DPP v Raymond Gormley and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke,Mr. Justice Hardiman
• Judgment Date: 06 March 2014
• Neutral Citation: [2014] IESC 17
• Court: Supreme Court
• Docket Number: [S.C. Nos. 107 of 2011 and 92 of 2012]
• Date: 06 March 2014

DPP v Gormley & White

Between/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

and

RAYMOND GORMLEY

Accused/Appellant

and

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

CRAIG WHITE

and

[2014] IESC 17

Denham C.J.

Murray J.

Hardiman J.

McKechnie J.

Clarke J.

107/2011

92/2012

[Appeal No: 107/2011

[Appeal No: 92/2012

THE SUPREME COURT

Criminal law – Conviction - Prosecution - Admissibility of evidence - Appeal - Evidence obtained from interviews - Forensic evidence - Right of access to legal advice - Self-incrimination - European Convention on Human Rights - Constitution of Ireland - Courts of Justice Act 1924

Facts: These were two separate proceedings in which both of the appellants had been convicted of serious criminal offences and sentenced to terms of imprisonment. Appeals to the Court of Criminal Appeal were subsequently initiated. Mr Gormley argued that the trial judge erred in admitting evidence of statements allegedly made by him to prosecuting gardaí because he had been arrested following an unlawful entry into his dwelling by gardaí, meaning any evidence obtained thereafter was inadmissible. It was also said that the relevant gardaí interviews were conducted in breach of his constitutional right of access to a lawyer. Simiarly, Mr White argued that the trial judge had erred in admitting certain forensic evidence because it had been obtained from tests that were conducted in breach of his right to access to his solicitor. Both appeals were refused.

The appellants were subsequently granted leave pursuant to s. 29(2) of the Courts of Justice Act 1924 to appeal the decisions of the Court of Criminal Appeal. In respect of Mr Gormley"s case, the Court had to decide whether the constitutional right of access to legal advice required gardaí to postpone an interview with a detained person to allow a reasonable amount of time for a solicitor to arrive, if one was requested. In respect of Mr White"s case, the Court had to decide whether gardaí were obliged to postpone the taking of forensic samples from a detained person until a solicitor has arrived, if one was requested.

Held by Clarke J. (with Denham C.J., Murray J., Hardiman J. and McKechnie J. concurring) that the jurisprudence of the European Court of Human Rights made it clear that the European Convention on Human Rights gave a protection against self-incrimination which is breached in circumstances where a person makes an incriminating statement without the benefit of legal advice and where they have not waived any entitlement to legal advice, and that statement goes on to form a substantial part of the evidence that leads to conviction. It was also said that Irish jurisprudence recognised that a person in custody had a constitutional right of access to legal advice within a reasonable period of time, which, if breached, could lead to the custody being declared unconstitutional and the evidence obtained on foot of the custody being deemed inadmissible.

In regards to Mr White"s case, it was found that although forensic samples were taken from him at a time after he had requested the presence of a solicitor and before the arrival of the solicitor concerned, Mr White had been legally obliged to provide those samples so legal advice would have made no difference to the outcome. The admission of the forensic evidence had, therefore, been constitutional. It was also determined that the jurisprudence of the European Court of Human Rights made it clear that this finding did not contravene the European Convention on Human Rights, as long as samples were taken in an unobtrusive way. The appeal was, therefore, dismissed.

In regards to Mr Gormley"s case, it was held that the jurisprudence of the European Court of Human and of various other countries made it clear that a detained person had a right of access to legal advice, which would be breached in circumstances where he or she was interrogated after such access to legal access is requested, but before the access was obtained. It was said that such a position existed under the Constitution of Ireland. There was, therefore, no doubt that because Mr Gormley had requested a solicitor, his constitutional right of access to legal advice had been breached when gardaí declined to postpone his interview to allow a reasonable amount of time for the solicitor to arrive. Given the fact that the statements that had been obtained from Mr Gormley were a material element of the evidence on foot of which he was found guilty, his conviction on that basis was said to be a breach of the guarantee of trial in due course of law under Article 38.1 of the Constitution of Ireland. The appeal was, therefore, allowed.

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1 JUDGMENT OF Mr. Justice Hardiman delivered the 6th day of March, 2014.

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

3 Judgment delivered by Hardiman J & Clarke J

4 1. I agree with the judgment of Mr. Justice Clarke delivered in these cases. In the circumstances of the cases, however, I wish to add a few words of my own.

5 2. Ever since 1984 (and much earlier in the case of certain offences) the major emphasis in Irish criminal investigation has involved the arrest, followed by the detention for questioning, of suspected persons. This is not an arrest in the ordinary sense of the criminal law, which is an arrest for the purpose of being charged before a court. It...