case. A genuine admission of guilt to discreditable conduct is, on the other hand, so contrary to human vanity that where circumstances suggest that it is the product of a free will, there may be the highest degree of trust reposed in it. On its own, an admission of guilt is enough to convict. As was put by Nares J and Eyre B as early as 1783 in R v Warickshall 1 Leach 263, 168 ER 234:
Cave J put the fundamental test of voluntariness thus in R v Thompson  2 QB 12:
A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is submitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt that no credit ought to be given to it; and therefore it is rejected.
By … law … to be admissible, a confession must be free and voluntary. If it proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear, excited by a person in authority, it is inadmissible. On this point the authorities are unanimous.
15. Sometimes the analysis in appellate rulings on confession statements may focus on the issue as to whether the circumstances in which an admission was taken were such as to force a prisoner into a position in which he would be likely to make an untruthful answer; R v Brown  68 JP 15. It is useful to return to the state of the law as of Irish independence. Archbold puts the test as of 1922 as being: “to exclude a confession made under the influence of a promise or threat, the promise or threat must be of a description which may be presumed to have had such an effect on the mind of the defendant as to induce him to confess”; Archbold – Pleading, Evidence and Practice in Criminal Cases, 26th ed., (London, 1922) at 387. Temporal issues are also of importance since the same authority at 389 states:
16. Ultimately, a reading of all the relevant authorities resolves the question of voluntariness as: can a confession be regarded as a decision freely arrived at by the suspect who has voluntarily admitted as much of his guilt as he or she chooses. It may be a subsidiary question for the jury as to the weight to be given to an admission as to whether he or she has given sufficient detail to indicate the reliability of what is said. This has nothing to do with expecting a total unfolding of everything a prisoner knows. If a prisoner is required to confess, it is not voluntary. If a prisoner is required to confess all that he knows, then he or she will have had no choice. Part of the indicia of reliability may be that the person admitting to guilt in police interviewers makes a free choice as to how much is to be revealed. A confession is consequently not to be regarded as unreliable because accomplices, or those inspiring the crime, are not named. This has particular resonance as to the later interviews with Barry Doyle after the confession statement quoted in para. 8 above from interview 15. He would not say who else was involved. That was a choice he was held be the trial judge to have been free to make. In our system, the enquiry is into personal guilt. It is entirely focused on what the suspect has done not, as in the Spanish Inquisition or as in Soviet interrogation, on rooting out paranoid conspiracies or the naming of heretics or wreckers. Once a challenge to a confession statement is raised by the accused, the circumstances of its taking are to be scrutinised by the trial judge to determine its admissibility before it may be admitted as evidence before a jury. While experience before Irish juries far from supports the supposition that a mere admission that is lacking in detail and is unsupported by other evidence of the accused’s guilt automatically yields a conviction, as with the original motivation for other rules of evidence, judges are suspicious. Thus, historically, there has been seen to be a danger that too much weight will be attached to an admission and that the mere presence of a confession statement will leave a jury feeling that the scrutiny of any other evidence tending to indicate the guilt of the accused or suggesting his exoneration need not be closely examined; R v Baldry (1852) 169 ER 568. As a response to crime within the community, there is tension between the feeling that it may be unfair to convict a person solely on the basis of a confession and, on the other hand, the need to equip the guardians of the peace with the legal authority to make searching enquiries. What is not to be tolerated, on any right-thinking view of what constitutes reliable evidence against those facing serious criminal charges, is any secret process by which coercion is brought to bear on suspects so that they cease to be able to make rational choices in response to allegations. The leading Irish cases support that proposition and are set out instructively in Liz Heffernan – Evidence in Criminal Trials, (Dublin Bloomsbury, 2014) and JSR Cole – Irish Cases on Evidence, (Dublin, 1972).
The only proper questions are, whether the inducement held out to the prisoner was calculated to make his confession an untrue one, and whether the inducement continued to operate at the moment of the confession; if not, it will be admissible.
17. Wigmore considered that the notion “that confessions should be guarded against and discouraged is not a benefit to the innocent, but a detriment.” His view, as expressed at para. 866 of his A Treatise on the Anglo-American System of Evidence in Trials at Common Law, Including the Statutes and Judicial Decisions of all Jurisdictions of the United States and Canada, 3rd edition, (Boston, 1940), was that an innocent person should be enabled by a mere question from the police to make an explanation at the earliest moment and that this would be “often the best means for him of securing a speedy vindication.” While this is correct as far as it goes, absent statutory intervention, the circumstances in law where people are compelled to give information as to their own criminal conduct are rare. An accused has, however, the invaluable right of giving evidence both at a trial within a trial, with a view to allowing the judge to adjudicate on the impact of any coercion complained of on that particular individual, and to contest by evidence the reliability of any confession statement admitted before a jury. This includes the right to contest the circumstances of any admission by cross-examination, as opposed to through the evidence of the accused, but this must be squarely based upon the instructions of the accused. Wigmore, at para. 851 of the same work, was also of the view that every “guilty person is almost always ready and desirous to confess, as soon as he is detected and arrested.” He speaks of the “nervous pressure of guilt” and proceeds to describe it as being “enormous; the load of the deed done is heavy; the fear of detection fills the consciousness; and when detection comes the pressure is relieved; and the deep sense of relief makes confession a satisfaction.” Experience of ideological murders – those committed from adherence to absolute values and demanding a cowardly and inhuman resort to violence against opponents – suggests that in this area of criminal conduct such a view is inapplicable. When it comes to dealing with those involved in criminal gangs, experience has shown that loyalty to the group and surrender of authority to a leader, will also militate against persons relieving themselves of the burden of guilt, although perhaps less strongly. Even where there is a confession in those circumstances, it may be likely to be personal and not to name other names. Thus, circumstances limit the extent to which the guilty person will confess and how far the confession will reveal pertinent details. Another danger is that the accused, through bitterness, will name those who were not involved or raise the level of participation of those who were. Hence, as matter of law, a confession statement of A, though naming B, C and D, is admissible only against A. An accomplice who is first sentenced may of course later give evidence, but subject to the relevant safeguard, a corroboration warning; People (DPP) v John Gilligan  1 IR 107.
18. The ultimate test is whether the confession came as a result of a decision by a rational mind that has freely exercised a choice to admit guilt. Given the profusion of case law on this issue, the summation of multiple decisions into a workable test by Griffin J in The People (DPP) v Shaw  IR 1 at 60-61 is welcome:
Safeguards surrounding confessions
19. The judicial caution in the admission of confessions is not simply because most statements by arrested persons admitting to a crime have historically been regarded with caution due to having been taken in what was once seen as the confines of a secret process within a police station, but by reason of the very pressure which arrest itself brings to bear on the suspect. As Hayes J put the matter in R v Johnson (1864) LR 2 CCR 15 at 24:
The circumstances which will make a statement inadmissible for lack of voluntariness are so varied that it would be impossible to enumerate or categorize them fully. It is sufficient to say that the decided cases show that a statement will be excluded as being involuntary if it was wrung from its maker by physical or psychological pressures, by threats or promises made by persons in authority, by the use of drugs, hypnosis, intoxicating drink, by prolonged interrogation or excessive questioning, or by any one of a diversity of methods which have in common the result or the risk that what is tendered as a voluntary statement is not the natural emanation of a rational intellect and a free will.
