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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Lavery v. The Member In Charge, Carrickmacross Garda Station  IESC 29;  2 IR 390 (23rd February, 1999)
Cite as:  IESC 29,  2 IR 390
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the 15th August, 1998, a bomb planted in a car exploded in the town of Omagh,
Co. Tyrone, killing upwards of 29 people and injuring as many as 400.
on this terrorist outrage, the Oireachtas enacted the Offences Against the
State (Amendment) Act, 1998. These proceedings are concerned to a degree with
the operation and scope of s. 2 and s. 5 of the Act, in particular.
5 is to similar effect except that it applies to a wider range of offences,
offences under the Offences Against the State Acts, scheduled offences under
the legislation and “an offence arising out of the same set of facts as
these two types of offence.”
the morning of 30th September, 1998, at 7.00 am Deaglan Lavery, the respondent,
was arrested at his home by members of the Garda Síochána under
s. 30 of the Offences Against the State Act, 1939, on suspicion of being a
solicitor, Mr. James MacGuill, was contacted by the gardaí sometime
prior to 8.00 am. He had a telephone conversation with the respondent and took
his instructions and he deposed that he gave him general advices: in particular
advices as to the new obligations which arise under the provisions of the 1998
Act. He wrote to the Superintendent of the Garda Síochána at
Carrickmacross by fax requesting particulars of the allegations against the
respondent and indicating that he would be prepared to have his interviews
audio-visually recorded. Mr. MacGuill requested that if this was not possible
that complete notes of any interview held with his client be taken and be made
available to the respondent and himself prior to the end of Mr. Lavery’s
MacGuill attended at Carrickmacross Garda Station at 3.15 pm that afternoon.
There he met Superintendent Noel White who was in charge of the investigation.
Mr. MacGuill deposed that prior to advising the respondent he wished to know
whether or not he had received his fax of that morning and if there was a reply
to it. Superintendent White said he had received the fax but that there was no
reply to it. Mr. MacGuill pointed out the difficulty that he would now have in
advising the respondent without knowing whether or not it
MacGuill deposed that he then met with his client who told him that he had been
interviewed throughout that day by detective gardaí, but that no notes
whatever had been taken of the interviews. The interviews consisted of
allegations being put to him, principally that he had stolen a vehicle which
was subsequently used to plant the bomb in Omagh. He had consistently denied the
respondent’s detention was extended at 11.40 pm on the 30th September for
a further period of 24 hours commencing at 7.00 am on 1st October by
certificate of Superintendent White.
following day, 1st October, Mr. MacGuill again attended on Mr. Lavery at
Carrickmacross Garda Station. He deposed that the respondent had said that
notes were being taken of interviews but that these notes did not record all
the questions and answers that had been given in the course of the interviews.
Other matters being said during the interviews were not being recorded either.
Mr. MacGuill said that Mr. Lavery had questioned the relevant detectives as to
why this should be so and he was informed that there was no obligation on them
to record everything that was said or all questions put and answered in the
memo of interview. The respondent was requested and did sign these memos of
9.30 pm on 1st October at a sitting of the Carrickmacross District Court (Judge
Flan Brennan presiding) an application was made to extend the period of the
detention of the respondent for a further period of 24 hours, pursuant to s. 30
(4) and (4)(A) of the Offences Against the State Act, 1939, as inserted by s.
10 of the 1998 Act.
the hearing in the District Court, Mr. MacGuill renewed his request to see the
notes of the interviews. The Superintendent refused to hand them over and he
claimed privilege in relation to them. The District Judge held with the State
and made the order sought. To dispose of this point of a claim of privilege,
privilege could not be claimed for these notes. Clearly either the
Superintendent is entitled to withhold the notes until the end of the
investigation or he is not. But this has nothing to do with privilege.
should be said, too, that the Superintendent indicated during the hearing in
the High Court that he was willing that the accused should see the notes and
then would be free to consult once more with Mr. MacGuill, but the State took
the stance that they should not be required to hand over the notes to the
point at issue in these proceedings is a net one. It is not in doubt that s. 30
permits the arrest and detention of suspected persons, where a member of the
Garda Síochána suspects that a person has committed or is about
to commit, or is or has been concerned in the commission of an offence under
any section or sub-section of the Act of 1939 (including amending Acts) or an
offence which, for the time being, is a scheduled offence for the purposes of
Part V of the 1939 Act, or whom he suspects of carrying a document in relation
to the commission or the intended commission of any such offence, or whom he
brought pursuant to Article 40, s. 4 of the Constitution, was that the new
legislation required that the solicitor should be given access to the documents
that he required and, once he was refused, the respondent’s detention
became unlawful and he should be set free.
the matter came for hearing before the High Court (McGuinness J.) on the
evening of 2nd October, 1998, she held with the submissions advanced on behalf
of Mr. Lavery and ordered his release. It should be noted, in passing, that
while a complaint had been made at the garda station that no notes had been
taken of the earlier interviews, this suggestion was not put to Superintendent
White in the course of his evidence before the learned High Court judge.
State appeals to this Court. The question for resolution is this: Does such
deprivation, as the solicitor for the detained man suffered in this case mean
that the detention of the respondent was rendered unlawful? Without any doubt,
if a person in custody is denied blanket access to legal advice, or if he is
subjected to ill treatment by way of assaults, for example, then that would
render his detention unlawful.
the gardaí must be allowed to exercise their powers of interrogation as
they think right, provided they act reasonably. Counsel for the State submitted
to the High Court judge that in effect what Mr. MacGuill was
think all the members of the Court were 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, is does not render the detention unlawful. It
should be noted, too, that of course if a charge had followed on the detention
both the accused and his legal advisors would have been entitled to all
relevant documentation. This matter was explored comprehensively in the recent
decision of this court in
. v. Special Criminal Court
2 ILRM 493.
hold that the respondent’s detention was in accordance with law and that
he should not have been released under Article 40 of the Constitution. I would,
accordingly, reverse the order made by the learned High Court judge. It will be
clear, as occurred in
 ILRM 333
that the result of this