Judgment of Mr. Justice Clarke delivered on the 6th March, 2014.
1. Introduction
1.1. It is now almost 40 years since this Court made clear that the requirement in Article 38.1 of the Constitution that a person should not be tried on any criminal charge save in “due course of law” meant more than mere technical compliance with the letter of the law. The Court held that due course of law meant that a trial was required to be conducted in accordance with the concept of justice, that the procedures applied be fair, and that the person accused be given every opportunity to put forward a defence to the charges. That decision of this Court was in State (Healy) v. Donoghue [1976] I.R. 325. The case involved a young man who had been separately convicted in the District Court on two occasions and sentenced to terms of imprisonment. He had not been legally represented at either of his trials. In one case, a District judge had given Mr. Healy legal aid under the then existing statutory scheme. However, due to what might best be called an industrial dispute involving the lawyers involved in that scheme, no representation was available. In the second case, Mr. Healy had not sought legal aid. Ultimately, this Court held that Mr. Healy’s trial in both cases could not be said to have been conducted in due course of law because, having regard to the seriousness of the charges which he faced and his impecuniosity, his trial without the State affording him assistance in obtaining legal representation breached basic principles of fairness.
1.2. In these two cases, this Court is concerned with at least the same broad area of constitutional law. No question of legal assistance being provided by the State arises as such. However, the core issue which does arise is as to whether a person arrested on foot of serious criminal charges is entitled to the benefit of legal advice prior to the commencement of any interrogation and prior to the taking of any samples for the purposes of forensic examination. One of the key questions which arises is as to whether the broad concept of constitutional fairness in the criminal process, as identified in State (Healy) v. Donoghue, requires such representation.
1.3. As will be addressed further in this judgment, the question of the recognition of such a right has been a real possibility for some time. European and other major courts have, in one way or another, recognised a right of that type. The possibility that Bunreacht na hÉireann might properly be interpreted as conferring such a right could not, for the reasons analysed in this judgment, come as a surprise to anyone with an interest in this area, least of all the authorities.
1.4 While it will be necessary to go into the facts of both cases in due course, it is appropriate to start by giving a broad outline of the issues which arise.
2. A Broad Outline
2.1. Both of the defendants (respectively “Mr. Gormley” and “Mr. White”) were convicted of serious criminal offences. On the 7th November, 2007, Mr. Gormley was convicted in the Central Criminal Court of attempted rape, contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. He was later sentenced on the 15th January, 2008, to 6 years imprisonment dating from 14th January, 2008, with 5 years post release supervision. Mr. White was convicted at the Central Criminal Court on the 29th July, 2009, of murder and was sentenced to mandatory life imprisonment. Both separately appealed to the Court of Criminal Appeal.
2.2. In the Court of Criminal Appeal (see Director of Public Prosecutions v Raymond Gormley [2009] IECCA 86), Mr. Gormley sought to challenge his conviction on the ground that the trial judge erred in admitting evidence of statements allegedly made by him to prosecuting gardaí. He argued, first, that there had been an unlawful entry into his dwelling and that, as a result, his arrest was in breach of his constitutional rights. As a result, it was said that any evidence obtained thereafter was inadmissible. Second, he contended that the relevant interviews were conducted in breach of his constitutional right of access to a lawyer. In respect of the first contention, the Court of Criminal Appeal found that Mr. Gormley had by his words cured any unlawful presence of the gardaí and thus his arrest was deemed lawful. On the other contention, the Court was “satisfied that it was open to the learned trial judge to conclude that the attempts by the Gardaí to make contact with the solicitor nominated by the applicant are bona fide and reasonable”, citing their “diligence and resourcefulness in locating the solicitor nominated by the applicant.” Mr. Gormley’s application for leave to appeal was, therefore, dismissed.
2.3. Mr. White sought leave to appeal his conviction on a number of grounds (see Director of Public Prosecutions v Craig White [2011] IECCA 78). Of particular relevance to this appeal is ground 3 by which it was suggested that the trial judge erred in ruling that the taking of samples from him, pursuant to the Criminal Justice (Forensic Evidence) Act 1990, was lawful, because of what was said to be a breach of his right of reasonable access to his solicitor. The Court of Criminal Appeal, having considered all of the surrounding circumstances, including the fact that there was an indication that a solicitor was coming to the station “immediately”, concluded that “[i]n the absence of any refusal to give the samples, and having regard to the fact that the applicant consented to the taking of samples (his reservations remaining secret and undisclosed to the gardaí until the trial), it seems difficult to criticise the learned trial judge for finding that the applicant was not deprived of reasonable access to his solicitor.” Thus, Mr. White’s application for leave to appeal was also rejected.
2.4. Thereafter both sought leave to appeal further to this Court under s. 29(2) of the Courts of Justice Act 1924 (as substituted by s. 22 of the Criminal Justice Act 2006). This subsection provides:
“(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.”
2.5. On the 16th February, 2011, the Court of Criminal Appeal certified the following questions as questions of exceptional importance in Mr. Gormley’s case:
2.6. On the 16th February, 2012, a s. 29 certificate was given by the Court of Criminal Appeal in Mr. White’s case in respect of the following question:
"In circumstances where a person is in custody and has requested a solicitor, are members of An Garda Síochána, for the purpose of ensuring protection of rights of an accused, obliged not to take, or to cease if they have commenced taking, any forensic samples until such time as a person who has sought access to a solicitor, and that solicitor has indicated he/she will attend, has had actual access to that solicitor."
2.7. A subsequent application was made to this Court on the 7th March, 2012, whereby two further grounds were permitted to be argued in Mr. White’s case. These were:
However, it must be noted that these additional issues only arise for consideration in the event that the appeal is unsuccessful on the initial certified issue.
2.8. As appears from the above, there are, however, differences between the two cases. In the case of Mr. Gormley, the evidence which was admitted at his trial concerned statements made by him while being questioned by members of An Garda Síochána after he had requested the presence of a solicitor but before that solicitor arrived. It is important to record at this early stage that, having regard to the fact that the request was made on a Sunday, the solicitor concerned had attended with commendable expedition and there was not, nor could there have been, any suggestion of any delay. Mr. Gormley’s case, therefore, concerns a statement made after a request for a solicitor but before the solicitor concerned arrived.
2.9. Mr. White’s case is different. In his case, buccal swabs from his mouth and a number of hairs were taken while he was under arrest. Again, a request for a solicitor had been made and the swab and hairs concerned were taken prior to the arrival of the relevant solicitor. Again the solicitor attended with very commendable expedition. Thus, the difference in Mr. White’s case is that the evidence which was procured after the request for a solicitor but before the arrival of that solicitor was in the nature of objective forensic evidence rather than a statement made. As will appear later in this judgment, there is at least an argument that different considerations may apply as and between the two cases deriving from that very difference. There are also other factual aspects to the circumstances in which Mr. White had the swab and hairs concerned taken from him which will need to be explored in the course of this judgment.
2.10. However, it will be seen that there is one major common question which has the potential to arise in both cases. That question concerns the procuring of material evidence on which an accused might be convicted at a time when the relevant accused is under arrest, has sought the attendance of a solicitor, but before the solicitor concerned has arrived.
2.11. It is necessary to consider the legal consequences of such a situation on a number of bases. I will address the jurisprudence of the European Court of Human Rights (“ECtHR”) in due course. However, it seems clear that, at least in the view of that Court, the protection against self-incrimination which is guaranteed by the European Convention on Human Rights (“ECHR”) is breached where a person makes an incriminating statement which forms a substantial part of the evidence leading to their conviction in circumstances where the relevant person does not have the benefit of legal advice at the time in question and where they have not waived any entitlement to legal advice. That much being clear, a series of key further questions arises. They are:-
(i) Whether the interpretative obligation imposed on the Irish courts under s. 2 of the European Convention on Human Rights Act 2003 is such that the Irish courts are, in the light of that jurisprudence of the ECtHR, required to interpret this aspect of Irish law in the light of the ECHR, so that Irish law must be interpreted as preventing the use of statements made or evidence of samples taken during a period between a request for a solicitor being made and the attendance of the solicitor concerned;
(ii) Whether it is now appropriate to interpret the right to trial in due course of law as recognised in Article 38.1 of the Constitution as encompassing a right to legal advice prior to either or both of the conduct of an interrogation of a suspect or the taking of forensic samples from such a suspect; and
(iii) Whether any distinction arises, either under the ECHR or as a matter of Irish constitutional law, between respectively cases of interrogation and cases of the taking of objective forensic samples?
2.12. Obviously, to the extent that the issues identified at points (i) and (ii) in the preceding paragraph, or either of them, might find favour, then the question of whether there may be exceptions to the application of the broad principle also arises, at least to the extent that any such possible exception might have relevance on the facts of either of these cases.
2.13. In considering the proper approach to the interpretation of Bunreacht na hÉireann, it is, in accordance with the jurisprudence of this Court, of course, appropriate to consider the case law of the ECtHR and also the constitutional jurisprudence of the superior courts of other jurisdictions which have a similar constitutional regime to ourselves. Also, it clearly follows that, if a constitutional right of the sort urged on behalf of both Mr. Gormley and Mr. White is found to exist, then questions as to the applicability, in an indirect fashion, through the European Convention on Human Rights Act 2003, of the Strasbourg jurisprudence do not really arise. On that basis, it seems appropriate to deal first with the Irish constitutional position.
2.14. Before going on to consider the position in Irish constitutional law, it is appropriate to briefly set out the sequence of facts relevant to the request for, and attendance of, a solicitor in each of the cases.
3. The Facts in Gormley
3.1. Mr. Gormley is alleged to have committed the offences for which he was prosecuted in the early hours of the 24th April, 2005, a Sunday. He was arrested at 1.47 p.m. on that same day and arrived at the Garda station at 2.00 p.m. He was informed of his rights and gave the names of two solicitors at 2.15 p.m. Efforts were then made by the gardaí to locate either one of the two solicitors, including visiting the home of the parents of one of the solicitors and leaving a message with his wife. It was said that the gardaí did not have the home phone number of the requested solicitor.
