Court of Criminal Appeal dismisses appeal finding no denial of legal access due to reasonable Garda efforts.

COURT OF CRIMINAL APPEAL

APPEAL NO. 2008 No. 20

Finnegan J.

Hanna J.

Charleton J.

BETWEEN:

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

.v.

RAYMOND GORMLEY

APPLICANT

Judgment of the Court delivered on the 4th day of March 2010 by Finnegan J.

1. The applicant claims a denial of his right to reasonable access to legal advice while in Garda custody. It is accepted that the

Gardai made reasonable efforts to contact a solicitor nominated by the applicant. The submission focuses on what occurred after the

Gardai succeeded in contacting the solicitor nominated. The solicitor made contact with the Gardai at 15.05 and informed them that

he would be at the station “shortly after 4 p.m.” or “as soon as he possibly could after 4 p.m.”. The Gardai commenced interviewing

the applicant some five minutes later and continued to interview him until the arrival of the solicitor at 16.48 some one hour and forty

three minutes after contact was made.

2. The court invited the applicant to set out a general constitutional principle upon which the argument was advanced. In response it

was suggested that there is a denial of access to legal advice while in Garda custody if the Gardai upon being informed that a solicitor

will be attending at the Garda Station do not suspend an interview which is in progress or if they do not wait a reasonable time prior

to commencing an interview or recommencing a suspended interview. It was further submitted that where information comes to the

Gardai that a solicitor will arrive at a particular time it is only after that time has elapsed, and perhaps a reasonable time thereafter to

allow for the normal contingencies of travel, that an interview may be embarked upon or recommenced. The submission did not focus

at all on the lapse of time between arrest and the commencement of interview. However in response to questions it was submitted

that the same principle would apply in the period prior to contact being made with a solicitor – once a solicitor was requested an

interview should not commence or if it had commenced should be suspended allowing a reasonable time for contact to be made with

the solicitor: once contact was made then an interview should not commence or if it had commenced should be suspended and a

reasonable time allowed for the solicitor to arrive at the Garda Station before commencing or recommencing an interview.

3. The applicants accept that very considerable and diligent efforts were made by the Gardai to contact a solicitor nominated by the

applicant. It is very clear that this is indeed so. However in commencing an interview shortly after that solicitor contacted the Gardai

it is submitted the applicant’s constitutional right to access to legal advice had been infringed and that any statements made prior to

the arrival of the solicitor should not have been admitted at the trial. The custody became unlawful upon the commencement of the

interview and all statements made were thereby rendered inadmissible in evidence. Reasonable access to a solicitor, it is submitted,

must mean access before an interview commences. Where a solicitor gives an indication that he will arrive within an hour or two hours

or perhaps more all interviews must stop.

4. On Sunday 24th April 2005 the complainant was asleep in her bed in the early hours of the morning. She awoke because the

applicant who was known to her had climbed up a drain pipe and through the upper floor window of her house, entered her bedroom

and entered her bed and commenced sexual activity. This was without her consent. The Applicant was convicted of attempted rape

contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990. Shortly after awaking the complainant the applicant left her

house through the front door. When complaint was made later on that Sunday morning to the Gardai they commenced a search for

the applicant and found him at his apartment where shortly before 2 p.m. they arrested the applicant. He arrived at the Garda Station

at 2 p.m. and was duly processed. He was informed of his rights, including his right to make a telephone call to a relative or friend as

to his whereabouts, and his entitlement to legal advice. At 2.15 p.m. he nominated two solicitors with either of whom he wished to

speak. They were Mr Cathal Quinn and Mr Ciaran Dillon. The Gardai had available office telephone numbers for each of the solicitors

but had no mobile or home telephone numbers for either of them. Immediately a Garda car was dispatched because there was a

reasonable prospect of finding Mr Dillon in reliance on the local knowledge of the Gardai. They called to his parents house where there

was no reply. They then called to his residence and spoke to his wife and she agreed to contact Mr Dillon. These efforts consumed

over half an hour. At 3.05 p.m. Mr Dillon contacted the Garda Station and said that he would be there either “shortly after 4 p.m.” or

as soon as he possibly could after 4 p.m.”. He gave no reason for this delay nor did he indicate where he was. Mr Dillon did not ask to

speak to the applicant on the telephone with a view to giving him legal advice. The applicant’s first interview commenced at 3.10 p.m.

and ended at 4.46 p.m. Mr Dillon arrived at 4.48 p.m., a considerable time after 4 p.m. his suggested time of arrival. He was

immediately admitted to a private room in order to speak with the applicant and they had a consultation lasting forty five minutes.

