JUDGMENT of Mr. Justice William McKechnie delivered on the 18th day of January, 2017.
Introduction:
1. In the early hours of the morning of the 9th November, 2008, Mr. Shane Geoghegan was murdered at Clonmore, Kilteragh, Dooradoyle, a housing estate on the south-western outskirts of Limerick City. The murder occurred as Mr. Geoghegan, who lived with his girlfriend at No. 2 Clonmore, was walking home through the estate from a friend’s house nearby. He was first shot and wounded as he crossed a green area. He was then pursued as he attempted to escape by fleeing into the back garden of No. 38 Clonmore; there he was shot repeatedly, including a gunshot wound to the head. This resulted in his death.
2. Mr. Geoghegan was a well-liked, respected and upstanding member of the community. He had no connection to organized crime anywhere, including that which was then endemic in the Limerick underworld. His murder was a case of mistaken identity. The intended victim, who lived locally, was apparently linked to a rival gang which was involved in a long-running and violent dispute with criminal associates of the appellant. Mr. Geoghegan’s shocking murder provoked fully understandable public outrage. The resulting garda investigation, in terms of resources and manpower, was intensive.
3. On the 15th February, 2012, Mr. Barry Doyle (“the accused” or “the appellant”) was unanimously convicted by a jury of the murder of Mr. Geoghegan. He received the mandatory sentence of life imprisonment. The trial lasted 22 days, which was evenly split between a voir dire and the evidential hearing. The matters of law determined by the judge in the absence of the jury have in large part been re-agitated in both the Court of Appeal and, by leave, in this Court. This is my judgment on such issues.
4. As part of the background it will be helpful at the outset to extract from the extensive and wide-ranging Notice of Appeal, containing some 27 grounds, those issues which were ruled upon during the course of the trial. Those relate to certain admissions made by the appellant, evidential matters in respect of two witnesses, criticisms of the judge’s charge and the material that was furnished to the jury. In addition, there was a further issue arising out of the judgment of the Supreme Court in Damache v. DPP [2012] 2 I.R. 266 (“Damache”), which was decided after the appellant’s trial. The Court of Appeal (Ryan P., Birmingham and Edwards JJ.), in a comprehensive judgment delivered by the President on the 8th June, 2015 (2015 IECA 109), concluded that none of the grounds so advanced could succeed. It held that the trial was satisfactory and that the conviction of Mr. Doyle was safe. That Court’s decision in respect of each issue of continuing relevance to this appeal is set out in the corresponding section of this judgment.
The Issues on This Appeal:
5. As provided for by the Thirty-third Amendment to the Constitution and the Court of Appeal Act 2014, the appellant sought a further appeal to this Court. He was granted permission to do so on three matters, each of which was acknowledged to be of general public importance ([2015] IESCDET 45). Whilst the precise questions on which leave was granted are set out later in this judgment, a short description of each at this point helps the narrative:-
i. Whether the appellant’s confession was brought about by a threat and/or an inducement and, if so, whether the threat/inducement had dissipated;
ii. Whether the appellant was entitled to have a solicitor present during interrogation by the police; and,
iii. Whether the appellant can rely on the decision in DPP v. Damache.
The issues raised were presented to the Court in that order in the parties’ written submissions, and thus will likewise be addressed in this judgment.
Background and Procedural History:
Mr. Doyle’s Arrest, Detention and Confession:
6. At 07:15 on the 24th February, 2009, the accused was arrested pursuant to section 4(3) of the Criminal Law Act 1997 during a search of his residence at 106 Hyde Road, Limerick. This search was carried out on foot of a warrant issued under section 29 of the Offences Against the State Act 1939 by Superintendent Anne Marie McMahon, who was in overall charge of the investigation into Mr. Geoghegan’s murder. Ms. Victoria Gunnery, the appellant’s former girlfriend and mother of one of his children, was also arrested around this time on the basis that she possessed information relevant to the crime (paras. 18-21, infra).
7. Overall, Mr. Doyle was continuously detained until 14:31 on the 28th February, 2009, following which later that day he was charged with murder. During the detention period, which was extended from time to time in accordance with section 50 of the Criminal Law Act 2007, he was interviewed a total of 23 times. Ms. Gunnery was released without charge at 21:00 on the 26th February, 2009.
8. Subsequent to his arrest, the appellant was brought to Bruff Garda Station, where, upon his detention, he was read his notice of rights. At 08:00 he requested to speak with a solicitor, Ms. Sarah Ryan, and was notified that she would call him back in half an hour. He had a brief telephone conversation with her of approximately two minutes duration at 09:55. The first garda interview commenced a short time later at 10:12. A solicitor, Mr. Michael O’Donnell, on behalf of Ms. Ryan, arrived at the station at 11:00 and the first interview then concluded at 11:03. After a nine minute consultation with Mr. O’Donnell from approximately 11:05 to 11:14, Mr. Doyle was interviewed a further five times on the 24th February, with the final interview concluding at 23:42. On each occasion he declined to sign the memorandum of interview.
9. On the 25th February, 2009, the appellant was interviewed on four more occasions. Again he declined to sign the memorandum of any session. That evening he was taken to Limerick District Court for the purposes of an application to further extend his detention. Mr. O’Donnell was in attendance when the period was extended for a further 72 hours. Mr. Doyle was then returned to Bruff Garda Station, where the final interview of that day, and the tenth interview overall, took place between 22:38 and 23:35. At around the same time, but before 23:00, Ms. Gunnery, in her ninth interview with the gardaí, provided information about contacts with the appellant on the 8th and 9th November, 2008. The signed memorandum of this interview was referred to during the last mentioned interview with the appellant; this was the first occasion on which he was told that Ms. Gunnery too had been arrested and was being detained.
10. On the 26th February, 2009, the appellant was interviewed a further six times (Interviews 11-16 overall). The most important interviews for the purposes of this appeal are those numbered 14 and 15, although the preceding three also have particular relevance as it is submitted on Mr. Doyle’s behalf that the confessions which were ultimately obtained were the product of threats and/or inducements made to him over the course of all such interviews. The particular comments said to constitute these threats or inducements are set out in full below (para. 27, infra). In summary, the argument in this regard is that the gardaí said, or at least led him to believe, that Ms. Gunnery would not be released from detention until such time as he had confessed to the murder of Mr. Geoghegan. He thus claims that the confessions subsequently made were involuntary and should not have been admitted at trial.
11. In light of the central importance attaching to the interviews held on the 26th February, 2009, it is worth setting out in detail the precise sequence of events which occurred that day. The appellant was interviewed from 09:03 to 11:12 (Interview 11), from 12:22 to 13:43 (Interview 12) and from 15:02 to 16:13 (Interview 13). Several of the alleged inducements/threats were made during Interview 13. At 16:04 he indicated that he wished to see his solicitor. A number of unsuccessful attempts were made to contact Mr. O’Donnell on his mobile phone: he was in court at the time. Ultimately his office was contacted and his secretary undertook to inform him of Mr. Doyle’s request. The appellant was told of this situation at 16:31, and at 17:13 was taken from his cell for a telephone consultation with Mr. O’Donnell; this lasted approximately two minutes.
12. Interview 14 commenced at 17:32. The investigating members at this point were Detective Gardaí Phillips and Hanley. Some of the comments which are alleged to have constituted threats or inducements were made during this interview. At the outset Mr. Doyle confirmed that he had spoken with his solicitor and that he had no further requests at that time, but he later stated that he wanted to speak to his solicitor again as he had not spoken to him properly. The interview continued. He again asked to speak with his solicitor; again the interview continued and he was then told his solicitor was on his way. He had no complaints when the Member in Charge visited the interview room at 18:30. Interview 14 was suspended at 18:35.
13. Mr. O’Donnell arrived at the Garda Station at 18:52 and left again at 19:17. A number of significant events occurred during this period - the precise timeframe of each rather surprisingly was not noted, but approximate estimates were given in oral evidence. It appears that Mr. O’Donnell had a ten minute consultation with the appellant, after which he spoke to Detective Gardaí Phillips and Hanley. That was followed by another ten minute consultation between solicitor and client, after which Mr. O’Donnell again spoke to the Detective Gardaí. He then had a final five minute consultation with Mr. Doyle and left the station.
14. Late at night on the 26th February, 2009, or perhaps in the early hours of the morning of the 27th, Detective Gardaí Phillips and Hanley prepared what was referred to at trial as an aide memoire or memorandum detailing the events above described. The aide memoire, which is headed “Meeting with Michael O’Donnell Solicitor on Thursday 26th February 2009”, was read to the trial court during the voir dire. It is worth setting out in full:
“Met at station. Explained about consultation with a client to be done in the sight but outside hearing of members. Consultation in cell. After consultation Michael O’Donnell requested to speak to members. 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 [Detective Garda Hanley] 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 Victoria Gunnery released. Michael O’Donnell said ‘sure can’t you arrest her again?' I 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. Michael O’Donnell said he would go back to Barry Doyle and tell him this. 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 camera?’ [Detective Garda] 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 again 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, lasted approximately 4-5 minutes. Michael O’Donnell left the station.”
15. Interview 15 was conducted by the same gardaí and commenced at 19:43. At the outset, the appellant admitted to being in Clonmore on the 8th November, 2008, as a front seat passenger in a motor vehicle thought to be involved in the crime. At 19:46 the interview was interrupted so that Mr. Doyle could take a phone call from his solicitor, which lasted about three minutes. The interview then resumed, whereupon the appellant made admissions in relation to the murder of Mr. Geoghegan. The appellant also drew and marked a sketch map of the scene of the murder. He signed the memorandum of interview and the interview ended at 21:05, at which point the video recording had been switched off. It therefore did not show that the appellant then took a set of rosary beads from around his neck and asked “will you give them to Shane Geoghegan’s ma?” A further interview, Interview 16, was held between 22:09 and 23:29.
16. Five more interviews were conducted on the 27th February, 2009. The appellant had a two minute phone consultation with his solicitor prior to the first interview that day. During that interview, Interview 17 in total, the appellant confirmed his admissions from the previous night and referred to his act of handing over the rosary beads, as he did to his killing of Shane Geoghegan. He had a personal consultation with his solicitor for about five minutes from approximately 15:27 that afternoon. In Interview 20 that night he marked an aerial map and photograph shown to him by the gardaí, and demonstrated how he had cleared undischarged rounds from the gun used by pulling back the slide. Mr. Doyle once again declined to sign any of the memoranda of the interviews conducted that day.
17. The appellant was interviewed twice on the 28th February, 2009, bringing the number of interviews to 23 in total. At 14:31, he was released from section 50 detention for the purposes of charge. After a brief consultation with his solicitor, at 15:15 the appellant was arrested and charged with murder. He was then taken to Limerick District Court.
Ms. Gunnery’s Arrest, Detention & Questioning:
18. Before addressing what happened at trial, it is necessary to recount the situation in respect of Ms. Gunnery. As mentioned above, she was the appellant’s former girlfriend and mother of his infant child. She was arrested around the same time as Mr. Doyle, pursuant to section 30 of the Offences Against the State Act 1939, which confers such a power in respect of persons whom a member of An Garda Síochána suspects of being in possession of information relating to the commission of a scheduled offence. In this instance, the relevant scheduled offence was possession of firearms with intent to endanger life on the evening of Mr. Geoghegan’s murder.
19. In passing may I draw attention to the absolute peculiarities of this section of the 1939 Act: a person’s liberty can be taken on suspicion of having information simpliciter, even though the basis for such arrest is not otherwise criminalised in our system. I consider the provisions questionable at least.
20. In any event, Ms. Gunnery was arrested at her home in Dublin at approximately 08:30 on the 24th February, 2009. Having been detained at Ballymun Garda Station, she was interviewed on four occasions on that date. Her detention was extended for 24 hours by Chief Superintendent Gerry Mahon at 08:10 on the 25th February, 2009; thereafter she was interviewed five times during the course of that day. In the last of these interviews, her ninth overall, Ms. Gunnery provided information to the gardaí about contacts she had had with the appellant on the 8th and 9th November, 2008.
21. Shortly after midnight, at 00:26 on the 26th February, 2009, she was taken to Limerick for the purpose of an application to extend her detention the following morning. The supposed basis for this transfer was an erroneous belief on behalf of the investigating gardaí that the proper court to which such an application should be made was Limerick District Court. How such a view could have been arrived at and then entertained is disturbing. In any event, her detention was extended by that court and she was then detained at Roxboro Road Garda Station in Limerick, where she was interviewed a further three times on the 26th February. Ms. Gunnery was released from custody at 21:00 that night, shortly before the conclusion of the 15th interview of the appellant but after he had confessed to the murder of Shane Geoghegan.
The Trial:
22. The prosecution of the appellant duly came on for hearing in the Central Criminal Court, with Sheehan J. presiding. This was a retrial following a previous disagreement by the jury. It lasted 22 days, with an equal portion of that consisting of a voir dire into the admissibility of the confessions made by the appellant. Over 20 hours of video recordings were played in court and the interviewing officers gave evidence in chief and were cross-examined. Ultimately the learned judge was satisfied to admit the confessions; his ruling in this regard is dealt with at paras. 29-32, infra.
23. The main pillars of the case against Mr. Doyle were (i) the admissions previously referred to, which were in part supported by other evidence, including ballistics evidence found at the scene and also evidence in relation to the stolen getaway car; (ii) the evidence of April Collins, former girlfriend of crime boss Gerard Dundon, who said that she was present when John Dundon ordered the appellant to kill the intended victim, and present again when John Dundon discovered that the wrong man had been murdered; and (iii) the evidence of Ms. Victoria Gunnery, who testified as to certain remarks made by the appellant which tended to implicate him in the murder.
24. On the 15th February, 2012, the verdict reached was unanimous; the decision of the Court of Appeal of the 8th June, 2015, was to dismiss the grounds of appeal in their entirety. That decision, or at least its substantive part, is traced through the rest of this judgment.
This Further Appeal:
Issue 1:
Whether the confession was procured by a threat(s) and/or an inducement(s) and, if so, whether the threat(s)/inducement(s) had dissipated by the relevant time
25. The first question which I propose to address was phrased as follows by this Court in granting leave:-
“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 thereby 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.” (Emphasis added: see para. 57, infra)
There are therefore three aspects to this question, the last of which is critical to the issue of a causative link between any inducement and the confession.
26. It will be recalled (para. 9, supra) that the appellant first learned of Ms. Gunnery’s detention during Interview 10, the final interview held on the 25th February, 2009, the second day of his detention. On this first question the case made, which previously has been summarised at para. 10, supra, is that certain comments made by the gardaí during this session and subsequently during Interviews 11, 12, 13 and 14, all held on the 26th February, 2009, amounted to threats or inducements intended to extract a confession from him. The essence of this argument is that the gardaí led him to believe that his former girlfriend, Ms. Gunnery, would not be released until he confessed to the murder of Mr. Geoghegan, with consequential hardship both for her and for their infant child so long as he refused to do so. Thus, it is claimed that the confessions were involuntary and on that basis should have been ruled to be inadmissible.