3.2 Then, at 3.06 p.m., the relevant solicitor contacted the Garda station and confirmed that he would attend at the station “shortly after 4pm” or “as soon as possible after 4pm”. Mr. Gormley was first interviewed at 3.10 p.m. by the investigating gardaí in the course of which he made a number of inculpatory admissions. This interview was recorded on tape. The requested solicitor eventually arrived at 4.48 p.m. He met with Mr. Gormley between 5.00 p.m. and 5.45 p.m. A second interview with Mr. Gormley began at 6.47 p.m. and concluded at 8.30 p.m. Again, this was video-recorded. At 7.45 p.m., during the currency of this interview, an application to extend Mr. Gormley’s detention for a further 6 hours was granted. The inculpatory statements made during the first interview were deemed admissible by the trial judge and, as outlined above, Mr. Gormley was found guilty of attempted rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990.
4. The Facts in White
4.1. On the 15th November, 2005, Mr. White is alleged to have been an occupant in a stolen vehicle when he is said to have discharged 4 bullets at a Mr. Noel Roche, ultimately resulting in Mr. Roche’s death. The vehicle said to have been involved in the crime was later located and a brown bag containing a handgun, balaclava and a pair of gloves was found on the rear seat. Forensic analysis of this bag and other materials found nearby resulted in a match to Mr. White’s DNA.
4.2. Mr. White was arrested under s. 42 of Criminal Justice Act 1999 at Mountjoy Prison at 7.45 a.m. on the 13th February, 2008, and was taken to Raheny Garda Station. At 7.58 a.m. he made a request for his nominated solicitor. This solicitor could not be reached at her usual business number at this time, but a recorded message provided an alternative number for emergencies. This information was conveyed to Mr. White and he was asked whether another solicitor could be contacted. Mr. White was also told that efforts would continue to be made to contact the nominated solicitor. At 8.15 a.m., a message was left on the emergency phone number as a call to that number was not answered. However, the call was returned within one minute and the solicitor confirmed that she was coming “immediately” to the garda station. The solicitor declined the opportunity to speak to Mr. White via the phone. Mr. White was informed of this development. The solicitor arrived at the garda station at 9.42 a.m.
4.3. At 8.00 a.m., permission had been requested from an appropriate officer for the taking of various samples (a blood sample, a buccal swab from the mouth, and a hair sample) from Mr. White under the Criminal Justice (Forensic Evidence) Act 1990. This request was granted at 8.05 a.m. The various samples had all been taken by 8.30 a.m. In evidence, Mr. White stated that he did not object to the taking of the samples because he was of the belief that they would be taken forcibly if he did object. He had been told by a senior officer of An Garda Síochána that his consent was necessary, when in fact it was not. The relevant provisions of the Criminal Justice (Forensic Evidence) Act 1990 (ss. 2 and 4(b)) had by then been amended by the s. 14 of the Criminal Justice Act 2006 to remove the requirement for written consent for swabs from the mouth. However, after the samples were taken, Mr. White refused to sign forms confirming his consent.
4.4. As indicated earlier, it is first appropriate to turn to the Irish constitutional position.
5. The Current Irish Jurisprudence
5.1 In People (Director of Public Prosecutions) v Madden [1977] I.R. 336, the Court of Criminal Appeal had to consider the position of an accused who had not been provided with access to lawyer prior to making a statement, having been arrested under the Offences Against the State Act 1939. There, it was held:
“This Court is satisfied that a person held in detention by the Garda Síochána, whether under the provisions of the Act of 1939 or otherwise, has got a right of reasonable access to his legal advisers and that a refusal of a request to give such reasonable access would render his detention illegal. Of course, in this context the word "reasonable" must be construed having regard to all the circumstances of each individual case and, in particular, as to the time at which access is requested and the availability of the legal adviser or advisers sought. However, the Court is not satisfied that there is any obligation on the Garda Síochána when detaining a person either under s. 30 of the Act of 1939 or under any other authority, to proffer to such person the assistance of a legal adviser without request.”
5.2 In The People (Director of Public Prosecutions) v Healy [1990] 2 I.R. 73, an accused, again having been arrested under the Offences Against the State Act 1939, had been detained and questioned for a number of hours. A solicitor, retained by a member of the accused’s family, arrived at the garda station but was denied access until the accused had completed the making of a statement. The admissions contained in that statement were the sole evidential basis on which he was prosecuted. This Court confirmed that there was no distinction between the arrival of a solicitor on the request of an accused and on the request of a person acting bona fide on his behalf. The majority of the Court (Griffin J. did not feel it was necessary to answer the question in the circumstances of the case) also ruled that the right of reasonable access to a lawyer was constitutional in origin and not merely legal. Finlay C.J. (for the majority) went on to observe:
“A right of reasonable access to a solicitor by a detained person, I am satisfied, means, in the event of the arrival of a solicitor at the garda station in which a person is detained, an immediate right of that person to be told of the arrival and, if he requests it, immediate access. The only thing that could justify the postponement of informing the detained person of the arrival of the solicitor or of immediately complying with a request made by the detained person when so informed, for access to him, would be reasons which objectively viewed from the point of view of the interest or welfare of the detained person, would be viewed by a court as being valid.”
5.3 This Court returned to the issue of reasonable access to a lawyer in People (Director of Public Prosecutions) v Buck [2002] 2 IR 268, where it was necessary to consider the position of an accused who was arrested on a Sunday. Difficulties were encountered in procuring a legal advisor for the accused. He was questioned for a number of hours before a solicitor arrived. However, no statement was taken until after the accused had consulted with a solicitor. It was in this post-access statement that the accused made inculpatory admissions. He sought to challenge the admission of this statement in evidence on the ground that he was subjected to pre-consultation interrogation, amounting to a breach of his constitutional rights. In response to this submission, Keane C.J., on behalf of the Court, noted Walsh J.’s dissent in People (Director of Public Prosecution) v Conroy [1986] I.R. 460 to the effect that pre-access interrogation was a “constitutionally forbidden procedure”, yet stated:
“It would also seem to me that, where a person being detained under a statutory provision asks for a solicitor to be present and the gardaí make bona fide attempts to comply with that request, the admissibility of any incriminating statement made by the person concerned before the arrival of the solicitor should be decided by the trial judge as a matter of discretion in the light of the common law principles to which I have referred, based on considerations of fairness to the accused and public policy. Such an approach would seem preferable to a rigid exclusionary rule that would treat such statements as inadmissible without any regard to the circumstances prevailing in the particular case.”
5.4 In The People (Director of Public Prosecutions) v O’Brien [2005] 2 IR 206, an accused, whilst lawfully detained, requested the services of a solicitor. However, he did not specify a particular solicitor. The gardaí recommended a particular solicitor consciously knowing that there would be a delay in his arrival. In the intervening period, the gardaí continued to interrogate the accused and the accused made certain incriminating statements. In ruling these statements inadmissible for breach of an accused’s constitutional right to reasonable access to a lawyer, this Court, per McCracken J., held:
“…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 accused 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 accused'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.”
5.5 This Court has also ruled that the right to reasonable access does not extend to having a lawyer present during questioning (see Lavery v Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390).
5.6 The taking of samples in the absence of advice from a requested solicitor was considered by the Court of Criminal Appeal in People (Director of Public Prosecutions) v Creed [2009] IECCA 90. In that case, the gardaí had made a number of failed attempts to contact a solicitor after being requested to do so. These attempts were criticised by the Court, but the failure to procure a solicitor was not found to be conscious and deliberate. The following morning a hair sample was taken from the accused, which action did not require his consent. No request was made at that time for a solicitor. The Court of Criminal Appeal differentiated between the request for the solicitor the previous night and the procuring of the relevant hair sample the following morning, holding that the request on the previous night was clearly related to questioning, not the taking of the sample. Thus, it concluded that it was lawful for the trial judge to admit the evidence as to the hair sample. However, the Court did add:
“A deliberate and conscious violation of rights may indeed render a detention wholly unlawful and render any evidence taken as a consequence of it, inadmissible. Where, however, there has been no deliberate and conscious violation of the constitutional right to access to a solicitor but where reasonable efforts have not been made to obtain a solicitor and the accused has not acquiesced in that situation, it must then be a matter of discretion for the trial judge to rule as to whether any particular evidence obtained in that context should be admitted or not. It does not at all follow that because there was no deliberate and conscious violation of the right, that it would be a fair procedure towards the accused to admit evidence obtained in the absence of a solicitor when reasonable efforts have not been made to obtain one. In considering the exercise of the discretion, the judge would also have to bear in mind that under the Custody Regulations, the relevant garda is required to inform the accused that the required solicitor is unobtainable.”
5.7 It is clear that the current state of the jurisprudence in Ireland recognises that the right to have access to a lawyer while in custody is a constitutionally recognised right. A failure to provide reasonable access after a request from a suspect in custody can, on that basis, render the custody unconstitutional and thus lead to any evidence obtained on foot of such unconstitutional custody becoming inadmissible. To date the jurisprudence has not gone so far, however, as to require that advice from a requested solicitor actually be made available to the relevant suspect prior to questioning or the taking of samples. However, that is the question which falls squarely for decision in these cases.
5.8 As already noted, in considering such a question, it is appropriate for this Court to have regard to both the jurisprudence of the ECtHR and that of the superior courts of other common law countries which have like constitutional provisions. Such jurisprudence can be of assistance in analysing similar rights guaranteed under the relevant legal regimes. In that context, I propose to turn first to the jurisprudence of the ECtHR and thereafter to the relevant international jurisprudence.
6. The Position of the European Court of Human Rights
6.1. The ECtHR had to consider the issue of post-arrest rights in Salduz v Turkey (2009) 49 EHRR 19. Here, Mr. Salduz, who was 17 years of age, had been arrested on suspicion of having taken part in an illegal demonstration and of hanging an illegal banner. He was interrogated by the police in the absence of a lawyer. During this interrogation he made a number of admissions, which he claimed were made under duress. He later denied these admissions were true. Mr Salduz was later found guilty on the basis of evidence which included this initial statement. An appeal was later dismissed.
6.2. Mr. Salduz alleged that his rights under Article 6 § 3 (c) of the ECHR had been violated. This article provides:
“3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
On the 26th April, 2007, the relevant Chamber held that there had been no violation of Mr. Salduz’s rights under that provision and that the fairness of his trial had not been prejudiced by lack of legal assistance while initially in police custody.
6.3 On the matter being referred to it, the Grand Chamber took a different view and outlined the applicable general principles at paras. 50-55 of its judgment:
“50. The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Imbrioscia, cited above, § 36). As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 (see Imbrioscia, cited above, § 37, and Brennan, cited above, § 45).