With this in mind, there has developed an accretion of safeguards designed to ensure that there can be, firstly, proper and accurate scrutiny of what has actually happened within the confines of police interrogation and, secondly, a degree of balance which militates against the isolation in confinement of suspects so that their increasing vulnerability has as a counterweight proper treatment, legal advice and access to family. These developments have occurred through judicial action and by legislative intervention. These safeguards have been developed for the benefit of the entire community and are to be abided by and not by-passed through excuses as to the unavailability of legal advice prior to admissions or the unavailability of video recording equipment.
It is manifest to everyone’s experience that, from the moment a person feels himself in custody on a criminal charge, his mental condition undergoes a very remarkable change, and he naturally becomes much more accessible to every influence that addresses itself either to his hopes or fears.
20. With each development of the law, the process by which a confession is taken from a suspect has become more amenable to exact examination. It is important not to slip back into the attitude of a prior era where all a court had was the somewhat weighted contest between the testimony of multiple police officers and the denial of the suspect. The modern system is far from the situation where juries could determine the reliability of the prosecution case only through attempting to gaze through a glass darkly at what may have secretly happened to a person under pressure in a police station. Since we have moved through legislation and judicial scrutiny into an era of transparency, nothing less than the methods through which there is now accountability is acceptable. As times changed so did the challenges posed by accused to the admissibility in evidence of confession statements. There was a time, within the last decades, when a common argument advanced against the admission of a confession statement was that the statement was a so-called planted verbal; in other words that the accused had said nothing or said something innocuous but that the interviewing officers had made up an admission of guilt. There was also a time before that, but within living memory, when the issue as to admissibility tended to focus on allegations of brutality or of secretly hiding an arrested suspect away from legal advice and from the calming attentions of visits from those nearest to them. In the time following that, they were followed by allegations of unremitting pressure. One by one, these kinds of allegation have disappeared. This is because safeguards have been put in place. They are to be kept in place. In Dunne v Clinton  IR 366, it was affirmed that it was impermissible to detain and question suspects to a criminal offence without bringing them before a Peace Commissioner or court and formally charging them as soon as reasonably possible. The use of the time between arrest and the mandatory bringing of a prisoner before a Peace Commissioner or court could, however, be used to question him or her. Section 30 of the Offences Against the State Act 1939 mandates the arrest of anyone suspected of a scheduled offence. Of relevance here are firearms offences, and of those with information in relation to such an offence. With the Emergency Powers Act 1976, such powers of questioning were amplified as to the length of time a person could be kept in custody. With the reference of that Bill to this Court by the President under Article 26.1.1º, In re the Emergency Powers Bill 1976  IR 159 at 173, O’ Higgins CJ declared that rights to liberty were curtailed by arrest but he also declared that arrest implied appropriate safeguards:
21. This remains the law. A breach of liberty, such as deliberately continuing to take a confession statement beyond the lawful time for arrest, at that time consequently resulted in the exclusion of that evidence; The People (DPP) v Madden  IR 336. That case was decided according to the law as it then stood. The Criminal Justice Act 1984 was designed to remove the rule that persons arrested were regarded as being at the beginning of their imprisonment and that questioning was merely tolerated up to the time they could first appear for charging before a judicial authority. That Act brought in powers of arrest for questioning on serious offences, those carrying 5 or more years imprisonment and, following the 1978 Ó Briain Report, provided for a system whereby that arrest should be subject to safeguards, including, as later provided by Statutory Instrument, the checking by a custody officer of arrest validity and the keeping of exact records as to the manner in which a suspect was being interviewed, requiring that the arrested person be given breaks, meals, notice as to rights, that the prisoner should not be questioned beyond midnight except where that was requested, and for humane treatment generally. The details of this were filled in though subsidiary legislation; the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 (S.I. No. 119/1987).
While it is not necessary to embark upon an exploration of all the incidents or characteristics which may not accompany the arrest and custody of a person under that section, it is nevertheless desirable, in view of the submissions made to the Court, to state that the section is not to be read as an abnegation of the arrested person's rights (constitutional or otherwise) in respect of matters such as the right of communication, the right to have legal and medical assistance, and the right of access to the Courts. If the section were used in breach of such rights the High Court might grant an order for release under the provisions for habeas corpus contained in the Constitution. It is not necessary for the Court to attempt to give an exhaustive list of the matters which would render a detention under the section illegal or unconstitutional.
22. Nonetheless, allegations of coerced confessions continued to be made after the commencement of those safeguards. In the modern era the pen has been replaced by video recording. The electronic recording of interviews was provided for by section 27 of the Act of 1984. This is such a case. The era of the automatic recording by video of interviews with suspects took a considerable time to arrive as a present reality. In Quilligan and O’ Reilly, O’Flaherty J, concurring in the majority decision that a corroboration warning was not appropriate for confessions, considered that recording of interviews would be the best means whereby proper protection could be given to the accused. At 357 he referred to this as being “as likely to be of benefit to the gardaí as it is to the accused” and “a much better way to ensure that a just verdict is reached than the introduction of a corroboration warning requirement.” While the fifth report of the Morris Tribunal noted in 2006, all of 22 years later, that the use of video recording was not a prerequisite to the admissibility of a confession, by that stage the Court of Criminal Appeal showed signs of losing patience. In The People (D.P.P.) v. Connolly  2 IR 1 at 18 Hardiman J stated:
The Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations, 1997 (S.I. No. 74/1997) had by that stage been enacted, after a delay of 13 years, but the availability of facilities was at first limited to district headquarters, though by now it has become more widely available. It is now used and ought to be used for serious criminal cases. It should also be born in mind that the reasoning of having electronic recording applies to all admissions. Safeguards are rendered meaningless if courts do not apply them. This was case where the appropriate procedures were followed, as they must be. Thus, the era in which the confession statement of Barry Doyle was recorded has a measure of safeguards beyond anything previously contemplated. What Sheehan J was dealing with here was a set of circumstances where the judge can weigh every word spoken and every reaction of the prisoner with a view to considering whether the prosecution has proven that the inculpatory statement in question was voluntary. That is what the interaction of the judicial and legislative approach to this matter has demanded and that is a circumstance designed on behalf of the Irish people to enable the proper scrutiny of contested confessions.
The courts have been very patient, perhaps excessively patient, with delays in this regard. The time cannot be remote when we will hear a submission that, absent extraordinary circumstances (by which we do not mean that a particular garda station has no audio-visual machinery or that the audio-visual room was being painted), it is unacceptable to tender in evidence a statement which has not been so recorded.