27. In his amended written submissions to this Court, Mr. Doyle has set out a comprehensive list of what he alleges are the inducements and/or threats put to him during Interviews 10-14. In order to preserve detail and context it is necessary to set these out in full:-
- “That Vicky Gunnery was in custody ‘for the same offence’ arising out of the ‘same incident’, namely the murder of Shane Geoghegan; [Interview 13, page 30 - ‘13.30’]
- She was in custody the same amount of time as the defendant; [10.8]
- She had done nothing wrong [10.8];
- She was being detained because of the defendant [10.8];
- She was suffering hardship and deprivation [10.9] [14.16];
- Because of Victoria’s detention their child was suffering hardship and was being deprived of its mother, which was the defendant’s fault [10.9] [14.16];
- That unless he confessed his family difficulties were going to get worse [10.9] [10.11] [10.13];
- That the defendant was failing his daughter as a father by not confessing [10.8] [10.12];
- That he should ‘come clean and tell the truth’ for ‘everybody’s sake’ [14.13];
- That he should ‘do the right thing … tell the truth’ and ‘don’t keep Vicky away from the young one longer than she has to be … for the sake of your child.’ [13.32].
- That unless he confessed he’d never get to see the child again [10.12];
- That he would not get to see his other children (by a different mother - Anita) [10.11];
- Unless he confessed he was going to end up in hardship regarding his family [10.13];
- In return for a confession the Gardaí would put in a good word to Vicky Gunnery to help the defendant’s position vis-à-vis his family [10.19].
- That Vicky’s detention was not what the Gardaí wanted but caused by the defendant’s lack of confession [13.20-21];
- That the Appellant’s lack of confession was causing Vicky to be detained and away from her child and that if he confessed she would be released - so he should do the right thing [13.32];
- That Vicky would be released when the Gardaí had no reason to detain her, i.e. when the defendant confessed [memo][14.18];
- ‘Do you see what you’ve brought your family and friends down to? Barry look at me. Do you see what you’ve brought your family and friends down to? Your child without their mother because of you, because of you. Your child has no mother for the last few days because of you.’[10.7]
- ‘Your ex girlfriend now, the mother of your child, is now in a station cell very similar to yours lying on a mattress very similar to yours, eating the same food as you and no visits and I tell you to take a mother away from her child like that, that’s your fault; that’s not our fault, that’s your fault…’[10.7]”
The fact that these statements were made has not been and could not be disputed.
28. Evidently, the series of events described at paras. 11 to 16, supra, are of central importance to this ground of appeal. These matters span from Interview 10 on the night of the 25th February, 2009, to the appellant’s confession in Interview 15 conducted on the following night.
The Trial Judge’s Ruling:
29. On this ground of objection, as above noted (para. 22, supra), Sheehan J. conducted an extensive inquiry, viewing many hours of video recordings, listening to the interviewing officers giving evidence and being cross-examined, and carefully considering both written and oral submissions on the point. He concluded as follows.
30. As regards the question of inducement, the trial judge was guided by the decision in People (DPP) v. McCann [1998] 4 I.R. 397 (“McCann”) and also had regard to the judgment in R v. Rennie [1982] 1 WLR 64 (“Rennie”). In addition, he considered People (DPP) v. Pringle (1981) 2 Frewen 57 (“Pringle”) and People v. Hoey [1987] 1 I.R. 637 (“Hoey”) but declined to follow the judgment of the Canadian Supreme Court in R v. Spencer [2007] SCC 11.
31. Sheehan J. first noted that any alleged inducements prior to Interview 15 must be seen in the overall context of everything that had taken place. This included the gradual unfolding of the evidence and the appeals to the prisoner to tell the truth. The learned judge considered that “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 [between the appellant and his solicitor] and the solicitor’s interaction [with the gardaí].” In his view, therefore, these matters broke any possible causative link, a conclusion also influenced by the fact that the solicitor told the gardaí that the appellant would not admit to the offence. Overall the trial judge was satisfied that the admissions were voluntary and not made as a result of a threat or inducement.
32. As regards oppression, the court was guided primarily by People (DPP) v. McNally (1981) 2 Frewen 43 and Pringle, and also took account of DPP v. Shaw [1982] I.R. 1 (“DPP v. Shaw”). The learned judge noted that he had watched the videos and that Barry Doyle appeared mentally and physically strong throughout. He noted factors which suggested that the appellant would not be easily amenable to oppression: that he worked as a block layer, that he played Gaelic football, that he slept wearing a bulletproof vest and that he had previously told a garda officer to “fuck off”. Sheehan J. was satisfied that the appellant engaged with the gardaí when he chose to and refused when he chose to. He found that the interviews were “conducted in a careful, patient and structured way”, that the gardaí were “at all times professional and courteous” and that there was no oppression involved. The learned judge further found that the appellant first began to engage with the gardaí in a limited way because of the appeals to his humanity. Sheehan J. found that Barry Doyle was in full control of himself throughout and that he made the admissions because he chose to. He therefore found that the confessions were not the result of oppression, nor were they the result of a breach of fundamental fairness. Whilst the question of oppression as such was not part of the grounds of appeal to this Court, nonetheless the trial judge’s ruling on this point is relevant for other reasons, in particular its bearing on the issue of the dissipation of any inducement.
The Judgment of the Court of Appeal:
33. The Court of Appeal accepted that the law on inducements, which involves a three-pronged test, is laid out in McCann and Rennie (see para. 53 infra).
34. The Court held that it was clear from his ruling that the trial judge found that there was no evidence of inducement, and that even if there had been, the same had been dissipated by, inter alia, a combination of the visit by Mr. O’Donnell to his client and the offer which the solicitor made to the gardaí, which was unambiguously rejected. Both of these matters excluded the possibility of the third McCann element being present. In this context it stated that an appellate court will be extremely reluctant to overturn a trial judge’s view where his assessment depended on seeing witnesses and observing their demeanour whilst being questioned. The Court furthermore rejected the view that the solicitor’s offer represented the implementation of the McCann triad and held that the whole transaction refuted any argument based on inducement.
35. The Court further found that the argument based on what it described as “selected statements and comments” was not made out. No threats were uttered, nor was any explicit inducement offered. Any inducement would therefore have to be inferred, and the Court once again highlighted the superior position of the trial judge in this regard. The trial judge found that the appellant opened up because of the gardaí’s appeal to his morality and better nature, and there was evidence to support this. Mr. Doyle was now trying to draw inferences which were not justified by an examination of the transcripts. The Court also found it significant that the admissions were limited to the appellant’s own role in the murder, which showed his capacity for judgement and the fact that his will was not overborne. Further, it emphasised that he furnished considerable detail to illustrate what had happened and where. It also stated that the inducement theory falls down when one considers that the appellant did not demand confirmation of his ex-girlfriend’s release after Interview 15.
36. In conclusion, the Court of Appeal was satisfied that there was evidence to support the judge’s rejection of the inducement or threat theory. In this regard, the interaction between Mr. O’Donnell and the gardaí was decisive in disproving the inducement hypothesis. Thus the Court held that the trial judge was entitled to find that the admissions were not brought about by inducement or threat and that the trial judge’s interpretation of the interviews was correct.
Submissions of the Appellant:
37. The appellant submits that even the most gentle threat or slight inducement will taint a confession (R v. Smith [1959] 2 Q.B. 35; R v. Zaveckas [1970] 1 All E.R. 413). For example, in Hoey a threat to visit the family home and to interrogate members of a suspect’s family with a view of getting one of them to take responsibility for a firearm led to the exclusion of a confession. The appellant also refers to Pringle, on which see para. 77, infra. There were many other such examples, but these will suffice to make the point.
38. The appellant claims that certain comments by the gardaí, set out at para. 27, supra, put psychological pressure on him to confess for the sake of his ex-girlfriend and child: he did so as he was offered a quid pro quo whereby a confession would secure her release. The gardaí pressed on with questioning in Interview 14 for an hour after he had requested to speak to his solicitor. Further pressure was put on the appellant during this time and although he made no admissions, the thrust of the remainder of the interview was to persuade him to surrender his right to silence and to confess. In this regard the aide memoire fully supports the concerns which Mr. Doyle had for Ms. Gunnery and the fact that there was a deal on the table.
39. The appellant submits that the effect on him of the disclosure of Ms. Gunnery’s detention was evident, in that the gardaí clearly recognised that it had upset him. He expressed concern for Ms. Gunnery and his child and eventually said “I’ll answer your questions after I speak to my solicitor.” It is submitted that the content of the aide memoire discussed above illustrates the appellant’s concern for Ms. Gunnery generated by the preceding interviews. It is submitted that the memorandum clearly establishes a relationship between the confession and her release; the only contention was the order in which this was to occur. It is further submitted that the appellant was induced by the remarks of the gardaí in Interviews 1-14 into making admissions in the interviews that followed - the appellant points out that he made his confession almost as soon as Interview 15 commenced.
40. The appellant accepts that the correct test is that laid down in McCann but at the core of his submission on this point is the argument that the trial judge incorrectly applied the test. It is stated that his failure to address the first strand renders the conviction unsafe, as this question merited rigorous determination. If the trial judge had found the words objectively capable of constituting a promise or threat, then the confessions would have to have been excluded unless the prosecution proved beyond reasonable doubt that they were not understood as an inducement (strand two) or were not a result of the promise/threat (strand three). It is submitted that strands two and three of McCann cannot be examined until the first prong is determined. Instead the trial judge just assumed dissipation from Mr. Doyle’s consultation with his lawyer between Interviews 14 and 15. This was entirely unjustified, as can be seen, for example, from the appellant’s ongoing concern for his ex-girlfriend and his child, which was expressed in subsequent interviews (16, 20 and 21) long after the consultation with his solicitor.
41. Finally, it is submitted that an appellate court is in as good a position as a court of trial to determine the first strand of McCann. This depends neither on the intention of the maker nor the understanding of the recipient. The appellant thus argues that the Court of Appeal failed to engage in an isolated analysis of this strand and was unduly deferential to the trial judge. Indeed, the more basic complaint is that the trial judge did not determine this issue at all, but rather having skipped over the second strand went straight to the final point of the test. Therefore, there were multiple errors in what should have been a sequential application of McCann and this Court is asked to correct or remedy those.
Submissions of the Respondent:
42. The DPP submits that the appellant is simply trying to re-argue the issue of admissibility once again, which is not permissible. Once the absence of a causal link was found to exist there was no basis for contesting admissibility, and as a result there is no purpose in separately analysing strands 1 and 2 of McCann, an issue which is now moot. In any event, the Court of Appeal reviewed the transcripts and found the trial judge’s decision to be correct.
43. It is further submitted that the trial judge considered all of the evidence, having viewed over 20 hours of recordings and having had the benefit of observing the witnesses first-hand. This aspect of the trial lasted nine days, at the end of which extensive submissions were made. It is said that one cannot focus on isolated extracts from the interviews, for to do so is divorced of context. The trial judge had the totality of the circumstances in his vision and both his conclusions and overall ruling are correct.
44. The respondent submits that Ms. Gunnery’s arrest was legitimate, and was lawfully carried out pursuant to section 30 of the Offences Against the State Act 1939 on the basis of a suspicion that she possessed information relating to a scheduled offence. During her initial interview she began to give relevant information, and whilst in custody in Limerick gave a full witness statement. She gave evidence at trial that could have been construed as incriminatory of the appellant. Defence counsel conceded that there had been no issue with extending her detention. Thus there can be no suggestion that she was wrongly arrested solely for the purpose of putting pressure on the appellant to confess. It is further submitted that the appellant and Ms Gunnery were not on good terms at the relevant time.
45. The respondent also submits that there was no error of law. A court must have some evidential basis to conclude that the words used were understood as an inducement and that the confession was made as a result. In this sense there is an evidential burden on the defence. The respondent maintains that there has been no evidence of either issue. Indeed, in one interview the appellant said that “it was my choice to admit what I did.” Furthermore, per McCann, interrogation necessarily entails more than gentle questioning, and gardaí are entitled to persist with such questioning. As in McCann, the appellant here had access to legal advice, regular refreshment and a chance to sleep. In Rennie it was stated that the person best able to get the flavour of the circumstances in which a confession was made is the trial judge; where he properly applies the law, deference is owed to his determination on the voluntariness of the confession. Here the trial judge observed the recordings and heard the witnesses. The appellant concedes that there was no oppression. It is therefore submitted that the trial judge did not commit any error of law.
46. The DPP submits that there is no causative link between any alleged inducement and the confession. A key feature of this “unusual” case is that this is not a case where the gardaí offered an inducement; rather, the appellant offered the gardaí a confession as an inducement to secure Ms Gunnery’s release. This was explicitly rejected, leaving the appellant in no doubt that there was no inducement on offer to him. It is submitted that the gardaí properly recoiled from what they regarded as a ploy to lure them into giving an inducement which would have invalidated the confession. The respondent also points out that the appellant spoke to his solicitor for approximately 25 minutes before Interview 15 commenced, and again during the interview.
47. Finally, it is submitted that there were other aspects of the interviews which supported the ruling of the trial judge. These included the fact that the appellant omitted references to any accomplices; that he said it was his choice to admit to the murder; that he indicated in Interview 15 that he was feeling alright; and that he accepted in Interview 20 that he had been treated fairly in custody. The appellant’s submission that he made reference to the pressure continuing to play on his mind in later interviews is taken out of context. The fact that he gave his rosary beads to the gardaí supports the contention that the interviewing officers had played to his conscience. Furthermore, it is submitted that the significance of his relationship with Ms. Gunnery was not what is now contended by the appellant, and that she had never visited him in Limerick, nor did he see her on occasion when he was in Dublin.
48. The respondent concludes that the trial judge was uniquely well placed to come to a conclusion on these factual matters, and was justified in concluding that the confession made during Interview 15 was voluntary and not the result of oppression or a threat or inducement. Enquiries as to voluntariness are especially fact sensitive and the trial judge conducted a very thorough enquiry and applied the correct legal principles in his adjudication of those facts.
Decision:
49. It is unclear from his ruling what precise findings were made by the trial judge on this issue: did he hold that objectively the disputed questioning amounted to a threat or an inducement, and did he hold that Barry Doyle himself so viewed the impugned remarks? On one reading he must have done so, as otherwise the causative issue would not have arisen. On the other hand, however, the learned judge may have assumed or simply proceeded on the basis that such could be regarded as having been established without so holding or finding, as in any event, in his view, any possible effect on voluntariness had ceased by the time of the confessions. It is difficult to know which is the case. I make this point not for the sake of it, but for some important reasons which I will outline in a moment. He did, however, clearly set out his reasons on the dissipation point.
50. This of course is an appeal not directly from the decision of the trial judge, but rather from the Court of Appeal. Whilst the findings of that Court are above set out (paras. 33-36, supra), it is useful to refer to them again in the briefest of terms. The Court, in its review of the judge’s ruling, found in the first instance that he had entirely rejected the inducement complaint but that in any event he had also held that even if a threat or promise had been made, the same had no legal effect on the confessions. As there was evidence to support these findings, the conclusion so reached could not be disturbed.
