Statement in breach of rules admissible where substance of rights preserved

The People (at the suit of the Director of Public Prosecutions) (prosecutor/ respondent) v Michael J. Darcy (defendant/ applicant).

Court of Criminal Appeal - Conviction for murder - Application for leave to appeal - Constitutional right to legal advice - Statutory right - Safeguards in regulations and Judges Rules - Number of gardai questioning during interview - Discretion of trial judge - Question put by jury - Constitution of Ireland 1937, Article 40 - Offences Against the Person Act (1861), section 18 - Criminal Justice Act 1984 (No 22), sections 4, 5(2), 7(3) - Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987 (SI No 119 of 1987), articles 8(1)(b),(c)(ii), 9(1)(a), 12(3), 12(6) - Criminal Justice Act 1964 (No 5), section 4(1) - Offences Against the State Act 1939 (No 13).

The Court of Criminal Appeal (before Mr Justice Keane, Mr Justice Budd and Mr Justice Moriarty ); judgment delivered 29 July 1997.

Where there is no evidence of a deliberate and conscious attempt by gardai to deprive a person in custody of reasonable access to legal advice, statements given by an accused should not be ruled out on the grounds that his constitutional rights were violated.

Where regulations were not observed yet the substance of the applicant's rights was preserved, in the absence of any evidence of intimidation, statements obtained during such interviews are admissible.

The Court of Criminal Appeal so held in refusing the applicant leave to appeal against conviction for murder.

Gregory Murphy SC and Shane Murphy BL for the prosecutor/ respondent; Anthony Sammon SC and Iseult O'Malley BL for the defendant/ applicant.

Mr Justice Keane, delivering the judgment of the court, said that the applicant sought leave to appeal against his conviction for murder by a jury on 19 December 1995.

The applicant who was 16 at the time pleaded not guilty to the charge of murdering Robert Kelly in the Tallaght neighbourhood on 3 March 1985. At the trial, statements made by the applicant during interviews with the gardai were ruled admissible and the applicant subsequently changed his plea to one of guilty of manslaughter. The jury returned a verdict of guilty of murder. The applicant sought leave to appeal from the Court of Criminal Appeal. Three grounds were outlined in support of the application. Firstly, counsel for the applicant submitted that in interviewing the applicant in the absence of a solicitor the applicant's constitutional right to reasonable access to legal advice was violated by the gardai. His statutory right to advice under section 5 of the Criminal Justice Act 1984 was also breached. Furthermore, the regulations made thereunder in relation to the questioning of minors in custody had not been observed. In reply, it was submitted on behalf of the respondent that the gardai had gone to considerable lengths to ensure the applicant had legal advice and in no way attempted to obstruct or deny his rights. Interviewing did not commence until an appropriate adult was present.

The second ground relied on related to the number of gardai who took part in the interview of the applicant. It was admitted by the gardai that contrary to article 12(3) of the 1987 regulations three members had questioned the applicant when the regulations allowed for a maximum of two. As the case against the applicant depended crucially on the admissions allegedly made to the gardai by the applicant while in custody and in light of the fact that the applicant was a minor with low IQ, it was urged on his behalf that the trial judge should have exercised his discretion to exclude the evidence obtained during the flawed interview.

On behalf of the respondent it was urged that, while it was accepted there had been a breach in the regulations, there was no suggestion the questioning was at any stage oppressive or unfair. An appropriate adult was present throughout and the applicant was not invited to sign the memorandum of the interview until such time as a solicitor was present to advise him.

The third ground urged in support of the application for leave to appeal concerned a request by the jury for clarification of the meaning of the words "serious injury" in section 4(1) of the Criminal Justice Act 1964.

Mr Justice Keane in his judgment set out fully the facts of the case and the details of the circumstances of the interview by the gardai of the applicant. In relation to the first ground of appeal the court recognised the constitutional right of a person in custody to reasonable access to legal advice enunciated by the then Chief Justice, Mr Justice Finlay, in The People (DPP) v Healy [1990] 2 IR 73. This right was also protected by statute and both the 1987 Regulations and the Judges' Rules afforded protection to persons in custody. Having considered the relevant provisions and the various protections contained therein, Mr Justice Keane concluded that there was nothing in the nature of a conscious and deliberate act on the part of the gardai to deprive the applicant of his right of access to a solicitor. A solicitor was not obtained until midday on Saturday but given that the applicant was detained in the early hours of Saturday morning, and the gardai had made a number of unsuccessful attempts to contact various solicitors, this could not be considered a denial of his constitutional rights. The applicant was not interviewed until the arrival of an adult and he and the adult were afforded an opportunity to be alone as requested. No written statement was taken from the applicant until a solicitor had arrived and he was not invited to sign the record of his answers until then. Mr Justice Keane concluded that the gardai had acted perfectly properly in the circumstances.

Mr Justice Keane said that while it was clear the 1987 regulations were breached by the gardai in having three members interview the applicant instead of two, the fact that there was no suggestion on behalf of the applicant that the questioning was unfair entitled the trial judge to exercise his discretion and admit the statements of the applicant. Mr Justice Keane said that while there was no evidence of detailed compliance with the requirements the substance of the applicant's rights was preserved.

The third ground of appeal, said Mr Justice Keane, concerning the question put by the jury to the trial judge was not sustainable. The charge to the jury by the trial judge on the question of intent was impeccable and the reply given to the question raised by the jury could not be faulted in any way.

Solicitors: Chief State Solicitor for the (prosecutor/ respondent); Grainne M. Malone & Co (Dublin) for the defendant/ applicant.