Role of the trial judge
23. In The People (DPP) v Madden  IR 336 at 339-340 the Court of Criminal Appeal followed the judgment of Holmes LJ delivered in the Court of Appeal in the SS Gairloch  2 IR 1 at 18 as follows:
24. The primacy of the trial judge as the assessor of fact is emphasised in many other judgments; see for instance The People (DPP) v Shaw  IR 1. It may be argued that with the ready availability of video recordings in the course of police interviews, that this role has changed and that somehow an appellate court has been put in as good a position as the trial judge. This is not so. The boundaries to an appeal remain the same in criminal cases as the jurisdiction exercised in civil matters; Hay v O’Grady  1 IR 210. Furthermore, the cases cited in the foregoing paragraph were the basis of the decision by Sheehan J to admit this confession as voluntary. He heard the gardaí giving evidence and heard and saw their reaction to cross-examination. It might also have helped him to hear from the accused and from his then solicitor but decisions as to the maintaining or withholding of privilege are matters for the accused, as is the decision as to who is to give evidence. Such decisions are made, no doubt, for good reason. On appeal, a judge cannot be in as good a position to decide facts and, as a matter of law, is not. Despite video-recordings of interviews, an appellate court has available merely the text of the cross-examination of garda witnesses as to the allegations of the accused. Those will be searched as to the instructions behind questions where, as in this case, the accused chooses not to give evidence. In the Shaw and Madden cases, the issue on appeal regarding the voluntariness of the confessions in dispute was resolved by reference to the availability of evidence upon which such findings could be made. Indeed, the second and oft-quoted principle enunciated by McCarthy J at 217 in Hay v O’Grady has not been argued on this appeal to be either incorrect or inapplicable:
When a judge after trying a case upon viva voce evidence comes to a conclusion regarding a specific and definite matter of fact, his findings ought not to be reversed by a court that has not the same opportunity of seeing and hearing the witnesses unless it is so clearly against the weight of the testimony as to amount to a manifest defeat of justice.
25. As to inferences, the decision in Hay v O’Grady places the primacy of findings obtained from live witnesses with the trial court, though acknowledges that an appellate court “is in as good a position as the trial judge” where circumstantial evidence is involved. This Court on appeal has had no opportunity to hear or see any witness on this issue. The trial judge was the only person in that unique position. Sheehan J also had the duty to decide on the issue of whether this confession resulted from an inducement or was, instead “the natural emanation of a rational intellect and a free will”; Shaw, quoted above para. 18 from Griffin J at 60-61. Essentially, three points have been argued on voluntariness: firstly, that Sheehan J applied an incorrect test for dealing with inducements; secondly, that the memo recording the meeting with the solicitor prior to the crucial admissions is incapable of any other construction than that there is an inducement; and, finally, that the text of the interview and of prior and subsequent interviews demonstrate that the inducement was operative and cannot have passed. The separate judgment of McKechnie J involves a re-analysis of the facts and arrives at a different conclusion to Sheehan J.
If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
26. No incorrect legal test was applied by Sheehan J. The operative part of his ruling specifically references all of the relevant decided cases and in particular the decision of the Court of Criminal Appeal in The People (DPP) v McCann  4 IR 397. This had not only been opened to the trial judge but had been discussed in argument and counter argument as to the admissibility of the confession. The three part test set out in that case emphasises that the effect which any action of the interviewers may have had on the particular mental disposition of an accused cannot be ruled out. In emphasising the individual nature of the person under questioning, the particular disposition of each person is to be kept to the front in ruling on this issue. The McCann test rightly sets out three questions:
27. The separate judgment of McKechnie J correctly emphasises the sequence of these questions. The approach of the trial judge in that regard seems to start at the second question. The appropriate start is the first. As a matter of prudence, even if ruling no on the first question, it assists appellate courts to also make findings of fact where appropriate on the other two. But the sequence should be maintained. It was specifically the text of McCann which is referenced by Sheehan J and any alternate authority was rejected in his ruling. Furthermore, part of the test is whether, if an inducement cannot be completely ruled out, the inducement continued to operate at the moment of the confession; that is the issue of whether a confession resulted from that inducement. That requires a subjective analysis, as the test in McCann states. Here, the ruling of Sheehan J referenced in particular The People (DPP) v Pringle (1981) 2 Frewen 57, which at 82 contains a description of the individual characteristics of the person being questioned; in that case “a man of 42 years of age, in good health, who for some years prior to his arrest had been a fisherman in the Galway area… not unused to conditions of physical hardship.”
28. The operative inducement on this appeal is said to be evidenced from the exchange between the solicitor for Barry Doyle and the interviewing gardaí in respect of interview 15. In this regard, it is to be presumed that a solicitor knows the law and that part of the advice that was available to Barry Doyle in the several consultations which he had with his solicitor just before interview 15 was that neither his detention nor the detention of his ex-girlfriend Victoria Gunnery was capable of being extended indefinitely, 72 hours being the maximum period of detention allowable under section 30 of the Offences Against the State Act 1939, as amended. The interviewing gardaí were confronted with the legal representative for Barry Doyle offering a false and insecure basis for any confession. What is significant is that this was rejected out of hand. The argument advanced on behalf of Barry Doyle is that even if the gardaí rejected this offer, the fact remained that they left open the position that, should Barry Doyle provide a confession statement, Victoria Gunnery would be released was enough to constitute an inducement. It is worth recalling the precise words in which the memo recorded this fact. It is a fair inference, and certainly not one that can be dismissed as a remote possibility, that his solicitor repeated the words of the gardaí to Barry Doyle as the 15th interview that was about to commence. Those words were: “once he told the truth about what had happened we would have no reason to detain Victoria Gunnery any further.”
29. In the context of various forms of detention for police enquiries, be it under s. 30 of the Offences Against the State Act 1939 or the ordinary form of detention under the Criminal Justice Act 1984, the argument often made by the prosecution as to why a detention was continued lawfully once a confession statement was made by the arrested person has been that facts needed to be checked. In other words, it is often said: we could not charge or release the suspect because in light of his statement there were other facts to be checked up on and we may have needed to come back to him having done that. Even if Barry Doyle had made an admission, from whatever motive, it would not have been unreasonable to continue to detain him and to check with whoever had relevant information as to facts mentioned therein for the purpose of cross-referencing such incidents as were relevant to both. In the case of Victoria Gunnery this may not have taken long. Even still, the information from the gardaí on this point may, therefore, have been inaccurate. The question then becomes whether this was the motivation for Barry Doyle in making the statement.
30. It is to be noted that at the trial, the defence claimed that Barry Doyle was oppressed into making the confession. The defence also said that the confession was made in consequence of an inducement. Despite the subjective nature of the effect of the test on a prisoner, as elucidated by the Court of Criminal Appeal in McCann, the evidence most prominent in the notable absence of evidence from the accused was that of the video recordings. Sheehan J after viewing some 20 hours of these, found as a fact that Barry Doyle “appeared to be physically and mentally strong throughout.” Furthermore, the trial judge regarded his interactions with the gardaí as a matter of choice. His background was also of importance in this analysis: what he worked at and the conditions that he was prepared to put up with in his day-to-day life. All of this is relevant as well to the mental toughness that faced the questions posed as to his involvement in the context of the safeguards as to legal counsel, custody supervision, visits, rest and complete recording of interviews. Ultimately, the question is as to the motivation of an arrested person for making the statement. On the criminal standard of proof, in other words rejecting the possibility that there was an operative inducement at the time of the confession, Sheehan J held that it was not in consequence of the references to his former girlfriend and mother of his child. Instead, the trial judge held that the statement emanated from remorse. The primary finding of fact here was that the statement was taken in the context of the gradual unfolding of the evidence against him by gardaí acting in a professional and courteous way and that the statement resulted from remorse at what he did and not from any inducement.