51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277 A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). Nevertheless, Article 6 § 3(c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused (see Imbrioscia, cited above, § 38).
52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances (see John Murray, cited above, § 63; Brennan, cited above, § 45; and Magee, cited above, § 44).
53. These principles, outlined in paragraph 52 above, are also in line with the generally recognised international human rights standards (see paragraphs 37 42 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused.
54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Can v. Austria, no. 9300/81, Commission’s report of 12 July 1984, § 50, Series A no. 96). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006 IX, and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, § 101). In this connection, the Court also notes the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (see paragraphs 39 40 above), in which the CPT repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.
55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 51 above) Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 …. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”
The Grand Chamber then went on consider all the factual circumstances of the case before concluding at para. 62:
“In sum, even though the applicant had the opportunity to challenge the evidence against him at the trial and subsequently on appeal, the absence of a lawyer while he was in police custody irretrievably affected his defence rights.”
6.4 The Salduz principles were later reiterated by the ECtHR in Amutgan v Turkey (Application 5138/04 (Fifth Section), 3rd February 2009) and Cimen v Turkey (Application 19582/02 (Second Section) 3rd February 2009). Similar sentiments can also be seen in the judgment of the ECtHR in Dayanan v Turkey (Application 7377/03 (Second Section) 13th October 2009), where it stated at para. 32:
“In accordance with the generally recognised international norms, which the Court accepts and which form the framework for its case-law, an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned (for the relevant international legal materials see Salduz, cited above, §§ 37-44). Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.”
6.5. It is also important to note the judgment of the ECtHR in Panovits v Cyprus (Application 4268/04 (First Section) 11th December 2008), which post dates Salduz by two weeks. This was another case which involved a minor, where the ECtHR held the failure to provide legal assistance prior to the initial questioning constituted a violation of the minor’s rights under Article 6 § 3. In coming to that conclusion, the court again assessed the factual matrix. Of note are paras. 72-73, which state:
“72. The Court takes note of the Government’s argument that the authorities had remained willing at all times to allow the applicant to be assisted by a lawyer if he so requested. It observes that the obstacles to the effective exercise of the rights of the defence could have been overcome if the domestic authorities, being conscious of the difficulties for the applicant, had actively ensured that he understood that he could request the assignment of a lawyer free of charge if necessary (see Talat Tunç, cited above, § 61, and Padalov v. Bulgaria, no. 54784/00, 10 August 2006, § 61). The passive approach adopted by the authorities in the present circumstances was clearly not sufficient to fulfil their positive obligation to furnish the applicant with the necessary information enabling him to access legal representation.
73. Accordingly, the Court finds that the lack of provision of sufficient information on the applicant’s right to consult a lawyer before his questioning by the police, especially given the fact that he was a minor at the time and not assisted by his guardian during the questioning, constituted a breach of the applicant’s defence rights. The Court moreover finds that neither the applicant nor his father acting on behalf of the applicant had waived the applicant’s right to receive legal representation prior to his interrogation in an explicit and unequivocal manner.”
A number of subsequent cases have confirmed that a suspect can waive his right to legal representation if this is freely and knowingly done (see Trymbach v. Ukraine (Application 44385/02 (Fifth Section), 12th January, 2012); Tarasov v Ukraine (Application 17416/03 (Fifth Section), 31st October, 2013); and Bodaerenko v Ukraine (Application 27892/05 (Fifth Section), 14th May, 2013)).
6.6. In Cadder v Her Majesty’s Advocate [2010] UKSC 43, the United Kingdom Supreme Court considered Salduz and Panovits in examining whether the Scottish procedure following arrest was compatible with the ECHR. The accused was questioned in the absence of a solicitor. During the questioning he made a number of admissions, which were later relied on by the prosecution at trial. Lord Hope, giving the majority judgment, stated that the Salduz principles had consistently been applied by the ECtHR since the Salduz judgment, and drew the conclusion at para. 48 that “the contracting states are under a duty to organise their systems in such a way as to ensure that, unless in the particular circumstances of the case there are compelling reasons for restricting the right, a person who is detained has access to advice from a lawyer before he is subjected to police questioning.” The effect of this was to overrule the earlier decisions of the High Court of Justiciary in Scotland upholding the compatibility of this procedure, namely, Paton v Ritchie (2000) JC 271, Dickson v HM Advocate (2001) JC 203 and HM Advocate v McLean (2010) SLT 73.
6.7 The United Kingdom Supreme Court has since ruled that the Salduz line of jurisprudence does not apply to pre-detention questioning (Ambrose v HM Advocate [2011] UKSC 43), and that use of the “fruits of questioning of an accused without access to a lawyer” do not necessarily amount to a violation of Article 6 (Her Majesty’s Advocate v P [2011] UKSC 44).
6.8 The ECtHR has distinguished between a scenario where an accused has made admissions prior to access to a lawyer and a scenario where objective evidence, such as samples, are taken from an accused prior to such access. In Saunders v United Kingdom (1996) 23 E.H.R.R. 313, the ECtHR observed at para. 69:
“69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.”
This principle, that the privilege against self-incrimination does not apply to blood or other physical or objective specimens used in forensic analysis, was recently reaffirmed in Boyce v Ireland (Application 8428/09 (Fifth Section), 12th November, 2012), a case concerning the taking of a blood sample.
6.9 In contrast, Jalloh v Germany (2006) 44 E.H.R.R. 67, concerned the forcible and highly invasive administration of emetics to an accused in an attempt to provoke the regurgitation of a bag believed to contain illegal drugs. As the accused refused to cooperate with the procedure carried out by a doctor, it was necessary for four police officers to hold him down and immobilise him. As a result of the emetics, the accused regurgitated one bag containing cocaine. He then sought to challenge the admission of this evidence by the German courts on the basis that it had been obtained illegally and in violation of his rights. The ECtHR found that the actions of the investigative authorities did breach the accused’s rights under Article 3 of the Convention:
“82. Having regard to all the circumstances of the case, the Court finds that the impugned measure attained the minimum level of severity required to bring it within the scope of Article 3. The authorities subjected the applicant to a grave interference with his physical and mental integrity against his will. They forced him to regurgitate, not for therapeutic reasons, but in order to retrieve evidence they could equally have obtained by less intrusive methods. The manner in which the impugned measure was carried out was liable to arouse in the applicant feelings of fear, anguish and inferiority that were capable of humiliating and debasing him. Furthermore, the procedure entailed risks to the applicant’s health, not least because of the failure to obtain a proper anamnesis beforehand. Although this was not the intention, the measure was implemented in a way which caused the applicant both physical pain and mental suffering. He has therefore been subjected to inhuman and degrading treatment contrary to Article 3.”
6.10 The Court then proceeded to examine the admissibility of this evidence under Article 6. At para. 102, the Court reaffirmed the general principle stated in Saunders. However, it held that the facts in Jalloh could be distinguished from those in Saunders for three reasons. In Saunders, the bodily material obtained was used to detect a substance whereas here emetics were used to obtain real evidence. Secondly, the means used in Jalloh were considered to be much more invasive and required the provocation of an unnatural bodily reaction. Finally, the procedure used in Jalloh was so severe that it was deemed to be a breach of Article 3, which was not the case in Saunders. Having weighed the following factors - the nature and degree of compulsion used to obtain the evidence; the weight of the public interest in the investigation and punishment of the offence in issue; the existence of any relevant safeguards in the procedure; and the use to which any material so obtained is put – the Court ruled that it “would also have been prepared to find that allowing the use at the applicant’s trial of evidence obtained by the forcible administration of emetics infringed his right not to incriminate himself and therefore rendered his trial as a whole unfair.”
6.11 In summary, the current jurisprudence of ECtHR does not appear to regard the forcible taking of samples as a breach of the privilege against self-incrimination unless the procedures used were sufficiently invasive and unnatural so as to bring the case outside the form of ordinary sampling permitted in accordance with Saunders and Boyce. I now turn to the international jurisprudence.
7. The International Jurisprudence
7.1 In Miranda v State of Arizona 384 U.S. 436 (1966), the United States Supreme Court held by a majority of 5-4, amongst other things, that statements made by a suspect during an interview while in custody are admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with a lawyer, before and during questioning, and of the right against self-incrimination prior to questioning by police. In circumstances where a suspect chooses to exercise his rights to a lawyer, the interrogation must cease immediately if it has already commenced and can not resume until the suspect has had an opportunity to consult with a lawyer. An accused is then also entitled to have a lawyer present at any subsequent interview. Warren C.J., delivering the majority opinion of the Court, explained at p. 469-470:
“The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege [against self-incrimination] under the system we delineate today. Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent, without more, "will benefit only the recidivist and the professional." …Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. …Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires."
There is a “public safety” exception to Miranda (see New York v. Quarles, 467 U.S. 649 (1984)).
7.2 The United States Congress sought to overrule Miranda for federal criminal cases and return the law to a pre-Miranda position through the federal Omnibus Crime Control and Safe Streets Act of 1968. In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court held that “Miranda announced a constitutional rule that Congress may not supersede legislatively” holding that the additional protections offered by the federal law did not create an adequate substitute for the Miranda warnings.
7.3 In Berghuis v. Thompkins, 560 U.S. 370 (2010), the U.S. Supreme Court also considered the position of a person who does not explicitly invoke or waive his right. In a 5-4 decision, the Supreme Court ruled that unless this choice to invoke or waive his Miranda rights was “unambigously” made, any subsequent voluntary statements made after being informed of his rights could be used in court and that police could continue to question him. The Court also held that a voluntary reply, even after lengthy silence, could amount to a waiver.
7.4. The Canadian Supreme Court has also recently considered the extent of the right of access to a lawyer in R. v. Sinclair [2011] 3 S.C.R. 3. Section 10(b) of the Canadian Charter of Rights and Freedoms states that, upon arrest or detention, a person has the right to “retain and instruct counsel without delay”. Para. 27 of the majority judgment (5-4) in Sinclair, delivered by McLachlin C.J. and Charron J., sought to elucidate the scope of s. 10(b):
“Section 10(b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called the informational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This is called the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(b) and results in a breach of the detainee’s rights: Manninen. Implied in the second component is a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel. The police obligations flowing from s. 10(b) are not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended…”.
