Buck v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 13 July 2016
• Neutral Citation: [2016] IEHC 402
• Docket Number: [2016 No. 14 SSP],[2016 No. 14 SS P]
• Court: High Court
• Date: 13 July 2016

[2016] IEHC 402

THE HIGH COURT

McDermott J.

[2016 No. 14 SS P]

IN THE MATTER OF AN APPLICATION

PURSUANT TO ARTICLE 40.4.2 OF BUNREACHT NA hÉIREANN

BETWEEN

ANTHONY BUCK

APPLICANT

AND

THE GOVERNOR OF PORTLAOISE PRISON

RESPONDENT

Constitution – Art. 40.4.2 of the Constitution of Ireland – Crime & Sentencing – S. 4 of the Criminal Justice Act 1984 – Unlawful detention – Admissibility of statement made before access to solicitor – Breach of fair trial – Exclusion of unlawfully obtained evidence

Facts: Following the dismissal of the appeal of the applicant who had been convicted for murder and sentenced to life imprisonment by the Court of Appeal and further dismissal of appeal by the Supreme Court on the issue of admissibility of incriminating evidence before the arrival of the solicitor, the applicant had filed an application under art. 40.4.2 of the Constitution of Ireland challenging the validity of his detention in the light of the decision of the Supreme Court in The People (DPP) v Gormley and White [2014] IESC 17, that a detainee had a right to access to a solicitor before interview.

Mr. Justice McDermott held that the applicant was lawfully detained in the custody. The Court held that the facts of the present case differed significantly from the aforesaid case of Gormley as in Gormley, the conviction at trial was based on the incriminating evidence, which was obtained from the applicant prior to seeking the advice of the counsel while in the present case, the applicant gave no such evidence before the arrival of his solicitor. The Court held that though taking statements from the accused prior to seeking assistance of counsel was constitutionally forbidden, yet in order to challenge the legality of detention, a causal link between breach of right to access to a solicitor and obtaining of the admission by the gardai needed to be established. The Court held that there was no point in giving constitutional recognition to the right to access to a lawyer as the fundamental purpose of detaining the detainee was to interview him as a relevant suspect before legal advice was obtained. The Court held that the applicant made a statement even when his solicitor asked him not to make a statement. The Court held that the trial of the applicant was not influenced by any of the material obtained prior to his meeting with the solicitor.

JUDGMENT of Mr. Justice McDermott delivered on the 13th day of July, 2016

1 This is an application by Anthony Buck who was convicted of murder and robbery following a three week trial before the Central Criminal Court (Quirke J.) on 20th February, 1998. The application is made in the form of a letter with an accompanying statement of facts and submissions. There is no sworn affidavit grounding the application and the court is not furnished with copies of any orders or warrants issued, the transcript of the trial, any papers in relation to the appeal or the grounds of appeal or orders and judgment made on appeal. It has long been the case that a complaint may be made in an informal way by letter to the High Court alleging that a person is being unlawfully detained. Once the complaint is made the court is obliged to consider and rule upon it in open court ( The State (Cremin) v. Cork Circuit Judge (unreported Supreme Court 8th February, 1965 per Ó Dálaigh C.).

2 Following his conviction the applicant was sentenced to imprisonment for life in respect of the murder conviction and twelve years imprisonment in respect of the robbery charge. He subsequently appealed to the Court of Criminal Appeal. That appeal was dismissed but a point of law of exceptional public importance was certified for the consideration of the Supreme Court pursuant to s. 29 of the Courts of Justice Act 1924 on the 10th December, 1999. The certified question was as follows:

'In circumstances where a member of An Garda Síochána arrests a person suspected of a serious crime (in the instant case murder) at a time and in circumstances where it is likely that there will be difficulties in getting a solicitor for the arrested person should such be requested; and

where the arrested person is detained in a garda station pursuant to the provisions of s. 4 of the Criminal Justice Act 1984 and does in fact request access to a solicitor and is questioned for substantial periods of time by relays of gardai in relation to the offence for which he was arrested before he has access to a solicitor;

whether the conduct of the gardai in so questioning the arrested person before he has access to a solicitor but after he has sought access constitutes a conscious and deliberate violation of the arrested persons constitutional right of access to a solicitor (not being a violation which has extraordinary excusing circumstances) rendering inadmissible in evidence any statement, omissions or confessions which may thereafter be made by the arrested persons;

notwithstanding that the arrested person may after the said questioning have a visit from a solicitor (while still in s. 4 detention) and make the statement, admissions or confessions after such visit from the solicitor.'

3 The facts of the case are set out in the judgment of the Supreme Court ( The People (DPP) -v- Buck [2002] 2 I.R. 268). Following his arrest at 3:15pm on a Sunday, the applicant was detained under s. 4 of the Criminal Justice Act 1984 and continuously questioned by teams of gardai with some interruption until the arrival of his solicitor at 8:33pm. During the course of these interviews he was questioned about the murder of the late David Nugent and denied any involvement in the attack which led to his death. At approximately 5:29pm one of the interviewing gardai when leaving the interview room informed another on his way in that the applicant wanted a solicitor and that he did not want to answer any questions until he had spoken to a solicitor. A number of attempts were made to contact a solicitor unsuccessfully until the services of a solicitor were procured for the applicant at 8:33pm.

4 The solicitor who attended and had a consultation with the applicant gave evidence in the course of his trial which is quoted in the judgment of Keane C.J. He stated that in the course of the consultation the applicant confirmed that he had not made a statement and that he was familiar with garda stations having had a number of previous convictions. He told his solicitor 'I know all about making statements'. He also stated that he was not involved in the matters alleged; he was pleading not guilty and would not be making a statement. When told that he did not have to make a statement he is said to have replied 'I know all about that'. The applicant gave a different account of this interview stating that the solicitor informed him that there were already witnesses against him and that the best thing to do was to make a statement. The trial judge in his ruling on the issue stated that he accepted the evidence of the solicitor as to the interview.

5 At 9:30pm the applicant indicated that he would make a statement and having been cautioned a statement was committed to writing and finished approximately one hour and a half later.

6 The learned chief justice considered the decision of The People (DPP) v. Conroy [1986] I.R. 460 and noted that Walsh J. (dissenting) stated at p. 479 that if a solicitor is sent for in response to a request by a detained person, but the members of An Garda Síochána decided to press ahead with the interrogation before the arrival of the solicitor, that procedure should be regarded as constitutionally forbidden. However, the learned chief justice was satisfied that the question as to whether inculpatory statements made by a person in custody who is subjected to questioning by a garda after he has requested the presence of a solicitor but before the solicitor arrives are admissible had not been authoritatively resolved.

7 The court considered the earlier Supreme Court decision in The People (DPP) v. Healy [1990] 2 I.R. 73. In that case a solicitor who had been retained by a detainee's family arrived at a garda station and sought an interview with them. He was informed that the defendant was being interviewed and despite his protests was told that he would have to wait. He was eventually permitted to see the defendant by which stage the taking of an inculpatory statement had been completed. The trial judge ruled the statement inadmissible because the defendant had been denied a right of instant access to his solicitor without any excuse and the court could not be satisfied that the incriminating admissions contained in the statement were made prior to the denial of that right of access. The court concluded that the failure by the gardai to permit the solicitor to see the defendant as soon as he arrived at the station was a deliberate and conscious violation of his constitutional right of access to a...