The Irish Times Law Report: People (DPP) (prosecutor) v. Paul Kelly (accused).
Criminal Law - Admissibility of evidence - Conduct of interview - Whether obligation to bring prisoner to station with video-taping facilities - Whether there is a requirement to warn prisoner of change of focus of questioning at interview -Whether requirement exists to remind accused of right to a solicitor after change of focus of questioning - Whether compound questions are unfair - Whether there is a requirement to make a record of the verbal interpretation of the s.2 caution - Whether the accused's right to a solicitor is infringed if he cannot confer with the solicitor in private - Offences Against the State Act 1939 - ss 21,39 - Offences Against the State (Amendment) Act, 1998 ss 2,5 - Offences Against the State (Scheduled Offences) Order, 1972.
The Special Criminal Court (before Mr Justice O'Donovan, Judge Mathews and Judge Malone); judgment delivered November 26th, 2004.
Basic fairness dictates that, where it is possible to do so, a prisoner should be brought to a garda station in which video recording facilities are available when it is intended to interview that prisoner in circumstances where the provisions of section 2 of the Act of 1998 will be invoked. Basic fairness also requires that the accused be informed of the change in focus of his questioning and reminded of his right to legal advice, in particular, where section 2 of the Act of 1998 is to be invoked.
The Special Criminal Court so held in finding that the interviews held on July 2nd were tainted with unfairness and that evidence gleaned therein was inadmissible.
Aileen Donnelly SC with Padraig Dwyer BL for the accused; George Birmingham SC with Una Ni Raifeartaigh BL for the prosecutor.
Mr Justice O'Donovan delivering the judgment of the court began by outlining the three points which counsel for the defendant was challenging within the trial. The defence submitted that the accused's arrest and detention was unlawful, and that evidence of what subsequently occurred during the detention was inadmissible. The defence submitted, alternatively, that the extension by the chief superintendent of the period of the defendant's detention on July 1st, 2003, was unlawful and that evidence of what subsequently occurred during the detention was inadmissible. As a further alternative, the defence submitted that two interviews, to which the defendant was subjected on July 2nd, 2003, one at 8.15am with Garda Sheridan and Detective Garda Murray, and the second at 10.45am with Detective Gardai Boyle and Flanagan, were tainted with unfairness to such an extent that their content was inadmissible in evidence.
With regard to the legality of the accused's arrest and detention, it was submitted that the evidence of Det Sergeant Duffy was not adequate to justify a suspicion, much less a reasonable suspicion as required by section 30 of the Offences Against the State Act, 1939, the section relied upon for the defendant's arrest, that the defendant had committed the scheduled offence of unlawful possession of explosives. Evidence had been given of garda surveillance of the accused and persons he was in the company of at the relevant time. The court held in light of the evidence that Det Sergeant Duffy had adequate reasons to suspect the defendant of the offence for which he was arrested, and, accordingly, that the arrest was lawful. In this regard, for the sake of completeness, the court accepted that by virtue of the provisions of the European Convention of Human Rights, which is now part of the domestic law in this jurisdiction, and in particular Article 5c thereof, it is necessary that the suspicion to justify an arrest under section 30 of the Offences Against the State Act 1939 be a reasonable one and that it be bona fide as laid down by the court in the case of DPP v. Quilligan IR 495.
Insofar as counsel challenged the lawfulness of the extension of the period of Mr Kelly's detention was concerned, she submitted that notwithstanding the chief superintendent's assertion that he had granted the extension on the grounds that it was necessary for the proper investigation of the offence for which the accused was then in custody, that is, the unlawful possession of explosives, the reality was that, as was clear from the evidence of the investigating gardai, that the extension was sought and granted not so much for the purpose of asking the accused about the possession of explosives, for which he had already been subjected to questioning for eleven and a half hours, but rather for the purpose of questioning the accused about his alleged membership of the IRA, and in particular, to be interviewed in circumstances where the provisions of section 2 of the 1998 Act was invoked. While the court was of the view that there was substance to this belief, it held that it could not invalidate the extension of the accused's period of detention, because section 30.3 of the Act of 1939, which permits the extension to be granted, provides for no specific preconditions for the exercise of that power.
Mr Justice O'Donovan then ruled upon the defence submission that two interviews, to which the defendant was subjected on July 2nd 2003, one at 8.15am with Garda Sheridan and Det Garda Murray, and the second at 10.45am with Det Gardai Boyle and Flanagan, were tainted with unfairness to such an extent that their content was inadmissible in evidence.
The defence challenged the fairness of the interviews on the following grounds: a) that the accused was subjected to those interviews in a garda station in which video recording of interview facilities were not available; b) that given that the focus of the interview to which the accused was to be subjected on July 2nd, namely an allegation of membership of the IRA, was very different from the focus of the interviews to which he had been subjected for 11 and a half hours on the previous day, that is possession of explosive substance and in particular, given that section 2 of the 1998 Act was to be invoked and that it involved different legal implications from those which had obtained previously, basis fairness demanded that he be reminded of his right to seek legal advice, which did not happen; c) that given that the focus of the interviews was to change from that which previously obtained, basic fairness also demanded that the accused be advised of that change and again that did not happen; d) that the form of questioning during the course of these interviews was unfair, in that the majority of the questions were compound, or in effect, loaded questions, and were not susceptible to straightforward answering; e) that there was no record of the verbal interpretation of section 2 of the 1998 Act, which the interviewing gardai said they had given to the accused and therefore the court was not in a position to know beyond reasonable doubt whether or not that interpretation was accurate; f) the accused was not afforded privacy when on the telephone to his solicitor, which occurred in the public office; g) that it was quite clear from the evidence of the interviewing gardai that the interviews were more than an exercise to invoke the provisions of section 2 of the 1998 Act than they were to elicit information from the accused; h) that section 5 of the 1998 Act was referred to, but not quoted, or properly explained; i) that the conventional caution was withdrawn but the accused was not advised that he still had a right to silence, albeit at a price provided by section 2 of the 1998 Act.
