Judgment Title: D.P.P. -v- Michael Murphy
Composition of Court: Kearns J., O'Donovan J., McKechnie J.
Judgment by: Kearns J.
Status of Judgment: Approved
Refuse leave to appeal
(2) The regulations may be made so as to apply generally or to questioning at such places, to such extent, in relation to such offences or in such circumstances, as may be prescribed therein.
(3) The regulations shall include provision for the preservation, for such time and in such manner as may be prescribed therein, of every recording made in accordance with the regulations.
(4) Any failure to comply with a provision of the regulations shall not by itself render a person liable to civil or criminal proceedings, and (without prejudice to the power of the court to exclude evidence at its discretion) shall not by itself render inadmissible in evidence anything said during such questioning.
Article 4 of those Regulations provide:-
(2) The equipment used in a station shall be the equipment provided to and installed at the station for that purpose and no other equipment shall be used.
(3) An interview or part of an interview is not required to be electronically recorded:-
(i) The equipment is unavailable due to a functional fault, or
(ii) The equipment is already in use at the time the interview is to commence, and the member in charge considers on reasonable grounds that the interview should not be delayed until the fault is rectified or the equipment becomes available, or
(b) Where otherwise the electronic recording of the interview is not practicable.
(4) Where an interview or part of an interview is not recorded for any of the reasons referred in paragraph (3), the member in charge shall enter or cause to be entered in the custody record of the person to be interviewed a note setting out the fact that the interview was not electronically recorded and the reason.
(5) Notwithstanding that an interview is electronically recorded in accordance with these Regulations, regulation 12(11)(b)(i),(ii) and (iii) of the Custody Regulations shall apply as if the interview were not electronically recorded.
These remarks should not be taken as lending support to any view that these instances are common or that gardai regularly misbehave in relation to the taking of confessions – on the contrary, it may often be the case that it is the Garda Siochana who themselves are most put at risk by the failure to provide simple and basic electronic equipment which would protect them from the bringing of baseless allegations of ill-treatment or other misbehaviour in or about the taking of confessions.
No sector of our society has a greater interest in maintaining high levels of public confidence in the propriety of police investigations than the Garda Síochana who, by the simple expedient of compliance with the Regulations, can thereby provide a measure of protection for their members against dishonest attacks of this kind if and when they are made. Indeed the regular ‘trial within a trial’ as to the admissibility of confessions which presently arises in virtually every criminal case might well become a far less frequent event if electronic recording of interviews becomes the invariable or normal practice in all garda stations where suspects are interviewed. Any recording made should provide a clear picture or account of everything which transpires at interview. This should render futile many challenges or attacks which might otherwise be made on garda testimony during a criminal trial, reduce the length and cost of trials and contribute to the enhancement of public confidence in the system generally.
In this context it might then be asked if interviewing officers should still be required to make written notes of questions asked and answers given as they proceed with interviews that are being recorded. Having been recorded they could be transcribed to paper later. The present requirement adds greatly to the time required to complete an interview and a correspondingly lengthy period of time to play over the tape to a judge and jury in the trial itself.
One would have thought, therefore, for the reasons outlined earlier, that the provision and installation of the recording equipment specified by the Regulations would be afforded a very high priority.
This case is concerned with events which occurred in October, 2001 some four and half years after the Regulations were introduced and some seventeen years after the enabling legislation was passed. In The People (D.P.P.) v. Connolly  2 I.R. 1, Hardiman J. stated (at pp. 17/18):-