The Supreme Court has granted an appeal by the State against the first successful challenge to new security legislation enacted following the Omagh bombing.
The five-judge court unanimously found unlawful a High Court decision directing the release from Garda custody of a Dundalk man, who had been arrested by gardai investigating the bombing, on grounds relating to the refusal of gardai to make interview notes available to the man's solicitor. No charges were preferred against Mr Deaglan Lavery (23), of Sliabh Foy Park, Dundalk, Co Louth.
In the case, Mr Lavery's solicitor was effectively asking to be given regular updates of the progress of the Garda investigation, and this was going too far, Mr Justice O'Flaherty found. The solicitor was not entitled to be present at interviews or to prescribe how or where these should be conducted.
However, he added, the court was struck by the apparent inconsistency in the State's attitude that, although the detained man could see the notes of the interviews, his solicitor could not. "While this may have been a somewhat incongruous course of conduct, it does not render the detention unlawful."
He added that if a charge had followed on the detention, a defendant and his legal advisers would have been entitled to all relevant documents.
Following his arrest at his home last September 30th, Mr Lavery had taken an application before the High Court under Article 40 of the Constitution, alleging a breach of his right to appropriate access to a solicitor through the refusal to allow the solicitor to read notes of his interviews with gardai.
Directing Mr Lavery's release on October 2nd last, Ms Justice McGuinness held that up to the enactment of the Offences Against the State (Amendment) Act, 1998, no such right existed. However, that new legislation created an exception because now suspects were obliged by law to volunteer information.
The judge held that a person arrested under the new legislation was in a special difficulty in trying to know what information must be volunteered and ruled that the notes of the Garda interviews with Mr Lavery should be available to Mr Lavery's solicitor during consultations with his client. However, she added, the solicitor would not be permitted to take copies of the notes or remove them from the Garda station.
Mr Justice O'Flaherty said that consequent on the "terrorist outrage" at Omagh on August 15th, 1998, which killed 29 people, the Oireachtas had enacted the OASA (Amendment) Act, 1998.
The present case was concerned with the operation and scope of Sections 2 and 5 of that Act. Section 2 allowed inferences to be drawn from a person's failure to answer questions material to the investigation of the offence. Section 5 was similar except that it applied to a wider range of offences.
The judge said Mr Lavery was arrested under Section 30 of the Offences Against the State Act, 1939, on suspicion of being a member of an unlawful organisation and was taken to Carrickamcross Garda station.
His solicitor, Mr James MacGuill, was contacted by gardai, spoke with his client and gave him certain advice including advice regarding the new obligations under the 1998 Act.
Mr MacGuill said complete notes of the interviews should be taken and made available to Mr Lavery and Mr MacGuill before the end of his detention.
The solicitor was told notes of the interviews would not be made available to him. He was told by Mr Lavery that notes being taken of interviews did not record all the questions and answers given and other matters.
Mr Justice O'Flaherty said it should be said that the superintendent was willing for Mr Lavery to see the notes at all times, but the State took the stance that it should not be required to hand over the notes to the solicitor.
The judge said it was beyond debate that a person detained under the Offences Against the State Act, 1939, and all amending Acts, had a constitutional right of access to a legal adviser.
But, he said, the right of access was one of reasonable access. Mr MacGuill had not complained that he had not been given reasonable access but had argued that the new legislation required that he, as Mr Lavery's solicitor, should be given access to the notes of the interviews with his client. Once that was refused, Mr MacGuill had argued Mr Lavery's detention was unlawful and he should be freed. The High Court had held with that submission.
Mr Justice O'Flaherty said the question for the Supreme Court to resolve was whether such deprivation as Mr MacGuill, as solicitor for Mr Lavery, had suffered meant that Mr Lavery's detention was unlawful.
if a person in custody was denied blanket access to legal advice, or was subject to ill treatment, his detention would be unlawful, the judge said. However, gardai must be allowed to exercise their powers of interrogation as they thought right, provided they acted reasonably, the judge added.
