O'Brien -v- DPP, [2005] IESC 29 (2005)

Docket Number:82/03
Party Name:O'Brien, DPP
Judge:McCracken J.



Murray CJ

Denham J

Geoghegan J

Fennelly J

McCracken J


Thomas Anthony O'Brien Appellant

ANDThe Director of Public Prosecutions Respondent

Judgment of Mr Justice McCracken delivered the 5th day of May 2005


This is an appeal from the Court of Criminal Appeal pursuant to s.29 of the Courts of Justice Act 1924. The Court of Criminal Appeal certified as a question of law of exceptional public importance the following:-

Whether, when a trial Judge finds that an accused person, who has been arrested and detained pursuant to s.4 of the Criminal Justice Act 1984 has been consciously and deliberate deprived of his constitutional right of access to his solicitor while so detained, the trial Judge should, as a matter of law, rule that the entire period of the detention thereafter is thereby rendered unlawful and rule as therefore inadmissible in evidence all inculpatory statements made at any time in the course of the period of detention or whether only such statements as were made prior to the person being afforded access to a solicitor should be excluded.

The Appellant was arrested on 1 pm on 3rd March 1999 pursuant to the provisions of s.4 of the Criminal Justice Act 1984, which permitted his detention for a period of six hours with the possibility of an extension for a further six hours. He was detained at Pearse Street Garda Station in Dublin City Centre. At 3.40 pm the Appellant requested the services of a solicitor, although not of any particular solicitor. The gardaí recommended a Mr Gaffney, whose offices were in Tallaght, who was a busy sole practitioner and who primarily practised in the Tallaght area. The gardaí did contact Mr Gaffney, but due to his commitments he did not attend at Pearse Street Garda Station until 8.22 pm. At this stage the Appellant's detention had been extended for the further six hour period. During the period between the Appellant's request for a solicitor and the arrival of Mr Gaffney the Appellant was questioned on at least two occasions.

When Mr Gaffney arrived, he spoke to the Appellant for approximately half an hour and left at 8.50 pm. The Appellant was immediately interviewed by the gardaí again for a period which lasted up to 11.25 pm, with a twenty minute break.

The learned trial Judge ruled that the Appellant's constitutional right to be advised by a solicitor had been violated in that the gardaí concerned must have known that by selecting Mr Gaffney, given the circumstances of his practice, a considerable delay would inevitably arise. Accordingly, the statements made by the Appellant prior to the arrival of Mr Gaffney were ruled to be inadmissible. That ruling is not in issue in this appeal. The only issue for decision in this regard relates to the admissibility of the statements made by the Appellant after he had consulted with Mr Gaffney.

While there are a number of authorities relating to the right of a person in custody to consult a solicitor, the particular situation where there has been an unreasonable delay in the arrival of the solicitor requested, which was foreseeable, and the issue as to whether statements made subsequent to such arrival are admissible seems to be undecided.

In the People (DPP) v. Healy [1990] 2 IR 73, Finlay CJ said at page 81:-

The undoubted right of reasonable access to a solicitor enjoyed by a person who is in detention must be interpreted as being directed towards the vital function of ensuring that such person is aware of his rights and has the independent advice which would be appropriate in order to permit him to reach a truly free decision as to his attitude to interrogation or to the making of any statement, be it exculpatory or inculpatory. The availability of advice from a lawyer must, in my view, be seen as a contribution, at least, towards some measure of equality in the position of the detained person and his interrogators.

Viewed in that light, I am driven to the conclusion that such an important and fundamental standard of fairness in the administration of justice as 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.

While this is a clear, and in my view absolutely correct, finding that the right to legal advice is a constitutional right, Finlay CJ went on to find, on the same page:-

The vital issue which arises, therefore, if a breach of the right of access to a solicitor has occurred as a result of a conscious and deliberate act of a member of the Garda Siochana, is whether there is a causative link between that breach and the obtaining of an admission.

This would seem to imply that there may be circumstances...

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