The Gardai commenced a second interview with the applicant at 6.47 p.m. which continued until 8.33 p.m. During all of this time the

six hours available to the Gardai under the Criminal Justice Act 1984 for the purpose of interviewing the applicant was elapsing. As a

matter of fact three hours had elapsed between the arrest of the applicant and the eventual arrival of his solicitor.

5. The court is satisfied that it was open on the evidence for the learned trial judge to conclude that the Gardai had regard to the

constitutional rights of the accused to reasonable access to legal advice while in custody as part of their responsibility. To vindicate

that right more than reasonable efforts were expended by them. There was no question of the Gardai misinforming the applicant of

any aspect of these events. There was nothing to suggest the Gardai were engaged in any colourable manoeuvres whereby the

applicant’s right of access to legal advice while in Garda custody was being delayed or interfered with. However it is submitted on

behalf of the applicant that the Garda should have refrained on an almost indefinite basis from conducting a proper investigation of

the events. The court does not accept this submission.

6. Once a reasonable suspicion arose that the applicant had committed an arrestable offence, one carrying a possible maximum

penalty of five years imprisonment or more, the Gardai were entitled to arrest him. Under the provisions of the Criminal Justice Act

1984 his detention in custody could be authorised by the member-in-charge of a Garda Station where there was reasonable

information indicating that it was necessary to detain him for the purpose of investigating the offence. Whereas the six hour period

provided for under the Criminal Justice Act 1984 as regulated by the Criminal Justice Act 1984 (Treatment of Persons in Custody in

Garda Siochána Stations) Regulations 1987 S.I. 119 of 1987 can be extended, it is not to be assumed that any period of deprivation

of liberty would lightly be extended. Further there is no ground in the regulations whereby a period of detention may be extended due

to reasonable efforts being made to obtain legal advice for a prisoner. The Regulations do not require an interview to be delayed or

suspended because a solicitor may at some time arrive at a Garda Station. In this case it is important to have regard to the

circumstance that the relevant events occurred around lunch time on a Sunday in rural Ireland when it would not normally be

expected that solicitors would keep business or office hours.

7. The right of a prisoner to independent legal advice while in Garda custody is well established: The People (D.P.P.) v Healy [1990]

2 I.R. 73. That obligation extends to ensuring that the person in detention is aware of that right. At p.81 of the report, having

concluded that the right is constitutional in origin, Finlay C.J. described that constitutional entitlement in the following terms:-

“A right to reasonable access to a solicitor by a detained person, I am satisfied, means in the event of the arrival

of a solicitor at the Garda Station in which the person is detained an immediate right of that person to be told of

the arrival and, if he requests it immediate access.”

In the course of his judgment Finlay C.J. dealt with dicta of Walsh J. in The People v Shaw (1982) I.R. 1 and The People (D.P.P.) v

Conroy (1986) I.R. 460. In both cases none of the other judgments dealt with the right of access to a solicitor. Finlay C.J. did not

see the circumstance that a solicitor is requested by a detained person as requiring an interview to be discontinued: however once

the solicitor arrived at the Garda Station he must be given immediate access.

8. In The People (D.P.P.) v Madden [1977] I.R. 336 this court considered reasonable access to legal advice and in particular in that

context the meaning of “reasonable”:-

“This court is satisfied that a person held in detention by the Garda Siochána, whether under the provisions of the Act of

1939 or otherwise, has got a right of reasonable access to his legal advisers and that a refusal of a request to give such

reasonable access would render his detention illegal. Of course, in this context the word ‘reasonable’ must be construed

having regard to all the circumstances of each individual case and, in particular, as to the time at which access is

requested and the availability of the legal adviser or advisers sought. However, the court is not satisfied that there is

any obligation on the Garda Siochána when detaining a person either under s. 30 of the Act of 1939 or under any other

authority, to proffer to such person the assistance of a legal adviser without request.”

