DPP v Farrell

JudgeChief Justice
Judgment Date01 January 1978
Neutral Citation1977 WJSC-CCA 469
CourtCourt of Criminal Appeal
Docket Number41/1976,[C.C.A. No. 41 of 1976]
Date01 January 1978
D. P. P.

1977 WJSC-CCA 469

O'Higgins C.J.

Gannon J.

D'Arcy J.




Judgment of the Court delivered the 29th July 1977 by the Chief Justice


On the 3rd November 1976 the Appellant was convicted in the Special Criminal Court of causing an explosion contrary to Section 2 of the Explosive Substances Act, 1883. He was sentenced to 15 years penal servitude. He has appealed to this Court against this conviction.


The offence with which the Appellant was charged arose, out Of the explosion, of a bomb in Mill Street, Pettigo, Co. Donegal at about 11.35 p.m. on the night of the 28th September 1973. The Appellant resides in Enniskillen, Co. Fermanagh. There was no evidence to connect the Appellant with the explosion of this bomb except such as is contained in certain verbal and one written statement. These statements in one way or another implicate the Appellant.


The trial of the Appellant lasted twelve days during which the admission of these statements was strenuously contested. The Court admitted all the statements and having done so convicted the Appellant.


In appealing against this conviction the Appellant puts forward some eleven grounds of appeal, some of which were grouped together and some of which were not seriously argued. In this Judgment the various grounds of appeal are dealt with in the following order.

Grounds 1 to 3

The first three grounds of appeal may conveniently be grouped together and are as follows:-


2 "1. That the Court misdirected itself in law and in fact in holding that there was no Constitutional obligation on the Gardai to inform the accused, who was a person in custody under Section 30 of the Offences Against the State Act, 1939, of his right to consult a solicitor.


2. That the Court misdirected itself in law and in fact in holding that the Gardai were hot bound by the instructions given to them by direction of the Minister for Justice and headed "Information for Persons in Custody" to inform the accused of his right to consult a solicitor while in custody, particularly in the circumstances which existed in Ballyshannon at the time when the accused was in custody.


3. that the Court misdirected itself in law and in fact in holding that there was no Constitutional obligation on the Gardai to ensure by medical examination that a person such as the accused, who had been in custody for over twenty four hours was physically and mentally fit for interrogation or to make a statement."


In support of these grounds of appeal It was submitted that a person in custody on suspicion of, or intended to be charged with, commission of a criminal offence 16 entitled as of right to the benefit of legal advice and assistance and that he has the concomitant right to be informed of his right to have legal assistance. It was argued that detention under Section 30 of the Offences Against the State Act 1939is an exceptional invasion of the right of personal freedom guaranteed by the Constitution, and the Courts have a duty in the protection and vindication of this right to scrutinise strictly the exercise of the powers of detention and interrogation under the 1939 Act.


The right to consult a solicitor while in custody, the Appellant claims, is of no value to a person in custody if the fact that he has such a right be not conveyed to him. To omit to inform a person detained under Section 30 of the 1939 Act of his right to have a solicitor, it was argued, is as much a deprivation of the constitutional right for a person unaware of his rights as is a refusal of a request for a solicitor by someone who is so aware.


As presented in this Court the arguments on these grounds of appeal depend to a large extent on the acceptance as sought of the submissions that the Appellant is, and at all material times was, and could be observed to be, a person of lower than average intelligence, brought into a jurisdictional environment strange to him, easily Impressed by authority, susceptible to suggestion, and requiring investigation of his mental and physical health. Allied to this the submission was made that a person in custody has a right to have his mental and physical capacity assessed by medical examination before interrogation.


The significance of these grounds of appeal, which appear to relate only to investigation procedures prior to the trial under review on this appeal, appears to be that they lay the ground for a challenge on the admissibility o the evidence upon which the conviction was founded. In support of these arguments the Appellant relies principally on the unreported judgment of the Supreme Court delivered on 22nd July 1976 in The State (Healy and Foran) v. The Governor of St. Patrick's and Others, and to a lesser extent on the unreported judgment of the Supreme Court delivered on the 15th October 1976 in re Emergency Powers Bill 1976.


