The Gazette 1983

APRIL 1983

GAZETTE

The People v. Pringle, McCann and O'Shea Recent developments in Criminal Law Part 2 by Eamonn G. Hall, B.A., LL.B., H.D.E., Solicitor

Right of person in custody to a Solicitor The applicant had been permitted three interviews with his legal advisers. All these interviews were in private. The applicant did not make any further request to consult with a solicitor. However, before returning to Dublin, his solicitor sought a further interview with his client. The Superintendent in charge had issued a directive that no further interviews would be permitted without his authority. The Superintendent had gone to attend the funeral of the deceased Gardai. He could not be contacted. The solicitor then wrote a short letter to the accused — but one of the interviewing Gardai would not accept delivery of the letter. The Special Criminal Court considered that the applicant had been afforded reasonable access to his solicitor in accordance with his constitutional rights and that the direction of the Superintendent did not amount to a deprivation of the accused's constitutional rights. The Special Criminal Court was also satisfied that all the requirements of the Judges' Rules were complied with in relation to the applicant. The Court of Criminal Appeal was satisfied that the findings of fact by the Court of Trial were the only findings of fact available on the evidence adduced. The Court of Criminal Appeal then considered whether any of the inferences drawn by the Special Criminal Court from the facts found were "perverse and inappropriate" in the legal sense and, whether any principles of law applied were erroneous. The Court then considered the submission on behalf of Counsel for the applicant that the applicant while in detention and while being interrogated by the Garda Síochána had a constitutional right to have his lawyer present at any interview and that he should be informed of that right and unless he waived it, he should be afforded that right. Dealing with this issue of the right to services of a solicitor while in custody, the Court of Criminal Appeal in its judgment quoted from the judgment of the same Court in the People v. Farrelf 1 . "All these judgments lay emphasis on the constitutional duty of the Court undertaking the trial of a person charged with a criminal offence to be vigilant to ensure the trial is in all respects fair and just. The several judgments give substantial guidance as to the standards of fairness under the predominant concept of justice to be observed in relation to the particular circumstances of the person appearing before the Court. But none of the judgments go so far as to declare that every person under suspicion of, or faced with a charge of a criminal 85

Patrick McCann Patrick McCann had been arrested shortly after 9.00 a.m. on 9th July 1980 at Frenchpark, Co. Roscommon. He had been informed that he was being arrested pursuant to Section 30 of the Offences Against the State Act 1939. Within 24 hours of his arrest an extension order was made. On the 11th July 1980 he was brought to the Special Criminal Court. He was charged with robbery of the Bank of Ireland in Ballaghadereen and with capital murder of Garda Byrne. He was remanded in custody to the Special Criminal Court on the 25th July 1980. On the 25th July 1980, Counsel for the State applied to have the charges withdrawn because of a typographic error and also applied to have new charges preferred in their place. Counsel for the accused urged that the accused was entitled to be released. Liberty was given by the Special Criminal Court to the prosecution to withdraw the charges and at the same time prefer other charges. Counsel for the applicant argued, inter alia , that when the charges were withdrawn and fresh charges preferred on the same date that the applicant was not lawfully before the Court but was 'in the illegal custody or detention of the Court'. The Court of Criminal Appeal stated that there was nothing in the terms or the provisions of the 1939 Act which could be interpreted as "confining the method of lawfully bringing before the Special Criminal Court a person to be tried by it to an arrest under Section 30 or pursuant to a warrant of the Court . . . The Court considered that what was involved was a substitution of two charges for two charges previously preferred. This was within the "inherent jurisdiction of the Court". The Court stated the procedure adopted did not "conceivably constitute any injustice, disadvantage or prejudice to the applicant." Three further grounds of appeal were argued on behalf of McCann in the Court of Criminal Appeal. They were (a) that the questioning of the applicant during his period of detention in Frenchpark Garda Station was oppressive by reason of its length; (b) that the applicant had been intentionally deprived of his constitutional right to the presence of his solicitor while he was being interrogated by the Gardai and, (c) verbal statements were obtained in breach of Rule 9 of the Judges' Rules - in that the inter- viewing Garda Sergeant did not make a note of the statements at the time they were made by the applicant and they were not read over until after the conclusion of all the interviews during which the statements were made. The Court of Trial had been satisfied that the questioning of the applicant had been conducted "in a fair and reasonable manner and was not of such a nature as would render any reply thereto as other than voluntary."