Crown Court for Northern Ireland Decisions

The Factual background

The decision by the police to permit interview of the accused before he had been given access to legal advice

(i) Mr Treacy QC referred the court to paragraph 4.7 of the Code of Practice issued in connection with the audio recording of police interviews with persons detained under Section 14(1)(a) or (b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 and submitted that the interviewing officers had not recorded on tape the accused's objections to the interview being tape recorded. The transcript of the tape of the accused's first interview with Detective Sergeant Lynas and Detective Constable Morton at 10.51 am on 30 November 1999 clearly records the accused as saying "I don't want to be interviewed by tape". After some formalities and the administration of the caution, the accused is again recorded as saying "I don't want to be interviewed on tape". In cross-examination by Mr Treacy QC Detective Sergeant Lynas agreed that the police officers had not asked the accused for his reasons as to why he should not be interviewed on tape and stated that they had simply switched off the tape at the accused's request. The detective sergeant also agreed that they had not explained in detail why it was in the accused's best interests for the interview to be taped. However, insofar as the accused's objections to the interview being tape recorded were clearly recorded on tape, it does not seem to me that there was any breach of paragraph 4.7. During all interviews the accused made absolutely clear his refusal to have the interviews tape recorded and I am quite satisfied from the evidence of Mrs Tunstall, clinical psychologist, that his reason for doing so was his belief that it would be impossible to deny the contents of an interview which was recorded on tape whereas he could always reject as falsified notes compiled by interviewing officers which he had not signed or otherwise independently acknowledged. If there was any breach of paragraph 4.7 I am satisfied that it was entirely technical and not such as to render the proceedings unfair or unjust.

(ii) Mr Treacy QC also argued that Detective Sergeant Lynas and Detective Constable Morton had acted in breach of paragraph 11.8 of the Code by failing to record the remarks made by the accused with regard to his involvement with the Special Branch of the then RUC at the start of the first interview. No reference to these remarks appeared in either the statement prepared by Detective Sergeant Lynas or that prepared by his co-interviewer, Detective Constable Morton.

It is clear that prior to the offences with which he was charged and, indeed, at the time those offences were committed, the accused was acting as a Special Branch source. The interviewing officers were aware of these activities before their first interview with the accused. Detective Sergeant Lynas gave evidence that, at the start of the first interview, after the audio tape had been switched off at the insistence of the accused, the accused had then mentioned his connection with Special Branch but had requested the interviewing officers not to make any notes about this matter. Detective Sergeant Lynas said that, accordingly, no notes of this matter were made although they did draw the attention of Detective Inspector Irwin to the fact that it was mentioned by the accused at the post interview briefing. Detective Sergeant Lynas said that, since the accused's involvement with Special Branch was already known to the them prior to the interview, it did not seem to be particularly important.

Detective Inspector Irwin confirmed that, after the first interview, Detective Sergeant Lynas had reported to him that the accused had spoken of his Special Branch connection and mentioned the code names of his Special Branch handlers but that, at the request of the accused, no written note had been made of these remarks. The Detective Inspector gave Detective Sergeant Lynas a direction that such remarks should be written down and that at an appropriate later stage the accused should be reminded of the remarks that he had made at the first interview. Subsequent references to the accused's connection with Special Branch were recorded in the notes made by the same detectives. I accept the explanation put forward by the police officers in relation to the omission of the plaintiff's remarks about his involvement with Special Branch from the notes relating to the first interview. No notes were made as a result of a specific request from the accused. He mentioned the code names of his handlers and, in my view, Detective Sergeant Lynas acted quite properly in drawing the matter to the attention of Detective Inspector Irwin. Detective Inspector Irwin then gave an appropriate direction. While there may have been a technical breach of the Code requirement to record everything said in interview, I do not believe that such a breach caused any unfairness or injustice to the accused.

(i) Mr Treacy QC called Mrs Olive Tunstall, clinical psychologist, to give evidence as to the personality of the accused. Mrs Tunstall administered the Wechsler Adult Intelligence Scale and determined that the accused had a Verbal IQ of 76 with a Performance IQ of 90. Mrs Tunstall considered that the discrepancy of 14 IQ points was highly abnormal and she did not derive a Full Scale IQ because the difference was so significant. Applying the Wechsler Objective Reading Dimension indicated that the accused had a reading age of seven years. She also administered the Gudjonsson test of Suggestibility and the Gudjonsson Compliance Scale to the accused. These scales are devised for the purpose of measuring the extent to which a subject will yield to suggestive questioning and the degree to which a subject will change his or her answers when placed under pressure to so. The Gudjonsson suggestibility test comprises two sub-tests which measure Yield, the tendency to yield to suggestive questioning, and Shift, the tendency to change answers when placed under pressure. The accused's yield score was not abnormal and, according to Mrs Tunstall, provided no evidence of an abnormal tendency to yield to suggestive questioning. His shift score was abnormally high and, again according to Mrs Tunstall, indicated that the accused had an abnormal tendency to change his answers when placed under pressure to do so. Mrs Tunstall stated that the total suggestibility score was abnormally high and indicated that the accused was abnormally suggestible. Mrs Tunstall explained that the distinction between Suggestibility and Compliance, as these traits are defined and measured by the Gudjonsson scales is that Suggestibility requires personal acceptance by the subject of information provided or requests made whereas Compliance refers to the tendency of an individual to agree to propositions, requests or instructions put forward by others even though he may privately disagree with what is being put to him. Insofar as the general personality of the accused was concerned, after administering the Eysenck Personality Questionnaire, Mrs Tunstall concluded that the results did not show any abnormality and were consistent with the personal history of the accused.

