DPP v Buck

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 17 April 2002
• Neutral Citation: [2002] IESC 23
• Court: Supreme Court
• Docket Number: [S.C. No. 24 of
• Date: 17 April 2002

[2002] IESC 23

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

24/00

DPP v. BUCK

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC

PROSECUTIONS

RESPONDENTS

AND

ANTHONY BUCK

APPLICANT/APPELLANT

Citations:

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL JUSTICE ACT 1984 S4

DPP, PEOPLE V HEALY 1990 2 IR 73

DPP, PEOPLE V FINNEGAN UNREP CCA 15.7.1997 1998/4/977

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS SI 119/1987 REG 12(6)

CRIMINAL JUSTICE ACT 1984 S7

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS SI 119/1987 REG 16

AG, PEOPLE V O'BRIEN 1965 IR 142

R V SWAFFIELD 1998 HCA 1

PAVIC V THE QUEEN 1998 HCA 1

ARTICLE 26 OF THE CONSTITUTION & EMERGENCY POWERS BILL 1976, IN RE 1977 IR 159

DPP, PEOPLE V HEALY 1990 2 IR 73

DPP, PEOPLE V CONROY 1986 IR 460

OFFENCES AGAINST THE STATE ACT 1939 S30

DPP, PEOPLE V MADDEN 1977 IR 337

CRIMINAL JUSTICE ACT 1984 S5(1)

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS SI 119/1987 REG 9(2)(a)

CRIMINAL JUSTICE ACT 1984 S7(3)

Synopsis:

CRIMINAL LAW

Arrest

Detention - Constitutional law - Right to consult solicitor - Whether applicant denied access to solicitor - Whether statements of applicant admissible - Whether detention of applicant unlawful - Criminal Justice Act, 1984 - Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 SI 119/1987 (24/2000 - Supreme Court - 17/04/2002) - [2002] 2 IR 268 - [2002] 2 ILRM 454

DPP v Buck

Facts: The applicant had been arrested on suspicion of having committed murder. The applicant was convicted of the offence and appealed on a point of law. The applicant contended that there had a conscious and deliberate violation of his constitutional right to have access to a solicitor. It was contended that accordingly his detention was unlawful thereby rendering any inculpatory statements made by him inadmissible.

Held by the Supreme Court (Keane CJ delivering judgment; Denham J, Murray J, McGuinness J and Hardiman J agreeing) in dismissing the application. Where a person was detained under a statutory provision and asked for a solicitor and the Gardaí made bona fide attempts to comply with that request, the admissibility of any incriminating statement was a matter for the trial judge to decide as a matter of discretion. The trial judge was satisfied that the Gardaí had grounds for charging the applicant and were not obliged to defer the arrest of the applicant. The trial judge was entitled to conclude that there had been no breach of the applicant's constitutional right of access to a solicitor.

1 17th day of April, 2002 by Keane C.J. [nem diss]

Introduction

2 The appellant was convicted in the Central Criminal Court after a trial before Quirke J and a jury on the 20th February, 1998, of the murder of David Nugent on the evening of the 8th and morning of the 9th July 1996 at Clonmel, Co. Tipperary and was sentenced to imprisonment for life. He was also convicted of robbery on the same occasion and a sentence of 12 years imprisonment was imposed in respect of that conviction. An application for leave to appeal having been refused, the appellant appealed to the Court of Criminal Appeal. The appeal was dismissed, but the court certified that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court pursuant to the provisions of s.29 of the Courts of Justice Act 1924.

3 The point of law certified by the Court of Criminal Appeal is as follows:

"In circumstances where a member of An Garda Siochana 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, 1984and does in fact request access to a solicitor and is questioned for a substantial period 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 person's constitutional right of access to a solicitor (not being a violation which has extraordinary excusing circumstances) rendering inadmissible in evidence any statement admissions or confessions which may thereafter be made by the arrested person;

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."