7.5. The Court then went on reject the contention that the Miranda rule “should be transplanted in Canadian soil” and concluded at para. 42 “that s. 10(b) should not be interpreted as conferring a constitutional right to have a lawyer present throughout a police interview. There is of course nothing to prevent counsel from being present at an interrogation where all sides consent, as already occurs. The police remain free to facilitate such an arrangement if they so choose, and the detainee may wish to make counsel’s presence a precondition of giving a statement.”
7.6 In Australia, the current practice (although it varies slightly between states) is that before questioning commences, police are required to inform suspects that they may communicate or attempt to communicate with a lawyer. There is, however, no right to have a lawyer attend at a police station. Rather, the right that a suspect enjoys is to try to communicate with a lawyer. Normally, if a lawyer can be contacted and indicates that they will come to the police station, the police will not start the interview until the lawyer has arrived and has had a chance to speak to the suspect in private.
7.7 In New Zealand, s. 23(1)(b) of the Bill of Rights Act 1990 provides:
“1. Everyone who is arrested or who is detained under any enactment:
(b) Shall have the right to counsel and instruct a lawyer without delay and to be informed of that right;”
When a suspect seeks to exercise his or her right under s. 23, a police officer has a duty to refrain from taking any positive or deliberate step to elicit evidence from the detainee until he or she has had a reasonable opportunity to consult with counsel. However the courts will examine whether information was “elicited” or whether it was voluntarily provided (R v Taylor [1993] 1 N.Z.L.R. 647).
7.8. The New Zealand courts have also ruled that the the expression “without delay” applies equally to both the suspect and the police. Therefore, a suspect must exercise this right without delay and failure to do so may constitute a waiver of the right. One consequence of this approach is that the police are not obliged to wait indefinitely for a lawyer to arrive. In R v Etheridge (1992) 9 C.R.N.Z. 268, the Court of Appeal identified a number of factors which were said to be indicative of whether a delay was reasonable or not. These factors included whether the police officers knew the person wanted legal counsel; whether the police officers were aware of what arrangements, if any, had been made; and whether there was a pressing need or great urgency requiring the interview to be conducted in absence of a lawyer.
7.9 In analysing the international jurisprudence, it is important to note two factors. First, as in any case in which foreign jurisprudence might be considered to be of assistance, it is always relevant to have regard to the extent to which the foreign court concerned is addressing substantially the same question as this Court has to answer. Foreign jurisprudence which turns, not on general principles or on rights expressed in the same or similar terms, but on the specifics of foreign constitutional or legislative documents, will only be of true assistance if the Irish regime under consideration is sufficiently similar. In that context, it is important to note that there is an express entitlement to early access to a lawyer to be found in both the Canadian Charter of Rights and Freedoms (Section 10(b)) and the New Zealand Bill of Rights Act 1990 (Section 23(1)(b)). However, the Canadian judgment in Sinclair and the New Zealand judgment in Taylor seem to accept that it follows from the right of early access to a lawyer after arrest that, at least in general terms, questioning or interrogation should not commence or cease, as the case may be, until the suspect has had the benefit of consulting with his or her lawyer. The Canadian jurisprudence does suggest that there may be an obligation on the suspect to ask for a lawyer and to do so in a timely fashion.
7.10 It is, perhaps, reasonable to conclude that, of the common law jurisdictions which operate within a Bill of Rights framework, the jurisprudence of the United States courts goes the furthest in requiring, under Miranda, the presence of a lawyer prior to and during questioning in the same way (and subject to the same obligation of the State to provide) as at trial.
7.11 It is also important to emphasise that some of the issues which clearly arise in that international jurisprudence do not have any application to the facts of this case. There is no suggestion that either Mr. Gormley or Mr. White delayed in any request for a lawyer. There could, at least in Mr. Gormley’s case, be no question of waiver. That issue might, if decisive, require some closer scrutiny in the case of Mr. White given the precise circumstances in which he permitted the relevant samples to be taken. However, there appears to be a clear international view, based on the jurisprudence to which I referred, to the effect that there is, at a minimum, an obligation in most circumstances (possibly subject to some exceptions) on investigating police to refrain from interrogating a suspect at a time after the suspect has requested a lawyer and before that lawyer has arrived to advise the suspect concerned. That appears to be the clear position in the United States, in Canada and in New Zealand. That position is consistent with the jurisprudence of the ECtHR.
8. Discussion
8.1. The first real question of principle which this Court, therefore, now has to consider is as to whether the entitlement to a trial in due course of law, guaranteed by Article 38(1) of Bunreacht na hÉireann, encompasses an entitlement to have access to legal advice prior to the conduct of any interrogation of a suspect arrested and/or prior to the taking of any forensic samples from such a suspect. If that proposition is accepted at the level of general principle then many more questions of detail would, of course, arise. Questions such as the point in time when the right arose, the extent to which it is necessary for the suspect to request the presence of a lawyer, whether the entitlement can be waived and, if so, by reference to what standard of action on the part of the suspect, the extent to which a lawyer is entitled to be present during the questioning as well as being entitled to advise the suspect prior to questioning, the extent to which the entitlement to have legal advice might extend not only to a situation where it was intended to question the suspect but also, as in Mr. White’s case, to where it is intended to take samples from the suspect and, doubtless, many others would arise. By no means do all of those issues arise on the facts of these cases. However, the first question which requires to be addressed is as to whether there is a constitutional entitlement of the type asserted in the first place.
8.2. For the reasons already analysed, the current state of the jurisprudence in Ireland clearly does not go that far. In substance it can be said that, to date, the view taken has been that the entitlement to legal advice is a constitutional right. However, it has not been held that that right precludes ongoing interrogation (or indeed the taking of forensic samples) where reasonable efforts are being made to provide the suspect with the requested legal advice. In addition, the current state of the jurisprudence addresses the issue as one which principally affects the constitutional lawfulness of custody so that, in the event that there is a breach of reasonable access to a solicitor, custody becomes unconstitutional and evidence obtained during such unconstitutional custody becomes inadmissible.
8.3. The argument put forward on behalf of Mr. Gormley and Mr. White seeks, perhaps, on one view, to come at the question from a somewhat different angle. Rather than necessarily treating the matter as one principally of unlawful custody, it is rather suggested that the entitlement to have access to a lawyer before being interrogated or having forensic samples taken forms part of the right to a trial in due course of law, such that any reliance sought to be placed on evidence obtained in breach of the obligations of fair process thus arising is said to be in itself directly unconstitutional as opposed to simply rendering evidence inadmissible.
8.4. Given that a decision by this Court to accept, at least in broad terms, the argument put forward on behalf of Mr. Gormley and Mr. White would, therefore, amount to a significant development in the jurisprudence in this area, it is important to emphasise that this Court has consistently held that the Constitution is, as it were, a living document which requires to be interpreted from time to time in accordance with prevailing norms. In his judgment in McGee v Attorney General [1974] I.R. 287, Walsh J., when discussing the values contained in the Preamble to the Constitution, stated, at p. 319:
“According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”
8.5. This passage was quoted by O'Higgins C.J. in The State (Healy) v Donoghue [1976] I.R. 325 at p. 347 and he prefaced this quotation with the following comments:
“In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.”
This approach has more recently been endorsed in the judgments of Denham and Murray JJ. in Sinnott v Minister for Education [2001] 2 IR 545 and A v Governor of Arbour Hill Prison [2006] 4 IR 88.
8.6. The first real question which must, therefore, be addressed is as to whether it is now necessary to interpret the “due course of law” provisions of Bunreacht na hÉireann as encompassing the asserted right to access to a lawyer prior to interrogation or the taking of forensic samples.
8.7. The first issue which perhaps arises is as to whether it is appropriate to regard any part of the investigative stage of a criminal process as forming part of a “trial in due course of law”. It is clear that the ECtHR takes such a view. It must, of course, be recalled that, in many civil law countries, there are formal parts of the investigative process which are judicial or involve prosecutors who have a quasi-judicial status. The line between investigation and trial is not necessarily the same in each jurisdiction. Furthermore, it is important to emphasise a potential distinction between a formal investigation directly involving an arrested suspect and what might be termed a pure investigative stage where the police or other relevant prosecuting authorities are simply gathering evidence.
8.8. However, I am persuaded that the point at which the coercive power of the State, in the form of an arrest, is exercised against a suspect represents an important juncture in any potential criminal process. Thereafter the suspect is no longer someone who is simply being investigated by the gathering of whatever evidence might be available. Thereafter the suspect has been deprived of his or her liberty and, in many cases, can be subjected to mandatory questioning for various periods and, indeed, in certain circumstances, may be exposed to a requirement, under penal sanction, to provide forensic samples. It seems to me that once the power of the State has been exercised against a suspect in that way, it is proper to regard the process thereafter as being intimately connected with a potential criminal trial rather than being one at a pure investigative stage. It seems to me to follow that the requirement that persons only be tried in due course of law, therefore, requires that the basic fairness of process identified as an essential ingredient of that concept by this Court in State (Healy) v. Donoghue applies from the time of arrest of a suspect. The precise consequences of such a requirement do, of course, require careful and detailed analysis. It does not, necessarily, follow that all of the rights which someone may have at trial (in the sense of the conduct of a full hearing of the criminal charge before a judge with or without a jury) apply at each stage of the process leading up to such a trial. However, it seems to me that the fundamental requirement of basic fairness does apply from the time of arrest such that any breach of that requirement can lead to an absence of a trial in due course of law. In that regard it seems to me that the Irish position is the same as that acknowledged by the ECtHR and by the Supreme Court of the United States.
8.9. The next question which arises is as to whether that requirement of basic fairness involves an entitlement not to be interrogated (or not to have forensic samples taken) without having first had access to legal advice. As it is possible that the answer to this question may differ as and between interrogation and the taking of forensic samples, I propose to deal with the question of interrogation first.
9. Legal Advice Before Interrogation
9.1. As already analysed, the consistent international position is that any entitlement to have access to a lawyer at an early stage after arrest necessarily carries with it an entitlement not to be interrogated after such access is requested and before access to such a lawyer is obtained. The reasoning of the ECtHR and the Courts of the United States, Canada and New Zealand which lead to such a conclusion has already been analysed. I am persuaded that like reasoning applies to the interpretation of the constitutional entitlement to a trial in due course of law of an arrested suspect under Bunreacht na hÉireann.
