Bill number: CC0046/2009
Supreme Court appeal number: 40/2015
Court of Appeal record number: 2012 No. 50
 I.E.C.A. 109
The People (at the Suit of the Director of Public Prosecutions)
Judgment of Mr. Justice O’Donnell delivered the 18th of January 2017
1 I hesitate to add further observations on the issue of entitlement to the presence of a lawyer when a substantial majority of the Court is agreed as to the result, but where a range of different views have been expressed by my colleagues as to the precise reasoning. Here, the fact is that although the accused/appellant had considerable access to a solicitor and advice and representation while in custody, he did not have a solicitor present during the entire period of his detention. Certain dicta, undoubtedly obiter, in DPP v. Gormley & White  2 I.R. 591 (“Gormley”), are relied on by the appellant as suggesting that a right to the presence of a solicitor during detention and questioning, is or may be, part of the guarantee of a fair trial on a criminal charge pursuant to Article 38 of the Constitution, and that accordingly, the statements made while in detention ought to have been excluded with the result that the conviction must be set aside and, presumably, a retrial ordered.
2 The position as I understand it is that Charleton J. for the majority of the Court concludes that the Constitution should be interpreted as requiring and guaranteeing access to a lawyer but that the Constitution does not require more, and in particular does not require presence of a lawyer during detention and questioning. MacMenamin J. holds that the Constitution does require that a lawyer be present for the full detention. However, he would hold that, insofar as the constitutional right goes, the decision of this Court in DPP v. JC  I.E.S.C. 31, it would have the effect that the evidence would not be excluded. As for the claim based on the Convention, he concludes that the overall test is the fairness of the trial, and that it has not been established that the trial here was unfair. O’Malley J., would reserve the question of the existence of a constitutional right but considers that even if so, there must be a causal connection between any breach of that right, and the statements sought to be admitted. In the admittedly unusual circumstances in this case, the degree of engagement by the solicitor was more significant and central than might have been the case if he or she was merely present, and accordingly, she concludes that no causal connection has been established so that the statements made were properly admitted. McKechnie J. addresses the inducement issue primarily but would also allow the appellant’s appeal on the ground that presence of a lawyer during questioning is now constitutionally required. An important additional consideration is that at a practical level, matters have moved on since the decision in Gormley, and the State has introduced a code of practice permitting the attendance of a solicitor if necessary under the legal aid scheme, when a suspect is questioned by the gardaí.
3 It might be thought that there is little benefit therefore in considering further this issue since all questioning of suspects in detention since 2015 has presumably been conducted pursuant to the Code of Practice on Access to a Solicitor by Persons in Garda Custody. However, the matter is of relevance, and is indeed acute, in respect of those cases which are still live within the system, and in which statements were taken prior to the introduction of the Code of Practice where access to a solicitor was permitted, but a solicitor was not present during all of the detention. Furthermore, it becomes important to consider the basis of any entitlement to the presence of a lawyer post-2015. If such presence is constitutionally required, and if indeed it is part of the Article 38 guarantee of trial in due course of law, then further consequences might flow in the event that it was not available for any reason, and perhaps irrespective of whether evidence was obtained as a result. Moreover, questions remain as to the precise role of the solicitor during such detention. In my view it would only be productive of uncertainty and confusion to find that there is an entitlement to the presence of a lawyer without specifying exactly what is entailed in such presence. That may depend however on whether presence of the solicitor is something which is constitutionally required, and if so the precise constitutional basis. In any event, the issue also raises the difficult question discussed in the judgment of MacMenamin J. as to the consequences of a novel interpretation of the Constitution on existing cases. It is apparent therefore that issues are touched on in this case, which extend well beyond the outcome of the case, and accordingly I consider it necessary to set out my views.
4 Gormley was a case which explicitly raised the question of pursuing the questioning of a suspect or proceeding to take samples from him or her, in the period between the point at which a suspect had sought a solicitor’s attendance, and the arrival of that solicitor at the garda station. This is clear from the questions certified in Mr. Gormley’s case referred to at page 607 of the judgment of Clarke J.:
In Mr. White’s case, the question referred to at page 607, was whether:
“In circumstances where a person is in custody and has requested a solicitor, are members of An Garda Síochána, for the purpose of ensuring protection of rights of an accused, obliged not to take, or to cease if they have commenced taking, any forensic samples until such time as the person who has sought access to a solicitor, and that solicitor has indicated that he/she will attend, has had actual access to that solicitor.” (Emphasis added)
5 It is clear therefore that the case proceeded on the basis that there was a constitutional right of access to a solicitor while in custody: the only question was whether evidence obtained before that solicitor arrived, could be admissible in a trial. Accordingly, the case did not, and could not, raise the question of a more general right to presence of a solicitor during detention. Accordingly, the observations made by the Court on that issue are obiter.
