People (DPP v Healy

• Jurisdiction: Ireland
• Judgment Date: 01 January 1990
• Date: 01 January 1990
• Docket Number: [S.C. No. 29 of 1987]
• Court: Supreme Court

Supreme Court

[S.C. No. 29 of 1987]

The People (Director of Public Prosecutions) v. Healy

The People (at the suit of The Director of Public Prosecutions)

and

Paul Healy

Cases mentioned in this report:—

Council of Civil Service Unions v. Minister for The Civil ServiceELRWLRUNK [1985] A.C. 374; [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935.

In re Emergency Powers Bill, 1976IRDLTR [1977] I.R. 159; (1976) 111 I.L.T.R. 29.

In re HaugheyIR [1971] I.R. 217.

Miranda v. ArizonaUNK (1966) 384 U.S. 436.

Moran v. BrabringUNK (1985) 475 U.S. 412.

The People (Attorney General) v. O'BrienIR [1965] I.R. 142.

The People (D.P.P.) v. ConroyIRDLRM [1986] I.R. 460; [1988] I.L.R.M. 4, 11.

The People v. FarrellIR [1978] I.R. 13.

The People v. LynchIRDLRM [1982] I.R. 64; [1981] I.L.R.M. 389.

The People v. MaddenIRDLTR [1977] I.R. 336; (1976) 111 I.L.T.R. 117.

The People (Director of Public Prosecutions) v. Pringle (1981) 2 Frewen 57.

The People (D.P.P.) v. QuilliganIRDLRM [1986] I.R. 495; [1987] I.L.R.M. 606.

The People v. ShawIR [1982] I.R. 1.

The People v. WalshIR [1980] I.R. 294.

The State (Harrington) v. Commissioner of An Garda Síochána (Unreported, High Court, Finlay P., 14th December, 1976).

The State (Healy) v. DonoghueIRDLTRDLTR [1976] I.R. 325; (1975) 110 I.L.T.R. 9; (1976) 112 I.L.T.R. 37.

The State (Keegan) v. Stardust Victims' Compensation TribunalIRDLRM [1986] I.R. 642; [1987] I.L.R.M. 202.

Criminal law - Evidence - Admission - Defendant arrested and detained in custody - Solicitor retained by defendant 's family - Solicitor refused access to defendant - Statement made by defendant while in custody - Whether access to solicitor a constitutional or legal right - Whether refusal of right of access rendered statement inadmissible - Meaning of "deliberate and conscious" breach of constitutional right.

Appeal from the Central Criminal Court.

The facts have been summarised in the headnote and appear in the judgment of Finlay C.J., post.

On the 21st January, 1987, the defendant was tried before the Central Criminal Court and was found not guilty by direction of the trial judge (Egan J.) of counts of attempted murder, shooting with intent to cause grievous bodily harm and robbery. By notice of motion dated the 11th February, 1987, the Director of Public Prosecutions appealed to the Supreme Court from the verdict and order of the Central Criminal Court and sought in lieu thereof an order that a new trial be held.

The appeal was heard by the Supreme Court on the 13th and 14th June, 1989.

The defendant was arrested and detained by members of the Garda Síochána pursuant to s. 30 of the Offences Against the State Act, 1939, on suspicion of being in unlawful possession of firearms. After he had been interviewed for several hours by garda in relation to an attempted armed robbery of which he was suspected, he commenced to make a statement. Shortly thereafter a solicitor who had been retained by a member of the defendant's family arrived at the garda station and sought an interview with the defendant. The solicitor was refused admission to see the defendant until the statement had been completed; the stated reason for such refusal was the belief of the garda in charge that it would be "bad manners" to interrupt the interview then taking place.

The defendant was subsequently charged with counts of attempted murder, shooting with intent to cause grievous bodily harm and robbery, The only evidence against him at his trial before the Central Criminal Court was the statement made by him while in garda custody, After hearing evidence in the absence of the jury, the trial judge ruled that the defendant had been denied, without any excuse, his right of access to his solicitor and that the court could not be satisfied that the incriminating admissions contained in the defendant's statement were made prior to the denial of that right. Accordingly he directed the jury to enter verdicts of not guilty.

On the Director of Public Prosecution's appeal against the verdict and order of the Central Criminal Court it was

Held by the Supreme Court (Finlay C.J., Walsh, Griffin, Hederman and McCarthy JJ.) in dismissing the appeal, 1, that there was no distinction between the right of access to a solicitor arising from a detained person's own request for a solicitor and that which arises from the presence of a solicitor whose attendance has been requested by other persons bona fide acting on the detainee's behalf.