4 The appellant was arrested at his home in Clonmel at 2.54 p.m. on Sunday 14th July, 1996, and conveyed to Cahir Garda Station in the custody of members of An Garda Siochana. On his arrival at the Garda Station at 3.10 p.m., he was detained under s.4 of the Criminal Justice Act 1984(hereafter "the 1984 Act"). Thereafter, he was questioned by a number of Gardaí who were investigating the murder of David Nugent, whose body had been discovered in the grounds of St. Michael's Hospital at 12.30 a.m. on the previous Monday. The appellant had already been interviewed concerning the matter on the following day, Tuesday July 10th. On the evening of Saturday, July 13th, the gardaí had come into possession of information which, in their view, implicated the appellant in the crime.

5 The appellant made an inculpatory statement to two of the Gardai who were questioning him between 9.40 p.m. and 11.05 p.m. on the Sunday evening. On the following morning, at 8.00 a.m., the Gardaí recorded in writing answers by the appellant to questions put to him which were also inculpatory. Between 9.05 a.m. and 9.35 a.m. on that morning he made a further inculpatory statement.

6 The admissibility of the inculpatory statements made by the appellant while in custody was challenged at the trial on a number of grounds including that which is the subject of this appeal. That issue was tried by the learned trial judge in the absence of the jury and he ruled that the statements were admissible. That finding was upheld by the Court of Criminal Appeal.

7 On the trial of the issue in the Central Criminal Court, the Gardaí who conducted the questioning, a solicitor who came to the station and had a discussion with the appellant and the appellant himself gave evidence.

The Factual Background

8 The factual background is as follows. The appellant was informed by the member in charge of the station at 3.15 p.m. that he was to be detained for a period of six hours and he was, at that stage, given a written notice setting out his rights while in detention. The appellant asked the member in charge to contact his parents and to inform them that he was in Cahir Garda Station and that was done. At 3.24 p.m., Detective Garda Kelly and Detective Garda Summers brought the appellant to an interview room and began to question him. During the course of that interview, the appellant, although admitting that he had engaged in drug dealing transactions with David Nugent in the past, denied that he was involved in any way in the attack on him which led to his death. The appellant in evidence said that, during the course of this interview, he said he would like a solicitor, but this was denied by the Gardaí.

9 That session of questioning continued until 4.50 p.m., at which stage Detective Sergeant O'Riordan entered the interview room and took over the questioning. It is not in dispute that, shortly after this session began, the appellant told Sergeant O'Riordan that he wanted to speak to a solicitor. Sergeant O'Riordan remained in the interview room questioning the appellant until 5.29 p.m., at which stage he was replaced by Detective Sergeant Healy and Detective Garda Clancy. As he left the interview room, Sergeant O'Riordan informed Sergeant Healy that the appellant wanted a solicitor and that he did not want to answer any questions until he had spoken to a solicitor. The garda who was the member in charge at that point, Garda Donal O'Connell, gave evidence of having attempted to contact a solicitor in Clonmel, Mr. O'Reilly, without success. He was then informed by the gardaí in Clonmel that they understood that Mr. O'Reilly was acting for the family of David Nugent and could not act for any of the persons who were being investigated in connection with his murder. The appellant, on being so informed, asked the Gardaí to contact Mr. Paul Morris, a solicitor, in Clonmel. Garda O'Connell, having failed to make contact with Mr. Morris, then endeavoured to make contact with other solicitors, but without success. Eventually, Mr. Ciaran Cleary, solicitor, was contacted at the golf club in Clonmel and was asked to attend at Cahir Garda Station. The difficulty in contacting a solicitor was understandable, it being a Sunday afternoon in summer and, in addition, there being a large sporting event on in the area. Mr. Cleary, the solicitor who was ultimately contacted and agreed to see the appellant, arrived at the station at 8.33 p.m..

10 In the meantime, however, Detective Sergeant Healy and Detective Garda Clancy continued to question the appellant until 6.45 p.m.. At that stage, he was photographed and blood samples taken from him. According to the appellant, at approximately 7.10 p.m., another person being detained in the station on suspicion of being involved in the murder was brought to the interview room, at which point he told the...