51. The Court then offered its own assessment on this issue, but in the process deferred significantly to the ruling as made: this by reason of the trial judge’s preferential position. It did however state, first, that the existence of any threat or inducement had to be inferred, as there was no express evidence to that end. Secondly, the Court of Appeal was satisfied that there was evidence to support the view that it was the prisoner’s sense of morality and better nature that caused him to confess, and not any other reason. Finally, on the overall question, the Court was also satisfied that the solicitor’s interaction with the gardaí was decisive in disproving the inducement hypothesis.
52. Assuming that what is above stated, when read in conjunction with the fuller description previously given, is a reasonable summary of both the trial judge’s ruling on this issue and the Court of Appeal’s review of that ruling, as I am satisfied it is, I am left in a position of some uncertainty as to what precisely was decided by the learned trial judge, and what precisely was accepted or rejected at the first appellate level.
The Law on Inducements: People (DPP) v. McCann [1998] 4 I.R. 397 (“McCann”)
53. McCann not only set out what the law is, but also how it should be applied. At p. 411 of the Report, the Court of Criminal Appeal, in quoting Phipson on Evidence (13th Ed.) at para 2.20, said:-
“As regards what constitutes an inducement, the test would appear to be (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?”
It is not in dispute but that this is the correct test in determining whether a confession was produced by a threat or an inducement. It is also accepted that gardaí are evidently persons in authority. What is at issue is the application and implementation of that test. In this regard this Court is asked to pronounce upon the mechanics or sequencing of the three prongs of the test, and also on the evidence that may be required to satisfy each constituent element thereof.
54. Perhaps rather surprisingly, given its centrality to any inducement challenge, the McCann triad does not appear to have been the subject of any great level of scrutiny in any reported judgment since it was pronounced in 1998. Evidently, in the intervening period it must have been frequently applied, one assumes without objection, whenever this type of issue was in play. Nonetheless, in light of the importance of garda questioning and interrogation to modern criminal investigation and evidence gathering practices in this jurisdiction, it is necessary that the proper method of applying the test should be clarified.
55. By way of introduction to this issue, it is worth setting out briefly some of the background on the law relating to induced confessions. At the core of this matter is the rule that only a voluntary confession is admissible, with the onus, to the criminal standard, being on the prosecution for this purpose (DPP v. Boylan [1991] 1 I.R. 477). Whilst the evolution of the rationale underpinning this concept need not overly concern us, nonetheless, it is of interest to note that whilst once resting at the door of reliability, it is now - and has been for more than 50 years - generally founded upon the principle that no one should be compelled to incriminate himself (People (Attorney General) v. O’Brien [1965] I.R. 142, per Walsh J. at p. 166). It is principally for this reason that the accuracy of a confession in terms of detail no longer carries the weight which it formerly did (see para. 35, supra). A further basis for the rule, sometimes cited, is that related to the reputation and integrity of the criminal justice system, an aspect of which is to discourage or deter police interrogation practices designed to obtain a confession at all costs (see generally McGrath, Evidence, 2nd Ed., (Dublin, 2014) at paras. 8-98 to 8-111).
56. In a review of a series of cases stretching from The Queen v. Johnson 15 Ir. C.L.R. 60, to The People (Attorney General) v. Manning 89 I.L.T.R. 155, the Court of Criminal Appeal in The People (Attorney General) v. Galvin [1964] I.R. 325 examined each of these decisions so as to deduce from them what the established position was regarding threats or inducements. The Court’s conclusion can be summarised as follows:-
(i) that answers given, statements made and confessions obtained must be ruled inadmissible unless made voluntarily, that is, without the influence of “hope of advantage or fear of prejudice”, or, as now more commonly expressed, without threat or inducement, excited or held out by a person in authority;
(ii) that in the absence of a causative link or temporal connection between inducement and confession, the latter will not be excluded solely because of some antecedent but ineffectual promise or threat; and, thirdly,
(iii) that even if the challenge should not be sustained, the Court still retains a discretion whether to admit or reject such a confession.
57. In fact Kenny J. could have added to this review the classic formulation of voluntariness as set out by FitzGibbon J. in the first reported decision of the recently defunct Court of Criminal Appeal, State v. Treanor [1924] 2 I.R. 193 at p. 208:
“A confession made to any person under the influence of a promise or threat held out by a person in authority, calculated to induce the confession, is inadmissible, unless it be clearly proved to the satisfaction of the Judge, whose duty it is to decide the question, that the promise or threat did not operate upon the mind of the accused, and that the confession was voluntary notwithstanding, and that the accused was not influenced to make it by the previous promise or threat.” (Emphasis added)
Subject to two observations, first, that evidently the standard of proof is beyond reasonable doubt, and, second, that the intention or motive of the person making the statement is irrelevant (Hoey, per Henchy J. at p. 652), the above passage nonetheless illustrates that the general principle is a long-established and deeply-rooted one in this jurisdiction; indeed, it is quite clear that the rule far predates even that judgment.
58. At a general level, the voluntariness test has expanded in scope over time such that now it encompasses not just induced confessions, but also confessions obtained by reason of objectionable events or circumstances, such as persistent or incessant questioning, the frequency and duration of interviews, the nature, wording or intensity of the questions, the treatment of the prisoner whilst in custody, or through disregard of some personal infirmity which materially affects the rationality of that person’s intellect and free will. The classic generalised statement in this regard is the judgment of Griffin J. in DPP v. Shaw at pp. 60-61. Although the appellant originally argued on these broader concepts of oppression and unfairness at both trial level and also in the Court of Appeal, his submission to this Court is much narrower and is solely focused on the inducement issue.
59. Sometimes in the literature and jurisprudence one will see references to “an inducement or threat” - indeed, even the point of appeal for this Court was so framed (para. 25, supra). However, I am satisfied on balance that the latter is really a subset of the former, and that an inducement should be considered as an umbrella term encompassing both promises and threats; thus an inducement may take the form of either the carrot or the stick.
60. The case law illustrates that any distinction which may exist between either description is of no relevance to the general application of the test. In any event, as the facts of this case illustrate, it can sometimes be difficult to differentiate between threats and promises, or suggestions, questions, or offers (Hoey, Walsh J. at p. 649), and in fact such expressions may sometimes be rolled up as one, or travel in tandem with each other. Therefore, in this judgment, unless otherwise made clear, I will use the word “inducement” as covering both threats and promises; in addition, I will treat the word as having the same meaning as the phrase “improper inducement”, where that might be used.
Application of the McCann test:
61. In my view, it is of the first importance that a trial court should approach this issue in the sequential order which McCann ordains. The individual elements of the test should not be judicially collapsed or even inadvertently subconsciously merged.
62. The first step in the process, therefore, is to decide whether the words used, objectively viewed, are capable of amounting to a threat or promise. If not so capable, the inquiry is at its end. If, however, the contrary is the case, it is then necessary to proceed to the second limb: has the accused subjectively understood them as such? Again, if this is not the situation, this ground of challenge cannot succeed. If the second limb is also satisfied, the trial judge should then proceed to the final question and determine the existence or absence of a causal link between the inducement and the confession so obtained. Where the accused has raised and sufficiently engaged with the issue, the DPP must satisfy the court that one or more of such elements do not exist: if she does, the objection made should be rejected; otherwise the court must hold that the confession procured was inducement-related.
63. There are, in my opinion, substantial reasons for this approach. First, it has the benefit of compelling the judge to look at each issue separately, and to consider within that issue the particular facet of the test which is in question. This approach should be repeated for each limb of the test so that a detailed and individual determination is made at each level. Such should have the immediate effect of sharply focusing the judge’s attention on what evidence is available on that particular aspect and what findings or inferences might be open to him. It should help avoid the possibility of inadvertent movement between the strands and of the judge incorrectly assigning a particular piece of evidence to the wrong strand. In addition, it facilitates an increased consciousness of where the burden of proof is at all stages. Moreover, each characteristic of the test poses a different challenge and requires a different focus. It is notorious fact that where the correct question is addressed, it is far more likely that the correct answer and result will follow. All of these potential risks are avoidable and confusion can be averted if this sequential approach is adhered to. Further, I am satisfied that it is more analytical, objective and clinical in its approach, requirements which are entirely commensurate with the powerful impact which confessions are apt to have on convictions. If what I suggest is adhered to, one should see the application of the rule in its full force.
64. The second reason for this suggested approach is that it facilitates a much better understanding of the issues from the perspective of an appellate court. It is unsatisfactory for such a court to have to infer from a ruling what was in the judge’s mind on some one or more particular aspect of the test. If no clear finding on each element is made, it makes review much more difficult. It is also more transparent and will leave the parties in no doubt as to the basis of the decision.
65. The third reason is significant for the overall administration of justice and it relates to the interrogation of suspects while in custody. In such context, it surely must be of importance to know whether or not in the court’s view this particular type of suggestion or that particular line of questioning falls foul of the first aspect of the McCann test. A decision one way or the other must be of benefit not only to members of the force involved in interrogation and their superiors, but also to the public generally. Such knowledge may well influence future behaviour.
66. This case provides a good illustration as to why the approach which I advocate should be and should become the normal and routine application of the test. Contrast what the trial judge said with the Court of Appeal’s view of what he said. In his ruling, the trial judge stated that “[t]he first thing to be said is that these remarks must be viewed in the overall context of all that had taken place” but went on to say that:-
“Notwithstanding the context in which they occurred … 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 causative link…”
67. The Court of Appeal, in its own analysis of the transcript, stated that “[s]ome of the Garda comments are colloquial, to say the least, but there are no threats uttered. Neither is any explicit promise or inducement offered. It follows that any inducement or threat must be an implied one.” On the question of an implied inducement, the Court endorsed the trial judge’s approach, saying that “[g]reat weight must … be given to his assessment that there was no inducement or threat”, and continued that “… it is clear that the judge did not think that there was any inducement but went on to hold that even if there was something to satisfy the first leg of McCann/Rennie, and that it operated on the appellant, it was dissipated by the intervention of the appellant’s solicitor”.
68. With the greatest of respect, it does not seem so readily apparent to me that the trial judge in fact found that, objectively viewed, there was no inducement. Nor was it that obvious to at least one other member of the Court, with MacMenamin J. being expressly of opinion that the trial judge in fact found that the words complained of constituted an actual inducement in the first place. Whilst I believe that this is the better view of what occurred, nonetheless there remains the possibility that no definitive finding was reached on this, or indeed on the second aspect of the test. If that be the case, the same is perhaps understandable in that the learned judge may have felt that his conclusion on dissipation rendered the preceding questions largely academic. For the reasons given, I believe that such an approach was incorrect.
69. In advocating this stepped assessment I am not suggesting that each prong can be rigidly compartmentalised or that aspects of the evidence may not overlap. An overly refined approach may unnecessarily complicate the rule in its application. However, once the separation above-described is adhered to, the trial court should have no undue difficulty in implementing this type of analysis.
Applying McCann to this case:
The Most Material Evidence:
70. What then is the evidential scaffolding that this Court can confidently utilise so as to analyse this aspect of the case? The most important pieces of evidence in my view, which incidentally are not materially dependent on seeing or observing the witnesses or on the advantage of being the trial judge, are as follows:-
(i) that during the last interview conducted between 22:38 and 23:35 on 25th February, 2009 (Interview 10), Mr. Doyle was informed by the gardaí for the first time that Victoria Gunnery, whose relationship and motherhood was known to them, had been arrested and detained;
(ii) that during interviews conducted on the day following, the 26th February, (Interviews 11-14), the gardaí as part of their questioning made the statements and uttered the remarks which are outlined at para. 27, above;
(iii) that Interview 14 ended at 18:35 that day; the prisoner’s solicitor arrived at 18:52 and departed the station at 19:17 and the next interview, namely Interview 15, commenced at 19:43;
(iv) that during Mr. O’Donnell’s 25 minutes at the station, the following occurred:-
• a ten minute consultation was first had with the client;
• the solicitor then went off and spoke to the gardaí;
• the solicitor then returned for a further ten minute consultation;
• the solicitor again spoke with the gardaí; and, finally,
• after a further 4 - 5 minute consultation, he left the station.
These periods must be approximate, given the arrival and departure time of the solicitor.
(v) the details of the exchange between solicitor and gardaí are noted in the aide memoire (para. 14, supra), the accuracy of which was not seriously challenged at trial; and
(vi) that pretty much immediately after Interview 15 had commenced, Mr. Doyle admitted to being in Clonmore on the night in question and a short time thereafter, following a further three minute telephone conversation with his solicitor, he admitted to the murder of Mr. Geoghegan.
First Prong
71. I am satisfied that an appellate court can of itself assess the first prong of the McCann test and to that extent, whilst always remaining conscious of the views of the trial judge, does not have to be nearly as deferential as might appear from the judgment of the Court of Appeal. Therefore, I should think that in the ordinary course of things, an appellate court is well placed to make an “objective” determination, on the basis of the ordinary and natural meaning of the words used, of whether the comments made were or were not capable of amounting to an inducement.
72. The judgment in DPP v. Hoey [1987] I.R. 637 (“Hoey”) offers support for this view, even if it was a non-jury trial. In that case the Special Criminal Court had held that a certain question put by the gardaí was “the occasion” but not “the cause” of the admission, and accordingly that the confession was voluntary; the Court of Criminal Appeal, although agreeing as to outcome, took the view that the remarks had caused, or, as the Court put it, “induced” the confession. However, it granted a Certificate under section 29 of the Courts of justice Act 1924 on the question of whether it necessarily followed from this view that the question put to the appellant also constituted an “improper” inducement. The Supreme Court unanimously held, in each of the three separate judgments delivered, that the comments made (para. 75, infra) had indeed amounted to such an improper inducement and had directly led to the confession. What this aspect of Hoey therefore illustrates is that an appellate court may arrive at a different conclusion than the trial court on the question of inducement or no inducement.
73. If words, in context, are to have any understandable meaning, how can what the investigating officers said to Mr. Doyle during Interviews 11-14 (see para. 27, supra) be interpreted as anything other than that the following was the situation:
(i) that Victoria Gunnery was in custody for “the same offence” arising out of “the same situation” as he was, which could only mean that following her arrest and detention she was being interrogated for the murder of Shane Geoghegan. Mr. Doyle had no way of knowing that this was false;
(ii) that in reality the gardaí knew that she was innocent; that her detention and interrogation was because of him and that he was responsible for the hardship and distress which such detention was causing, and also for the fact that their child was being deprived of her mother; and
(iii) that there would no longer be any reason to detain her if he should tell the truth: if he should confess, she would then be released.
This is very much an incomplete survey of what previously has been set out, but it fairly and accurately represents the remarks as made.
74. The first question, then, is whether the words used were capable of amounting to an inducement. There are a great many decisions on what might constitute a threat in this context; the most obvious example would be a threat to do violence to the accused or a close family member. Any suggested inducement falls to be determined according to its own facts and the particular circumstances of the case. Even viewed objectively, what is an inducement in one situation may not necessarily be so in another. I am therefore of the opinion that cases dealing with direct threats of violence, or threats to the accused generally, are of little value in this situation. Even as between relatively similar inducements, a minor charge in circumstance may be such as to strip a comparison of its worth. Nonetheless, it is still at least somewhat instructive to briefly refer to the following cases.