The State (Harrington) v. Commissioner of An Garda Síochána (Unreported, High Court, Finlay P., 14th December, 1976) approved.

2. (Finlay C.J,, Walsh, Hederman and McCarthy JJ.) That the right of the defendant to reasonable access to his solicitor was derived from, and protected by, the Constitution and was not merely legal in origin.

3. That the right of the defendant to reasonable access to his solicitor meant a right to be immediately informed of the solicitor's arrival and (in the absence of reasons which, objectively viewed from the point of view of the interest and welfare of the defendant, were valid) to be given immediate access to him if requested.

4. That where a breach of the constitutional right of access to a solicitor occurred as a result of the deliberate and conscious acts of a member of the Garda Síochána, any admission subsequently obtained from a person detained in custody was inadmissible in evidence.

5. That, in relation to the phrase "deliberate and conscious", the test was whether the actionsof the garda had been deliberate and conscious; the motives of the garda were irrelevant and, in particular, it was immaterial whether he was aware that the refusal of access amounted to a breach of the defendant's constitutional rights.

6. That the decision of the trial judge that it was impossible to be satisfied beyond reasonable doubt that the incriminating statements had been made by the defendant prior to the arrival of his solicitor was a finding of fact which could not be disturbed by the Supreme Court on appeal,

Per Griffin J. That it was unnecessary to decide whether the right of access to a solicitor was a constitutional or merely legal right; in any event the denial of that right to the defendant meant that his statement had been obtained in breach of the constitutional guarantee of basic or fundamental fairness of procedures and should, accordingly, be excluded from evidence,

The People v. ShawIR [1982] I.R. 1 considered.

Cur. adv. vult.

Finlay C.J.

This is an appeal by the Director of Public Prosecutions against a judgment and verdict of the Central Criminal Court pronounced on the 21st January, 1987, whereby the defendant was found not guilty by direction of the offences of attempted murder, shooting with intent to do grievous bodily harm, and robbery, all of which arose out of an attempted armed robbery which occurred on the 21st February, 1986, in the city of Dublin.

The only evidence tendered by the prosecution against the defendant which would associate him with participation in the crimes which had been committed was a statement in writing made by him to members of the Garda Síochána whilst in their custody following upon his arrest pursuant to s. 30 of the Offences Against the State Act, 1939.

The admissibility of this statement was challenged by the defence on the ground that prior to the completion of it a solicitor retained by the defendant's family had arrived at the garda station and requested an interview with the defendant. He was not permitted to see him nor was the defendant informed of his presence until after the completion and signing of the statement.

The learned trial judge ruled:—

• (a) that the defendant had been, without any excuse, denied a right of instant access to his solicitor, and

• (b) that he, the learned trial judge, could not be satisfied that the incriminating admissions contained in the written statement were made prior to the denial of that right of access.

He accordingly ruled that the statement was inadmissible in law and directed the jury to acquit the defendant.

The facts

The defendant, who was then about eighteen years of age, was arrested at 7.55 a.m. on the 12th March, 1986, pursuant to s. 30 of the Act of 1939 on suspicion of being in unlawful possession of firearms at Fitzmaurice Road, Finglas, on the 21st February, 1986.

He was brought to Finglas garda station and there interviewed by two members of the Garda Síochána between 8.15 a.m. and 11.20 a.m. and by a further different pair of members of the Garda Síochána between 11.20 a.m. and 1.15 p.m.

He was then placed in a cell and given lunch, having been advised by those interviewing him to consider his position about the crimes of which he was suspected. After lunch he was again interviewed by the same members of the Garda Síochána who had interviewed him immediately prior to lunch, in an interview commencing at 2.50 p.m.

At approximately 3.40 p.m. he stated that "he would tell the truth about the robbery but did not want to involve his colleagues".

He then commenced to make a statement which was written down and which he signed when it was completed at 4.30 p.m.

At 4.00 p.m. Mr. Dermot Morris, a solicitor who had been retained by a member of the defendant's family, arrived at the garda station and sought an interview with the defendant. He was informed that the defendant was being interviewed and was asked to wait. He protested at this and asserted a right to be brought to the accused, but was told that he would have to wait. He was eventually permitted to see the defendant at 4.34 p.m., immediately after the completion of the statement.

Detective Superintendent Burns was the garda officer who took responsibility for dealing with the solicitor's request for an interview. He was aware that the defendant was at the time of the arrival of the solicitor being interviewed but he was unaware that he had agreed to tell the truth about the robbery. The...