It should be noted that State (Healy & Foran) v. Governor of St. Patrick's and Others was a case in which the exercise of the judicial functions of the State by the Courts as guardians under the Constitution of the personal rights of the citizen was examined in relation to the performance of such functions by the Courts. In the present instance it is being submitted that the Courts as such guardians under the Constitution should direct or control or supervise that area of executive function of the State involved in the prevention, detection and Investigation of criminal offences. It is important to observe this distinction as it is evident that the matters with which this Court is concerned under these three grounds of appeal are analogous more to what are known as the Judges1 Rules than to matters of directions on procedures for the administration of justice in and by the Courts.


Of the Judges" Rules it was stated in the judgment of the English Court of Criminal Appeal in R. v. Voisin 1918. I K.B. 531 at p.539 as follows:-

"These Rules have not the force of law; they are administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice. It is important that they should do so, for statements obtained from prisoners, contrary to the spirit of these rules, may be rejected as evidence by the judge presiding at the trial."


This comment was adopted with approval by the Supreme Court in The People (Attorney General) v. Cummins 1972 I.R. 312 at p.323.


In the course of argument on this appeal reliance was placed on a passage from the Supreme Court judgment of Mr. Justice Kingsmill Moore in The People (Attorney General v. O'Brien) 1965 I.R. 142 at pp.160'161:-


In effect therefore the first three grounds of appeal are no more than sub-headings of a general ground that the trial Court should have exercised its discretion to refuse to admit evidence consisting of statements made by the accused while in the custody of the Gardai because such evidence was obtained in circumstances tainted with illegality by the infringement as alleged, of constitutional rights the existence of which this Court is now asked for the first time to declare.


The specific rights now asserted as constitutional rights of the Appellant are the rights while in custody with a view to interrogation (a) to be informed before


interrogation that he had a right to consult a solicitor and


(b) to be examined by a qualified medical practitioner to vouch his physical and mental capacity to submit to interrogation.


The limitation on the scope and range of interrogation authorised by the Offences Against the State Act 1939have been examined arid stated by this Court in State (D.P.P.) v. Madden and Others (unreported Judgment delivered on 16th November 1976) and need not be repeated here.


The initial basis for the claims for the above stated rights is the following passage quoted from the judgment of the Supreme Court in Re Emergency Powers Bill 1976 ( unreported 15/10/1974), at pp.7–8.

"While it is not necessary to embark upon an exploration of all the incidents or characteristics which may not accompany the arrest and custody of a person under that section, it is nevertheless desirable, in view of the submissions made to the Court, to state that the section is not to be read as an abnegation of the arrested person's rights, constitutional or otherwise, in respect of matters such as the right of communication, the right to have legal and medical assistance, and the right of access to the Courts. If the section were used in breach of such rights the High Court might grant an order for his release under the provisions for habeas corpus contained in the Constitution. It is not necessary for the Court to attempt to give an exhaustive list of the matters which would render a detention under the section illegal or unconstitutional."


In support of the argument Counsel for the Appellant cited from my judgment in State (Healy & Foran) v. Governor of St. Patrick's ( unreported 22 July 1976) at pp. 17 and 18 as follows:


If however a person ignorant of his right fails to apply and on that account is not given legal aid then in my view his constitutional right is violated. For this reason it seems to me that when a person faces a possible prison sentence and has no lawyer and cannot provide for one he ought to be informed of his right to legal aid. If he does not know of his right he cannot exercise it and if he cannot exercise it his right is violated."


Fruther extracts were cited from the judgments in the same case of Henchy J. at p.4, of Griffin J. at p. 11 and the principles enunciated from Australian and American cases cited by Kenny J. at pp. 5 and 6 of his judgment were indicated.


All these judgments lay emphasis on the constitutional duty of a Court undertaking the trial of a person charged...

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