75. In Hoey, the accused was being questioned in relation to firearms and ammunition found in the bedroom of the home where he lived with his mother, his sister and other relatives. In the course of this questioning, during which for the most part he remained “intransigently silent as to his responsibility” (Henchy J. at p. 652), the following was put to him by the interviewing garda: “It must be somebody in the house. Will I have to get some member to go up to your family and find out from them if anybody at 78 Rossmore Avenue is going to take responsibility for the property?” In the very next exchange, the accused made a statement in which he admitted responsibility for the guns and ammunition.
76. The manner in which each court viewed the statement and dealt with its consequences is set out above, and need not be further repeated. What is of interest in the present context is the unanimous opinion of the Supreme Court that the obvious implication of what was said was that if Mr. Hoey refused to take responsibility, then his family members would be further interrogated to identify who would, whereas if he did confess, they would be left undisturbed and not further interviewed. This, in the Court’s view, clearly amounted to an improper inducement which was causatively linked to the resulting admission, and thus that admission could not be said to have been voluntary.
77. Another example with some similarity to the instant case is DPP v. Boylan [1991] 1 I.R. 477, where, although decided on other grounds, McCarthy J. referred to an “allegation … of threat and if it were true, a very grave threat, that of going to the applicant's home and making life unpleasant for his wife and family.” Quite evidently, if sustained the same would have amounted to an inducement. Finally, The People (DPP) v. Pringle (1981) 2 Frewen 57 has also been mentioned, where the interviewing gardaí told the accused that a lady with whom he had a “close relationship” had been questioned about the alleged crimes and the accused’s involvement in them, that she might be charged as an accessory, that “the situation looked bad” for her, and that she was in “a very bad state” and had been physically sick in the Garda Station. The accused was told that if he gave an account of his movements on the night in question, “the whole matter of Eva [the lady] being, at worst, charged, or, at least, having to give evidence wouldn’t arise.” The resulting admissions were held to be inducement related: the Special Criminal Court “viewed … with concern the nature of the statements made … and [was] satisfied that the effect thereof could and consequently must be regarded as constituting a threat or an inducement to the accused to make a statement.” This conclusion was not disturbed by the Court of Criminal Appeal, although it endorsed the trial court’s finding that the threat was dissipated by subsequent events (see para. 94, infra).
78. Whilst I refer to these cases as illustrating the type of statement that amounts to an inducement, it is important to reiterate that each case is an individual one and must be assessed as such. What is clear, however, is that once the yardstick is met, even a slight or trivial threat, promise, offer etc. may constitute an inducement.
79. As appears, both Hoey and Boylan, and to a lesser extent Pringle, largely involved a single inducement: the instant situation is more complicated given that the remarks complained of were made during the course of several interviews. It should be stated, however, that even where the underlying interview process is conducted over a protracted period, this does not necessarily mean that each remark should be regarded as individually objectionable. That is not the case. I therefore wish to make clear that what is under consideration as constituting a potential inducement is the trade-off between release and confession. It is thus only where some other statements feed into this that they too are relevant.
80. It is impossible for me to conclude otherwise than that when objectively viewed such statements, in the context in which they were made, consisted of an offer or promise that in return for a confession, Victoria Gunnery would be released. It may be that one could also see what was said as a form of a threat, in that her detention would continue in the absence of a confession. Either way, I so conclude at the very first level of principle. If what was said in Hoey was considered unanimously by this Court to be an inducement, it must follow, in my view, that the impugned remarks in this case must likewise be so regarded.
Second Prong:
81. The murder of Shane Geoghegan was a horrendous act of cold-blooded criminality. There was a massive public outcry at its happening and the resulting garda investigation was intense. He was, as I have said previously, an utterly innocent victim. Any person found guilty of any murder would of course get a life sentence, but in the circumstances which I have described such a verdict could possibly have an added influence on the actual incarceration period of that sentence. All of these matters were either well known or most obvious. So why did Mr. Barry Doyle try and cut a deal? In so doing at a time when his interrogation had otherwise really produced nothing of value, why was he prepared to advance his own conviction, with the inevitable consequences of so doing? The aide memoire is strikingly informative, and, in my view, decisive on this point.
82. Before adverting to its terms, however, it is of some significance to note the exchange which Mr. Doyle was involved in towards the end of Interview 14, which clearly showed that he was concerned for the welfare of Ms. Gunnery and their child. As an example, he said:-
This I quote as an indication of Mr. Doyle’s mindset just over an hour before the admission of murder was made. Therefore, whatever impact this and the preceding interviews (Interviews 11-13) may have had on Mr. Doyle occurred prior to the solicitor’s arrival at the station, which is timed at 18:52. This critical fact seems to have been lost sight of with the concentration being almost exclusively on Interview 15. If the inducement theory is to hold, however, the earlier questioning is inextricably linked to the latter.
83. It is clear beyond doubt from the aide memoire that Mr. Doyle gave instructions to his solicitor as to what he hoped to achieve. In simple terms: “I will confess but I want Victoria Gunnery released first.” Disregarding the timing point for a moment, one cannot in my view better an understanding of why the accused embarked upon this approach other than his belief that by confessing, Ms. Gunnery would in fact be released. It would be a major read down of the established circumstances to reject that what he perceived as being required to secure Ms. Gunnery’s release was not uppermost in his mind when giving the instructions which he did to his solicitor. Although the trial judge and the Court of Appeal felt that he sought this deal because of appeals to his humanity and better nature, he was described in the same breath as a strong and robust person and no stranger to risk: he slept with a bullet proof vest. In any event, it is unclear how these matters could have affected the appellant’s subjective understanding of what was said. This suggested explanation, in my view, is not plausible, and arguably not relevant on this point. Accordingly, as there is no other reason to be found in the evidence as to why he sought this deal, it follows that the impugned statements were understood by him as the making of an offer that in return for a confession, the release of Ms. Gunnery would occur. Therefore I am satisfied that strand No. 2 of McCann has been met.
84. In so holding, I am not in any way standing down the respect which an appellate court should give to the role of the trier of primary fact. Evidently, there may be circumstances where a transcript of comments made in the course of questioning does not fully convey the atmosphere of the interrogation room or the tenor of the questions being put; it is certainly conceivable that a particular tone or demeanour could turn an ostensibly innocent comment into something more sinister, or perhaps negate that which appears to be a threat but in reality was quite benign, but such circumstances do not overshadow the evidence upon which this conclusion is reached. Accordingly, I am satisfied at this point of the analysis, first, that certain of the remarks made by the investigating officers objectively amounted to threats or promises, and, secondly, that they were subjectively understood as such by the appellant. This then in turn leads to the third prong of the McCann test.
Third Prong:
85. This aspect of McCann centres on whether the confession was in fact the result of the inducement. Critical to this issue of causation is the question of dissipation - whether the effect of any inducement was broken or had worn off by the time the confession was made in Interview 15, which commenced at 19:43 on the 26th February, 2009. This, being the first admission point of guilt, is the critical juncture at which this issue must be judged. In examining this issue it is important to recall what was asked of this Court in the Determination granting leave on Issue No. 1, that being “…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”. The focus of this aspect, therefore, is on an examination of the relevant evidence.
86. In the view of the trial judge, the Court of Appeal, and the majority of this Court, the interactions between the appellant and his solicitor, and his solicitor and the gardaí, between Interviews 14 and 15 are the critical factors which ground the conclusion that if there was an inducement, it had dissipated prior to the first admission, and its effects had ceased. It is said that this is evidenced by the transaction recorded in the aide memoire. Inherent in this approach is the view that whatever quid pro quo, so to speak, that Mr. Doyle may have thought existed, was firmly off the table following the gardaí’s rejection of the conditional offer made to them on his behalf.
87. In support of this conclusion my colleagues above referred to have noted that the learned trial judge found, though not in his discussion on dissipation but rather when dealing with oppression, that the appellant had first begun to engage with the gardaí as a result of appeals to his humanity. He held that this engagement was built on by the investigating members and that ultimately the confessions could be traced to these appeals. To this, which it supported, the Court of Appeal added in his ‘better nature’.
88. It must be recalled that neither Mr. O’Donnell nor the accused gave evidence. Those who did, by that fact alone, could not have nuanced what the documentation shows. Whilst acknowledging that the trial judge viewed the recordings and can thus be said to have seen the interaction between the accused and the gardaí during interviews, such an advantage did not extend to the interactions which are relied upon to justify the dissipation conclusion. No one has a live picture of the solicitor’s engagement with the gardaí or what occurred between solicitor and client. What there is, is the aide memoire referable to the former, which also contains what Mr. O’Donnell told the gardaí of his conversation with his client. The trial judge was not, therefore, in any real sense in a better position than this Court to make a determination in respect of these critical intervening matters.
89. Against this background, I am of the opinion that the aide memoire admits of an entirely different conclusion than what my colleagues have held. In the knowledge of what transpired during Interview 14, including the detainee’s statement that “I’ll answer your questions after I speak to my solicitor”, and working on the basis of the memorandum, the following appears to have been the situation. Mr. O’Donnell arrived at the station and consulted with Mr. Doyle. The solicitor then asked, one can only presume at the behest of the appellant, to speak to the garda officers and communicated the proposed trade: an admission in exchange for Ms Gunnery’s prior release. As stated above, the fact of this exchange being floated at all is strongly suggestive of the fact that at the end of Interview 14, the appellant was under the impression that an inducement had been offered and that a quid pro quo could secure his ex-girlfriend’s immediate release. Mr. O’Donnell was told that this would not happen, that only the truth would suffice, and that once that happened there would be no reason to detain Ms. Gunnery any longer. He told the members that the appellant would answer one question only, and was again told that this would not suffice. Mr. O’Donnell was then told that the appellant would have to admit to what he had done in an interview and that Ms. Gunnery would not be released before any such interview. The solicitor then returned to Barry Doyle and one can fairly assume communicated what was said to him.
90. Mr. O’Donnell then returned to the investigating gardaí and reiterated that Mr. Doyle would not say anything prior to Ms. Gunnery being released. He was told that this was an inducement and that there was no way it would happen as it would not be admissible. Mr. O’Donnell responded that he had instructed Mr. Doyle to say nothing and that he would not admit to the murder. Mr. O’Donnell was then told that “Barry Doyle had to tell the truth about what happened”, and he replied that the gardaí had a bit more work to do. Following another short consultation, Mr. O’Donnell left the station. These are the established facts and are not in any way dependent on oral evidence, or on an individual witness assessment.
91. It is not clear how anything in this transaction necessarily leads to the view that Mr. Doyle must have known that the quid pro quo was no longer an option. The content of the aide memoire does not in any way suggest that the gardaí sought to retract or otherwise to withdraw the previous comments, observations or suggestions made during Interviews 10-14. In fact the aide memoire reaffirms, in express terms, the continuing position of the gardaí; may I quote the following from it:-
“I [interviewing garda] stated that there was no way this would happen, that he would have to tell the truth about what happened, and once he told the truth about what happened we would have no reason to detain Victoria Gunnery any further. … I 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.”
In other words, Ms. Gunnery would not be released before any confession was made, and the position previously stated remained as outlined. It would have been quite simple for the gardaí to have entirely disassociated Ms. Gunnery’s release from the appellant’s continuing detention and questioning. A statement to the effect that her ongoing detention was a matter entirely distinct and separate from his position, and that what he might say would have no influence on same, would have accomplished this. Whilst several opportunities arose to vouch such a statement, it is striking that the gardaí chose not to do so.
92. The interaction above mentioned leaves entirely open the possibility that the appellant believed that Ms. Gunnery’s release was dependent upon a confession. Simply because the gardaí rejected the timing sequence, but instead rightly insisted that he tell the whole truth, does not negate the distinct possibility that he may well have believed that Ms. Gunnery would be detained so long as he did not confess. Once this possibility realistically exists, it is immaterial that a contrary possibility may also be found, as in all such situations the inference most favourable to the presumption of innocence must be given to the accused. Without more, therefore, it is difficult to say beyond a reasonable doubt that the underlying inducement was not still operative.
93. Indeed, what transpired next could well be read to suggest that the inducement did produce the confession. Presuming the aide memoire accurately reflects what Mr. O’Donnell had been telling the appellant, Mr. Doyle had been advised by his solicitor, very shortly before the confession, to say nothing; in other words, to exercise his right to silence. Nonetheless, at the very outset of Interview 15, he delivered up to his interviewers for the first time a valuable piece of information: he acknowledged his presence at Clonmore on the night of the murder. Then, following a brief telephone consultation, his admitted his responsibility for the murder, and went on to give a detailed description thereof. If the appellant had not understood there still to be an inducement, or if the inducement had dissipated, it must be asked, in the face of advice to remain silent, why would he have capitulated so immediately and so fully as he did at the outset of Interview 15? This is all the more curious given the serious nature of the crime, the public backlash at the killing of an innocent man, the likely impact which a confession would have on his trial, and the consequences for the appellant if convicted.
94. The only alternative suggestion which is being offered to explain why Mr. Doyle spoke when previously he had been silent is the gardaí’s appeals to his humanity, morality and conscience, an explanation also advanced under the second limb of the McCann test (see para. 83, supra). The trial judge and the Court of Appeal accepted this as the true cause of the appellant’s confession, although such perhaps jars slightly with the trial judge’s description of the appellant as a robust person and no stranger to risk. This reasoning in my view is simply not plausible; more significant, however, is the fact that subject to the paragraph following, there is no evidence whatsoever to sustain such a finding. Such is in sharp contrast to the Pringle case, where the accused told the gardaí, before any admissions were made, that he knew that they could not legally do what they had threatened (para. 77, supra). Furthermore, in his direct evidence he very much repeated the same point to the court. It is therefore not difficult to see how dissipation was evidentially established in that case.
95. The handing over of the rosary beads is pointed to as an evidential manifestation of the “morality/humanity” theory of the confession. The reason why this act was not captured by the recording is that such equipment had been turned off as Interview 15 had ended. It is therefore immediately obvious that this occurred after the confession had been made. Such an act is not in any way inconsistent with the inducement theory; having confessed to this awful murder, it is no surprise that a person would show remorse or contrition. The fact that they do so after confession is scarcely suggestive that it was their own conscience or innate humanity which led them to break their silence in the first instance. It would be quite a different matter if that event had occurred prior to the confession. It did not, however.
96. I also reject any contention that dissipation can be inferred from the fact that the appellant did not immediately confess following one or other of the inducing statements. There may be circumstances where a temporal interval between inducement and confession is, of itself, a basis to find that the former did not cause the latter. However, I do not think that this is such a case.