9.2. There may be many reasons why an arrested suspect may wish to have access to a lawyer. There may also be many reasons why such access may be required at an early stage. Some of those reasons may not be very closely connected with either questioning or the taking of forensic samples. It might, for example, be necessary to put in place early enquiries which might assist in the building of a defence. The suspect might require advice on the lawfulness of the arrest and of his or her custody. However, there can be little doubt but that advice on the immediate events which often occur on the arrest of a suspect (such as questioning) is one of the most important aspects of the advice which any suspect is likely to require as a matter of urgency. There would be little point in giving constitutional recognition to a right of access to a lawyer while in custody if one of the principal purposes of that custody in many cases, being the questioning of the relevant suspect, could continue prior to legal advice being obtained. At a minimum any such right would be significantly diluted if questioning could continue prior to the arrival of the relevant lawyer. In those circumstances, it seems to me that the need for basic fairness, which is inherent in the requirement of trial in due course of law under Article 38.1 of the Constitution, carries with it, at least in general terms and potentially subject to exceptions, an entitlement not to be interrogated after a request for a lawyer has been made and before that lawyer has become available to tender the requested advice. As pointed out earlier, there are many issues of detail which surround the precise extent of such a right. Not all of those issues of detail arise in the context of Mr. Gormley’s case which is, of course, the only case before this Court concerning interrogation.
9.3. The interrogation in Mr. Gormley’s case occurred wholly after he had requested a solicitor. Questions as to what must precisely be said to a suspect about their entitlement to have the assistance of a lawyer and questions concerning the extent, if any, to which the State must provide such assistance to those who may be impecunious, do not, therefore, arise on the facts of this case. I would leave to a case in which those issues specifically arise a determination of the precise parameters of the constitutional entitlement.
9.4 Likewise, questions as to whether there may be some limit on the entitlement, by reference to any difficulties which might be encountered in securing the attendance of an appropriate lawyer, do not arise on the facts of Mr. Gormley’s case. As pointed out earlier, the requested solicitor in his case, given that the request arose on a Sunday afternoon, arrived at the garda station with commendable expedition. Lest it might be argued that the statutory entitlement of An Garda Síochána to conduct questioning of suspects in particular circumstances might be diluted by a recognition of the entitlement of a suspect to have a solicitor actually give advice prior to questioning, it is only necessary to refer to s. 5A(1) of the Criminal Justice Act 1984, as inserted by s. 9(a) of the Criminal Justice Act 2011. While that section has not yet been commenced, it demonstrates not only that the Oireachtas has already been concerned about such matters but also that there is a ready solution. In substance any statutory period of detention can be extended by means of stopping time running while the arrival of the relevant lawyer is awaited.
9.5 It must also be recalled that the issue which falls squarely for decision in this case is not one which could reasonably be said to have taken the authorities by surprise. The executive long since committed Ireland to compliance with the ECHR as it is interpreted, from time to time, by the ECtHR. The decision of the ECtHR in Salduz was delivered in 2009 and the possibility that such a view might be taken by that court must have been clear for some time before that. Likewise, the Irish courts have made specific reference to difficulties arising out of questioning in garda custody not least in D.P.P. v. Ryan [2011] IECCA 6, where the Court of Criminal Appeal, in a judgment delivered by Murray C.J., drew specific attention to the potential interaction between the questioning in custody obligations of the State which arise under the ECHR and the questioning practices then typically in place.
9.6 In Ryan the Court of Criminal Appeal said:-
"Right of Access to a Solicitor Generally
Before moving on to address the next issue the Court considers it important to recall that in this case the contents of five out of the six interviews conducted by the Gardaí with the applicant, and portion of the other interview, were excluded on the grounds that the applicant’s constitutional right of access to a solicitor had been breached. This is by no means an unusual ruling in criminal trials generally including those concerning the most serious of offences such as murder. The constitutional right of persons who are being questioned in custody to access to legal advice before questioning (and the duty to advise them of that right) is well established. The right is reflected in the provisions of the Regulations for the Treatment of Persons in Custody in Garda Stations (S.I. 119 of 1987) according to which the member in charge of a garda station is obliged, inter alia, to inform an arrested person without delay of his or her right to consult a solicitor in addition to an explicit provision providing that an arrested person shall have reasonable access to a solicitor of his or her choice. It is not necessary to recall here the reasons why such a right is a necessary protection for an arrested citizen all of which have been extensively referred to in the case-law on this topic. It is also a right which is recognised in most if not all democratic countries and one of the rights recognised in the European Convention on Human Rights (to which the State is a party) and which has been the subject of important decisions by the Court of Human Rights. The frequency therefore with which garda interviewing practices have resulted in otherwise important evidence being rendered inadmissible for such breaches is surprising and to be regretted. The situation would suggest that there is some lack of a coherent practice or training of garda officers as to the manner in which arrested persons should be treated so as to ensure that full and substantive effect is given the right of access to a solicitor, having regard to established principles of law applicable to such a right including principles stemming from the case-law of the European Court of Human Rights. Apart from the relevance of the latter from a comparative law perspective account would have to be taken of s. 2 of the European Convention on Human Rights Act 2003 which requires, even if somewhat enigmatically, that any statutory provision or rule of law be interpreted as far as possible in a manner compatible with the State’s obligations under the Convention. Apart from the time and expense that would be spared if criminal jury trials did not have to spend considerable time addressing such issues in the absence of the jury (a subsidiary but important consideration), the adoption, or more important the giving effect to, of an essentially uniform practice or protocol which ensured that the right of an arrested person’s access to a solicitor was routinely respected would in turn ensure that evidence properly and fairly obtained during interviews suspects is admissible at the trial. That that should be so, whether such statements are inculpatory or exculpatory, is in the interests of justice from every perspective."
9.7 The likelihood that the State would be required, as the UK Supreme Court put it in Cadder, to organise its systems to take account of such rights has been on the agenda for a sufficient period of time that a finding that the constitutional right to a fair trial encompasses the right to access to legal advice before questioning can hardly come as a surprise. If it be the case that the State has not, to date, organised itself in a manner sufficient to allow such questioning to take place in conformity not just with the Constitution but also with the well established jurisprudence of the ECtHR, then it is those who are in charge of putting such provisions in place who must accept responsibility.
9.8 Furthermore, the reasoning behind the obligation to ensure legal advice before questioning identified in this judgment has been available in the jurisprudence of courts, whose judgments on like issues the Irish courts frequently regard as persuasive, for quite some time.
9.9 Warren C.J. suggested as far back as Miranda in 1966 that the right to have a lawyer present at the interrogation is indispensable to the protection of the privilege against self-incrimination. That proposition applies equally to advice prior to interrogation. Likewise as McLachlin C.J. and Charron J., speaking for the Canadian Supreme Court, pointed out in Sinclair, the right to be given an opportunity to consult with a lawyer implies “a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult …”. Furthermore, the ECtHR emphasised that, after an arrest, an accused is in a particularly vulnerable position and criminal procedure often becomes complex. On that basis the ECtHR has stated that the vulnerability of the accused can only be properly compensated for by the assistance of a lawyer whose task it is, amongst other things, to ensure respect of the right of an accused not to incriminate himself. It is also worth noting that those suspects well used to the criminal process know enough about the process to protect themselves. It is those who are unfamiliar who are the most vulnerable.
9.10 Whether there may be some extreme exceptions where the lawyer just does not arrive within any reasonable timeframe is a matter to be debated if and when a case with those facts actually comes before the Court. Likewise, the question as to whether a suspect is entitled to have a lawyer present during questioning does not arise on the facts of this case for the questioning in respect of which complaint is made occurred before the relevant lawyer even arrived. However, it does need to be noted that the jurisprudence of both the ECtHR and the United States Supreme Court clearly recognises that the entitlements of a suspect extend to having the relevant lawyer present.
9.11 The question of the extent to which a suspect must invoke the entitlement to have a lawyer present or the type of conduct which might constitute a waiver of such entitlement are again not matters which arise on the facts of this case. Mr. Gormley made a clear request and there can be no suggestion that he waived any entitlements which might thereby arise.
9.12 Finally, it is important to note that the ECtHR and the U.S. Supreme Court accept that the securing of a conviction of a person, by placing significant reliance on admissions made in the course of questioning which occurred in the absence of advice from a lawyer in breach of the suspect’s entitlements, necessarily leads to the trial being an unfair trial (see Salduz, Miranda, etc.). I am persuaded that a like position must be found to exist under Bunreacht na hÉireann.
9.13 Therefore, whatever may be the situation in other cases, it seems to me that Mr. Gormley’s case is clear. He requested a solicitor. He never withdrew that request nor could it be said that he waived his entitlement to timely legal advice in any way. He made statements, which were relied on to significant effect at his trial, before he had an opportunity to obtain the requested advice. For the reasons analysed in detail by the ECtHR in Salduz and by the U.S. Supreme Court in Miranda, I am satisfied that the entitlement not to self-incriminate incorporates an entitlement to legal advice in advance of mandatory questioning of a suspect in custody. In Mr. Gormley’s case that right was clearly denied. He had requested such advice, had not withdrawn any request or otherwise waived his entitlement and yet had been questioned before he had received the necessary advice. No question could arise on the facts of his case as to whether there might be an exception where it proved impractical, through no fault of any of the prosecuting authorities, to provide the advice in question. The right to a trial in due course of law encompasses a right to early access to a lawyer after arrest and the right not to be interrogated without having had an opportunity to obtain such advice. The conviction of a person wholly or significantly on the basis of evidence obtained contrary to those constitutional entitlements represents a conviction following an unfair trial process.
9.14 It should also be emphasised that the right to legal advice before interrogation is an important constitutional entitlement of high legal value. If any exceptions to that right are to be recognised, then it would be necessary that there be wholly exceptional circumstances involving a pressing and compelling need to protect other major constitutional rights such as the right to life. This judgment is not the place to attempt to define any possible exceptions with precision. The basis of any exception would need to meet the criteria just noted and also be clearly established in fact supported by contemporaneous records.
