Maloney -v- The Member In Charge of Finglas Garda Station & Ors, 2015 523 JR (2017)

Docket Number:2015 523 JR
Party Name:Maloney, The Member In Charge of Finglas Garda Station & Ors
 
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THE HIGH COURT

JUDICIAL REVIEW [2015 No. 523 J.R.]

BETWEEN

LIAM MALONEYAPPLICANTAND

THE MEMBER IN CHARGE OF FINGLAS GARDA STATION, IRELAND AND THE ATTORNEY GENERALRESPONDENTS

JUDICIAL REVIEW[2015 No. 533 J.R.]

BETWEEN

JORDAN ENNISAPPLICANT AND

THE MEMBER IN CHARGE OF COOLOCK GARDA STATION, IRELAND AND THE ATTORNEY GENERALRESPONDENTS

JUDGMENT of Mr. Justice Noonan delivered on the 9th day of May, 2017

Introduction

  1. The above entitled applications for judicial review were heard in tandem as they both raise the same issue. That is, whether or not the applicants, as arrested persons, are entitled to sight of any evidence it is proposed to put to them in the course of interview by the Gardaí in advance of such interview taking place.

    The Facts in Liam Maloney

  2. At 7.05 am on the 17th September, 2015, the applicant was arrested in respect of the offence of assault causing serious harm contrary to s. 4 of the Non Fatal Offences Against the Person Act 1997. The alleged offence arose out of the unlawful killing of one Vincent Maher on the 11th January, 2014.

  3. Following his arrest, the applicant was conveyed to Finglas Garda Station where he requested the assistance of his solicitor, Mr. Michael Finucane. Telephone contact was eventually made after a number of attempts with Mr. Finucane at 10.28 a.m. One of the investigating Gardaí spoke to him. Mr. Finucane requested a summary of what was proposed to be put during questioning of his client. He was advised that the evidence to be put at interview would not be disclosed in advance.

  4. After Mr. Finucane’s initial conversation with the investigating Garda, his office sent a letter by fax transmission at 11.29 a.m. that day to Finglas Garda Station in the following terms:

    “We write on behalf of our above named client who has been detained for questioning in relation to an alleged assault that took place on or about 11 January 2014.

    It is our understanding that gardaí are in possession of a number of documents, including witness statements that are relevant to the investigating (sic). We understand also that mobile phone footage and memos of interviews with other persons detained previously will also being put to our client during interview.

    In order that we can advise our client and protect his interests, as well as represent him effectively during the interview process, we will require all of this information to be disclosed in advance of interview. We will also require sufficient time to discuss the material with our client and obtain instructions.

    In this regard our client relies on the provisions of EU Directive 2012/13/EU in requesting access to information about this matter that is in the hands of the prosecuting authorities. We are seeking, more detailed information about the incident under investigation in order to establish the precise nature/extent of the alleged participation by our client.

    Our client relies, in particular, on the provisions of Article 6 (3) of the Directive, which states:

    ‘Member States shall ensure that, at the latest on submission of the merits of the accusation to a court, detailed information is provided on the accusation, including the nature and legal classification of the criminal offence, as well as the nature of participation by the accused person.’ (Emphasis added).

    This Directive has had direct effect in law since 02 June 2014 and is therefore applicable to these circumstances…”

  5. Mr. Finucane arrived at the Garda Station at more or less the same time as the fax was sent and spoke to one of the investigating Gardaí. Mr. Finucane furnished the Garda with a copy of EU Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the Right to Information in Criminal Proceedings. He informed the Garda that he was relying on this Directive in support of a request that he be furnished with all the evidence which would be put to Mr. Maloney in advance of any proposed interview to include all witness statements, physical exhibits and footage from recordings. The Garda declined to disclose this evidence in advance of the interview to Mr. Finucane and instead gave an outline of the nature of the evidence. Arising from that, Mr. Finucane indicated that he intended to challenge the applicant’s detention in the High Court that day.

  6. The interview then proceeded and in fact a total of three interviews took place with Mr. Maloney in the presence of his solicitor over the course of two days, the 17th and 18th of September, 2015. At the commencement of the first interview, Mr. Maloney declined to answer any questions put to him and stated:

    “I understand that I have been arrested on suspicion of an offence contrary to s. 4 of the Non Fatal Offences Against the Person (sic). I have been advised by my solicitor that Gardaí have certain evidence they want to put to me in interview but will not disclose it in advance as a result my solicitor unable (sic) to advise me properly and I am unable to answer any questions.”

  7. Thereafter, Mr. Maloney refused to answer any questions put to him by the Gardaí. Instead he simply responded with “I refer to my last answer”, “I can’t answer that” or “no comment”. On a number of occasions, the interviews were suspended at the request of Mr. Finucane to enable him to consult privately with Mr. Maloney.

  8. It should be noted that this was not the first involvement of Mr. Finucane on behalf of his client in relation to the matter. In January 2014, Mr. Finucane was in contact with the Gardaí on his client’s behalf as a result of which he was offered the opportunity of carrying an independent post mortem examination on the body of Vincent Maher.

  9. Later that day, Mr. Maloney moved the High Court for an inquiry into the lawfulness of his detention pursuant to Article 40 of the Constitution. It would appear that in the course of the matter being opened to the court, the judge indicated that he was of the view that the matter was more appropriately brought by way of application for judicial review. Accordingly a...

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