Director of Public Prosecutions -v- Gormley, Director of Public Prosecutions -v- White, [2014] IESC 17 (2014)

Docket Number:107/11, 92/12
Party Name:Director of Public Prosecutions, Gormley, Director of Public Prosecutions -v- White
Judge:Clarke J.
 
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THE SUPREME COURT[Appeal No: 107/2011]

Denham C.J.

Murray J.

Hardiman J.

McKechnie J.

Clarke J.

Between/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONSProsecutor/Respondentand

RAYMOND GORMLEYAccused/Appellant

[Appeal No: 92/2012] THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONSProsecutor/Respondentand

CRAIG WHITEAccused/Appellant

Judgment of Mr. Justice Clarke delivered on the 6th March, 2014.

1. Introduction

1.1. It is now almost 40 years since this Court made clear that the requirement in Article 38.1 of the Constitution that a person should not be tried on any criminal charge save in “due course of law” meant more than mere technical compliance with the letter of the law. The Court held that due course of law meant that a trial was required to be conducted in accordance with the concept of justice, that the procedures applied be fair, and that the person accused be given every opportunity to put forward a defence to the charges. That decision of this Court was in State (Healy) v. Donoghue [1976] I.R. 325. The case involved a young man who had been separately convicted in the District Court on two occasions and sentenced to terms of imprisonment. He had not been legally represented at either of his trials. In one case, a District judge had given Mr. Healy legal aid under the then existing statutory scheme. However, due to what might best be called an industrial dispute involving the lawyers involved in that scheme, no representation was available. In the second case, Mr. Healy had not sought legal aid. Ultimately, this Court held that Mr. Healy’s trial in both cases could not be said to have been conducted in due course of law because, having regard to the seriousness of the charges which he faced and his impecuniosity, his trial without the State affording him assistance in obtaining legal representation breached basic principles of fairness.

1.2. In these two cases, this Court is concerned with at least the same broad area of constitutional law. No question of legal assistance being provided by the State arises as such. However, the core issue which does arise is as to whether a person arrested on foot of serious criminal charges is entitled to the benefit of legal advice prior to the commencement of any interrogation and prior to the taking of any samples for the purposes of forensic examination. One of the key questions which arises is as to whether the broad concept of constitutional fairness in the criminal process, as identified in State (Healy) v. Donoghue, requires such representation.

1.3. As will be addressed further in this judgment, the question of the recognition of such a right has been a real possibility for some time. European and other major courts have, in one way or another, recognised a right of that type. The possibility that Bunreacht na hÉireann might properly be interpreted as conferring such a right could not, for the reasons analysed in this judgment, come as a surprise to anyone with an interest in this area, least of all the authorities.

1.4 While it will be necessary to go into the facts of both cases in due course, it is appropriate to start by giving a broad outline of the issues which arise.

2. A Broad Outline

2.1. Both of the defendants (respectively “Mr. Gormley” and “Mr. White”) were convicted of serious criminal offences. On the 7th November, 2007, Mr. Gormley was convicted in the Central Criminal Court of attempted rape, contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. He was later sentenced on the 15th January, 2008, to 6 years imprisonment dating from 14th January, 2008, with 5 years post release supervision. Mr. White was convicted at the Central Criminal Court on the 29th July, 2009, of murder and was sentenced to mandatory life imprisonment. Both separately appealed to the Court of Criminal Appeal.

2.2. In the Court of Criminal Appeal (see Director of Public Prosecutions v Raymond Gormley [2009] IECCA 86), Mr. Gormley sought to challenge his conviction on the ground that the trial judge erred in admitting evidence of statements allegedly made by him to prosecuting gardaí. He argued, first, that there had been an unlawful entry into his dwelling and that, as a result, his arrest was in breach of his constitutional rights. As a result, it was said that any evidence obtained thereafter was inadmissible. Second, he contended that the relevant interviews were conducted in breach of his constitutional right of access to a lawyer. In respect of the first contention, the Court of Criminal Appeal found that Mr. Gormley had by his words cured any unlawful presence of the gardaí and thus his arrest was deemed lawful. On the other contention, the Court was “satisfied that it was open to the learned trial judge to conclude that the attempts by the Gardaí to make contact with the solicitor nominated by the applicant are bona fide and reasonable”, citing their “diligence and resourcefulness in locating the solicitor nominated by the applicant.” Mr. Gormley’s application for leave to appeal was, therefore, dismissed.