9.15 Likewise, it is important to emphasise that the right is one designed to provide support for the right against self-incrimination amongst other rights including the right to a fair trial. In that context it must be clearly understood that there is an obligation on arresting authorities to genuinely respect that right. Whatever parameters may exist in relation to the question of whether a person might be said either to have waived the right, or to have failed to invoke the right, the circumstances surrounding the actions of the relevant suspect will require to be carefully scrutinised to ensure that any decision made or, indeed, any inaction on the part of the suspect concerned, was not inappropriately influenced by any contrived conditions brought about or contributed to by arresting authorities designed or which would be likely to encourage any such waiver or non-invocation. A suspect should be treated in a dignified manner at all times after arrest including any period pending the arrival of a legal adviser. It must be recalled that, at such a time, the suspect not only enjoys the presumption of innocence but has not even been charged. For the reasons already analysed, the constitutional entitlement to fair process commences on arrest. The actions of those involved in an arrest must respect that fact.
9.16 Situations should not arise which would place a suspect in a position where the price which they would have to pay for invoking their right to legal advice prior to interrogation would be an unreasonably lengthened period of incarceration or the acceptance of other adverse conditions. The conditions of custody must reflect the fact that the suspect at that stage has not even been charged. Such conditions must be such as could not objectively be considered in any way oppressive or otherwise such as might lead a suspect to reasonably consider waiving any rights which they may have. Suspects should have explained to them their entitlements in a fair and appropriate way which could not, objectively speaking, be considered to in any way encourage waiver or non-invocation.
9.17 In summary, therefore, so far as Mr. Gormley’s case is concerned, I am satisfied that it has been established that Mr. Gormley did not have a trial in due course of law by reason of the fact that a material element of the evidence on foot of which he was convicted was evidence obtained during questioning which occurred after he had requested legal advice and before that legal advice had been obtained. On that basis it is unnecessary to consider whether Mr. Gormley could have succeeded in his appeal by placing reliance on the ECHR.
9.19 As has, however, been identified earlier in this judgment, it does not follow that the entitlement to have access to a lawyer prior to the commencement or continuance of questioning necessarily applies either at all or at least in the same way in respect of any possible entitlement to have access to a lawyer before objective evidence in the form of forensic samples are taken from an accused. I, therefore, turn to that question which is at the heart of Mr. White’s case.
10. Legal Advice Prior to Forensic Sampling
10.1 It seems to me that different considerations apply to forensic testing. First, it must be acknowledged that the results of forensic testing are objective. Such results do not depend on the will of a suspect or comments made by a suspect in circumstances where the right to self-incrimination could have been invoked or where it is possible that the circumstances in which the interrogation took place led to the suspect, in the absence of advice, being unfairly prejudiced by the way in which the relevant questioning was conducted or responded to.
10.2 If there truly is any question about the reliability of any form of objective testing adopted, then any such issues can be fully explored at the trial. Likewise, if there is any question about the legality of the taking of the forensic samples concerned, same can also be fully explored at the trial. Where, however, state authorities are entitled, as a matter of law, to take forensic samples, where any preconditions specified by that law to the taking of the samples concerned have been complied with, and where the samples are taken in a minimally obtrusive way which does not amount to the sort of forcible and highly invasive methods which led the ECtHR in Jalloh to hold that the methods there used amounted to inhuman and degrading treatment, then it seems to me that there is no breach of the constitutionally guaranteed right to fair process arising from the taking of the samples concerned. That position is consistent with the jurisprudence of the ECtHR as analysed earlier in this judgment.
10.3 On that basis, at the level of principle, I am not satisfied that the mere fact that otherwise lawful forensic sampling is properly taken prior to the attendance of a legal adviser renders any subsequent trial, at which reliance is placed on the results of tests arising out of that forensic material, unfair. It remains, of course, the case that the suspect is entitled to reasonable access to a lawyer. The authorities in whose custody the suspect is held are required to take reasonable steps to facilitate such access. What consequences may flow, in respect of the admissibility of forensic evidence taken from a suspect where such reasonable steps are not taken, is a matter to be decided in a case where those circumstances arise. However, I am not satisfied that there is any fair trial constitutional prohibition on the taking, without prior legal advice, of a sample in a minimally intrusive way which is justified in law.
10.4 In those circumstances, I am not satisfied that the “due course of law” provisions of Bunreacht na hÉireann preclude the taking of objective forensic samples from a suspect while that suspect is in custody, after the relevant suspect has requested legal advice and before the relevant legal advice becomes available. That general statement is subject, of course, to the requirement that there be a legal basis for the taking of the sample concerned and that any conditions or procedures specified in the statute conferring that legal basis have been complied with. The methods adopted must also be minimally obtrusive.
10.5 It follows that the general proposition asserted in Mr. White's case must be rejected. There is nothing, per se, which renders his trial unfair by the admission of evidence in the form of forensic samples which were taken after he had requested the presence of his solicitor for advisory purposes and before that solicitor's timely arrival.
10.6 The situation might be different in a case where the suspect has genuine legal choices available in respect of the taking of samples and where it would be reasonably necessary for the suspect concerned to have access to legal advice before making any such choices. For the avoidance of doubt, I would wish to emphasise that I do not consider that the fact that a suspect might be able, by committing a separate criminal offence of refusing to cooperate with the giving of samples, to frustrate the exercise, could not amount to the making of a choice by that suspect in the sense in which I have just used that term. It can not be said that a suspect has a right to refuse to give a sample even though there might be circumstances where, in practice, a refusal, even though constituting a separate criminal offence, might be considered by a suspect to be a sensible tactic. The sort of choice to which I have referred is a choice which is clearly given by the law to a suspect in relation to sampling and where legal advice is reasonably necessary to enable the suspect to make an informed choice. Where such a choice is given, there may well be an entitlement available to a person in custody to obtain legal advice before exercising such a choice. However, on the facts of this case, Mr. White was, as a matter of law, obliged to allow the forensic testing which was required of him. In those circumstances, there was no breach of fair process resultant from the requirement made of Mr. White to provide the relevant samples prior to the arrival of his solicitor.
10.7 I am satisfied, therefore, that a distinction, for the reasons and in the circumstances set out in this judgment, exists between the entitlement to prior legal advice in cases of interrogation, on the one hand, and the lack of such entitlement in the case of mandatory non-obtrusive taking of objective forensic samples, on the other. Given that such a distinction exists at the constitutional level, it is of the utmost importance that there be absolute clarity as to that difference. Indeed, it is a matter which might well merit specific regulation to avoid the risk that there might be confusion in the minds either of suspects or those in whose custody the suspect is held between the two processes. It is important that, on an occasion when, before legal advice in accordance with the rights identified in this judgment has been obtained, the authorities are nonetheless, legitimately, requiring or enforcing the taking of samples in a manner permitted by this judgment, such an occasion is not, either consciously or unconsciously, used to in any way to interfere with the entitlement of the suspect to obtain advice before interrogation.
10.8 The final question which remains, however, so far as Mr. White's case is concerned, is as to whether the factual confusion which arose out of the incorrect statements made to him by gardaí in respect of the legal status of any obligation which he might have to give a sample, has any relevance, on the facts of this case, to the validity of his conviction. While the law did not give Mr. White any choice as to providing the requested samples, it would appear that the senior garda involved in seeking to apply that law was mistaken in that regard and also mistakenly informed Mr. White that he had, in fact, a choice, albeit one where a failure to give the relevant samples might result in adverse comment at any subsequent trial. I, therefore, turn to the question of whether those unusual facts affect the situation in Mr. White's case.
10.9 In my view, the fact remains that Mr. White was legally obliged to provide the samples concerned. Any refusal would have constituted a separate criminal offence. As a matter of law, Mr. White did not have any choice in the matter. Therefore, the need for legal advice just did not arise.
10.10 It does have to be said that it is highly surprising that a senior and experienced garda should be under such a significant misunderstanding as to the legal position in an important area that he misled Mr. White by suggesting that he did have a choice. However, that was an error in favour of Mr. White in the sense that it suggested to him that he had an option to refuse (albeit one which might carry with it some adverse inferences at a possible trial) when in fact he had no such option.
10.11 If Mr. White had actually declined to give a sample, it might well have been relevant in determining whether he could, then, have properly been found guilty of any offence associated with such refusal, to take into account the fact that he had been misled by a senior garda into believing that he had such an entitlement. However, the fact remains that the fair process entitlement which Mr. White undoubtedly enjoyed did not, for the reasons which I have already analysed, include an entitlement to have access to a solicitor before such samples were required of him. I cannot see how the fact that the investigating garda made a mistake in his favour could have changed that situation so as to confer on him a right to legal advice prior to the sampling taking place which did not otherwise arise.
10.12 Having dealt with the matter under Irish constitutional law, it remains to consider whether any separate rights asserted on behalf of Mr. White under the ECHR can be availed of by him. For the reasons already analysed, I am not satisfied that the jurisprudence of the ECtHR leads to a conclusion that the taking of objective forensic samples without the benefit of legal advice amounts to a breach of the right against self- incrimination and, thus, to an unfair trial if evidence obtained from the taking of such samples is materially relied on. This is so at least in cases where, as here, any samples are taken in an unobtrusive way. I am not, therefore, satisfied that Mr. White has established any breach of his rights under the ECHR. The questions which would otherwise have arisen concerning the effect, if any, of any breach of the ECHR on the validity of Mr. White's conviction, do not, therefore, arise.
10.13 For those reasons, I am satisfied that the circumstances in which the forensic samples in question were taken in Mr. White's case do not lead to any difficulty concerning the admission of the analysis of those samples in evidence against him. On that basis Mr. White's appeal on the principal point must be dismissed. It follows that it is necessary to address the two further non-certified points which Mr. White was permitted to argue. I turn to those points.
11. The First Uncertified Point - the Validity of the Warrant
11.1 The warrant relevant in Mr. White's case was issued under s. 42(2) of the Criminal Justice Act 1999, as amended by s. 11 of the Criminal Justice Act 2006 ("section 42"), which provides:
“(2) A member of an Garda Síochána may arrest a prisoner on the authority of a judge of the District Court who is satisfied, on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent, that the following conditions are fulfilled:
(a) there are reasonable grounds for suspecting that the prisoner has committed an offence or offences other than the offence or offences in connection with which he or she is imprisoned;
(b) the arrest of the prisoner is necessary for the proper investigation of the offence or offences that he or she is suspected of having committed; and
(c) where the prisoner has previously been arrested for the same offence or offences, whether prior to his or her imprisonment or under this section, further information has come to the knowledge of the Garda Síochána since that arrest as to the prisoner’s suspected participation in the offence or offences for which his or her arrest is sought."
