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Judgment
Title:
Director of Public Prosecutions -v- Doyle
Neutral Citation:
[2017] IESC 1
Supreme Court Record Number:
40/2015
Court of Appeal Record Number:
50/2012
High Court Record Number:
N/A
Date of Delivery:
01/18/2017
Court:
Supreme Court
Composition of Court:
Denham C.J., O'Donnell Donal J., McKechnie J., MacMenamin J., Laffoy J., Charleton J., O'Malley J.
Judgment by:
O'Malley Iseult J.
Status:
Approved
Result:
Appeal dismissed
Judgments by
Link to Judgment
Concurring
Dissenting
Denham C.J.
McKechnie J.
O'Donnell Donal J.
MacMenamin J.
Charleton J.
Laffoy J.
O'Malley J.
McKechnie J.


Judgment

THE SUPREME COURT
[Supreme Court Appeal No. 40/2015]

[Court of Appeal No: 50/2012]


Denham C.J.
O’Donnell J.
McKechnie J.
MacMenamin J.
Laffoy J.
Charleton J.
O’Malley J.
      BETWEEN:
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
AND

BARRY DOYLE

APPELLANT

JUDGMENT of Ms. Justice O’Malley delivered the 18th day of January 2017.

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

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

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

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

The arrest and detention of Ms. Gunnery

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

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

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

8. On the morning of the 26th February, 2009, Ms. Gunnery was brought to Limerick where an extension of her detention was granted in the District Court, pursuant to the relevant statutory provision. The appellant argues that it was unnecessary to bring her to Limerick for that purpose and asks the Court to infer that the gardaí intended to bring about an improper “confrontation” between Ms. Gunnery and the appellant, with a view to pressurising him. As no such meeting took place, and as there is no evidence to support the proposition that it was planned, I do not propose to discuss the issue further. The basis for the extension order appears to have been evidence adduced in the District Court by the gardaí that she had, during the previous evening, given certain information which they wanted to investigate further.

The arrest and detention of the appellant

9. Also on the 24th February, 2009, the appellant was arrested in Limerick at 7.15 a.m. under the provisions of s.4(3) of the Criminal Law Act, 1997, on suspicion of having committed the arrestable offence of murder with a firearm. He was brought to Bruff Garda Station, arriving there at 7.40 a.m. Shortly afterwards he was detained pursuant to the provisions of s. 50 of the Criminal Justice Act, 2007, which permits an initial period of detention of six hours but may involve extended detention for up to seven days. He was given the information required by the custody regulations and a notice of his rights which, of course, included reference to his right to see a solicitor. It was noted in the custody record that there was no evidence of drugs or alcohol and no visible sign of injury. The appellant said that he was not suffering from any illness and was not on any medication.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

20. When asked about the line

      “I said that Barry Doyle had to admit to what he had done in an interview and that his girlfriend would not be released before any interview”
D/Sergeant Phillips said that he had no knowledge of Ms. Gunnery’s detention; that she could, for all he knew, have already been released at that stage and that what was intended to be conveyed was that she would not be released as part of the proposed arrangement. Again, he emphasised that the memo was not a verbatim account of the conversation.

21. D/Garda Hanley agreed with the proposition that he and D/Sergeant Phillips were saying that it was not possible that Ms. Gunnery could be released before the appellant made a statement; but that if he made a statement and told the truth there would be no reason to detain her. He further agreed that he needed to be satisfied that the appellant was telling the truth, and not making admissions simply to bring about Ms. Gunnery’s release.

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

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

24. In subsequent interviews the appellant continued to admit his own guilt and added some confirmatory details. He did not provide any information about the involvement of any other person.

The voir dire
25. A voir dire was held on the admissibility of the inculpatory statements. For this purpose the trial judge heard the evidence of eight garda witnesses and viewed over 20 hours of videos showing the first 16 interviews.

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

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

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

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

Discussion of the ruling on the threat/inducement issue
29. The ruling of the trial judge is criticised on behalf of the appellant because, inter alia, he did not make an express finding as to whether there had or had not been words capable of amounting to a threat or inducement, or whether the words had been subjectively understood as such, before moving on to rule that any such threat or inducement had been dissipated. It is submitted that this, in itself, renders the conviction unsafe. I agree that it would be preferable if he had done so. However, I do not believe that the failure to spell out his findings is fatal to the validity of the ruling. It must be borne in mind that mid-trial rulings on issues, even if the trial judge can consider the matter overnight, may not always reach the standards of clarity that a reserved judgment aspires to. The overall finding is perfectly clear.