6 The Court referred to international jurisprudence. In the well known and controversial case of Miranda v. Arizona  384 U.S. 436, a five to four majority of the United States Supreme Court held that the US Constitution required a bright-line rule that a defendant had a right to the presence of a lawyer (if necessary provided by the state) during questioning, and to be informed of his right. This decision has been heavily qualified in subsequent years in the US, most obviously by the relative facility with which a waiver of the so called Miranda rights can be found. Significantly in 2011, the Supreme Court of Canada rejected the argument that Miranda should be “transplanted in Canadian soil”: R v. Sinclair  3 S.C.R. 3.
7 The issue has been touched in the jurisprudence of the European Court of Human Rights. The leading decision is that of Salduz v. Turkey (2009) 49 E.H.R.R. 19. Mr. Salduz was 17 years of age, and was interrogated in the absence of his lawyer. The Grand Chamber held that this was a violation of his rights. Paragraph 3 of the Convention was a guarantee of fair trial, but could extend to the period before trial, and when the person was being questioned. The overall test was whether the proceedings were fair. In Salduz, the Court used language relating to the “benefit from the assistance of a lawyer … at the initial stages of police interrogation”. Subsequently at paragraph 54, it referred to “early access to a lawyer”, and “access to legal advice [as] a fundamental safeguard against ill-treatment”. At paragraph 55 the judgment, the Court concluded that Article 6.1 required as a rule “access to a lawyer should be provided as and from the first interrogation of a suspect”. Subsequently in Dayanan v. Turkey (App. No. 7377/03), the Court concluded at paragraph 32 that the fairness of proceedings required that:
8 Given the fact that the jurisprudence of the ECtHR has to date largely been developed in the context of civil law systems with early supervision of investigation by a magistrate, it cannot be said that it has been definitively determined that the Convention requires a bright-line rule that in a common law system, an accused person must have not just access to, but the assurance of the presence of, a lawyer during any detention. This is particularly so because, until now, the Convention jurisprudence has not adopted any absolute rule that evidence obtained in breach of a Convention right must be inadmissible, but rather has applied a test of considering the overall fairness of the proceedings.
“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.”
9 In Cadder v. Her Majesty’s Advocate  U.K.S.C. 43, the United Kingdom Supreme Court did consider the application of the Convention and held that the Scots law of criminal investigation which did not permit access to a lawyer, was incompatible with the Convention. The judgment used the language of access and presence interchangeably, but it is clear that the case was not directed to the precise issue raised before this Court. Indeed since the decision in Cadder did not specify an absolute rule of presence during the entire period, it might perhaps be thought to require access and advice only. The issue did not arise, and is unlikely to do so now because the changes to the detention system adopted in the UK in the aftermath of the decision appear to provide for the presence of a lawyer during detention and questioning.
10 In Gormley, Clarke J. referred to the developing jurisprudence of this Court in relation to the right to be assisted by a lawyer in criminal proceedings. In particular, he referred to the well known statements in McGee v. The Attorney General  I.R. 284, at p.319, where Walsh J. stated that:
Significantly this passage was quoted with approval by O’Higgins C.J. in The State (Healy) v. Donoghue  I.R. 325, at p.347, where the Court held that legal aid in criminal proceedings involving a risk of imprisonment was now a constitutional requirement. The Constitution, O’Higgins C.J. said:
“It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts”
Accordingly, the Court in Gormley concluded that:
“[falls] to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or acceptable with regard to these virtues at the time of its enactment”.