11.2 The relevant warrant was applied for by a Detective Superintendent to a judge of the District Court on the 7th February, 2008. A sworn information on oath was placed before the District Judge. Further evidence was given as a result of questions put by the District Judge concerned prior to her decision to issue the relevant warrant. There is no issue before this Court as to the adequacy of the information available to the District Judge to enable her to be satisfied that it was appropriate to issue the warrant concerned under the provisions of section 42. There is, thus, no issue of substance concerning the validity of the warrant.
11.3 However, the form of warrant issued specified that the District Judge was "satisfied that the arrest of the said prisoner is necessary for the proper investigation of the offence". Thus, the warrant specified that the District Judge was satisfied of the matter contained in s. 42(2)(b). There was no similar recital in the warrant to the effect that the District Judge was satisfied of the matters specified at subs. (a) and (c) of that subsection. On that basis, it was contended at Mr. White's trial that the warrant was defective on its face, that his arrest on foot of the warrant was, therefore, unlawful, and that any evidence by way of sample taken from him thereafter occurred in conscious violation of his constitutional right to liberty, thus, it was said, rendering any such evidence inadmissible.
11.4 In that context, the trial judge ruled as follows:-
"In relation to his criticism of this warrant, he relies in particular on the Simple Import case and the line of authorities there which I am referred to. In my view, the cases are distinguishable. In Simple Imports the warrants showed on their face that statutory preconditions had not been satisfied."
11.5 Thereafter, as earlier noted, Mr. White appealed against his conviction to the Court of Criminal Appeal. In the course of that appeal, it was suggested that the trial judge was incorrect in the above ruling concerning a warrant. In that context, the Court of Criminal Appeal ruled as follows:-
“It might be said, also, having regard to s. 42(2) that the terms of (a) are, at least in part, sufficiently recited in the warrant. As to (c), if evidence to comply with that sub-section is given, as was the case here, it is inevitable that (b) would follow from that, and also from proof of (a). It is not, therefore, clear why, in such a case as this one, the terms of s.42 (2) (b) would not be, and should not be, deemed adequate to support the warrant. Provided that there is adequate evidence, as here, that all of the matters provided for in s.42(2)(a) and (c) were put before the learned District Court judge, which is the conclusion to be drawn from the evidence, it appears to this Court that it was adequate for the purposes of permitting the arrest of the Appellant, as a prisoner, and the arrest warrant was not invalid by the failure independently to recite the judge’s satisfaction as to the existence of each (a) and (c) of s.42(2) on the face of the warrant.
In the circumstances, the applicant cannot succeed in his contention that the arrest warrant was invalid and so too all consequences flowing therefrom. But, even if the arrest warrant was incorrectly completed, in that the specific recitals of (a) and (c) were not included expressly on the face of it, no argument has been advanced that the warrant was thereby secured in conscious and deliberate violation of a constitutional right, and no suggestion is made that the arrest warrant was procured by means of a ruse, or a deceit intended to evade those rights. If, therefore, the arrest warrant in the present case, was not in breach of any constitutional protection, but was nevertheless not in strict conformity with the statute and was therefore illegal in that sense, such illegality does not have as its automatic consequence that the warrant is thereby invalid or of no effect. The illegality in this case is not such as to persuade this Court to conclude that the subsequent arrest, detention and questioning of the applicant pursuant to the arrest warrant, were themselves, in turn, invalid, and indeed no argument on that basis was made. The learned trial judge did not commit any error in law in his finding that the arrest warrant was valid.”
11.6 The case made on behalf of Mr. White was to reiterate the points made both before the trial court and the Court of Criminal Appeal. In simple terms, it was said that the warrant was defective because there was no recital of compliance with two of the three conditions necessary for the issuing of a warrant under section 42.
11.7 Counsel argued that there was no presumption that a court document is valid on its face and that the validity must, thus, be proved. Reliance was placed on Simple Imports Limited v. Revenue Commissioners [2000] 2 I.R. 243, where the form of words appearing on a warrant was different from the statutory matter of which the issuer of the relevant warrant had to be satisfied. Some reference was also made to Director of Public Prosecutions v. Henry Dunne [1994] 2 I.R. 537. For reasons which I hope will be clear, I do not consider Henry Dunne to be relevant to this case.
11.8 Cases involving warrants can be divided into categories in various ways. There are, for example, cases concerning the substance of the circumstances in which a warrant is issued as opposed to cases involving the form of the warrant. This case is clearly in the latter category. However, even cases involving issues concerning the form of a warrant can, in my view, be divided into two types. To understand that distinction, it seems to me to be important to recall what a warrant does. A warrant permits persons authorised by same to carry out acts which would otherwise be unlawful. Persons may be arrested, and thus have their liberty curtailed, who might not otherwise be capable of legitimate arrest and detention. Persons may be required to have their premises (including a dwelling house) searched and relevant materials and evidence removed. Persons who are affected by a warrant are, prima facie, obliged to submit to its terms. Resisting an arrest lawfully authorised by a warrant is itself a criminal offence. Persons are obliged to permit a search to be carried out in accordance with the terms of a lawful warrant.
11.9 Against that background, it seems clear that a warrant must do at least two things. First, it must set out in sufficiently clear terms the authorisation which the warrant gives. Second, the warrant must specify a sufficient legal basis. The reason for both of these requirements is clear. A person whose rights are affected is entitled to know with some reasonable level of precision what it is exactly that the warrant authorises. Second, such a person is entitled to know the legal basis on which it is said that the warrant was issued because it is that legal basis which requires them to submit to something which would otherwise be unlawful (an arrest or a search, for example).
11.10 But as has been made clear in a number of recent decisions of the Court of Criminal Appeal, (see for example People (Director of Public Prosecutions) v. Mallon [2011] 2 IR 544 and People (Director of Public Prosecutions) v. McCarthy [2010] IECCA 89, [2011] 1 ILRM 430 at p. 441), not every error of form is regarded as sufficient to render a warrant invalid. So far as the question of what the warrant mandates is concerned, the test is, as O'Donnell J., delivering the judgment of the CCA in Mallon, pointed out, as to whether the error makes the warrant unintelligible or misleading. The logic of that position is clear. What a person is entitled to know is what the warrant authorises. Provided that the warrant does this in sufficiently clear terms to allow a person to understand what is authorised, then the fact that there may be a technical misdescription in matters, such as the precise formal address of a property to be searched, will not render the warrant concerned invalid.
11.11 The second type of issue of form, as already noted, concerns the extent to which it may be necessary for a warrant to specify the legal basis for the issuing of the warrant in the first place and, in particular, the extent to which the warrant must specify, in terms, that any preconditions necessary to the issuance of the relevant warrant have been met.
11.12 In that context, counsel for Mr. White placed reliance, as already noted, on Simple Imports. The principle which can be derived from Simple Imports can be found in a passage from the judgment of Keane J. (speaking for the majority) at p. 255:-
“Given the necessarily draconian nature of the powers conferred by the statute a warrant cannot be relied upon as valid which carries on its face a statement that it has been issued on a basis which is not authorised by the statute. It follows that the warrants were invalid and must be quashed.”
11.13 From that passage, it seems clear that what was decided in Simple Imports was that a warrant, which contained on its face a statement which was inconsistent with the statutory conditions necessary for its issue, cannot be valid. In like vein, the ruling in Henry Dunne involved a finding by the trial judge that, by virtue of adaptions made to a standard form document, the terms of the relevant warrant were unintelligible.
11.14 It is also of some relevance to note that this Court, in Simple Imports, considered the position in England and Wales which can be seen to derive from R. v. Inland Revenue Commissioners ex parte Rossminster [1980] AC 952. At p. 253, in Simple Imports, Keane J. said the following:-
“I am satisfied, however, that the superior courts in this jurisdiction are entitled to assume, unless the contrary is established, that judges of the District Court act in accordance with the Constitution and the law in discharging their functions. Different considerations arise, however, where, as here, the warrant itself, unlike the warrant in Reg. v. Inland Revenue Commissioners, Ex parte Rossminster [1980] AC 952, recites that the district judge has purported to exercise the jurisdiction where the statutory preconditions for its exercise have not been met. It need hardly be said that the error was clearly unintentional and resulted from the use of a standard form which had obviously been in existence for some time.”
11.15 While this Court in Simple Imports distinguished, on the facts, that case from Rossminster, it appears that this Court was of the view that the principles identified in Rossminster were consistent with the law in this jurisdiction. Those principles can be gleaned from a brief analysis of a number of the speeches of the Law Lords in that case.
11.16 First, Lord Wilberforce said the following:-
“There is no mystery about the word "warrant": it simply means a document issued by a person in authority under power conferred in that behalf authorising the doing of an act which would otherwise be illegal. The person affected, of course, has the right to be satisfied that the power to issue it exists: therefore the warrant should (and did) contain a reference to that power. It would be wise to add to it a statement of satisfaction on the part of the judicial authority as to the matters on which he must be satisfied but this is not a requirement and its absence does not go to validity.”
Second, Lord Dilhorne expressed the following view:-
“Although it is not made necessary by the section, I think that it is most desirable that a warrant issued under this section should make it clear that the statutory conditions precedent to the issue of a valid warrant have been complied with, and also that the warrant should state accurately what it authorises to be done.”
Next, Lord Diplock took broadly the same view in the following passage:-
“Even though the statute may not strictly so require (a matter on which I express no concluded opinion) the warrant in my view ought to state upon its face the statutory authority under which it has been issued. This the form of warrant issued in the instant case does, though I agree with my noble and learned friend, Viscount Dilhorne, that the wording of the recital of the fulfilment of the two statutory conditions precedent to its issue might be improved. But for the reference to section 20C in accordance with whose provisions the information is stated to have been laid, the wording of the warrant would be consistent with its meaning that the information had not specified for consideration by the judge the grounds of suspicion on which the informant relied; but the express reference to the section, in my view, resolves any ambiguity and makes untenable the suggestion that the preamble to the warrant constitutes an admission by the judge that he had adopted blindly a statement of the informant that there existed some reasonable grounds for suspicion the nature of which however, was not disclosed.”