97. The alleged inducements were put to the appellant in Interviews 11 (09:03 - 11:12), 12 (12:22 - 13:43), 13 (15:02 - 16:13) and 14 (17:32 - 18:35). The confession was made during Interview 15, held from 19:43 to 21:05, and evidently was made close to the outset of that session. Given the nature of detention in a Garda Station, with its attendant pressures and inherent coercive force, I do not think that the passage of time from a continuous series of inducements made in the morning, afternoon and early evening of the 26th February, 2009, could of itself sustain a dissipation finding by approximately 20:00 that evening; nor, as outlined above, do I believe that it was cured by his access to legal advice. Indeed, as the above analysis shows, the interactions referred to in the aide memoire credibly support an interpretation that the inducements so made were reaffirmed immediately prior to Interview 15, during Mr. O’Donnell’s visit to the station. I would therefore not infer dissipation from any temporal gap between inducement and confession.
98. Nor am I convinced that the fact of the appellant’s confession being somewhat controlled, in that he spoke only of his own involvement and did not implicate others, is inconsistent with the argument that the confession was involuntary. The mere fact that a person does not blab freely and reveal all they know about a crime is, without more, wholly irrelevant on the causation point; it is entirely plausible that a person in the appellant’s position might confess so as to avoid the punishment or gain the advantage held out to them by their interrogator, whilst at the same time being mindful of the perceived consequences of a fuller confession, not only for himself but also for another; in this instance, for example, for Ms. Gunnery upon her release.
99. Finally, there is perhaps more to be made of the fact that he did not inquire into whether Ms. Gunnery had in fact been released immediately following his confession, and if that had continued to be the situation it may indeed have been a weighty factor upon which appropriate inferences could be drawn. But that was not the situation. During Interview 16, which commenced at 22:09 that evening, the appellant stated “If I was thinking about myself, I wouldn’t have told you that I did.” He later asked the interviewing gardaí “Is Vicky still up there? [that is, in custody] Is she?”, and either having obtained no response or one considered inadequate, he continued “I am saying nothing if Vicky’s still up there”. Further relevant interventions on his part can be seen in later and subsequent interviews. Therefore, in my view, the fact that it was some two hours after the confession was made when he first inquired about Ms. Gunnery does not hold much significance on this particular point.
100. On this review, I must conclude that the DPP has not discharged the onus of proving beyond a reasonable doubt that the confessions were not procured by an inducement, be it offer or threat. Accordingly, as such were not made voluntarily, they were inadmissible and should have been ruled out. In these circumstances, whilst it remains a matter for the DPP, I am satisfied that this is an appropriate case for a retrial to take place.
101. Before leaving this first question, could I refer to para. 18 of the judgment of O’Donnell J., in which he criticises my assessment of the issues arising. His reading of this aspect of my judgment leads him to conclude that I have entirely abandoned Hay v. O’Grady [1992] 1 I.R. 210 and that, in effect, I have stood down the distinction between the role of the trial court and that of an appellate court. With the greatest of respect, this is a mischaracterisation of my script on this issue.
102. First, on each and every aspect of the inducement issue I have addressed this point: see paras. 71, 83, 84, 88 and 94. Secondly, the evidence which I have looked at on this matter is identified at para. 70, supra, and is set out under six different headings, not one aspect of which is referable, in any true sense, to the demeanour of witnesses, memory recall or recollection, nor does the question of credibility come into play. All of the critical evidence given was, in essence, documentary based, the meaning of which does not depend on either being a trial judge or an appellate judge.
103. Furthermore, Prong 1 of McCann calls for an objective assessment. Prong 2, in the absence of any evidence from Mr. Doyle or perhaps from his solicitor, becomes an inferential issue. In any event, I would be keen to see where the trial judge made any finding of fact, either in a primary sense or at all, on either of those prongs. In fact I believe that the better view is that no findings were made by him on either of these issues.
104. With regard to the third limb, namely, dissipation, the most critical evidence was what occurred during Interviews 11-14, and Interview 15, as well as the aide memoire. True, the trial judge felt that the confession resulted from pleas to Mr. Doyle’s better nature and humanity; however, there is simply no evidence upon which a finding of primary fact could be made to this end, so the view of the learned judge could not rest on such basis. Notwithstanding this, it might be said that by viewing the tapes he had an advantage over this Court in finding as he did: even so, such conclusion leaves standing, side by side with it, the possibility which I have articulated above. If such is at least equally sustainable, as I am satisfied that it is, then the appellant is entitled to the benefit of it as I have identified in para. 92, supra.
105. In these circumstances I am satisfied that I have remained faithful to Hay v. O’Grady.
106. Finally, on this aspect of the case, I have not lost sight of this appalling murder. However, I am reminded of what Henchy J. said in Hoey at p. 651:-
“The underlying principle would appear to be that, while it is a matter of public policy that those who have committed crimes should be apprehended, tried and convicted, the requirements of basic fairness, which necessarily underlie the administration of justice, demand that no accused person shall be convicted as a result of an incriminating statement made by him, unless the prosecution show beyond a reasonable doubt that the statement was voluntary, in the sense of representing the accused's own free will.”
Issue 2:
Whether the appellant was entitled to have a solicitor present during interrogation by the gardaí
107. The second issue which arises on this appeal also relates to the interviews of the appellant while in Bruff Garda Station. The question posed for consideration by the Court was:-
“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.”
108. In essence, the appellant seeks to assert a constitutional entitlement to have a solicitor present during questioning by An Garda Síochána. It is accepted that the appellant did not ask for a solicitor to be present in the interview room and that any such request would have been rejected, as the prevailing position at the relevant time was that there was no right to have a solicitor present during interview.
The Trial Judge’s Ruling:
109. The issue of whether there is an entitlement to the presence of a solicitor during police questioning does not appear from the trial judge’s ruling on the admissibility of the confessions to have had much prominence in the court of trial, although the appellant did raise it. The trial judge held that the appellant had adequate access to legal advice. He noted that the appellant had two consultations with his solicitor while in the Garda Station prior to making the admissions, and that he was represented by his solicitor in court when the application was made to extend his detention. Sheehan J. did not consider the length of either consultation to be relevant. He also held that the gardaí were entitled to continue interviewing the applicant after he had complained that a short phone call with his solicitor was insufficient and when his solicitor was expected to arrive at the station within the hour. Thus there was no breach of Mr. Doyle’s constitutional right to legal advice.
The Judgment of the Court of Appeal:
110. Equally, the Court of Appeal did not directly consider this issue in the same manner as this Court is mandated to do by virtue of the question upon which leave was granted. In fact it covered several matters which do not arise from that question. In any event, it considered the breach of the right of access to a solicitor in the context of oppression and fundamental fairness (DPP v. Shaw). It held that Mr. Doyle had access to his solicitor for as much time and on as many occasions as he or his solicitor requested. It thus found that there was no oppression.
111. Furthermore, the Court noted that the appellant’s solicitor did not ask to be present during garda questioning. The Court acknowledged, however, that any such request would have been refused and stated that it was not the understanding at the time that a lawyer was entitled to be present. The Court thus held that this “does not make the detention of the appellant retrospectively unconstitutional on the basis of a hypothetical refusal of a request that was not made.” It found DPP v. Gormley; DPP v. White [2014] 2 I.R. 591 (“Gormley and White”) to be of little relevance and considered the quoted European Court of Human Rights (“ECtHR”) jurisprudence to be wholly distinguishable from the circumstances of the present case. The Court further held that it was by no means clear whether the presence of a solicitor would have been of any great assistance to the appellant as the same questions would still have been put to him. The right to silence does not imply a right not to be asked questions.
112. Overall the Court considered the key point to be the fact that the interviews were video recorded and most were viewed by the trial judge to ascertain what went on during the course of such interrogation. The Custody Regulations were complied with and there was access to a solicitor. Thus the Court of Appeal concluded that the appellant had not established that the trial judge was in error in the conclusions he reached, or that he had misapplied the law.
Submissions of the Appellant:
113. The appellant submits that his access to a solicitor, throughout his period of custody but specifically prior to and during the critical Interview 15, was so restricted and perfunctory that it did not constitute “reasonable access”. At the heart of this requirement for reasonable access is the protection of the right not to self-incriminate. Access must be meaningful and here the appellant’s solicitor was not given sufficient information to protect his client’s rights. The only detail his solicitor was told regarding the allegations was the nature of the crime. It is further submitted that prior to his request for access on the 26th February, 2009, the appellant had had only 13 minutes of access to his solicitor, of which only nine were in person; this in the context of a 60-hour detention with 20 hours of interviews. The appellant also points out that his request to postpone the continuation of Interview 14 until he had had a proper consultation with his solicitor was ignored, and that further inducements, threats and pressure were applied over the remaining hour of that interview. It is submitted that such access as the appellant had with his solicitor was insufficient to offset the inequality between him and the experienced garda officers who interrogated him, and that the confession evidence should be excluded. This failure to ensure reasonable access resulted in a failure to ensure a trial in due course of law.
114. It is also submitted that Interview 14 was unlawful and constitutionally forbidden, and that the appellant’s position was irretrievably prejudiced following this interview. Such prejudice was not cured by the subsequent consultation with his lawyer. The appellant stated “I’ll answer your questions after I speak to my solicitor” during that interview, indicating that he had decided by that point to incriminate himself and to use his solicitor to broker the agreement.
115. In a related but in some ways distinct argument, and one which more directly addresses the point on which leave to appeal was granted, the appellant also contends that he had a right to have his solicitor present throughout the garda interviews. His underlying contention in this regard is that the presence of a solicitor in the interview room would have prevented the gardaí from pursuing certain lines of questioning which, it is suggested, reduced the appellant’s capacity to withstand pressure. He thus says that the Court should depart from its previous judgment in Lavery v. Member in Charge, Carrickmacross GS [1999] 2 IR 390 (“Lavery”). Furthermore, since the decision in Gormley and White, the Department of Justice has communicated with the Law Society indicating that defence solicitors may be present at interviews with suspects, but the appellant submits that this should be a constitutional right rather than a concession. The undisputed policy of the gardaí at the relevant time was to refuse to allow solicitors to be present during interrogation and thus the Court of Appeal was in error in considering that any refusal of access during interview was “hypothetical.” The right should not be dependent on a request being made and should be considered to have been denied unless the suspect was informed of his entitlement.
116. The appellant acknowledges that Gormley and White only establishes an entitlement to reasonable access to legal advice prior to interrogation, but argues that the entitlement to reasonable access also encompasses an entitlement to legal advice during garda interviews. It is submitted that many remarks made during the interview, inter alia concerning the appellant’s ex-girlfriend and his children, would not have been permitted had a solicitor been present, and that such comments were intended only to increase the psychological pressure on the appellant to confess. Thus it is submitted that the absence of a lawyer in the room gave the interviewers a free hand to raise matters of no relevance to the investigation in order to undermine the appellant’s right to silence. The appellant refers at length to Miranda v. Arizona 384 U.S. 436 (1966) (“Miranda”), which established the right to have counsel present during questioning in the US. It is submitted that many of the deceptive methods and stratagems of interrogation identified in Miranda were utilised against the appellant. Thus it is submitted that the exclusion of a solicitor from the interview process led to inequality between the parties, created inappropriate pressures, and resulted in manifest unfairness. The absence of a lawyer in the room meant a failure to redress the imbalance which existed between the appellant and his interviewers.
117. The appellant recognises that the ECtHR has not yet held that suspects in custody have an invariable right to the presence of a lawyer during questioning. However, he states that there are significant principles of general application in Magee v. UK (2001) 31 EHRR 35 (“McGee”), where it was held that denial of access to a lawyer for long periods is incompatible with the rights of the accused under Article 6. The appellant also refers at length to Salduz v. Turkey (2009) 49 EHRR 19 (Application no. 36391/02, judgment of the 27th November, 2008) (“Salduz”), another case where an admission was made without any access to a lawyer. The ECtHR in that case held that “access to a lawyer should be provided as from the first interrogation of a suspect by the police.” This case was considered by the UK Supreme Court in Cadder v. HM Advocate [2010] UKSC 43 (“Cadder”), which noted that the ECtHR is determined to tighten up the approach to duress or pressure of any kind being applied to a suspect. The UK Supreme Court also noted that the ECtHR understands the privilege against self-incrimination to be primarily concerned with respecting a suspect’s will to remain silent in the face of questioning.
Submissions of the Respondent:
118. The DPP submits that the appellant had substantial and unrestricted access to legal advice. It is pointed out that the appellant had repeated access to his solicitor when and for as long as he liked. It is acknowledged that the appellant requested more time during Interview 14 following a two minute telephone call, and that the interview proceeded regardless, but it is submitted that he did not make any admissions during this time and that he was given a 20 minute consultation before Interview 15. The respondent also submits that the question of having a solicitor present in interview does not arise. Reasonableness of access to a solicitor only arises where access is denied, restricted or limited in some way; where a suspect has had all the access he sought, the question does not arise at all. No complaint regarding access to a solicitor was made at any stage over the course of the investigation. Gormley and White is distinguished on the basis that in that case important investigative steps were taken between the request for access and the granting of access. As the appellant made no request for a lawyer to attend during questioning, and had access to a lawyer immediately before and during the relevant interview, it is submitted that the question of whether a suspect is entitled to have a lawyer present during questioning does not arise on the facts of the case - nor did it arise in Gormley and White.
119. The respondent also submits that as a fundamental matter of basic fairness a solicitor was not required to be present during Interview 15. The fact that an accused is entitled to legal advice and representation throughout trial does not necessarily lead to a requirement for the presence of a lawyer in interview, as not all rights available at trial apply before trial. The appellant has submitted that the presence of a lawyer would have led to the interviews being conducted differently, but the appellant has in fact never complained about the conduct of the interviews, which were held by the trial judge to be professional and courteous. It is also submitted that the appellant had the opportunity to consult with his solicitor immediately prior to the confession and that the presence of the solicitor would have added nothing.
120. Furthermore, the learned trial judge was perfectly placed to assess the conduct of the interviews and to assess whether the appellant was in control throughout. The respondent submits that it is clear that the appellant’s solicitor was fully apprised of the possibility of a confession and it appears that he advised the appellant not to confess. It is also pointed out that the appellant sought to use his solicitor to broker an unlawful deal with the gardaí. It is submitted that, in all the circumstances, no case has been made out that establishes any unfairness to the appellant from the absence of a solicitor at the fifteenth interview, or indeed at any other interview. The DPP additionally submits that even if the right to have a lawyer present during interview exists as a matter of Irish law, the appellant by his conduct waived that right or failed to invoke that right.
121. Furthermore, it is submitted that the authorities cited by the appellant do not support the extension of the right to legal advice in the manner contended by the appellant. The respondent refers to the Salduz case and submits that it requires only that a suspect should have legal advice, but not that a lawyer must be present during questioning. The respondent refers also to the Lavery decision, which is consistent with this position. The respondent submits that the Cadder decision also requires only access to a lawyer before questioning. Finally, in relation to Miranda, it is submitted that the legal, factual and cultural context of that decision bear no relation to the regulation of custodial interrogation in modern Ireland. That judgment was concerned with the dangers of incommunicado interrogation, a consideration which simply does not apply in this jurisdiction. Finally, it is submitted that even if the confession was obtained in circumstances of unconstitutionality, the same was not conscious and deliberate but derived from inadvertence or subsequent legal developments; the confession should thus have been admitted in evidence in accordance with DPP v. J.C [2015] IESC 31.