In particular the Court concluded that the Article 38 guarantee of a criminal trial in due course of law was capable of having an application prior to the commencement of the trial proper, and was engaged at the point at which the coercive power of the State in the form of an arrest was exercised against a suspect. In that regard, i.e. the engagement of fair trial rights at the questioning stage, the Irish position was the same as that understood to be acknowledged by the ECtHR and by the Supreme Court of the United States. In relation to the specific issue which arises in the present proceedings, the Court observed:
“it is now necessary to interpret the “due course of law” provisions of Bunreacht na hÉireann as encompassing the asserted right to access to a lawyer prior to interrogation or the taking of forensic samples”. (Emphasis added). (p.628 per Clarke J.)
“[T]he question as to whether a suspect is entitled to have a lawyer present during questioning does not arise on the facts of this case for the questioning in respect of which complaint is made occurred before the relevant lawyer even arrived. However, it does need to be noted that the jurisprudence of both the ECtHR and the United States Supreme Court clearly recognises that the entitlements of a suspect extend to having the relevant lawyer present.” (p.633 per Clarke J.)
11 I recognise the reasons why the Court in Gormley considered that it might be the case that the Constitution could be held to require a bright-line rule of presence of a lawyer. Neatness, clarity and simplicity are powerful practical reasons for a clear bright-line rule. However, there are also strong reasons for caution in that regard. First, the obligation to decide cases on the issues and arguments addressed and in relation to the precise factual circumstances necessarily raised, means that courts must decide cases on their own facts and arguments, rather than on the expression of views by other courts, however considered. Second, for the reasons already addressed, it cannot in my view be said that the ECtHR has adopted a bright-line rule demanding the exclusion of evidence obtained in a common law system where an accused makes a voluntary statement after having had access to an advice from a lawyer. The legal argument for adopting an absolute rule of presence of a lawyer as a matter of constitutional principle, rather than pragmatism or even enlightened administration, rests almost entirely therefore on the decision in Miranda.
12 While undoubtedly such a rule was adopted in 1966 in the United States in Miranda, that occurred in the context of a significantly different criminal justice system to that which applies now in Ireland, and little enthusiasm has been shown here in later years for adopting some of the subsequent developments in the US criminal justice system. It is often forgotten that most of the major developments in the jurisprudence of the Warren Court occurred in the overarching context of that Court’s concerns with the central issue of race. In a federal system much criminal law (and indeed much civil law) is state law, and just as significantly, is enforced and adjudicated upon, at state level. That was a matter of obvious concern in the segregated United States of the early 1960s. The decision appears to rests as much if not more on policy than principle. Indeed and rather ironically, when the majority judgment did refer to case law, it approved the Scots law on admissibility, a system that fell foul of the Convention in Cadder, which is perhaps a warning against too ready reliance on foreign case law. The majority judgment in Miranda also focussed on interrogation practices in the US which, without any undue self-congratulation, are certainly not the norm in Ireland. The judgment made it clear that the rule was introduced as a preventative measure, and that if changes were made to the process of arrest and questioning, the rule might be adjusted. Certainly most of the justifications offered for the rule in Miranda would require reconsideration in context of the regime now applicable in Ireland. A lawyer’s presence is no longer necessary as an independent witness of events during questioning. It is also doubtful that it can be said that function of a lawyer is to provide moral support or indeed that anything in lawyers’ training qualifies them for such a role. Indeed the function of a lawyer is to provide legal advice, which was available, and provided, here.
13 The question posed most starkly now, is whether, when there is a fully accurate record of police questioning and the suspect’s response, a judicial finding that a statement is made voluntarily, and access to and advice from a lawyer, it is nevertheless necessary to exclude the statement from evidence at a trial, because the accused did not have a lawyer present at all stages during his detention was not told (and in this case could not have been told) that he was entitled to have one? As already noted the Supreme Court of Canada was not persuaded to adopt the same approach. Although Miranda was perhaps one of the best know decisions of the US Supreme Court in the 20th century, and although the question of admissibility of statements made in police custody has been the subject of numerous cases in this jurisdiction since Miranda, it has not been adopted in Irish jurisprudence, or it appears in the jurisprudence of any other common law country, in the 50 years since it was decided. Whatever merit Miranda had in the context in which it was decided, and leaving to one side the significant subsequent qualification of the decision in both law and practice in the US, I would be slow to adopt it unhesitatingly in what is now a very different factual and legal context. Neither its own reasoning nor its subsequent treatment suggests that Miranda can be regarded as dispositive of the issue whether the Irish Constitution should now be interpreted to require the presence of a lawyer at all times during a detention.