2.3. Mr. White sought leave to appeal his conviction on a number of grounds (see Director of Public Prosecutions v Craig White [2011] IECCA 78). Of particular relevance to this appeal is ground 3 by which it was suggested that the trial judge erred in ruling that the taking of samples from him, pursuant to the Criminal Justice (Forensic Evidence) Act 1990, was lawful, because of what was said to be a breach of his right of reasonable access to his solicitor. The Court of Criminal Appeal, having considered all of the surrounding circumstances, including the fact that there was an indication that a solicitor was coming to the station “immediately”, concluded that “[i]n the absence of any refusal to give the samples, and having regard to the fact that the applicant consented to the taking of samples (his reservations remaining secret and undisclosed to the gardaí until the trial), it seems difficult to criticise the learned trial judge for finding that the applicant was not deprived of reasonable access to his solicitor.” Thus, Mr. White’s application for leave to appeal was also rejected.

2.4. Thereafter both sought leave to appeal further to this Court under s. 29(2) of the Courts of Justice Act 1924 (as substituted by s. 22 of the Criminal Justice Act 2006). This subsection provides:

“(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.”

2.5. On the 16th February, 2011, the Court of Criminal Appeal certified the following questions as questions of exceptional importance in Mr. Gormley’s case:

“1. Does the constitutional right of access require that commencement of questioning of a detained suspect (who has requested a solicitor) be postponed for a reasonable period of time to enable the solicitor who was contacted an opportunity to attend at the garda station?

2. Is the constitutional right of access to legal advice of a detained suspect vindicated where members of An Garda Síochána make contact with a solicitor requested by the suspect but do not thereafter postpone the commencement of questioning for a reasonable period of time in order to enable the named solicitor to actually attend at the garda station and advise the suspect?”

2.6. On the 16th February, 2012, a s. 29 certificate was given by the Court of Criminal Appeal in Mr. White’s case in respect of the following question:

"In circumstances where a person is in custody and has requested a solicitor, are members of An Garda Síochána, for the purpose of ensuring protection of rights of an accused, obliged not to take, or to cease if they have commenced taking, any forensic samples until such time as a person who has sought access to a solicitor, and that solicitor has indicated he/she will attend, has had actual access to that solicitor."

2.7. A subsequent application was made to this Court on the 7th March, 2012, whereby two further grounds were permitted to be argued in Mr. White’s case. These were:

“1. Must a warrant issued by a District Court Judge, pursuant to s. 42 of the Criminal Justice Act, 1999, show on its face compliance with the statutory conditions in s. 42 of the Criminal Justice Act, 1999?

2. Is a fingerprint expert witness entitled to state his opinion as being one of which he has “no doubt” when stating that a fingerprint found on an item of evidence matched that of the accused.”

However, it must be noted that these additional issues only arise for consideration in the event that the appeal is unsuccessful on the initial certified issue.

2.8. As appears from the above, there are, however, differences between the two cases. In the case of Mr. Gormley, the evidence which was admitted at his trial concerned statements made by him while being questioned by members of An Garda Síochána after he had requested the presence of a solicitor but before that solicitor arrived. It is important to record at this early stage that, having regard to the fact that the request was made on a Sunday, the solicitor concerned had attended with commendable expedition and there was not, nor could there have been, any suggestion of any delay. Mr. Gormley’s case, therefore, concerns a statement made after a request for a solicitor but before the solicitor concerned arrived.

2.9. Mr. White’s case is different. In his case, buccal swabs from his mouth and a number of hairs were taken while he was under arrest. Again, a request for a solicitor had been made and the swab and hairs concerned were taken prior to the arrival of the...

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