THE SUPREME COURT
Thomas Anthony O’Brien Appellant
The Director of Public Prosecutions Respondent
Judgment of Mr Justice McCracken delivered the 5th day of May 2005
This is an appeal from the Court of Criminal Appeal pursuant to s.29 of the Courts of Justice Act 1924. The Court of Criminal Appeal certified as a question of law of exceptional public importance the following:-
The Appellant was arrested on 1 pm on 3rd March 1999 pursuant to the provisions of s.4 of the Criminal Justice Act 1984, which permitted his detention for a period of six hours with the possibility of an extension for a further six hours. He was detained at Pearse Street Garda Station in Dublin City Centre. At 3.40 pm the Appellant requested the services of a solicitor, although not of any particular solicitor. The gardaí recommended a Mr Gaffney, whose offices were in Tallaght, who was a busy sole practitioner and who primarily practised in the Tallaght area. The gardaí did contact Mr Gaffney, but due to his commitments he did not attend at Pearse Street Garda Station until 8.22 pm. At this stage the Appellant’s detention had been extended for the further six hour period. During the period between the Appellant’s request for a solicitor and the arrival of Mr Gaffney the Appellant was questioned on at least two occasions.
“Whether, when a trial Judge finds that an accused person, who has been arrested and detained pursuant to s.4 of the Criminal Justice Act 1984 has been consciously and deliberate deprived of his constitutional right of access to his solicitor while so detained, the trial Judge should, as a matter of law, rule that the entire period of the detention thereafter is thereby rendered unlawful and rule as therefore inadmissible in evidence all inculpatory statements made at any time in the course of the period of detention or whether only such statements as were made prior to the person being afforded access to a solicitor should be excluded.”
When Mr Gaffney arrived, he spoke to the Appellant for approximately half an hour and left at 8.50 pm. The Appellant was immediately interviewed by the gardaí again for a period which lasted up to 11.25 pm, with a twenty minute break.
The learned trial Judge ruled that the Appellant’s constitutional right to be advised by a solicitor had been violated in that the gardaí concerned must have known that by selecting Mr Gaffney, given the circumstances of his practice, a considerable delay would inevitably arise. Accordingly, the statements made by the Appellant prior to the arrival of Mr Gaffney were ruled to be inadmissible. That ruling is not in issue in this appeal. The only issue for decision in this regard relates to the admissibility of the statements made by the Appellant after he had consulted with Mr Gaffney.
While there are a number of authorities relating to the right of a person in custody to consult a solicitor, the particular situation where there has been an unreasonable delay in the arrival of the solicitor requested, which was foreseeable, and the issue as to whether statements made subsequent to such arrival are admissible seems to be undecided.
In the People (DPP) v. Healy  2 IR 73, Finlay CJ said at page 81:-
“The undoubted right of reasonable access to a solicitor enjoyed by a person who is in detention must be interpreted as being directed towards the vital function of ensuring that such person is aware of his rights and has the independent advice which would be appropriate in order to permit him to reach a truly free decision as to his attitude to interrogation or to the making of any statement, be it exculpatory or inculpatory. The availability of advice from a lawyer must, in my view, be seen as a contribution, at least, towards some measure of equality in the position of the detained person and his interrogators.
Viewed in that light, I am driven to the conclusion that such an important and fundamental standard of fairness in the administration of justice as the right of access to a lawyer must be deemed to be constitutional in its origin, and that to classify it as merely legal would be to undermine its importance and the completeness of the protection of it which the Courts are obliged to give.”
While this is a clear, and in my view absolutely correct, finding that the right to legal advice is a constitutional right, Finlay CJ went on to find, on the same page:-
“The vital issue which arises, therefore, if a breach of the right of access to a solicitor has occurred as a result of a conscious and deliberate act of a member of the Garda Siochana, is whether there is a causative link between that breach and the obtaining of an admission.”
