The Gazette 1983

APRIL 1983

GAZETTE

offence has a constitutional right to have the services of a solicitor and doctor before being questioned by an investigating Garda. Such rights as are adumbrated in the judgments cited are all related to the particular circumstances of the person whose rights require protection and vindication." The judgment continued: "This Court accepts and is prepared to follow this statement of the law as contained in the People v. Farrell and an inevitable conclusion from it is that if a persion has not got a constitutional right to have the services of a solicitor before being questioned by an investigating Garda neither has he got a constitutional right to the presence of a solicitor while any interrogation is being carried out." The Court of Criminal Appeal was satisfied, as had been established, that a person in lawful custody was, however, entitled to reasonable access to his lawyer or solicitor. The Court stated that it was also satisfied, as had been decided in the case of State (Harrington) v. The Com- missioners of the Garda Síochána 1 ft , that the right of access of a person in custody to a solicitor extends to a case where any person "bona fide" interested on his behalf seeks the arrangement for such a meeting. Here there was no blanket refusal to grant access to a solicitor. The request came from the solicitor himself and the decision of the Chief Superintendent was a decision postponing access only. The Court of Criminal Appeal was satisfied that access of the accused to his solicitor during his detention had been reasonable. The Court concluded that the detention, therefore, was not tainted with illegality arising from a refusal of such access. Length of Questioning The Court considered an additional ground of appeal, that the questioning of the applicant was oppressive by reason of its length. The Court of Criminal Appeal accepted the findings of the Special Criminal Court that the questioning was at all times conducted in a fair and reasonable manner. Judges' Rules The facts proved before the Special Criminal Court were that a number of statements were made by the accused to a Detective Sergeant. After several interviews, the Detective Sergeant made a note of these statements in his notebook. Later, after further interviews, the Detective Sergeant made a note of these interviews and read over the entire of the notes to be accused. The accused agreed they were correct. However, the accused would not sign the notes. It was argued by Counsel that Rule 9 of the Judges' Rules was broken. Rule 9 states: "Any statement made in accordance with the above Rules should/ whenever possible be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish." The Court of Criminal Appeal stated that they were unable to find any judicial decision dealing with the interpretation of the Rule relating to the time at which the Statement should be taken down and the time it should be read over to the accused. The Court stated that the proper

interpretation would seem to be found in a consideration of "the purpose of the Rule". The Court considered that; "the permissible time-lag between the making of a statement, the recording of it and the reading over of it must of necessity vary from case to case and in particular be governed by the circumstances of each case." Here, there was evidence that the applicant did not challenge the accuracy of what had been recorded, the Court of Criminal Appeal was satisfied that the evidence supported the decision of the Special Criminal Court that the rule had been complied with. This additional ground of appeal failed. Some of the statements made by the accused were summarised by the Court of Criminal Appeal as follows: "I know I am in much trouble over this shooting than ever before in my life. I know it is a capital charge and I am afraid for my head." There were other such statements. The Court of Criminal Appeal was satisfied — having considered the statements and the context in which they were made — that there was not any construction or interpretation of these statements consistent with the innocence of the applicant which could reasonably have been entertained by the Court of Trial. Fingerprints It was argued on behalf of the applicant McCann that the evidence of the finger marks found on portable objects — two maps — was inadequate to base a conviction. The Court of Criminal Appeal stated that if a finger print found on a portable object was the only evidence incriminating an accused, this evidence was not of sufficient certainty to justify a conviction. The Court, however, stated in relation to the interpretation of the statements made by the applicant and in relation to the issue as to whether they were truthful, then evidence relating to the fingerprints was probative. The Court of Criminal Appeal considered that the verdict and conviction against the applicant could not be interfered with. His application for leave to appeal was refused. Colm O'Shea The applicant Colm O' Shea was found by four members of the Garda Síochána on a roadway in a forest. There was evidence that he admitted to one of the Gardai that he was involved in the bank raid at Ballaghadereen that day. He also said he had been shot. O'Shea was then taken to Galway Regional Hospital for treatment. When he left the hospital seven days later he was arrested under Section 30 of the Offences Against the State Act 1939, taken in custody to Eglinton Street Garda Station, Galway and later brought to Dublin to a hearing of the High Court. He was then transferred to the Bridewell Garda Station. While he was in the Bridewell he was taken ill and was and "I will be satisfied getting away with 10 years to 12 years over this."

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