M (J) (A Minor) v Member in Charge of Coolock Garda Station

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Sheehan
• Judgment Date: 03 May 2013
• Neutral Citation: [2013] IEHC 251
• Court: High Court
• Docket Number: [2013 No. 648 SS]
• Date: 03 May 2013

[2013] IEHC 251

THE HIGH COURT

Record No. 648 S.S./2013

M (J) (a minor) v Member in Charge of Coolock Garda Station

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN

J. M. (A MINOR)

APPLICANT

AND

MEMBER IN CHARGE OF COOLOCK GARDA STATION

RESPONDENT

MISUSE OF DRUGS ACT 1977 S15(A)

MISUSE OF DRUGS ACT 1977 S2

CRIMINAL JUSTICE ACT 1984 S5(A)

CRIMINAL JUSTICE ACT 2011 S9

CHILDREN ACT 2001 S61

LAVERY v MEMBER IN CHARGE CARRICKMACROSS GARDA STATION 1999 2 IR 390 1999 IESC 29

CRIMINAL JUSTICE ACT 1984 S18

CRIMINAL JUSTICE ACT 1984 S19

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

T (G) v O (K A) 2008 3 IR 567 2007/58/12336 2007 IEHC 326

DONEGAN v DUBLIN CITY COUNCIL & ORS 2012 2 ILRM 233 2012 IESC 18

DUBLIN CITY COUNCIL v GALLAGHER UNREP O'NEILL 11.11.2008 2008/15/3150 2008 IEHC 354

SALDUZ v TURKEY 2009 49 EHRR 19 2008 26 BHRC 223

CADDER v H M ADVOCATE (SCOTLAND) 2010 1 WLR 2601 2010 SLT 1125 2010 SCL 1265 2010 UKSC 43

CONSTITUTION ART 40.4.2

DPP, PEOPLE v MADDEN 1977 IR 336

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

DPP, PEOPLE v BUCK 2002 2 IR 268 2002 2 ILRM 454 2002/8/1841 2002 IESC 23

DPP (GARDA LAVELLE) v MCCREA UNREP SUPREME 9.12.2010 2010/16/3844 2010 IESC 60

PANOVITS v CYPRUS 27 BHRC 464 2008 ECHR 1688

SHARKUNOV & MEZENTSEV v RUSSIA UNREP 10.6.2010 2010 ECHR 892

GAFGEN v GERMANY 2010 52 EHRR 1 2010 28 BHRC 463 2010 ECHR 759

MULLIGAN v GOVERNOR OF PORTLAOISE PRISON & ANOR UNREP MACMENAMIN 14.7.2010 2010 IEHC 269

Criminal law - Constitutional law - Evidence - Practice and procedure - Right to a solicitor - Access - Presence during interviews - Mental health problems - Unlawful - Custody - Whether Gardaí were operating blanket ban

Facts: The applicant sought an order of habeas corpus arising out of his detention on suspicion of having committed a serious office under the Misuse of Drugs Act 1977. It was contended that as the applicant was a vulnerable minor with mental health problems, the refusal by the Gardaí to allow his solicitor to be present during interviews with the Gardaí was in breach of the constitutional right of reasonable access to a solicitor and that his detention had been rendered unlawful. It was argued that there was a blanket ban on allowing solicitors to be present at custody interviews.

Held by Sheehan J. that neither the evidence nor the submissions established the likelihood of unfairness arising in the course of the interviews as a result of the absence of a solicitor during those interviews. The Court would refuse to direct the release of the applicant. There had been a concession that there might be some cases where the Gardaí would decide to allow a suspect to have a solicitor present.

1 JUDGMENT of Mr. Justice Garrett Sheehan delivered on the 3rd May, 2013

Introduction

2 1. The applicant, J.M., seeks an order of habeas corpus arising out of his detention in Coolock Garda Station following his arrest on suspicion of having committed a serious offence under the Misuse of Drugs Act 1977, as amended.

3 2. It is contended on his behalf that given his particular circumstances namely, that he is a vulnerable minor with mental health problems, the refusal by the gardaí to allow his solicitor to be present during garda interviews is, inter alia, in breach of his constitutional right to reasonable access to a solicitor and accordingly, his detention is unlawful.

Background

4 3. J.M. was arrested on the 16 ^th April, 2013, on suspicion of having committed an offence pursuant to s. 15A of the Misuse of Drugs Act 1977, as amended, and subsequently detained at Coolock Garda Station at around midday pursuant to s. 2 of the Misuse of Drugs Act 1977 (as amended).

5 4. J.M. is represented by Kelleher O'Doherty Lyons Solicitors. Two solicitors from that firm, Gareth Noble and Maura Kiely, have sworn affidavits grounding this application.