14 It must be remembered that it was held by the trial judge here, having heard all the relevant evidence and having reviewed the videos of the interviews, that the confession here was voluntary, beyond reasonable doubt. Furthermore, it is apparent from the conclusions of both MacMenamin and O’Malley JJ. that the admission of the statement in evidence is not, and was not, unfair. Third, it must be recognised that if a single bright-line rule is adopted by this Court, it would have the potential to exclude key evidence in the shape of statements voluntarily given, with the benefit of legal advice, in circumstances otherwise beyond criticism. Whatever its virtue in terms of neatness, this is the unavoidable price of a single bright-line rule. If it does not exclude evidence which otherwise would be admitted, it would be of no effect or benefit. I do not doubt that if the Court considered that this was the only way to ensure fairness in garda questioning, that it could and would adopt such a rule. I also recognise in particular the strength of the matters adverted to in the judgment of O’Malley J. in relation to the complex provisions which are now available for the drawing of inferences from refusals or failure to answer questions, and I also recognise the reality that it may in due course be simply easier and neater to provide for presence by a lawyer as the best guarantee that such provisions are operated properly and fairly. Finally, the introduction of the Code of Practice of 2015 on Access to a Solicitor by Persons in Garda Custody is of course a significant practical step, which may in due course render this debate redundant. However, I would for my part stop short at this point of finding that in addition to the video taping of interviews, the access to and advice from a lawyer (provided if necessary by the State), and the requirement that only statements found to be voluntary beyond reasonable doubt be admitted in evidence, the Constitution nevertheless requires and perhaps has always required, the presence of a lawyer at all times during questioning, as a condition of admissibility of any evidence obtained.
15 Furthermore, as O’Malley J. points out, the consequences of a finding that Article 38 is engaged after arrest and during any questioning has not been fully elaborated upon, and I am reluctant to unhesitatingly accept this analysis. It may be that it means no more than that a trial at which evidence was adduced which had been obtained in circumstances which the Constitution condemns, would not be a trial in due course of law. That may also suggest that any breach of the requirement is not itself fatal but must be judged in the context of the trial as a whole. However, if it means that Article 38 guarantee of trial in due course of law applies in its full force after arrest and to detention in a garda station long before a trial, and perhaps even if no trial ensues, then a number of difficult questions arise. A trial in due course of law under Article 38 normally requires an impartial judge, and, in the case of non-minor offences, a jury. Obviously these features are not required at arrest and interview. Other less dramatic issues arise. In particular, is the solicitor permitted only to observe the questioning and to offer advice or may he or she participate, ask questions, and demand disclosure of the information available to the investigating gardaí as they undoubtedly would at a trial? If Article 38 is engaged and breached because a lawyer was not present, would that fact alone require that the trial be prohibited even if no evidence emerged from, or was sought to be adduced, as a result of, the interview? It is true that in Miranda v. Arizona  384 U.S. 436 (and Escobedo v. Illinois (1964) 378 U.S. 478 which preceded it) it was held that fair trial rights applied at the arrest stage but as one distinguished commentator observed, that required radical (and I think dubious) textual surgery. See: Friendly, “The Bill of Rights as a Code of Criminal Procedure” (1965) 53 Cal. L Rev 929, at p. 946. The approach may have been adopted in the ECtHR of finding that a person was charged, and thus entitled to a lawyer, at a point prior to any formal charge, but that fits more easily in the civil law system, and is not a basis for reading Article 38 of the Constitution as engaged on arrest, particularly since it is not necessary to do so . I should add that I do not doubt that constitutional rights are engaged at the stage of arrest and questioning, and again that Article 38 applies at trial and may require the exclusion of evidence if it is considered that any trial at which such evidence was adduced would be unfair, but I respectfully question however the analysis that Article 38 applies directly, and with full force, at the arrest stage.