Decision:
122. In Mr. Doyle’s submission on this issue he makes two arguments in addressing both aspects of the question set out at para. 107, supra: first, he says that he did not have reasonable access in accordance with the law as currently prescribed; and, secondly, as a related but distinct point, he asserts a right to have had a solicitor present with him during the interview process. His first complaint is based largely on a number of requests, which he made during Interview 14, to the effect that the previous contact he had had with his solicitor was inadequate and that he wished to see him again. Despite such requests, the interview continued; this, it must be said, was a less than desirable situation.
123. In a series of cases from The People (DPP) v. Madden [1977] I.R. 336 to The People (DPP) v. Creed [2009] IECCA 95, and indeed continuing to date, it was established that a person detained in custody for questioning has a right of reasonable access to a lawyer. The early case law was uncertain as to the precise status of such right and for the most part was preoccupied with what was “reasonable” in the circumstances, and whether or not a request for such access had to be made. The former issue was conclusively determined in People (DPP) v. Healy [1990] 2 I.R. 73, with the majority of the Supreme Court finding that “the right of access to a lawyer must be deemed to be constitutional in its origin, and that to classify it as merely legal would be to undermine its importance and the completeness of the protection of it which the courts are obliged to give” (Finlay C.J., p. 81). Accordingly, its setting is undeniably within the constitutional framework.
124. Individual circumstances were considered in cases arising during the period which followed Healy, which gave the courts an opportunity to tease out the scope and extent of such right, as well as the consequences of its breach or violation. Save for the latter point, it is unnecessary to further dwell on the case law, it being sufficient to simply remain conscious of this background. For present purposes, therefore, the Irish authority most decisively in play on the key point arising is the decision in DPP v. Gormley; DPP v. White [2014] 2 I.R. 591 (“Gormley and White”).
125. Before looking at that case, however, I should say that I have found nothing to support Mr. Doyle’s first line of argument and I am satisfied that the evidence falls significantly short of establishing any breach of the reasonable access right, as previously understood in the case law
126. In any event, the major debate was not on the first strand of the appellant’s argument. The real point at issue, as outlined in the certified question, is whether, where reasonable access to advice has been afforded, a solicitor’s attendance at the interview process is nevertheless one as of right, or is by concession. Whilst the existing domestic law is relevant as a significant footprint in this context, it does not and has not decided this particular issue. Moreover, much of the ECHR jurisprudence, including Salduz, has as its backdrop the failure or refusal to provide or allow any access before interrogation leads to admissions. That is not the background to this case, where such advice was available and availed of.
127. Notwithstanding such, however, this ground of appeal raises squarely an issue which has been looming since at least the decision in Gormley and White, if not indeed for significantly longer than that. Both judgments in that case adverted to the likelihood of this point coming before the Court before long. First, the brief facts of that case.
128. Mr. Gormley was convicted of attempted rape and received a sentence of six years imprisonment with five years post-release supervision. The essential evidence which secured his conviction was that contained in an admission which he had made whilst in custody following arrest and detention. Prior to any police interview he had requested access to a nominated solicitor, whom the gardaí attempted to contact. It was a Sunday, however, and it took some time. Whilst there was no question of a culpable delay, nonetheless the interrogation commenced prior to the solicitor’s arrival and the inculpatory statement was obtained prior to any consultation between solicitor and client. He sought to have the confession excluded at trial and on appeal, but was unsuccessful in that regard.
129. The factual situation of Mr. White was somewhat different. Like Mr. Gormley, he had requested access to his solicitor, who some thirty minutes after the initial contact telephoned back confirming that she was coming “immediately”. Before her arrival, however, a blood sample, a buccal swab from the mouth and a hair sample were taken from Mr. White under the Criminal Justice (Forensic Evidence) Act 1990. Mr. White had no objection to this occurring. However, at trial and again on appeal he unsuccessfully sought to have such evidence excluded on the basis that it had been obtained prior to any consultation with his solicitor.
130. The commonality between both cases, which travelled in tandem to this Court, was the argument that before any interrogation commences or any forensic samples are taken, it is a constitutional right of a suspect in custody to have the benefit of legal advice.
131. In the Court’s judgment, delivered by Clarke J., a distinction was made between the nature of the evidence obtained in both cases. It was held that access to legal advice was classically designed to deal with a situation whereby an admission or confession would be obtained, which may not have been the case if such access had been provided; however, the situation in respect of forensic material was different, in that the results of any analytical sample could not differ regardless of whether legal advice was or was not received. Accordingly, the submission asserted on behalf of Mr. Gormley was accepted; that made on behalf of Mr. White was rejected. Other than outlining this conclusion, it is unnecessary to explore more fully the entirety of the judgments as delivered, it being sufficient to concentrate on what both Hardiman J. and Clarke J. had to say touching on the issue presently under consideration.
132. In his judgment, Clarke J. said:-
“75 The first real question of principle [is] whether the entitlement to a trial in due course of law, guaranteed by Article 38.1 of Bunreacht na hÉireann, encompasses an entitlement to have access to legal advice prior to the conduct of any interrogation of a suspect arrested and/or prior to the taking of any forensic samples from such a suspect. If that proposition is accepted at the level of general principle then many more questions of detail would, of course, arise. Questions such as … the extent to which a lawyer is entitled to be present during the questioning … and, doubtless, many others would arise. By no means do all of those issues arise on the facts of these cases. …
82 However, I am persuaded that the point at which the coercive power of the State, in the form of an arrest, is exercised against a suspect represents an important juncture in any potential criminal process. Thereafter the suspect is no longer someone who is simply being investigated by the gathering of whatever evidence might be available … It seems to me that once the power of the State has been exercised against the 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 The State (Healy) v. Donoghue [1976] I.R. 325 applies from the time of arrest of a suspect … 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 European Court of Human Rights and by the Supreme Court of the United States.
93 … [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.” (Paragraph numbers as per the Irish Reports)
Likewise, Hardiman J., in his concurring judgment, noted that:
“5 For many years now judicial and legal authorities have pointed to the likelihood that our system’s option for the very widespread questioning of suspects who are held in custody for that purpose, was very likely to attract a right on the part of such suspects, not merely to be advised by lawyers before interrogation, but to have lawyers present at the interrogation, and enabled to intervene where appropriate. This has now come to pass in countries with similar judicial systems: see the developments surveyed by Mr. Justice Clarke, and also under the European Convention on Human Rights (“ECHR”), to which Ireland is a signatory and which it has incorporated to a limited extent in Irish law by the European Convention on Human Rights Act 2003.
It is notable, however, that Mr. Gormley has not asserted that right to its full extent but has asserted only a right to have a lawyer to advise him, in custody, before the questioning starts. Manifestly, however, it will not be long before some person or other asserts a right to legal advice in custody on a broader basis. I say this in explicit terms in order that this may be considered by those whose duty it is to take account of potential developments.”
133. Given the terms on which leave was granted to appeal to this Court, it would appear that this is the very case anticipated by the learned judges, at least in respect of whether there is a right to have a solicitor present during garda questioning. The DPP has argued, however, that the question of having a solicitor present in interview does not in fact arise on the facts of this case: this submission must be rejected for the several reasons set out in this part of the judgment dealing with the second issue.
Recent Domestic Developments:
134. At the outset I should mention some practical developments which have occurred in the interim and which, although not decisive from a legal and constitutional perspective, are nonetheless of high significance. In May, 2014, almost certainly in response to the Gormley and White judgment in March of that year, and perhaps in anticipation of the likely outcome of whatever case squarely raised the issue now under consideration, the DPP issued a direction to the Commissioner of An Garda Síochána to the effect that a request by a suspect detained in a Garda Station to have a solicitor present during interview should be acceded to. Following on from this, the Department of Justice issued a circular to the Law Society on the role of solicitors in Garda Stations, which was said to include, inter alia, presence and participation during questioning.
135. In recognition of these developments, An Garda Síochána published, in April, 2015, its Code of Practice on Access to a Solicitor by Persons in Garda Custody. It is striking to note the following from p. 8 of that document: “[i]n light of the judgment in Gormley it is necessary to allow a solicitor to be present at interview if requested by the suspect. Furthermore, the Director of Public Prosecutions has advised that all suspects detained in Garda stations for questioning be advised, in advance of any questioning, that they may request a solicitor to be present at interview.” This passage introduces section 10 of the informal code, which provides for the presence of a solicitor during interviews. This section sets out such details as the seating arrangements of the solicitor, the role of solicitors during interviews and the circumstances in which a solicitor may be removed from an interview. In December, 2015, the Law Society issued its Guidance for Solicitors Providing Legal Services in Garda Stations. In addition to setting out the Society’s view on the role of solicitors during interview, it also offers its perspective at pp. 13-15 on many of the other matters in the Garda Code of Practice. Not surprisingly, given the competing interests at issue, the two guides take divergent views and approaches on certain issues. Whilst a common approach must still be finalised, nonetheless there has been no suggestion that these developments have had any adverse impact on the effectiveness of custodial interrogations.
136. Of course, such was not the practice at the time of Mr. Doyle’s detention and questioning. It is also evidently clear that neither document has any legal effect in the context of which we speak, and that in reality they are akin to a practice direction from each body to its own members. Accordingly, the existing discretionary practice of allowing solicitors to sit in on interviews does not amount to any sort of recognition by the DPP or An Garda Síochána that this is a constitutional right or entitlement of a suspect whilst in garda custody; this is evident from the DPP’s submissions on this issue. However, although this newly-established practice is not definitive in the legal analysis of whether such a right exists, nonetheless the shifts which I have described, being both potent and influential, are significant and should not be underestimated. Reality, as it now stands, must be faced up to.
137. By the same token, should the Court find that the right of a suspect to have a solicitor present during interview is grounded in the constitution, as a necessary requirement, inter alia, for a trial in due course of law and as a recognition of the privilege against self-incrimination, the fact that such developments have occurred does not of itself adequately safeguard this right; a mere concession by the gardaí, which may be granted or withheld at will, is no substitute for constitutional recognition of a right, if such be the case.
Miranda v. Arizona 382 U.S. 436:
138. The appellant has quoted extensively from the majority judgment in this case which, when delivered, was indeed ground breaking and historic. It famously required the police to give specific warnings and/or information to a suspect as a condition of custodial interrogation. The one relevant to this case was expressed by Chief Justice Warren as follows:-
“The need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.”
The Supreme Court, in the intervening period, has created several exceptions which in effect disapply the rule in certain circumstances; nonetheless, whilst the decision may have lost some of its energy, it still remains a viable and powerful source of suspect protection.
139. It is abundantly clear, however, from a reading of the majority’s decision, that their opinion was primarily motivated by concerns regarding the then prevalent practice of incommunicado interrogation. When such methods were looked at in conjunction with the general conditions of detention then prevailing, and the documented instances of other highly objectionable police practices, the decision must be seen in the context of a particular legal, social and historical culture which is highly distant from that now - or indeed ever - existing in this jurisdiction.
140. I therefore reject any suggestion that the questions and comments put by the gardaí to Mr. Doyle can be likened to the more nefarious practices described in the Miranda judgment. Whilst I have found that some of these comments amounted to improper inducements, nonetheless, provided that oppression is avoided (DPP v. Shaw) and that the line between voluntariness and involuntariness is not crossed, this judgment should not be read as suggesting that robust questioning or strategic interviewing is impermissible. As indicated in McCann, police interrogation is not and does not have to be a genteel encounter.
141. A further factor in distinguishing Miranda is that the incommunicado interviews at issue in that case were not subject to video or audio recording. The introduction of such practice in this jurisdiction is a welcome safeguard of the rights of a suspect during the interview process, and it also helps to ensure effective judicial oversight of that which occurs in the interview room. The time has long since passed that the Irish courts will overlook a failure to record an interview which is then sought to be used against the suspect at trial, save perhaps in the most extreme and urgent of excusing circumstances. In the absence of the protection which the recording of interviews provides, and in light of the other practices resorted to at the time, the presence of a lawyer was adjudged necessary.
European Court of Human Rights Case Law:
142. Of potentially much greater persuasive value is the contemporary jurisprudence of the European Court of Human Rights, which for both brevity and convenience can have as its starting point the case of Salduz v. Turkey (2008) 49 E.H.R.R. 421.
Salduz v. Turkey:
143. The appellant relies a good deal on this case in support of the proposition that there exists a right to have a solicitor present during questioning. For certain this is an oft-quoted decision when it comes to the parameters of the right to legal assistance under Article 6 of the European Convention on Human Rights (“the Convention”), the relevant provision of which is Article 6 § 3(c) thereof. This reads as follows:
“3. Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”.
144. The relevant paragraphs of the judgment, laying out the general framework of this right, are those at paras. 50-55. Although lengthy, these should be quoted, as the case reviewed a number of the Court’s previous decisions, and in effect rationalised what the position then was:-
“50. The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 - especially paragraph 3 thereof - may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions … As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 …
51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial …
52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. …
53. These principles, outlined in paragraph 52 above, are also in line with the generally recognised international human rights standards … which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. …
54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial … At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings … 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 … 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 …
55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6 … The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.” (Emphasis and ellipses are my own).
145. I accept the respondent’s submission that these paragraphs do not establish a right to have a lawyer present during questioning. The emphasised passages illustrate that the right specifically at issue was one of access to a lawyer, so that legal assistance could be obtained, at a point prior to any interrogation of the suspect. As the facts of that case indicate, Mr. Salduz, who was 17 years old at the time, made confessions in circumstances where he had not yet had any access to a lawyer whatsoever. It is apparent that this was the basis for the Court’s finding that Article 6 § (3) (c) had been violated, rather than the fact that there was no lawyer present during questioning. The express language of the Court and the facts of the case do not permit any such principle to be deduced or clearly inferred therefrom. Thus while Salduz was rightly read as supporting Mr. Gormley’s arguments in Gormley and White, it does not follow that it directly supports the additional safeguard being argued for by Mr. Doyle in this case. Equally, nothing in the comprehensive analysis of the Sadluz judgment by the UK Supreme Court in Cadder v. HM Advocate [2010] UKSC 43; 2011 SC (UKSC) 13 changes my reading of that judgment in this regard. That case is considered in greater detail below (paras. 159-160, infra). Finally, the decision in McGee does not advance the situation any further.
More Recent Jurisprudence from the Court:
146. Salduz, however, is far from the end of the line as far as the European Court’s evolving interpretation of the right to legal assistance in Article 6 § (3) (c) is concerned. In Dayanan v. Turkey (Application no. 7377/03, Judgment of the 13th October, 2009), a judgment of the Second Section of the Court, it was held that:
“30. In relation to the absence of legal assistance in police custody, the Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial …
31. The Court is of the view that the fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody pre-trial detention.
32. In accordance with the generally recognised international norms, which the Court accepts and which form the framework for its case-law, an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned … 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.” (Emphasis my own).
As the law in Turkey then stood, it was not legally possible to afford the applicant any legal assistance whilst in police custody; accordingly, the Court held that such a systemic restriction, of itself, constituted a violation of Article 6 of the Convention, notwithstanding the continued silence of Mr. Dayanan during this period.