6 5. The initial application for an inquiry was heard by the President of the High Court, Mr. Justice Nicholas Kearns, at 3.30pm on the 16 ^th April, 2013, and he directed that the applicant, J.M., be produced before the Court at 4.30pm that evening given that he was a minor with a mental health impairment who was then detained in a garda station.

7 6. When the matter was returned, counsel for the respondent agreed that the applicant be admitted to bail pending a full inquiry which commenced on Friday 26 ^th April, 2013, and continued on Tuesday 30 ^th April, 2013. The matter was further adjourned to Friday 3 ^rd May, 2013, without objection from the respondent to allow the court to consider the comprehensive submissions made by the applicant and the respondent.

8 7. It is clear from the affidavit of Gareth Noble, solicitor, that he was aware on the 15 ^th April, 2013, that his client, J.M., was wanted for questioning by the gardaí in connection with the finding of a large quantity of drugs and he wrote by fax to Garda Cummins that day as follows:-

"Re: J.M. (a Minor)"

9 Dear Garda Cummins,

10 I refer to the above named client and telephoned Coolock Garda Station this morning in an attempt to make contact with you.

11 I am aware that you are investigating a very serious incident involving the interception of a large amount of suspected drugs. I am aware that you are seeking to detain and interview this minor as part of your investigation.

12 Given the serious nature of the charge the fact that my client is a juvenile and, more particularly, that he is someone with particular vulnerabilities and complex needs, I am requesting that I be permitted to be present with him whilst he is being interviewed. Master M. has been deemed suitable for Disability Allowance. He is an early school leaver and meets the criteria insofar as it has been medically established that he is not in a position to take up work or further education as a result of his condition, which is psychological as opposed to physical in nature.

13 I am aware that there have been a number of important judgments from other jurisdictions and from the European Court of Human Rights which support the proposition that individuals detained have a right of access to a solicitor, and that this extends to being present during police questioning. It is acknowledged that you wish to interview Master M. and upon receipt of your response, I will make every effort to advise and take instructions from Master M. as quickly as possible.

14 I look forward to hearing from you.

15 Yours sincerely

16 Gareth Noble."

17 8. The following matters relating to the applicant emerged from the grounding affidavit of his solicitor, Gareth Noble:-

18 (1) J.M. is seventeen years old having been born on 19 ^th June, 1995;

19 (2) J.M. ordinarily resides with his mother at a known address;

20 (3) J.M. is in receipt of a Disability Allowance. His solicitor exhibited a letter to him from the Social Welfare Appeals Office dated 25 ^th July, 2012, to that effect. A note of the reasons for the Appeals Officer's decision is set out hereunder:-

"Medical"

21 Disability Allowance may be paid where a person is substantially restricted in undertaking work which would otherwise be suitable with reference to their age, experience and qualifications and the specified disability must be expected to continue for at least one year. Having carefully examined all the evidence in this case, including that presented at oral hearing and taking account of the medical evidence available, I have concluded that the appellant has established that he meets the qualifying conditions. In the circumstances I am allowing this appeal."

22 (4) J.M. was assessed by a Senior Clinical Psychologist attached to the Department of Child and Family Psychiatry of the Mater Hospital who reported in January, 2007 that at that time J.M. had significant behavioural difficulties both at home and at school. The Senior Clinical Psychologist stated that the result of tests completed by J.M.'s mother and teacher indicated an above average correspondence to the DSM IV criteria for Combined Inattention and Hyperactive Impulsive Type ADHD, and at that time the diagnosis could be supported along with an accompanying diagnosis of Oppositional Defiant Disorder. The report of the consultant psychologist was exhibited in the grounding affidavit of Gareth Noble, and the said report was dated the 23 ^rd January, 2007.

23 (5) By letter dated the 15 ^th February, 2007, a consultant psychiatrist attached to the Department of Child and Family Psychiatry at the Mater Hospital wrote to the Senior Area Medical Officer of the Northern Area Health Board stating that J.M. had a diagnosis of ADHD and additional Periorbital Tics. She stated he had been started on a trial of Ritalin LA20mg in October, 2006 and had shown some improvement. She further stated that based on his special needs, his parents were entitled to receive Domiciliary Care Allowance.

24 (6) At para. 5 of his affidavit Mr. Noble stated that contained within the medical report for a Carer's Allowance for the applicant's mother dated 10 ^th August, 2011, it was confirmed that the applicant, J.M., had severe mental health/behavioural difficulties and severe learning and intellectual disabilities.

Submissions on Behalf of the Applicant

25 9. The case which the applicant puts forward is essentially that there exists an entitlement for him to have his solicitor present during questioning. The applicant in this specific case was not allowed to have his solicitor present during his interview with the gardai whilst in custody, in circumstances where he is a minor and operating under a mental impairment and therefore the applicant's detention is...