DPP v O'Brien

JudgeMr Justice McCracken
Judgment Date05 May 2005
Neutral Citation[2005] IESC 29
CourtSupreme Court
Docket Number[S.C. No. 82 of 2003]
Date05 May 2005


Thomas Anthony O'Brien


The Director of Public Prosecutions

[2005] IESC 29





Admissibility - Inculpatory statement by defendant - Request for access to solicitor - Denial of access to solicitor - Deliberate and conscious breach of constitutional right - Subsequent grant of access to solicitor - Causative link between breach of constitutional right of access and making of inculpatory statement - Whether denial of access to solicitor rendered subsequent inculpatory statement inadmissible - Whether breach of right of access to solicitor rendered detention unlawful - The People (Director of Public Prosecutions) v Healy [1990] 2 I.R. 73; The People (Director of Public Prosecutions) v Kenny [1990] 2 I.R. 110; The People (Director of Public Prosecutions) v Finnegan (Unreported, Court of Criminal Appeal, 15/7/1997) and The People (Director of Public Prosecutions) v Buck [2002] 2 I.R. approved -Criminal Justice Act 1984 (No 22), s 4 - Appeal dismissed (82/2003 - Supreme Court - 5/5/2005) [2005] IESC 29



Charge to jury - Direction as to existence of conspiracy - Whether finding of fact - Whether trial judge entitled to chare jury as to existence in law of conspiracy - Appeal dismissed (82/2003 - Supreme Court - 5/5/2005) [2005] IESC 29

People (DPP) v O'Brien

Facts: The plaintiff obtained an award of damages of Eur600,000 for sexual assault in the High Court. On appeal, the Supreme Court reduced the award to Eur350,000. The defendant applied for his costs of the appeal against the plaintiff.

Held by the Supreme Court (Denham, Geoghegan and McCracken JJ) in making no order as to costs that in cases where the normal rule of costs following the event might be perceived to cause a hardship, the Court would exercise its discretion and the manner in which it exercised that discretion would differ from case to case.

Per curiam The practice, whereby a defendant writes to a plaintiff claiming that the award was too high but stating that he would be prepared to pay a reduced sum and that if that sum were not accepted the letter would be used in the Supreme Court for the purposes of a costs application in the event of the damages being reduced, should be availed of.

Reporter: R.W.



DPP v HEALY 1990 ILRM 313 1990 2 IR 73

DPP v FINNEGAN UNREP CCA 15.7.1997 1998/4/977

DPP v BUCK 2002 2 IR 268 2002 2 ILRM 454

DPP v KENNY 1990 2 IR 110




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 1984has 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 in admissible. 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 in which statements taken at a time when an accused's constitutional rights were being breached could nevertheless be admissible if there was no causative link between the breach and the statement. While it is not what occurred in this case, this seems to me to be a somewhat doubtful proposition. However if the passage refers to an admission obtained after the breach had ceased, then it seems to me to correctly state the legal position.


The question was visited in a slightly different context in Director of Public Prosecutions v. Finnegan ( unreported) 15th July 1997, which was a decision of the Court of Criminal Appeal delivered by Barrington J. In that case, the accused had had access to a solicitor, but subsequently in the course of being questioned he requested a telephone conversation with the solicitor. This conversation took place in the hearing of one or more members of the gardaí. It was held that evidence of an interview which subsequently took place was in admissible. At page 42 of the judgment it was said:-

"Even though the right to make a telephone call to a solicitor may not be, per se, a constitutional right, once the telephone call is allowed, the detainee has a constitutional right to make that call in private.

In the present case there was a breach of Mr Finnegan's constitutional rights when he was denied private access by telephone to his solicitor. From that point on he was in unlawful detention. No evidence was adduced to show that this unlawful detention came to an end at any particular time nor indeed was the point addressed at the trial."


This case confirms that the right of private access to a solicitor is a constitutional right. It does seem to me to be manifest that where a person is held in detention, albeit that the detention itself was initially lawful, a breach of the constitutional rights of the person detained during the period of detention must render the detention unlawful. However, this case does not answer the question as to whether, once the breach of the constitutional right has been remedied, the status of the unlawful detention is altered, and it becomes lawful.


The case that comes nearest to the present case is DPP v. Buck [2002] 2 IR 268. In that case, as in the present case, there...

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