147. In Navone and others v. Monaco (Application Nos. 62880/11, 62892/11 and 62899/11, Judgment of the 24th October, 2013), the First Section of the Court held, at paragraph 79, that:
“79. La Cour souligne à ce titre qu’elle a plusieurs fois précisé que l’assistance d’un avocat durant la garde à vue doit notamment s’entendre, au sens de l’article 6 de la Convention, comme l’assistance « pendant les interrogatoires » (Karabil c. Turquie, no 5256/02, § 44, 16 juin 2009, Ümit Aydin c. Turquie, no 33735/02, § 47, 5 janvier 2010, et Boz, précité, § 34), et ce dès le premier interrogatoire (Salduz, précité, § 55, et Brusco, précité, § 54).”
I understand the reference to “pendant les interrogatoires” to meaning “during interrogations”, and that the effect of the paragraph is that Article 6 requires the assistance of a lawyer during custodial interrogation.
148. In the case of A.T. v. Luxembourg (Application no. 30460/13, Judgment of the 9th April, 2015), the Fifth Section of the Court, having set out much the same general framework as in Salduz and Dayanan, stated that:
“65. The Court has had occasion to reiterate that, first of all, a person “charged with a criminal offence” within the meaning of Article 6 of the Convention is entitled to receive legal assistance from the time he or she is taken into police custody or otherwise remanded in custody and, as the case may be, during questioning by police or by an investigating judge …” (Emphasis my own)
149. Finally, based on the available translation of the judgment in Simons v. Belgium (Application no. 71407/10, Judgment of the 28th August, 2015), the Court in that case referred to another decision in the French language, Brusco v. France (Application no. 1466/07, Judgment of the 14th October, 2010), stating that:
“30. … In the Brusco judgment … the Court added that the right of a person in police custody to be assisted by a lawyer from the beginning of that measure, and during the interview itself, is all the more important where he or she has not been notified by the authorities of the right to remain silent.”
150. I would summarise the main points as follows:
(1) The basic purpose and intent of Article 6 is to ensure that a person obtains a fair trial before a competent Tribunal on any criminal charge. To that end such a person is entitled to have access to and avail of the services of a lawyer; in essence, he or she has the right to be “effectively defended” by a lawyer, which is a root pillar of safeguarding the fairness of trial.
(2) Such a right, which must be functionally effective, is not restricted to the courtroom aspect of the trial. Its practical implementation commences as and from the point of incarceration and continues until the conclusion of the criminal process.
(3) The underlying reason why access should commence as specified is that a detained person may be particularly vulnerable during the initial stages of the police questioning, and therefore legal assistance is necessary so as to prevent self-incrimination, in circumstances other than those resulting from the free and voluntary choice of the detained person.
(4) Evidence which may be gathered during police interrogation is always important in determining the ultimate charge, and, if admissions or confessions are involved, can be such as to almost foreclose on any effective defence at the trial itself.
(5) In addition, the case law displays an ever increasing willingness to stretch the compass of protection to whatever is necessary to ensure the effective implementation of this principle. Thus, where appropriate, the lawyer should have the capacity to preserve, enhance and deal with each and every fundamental aspect of the intended and available defence. He or she should be in a position, without undue restriction, to discuss the case, to collect evidence favourable to his client, to prepare that client for questioning, to support the accused in distress and to check on the conditions of his detention. All such matters, and indeed many others, are inherent in such right.
(6) In the passages quoted at paras. 146-149, supra, it seems clear that the judgments have made express reference to a suspect’s right to have a lawyer present during the interview process. Thus on one reading it could be said that this right has already been clearly established. However, I am not aware of any decision reflecting the particular facts of Mr. Doyle’s situation (para. 126, supra) in which the Court has definitively declared the existence of such right.
(7) These rights can be waived.
Directive 2013/48/EU
151. Note should also be taken of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 ‘on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty’. Of course, as acknowledged at Recital 58, Ireland, like the United Kingdom, did not take part in the adoption of this Directive and therefore is not bound by it or subject to its application. Nonetheless, the Directive is of relevance insofar as it informs what the position of other EU Member States is or will soon be on this very question.
152. An essential aim of the Directive, per recital 12, is to lay down minimum rules, inter alia, concerning the right of access to a lawyer in criminal proceedings. It thereby seeks to promote the application of the Charter of Fundamental Rights of the EU, in particular Articles 4, 6, 7, 47 and 48 thereof, by building upon Articles 3, 5, 6 and 8 ECHR, as interpreted by the European Court of Human Rights. Of particular importance for the present case is Recital 25, which provides as follows:-
“Member States should ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when they are questioned by the police or by another law enforcement or judicial authority, including during court hearings. Such participation should be in accordance with any procedures under national law which may regulate the participation of a lawyer during questioning of the suspect or accused person by the police or by another law enforcement or judicial authority, including during court hearings, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. During questioning by the police or by another law enforcement or judicial authority of the suspect or accused person or in a court hearing, the lawyer may, inter alia, in accordance with such procedures, ask questions, request clarification and make statements, which should be recorded in accordance with national law.” (Emphasis added)
153. In order to reflect in a substantive and binding way the terms of this Recital, Article 3(3)(b) of the Directive provides as follows:-
“3. The right of access to a lawyer shall entail the following:
…
(b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned”. (Emphasis added)
This measure had a transposition deadline of the 27th November, 2016
154. It is therefore apparent that Ireland may soon be in a somewhat incongruous position in the EU context if a right for a lawyer to be present during questioning is not recognised in this jurisdiction. This, of course, results from the government’s decision, generally applicable in the area of freedom, security and justice, to participate in such matters only via an opt-in mechanism, which it has decided not to exercise in this case. In making this point I do not intend to reflect on its competence to so act. Respecting that position, as I do, it therefore seems to me that such a right should only be recognised in this jurisdiction if there is a compelling rationale within the Irish legal order for so holding. Irrespective of that rationale, however, the Directive illuminates the directional focus of other Member States, and offers further evidence of a prevailing trend amongst fellow members of the Union.
155. Also worth noting is a further point made in A.T. v. Luxembourg, discussed above, in which the European Court of Human Rights assessed whether there had been a violation of the right to consult with a lawyer prior to questioning. In so doing, it took account of Article 3(3)(a) of Directive 2013/48/EU, which addresses that very point. This is at least indicative, at a most general level, of the possibility of Article 3(3)(b) also being utilised in this way.
The Committee for the Prevention of Torture
156. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), in its 21st General Report (CPT/Inf (2011) 28), addressed the right of access to a lawyer as a means of preventing ill-treatment. In the course of its Report it stated, at para. 24, that:
“The right of access to a lawyer should also include the right to have the lawyer present during any questioning conducted by the police and the lawyer should be able to intervene in the course of the questioning. Naturally, this should not prevent the police from immediately starting to question a detained person who has exercised his right of access to a lawyer, even before the lawyer arrives, if this is warranted by the extreme urgency of the matter in hand; nor should it rule out the replacement of a lawyer who impedes the proper conduct of an interrogation. That said, if such situations arise, the police should subsequently be accountable for their action.”
157. It can fairly be presumed, and certainly hoped, that the particular evils which that Committee guards against are confined to history in the Irish context, at least insofar as police interrogation techniques are concerned. However, it should be noted that the Committee’s recommendations and findings are addressed to all Member States equally. It is no answer to a failure to provide minimum safeguards for a State to say that the particular measure is unnecessary in its jurisdiction because of the unlikelihood of a violation of Article 3 of the Convention occurring during the course of police questioning. To the extent that the CPT acknowledges any exception, such is based on the exigency of the situation, rather than the availability of other safeguards, no matter how ostensibly adequate these may be.
The Position in the United Kingdom
158. In England and Wales, a detainee who has been permitted to consult a solicitor shall be entitled on request to have the solicitor present when they are interviewed, unless a designated exception applies (para. 6.8 of the Revised Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, Police and Criminal Evidence Act 1984 (PACE) - Code C). Guidance Note 6D to that Code of Practice provides, inter alia, that:
“The solicitor’s only role in the police station is to protect and advance the legal rights of their client. On occasions this may require the solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens a prosecution case. The solicitor may intervene in order to seek clarification, challenge an improper question to their client or the manner in which it is put, advise their client not to reply to particular questions, or if they wish to give their client further legal advice.”
The position in Northern Ireland is very much the same under the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Police & Criminal Evidence (Northern Ireland) Order 1989 - Code C) (see para. 6.7 thereof), with the revised Code applying as from the 1st June, 2015.
159. As regards UK case law, I do not believe that the decision in Cadder v. HM Advocate, referred to by each of the parties in their submissions, adds greatly to the precise point in issue. As mentioned above, it contains a thorough analysis of Salduz and some of the subsequent case law, as well as the implications for Contracting States of the recognition, at ECtHR level, of the right to consult a solicitor prior to questioning. However, the issue for consideration by the Court in Cadder was the prevailing situation in Scotland at the time, which permitted the reception into evidence of confessions made by a detainee during an interview by the police prior to him or her having had access to legal advice. Whilst it is also the case that such person did not have access to legal advice during questioning, the core point was more akin to the one raised in Gormley and White and Salduz than that currently under discussion. I therefore could not accept any view that by not declaring the existence of the right in issue in this case, the Court was by implication suggesting that such a right did not exist; that matter did not arise for consideration.
160. Against that limitation it is of particular interest to note that the Cadder judgment would seem to have spurred considerable developments on this front in Scotland and the position there, as of the passing of the Criminal Justice (Scotland) Act 2016, is that there is now a right to have a solicitor present while being interviewed by a constable about an offence which the constable has reasonable grounds to suspect the person of committing (section 32(2)). This right can be waived, but otherwise the interview must not commence prior to the solicitor being present, subject to the usual ‘exceptional circumstances’ proviso.
Summary of Movement:
161. As appears from this brief and, let it be said, quite limited review of movement external to this jurisdiction, there has been a significant shift in the acknowledgment of this right across other diverse legal regimes. When the steps taken by the major domestic players, almost certainly in response to Gormley and White (March, 2014), are factored in, the current situation providing for the right or entitlement to have a lawyer present during interrogation has developed as follows:-
International
• The ECtHR jurisprudence, even from the starting point of Salduz, has moved considerably since then, including through the Dayanan v. Turkey (2009), Navone v. Monaco (2013), A.T. v. Luxembourg (2015) and Simons v. Belgium (2015) judgments;
• The CPT publishes its 21st General Report (2011);
• Directive 2013/48/EH is adopted (October, 2013);
• In the United Kingdom/Northern Ireland, the most recent PACE Code C applies as from June, 2014/June, 2015, respectively;
• In Scotland, the right to have a solicitor present during questioning is put on a statutory footing (2016).
National
• The DPP issues a direction advising the Commissioner of An Garda Síochána to permit the presence of solicitors during interview (May, 2014);
• The Department of Justice issues a circular to the Law Society (2014);
• The Commissioner publishes the Garda Code (April, 2015);
• The Law Society issues guidance for its members (December, 2015).
Conclusion
162. The prevailing situation under Irish law, however, and notwithstanding these developments, remains that as set out in Lavery v. Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390. In the course of his judgment, O’Flaherty J. stated that:-
“Counsel for the State submitted to the High Court Judge that in effect what Mr. MacGuill was seeking was that the garda should give him regular updates and running accounts of the progress of their investigations and that this was going too far. I agree. The solicitor is not entitled to be present at the interviews. Neither was it open to the applicant, or his solicitor, to prescribe the manner by which the interviews might be conducted, or where.” (pp. 395-396 of the report) (Emphasis added)
This is a well-established position, and the undisputed policy of An Garda Síochána at the time of Mr. Doyle’s arrest was to refuse any request for a solicitor to be present during interview. Indeed, it was conceded in evidence that had Mr. Doyle requested this, it would have been denied. So, between 1999 and 2014 both law and practice coincided; since Gormley and White, however, practice has led the way, without any undue disruption to the interrogation process, and in my view it is now time that the law keep pace with it. It would be a first, to my knowledge, if this progressive step was to be curtailed or reversed by case law.
163. For the reasons herein given, I have decided that the constitutional entitlement to a trial in due course of law entails the right of a person, detained in a Garda Station, to have a solicitor present during questioning if he or she so requests. This conclusion is based on a consideration of the events, factors and prevailing trends outlined in this judgment, as well as a firm belief that such a step is a necessary but proportionate one in furthering the protection or safeguards which such persons should enjoy during custodial detention. The time has now come for a clear acknowledgment that such a right exists and I so hold via the same constitutional route as was used by the Court in Gormley and White (see pp. 627-628 of the Report)
164. In addition, as with several other rights enjoyed by those subject to interrogation, it is an indispensable requirement of the effective use of such rights that those in control or in charge of a person’s detention inform that person, in a timely and obvious way, of the existence of such a right. If the same should be exercised, then the rationale of the Gormley and White decision as applying to Mr. Gormley would follow.
165. Such a right exists in the United States, in England and Wales, in Scotland and in other EU Member States, at least by virtue of Union law in light of Directive 2013/48/EU, and represents the position of the Council of Europe as is clearly evident from the CPT Report mentioned above. Whilst this international trend cannot be overlooked, given its clear and widespread recognition that such an entitlement is a necessary further step for the protection of those being interrogated, nonetheless that of itself would not be a decisive reason for an Irish court to establish or declare the existence of such a right in this jurisdiction. This is for a number of reasons, including the variances which exist in the respective cultural, historical and legal landscapes of different countries, particularly those relative to pre-trial safeguards of suspected persons. These differences, which cannot easily be adjusted so as to provide for any direct comparison, may readily explain the discrepancies in approach which many countries have shown to this issue. Nonetheless, one cannot but be ever so mindful of the influence of this international backdrop in considering the underlying question.
166. There is of course one source, in part external, of particular relevance in the comparative analysis above mentioned, which is the jurisprudence of the European Court of Human Rights. For many years the Irish courts have accorded high persuasive value to the judgments of that Court, judicial notice of which must now be taken pursuant to section 4 of the European Convention on Human Rights Act 2003. As such, its case law is of considerable influence and importance to the point under consideration on this aspect of the appeal.
167. Whilst it appears that the point at issue has not been as precisely defined as above described (para. 126, supra), or ruled upon in that way (see summary at para. 150, supra), nevertheless, I believe that on balance the existing case law of the ECtHR is already to the effect that the Convention does in fact require the presence of a lawyer during questioning. The judgments quoted at paras. 146-149, supra, and many others, all make express reference to the existence of such a right in clear-cut and deliberate terms. To the reservation that this position has not been definitively spelled out, I believe that if the settled and current trend of dealing with the availability of legal protection should continue, then it is more likely than not that the outcome of any case where the precise point was directly in issue would support the conclusion which I have arrived at. Of course this anticipation may be wrong, but, even if so, the existing state of jurisprudence is of such force in this regard that such of itself is highly influential in calling for such a right. I should add that I do not see how the establishment of such a right would be fitting in a civil law system but less so, or perhaps even not at all, in our common law system. Be that as it may, it is necessary to outline why in my view the criminal justice system in this jurisdiction should now have within in, at a constitutional level, the right as identified.
