DPP v Raymond Gormley and Others

JurisdictionIreland
JudgeMr. Justice Clarke,Mr. Justice Hardiman
Judgment Date06 March 2014
Neutral Citation[2014] IESC 17
CourtSupreme Court
Docket Number[S.C. Nos. 107 of 2011 and 92 of 2012]
Date06 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.

CADDER v HM ADVOCATE 2010 1 WLR 2601 2011 SC (UKSC) 13 2010 SLT 1125 2010 SCL 1265 2011 HRLR 1 2010 UKSC 43

CRIMINAL JUSTICE ACT 1984 S18

CRIMINAL JUSTICE ACT 1984 S19

CRIMINAL JUSTICE ACT 2007 PART IV

CRIMINAL JUSTICE ACT 2007 S28

CRIMINAL JUSTICE ACT 2007 S29

CRIMINAL JUSTICE ACT 2007 S30

CRIMINAL JUSTICE ACT 2007 S31

CRIMINAL JUSTICE ACT 2007 S32

CONSTITUTION ART 38.1

HEALY, STATE v DONOGHUE & ORS 1976 IR 325

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4

DPP v GORMLEY UNREP CCA 27.7.2009 2009/16/3832 2009 IECCA 86

DPP v WHITE UNREP CCA 19.10.2011 2011/19/4905 2011 IECCA 78

COURTS OF JUSTICE ACT 1924 S29(2)

CRIMINAL JUSTICE ACT 2006 S22

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL JUSTICE ACT 1999 S42

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990 S2

CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990 S4(B)

CRIMINAL JUSTICE ACT 2006 S14

DPP v MADDEN & ORS 1977 IR 336 1976 110 ILTR 117

OFFENCES AGAINST THE STATE ACT 1939

DPP v HEALY 1990 2 IR 73 1990 ILRM 313 1989/5/1277

DPP v BUCK 2002 2 IR 268 2002 2 ILRM 454 2002/8/1841

DPP v CONROY 1986 IR 460 1988 ILRM 4

DPP v O'BRIEN 2005 2 IR 206 2005/46/9570 2005 IESC 29

LAVERY v MEMBER IN CHARGE CARRICKMACROSS GARDA STATION 1999 2 IR 390 1999/15/4572

DPP v DALY UNREP CCA 29.7.2009 2009/15/3525 2009 IECCA 90

SALDUZ v TURKEY 2009 49 EHRR 19 26 BHRC 223 2010 CRIM LR 419

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)(C)

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DAYANAN v TURKEY UNREP ECHR 13.10.2009 2009 ECHR 2278 (APPLICATION NO 7377/03)

PANOVITS v CYPRUS 27 BHRC 464 2008 ECHR 1688

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)

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TARASOV v UKRAINE UNREP ECHR 31.10.2013 2013 ECHR 1070 (APPLICATION NO 17416/03)

BONDARENKO v UKRAINE UNREP ECHR 14.5.2013 (APPLICATION NO 27892/05)

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DICKSON v HM ADVOCATE 2001 JC 203 2001 SLT 674 2001 SCCR 397

HM ADVOCATE v MCLEAN 2010 S.L.T. 73; 2010 S.C.L. 166; 2010 S.C.C.R. 59 2009 HCJAC 97

AMBROSE v HARRIS 2011 1 WLR 2435 2012 SC (UKSC) 53 2011 SLT 1005 2011 SCL 866 2011 SCCR 651 2012 HRLR 1 2012 3 LRC 70 2011 AER (D) 45 (OCT) 2011 UKSC 43

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

HM ADVOCATE v P 2011 1 WLR 2497 2012 SC (UKSC) 108 2011 SLT 1097 2011 SCL 1035 2011 SCCR 712 2012 HRLR 4 2012 3 LRC 138 2011 AER (D) 44 (OCT) 2011 UKSC 44

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JALLOH v GERMANY 2007 44 EHRR 32 20 BHRC 575 2007 CRIM LR 717

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

MIRANDA v STATE OF ARIZONA 1966 384 US 436

NEW YORK v QUARLES 1984 467 US 649

OMNIBUS CRIME CONTROL & SAFE STREETS ACT 1968 (US)

DICKERSON v UNITED STATES 2000 530 US 428

BERGHUIS v THOMPKINS 2010 560 US 370

R v SINCLAIR 2011 3 SCR 3 2011 SCC 40

CANADIAN CHARTER OF RIGHTS & FREEDOMS S10(B) (CANADA)

NEW ZEALAND BILL OF RIGHTS ACT 1990 S23(1)(B) (NZ)

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R v TAYLOR 1993 1 NZLR 647

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MCGEE v AG & REVENUE CMRS 1974 IR 284

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A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

CRIMINAL JUSTICE ACT 1984 S5A(1)

CRIMINAL JUSTICE ACT 2011 S9(A)

DPP v RYAN UNREP CCA 11.3.2011 2011 IECCA 6

CRIMINAL JUSTICE ACT 1999 S42(2)

CRIMINAL JUSTICE ACT 2006 S11

CRIMINAL JUSTICE ACT 1999 S42(2)(B)

CRIMINAL JUSTICE ACT 1999 S42(2)(A)

CRIMINAL JUSTICE ACT 1999 S42(2)(C)

SIMPLE IMPORTS LTD & SEVEN IMPORTS LTD v REVENUE CMRS & ORS 2000 2 IR 243 1999/23/7430

DPP v DUNNE 1994 2 IR 537 1994/9/2621

DPP v MALLON 2011 2 IR 544 2011/18/4330 2011 IECCA 29

DPP v MCCARTHY 2011 1 ILRM 430 2010/16/3825 2010 IECCA 89

R v INLAND REVENUE CMRS, EX PARTE ROSSMINSTER LTD 1980 AC 952 1980 2 WLR 1 1980 1 AER 80

MAYFIELD v UNITED STATES OF AMERICA 504 F SUPP 2D 1023 (D OR 2007)

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DPP v RATTIGAN UNREP CCC 2.2.2009 (EX TEMPORE)

DPP v ABDI 2005 1 ILRM 382 2004/14/3175 2004 IECCA 47

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...

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51 cases
  • DPP v Doyle
    • Ireland
    • Court of Appeal (Ireland)
    • May 8, 2015
    ...solicitor present during questioning but was not afforded such facilities. 50 The appellant relied on People (D.P.P) v Gormley and White [2014] IESC 17 which stated at para 9.15:- ‘ Likewise, it is important to emphasise that the right is one designed to provide support for the right agains......
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13 books & journal articles
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    • United Kingdom
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    • September 1, 2021
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