The People (at the suit of the Director of Public Prosecutions) v BK
| Jurisdiction | Ireland |
| Judge | Mr Justice Peter Charleton |
| Judgment Date | 13 October 2023 |
| Neutral Citation | [2023] IESC 23 |
| Court | Supreme Court |
| Docket Number | Supreme Court appeal number: S:AP:IE:2023:000121 Circuit Criminal Court bill number: TYDP0054/2019 [2022] IECA 248 |
[2023] IESC 23
Dunne J
Charleton J
O'Malley J
Woulfe J
Murray J
Supreme Court appeal number: S:AP:IE:2023:000121
Court of Appeal record number: 2021/158
Circuit Criminal Court bill number: TYDP0054/2019
An Chúirt Uachtarach
The Supreme Court
Criminal proceedings – Admissibility of evidence – Child abuse – Appellant appealing against the judgment and order reversing the trial judge’s decision that principles of fairness required him to rule admissions inadmissible in evidence – Whether admissions outside of arrest and custody require particular safeguards for admissibility at a criminal trial
Facts: A series of alleged confessions to participation in child abuse and child neglect were apparently recorded as against the appellant during an examination in aid of wardship by a psychologist into her capacity to care for her three children. The objective of the psychological interviews was essentially to enquire into, and potentially to validate, the appellant’s claim that she had nothing to do with the physical and sexual abuse of the children which had been shared on the Internet as child pornography. Her husband and another man were prosecuted for those offences and on conviction were sentenced to imprisonment. Her earlier denials of knowledge and of participation in the offences formed part of the background whereby the Director of Public Prosecutions (the DPP) decided not to prosecute her. Once the admissions were allegedly made in the psychological assessment, and consequently shared with the relevant agencies, the DPP reversed the earlier decision and had the appellant charged. At her trial in Clonmel Circuit Court, on 14 July 2021, the judge, in the absence of the jury, on a voir dire, analysed the circumstances around the recording of the alleged admissions and decided that principles of fairness required him to rule those as inadmissible in evidence. There being insufficient other ostensibly incriminatory evidence, the jury were instructed by the trial judge to enter a verdict of not guilty by direction. The DPP appealed that acquittal to the Court of Appeal under s. 23 of the Criminal Procedure Act 2010. The Court of Appeal, on 14 October 2022, reversed the decision of the trial judge and, further, ordered that the appellant should be retried: [2022] IECA 248. The Court of Appeal ruled that while there were grounds for caution, there was no basis for excluding the alleged admissions. Since the examination into the appellant’s maternal capacity was conducted with the aid of a polygraph lie-detector system (which no one sought to introduce in evidence) and since there was no caution against self-incrimination or any other of the safeguards usually deployed for the professional police interview of suspects under arrest, the fairness of the admission of such confessions continued to be called into question on appeal to the Supreme Court.
Held by the Court that there was no basis for excluding any of what the appellant said in the context of the interview with the psychologist. The Court found that there was nothing to suggest that the polygraph test was used as an instrument of oppression, whereby unless particular answers were given or admissions were made, the appellant would be reported as an unsafe contact for her children. The Court found that the instrument was used by the psychologist for the purpose only of securing verification, as an aid to discovering where the truth might lie. The Court found that there was no aspect of the series of interviews which in any way could be said to be equivalent to the circumstance of arrest or of being put under authority in consequence of detention for the purpose of the investigation of a crime. The Court held that this was completely different, a measured investigation into potential threat where there was no purpose of charging anyone with any offence or of exercising any form of coercion.
The Court held that the decision of the trial judge to exclude the alleged confession material which was elicited during the interviews in aid of wardship was incorrect. The Court affirmed the decision of the Court of Appeal. The Supreme Court required submissions as to whether it should order a retrial of the appellant on the charges.
Appeal dismissed.
Judgment of Mr Justice Peter Charleton delivered on Friday 13 October 2023
This appeal concerns the admissibility in criminal proceedings of a series of alleged confessions to participation in child abuse and child neglect, apparently recorded as against BK during an examination in aid of wardship by a psychologist into her capacity to care for her three children, here called A, B and C. These alleged admissions, consequently, were not in a custody setting, but in the context of wardship proceedings as to the care of A, B and C and an enquiry by the High Court as to the safety of access by BK to them. The key questions consequently arising here are: do such admissions outside of arrest and custody require particular safeguards for admissibility at a criminal trial; if so, are such safeguards equivalent to those applicable in an arrest for questioning situation; and, is any apparent admission of guilt subject to a general principal whereby a confession to a crime may be excluded because of unfairness as to the manner of taking same?