This would seem to imply that there may be circumstances in which statements taken at a time when an accused’s constitutional rights were being breached could nevertheless be admissible if there was no causative link between the breach and the statement. While it is not what occurred in this case, this seems to me to be a somewhat doubtful proposition. However if the passage refers to an admission obtained after the breach had ceased, then it seems to me to correctly state the legal position.
The question was visited in a slightly different context in Director of Public Prosecutions v. Finnegan (unreported) 15th July 1997, which was a decision of the Court of Criminal Appeal delivered by Barrington J. In that case, the accused had had access to a solicitor, but subsequently in the course of being questioned he requested a telephone conversation with the solicitor. This conversation took place in the hearing of one or more members of the gardaí. It was held that evidence of an interview which subsequently took place was in admissible. At page 42 of the judgment it was said:-
This case confirms that the right of private access to a solicitor is a constitutional right. It does seem to me to be manifest that where a person is held in detention, albeit that the detention itself was initially lawful, a breach of the constitutional rights of the person detained during the period of detention must render the detention unlawful. However, this case does not answer the question as to whether, once the breach of the constitutional right has been remedied, the status of the unlawful detention is altered, and it becomes lawful.
“Even though the right to make a telephone call to a solicitor may not be, per se, a constitutional right, once the telephone call is allowed, the detainee has a constitutional right to make that call in private.
In the present case there was a breach of Mr Finnegan’s constitutional rights when he was denied private access by telephone to his solicitor. From that point on he was in unlawful detention. No evidence was adduced to show that this unlawful detention came to an end at any particular time nor indeed was the point addressed at the trial.”
The case that comes nearest to the present case is DPP v. Buck  2 IR 268. In that case, as in the present case, there was a very considerable delay between the request for a solicitor and the arrival of a solicitor. However, there were two important distinctions between that case and the present case. Firstly, no statement was made by the accused before the arrival of the solicitor, and secondly the Court held that the delay in the arrival of the solicitor, under the circumstances, was not a breach of the defendant’s constitutional right of access to a solicitor. It follows that there could have been no question of him having been in unlawful custody when he did make the statements. Having made that finding, however, Keane CJ continued, in a passage that is undoubtedly obiter, at page 283 to say:-
Notwithstanding that this passage was obiter, it does purport to deal with the situation which has arisen in the present case. If the inculpatory statement or admission ultimately made by the Appellant was elicited from him by the use of information disclosed by him while he was in unlawful detention, there would clearly have been a causative link between the breach of his constitutional rights and the making of the statements or admissions. In those circumstances material which had been wrongfully obtained in breach of the Appellant’s constitutional rights would have been used to obtain an inculpatory statement or admission. However, the corollary to this also appears to me to be valid, namely that if the statements were not made as the result of any material obtained in breach of the Appellant’s rights, then they are not tainted by unconstitutionality and, provided the Appellant’s detention was lawful at the time they were obtained, they are admissible. In my view, the statement quoted above from the Buck case is a correct exposition of the legal position.
“Even if the continuation of the questioning by the gardaí between the time that he asked for a solicitor and the arrival of the solicitor who visited the defendant at 8.33 pm could be regarded as a conscious and deliberate violation of his constitutional rights, there was no causative link between the breach in question and the making of the incriminating statements. The defendant had not made any incriminating statements prior to the arrival of the solicitor and, on the trial Judge’s findings, had been advised by him as to his right not to make any statement. The trial Judge also accepted the solicitor’s evidence that, at that point, the defendant was relaxed and not showing any signs of stress. It follows inevitably that there was, on the evidence, no causative link between any breach of the defendant’s constitutional rights arising from the questioning before the solicitor arrived and the making of the incriminating statements.”
I would also bear in mind the principle expressed by Finlay CJ in The People (DPP) v Kenny  2 IR 110 at page 134 where he said:-
“The detection of crime and the conviction of guilty persons, no matter how important they may be in relating to the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional obligation “as far as practicable to defend and vindicate the personal rights of the citizen”.