In respect of the first submission, the court held that since the investigating gardai were aware that during his detention, the accused would be interviewed about allegations that he was a member of the IRA, and that section 2 of the Act of 1998 would be invoked, it would be preferable that the interview be video taped. The court added that it felt that it was clear that both Det Inspector Sheridan and Det Sergeant Duffy should have recognised this fact. The court reiterated that there was no legal obligation on the gardai to bring the accused to a garda station at which video taping facilities were available. The court also held that the reasons that the gardai had advanced for bringing the accused to Dundalk Garda Station, so that the accused could be near his family and his legal advisors, were very reasonable. Nevertheless, the court stated that it had grave reservations about the gardai's failure to bring the accused to a station at which video recording facilities were available. The court therefore doubted that the accused's detention, while legal, was fair. Mr Justice O'Donovan had regard to the judgment of Hardiman J. in the DPP v. Connelly 2 IR 1 who stated that "it is clear from the history of legal and legislative concern with uncorroborated confessions over a period of nearly two decades, that legislatures and judges alike have emphasised the importance of audio visual recording of interviews. This is routine in most first world common law countries". The court rejected the submission on the part of the prosecution that a finding that the failure to bring the accused to a garda station with video recording facilities was tantamount to legislating. The court accepted that there is no statutory requirement to bring a prisoner who is to be interviewed to a garda station in which facilities for video recording are available. However, the court stated that it believed that where it is possible to do so, as in this case, that basic fairness required that a prisoner whom it is intended to interview under circumstances where it is the intention to invoke the provisions of section 2 of the Act of 1998, that prisoner should be brought to a garda station in which video recording facilities are available.
Insofar as the failure to remind the accused that he was entitled to seek legal advice was concerned, notwithstanding that the accused was originally advised of his right to consult a solicitor, and in fact was in contact with his solicitor on four occasions during the day of July 1st, 2003, in the circumstances that the gardai changed the focus of their interviewing on July 2nd, 2003, in a way that introduced new legal concepts as to what had obtained previously, the court was again of the view that on the morning of July 2nd, 2003, basic fairness required that the accused be reminded of his right to consult a solicitor. The court rejected the submission of the prosecution that because the accused did not complain that he did not know what was happening and indicated that he did understand, and because he had the opportunity to complain to his solicitor, which he did not take, he was not entitled to any further advice with regard to contacting his solicitor.
Insofar as the third part of the defence submission was concerned, the court believed that in all fairness the accused should have been told that the focus of his questioning was being changed from what it had been on the previous day at the start of the interview to which he was subjected on July 2nd, 2003.
Insofar as the form of questioning to which the accused was subjected, the court was of the view that the form was unfair. Given that many of the questions used were compound and for the most part qualified by the phrase "in your capacity as a member of an unlawful organisation, namely the IRA, otherwise known as Oglaigh no hEireann, otherwise known as the Irish Republican Army". Therefore they were not susceptible to straightforward answering.
With regard to the fact that there was no record of the verbal interpretation of section 2 of the 1998 Act, which the interviewing gardai say was given to the accused, the court could not be sure beyond reasonable doubt, that the explanation that was given was accurate. It was no answer to this point, as suggested by the prosecution, that the template used accurately interprets section 2, because for all the court knew, in the absence of a record of what was actually said, the accused might have been told something which conflicted with the template, and confused the accused. Indeed, he said in his evidence that he was confused, although, in fairness, he made no complaint at the time, and he did not take the opportunity to complain to his solicitor.
With respect to the sixth submission, the court stated that it was undesirable that the accused was required to speak to his solicitor on a telephone in a public office. It was the court's view that this offended the accused's right to privacy. The court agreed that on the available evidence the interviews conducted on July 2nd, 2003, were calculated more as a medium for invoking section 2 of the 1998 Act than for eliciting information which offended what the court believed to be the accused's fundamental right, that interviewing gardai should interact with him in the course of the interview and seemed to offend the principle of fair procedures as set out in The State (Healy) v. Donoghue IR. The court was not persuaded that the accused had any legitimate complaint arising from the fact that at a certain stage of the interview the conventional caution was initially administered to him was withdrawn, nor did it consider that it was incumbent on the interviewing gardai to quote the provisions of section 5 of the 1998 Act to him.
However, for all of the foregoing reasons, the court was of the view that the interviews of the accused which took place on July 2nd, 2003, were tainted with unfairness and accordingly the products thereof were not admissible in evidence.
Solicitors: MacGuill & Company (Dublin) for the accused; Chief Prosecution Solicitor for the prosecution.
Alison de Bruir, barrister