31. The test in law for the review of facts remains whether there was evidence to support such a finding. Any appellate analysis is required by law to be so confined. As McCarthy J stated in Hay v O’Grady, the role of an appellate court is not to count which aspects of the evidence, pointing one way or the other, amount to a majority. There was evidence from Victoria Gunnery, which was put to Barry Doyle in interview 10, on 25th February between 22:38 hours and 23:35 hours. This centred on the use of a phone and the hours within which the phone had been turned off. Here, the relevance was when he was about stalking the victim, as it turned out the wrong man. The reading of her statement to Barry Doyle was in accordance with a modern interpretation of rule 8 of the Judges’ Rules; as it is never sought in consequence of reading a statement to one prisoner to thereby implicate through that prisoner’s response the original maker of the statement. It was put to Barry Doyle that despite the fact that she had done nothing, he had placed her in jeopardy. Reference is made to her having “the same food as you and no visits”, but in fact she had visits from her father, her mother and another individual. It is put to him as well that failure to tell the truth could harm his relationship with the mother of his children. This was because, as it was put to him, he had “shown no remorse.” A confession made from remorse may indicate that no inducement is operative. It was said to him that the only way to move forward was to admit his involvement. An offer is made to him that if he tells the truth that the gardaí will go and tell her that he has told the truth. He was asked: “Can you do that for your own kids?”
32. It was argued on this appeal on behalf of Barry Doyle that it was sinister that Victoria Gunnery was brought to Limerick on the following day for the purpose of extending her detention. Part of the problem with the challenge to this interview was that a vast number of points were raised. On the papers lodged, it does not appear that the trial judge was specifically asked to rule on this; rather it seems that it was used as a rhetorical device on this appeal. Interview number 11, which took place next day between 09:03 hours and 11:12 hours, centred on statements taken by the gardaí tending to show the origin of the plot to murder a person who was mistaken as the eventual victim. A particular statement was put as to the murder of the intended victim CD and the brutality of the person apparently ordering this; the gang leader AB. Interview 13 took place between 15:02 hours and 16:13 hours. The relevance of Victoria Gunnery arose in this interview as questions were put by the gardaí to Barry Doyle as to why his phone had been off on the relevant night when she apparently tried to telephone or text him and vice-versa. It was put to him that she was not lying about this important fact, especially as she is “sitting in a Garda cell or a Garda interview now.” There is a specific reference to her in the following terms:
Shortly afterwards it was put to him that he told her “that you were involved in the murder of Shane Geoghegan”. He indicates: “She has no reason to lie.” He then indicates that he’s not answering any more questions. It is put to him that she is in for the “same offence that you’re in for … the same incident”, and that “she’s being interviewed in relation to that investigation”. Whereas the latter is correct, the former is not since the relevant power of arrest under s. 30 of the Act of 1939 extends to anyone with information about a scheduled offence. Not many make that distinction, however. It is argued on behalf of Barry Doyle that a reference to his statement that he did not “want Vicky involved in this” which is answered both by the gardaí saying “it’s on the tip of your tongue” and asking “are you going to fix it and tell the truth?” indicates a clear inducement. In the course of the same interaction, it must also be remembered, it was said by the gardaí:
You brought her into it. You brought her into it, you know? We don’t want to see her in custody. We don’t want to see anybody up in custody to be quite honest with you. We’ve got other things to be doing. But when you go out and kill a man, an innocent man, who had done nothing, absolutely nothing… everyone is involved. And you brought Vicky right into the centre of it and she’s in the centre of it. How many times did you use her phone to contact [named person associated with the gang leader]?
33. Barry Doyle then indicates that he wishes to see his solicitor, who is then contacted. Interview 14 took place between 17:32 hours and 18:35 hours on the same day. In the course of that there is what the prosecution claim is a strong indication, that the arrest of Victoria Gunnery was put into its proper context and, furthermore, that there was no operative inducement. At one point the interviewing gardaí address Barry Doyle and say:
Think a bit harder. Think a bit harder and do the right thing Barry. Do the right thing. Don’t keep Vicky away from the young one as long, longer than she has to be. Tell the truth. Tell the truth Barry. For the sake of your child. Do the right thing.
Barry Doyle then indicates that he has nothing more to say that he wants to see his solicitor. He is then urged to tell the truth and he says: “I’ll answer your questions after I speak to my solicitor.” This is important as he then had independent legal advice from the solicitor he had chosen. The interviewing Gardaí make reference to Rosary beads which he was wearing around his neck which apparently he received after his brother’s death. A further reference was also made to Victoria Gunnery:
Vicky’s arrest is a small thing. Vicky will be let out when we’ve no reason to detain her, okay? If we’ve no grounds to detain her she’ll be let out. So that’s a small thing; not to you maybe, but it’s a small thing. But this man is dead because you came down here. Do you know what I mean? Look, the man is dead because you come down here. Do you agree with that?
34. Further interviews, after interview 15, centre on the other persons involved in the conspiracy to kill CD, the intended victim of the crime. It is significant that in those interviews, Barry Doyle makes a definite choice not to name the gang leader AB or anyone else involved in the conspiracy to murder. This choice is made no matter how the question is put. On this appeal, emphasis was laid upon interview 20 which took place on 27th February between 15:44 hours and 18:15 hours. On being questioned, Barry Doyle there indicated that when he was involved in the murder that the gun jammed and that he responded by pulling back the relevant lever and ejecting bullets. He resolutely refuses to name anyone else involved. References are made to the fact that after interview 15, when he confessed, he took off the Rosary beads mentioned in interview 14 as being around his neck and handed them to the interviewing detectives with a view to giving the memento of his deceased brother to the Geoghegan family as a mark of his remorse. He was also asked by the gardaí asked to show his remorse by bringing the other people involved in the murder “to justice”. He indicates that he has exercised “my choice” in relation to admitting to the murder and says: “I’ve took on my own responsibility.” He also says: “My girlfriend was arrested down the station. If I had known she was down there I would have said it that day, on the Tuesday.” Asked if that was “the only reason that you admitted to the murder of Shane Geoghegan”, he said:
Well, I tell you, I’ll tell you before, yeah, I’ll tell you, right, Vicky is all right. … The truth has to be told. Vicky is all right okay? Vicky is all right, Vicky is being well looked after, okay, and you’re being well looked after. … She’s being better looked after than you, right? … She’s being looked after, okay? All right, you don’t need to worry.
35. It should be remembered that the gardaí at all times were strongly making the case that because of his actions in committing the murder, several other innocent people had become involved in the investigation. This included the family of the murder victim and it also included those close to Barry Doyle, namely his ex-girlfriend and their child. In the final analysis, an exercise such as this demonstrates that there was potential evidence whereby a decision could be made that the operative factor in relation to the confession was remorse for what had happened in the context of a build up of evidence revealed piecemeal to Barry Doyle which demonstrated what the gardaí knew. There are also strong indications, as found by Sheehan J, that as a prisoner Barry Doyle exercised an entitlement to speak or to refuse to speak both absolutely, by saying nothing, and by choosing to admit only his own involvement and to shun any statement that might involve his gang leader AB or anyone else involved in the conspiracy to murder. That choice did not waver throughout all of the interviews up to interview 22, after which his detention ended. At any stage, Barry Doyle could have disavowed what he had told the gardaí as to his having committed the murder. There was plenty of opportunity. He chose not to do so. At no stage did Barry Doyle indicate that there was never any interaction in relation to phone calls and texts on the night of the murder with Victoria Gunnery. This is an indication that his statement was not made with a view to shielding her from any potential responsibility or with a view to indicating that she did not have any relevant information. Finally, the gesture in presenting the Rosary beads constitutes another piece of relevant information from which the trial judge could make the decision that he did.
