The Gazette 1983

GAZETTE

SEPTEMBER 1983

Confessions in Criminal Cases — A Review

by Vincent Crowley, Solicitor

I N our courts it occurs frequently that the Prosecution rests its case on confessions obtained from accused persons and this should not obscure the fact that, in addition, confessions are regularly features of cases where there is a plea of guilty entered on behalf of the accused. Generally, a solicitor is instructed in cases only after the accused has been charged and quite often his client will already have made a statement admitting the offence and the solicitor may have no alternative but to advise his client to plead guilty. Where they do not do so they will have to challenge the admissibility and veracity of the confession and hence the importance of the legal principles which apply to confessions generally. The Legal Principles The most important and acknowledged principle is that confessions must be voluntary and should be obtained in accordance with the Judges' Rules. The full version of the Judges' Rules as set forth in Appendix 'D' of the "Report of the Committee to recommend certain safeguards for persons in custody and for members of the Garda Siochana" (PRL. 7158, 13th April 1978) are set out as an appendix of this Article. (The "O'Brien Committee" Report.) Secondly, though voluntary, the confession must not have been obtained by a deliberate and conscious violation of constitutional rights save where there are extraordinary excusing circumstances warranting such violation. Where a voluntary confession is obtained contrary to the Judges' Rules or as a result of illegal action it may be admitted at the discretion of the trial judge, which discretion will be exercised having regard to public policy based on a balancing of public interest. The following is a summary of the Judges' Rules, which are now accepted as part of our law: 1. A person may be questioned provided he has not been charged. 2. As soon as a police officer has reasonable grounds for suspecting that the person being interrogated has committed an offence he should administer a caution. 3. A further caution should be administered when the person is charged. 4. A statement made by a person in custody should be written down at the same time as it is being given, and an opportunity should be afforded to the person for correcting, amending or rejecting the statement. 5. Where there are two persons charged with the same

offence and the police officer wishes to draw the attention of one of those charged to a statement by someone else charged with the same offence he should hand him a copy of the other person's statement without saying or doing anything to invite a reply, and a caution should be administered if the person so desires to make a reply. Persons other than police officers should comply with these Rules. Leading Cases Two major decisions among others which underline these principles are:— Walsh J. (Supreme Court), in O'Brien's case first analysed the second principle that evidence must not have been obtained by a deliberate and conscious violation of a person's constitutional rights unless there are "extra- ordinary excusing circumstances". This was agreed to by all members of the Court except that the majority preferred not to give examples of such circumstances whereas Walsh J. recited three examples, namely; (a) the need to prevent an imminent destruction of vital evidence; or (b) the need to rescue a victim in peril; or (c) the seizure of evidence obtained in the course of and incidental to a lawful arrest even though the premises on which the arrest is made have been entered without a valid search warrant. These examples did not purport to be exhaustive and were simply illustrative. Walsh J. went on to say ( [1965] IR at p. 170):— "In my view evidence obtained in deliberate conscious breach of the constitutional rights of an accused person should, save in excusable circum- stances outlined above, be absolutely inadmissible. It follows therefore that evidence obtained without a deliberate and conscious violation of the accused's rights is not excusable by reason only of the violation of his constitutional right." The only matter of clear dissent between the members of the Court in O'Brien's case was that four of the five- man Court decided that evidence obtained illegally could 255 The People (A.G.) -v- O'Brien [1965] IR 142 The People (D.P.P.) -v- Shaw [1982] IR 1