16 I accept that many of these difficulties, and the particular difficulty posed in this case, might perhaps be addressed by the application of the decision of this Court in DPP v. JC, as suggested by MacMenamin J. However, that matter was not argued in this Court and it is in any event not self-evident that it would apply. In JC, the accused was not entitled to take advantage of the decision in Damache v. DPP & ors  2 I.R. 266, to exclude evidence obtained under a search which was valid according to the law at the time at which it was carried out. It did not however suggest that the plaintiff in Damache was not entitled to the benefit of the decision in his favour. If the application of the principle in JC would automatically neutralise any innovation in the constitutional law relating to evidence, then there would be no incentive to raise such issues. This is the first case which squarely raises the question of whether the Constitution requires not just access to, but presence of, a lawyer. If that is the true position, it is not self-evident why the appellant in this case should be deprived of the benefit of a successful argument establishing that right. I also agree with O’Malley J. that a causal connection should be established between a breach of a constitutional requirement and the evidence sought to be admitted, but if there is a constitutional bright-line rule requiring presence, I would have thought that principle required that the prosecution demonstrate that the evidence was obtained irrespective of the breach, or would perhaps have been obtained in any event if the rule had been adhered to.
17 The argument in this case also raises a very difficult and related issue as to the capacity of this Court to limit the effect of any ruling it should make. It is self-evident from the decision in Gormley that if this Court were to hold that the Constitution required the presence of a lawyer not merely access to a lawyer, it could only do so in application of the dicta in McGee and State (Healy) v. Donoghue that the Constitution must be applied in changing circumstances, and because it is, in the language of the well-worn metaphors, a living tree and a document which speaks in the present tense. As it was put in Gormley itself, the necessary conclusion would be that the Constitution now requires such a rule with however the necessary implication that it did not do so until now and interviews held when there was access afforded to a solicitor, even if a solicitor was not present for all of the interview, were lawful, and more importantly, constitutional. What then is the logic of maintaining that the Constitution (or its interpretation) can develop and change but that the new rule must nevertheless be held to have applied apply since 1937, and probably (since Article 38 in this regard follows closely from Article 70 of the Free State Constitution) since 1922? However, if the new rule of a constitutional right to presence of a solicitor is held not to have applied until some point, how is that point to be identified? Is it from the date of the decision in Gormley, the date of the interviews in this case, or the date of this judgment? If such a line is to be drawn, does it include or exclude this case? These are very complex issues, of fundamental importance in relation to the scope and limits of judicial review, which have been much debated in other jurisdictions, in both case law and scholarly analysis and a variety of interpretive solutions have been discussed. This matter has not been much discussed in this jurisdiction beyond the very general statements in Mc Gee and State (Healy) v Donoghue referred to above, and was not addressed in argument in this case, and I would not consider it appropriate to address it without such argument. Even then it would not be desirable to offer any views on the issue unless it was unambiguously required by the particular circumstances of the case. In this case, such a point could only be reached, if the Court was first persuaded that the Constitution required the exclusion at a trial of a statement made by an accused person which had been demonstrated to have been made voluntarily, and after access to and advice from a lawyer. While I can see many arguments at a practical level for a simple rule, I am not persuaded that the Constitution requires such an approach, and accordingly I agree in this respect with the judgment of Mr. Justice Charleton.
18 Finally, I should say recognise the force of the analysis offered by McKechnie J. on the question of inducement. I also accept that the function of an appellate court is to provide a real and searching scrutiny of the reasoning of trial judges. However, if it is permissible to draw together a number of fragments from interviews spread over time and then collected together in a portion of a submission, in order to discount the findings of a trial judge who not only heard and observed witnesses (which we did not) and who viewed the tapes of the full interviews (which again we did not, and were not invited to), and further make inferences as to the content of communications between client and solicitor, then little if anything would remain of the important division of functions between trial courts and appellate courts. I also consider that the law relating to inducements referred to by McKechnie J. should be reconsidered in the context of a general review of the law relating to detention and questioning in the light of a number of developments already discussed. Should it really be the case that any comment however “slight and trivial,” can be treated as an inducement and result in the exclusion of a statement that is recorded and available to the trial court, voluntary, and made with the benefit of legal advice? It is obvious that developments in the law in this area are not always consistent, and at times point in different directions. It is surely important to recognise on the one hand that the law now provides for extended periods of detention and that there are now a variety of complex statutory provisions that permit the gardaí to pose questions on the basis that inferences may be drawn from a failure or refusal to respond, and on the other hand, that detention is subject to a high degree of regulation and, importantly, that all interviews are now recorded. This is a world unrecognisable to anyone familiar with criminal law and procedure when the rules on inducements were developed. It is desirable in my view that stock should be taken of all the developments in the law and technology, and fresh consideration given to what constitutional fairness or public policy requires in that context at each stage of the process. I would however dismiss the present appeal.