I’ve admitted to it because I didn’t … I didn’t want people involved in it that weren’t. That hasn’t, because it’s not Vicky’s fault too that … She has a kid from me, like, you know what I mean? She shouldn’t have been … She shouldn’t have been brought into it, you know what I mean?
36. An overall analysis demonstrates that there was material upon which the decision of Sheehan J could responsibly be made. On the authorities, therefore, the decision cannot be disturbed. Finally, it might be commented that in the light of the safeguards that now prevail, most especially the availability of all the relevant video recordings, the ultimate test as to whether a statement was made in consequence of an inducement or whether it was “the natural emanation of a rational intellect and free will” has been demonstrated as the appropriate test as to whether at a particular time any particular statement was or was not voluntary.
37. In The People (DPP) v Pringle, it was held by O’Higgins CJ at 94-95 that it was not possible to infer a constitutional right to have a lawyer present during custodial questioning. His judgment noted that while the freedom from self-incrimination contained in the Fifth Amendment of the United States Constitution led the US Supreme Court to infer such a right in Miranda v State of Arizona 384 US 436 (1966), there was no similar provision against self-incrimination in the Irish Constitution and thus it was not possible to infer such a right in this jurisdiction. Lavery v Member in Charge, Carrickmacross Garda Station  2 IR 390 is another instance where this Court reached the same conclusion. The Court of Criminal Appeal on this appeal rejected an argument on behalf of Barry Doyle that his confession statement was inadmissible by reason of no legal representative being with him during questioning. Thus, following precedent, the Court of Criminal Appeal ruled that an accused is not entitled to the presence of a lawyer during custodial questioning. Counsel for Barry Doyle argue on this appeal that he had not only a right to consult with a solicitor while in custody for questioning but that this right extended to having a lawyer present during each interview. This argument is made in the written submissions for Barry Doyle in the particular context of references to his ex-girlfriend:
38. The prosecution argue on this appeal that the right to legal counsel when arrested for questioning is one of reasonable access. Further, they argue that Barry Doyle had precisely that right to legal advice. Counsel for the Director of Public Prosecutions contends that he exercised it without hindrance in the context of his arrest and questioning. Summarising their argument in the written submissions, it is urged that the following is the position:
The trial Court and the Court of Appeal, failed to recognise the illegality and unfairness involved in conducting interviews in such a manner. Had a solicitor been present he would not have permitted the interviews to be so conducted. In this case, the analysis of the interviews illustrates that the exclusion of the solicitor from the interview process led to the creation of an inequality between the parties, to the creation of inappropriate pressures, a degradation of the right to silence and consequently a manifest unfairness and disregard of his constitutional entitlement to due process of law. [Barry Doyle’s] right to reasonable access to legal advice during the detention stage was not provided for adequately by the nugatory access that the Appellant had to his solicitor from his arrest until interview 15 (the details of which are set out above). Immediately prior to his request to see his solicitor on the 26/2/09, the total time with access to his solicitor was approximately 13 minutes, only nine of which were in person. This corresponded to a period of detention spanning approximately 60 hours with almost 20 hours of interviews. The only detail in respect of the allegations given to the Appellant’s solicitor was the nature of the alleged offence. No pre-interview information or other disclosure was provided to him by the Gardaí such as the nature of the evidence against his client. On the facts of this case the Appellant was denied “reasonable assess” to his solicitor
39. Barry Doyle was arrested in the early morning of 24th February 2009, arriving at Bruff Garda Station before 08:00 hours. A solicitor was notified of his arrival shortly after he had been informed of his rights. She telephoned about 2 hours later and there was a brief telephone conversation with Barry Doyle. Another solicitor attended the station one hour later and consulted in person with him for 9 minutes. The following day, in the context of a District Court application to extend his detention, his solicitor was notified. The next day, during interview 13 at 16:04 hours, Barry Doyle requested to again see his solicitor. Interviews were not continued because of difficulties contacting the particular solicitor who was caught up in court cases in Newcastle West. At 17:13 hours, there was a telephone conversation with the solicitor but Barry Doyle hung up after 2 minutes, telling the member in charge of the garda station that he had finished. Interview 14, between 17:32 hours and 18:35 hours, commenced with Barry Doyle acknowledging that he had spoken to his solicitor. No further requests were made. It may be reasonably inferred that the short telephone conversation included a request for the solicitor to attend, since at 18:52 the solicitor arrived at the garda station. According to the custody record, there was a consultation in person for 10 minutes. Then the solicitor came to the interviewing gardaí and the interchange is noted at para. 6 hereof. There followed another consultation in person for 10 minutes. This was briefly interrupted for another conversation between the gardaí and the solicitor and the consultation then resumed and continued over 4 minutes or so. At the commencement of interview 15, Barry Doyle admitted that he had been in the front seat of the Renault Espace car suspected to be linked to the murder. The solicitor then called on the telephone and the interview was interrupted while Barry Doyle spoke to the solicitor in the privacy of a room in the station over 3 minutes.
The appellant had repeated access to his solicitor when and for as long as he liked. Every request for access to his solicitor was complied with. On one occasion an interview proceeded after a short two-minute telephone conversation and in circumstances where the appellant told the interviewing gardaí that he required further time with his solicitor. He did not, however, make any admissions in that interview and efforts were being made to secure the attendance of his solicitor. His solicitor attended shortly afterwards and the appellant had approximately 20 minutes of consultation with the solicitor at that time.
40. As noted above, for decades it has been part of the rights of a person arrested on suspicion of having committed a crime that he or she has access to legal advice; In re the Emergency Powers Bill 1976. That right has been regarded as a counterbalance to a situation where the arrest of a person, constitutionally presumed to be innocent, puts the weight of State resources against the vulnerability of the arrested person. That right applies from the moment of arrest. It applies upon arrest and it applies while a person is being brought to a garda station and it applies before they are handed in the station the standard notice as to their rights. Heretofore, the law has been that admissions made during that period of unlawful detention were inadmissible in evidence; The People (DPP) v. Healy  2 IR 73, confirming the decision in Madden, and noting that another person could request legal advice for a detained person and that as soon as the solicitor arrived the arrested person had a right to be told of their arrival immediately. No comment is made on the current situation in the light of this Courts decisions in The People (DPP) v. Cash  IR 609 and The People (DPP) v JC  IESC 31. Once the absence of legal advice is remedied, the detention becomes lawful again and does not render any subsequent admission unlawful, provided that any such subsequent admission is not obtained on foot of information given during the period of time in which the rights of the accused were breached; The People (DPP) v. O’Brien  2 IR 206. Since the decision of the Court of Criminal Appeal in Madden, this entitlement to legal advice has been described as that of a right of reasonable access to a solicitor. What is reasonable must depend on the circumstances, the nature of the case and the nature of any power being exercised by the investigating gardaí. A situation of questioning in the ordinary way may be different to the invocation of a power from which an inference may be drawn in the context of a refusal to answer. To deny access to legal advice would render the detention illegal. What was reasonable, at one time, was to be construed by having regard to all the circumstances, in particular the time at which access was requested and the availability of the legal advisor or advisors sought. The courts were then also of the view that there was no obligation to provide legal advice when no such request was made. In order to exercise certain rights – the right of access to a solicitor clearly being one – awareness of those rights is necessary. The notice of rights under the Custody Regulations, however, spells out that right. Even still, the right does not just apply from then. It applies by reason of the arrest for investigative purposes. Hence, it is operative once there is such an arrest. A notice of rights is required to be read to a person upon arrival in a garda station. None of the above-mentioned cases dealt with the situation which sometimes occurs where, instead of arrest, a person walks into a garda station with the express purpose of confessing to a crime. Such a person would not necessarily be an involuntary arrestee subject to police questioning. Indeed in Miranda v State of Arizona 384 U.S. 436 at 478 (1966), the majority decision given by Warren CJ indicates that there “is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime”. There, a distinction was drawn between voluntary statements, and volunteered statements. The validity and nature of such distinction is not for decision today. That, in any event, might, if acknowledged in due course, be a rare exception to the application of the right from the moment of arrest.