Finally, Lord Scarman said the following:-
“One criticism may, however, fairly be made, but was not made by counsel for the respondents, of the warrants in this case. It is that they fail to recite that the judge was himself satisfied as to the matters upon which he has to be satisfied. No doubt, and absolutely correctly, counsel took the view that the omission was not fatal to the validity of the warrants. Nevertheless the recital in the warrants is incomplete. If anything was going to be recited as to the proceedings before the judge, the fact that the judge was satisfied should have been. In a matter of such importance as the issue of these warrants it is, I think, desirable to include a recital of the essential fact that the judge was satisfied that there were reasonable grounds for suspicion and that the board itself had authorised the application.”
11.17 It should be noted that Lord Salmon dissented. The views expressed in Rossminster appear to remain the law in the United Kingdom. The overall position in that jurisdiction appears to be that, while desirable, it is unnecessary that there be a recital that the issuer of a warrant is satisfied that all of the preconditions which the relevant statute requires to be fulfilled in order that the warrant be issued have in fact been met. However, some form of words indicating that such a situation exists are considered as a desirable inclusion in a warrant.
11.18 Without deciding whether Rossminster represents the law in this jurisdiction, I am satisfied that, in general terms, a warrant issued by judicial authority is valid if:-
(a) It specifies the legal power which is being exercised by the issuing of the relevant warrant;
(b) It specifies, or it can reasonably be implied from the text, that the relevant judge is satisfied that it should be issued; and
(c) (Having regard to Simple Imports) It does not contain on its face any recital or other statement which would reasonably lead to the conclusion that the judge issuing the warrant had approached the question of whether it was appropriate to issue the warrant on an incorrect basis having regard to the relevant statute.
11.19 It is not, in my view, therefore, necessary that there be a specific recital of each of the matters of which the issuing judge was required to be satisfied in order that the warrant be considered valid.
11.20 For the reasons identified in the judgment of the Court of Criminal Appeal in this case, I am satisfied that it cannot be said that the warrant with which the court is now concerned can properly be construed as giving rise to an inference that the issuing District Judge was not satisfied as to the necessary statutory criteria or was satisfied as to inaccurate criteria. If anything, for the reasons specified by the Court of Criminal Appeal, the opposite is the case. However, for the reasons which I have analysed, it is not necessary that the warrant actually specify satisfaction with those statutory criteria. Rather, all that is required is that the statutory power be specified (which it was), that it be reasonable to infer that the judge was satisfied as to the necessary statutory criteria and that there not appear, on the face of the warrant, recitals or statements which give rise to the inference that the issuing judge applied incorrect criteria or actually was not satisfied as to compliance with the correct criteria. For the reasons already noted, such cannot be said to be the case here.
11.21 On that basis, I am satisfied that the warrant in Mr. White's case was valid, that the trial judge and the Court of Criminal Appeal were correct in their analysis of that question, and that this ground of appeal must also fail. I now turn to the second uncertified point.
12. The Second Uncertified Point - The Fingerprint Evidence
12.1 The point under this heading can be simply put. Three out of four purported matches of fingerprints fell below what is the normally accepted standard of twelve points of comparison. The relevant garda fingerprint expert, in the course of his evidence, stated that he had "no doubt" that the fingerprints found on materials connected with the offence matched the fingerprints of Mr. White. An objection was taken on the basis that the language used came close to purporting to answer the very question which the jury have to answer (being whether they were satisfied beyond reasonable doubt that the accused is guilty).
12.2 In that context the trial judge ruled as follows:-
“Alright. Well, the starting point is why are experts permitted to give evidence? They are permitted to give evidence in order to assist a jury. In the case of fingerprints, rarely, but in the case of other disciplines, frequently, juries have to choose between conflicting expert testimony, and certainly judges in cases that are tried by judges alone day in day out have to choose between conflicting testimonies. In deciding how to make that choice the jury, where there is one, or a judge, will have regard to a number of factors. It may have regard to the particular expertise and qualifications of the expert, to what extent the, as it were, subspecialty is engaged by the expert, and also, and perhaps more importantly, to the extent to which the expert is entirely confident in the opinion he is expressing. And it seems to me that any expert is perfectly entitled to indicate that he has particular confidence in an opinion, and the corollary of that is that it’s appropriate that an expert should qualify an opinion when it isn’t expressed with the same confidence, so I see no objection whatever to Detective Garda Kane expressing the view that he has considerable confidence, complete confidence or whatever. I do understand Mr. Grehan’s sensitivities about using language that so closely reflects the task of the jury, though as I have said, ultimately the jury will be getting cautions as to how they deal with any expert testimony, but for that reason I would prefer if – and it’s a matter – I am not insisting on this – but I will strongly prefer if Detective Garda Kane, perhaps in consultation with Mr. Sammon, came up with an alternative formula designed to indicate to the jury the strength of his convictions, and his confidence in the correctness of his convictions, but without using the phrase “satisfied beyond all doubt”, because it so closely reflects the ultimate task of the jury. Subject to that invitation, there are no constraints on Detective Garda Kane.”
12.3 On appeal, it was urged on behalf of Mr. White that the use of the phrase "no doubt" gave rise to a risk of an unfair trial or an unsafe conviction. The Court of Criminal Appeal rejected that argument in the following passage from its judgment (see pp.12-13):-
“The Court is satisfied that the learned trial judge made no error in law in the manner in which he heard and dealt with the issue arising in relation to the strength or otherwise of the view to be expressed, and as expressed, by the expert, and that there could be no objection to his rulings in the matter, which were based on exchanges with counsel, on a consideration of counsels’ submissions and of the law, and for good and stated legal reasons. On the basis of the case law, and the trial judge’s ruling, the Court does not accept that the giving of the evidence relating to fingerprinting in the manner which occurred subsequently in the present trial, namely, the expert expressing the view he had “no doubt” about his results, was in any way, or could have been considered to be in any way suspect or open to criticism, and did not seek by such expression to usurp the role of the jury. Nor was it likely to have had that effect. This Court is satisfied it did not lead to an unfair trial or to an unsafe conviction.”
12.4 In relying on the proposition that fingerprint evidence is capable of being incorrect, counsel referred to two cases from different jurisdictions, being Brandon Mayfield v. United States of America [Oregon District Court, summary judgment, 26th September, 2007] and McKie v. Strathclyde Joint Police Board & ors [2003] ScotCS 353. Counsel also referred to a ruling of White J. in Director of Public Prosecutions. v. Rattigan (Unreported, Central Criminal Court, 2nd February, 2009) where that judge did not permit an expert to give his opinion as one of no doubt. Finally, counsel referred to the judgment of the Court of Criminal Appeal in Director of Public Prosecutions v. Abdi (Unreported, Court of Criminal Appeal, 6th December, 2004) where the judgment of the Court was delivered by Hardiman J. It was said in that judgment that expert opinion should not be expressed in a form which suggests that the expert is trying to subvert the role of the finder of fact.
12.5 As was pointed out by the trial judge, it is in the nature of any expert opinion that it may be held with a greater or lesser degree of confidence. There is no necessarily correct way in which an expert ought to express the degree of confidence with which the expert holds the opinion of which evidence is given. If there is a basis, whether because of the generally accepted principles of the area in question or because of a contrary view expressed by another expert witness, for suggesting that the expert has been exaggerated in the degree of confidence expressed, then that is a matter which can be the subject of a challenge to the expert's opinion.
12.6 It is, of course, true to state, as Hardiman J. pointed out in Abdi, that the form of expert opinion should not be such as allows the expert to subvert the role of the jury (or, where appropriate, a finder of fact who is a judge). Certainly, an expert who used the phrase "beyond reasonable doubt" or the like would be acting inappropriately. However, even if such a phrase was used in evidence, it would be a matter for the trial judge to seek to charge the jury, if that were considered safe on the facts of the case, in a way which would make clear to the jury what their role was. While the phrase "no doubt" bears some similarity to "beyond reasonable doubt", it is also a phrase which is frequently used in every day discourse. People, and doubtless experts, express their confidence in their views in a whole range of different ways. Where an opinion is held with a high degree of confidence, it may be said that the holder is "highly confident" or is "certain" or has "no doubt" or, doubtless, a similar view can be expressed in other ways. If it is believed that the view expressed as to the level of confidence which can be legitimately be held in the opinion is incorrect, then that is a matter to be challenged the ordinary way by cross examination or by tendering contradictory evidence.
12.7 The important point to emphasise in this context is that the witness is allowed to express an opinion, as an expert, solely on a matter which falls within his or her area of expertise and not a view on the guilt or otherwise of the accused. It is, in principle, analogous to a witness of fact expressing, with a degree of confidence, a view solely on a matter of fact within his or her own knowledge such as "I am sure it was the accused that I saw at the scene of the assault". In either case, it remains exclusively a matter for the jury to decide what weight, if any, to attach to the evidence and of course to decide the issue of guilt or otherwise of the accused.
12.8 In my view, there was nothing inappropriate in the way in which the trial judge handled this aspect of the case and the Court of Criminal Appeal was correct to disallow the appeal before it on the grounds associated with this point. I would, therefore, dismiss the appeal on that ground as well.
13. Conclusions
13.1 For those reasons, I am satisfied that the appeal on the certified point in Mr. Gormley's case should be allowed. Mr. Gormley was convicted substantially on the basis of admission evidence made during interrogation in custody during a period after he had requested the presence of a solicitor and before that solicitor had arrived to advise him.
13.2 His conviction on that basis is a breach of the constitutional guarantee of fair process and thus is, in accordance with State (Healy) v. Donoghue, a trial otherwise than in due course of law.
13.3 Different considerations apply in the case of Mr. White. While it is true that forensic samples were taken from him at a time after he had requested the presence of a solicitor and before the arrival of the solicitor concerned, for the reasons which I have sought to analyse, I am not satisfied that the taking of samples in that manner amounts to a breach of fair process. That is so because Mr. White was legally obliged to provide those samples and same were taken in an unobtrusive way.
13.4 On that basis I would reject the certified ground of appeal in Mr. White's case. For the reasons also set out earlier in this judgment, I would reject the two additional points which Mr. White was permitted by this Court to argue on his appeal. Therefore, Mr. White's appeal must fail.
13.5 Finally, I would emphasise that many questions concerning the application in detail of the right to fair process as identified in Mr. Gormley's case do not arise on the facts of his case. Those issues will fall to be determined in cases where the relevant facts arise.
