Lavery v Member in Charge, Carrickmacross Garda Station

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 23 February 1999
• Neutral Citation: [1999] IESC 29
• Docket Number: [S.C.
• Court: Supreme Court
• Date: 23 February 1999

LAVERY v. CARRICKMACROSS GARDA STATION

AN CH ÚIRT UACHTARACH

IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION

BETWEEN:

DEAGLAN LAVERY

Applicant/Respondent

.V.

THE MEMBER IN CHARGE, CARRICKMACROSS GARDA STATION

Appellant

[1999] IESC 29

Hamilton C.J.,

O'Flaherty J.,

Barrington J.,

Keane J.,

Murphy J.,

(296/98)

THE SUPREME COURT

Synopsis

Constitutional Law

Appeal from successful habeas corpus application; respondent was arrested on suspicion of being a member of an unlawful organisation; no notes were taken at early interviews and solicitor was refused access to notes taken at later interviews; whether detention of respondent was unlawful; whether refusal to allow solicitor of respondent access to documentation rendered detention unlawful; ss.2 and 5, Offences against the State (Amendment) Act, 1998; Art. 40.4, Constitution Held: Detention was lawful; order of the High Court reversed Lavery v. The Member in Charge, Carrickmacross Garda Station - Supreme Court: Hamilton C.J., O'Flaherty J., Barrington J., Keane J., Murphy J. - 23/02/1999- [1999] 2 IR 390

While the gardai must be allowed to exercise their powers of interrogation as they thought right provided they acted reasonably, the solicitor representing a person detained by gardai following the Omagh bombing, which killed 29 people and injured 400, was not entitled to regular updates and running accounts of their investigations. The solicitor was not entitled to be present at the garda interviews with the respondent. Neither was it open to the respondent or his solicitor to prescribe the manner by which the interviews might be conducted or where. Whether there were adequate notes taken of any interview might or might not be of significance if there was a subsequent trial. While it may have been incongruous that the respondent could see the gardai's interview notes and his solicitor, this did not render the respondent's detention unlawful. If a charge had followed on the detention, both the respondent and his legal advisers would have been entitled to all relevant documentation. Privilege could not be claimed for the interview notes. The detention was in accordance with law and the respondent should not have been released under article 40 of the Constitution by the High Court. The Supreme Court so held in allowing the appeal.

Citations:

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S5

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 S30(4)

OFFENCES AGAINST THE STATE ACT 1939 S30(4)(A)

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S10

OFFENCES AGAINST THE STATE ACT 1939 PART V

OFFENCES AGAINST THE STATE ACT 1939 S52

EMERGENCY POWERS BILL 1976, IN RE 1977 IR 159

DPP, PEOPLE V SHAW 1982 IR 1

DPP, PEOPLE V PRINGLE 2 FREWEN 57

CONSTITUTION ART 40.4

WARD V SPECIAL CRIMINAL COURT 1998 2 ILRM 493

ZWANN, IN RE 1981 ILRM 333

1 Judgment delivered on the 23rd day of February, 1999, by O'Flaherty J.

2 On the 15th August, 1998, a bomb planted in a car exploded in the town of Omagh, Co. Tyrone, killing upwards of 29 people and injuring as many as 400.

3 Consequent on this terrorist outrage, the Oireachtas enacted the Offences against the State (Amendment) Act, 1998. These proceedings are concerned to a degree with the operation and scope of s. 2 and s. 5 of the Act, in particular.

4 Section 2 provides:-

5 2 "(1) Where in any proceedings against a person for an offence under section 21 of [the Offences Against the State Act,] 1939, evidence is given that the accused at any time before he or she was charged with the offence, on being questioned by a member of the Garda Siochana in relation to the offence, failed to answer any question material to the investigation of the offence, then the court in determining whether to send forward the accused for trial or whether there is a case to answer and the court (or subject to the judge's directions, the jury) in determining whether the accused is guilty of the offence may draw such inferences from the failure as appear proper, and the failure may, on the basis of such inferences, be treated, as or as capable of amounting to, coroboration of any evidence in relation to the offence, but a person shall not be convicted of the offence solely on an inference drawn from such a failure.

6 (2) Subsection (1) shall not have effect unless the accused was told in ordinary language when being questioned what the effect of such a failure might be.

7 (3) Nothing in this section shall, in any proceedings -

8 (a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged, in so far as evidence thereof would be admissible apart from this section, or

9 (b) be taken to preclude the drawing of any inference from the slience or other reaction of the accused which could be properly drawn apart from this section.

10 (4) In this section -

11 (a) references to any question material to the investigation include references to any question requesting the accused to give a full account of his or her movements, actions, activities or associations during any specified period,

12 (b) references to a failure to answer include references to the giving of an answer that is false or misleading and references to the silence or other reaction of the accused shall be construed accordingly.

13 (5) This section shall not apply in relation to failure to answer a question if the failure occurred before the passing of this Act."

14 Section 5 is to similar effect except that it applies to a wider range of offences, viz. all offences under the Offences Against the State Acts, scheduled offences under the legislation and "an offence arising out of the same set of facts as these two types of offence."

15 On the morning of 30th September, 1998, at 7.00 am Deaglan Lavery, the respondent, was arrested at his home by members of the Garda Siochana under s.30 of the Offences Against the State Act, 1939, on suspicion of being a member of an unlawful organisation. He was brought to Carrickmacross Garda Station, Co. Monaghan.

16 His solicitor, Mr. James MacGuill, was contacted by the gardai sometime prior to 8.00 am. He had a telephone conversation with the respondent and took his instructions and he deposed that he gave him general advices: in particular advices as to the new obligations which arise under the provisions of the 1998 Act. He wrote to the Superintendent of the Garda Siochana at Carrickmacross by fax requesting particulars of the allegations against the respondent and indicating that he would be prepared to have his interviews audio-visually recorded. Mr. MacGuill requested that if this was not possible that complete notes of any interview held with his client be taken and be made available to the respondent and himself prior to the end of Mr. Lavery's detention.

17 Mr. MacGuill attended at...