41. In The People (Director of Public Prosecutions) v Buck  2 IR 268, the issue was, once a request for legal advice is made by a detained person, what degree of effort is required by the gardaí to make such advice available. Constitutional standards of fairness would require the exclusion of a statement of admission unless the gardaí make genuine efforts to comply with a request for legal counsel. Keane J, speaking for the Court of Criminal Appeal, stated at 281:
42. In The People (DPP) v Gormley  IECCA 86, the accused was arrested on Sunday but efforts to have a solicitor attend questioning proved fruitless. The Court of Criminal Appeal held that once genuine efforts were made, there was no need to hold up the commencement of interviews. At that time, there was no basis of ‘awaiting a solicitor’ in the Custody Regulations for suspending the duration of a lawful arrest for questioning. Finnegan J stated:
Assuming that, in the present case, the trial judge was entitled to conclude that the arrest and detention of the defendant was lawful and did not constitute a mala fide attempt to ensure that he was without legal advice while he was being interrogated and that the Gardaí made bona fide attempts to secure the presence of a solicitor when the defendant requested them to do so, it would follow that there was in this case no deliberate and conscious breach of his constitutional right of reasonable access to a solicitor and, on that assumption, his detention remained lawful. It would also seem to me that, where a person being detained under a statutory provision asks for a solicitor to be present and the Gardaí made bona fide attempts to comply with that request, the admissibility of any incriminating statement made by the person concerned before the arrival of the solicitor should be decided by the trial judge as a matter of discretion in the light of the common law principles to which I have referred, based on considerations of fairness to the accused and public policy.
43. That and another case were joined in the appeal to this Court, The People (DPP) v Gormley, The People (DPP) v White  IESC 17. The common issue was whether the gardaí were entitled to continue the questioning of a detainee or to take forensic samples from them during the period of time after a request for legal advice had been made, but before the solicitor in question had arrived at the garda station. It is only two years since the judgment of Clarke J in that case, traversing the European Court of Human Rights and other decisions internationally, Hardiman J having given a separate judgment. It is thus pointless to reiterate that analysis. What is of importance is that there is no decision of the European Court of Human Rights stating that there must be a solicitor in the room during the time when a person is being questioned by police in relation to a crime. There is ample authority to support the requirement for legal advice from the time of arrest for questioning; Salduz v Turkey (2008) 49 EHRR 421, Panovits v Cyprus (Application 4268/04 (First Section) 11th December 2008), Murray v United Kingdom (1996) 22 EHRR 29. This right of an arrested person to legal advice, as noted in Gormley and White at para. 9.14 of the judgment of Clarke J, is of “high legal value” and any exceptions to it are to be recognised only in wholly exceptional circumstances, such as ones involving a pressing and compelling need to protect other major constitutional rights such as that of a victim in peril. Exceptions related to transport or to the availability of an appropriate independent legal advisor are not acknowledged. It is an aspect of fair procedures, as Griffin J noted in Shaw, and as earlier authorities referenced arrest as “the beginning of imprisonment” a failure to render legal assistance would breach the pre-trial safeguards inherent in Article 38.1 of the Constitution. In Cadder v HM Advocate  UKSC 43, the issue was the Scottish procedure of questioning upon arrest without the benefit of any legal advice. The right to be respected, according to the Supreme Court of the United Kingdom, was of advice. Hence, “unless in the particular circumstances of the case there are compelling reasons for restricting the right”, a person being questioned under arrest has the right of “access to advice from a lawyer before he is subjected to police questioning.” This does not apply to questions put outside that context, for instance to pre-detention investigations; Ambrose v HM Advocate  UKSC 43, and see the judgment of Clarke J in the Gormley and White case at paragraph 6.0 onwards.
Where the detained person requests access to a solicitor the Gardaí are under a duty to make bona fide attempts to give effect to the request and a failure to do so will constitute a breach of the suspect’s constitutional right of access and render his detention unlawful. However, so long as reasonable efforts are being made to contact the solicitor there is no prohibition on the Gardaí proceeding to question him: The People (Director of Public Prosecutions) v Buck. Difficulties can, of course, arise where arrest is effected over a weekend when access to a solicitor may be difficult to arrange. In the present case there can be no suggestion having regard to the time at which the offence was committed and the arrest made, that there was any deliberate attempt to make it difficult for the applicant to have access to a solicitor. Indeed in this case, having regard to the circumstance that it was a Sunday afternoon, the Gardaí used diligence and resourcefulness in locating the solicitor nominated by the applicant.
44. There, this Court did not assert that there was a right to have a solicitor present during questioning as this did not arise on the facts of the case, though the Court did note that such a right exists in the decisions of the United States Supreme Court; see Clarke J at 9.10. If there had been the breach of such a right, then in accordance with Madden, the very nature of the legality of the detention would change. The fundamental requirement of basic fairness applies from the time of arrest; per Griffin J in Shaw at 61, which was cited by Sheehan J in his ruling on admissibility quoted above at paragraph 7. The investigative stage must be distinguished from the process after arrest where a person is deprived of freedom in a context which is “intimately connected with a potential criminal trial”; Gormley and White per Clarke J. at paragraph 8.8. Therefore, it does not necessarily follow that the rights which are typical of and fundamental to the fairness of a criminal trial under Article 38.1 of the Constitution, most especially that of representation by an advocate, apply. Investigation is to be distinguished from questioning under arrest. Arrest and questioning are different to the process of trial. While there is a fundamental requirement of basic fairness which applies from the time of arrest, that requirement of fairness may be met by safeguards other than the presence of a legally trained, or semi-trained, person at police interviews. The taking of samples, which of their nature are static in nature and uninfluenced by the mental state of the arrested person, is again different and does not require advice to be given from a lawyer prior to these being taken; Clarke J at paragraph 8.8 in Gormley and White and see Saunders v United Kingdom (1996) 23 EHRR 313. Regulation 18 of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 provides for the voluntary submission of fingerprints and as to intimate body samples though not non-intimate samples; see section 2 of the Criminal Justice (Forensic Evidence) Act 1990. Conditions of custody must, of course, be reasonable otherwise, as Hardiman J noted at para. 7 of his judgment in Gormley and White, the result may be to undermine the resolution of an arrested person to wait for legal advice. Hardiman J also stated at paragraph 10 of the same judgment that while in that case there had only been asserted the right to have a lawyer’s advice before questioning begins, it would not be long before someone else asserted a right to legal advice in custody on a broader basis. That is the assertion here. Partly, that assertion is based on current practice since Gormley and White was decided. That practice arose from an interpretation of that case by the Director of Public Prosecutions whereby a solicitor is admitted to interviews with an accused. A practice is not, however, of assistance in interpreting the interplay of the rights of victims to fairly access the criminal justice system, the duty of the Executive to investigate crime and the right of the accused to such fairness of treatment as supports the elimination of wrongful conviction.