After very careful consideration I conclude that I must differ from the view of the majority of this Court expressed in the judgment of Griffin J. in The People v Shaw  IR 1. I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless the Court is satisfied that either the act of constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there were extraordinarily excusing circumstances which justify the admission of the evidence in its (the Court’s) discretion.”
In present case, of course, the learned trial Judge held that there was a deliberate breach of the constitutional rights, and that any statements made before the arrival of the solicitor must be excluded. However, two questions still remain unanswered. Firstly, whether, once the solicitor arrived and gave his advice, there was any further breach of the Appellant’s constitutional rights, and secondly, even if the breach had ceased, whether his detention remained unlawful. I have no doubt that the answer to the first question must be that the ultimate access to the solicitor put an end to any unconstitutional situation. The unconstitutionality lay in the absence of legal advice, and once that advice had been obtained, his constitutional right had been complied with.
The much more difficult question is whether the Appellant’s detention, having been rendered unlawful by the breach of his constitutional rights, remained unlawful. The initial arrest of the Appellant was undoubtedly lawful, as was his custody up to the time that he requested a solicitor. Thereafter, it was certainly wrongful of the gardaí 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 his 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 gardaí 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. That decision was made in breach of the Appellant’s constitutional rights, and therefore from the moment that decision was made his detention became unlawful. The detention remained unlawful so long as the breach of the constitutional rights continued. Logically, therefore, once the breach of the constitutional right ceased, the detention ceased to be unlawful.
I have used the phrase “unlawful detention” in this judgment because it is the phrase that has been used in earlier decisions. I am not sure that it is a correct description of the Appellant’s position during the relevant period. He was arrested and detained pursuant to s.4 of the Criminal Justice Act 1984. The relevant portions of that section are:-
Section 4(2), therefore, authorised the detention of a person for the relevant periods if, firstly, there is reasonable cause to suspect he committed an offence to which the section applied, and secondly, that there are reasonable grounds for believing that detention is necessary for the proper investigation of the offence. The actual arrest of the Appellant is not challenged in the present case, nor are either of the two elements necessary under the section which I have quoted above. His detention, therefore, was lawful under the wording of the section for its entire period.
The breach of the Appellant’s constitutional right did not lie in his detention, it lay in the failure to provide him with a solicitor within a reasonable time. It is common case that he was told of his right to a solicitor, and had he not requested one, his detention and questioning would have been perfectly lawful. Similarly, had he requested a solicitor, and the solicitor had been contacted properly and attended within a reasonable time, the Appellant’s detention was lawful and any statements made by him after the arrival of his solicitor would be admissible. Therefore, what was unlawful in relation to the Appellant in the present case was not his detention in the garda station, but the delay in providing him with legal advice. In my view it must follow that, once his constitutional rights had been restored by the advice from the solicitor, he remained properly arrested and in detention under s.4 so long as his detention was necessary for the proper investigation of the offence and came within the time limit set in s.4. I do not believe that an application for his release could have been made pursuant to Article 40 of the Constitution, as any such application would have been met with the response that he was in lawful custody under s.4.
Even if I am wrong in this, and his custody was unlawful in the strict sense because of the delay in obtaining the attendance of a solicitor, once the solicitor did attend and was consulted by the Appellant, any unlawfulness in his detention would cease. He would still be detained under s.4, and from the time that his solicitor arrived, his detention would comply with the provisions of s.4.
For these reasons, I am satisfied that he was in lawful detention at the time he made the statements subsequent to the arrival of his solicitor and those statements were rightly admitted in evidence.
There were two other matters complained of by the Appellant which I will deal with briefly. On the 15th day of the trial it became known to the trial Judge that one of the potential witnesses, namely Detective Garda Darcy, was acquainted with a member of the jury. Counsel for the Respondent decided that under those circumstances he would not call the witness to give evidence. However, at the request of the Appellant’s Counsel, Detective Garda Darcy did give evidence as to his acquaintanceship with the juror. This evidence was given in the absence of the jury and, having heard the evidence, the learned trial Judge indicated that he would not permit cross-examination on that matter. Subsequently, after further consideration by Counsel for the Respondent, Detective Garda Darcy was tendered for cross-examination, even though he was not going to give evidence in chief. Counsel for the Applicant sought to cross-examine the witness, but the learned trial Judge gave as his view that the correct procedure was that the witness should not be called, and therefore refused to allow him to be cross-examined.