30. It seems to me that in the first instance the gardaí acted perfectly appropriately in rejecting out of hand the proposal made by the appellant’s solicitor on his behalf. To enter into a bargain of this nature would have been highly improper and would indeed, as they said at the time, have rendered any subsequent admissions vulnerable to the charge that they had been obtained by the inducement that Ms. Gunnery would be released. However, what is to be made of the converse proposition – that Ms. Gunnery would not be released until the appellant confessed in interview? That was also at least potentially improper, insofar as it gave the impression that the duration of Ms. Gunnery’s detention was dependent solely on the appellant’s choice of action.

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

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

      (a) Were the words used by the person or persons in authority, objectively viewed, capable of amounting to a threat or promise?

      (b) Did the accused subjectively understand them as such?

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

33. The appellant relies upon the commentary on this test in McGrath, Evidence, 2nd ed., (Dublin, 2014) where, having noted that the first part of the test is objective while the second and third are subjective, the author states that
      “In practice, there are likely to be very few instances in which a statement, which is objectively capable of amounting to an inducement, will not be regarded by an accused as such.”
34. It may be noted that this is followed by the observation that it is possible to envisage circumstances where the suspect knows that the promise or threat cannot be fulfilled.

35. In my view this commentary on the McCann principles must be seen as descriptive rather than as an elaboration of the content of the test. It is an observation referring to the obvious fact that in most cases cause and effect may be readily inferred where there is evidence that a statement was made, which is held to be capable of amounting to an inducement, and that the statement was followed by an admission. However, each case will turn on its own facts and the picture presented by the evidence in this case is far from such a clear-cut situation.

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

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

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

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

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

      “The undoubted right of reasonable access to a solicitor enjoyed by a person who is in detention must be interpreted as being directed towards the vital function of ensuring that such person is aware of his rights and has the independent advice which would be appropriate in order to permit him to reach a truly free decision as to his attitude to interrogation or to the making of any statement, be it exculpatory or inculpatory. The availability of advice from a lawyer must, in my view, be seen as a contribution, at least, towards some measure of equality in the position of the detained person and his interrogators.”
41. A central part of the role of the solicitor attending at a garda station is, therefore, to ensure that prisoners receive proper advice as to their rights in relation to matters that arise in the course of the detention, especially where those matters might tend to undermine the freedom of the suspect’s decision to speak or not to speak. I think that, in the absence of any evidence pointing to the contrary, it must be open to a trial court to proceed on the assumption that a solicitor attending a prisoner performed that role, and that the legal advice given was in fact proper and correct.

42. In the instant case, where the solicitor spoke to the gardaí on behalf of the appellant, it must be presumed that he reported back to him their flat refusal to agree to the release of Ms. Gunnery on his terms. In the absence of any evidence from either Mr. O’Donnell or the appellant there is no other rational inference to be drawn. It is true that one cannot speculate as to whether he reported the conversation in summary or word for word, but in the circumstances any belief that the appellant may have had that the gardaí would release Ms. Gunnery in return for a confession must have been displaced. Mr. O’Donnell’s final remarks to the gardaí, to the effect that he had advised the appellant to say nothing, make it abundantly clear that the appellant had again been advised of his right not to incriminate himself.

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

44. There being no contrary evidence as to the belief or understanding of the appellant in relation to the effect of the statement by the gardaí, I consider that the trial judge was therefore entitled to hold that any threat or inducement had dissipated by reason of the appellant’s access to his solicitor at the relevant time, and to hold further that the admissions were made for reasons other than threats, inducement or oppression. His findings as to those reasons were rationally grounded on his view of the interview videos and the way that the interviews progressed over the course of the detention.

The right of access to legal advice
45. In Gormley and White the existence of the right of reasonable access to a solicitor was not in dispute. The central issue in each case was one of timing – was the suspect entitled, under the concept of fairness identified in State (Healy) v. Donoghue [1976] 1 I.R. 325, to the benefit of legal advice before the commencement of interrogation (Mr. Gormley) or the taking of forensic samples (Mr. White)? The issue arose in Mr. Gormley’s case because he was questioned and made admissions after he had made a request to see a solicitor but before the solicitor’s arrival. On the facts of the case there had been no delay on the part of either the gardaí or the solicitor in securing the attendance of the latter.