45. In the United States of America, the Supreme Court decision in Miranda v State of Arizona requires the presence of a lawyer prior to and during questioning. Again, the relevant decisions and subsequent application of Miranda are noted in Clarke J’s judgment in Gormley and White. That US decision has been the main authority urged by counsel for Barry Doyle. As a persuasive authority it carries weight but it is not to be unthinkingly followed. The circumstances, the background and the relevant safeguards in that place in the US at that time and those now applying in this jurisdiction are entirely different.
46. It is now 50 years since that decision. Central to its reasoning was the determination of the Supreme Court not to allow the 5th Amendment rights against self-incrimination to be undermined by police brutality or their substitution by psychological terrorising or 3rd degree methods of interrogation. Several times, the judgment of the majority given by Warren CJ references the grip which the police have over the mind of a person upon arresting an individual and bringing him to a state of non-communication with the outside world within the secrecy of an interrogation room; a state from which he can have no resort to the reassuring presence of family or to proper advice from a lawyer as to his rights. It is clear from reading the entire text of the Miranda judgement that what is at issue is the inability of the courts to discover the nature of the methods used in the extraction of a confession and that this arose from the secretive nature of interrogation, the lack of any balance against whatever lies might be told by the police, their expertise in undermining any wavering determination by an arrestee against incriminating himself, the widespread use of trickery and methods of questioning which were inherently designed to affirm police suspicions as opposed to seeking the truth. Modern psychological research indicates the inherent dangers of such approach, whereby completely innocent people can, through suggestibility and depending upon their individual levels of suggestibility, be led to accept that they committed a crime the details of which have been conveniently supplied over the course of an interrogation with a view to being regurgitated in a confession statement; Gisli Gudjonsson – The Psychology of Interrogations and Confessions: A Handbook (London, 2003), see particularly chapters 1, 3, 5, 6, 8, 9 and 18.
47. Warren CJ in Miranda speaks of his concern with police brutality and references an important 1961 report affirming its continuing presence. He states that brutality and coercion while “undoubtedly the exception now… they are sufficiently widespread to be the object of concern.” He stressed that the modern practice of “in-custody interrogation is psychologically rather than physically oriented.” Quoting from then current manuals for the instruction of police, he instances instructions designed to create an atmosphere which “suggests the invincibility of the forces of the law”, positing the “guilt of the subject … as a fact”, undermining those under interrogation by reference to the unhappy childhood or unsuccessful love life of the suspect, casting blame “on the victim or on society”, as being “tactics … designed to put the subject in a psychological state where his story is but an elaboration of what the police already know – that he is guilty.” Other techniques instanced or quoted by him include the creation of “an oppressive atmosphere of dogged persistence”; “interrogating steadily and without relent, leaving the subject no prospect of surcease”; continuing an interrogation “for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination” and the Mutt and Jeff act of good-cop bad-cop. Another technique from that era included placing a suspect on a line-up in relation to a variety of unconnected offences and making a show of fictitious witnesses identifying him for a host of random crimes, so that it becomes a relief to confess to the crime for which he has been arrested. In each of the joined cases in Miranda, Warren CJ refers to each of the defendants as having been “thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures.” In none of the cases, he says, “did the officers undertake to afford appropriate safeguards at the outset of the interrogation to ensure that the statements were truly the product of free choice.”
48. In contrast to the situation described are the safeguards applicable from the moment of arrest in this jurisdiction that have been closely and carefully constructed over decades of experience. In contract too is the direct applicability of such rights. The most fundamental problem in adjudicating the admissibility and reliability of a confession to police is that interrogations used to take place in secrecy. That is no longer so. This completely undermines the rationale put forward by counsel for Barry Doyle whereby this Court is asked to unthinkingly apply a ruling backed by circumstances which existed two generations ago and designed to lance a poisoned boil of secret compulsion which is utterly foreign to modern police methods. Transparency is the hallmark of the exercise which Sheehan J and Carney J were able to engage in by viewing all of the relevant videos, amounting to over 20 hours, and which cast interviewing techniques under a form of scrutiny which is close to being as contemporary to the events as technology allows. Fundamental to the rationale of the majority judgment in Miranda is the absence in 1966 America of precisely what has been achieved through an accretion of protections in the Ireland of today. Warren CJ rationalised his decision thus:
49. This authority is cogently reasoned and is no doubt persuasive as to its particular time and context. However, the factual, rights-based and legal context is different in this case. It must also be remembered that there is a practice in this jurisdiction of informing people as to their rights both orally and in writing, having a custody officer whose duty it is to ensure that questioning is carried on fairly and for a reasonable time only, not at night unless the suspect requests this, and that an arrested person has access to legal advice before any questioning begins. But, those rights to be meaningful must be consistently applied. Otherwise, the State might find itself in a Miranda environment. They were applied here. Any issues as to brutality, psychological pressure, the crafty planting through suggestive questioning of every detail of the crime prior to any admission in the mind of the arrestee so that the confession statement becomes apparently trustworthy, unfairness or the coercion of the suggestible are visible and susceptible to judicial scrutiny as a result of the presence of video-recording in interview rooms.
The presence of counsel at the interrogation may serve several significant subsidiary functions, as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present, the likelihood that the police will practice coercion is reduced, and, if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police, and that the statement is rightly reported by the prosecution at trial.
50. It cannot therefore be concluded that it is a necessary part of the right to a trial in due course of law under Article 38.1 of the Constitution that a lawyer should be present for the interviewing of a suspect in garda custody.