9. Where the right of access to legal advice in Garda custody is thwarted through deliberate refusal, or colourable manoeuvres to

ensure that the right is undermined, the detention of the prisoner becomes unlawful. Failure to admit a solicitor when one has arrived

at a Garda Station for the purpose of giving legal advice is unreasonable, notwithstanding that the interview of the prisoner may be

perceived to be at a crucial juncture. Not informing the prisoner that his solicitor had arrived could be tantamount to an outright

denial of the right. Other manoeuvres may equally amount to an effective denial of the right. In The People (D.P.P.) v O’Brien

[2005] 2 I.R. 206 this court ruled that the detention of a suspect in Garda custody was unlawful where reasonable access to legal

advice was not afforded by the Gardai. Reference must be made to the particular circumstances there which contrast markedly with

those before the court in this case. Rather than attempting to vindicate the rights of the prisoner, who had requested a solicitor

without naming any one in particular, and being aware that working solicitors close to the Garda Station would be available within a

reasonable time, instead, the Gardai choose to seek out a particularly busy solicitor some distance away. Because of his commitments

this solicitor did not arrive for almost five hours. The right of access was undermined by the choice of a practitioner whose

attendance would be delayed. McCracken J. condemned the manoeuvre at pages 212-213 of the report:-

“The initial arrest of the appellant was undoubtedly lawful, as was his custody up to the time he requested a solicitor. Thereafter, it

was certainly wrongful of the Gardai to question him pending the arrival of the solicitor but that questioning is not what created the

unlawfulness of his detention. The statements made by the appellant pending the arrival of a solicitor would have been inadmissible

whether there had been an undue delay in the arrival of the solicitor or not. What made the detention unlawful was the deliberate

and conscious decision of the Gardai to contact Mr Gaffney, rather than a more convenient solicitor, when they knew or ought to

have known that there would be a very considerable delay in his attendance. The decision was made in breach of the appellant’s

constitutional rights, and therefore from the moment that decision was made his detention became unlawful.”

10. McCracken J. at p.214 of the judgment commented that the breach of the accused’s constitutional right lay in the failure of the

Gardai to provide the prisoner with a solicitor within a reasonable time.

11. The court does not regard it as the law, as has been argued, that the Gardai must wait an indeterminate time after the accused

seeks a solicitor in order to allow for a solicitor to arrive at the Garda Station. What might be a reasonable time is capable of infinite

variation. In a remote rural area or an off-shore inhabited island, on a Sunday or holiday, or in the rare context where a prisoner

chooses under the custody regulations to continue to be interviewed after midnight, the concept of reasonableness will throw up

varying answers. Regulation 9(2) of the Custody Regulations provides that if a solicitor named by a person cannot be contacted

within a reasonable time, or is unwilling to attend, then the prisoner should be given the opportunity to ask for another solicitor. It is

conceivable that this process might be repeated more than once. Are the Gardai to wait indefinitely? What is important is that the

Gardai inform a prisoner of his right to legal advice and do what is reasonable in assisting him in securing such advice and that they do

not engage in colourable stratagems to defeat the enjoyment of his constitutional right. However it is a matter for the Legislature

should it wish to do so to legislate that an interview could not commence for a specified period of time or at all unless a solicitor

requested is present.

12. In this case the court has regard to the exemplary efforts made by the Gardai to secure legal advice for the applicant. In

conducting their enquiries they took every possible step to vindicate the rights of the applicant as a prisoner in custody. They

were not obliged to wait for Mr Dillon prior to commencing an interview. However they only commenced the interview when informed

that the solicitor would be at least one further hour before he would arrive and that would be at least two hours after the arrest: in

fact it was almost three hours after the arrest before the solicitor arrived.

13. It should be recalled that whereas a face to face interview is the most usual means of obtaining legal advice it may be where that

is not available the advice could be given by telephone. A solicitor is entitled to a private phone communication. Failure to afford

telephone access might well amount to a denial of reasonable access to legal advice.

14. In The People D.P.P. v Madden [1977] I.R. 336 at 355 O’Higgins C.J. made it clear that what is or is not a denial of the right of

legal advice while in Garda custody must be assessed in all the circumstances of each individual case. In this case having looked at

the circumstances the court is satisfied that there was no denial of the applicant’s constitutional right to reasonable access to a

solicitor.

Leave to appeal is refused.