The objective of the psychological interviews, five in total, was essentially to enquire into, and potentially to validate, BK's claim that she had nothing to do with the physical and sexual abuse of A, B and C which had been shared on the Internet as child pornography. Her husband, here called LK, and another man, NM, were prosecuted for these offences and on conviction were sentenced to imprisonment.
BK's earlier denials of knowledge and of participation in the offences formed part of the background whereby the Director of Public Prosecutions decided not to prosecute her. Once the admissions were allegedly made in the psychological assessment, and consequently shared with the relevant agencies, the DPP reversed the earlier decision and had BK charged.
At her trial in Clonmel Circuit Court, on 14 July 2021, the judge, in the absence of the jury, on a voir dire, analysed the circumstances around the recording of the alleged admissions and decided that principles of fairness required him to rule these as inadmissible in evidence. There being insufficient other ostensibly incriminatory evidence, the jury were instructed by the trial judge to enter a verdict of not guilty by direction. The DPP appealed that acquittal to the Court of Appeal under s 23 of the Criminal Procedure Act 2010. The Court of Appeal, on 14 October 2022, [2022] IECA 248, reversed the decision of the trial judge and, further, ordered that BK should be retried; ruling that while there were grounds for caution, there was no basis for excluding the alleged admissions. Since the examination into BK's maternal capacity was conducted with the aid of a polygraph lie-detector system, (which no one sought, or now seeks, to introduce in evidence) and since there was no caution against self-incrimination or any other of the safeguards usually deployed for the professional police interview of suspects under arrest, the fairness of the admission of such confessions continues to be called into question on this appeal.
In the determination granting further leave to appeal from the Court of Appeal, [2023] IESCDET 9, and after hearing the parties at case management, this Court fixed the following as the essential issues for disposal:
1. Whether admissions made in a psychological assessment directed by the High Court in proceedings akin to wardship should be admitted in evidence against an accused in a criminal prosecution where, following a Garda investigation into the subject matter (possible child abuse) the DPP had already decided not to prosecute this accused in respect of that investigation and that decision had been conveyed to her prior to her agreeing to undergo such assessment?
2. Whether admissions gained in a psychological assessment conducted with the aid of a polygraph in civil proceedings should be admitted in a criminal trial?
3. Where an inculpatory statement is made by a person in the course of a psychological assessment conducted during civil proceedings what, if any, are the conditions for the admissibility of any such statement during a criminal trial?
BK is the mother of A, B and C. Two of these three offspring are adults. All have special needs. LK is the father. In March 2015, in consequence of notification from an international agency, gardaí began investigating what appeared to be a serious case of child pornography sharing over the Internet, which invariably also involves child abuse and sexual assault. Relevant investigations led to an IP address used by BK and NM. On a search of the family home of BK and LK, a camera was found with memory capacity. Footage and stills from it showed criminal actions against A, B and C. In addition, items reproduced from those images were found in the home as potential matches. LK and NM were arrested and successfully prosecuted, receiving condign terms of imprisonment.
BK was also arrested to further the investigation into these offences. There were garda interviews under caution, involving the ordinary safeguards, conducted with BK while under arrest as a suspect. Her response was a complete denial of either involvement in, or any awareness that, any such crimes were taking place as against A, B and C or any of them.
It may be inferred that since there was no identification of BK in any of the images and in the light of the denials, the DPP decided not to prosecute. This decision was dated 29 July 2015 and was...
To continue reading
Request your trial
-
ESB v Sharkey
...relevance, if any, of the decision. The parties agreed that further submissions could also be made on a Supreme Court decision DPP v BK [2023] IESC 23, which post-dated the hearing. They also agreed that I could have regard to a letter received from Richmond and Arkmount on 11 November 2023......
-
DPP v B.K.
...COURT Judgment of Mr. Justice Brian Murray delivered on the 14 th of December 2023 1 . Charleton J. in his judgment of 13 October 2023 ( [2023] IESC 23) (with which all members of the Court agreed) explained why the trial judge erred in concluding that alleged confessions made by the appell......