168. In our system, certainly since 1984, the investigation of crime involves the widespread arrest and detention of persons, many of whom may never be charged with the underlying or indeed any offence. Although this sits somewhat uncomfortably with the right to liberty and perhaps the presumption of innocence, it is nevertheless seen as a necessary requirement of the public interest in the detection of crime. Whilst this course has been adopted by the legislature and must be respected, so also must the legislature protect suspects’ rights.
169. When first introduced, the maximum period of detention under the Criminal Justice Act 1984 was 12 hours, that being an initial period of 6 hours, subject to a further 6 hours being authorised by a garda officer not below the rank of superintendent in accordance with section 4(3)(b). Prior to this the Offences Against the State Act 1939 provided for a maximum period of detention of 48 hours under section 30, with the initial 24 hour detention being capable of a 24 hour extension. Otherwise than in respect of the offences covered by that Act, however, the 1984 Act was to precipitate a major change in the manner in which crimes are investigated in this state. Since then, a number of other pieces of legislation have been enacted which give rise to a power to detain a person for questioning; equally, the maximum periods of such detention have increased since 1984 also. Assuming the statutory requirements for extensions are satisfied in a given case, the maximum periods of detention are as follows: under the 1984 Act itself, it is now 24 hours (section 4(3)(bb), as inserted by section 9(c) of the Criminal Justice Act 2006); under the 1939 Act, the maximum is now 72 hours (section 30(4) as substituted by section 10 of the Offences Against the State (Amendment) Act 1998); section 42 of the Criminal Justice Act 1999 provides for up to of 24 hours detention; most strikingly, both the Criminal Justice (Drug Trafficking) Act 1996 and the Criminal Justice Act 2007 currently provide for that a person may be detained in a Garda Station for up to 168 hours, that is to say, 7 days (section 2 and section 50, respectively).
170. Thus, as the instant case partly demonstrates, a person can now be held in custody purely for interrogation purposes, that is, without charge, for days at a time, up to one full week. Again, as this case shows, during that period one can be interrogated multiple times, either by the same interviewing officers or by different teams. Such a process may commence relatively early in the morning, continue throughout the day and, as both Interviews 10 and 14 show, end only late in the evening. Whilst at all stages the individual in question has a constitutional right of reasonable access to his solicitor, there can be long periods where, for a variety of reasons, there is no contact between solicitor and client. It therefore must be asked why such lacuna, which can have most grave consequences for the person in question, should not be removed from interrogation practice.
171. For a great number of people this may be an entirely new experience, with the surrounds of a police station, never mind the atmosphere of an interview room, presenting a daunting and frightening situation. Whilst hardened criminals may not be as affected, the preservation of their rights is no less important if the legitimacy of this aspect of the investigation of crime, conducted by an institution as critical as the gardaí, is to enjoy the widespread support which is so necessary even to sustain the very rule of law itself.
172. Both the substantive criminal law and its attendant procedural landscape have continued to grow ever more complex, with many of its provisions having a direct feed into the custodial interrogation part of the process. Examples which readily come to mind are the inference provisions of the Criminal Justice Act 1984, (sections 18 and 19), which have undergone substantial amendment in the Criminal Justice Act 2007 (sections 28 and 29). Section 18 refers to a person’s failure or refusal to account for objects, substances or marks on his person, on his clothing or otherwise in his possession, or in any place where he or she might have been during a specified period, while section 19 relates to a person’s failure or refusal to account for his presence at a particular place at or about a particular time. Indeed, section 30 of the 2007 Act also inserted a new section, section 19A, into the principal Act; section 19A may apply to a person who, during detention, has failed to mention a fact which subsequently he wishes to rely upon in his defence. One can add several other provisions with like or similar effect, such as section 2 of the Offences Against The State (Amendment) Act 1998, as amended, which applies to a person’s failure to answer any question put to him which is material to the investigation.
173. In all situations where either one or more of these provisions are in play, inferences adverse to the accused may be drawn. Such may have potentially dramatic consequences at his trial, depending on the person’s response, or non-response, as the case may be, to the questions asked. That being so, and given that the provisions are complex and difficult to operate from even a skilled practitioner’s or an experienced garda member’s perspective, it seems self-evident that the availability of ongoing legal advice may be of critical importance to the detained individual.
174. Whilst judicial overview is an important tool in this regard, it suffers by its very nature from an inherent weakness in that in its examination of an issue it can only react to abusive behaviour. It is incapable of achieving what is readily capable of prevention in the first instance. Thus the former prohibits, whereas the asserted right prevents, abuse.
175. This case is a good illustration of the point. The inducement issue is an attempt by Mr. Doyle, on a retrospective analysis of what took place, to have the confessions rendered inadmissible, whereas if a solicitor had been present, it is highly likely that in the first instance no offending offers or promises would have been made, thus eliminating even the possibility of raising such an argument. This would be entirely more desirable than that which is presently available.
176. No organ of the State should in any way be concerned with the practical implementation of rights vested in each individual at the highest level of our legal hierarchy, or have any objection to an authorised practice which has the effect of giving fuller expression to deep-rooted, long-established and cherished rights such as the right to silence and the right not to incriminate oneself, to mention but two. Equally so in respect of another longstanding and related rule, namely, that only confessions which are voluntary are admissible in evidence. How could legitimate objection be taken to a solicitor intervening during the interview process in a timely but not disruptive manner to remind his client, and indeed the interviewing team, of these constitutional rights? Any rule of law which, even in part, and certainly if in large measure, depends on a lessening or reducing of such rights in order to secure a conviction should have no place in our society. The State, with the armoury and array of resources at its disposal, should pride itself on only obtaining convictions where the preceding process has been conducted, and the material evidence obtained, in full and due compliance with such rights.
177. The benefit of the recognition and realisation of such a right, of course, is that any resulting confession or admission will truly be reflective of a free will, and the product of a free choice. This is all the more important as interviewing techniques become more subtle and more psychologically orientated.
178. I do not believe that the present safeguards sufficiently address the inequality which now exists in the interview room and which can so threaten the rights being presently discussed. For certain there are other protective measures in place in this jurisdiction which differentiate the present Irish context from, say, the prevailing position in the United States pre-Miranda; I am referring, primarily, to the requirement of audio and video recording of interviews, and the resulting judicial scrutiny and oversight of the conduct of interrogating gardaí, even if such conduct is rarely - if ever - reviewed at a regulatory level. Even so, I am not convinced that this ex post facto supervision is an adequate surrogate for the presence of a solicitor at the interview itself.
179. The cardinal rule relating to the requirement of voluntariness of confessions is so deeply entrenched in this jurisdiction as to hardly merit restatement; it goes to the essence of the privilege against self-incrimination. Given the centrality that questioning has assumed in the evidence-gathering process, and in light of the critical importance routinely attached to confessions at trial, I take the view that stronger safeguards are necessary to fully vindicate the privilege against self-incrimination of the interviewed suspect. In light of the wide range of factors which potentially vitiate the voluntariness of an inculpatory statement - threats, promises, oppression, unfairness and more - often involving, as they do, a marginal judgement call either way on the point, I believe that what is herein asserted is an essential protection of that privilege. Regardless of the degree to which a solicitor takes part in the process, I am convinced that even a mere presence would have a telling impact on both the client’s position and the conduct of the interrogation. Those who suggest otherwise fail to appreciate the chilling effect which detention and interview has on a great number of people. Lawyers experienced in criminal practice will readily vouch to the tension and highly-charged atmosphere of the interview process.
180. In the other judgments delivered by members of this Court, assessment of the practical consequences in this case of the absence of a solicitor from the interview has seemed to focus for the most part on Interview 15. When viewed through this lens, and bearing in mind that the appellant did have access to legal advice immediately prior to, and indeed during, that interview, it has been said that even to the extent that there may have been a breach of the right to have a solicitor attend at interviews, the same was not causatively linked to the ultimate confession. Indeed, it is hard to argue but that Mr. O’Donnell had more input, in terms of advising the appellant, in Interview 15 than he would have had if he had been in the room. This approach, however, presupposes that Interview 15 is the crucial interview in respect of which the impact of a solicitor’s absence must be assessed.
181. From my perspective, this is not so: the critical interviews during which the presence of a solicitor would have made a difference are the preceding ones, Interviews 10-14. It was during this period that a solicitor could have made a practical impact by timely but not intrusive interventions. This is fully, or at least in part, borne out by the majority judgments which accept that the subject statements put to Mr. Doyle during these interviews were objectively capable of being viewed as inducements. Even if not satisfied on the other strands of McCann, surely the recognition that improper inducements had been held out in the first instance serves to illustrate the important role that a solicitor has to play, and the impact which his absence from the interview room may have. Whilst it is unnecessary to enter a full discourse on what precisely the solicitor’s role may be, it is noteworthy that both the Garda Code and the Law Society’s Guidance each acknowledge a right to intervene or object when that fine line between robust interrogation and improper questioning has been crossed. In this regard, the fact that the trial judge found the interviews to have been conducted in a professional and courteous manner does not lead to the conclusion that the presence of a solicitor may not have made a meaningful difference. A solicitor can guard against more than outright intimidation or threats, and a polite and amiable interview laden with improper promises could be as destructive of the free will protected by the privilege against self-incrimination as an oppressive interrogation.
182. The admissibility of confessions has assumed an almost transcendent importance in many modern trials, this because of the sheer weight and probative value of such admissions, which are so frequently alleged to have been involuntarily made. In this regard, rather than having contentious, costly and time-consuming legal argument after the fact over whether this comment overbore the will of the suspect, or that question rendered the confession involuntary, the admissibility of these central pieces of evidence will be much more readily established where the highest protection has been afforded to the rights of the suspect during the interview process.
183. I therefore believe that in order to fully protect and vindicate the rights of a suspect, it is necessary that there be a solicitor present during garda interrogation. This is of such fundamental importance that, in my view, it is a requirement of the constitutional imperative that a criminal trial be conducted in due course of law.
184. It should be said that attendance at interview by the solicitor should not lead to the stymieing of evidence gathering in the course of criminal investigations. Robust and strategic questioning remains an integral part of that process and there should be no expectation that such presence will interfere with the effectiveness of this important function. Whilst his role at interview is to represent his client, it is not to obstruct the proper and lawful questioning of suspects. The framework in place since the enactment of the Criminal Justice Act 1984 has elevated detention and questioning to a position of prominence, which must be respected; so, whilst it is important that the same be conducted with full regard for the rights of the suspect, this is not to suggest that An Garda Síochána should be impeded in the carrying out of its duties.
185. The underlying question, set out at para. 107, supra, in essence asks this Court whether the sitting in on interview by a solicitor is a right or is a concession. That issue has been addressed and answered by what is above stated. The question, which it must be assumed was carefully worded and narrowly focused by the Court when granting leave, did not involve and does not require this Court to go any further than what I have said. In particular, it is no part of the Court’s function to establish any sort of general framework within which such a right should be exercised, or otherwise to define the parameters of how to give full expression at a general level to such right.
186. There are several good reasons for this, starting with this Court’s established jurisprudence of deciding only the issues before it. As experience has shown, subsequent cases may identify other issues related to or connected with what has previously been decided. If such should arise, particularly with any frequency, a body of case law will emerge over time covering perhaps many aspects of the exercise of the underlying right. It is only in this way that the courts can be involved in the incremental development or clarification of an issue such as that arising in this case.
187. In general, a breach of the right to have a solicitor present during questioning will almost inevitably attract consequences for the admissibility of the resulting evidence and/or impact on the dual requirement of a fair trial and one in due course of law. However, because a retrial has been ordered as a result of the first ground of appeal addressed in this judgment, it is unnecessary to further explore these complex and difficult issues. I have therefore deliberately refrained from a high-level discussion on such matters, and likewise on issues such as waiver, estoppel or locus standi arising out of Barry Doyle’s failure to request the solicitor’s presence in this case. However, it must be said that I have grave reservations about DPP v. J.C. [2015] IESC 31 having any role in this regard: certainly I could not agree that Mr. Doyle should be deprived of the benefit of the establishment of such a right in his case and the consequences which might inure for him as a result. Whatever may be the position of others, a situation I expressly reserve my views on, I cannot see how DPP v. J.C. can be used to neutralise the appellant’s personal position.
188. Whilst the right which I suggest exists has been solely attached to Article 38 of the Constitution, this is reflective of how the argument was presented and the submissions made. In so doing, I am not necessarily, nor indeed at all, to be taken as suggesting that the right may not be found in, nor its breach have consequences pursuant to, other constitutional provisions.
189. In this context some debate was had as to the precise time, point or event in the investigative process at which Article 38 rights apply. Where detention leads to interrogation which results in a confession, grounding the essential evidence upon which a conviction depends, there can in my opinion be no debate but that such rights apply; such is the case in Mr. Doyle’s situation. Finally, I should say for the avoidance of doubt that, in the situation as described, the overall fairness of the proceedings as a whole has seriously been compromised (see Ibrahim and Others v. The United Kingdom (Applications nos. 50541/08, 50571/08, 50573/08 and 40351/09), Judgment of the 13th September 2016, at paras. 250 et seq.).
190. Accordingly, whilst I am satisfied to recognise the right in question, it is not for the courts to determine how best it should be given effect to, either in the general context in which it will apply, or in the individual situations in which it will be exercised. If such a course was thought desirable, then that perhaps may be a matter for intervention by the Oireachtas. If this was to take place, it is likely that it would entail a delicate balancing of many important considerations, reflecting, on the one hand, the desirability of effective law enforcement and the efficient functioning of the justice system and, on the other hand, the non-negotiable respect for and adherence to the rights of suspects. One would also expect that the precise role of the solicitor during interview would be looked at in a manner which, inter alia, facilitates his essential function of safeguarding his client’s rights, but at the same time without affording him a free reign to impede the questioning process without good cause. Beyond that it is inappropriate to say more, as it is certainly not the courts’ role to prescribe what responsibilities the solicitor may perform, just as it is not for An Garda Síochána or the Law Society to determine this point. Whether and in what way the legislature might intervene is of course a matter for it, at least in the first instance.
191. The recognition of such a right is of course of importance at a constitutional level, but its anticipated conception had been well flagged in Gormley and White. With commendable foreseeability, some of the main actors involved - in fact, two of the most critical - have already taken steps to facilitate its effective functioning at a practical level. Therefore, the further changes which may be required should not be unduly burdensome.
Issue 3:
Whether the appellant can rely on the decision in Damache
192. The final issue on which leave was granted was set out thus:
“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.”
193. On this issue I agree in general with the conclusion reached by the other members of the Court and would add only that I do not think that any fundamental injustice or unfairness arises out of holding that the appellant is not entitled to rely on the Damache decision. I would accordingly dismiss this ground of appeal.
Conclusion
194. I would allow the appeal on the inducement issue, and consequently I would set aside the conviction and order a retrial. On the second issue addressed in this judgment, regarding the right to have a solicitor present during interview, I would allow the appeal and make a declaration reflecting the existence of such right. On the third issue, namely, the Damache point, I would dismiss the appeal.