The learned trial Judge was clearly correct in his ruling that, once any acquaintanceship between a witness and a juror had been established, the witness ought not to be called. This decision is, of course, in ease of the Appellant. I fail to see how it could be said that the Appellant has been prejudiced by this decision, and indeed I fail to see what cross-examination could have taken place which would have any relevance to the issues in the trial.
The final point related to the learned trial Judge’s charge to the jury. Exception is taken to four passages in the charge, which are as follows:-
“I am satisfied, as I think you will be from the facts I have just outlined to you, that there was a conspiracy. It was designed in the way it was operating to inveigle monies out of other people upon false pretences.”
“I want to make one thing absolutely clear. It will ultimately be, as in all matter of fact, it is your ultimate decision on it. The gardaí did interrupt a conspiracy. Now, the issue centrally in this case is was it a conspiracy of any of the accused or were they involved in a knowing way.”
“Therefore, as my final remark in this context, conspiracy is a proper charge. It would seem to me from the facts, as they have emerged in this trial, an appropriate charge in these circumstances.”
“In respect of their evidence vis-à-vis the conspiracy and what was occurring, the documents they were getting, the correspondence they were engaged in and the efforts that were made to bring both of them to Dublin, it is very much beyond controversy in some respects, ladies and gentlemen. It is clear correspondence was emanating from worldwide foreign appointments. So there is really little room for controversy on the essential facts when everything is, so to speak, cut back to the bone.”
The objection taken is that the learned trial Judge in effect made a ruling on a question of fact, namely that there had been a conspiracy. The basic facts that there had been an attempt by a number of people to defraud was not in issue, and it seems to me that the learned trial Judge was trying to be helpful by making it clear to the jury that the real issue which they had to decide was the nature of the Appellant’s participation, if any, in the fraud complained of. Purely as a question of law, the undisputed facts did amount to a conspiracy, and the learned trial Judge was perfectly entitled to point this out to the jury. He at all times made it quite clear to the jury that decisions on vital issues of fact were matters for them, and I can see nothing improper about the statements complained of.
Objection is also taken to a further passage in the charge which the Appellant alleges pours scorn on his defence. The passage complained of appears to be:-
“The evidence I should say, so that I can hold your attention, so to speak, on this issue of conspiracy. Again, a number of things were said to you by Counsel in addressing you. In particular the suggestion that this trial was, again I have to make mention of it, “a farce” and that this criminal investigation by the gardaí was “a farce” and “a filthy process” was the description to describe it. In the context of the suggestion being that because Mr Smith and Mr Altoff were people who could never in any circumstances be, so to speak, defrauded and that this charge ought to be nowhere in your considerations.
The charge of conspiracy is a valid charge at law. It certainly had a chequered history dealing with matters of affairs affecting our State as it now is, then was a colony of our nearest neighbour, in another time, in another era. You have had a very useful and interesting discussion in terms of its history. It is a history of another time and of another era. It is utterly inapplicable to the state of the law and the propriety of this trial in this time, in this century, on this occasion. So it is a very proper charge and is even more so, ladies and gentlemen, I suggest to you, when you look at the facts of this case. The undoubted and undisputed and unchallenged facts of the case are to the effect, in my view, that there was a conspiracy afoot.”
This passage must be read in the context of a highly emotive address to the jury by Counsel for the Appellant. The learned trial Judge was clearly entitled, and indeed perfectly correct, to comment on the language used by Counsel. Rather than pouring scorn on the defence the learned trial Judge was directing the jury’s attention back to the real issues in the case. I am quite satisfied that he was perfectly entitled to do so.
For these reasons, I would dismiss the appeal.