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

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

      “…where a person makes an incriminating statement which forms a substantial part of the evidence leading to their conviction in circumstances where the relevant person does not have the benefit of legal advice at the time in question and where they have not waived any entitlement to legal advice.”
48. Particular attention was paid to the judgment of the Grand Chamber of the ECtHR in Salduz v. Turkey (2009) 49 EHRR 19. In that judgment it was noted that Article 6 of the Convention (the guarantee of a fair trial) may be relevant to pre-trial procedures; that the right to be effectively defended by a lawyer, although not absolute, was one of the fundamental features of a fair trial; that national laws might attach consequences to the attitude of an accused at the interrogation stage that could be decisive at the trial stage and that Article 6 would therefore normally require that the accused be allowed to benefit from the assistance of a lawyer at that stage.

49. The ECtHR observed in Salduz that the accused could, at the investigation stage, find himself in a particularly vulnerable position. It was noted that legislation on criminal procedure was tending to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. The Court said (at paragraph 54):

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

50. Clarke J. referred to later cases before the ECtHR as confirming these principles and cited in particular Panovits v. Cyprus (Application no. 4268/04 (First Section) 11th December 2008), where a breach was found in circumstances where a minor had not been informed of his right to consult a lawyer free of charge, and Dayanan v. Turkey (Application 7377/03 (Second Section) 13th October 2009) where the court said at para. 32:

      “Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.”
51. Reference was also made to the application of Convention principles by the United Kingdom Supreme Court in Cadder v. Her Majesty’s Advocate [2010] UKSC 43, where it was held that a detained person was entitled, in the absence of compelling reasons, to legal advice before questioning. However, the same court subsequently ruled (in Her Majesty’s Advocate v. P [2011] UKSC 44) that use of the fruits of questioning conducted in the absence of access to a lawyer did not necessarily amount to a violation of Article 6.

52. Clarke J. then went on to consider the jurisprudence of other common law jurisdictions. He expressed the view that the law of the United States of America, as laid down in the seminal case of Miranda v. State of Arizona 384 U.S. 436 (1966), went the furthest in terms of requiring the presence of a lawyer both prior to and during questioning. There was however a clear international view that there was, at a minimum, an obligation on investigating police in most circumstances to refrain from interrogation in the period after a request for a lawyer and before the arrival of that lawyer.

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

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

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

56. It was emphasised that the right to legal advice before interrogation was “an important constitutional entitlement of high legal value”, and that if any exceptions were to be recognised, it would be necessary to show “wholly exceptional circumstances involving a pressing and compelling need to protect other major constitutional rights such as the right to life”. It was also emphasised that the right is one designed to provide support for the right against self-incrimination, amongst other rights including the right to a fair trial.

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

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

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

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

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

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

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

      "251. … However, those minimum rights are not aims in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings a whole..."

63. The Court considered that there was scope for access to legal advice to be delayed for “compelling reasons”. It went on to address the consequence of a finding in a particular case that there were no such reasons and ruled that this would not lead, in itself, to a finding of a violation of Article 6 but that it meant that a "very strict scrutiny" of the fairness assessment was required.

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

      "266. The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent and presupposes that the prosecution in a criminal case seek to prove their case without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused...The right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6...

      267. It is important to recognise that the privilege against self-incrimination does not protect against the making of an incriminating statement per se but, as noted above, against the obtaining of evidence by coercion or oppression. It is the existence of compulsion that gives rise to concerns as to whether the privilege against self-incrimination has been respected…"

65. However, the court said (at paragraph 269) that the right not to incriminate oneself is not absolute. The degree of compulsion applied will be incompatible with Article 6 “where it destroys the very essence of the privilege against self-incrimination”. Not all compulsion would have this effect. The crucial issue in this context is the use to which the evidence obtained under compulsion is put in the course of the trial.

66. At paragraph 273 the court stated that in principle there could be no justification for a failure to notify a suspect of the privilege against self-incrimination and the right to silence. Immediate access to a lawyer is likely to prevent unfairness arising from a failure on the part of the police to give such notification. If access is delayed, and the suspect is not officially notified of his or her rights, then in the absence of compelling reasons for delaying access it will be difficult for the prosecution to rebut the presumption of unfairness.

67. Under the heading “relevant factors for the fairness assessment” the court expressed the view that it would often be artificial to try to categorise a case as one that should be viewed from the perspective of one Article 6 right or another. It then set out a “non-exhaustive” list of factors to be considered when assessing the impact of a pre-trial procedural failing on the overall fairness of the proceedings.

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

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

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

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

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

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

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

75. In those circumstances I would dismiss the appeal.











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