51. It is also argued on behalf of Barry Doyle that the arrest of a suspect at his home in circumstances where the search warrant used to gain entry was legally invalid results in the arrested person’s custody becoming unlawful and any resulting evidence inadmissible. Any such submission, however, has to be nuanced in relation to the decision of this Court in The People (DPP) v. JC  IESC 31. Exploring, for the moment, the basis of the point without reference to any discretion as to the admission of evidence, the following is relevant. Barry Doyle was arrested at his residence in Limerick for the murder of Shane Geoghegan on foot of a warrant issued under s. 29(1) of the Offences Against the State Act 1939, as inserted by section 5 of the Criminal Law Act 1976. At that time, this enabled a Superintendent of An Garda Síochána to issue a legally enforceable order to search premises where there was a suspicion, which general law requires to be reasonably based, that evidence in relation to the commission of a scheduled offence, in this case the possession of firearms, might be found there. This search warrant had been signed by Superintendent Mahon who was in overall charge of the investigation. On the morning of the search and arrest, the gardaí were conducting a series of searches in relation to the investigation, one of which was Barry Doyle’s dwelling. In the absence of any evidence on this point, as of this time it would be difficult to infer that the gardaí acted otherwise than in good faith, believing that the warrant they had was valid and effective. In prior cases of garda arrest of suspects in their own home, what had been of importance had been the nature of the entry thereto: was there consent, for instance if the suspect invited them in, or was there a lack of protest, which might not amount to consent. In the Gormley decision, the Court of Appeal held that for gardaí to go to the accused’s home and to request entry, having asked to “come in and speak to you for a few minutes” to which the answer was “Come in Séamus”, amounted to an entry on consent and that the resulting arrest was lawful. No issue was raised as to the lawfulness or otherwise of the entry at trial in this case. We do not know if the gardaí had the chance to consider knocking on the door and requesting entry after identifying themselves. If that happened, or not, the court of trial was not informed. It is impossible, thus, to predict both the nature of the evidence and the result of any argument. Director of Public Prosecutions v Gaffney  IR 173 is authority for the proposition that in the absence of consent, an entry by gardaí for the purpose of arrest may be a violation of Article 40.5 of the Constitution. There the gardaí had been refused entry twice to a house and on the particular occasion. It was held that there could be no presumption that a lack of an express refusal amounted to an invitation. In view of the fact that the gardaí had twice been refused entry there could be no presumption that there was an invitation to enter either as a matter of fact or law merely because there was no express refusal. Walsh J held at 180 that in the particular circumstances, “the absence of an express refusal or of an express order to leave cannot be construed as an implied invitation or permission to enter”.
52. One can have no idea what the situation might have been here. At best, it is speculation. At trial, the legitimacy of the warrant was not challenged by counsel for Barry Doyle. The circumstances of entry into the dwelling of Barry Doyle were not explored beyond the bare fact of entry on a warrant recited. The trial court had proceeded on the basis that the arrest and detention were lawful, as no issue with the warrant was raised at trial. This had been expressly stated by Tom O’Connell SC as lead counsel for the prosecution, to which no demur had been taken by counsel for Barry Doyle either at that point or at any stage in the evidence. The decision of this Court in DPP v Damache  2 IR 266 was delivered on 23rd February 2012, a week after the trial of Barry Doyle had concluded. The result of Damache was a declaration that s. 29(1) of the Offences Against the State Act 1939 was unconstitutional. The point now put at issue was thereafter pleaded by Barry Doyle, in the absence of any exploration of evidence, in the notice of appeal to the Court of Criminal Appeal. The Damache case concerned a superintendent who signed a warrant to search a person’s home. Denham J referred to the action of issuing a search warrant as “an administrative act” but one which “must be exercised judicially”. As appears also to be the situation here in this case, the issuing officer was not independent of the investigation. Following that decision, legislation has made the issuing of such warrants a function of the judiciary. On the appeal to the Court of Appeal in this case,  IECA 109, the issue of the lawfulness of the search warrant was raised. The Court of Appeal rejected the claim that the search was unconstitutional, following the decision in The People (DPP) v Patchell  IECCA 6. The Court of Criminal Appeal held that Barry Doyle had not raised the issue of unlawfulness of his arrest and detention during the course of his trial and as a result was unable to do so there. The Court did not refer to the issue raised in Damache but rather focused on the fact that the issue was not raised during trial.
53. On this appeal, the prosecution rely on the judgment of McKechnie J in Patchell. Counsel for the prosecution also claim that, should the arrest and detention of Barry Doyle be found unconstitutional, this would not render the later admissions inadmissible as they would come under the rule of DPP v JC. In the Patchell case, the appellant had made an application to amend his notice of appeal by adding the additional ground which would have allowed him to rely on the decision in Damache. This was also an arrest following entry under the same section of the Act of 1939. It was argued that the warrant issued by the superintendent was unconstitutional and, as such, so was the arrest, detention and subsequent admissions of the suspect while in garda custody; similar to the arguments put forth by Barry Doyle. The Court of Criminal Appeal refused the application on the grounds that the issue had not been previously raised in any way and that the accused at trial had engaged in conduct that disentitled him to raise the issue, that is a concession made during the course of his trial to the effect that no issue was being taken with the validity of the warrant or the lawfulness of the arrest. Giving judgment for the Court of Criminal Appeal, McKechnie J stated that:
54. During the course of Barry Doyle’s trial it is clear that he maintained, or at the very least acquiesced in, the position that the warrant was lawful, as were the actions that followed; namely his arrest, detention and subsequent admissions to the gardaí. This constituted an acknowledgment that the actions of the gardaí were, at the time, valid. To entertain the argument that the warrant, arrest, detention and admissions are now unlawful would be unjust. While traditionally there is no confession and avoidance at criminal trial as to the elements of an offence, this has been changed by legislation whereby admissions can formally or informally be made by the defence as to particular witness statements or as to the admission of particular facts; see particularly sections 21 and 22 of the Criminal Justice Act 1984. Apart from that, it must also be clearly acknowledged there is a reality to the complexity of modern trials requiring the participation of both prosecution and defence. It had always been the case over centuries that if, for instance, there had been an issue as to the admissibility of the results of a search that, at the least, counsel for the defence would notify the prosecution that an issue will arise so that there would be no mention of such evidence in an opening statement to the jury. Similarly, that principle must also apply with any question as to the legality of detention or as to the voluntariness of a confession. Perhaps it is enough for counsel for the defence to state that it is required that the prosecution prove the legality of a search or of an arrest. Then, it is at least clear that some kind of a point arises. Argument subsequent to evidence in the absence of the jury would clearly elucidate what is being driven at. That kind of elucidation of a point is the least that a fair trial entails. Without a point being raised and argued to by counsel for the accused, there could be no sensible basis for a judicial ruling. One might also then ask: what is being appealed? And on what basis?
…where an appellant, during the currency of his trial, adopts a certain course of action or engages in a particular course of conduct or otherwise evidences a clear intention of pursuing a definite strategy, and does so, he will not thereafter be permitted to resile from such a position and, for self advantage, to act in a manner entirely inconsistent with his previous actions.
55. To enable points to be left in abeyance for possible consideration on appeal would be to undermine the fairness of procedures that a criminal trial encompasses under Article 38.1 of the Constitution. As stated by Kearns J in The People (DPP) v Cronin (No 2)  4 IR 329 at 346, an appellate court is concerned “with a review of the trial and the rulings made therein and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner.” In The People (DPP) v Cunningham  2 IR 631 and The People (DPP) v Kavanagh  IECCA 65, the Court of Criminal Appeal set out the limited legal circumstances in which an appeal under the Damache ruling may be allowed; that the matter was raised at trial and the appellant has taken no steps to suggest he has acquiesced or waived the point, or the proceedings against the defendant have not yet been finalised. On this appeal by Barry Doyle, it is evident that he does not meet any of these conditions. The issue was not raised before the trial court and the proceedings have been finalised against him. The point has therefore passed. There must be finality to a trial and its conclusion; A v Governor of Arbour Hill Prison  4 IR 88.
56. The final outcome is that there is no basis for overturning this conviction.