(ii) While, to some extent, it may have been due to the decision by the accused not to give evidence on the voir dire, I did not find Mrs Tunstall to be a particularly satisfactory witness nor was it easy to assimilate her evidence into the circumstances of this case. For example:

(a) At one point during the course of her interview with the accused it appears that Mr Blaney told Mrs Tunstall that he had made the self-incriminating admissions as a result of threats by the interviewing officers, while the tapes were turned off, that they would expose him as an informer and that they would involve his girlfriend. Neither the accused nor his solicitor appear to have made any such contemporaneous complaint to the police and in the course of giving evidence Mrs Tunstall said that she had not taken these alleged threats into account and that, in general, she had not relied upon what she was told by the accused. While it may well not be determinative, it seems to me that, as a matter of simple common sense, it would be important to obtain full details of and carefully examine any explanation or account given by the accused as to his experience of and reaction to the interviewing process. In this respect, I preferred the evidence of Dr F W A Browne, consultant forensic psychiatrist, who was called on behalf of the prosecution and who confirmed that he would have regarded a detailed account from the accused as being very important. Indeed, Dr Browne stated that Dr Gudjonsson recommended that the information acquired as a result of his scales should be correlated with all other relevant information. Such an approach at least offers the prospect of a degree of objectivity. By contrast, Mrs Tunstall relied solely on her test results stating that, since the accused would not be "aware" of the processes by which he was being influenced, there was nothing to be gained by examining his articulated thoughts and feelings.

(b) As a result, a good deal of Mrs Tunstall's evidence tended towards speculation eg. "his will to resist could have been diminished", he could have made an "unconscious" decision to "end the distress of the interviewing process", by the commencement of interview 7 he was "likely to be very tired" and "exhaustion alone could have been a factor".

(c) In dealing with the accused's IQ and his reading age equivalent to seven years Mrs Tunstall said that "illiterates are massively handicapped in our society" facing difficulties in obtaining employment, benefits etc. By way of example she referred to the problems faced by the illiterate in trying to "cope with addresses". Mrs Tunstall then had some difficulty in reconciling this assertion with the address book containing addresses and phone numbers which was seized from the accused by the police. In addition, Mrs Tunstall herself recorded from the accused a history of employment as a coalman in the course of which he said that he had "a good work record in that capacity" having done the job "on and off" for about 14 years. He also told her that he had worked in a scrap metal yard and as a baker in a factory.

(d) In cross-examination Mr Lynch QC drew Mrs Tunstall's attention to the final paragraph in the "conclusions" section of her report dated 28 January 2002 in which she expressed her opinion that there was "a possibility" that Mr Blaney's behaviour during the police interviews may have been influenced by the content of conversations he had both with the police officers who interviewed him and with other police officers, of which no records were available. In cross-examination by Mr Lynch QC Mrs Tunstall responded by remarks such as:

"He claims there was conversation – I don't know – could be completely innocuous – may have been some pressures in conversations about Special Branch or conversations that were not recorded – I have not factored that into my opinion."

(e) Mrs Tunstall gave evidence that the accused's "suggestibility" operated to make him believe what the police officer was saying and that the officers had reasons for believing that he had committed the offences. On the other hand, her notes of her interview with the accused recorded that he accepted that he had made the admissions recorded in the police handwritten notes but maintained that he had "invented all of it". This would appear to be difficult to reconcile with Mrs Tunstall's interpretation of the high shift score as indicating a vulnerability to change answers under pressure. The accused told Mrs Tunstall that he had asked for the tapes to be switched off because tapes were impossible to deny and would leave him open to revenge by the LVF whereas handwritten notes could always be denied especially when they were not signed or otherwise acknowledged. Mrs Tunstall accepted that this represented a rational response to the situation. She also agreed that the accused had not made the case to her that he had only made the admissions because of continuing pressure from the police.

(iii) Mr Treacy QC also attacked the intensity of the interviewing by the police criticising, in particular, the fifth interview with the accused conducted by Detective Sergeant Lynas and Detective Constable Morton. Mr Treacy characterised this interview as "burdensome and harsh" referring to the Detective Sergeant raising his voice for a protracted period of time and banging the table some 50 times. He also condemned the use by the police officers of phrases such as "you can't sit like that now and say nothing", "now sort yourself out and start telling the truth", "you are going to have to start telling the truth about it " etc. as being inconsistent with the accused's right of silence of which he was specifically reminded in the official caution.

While I accept that the police questioning of the accused was robust and persistent, I think that it is important to place these criticisms of the fifth interview in context. In the course of cross-examination Mr Treacy QC initially put to Detective Sergeant Lynas that he had shouted at the accused and thumped the table. This was subsequently amended to an allegation of raised voice and repeatedly banging the table. The detective sergeant accepted that voices might have been raised during the interview and that it was possible that he had banged the table. He also agreed with Mr Treacy QC that he didn't normally do either of those things. I had an opportunity to hear and see the audio and silent video recording of this interview and it is clear that the detective sergeant did not thump or bang his fist upon the table. The tapes confirm that Detective Sergeant Lynas did raise his voice and slap the flat of his hand, which was resting on the table, some 45-50 times in emphasis over a period of some three minutes. This sound was picked up by the microphone which is clearly very sensitive since it is capable of detecting whispered remarks.

Of the nineteen interviews which took place between police officers and the accused during his detention only the audio/video tapes of interview five were played for the court at the request of the defence. Interview five took place after the accused had enjoyed a break from interviewing of approximately three hours. During interviews 1-4 the accused made no admissions nor did he make any admission during interview 5. At the commencement of interview 5 the accused was smoking a cigarette and during the interview neither the audio nor video tapes confirm any obvious signs of anxiety or distress on the part of the accused. Interview 5 lasted, in all, only some 33 minutes. After interview 5 concluded his detention was reviewed by the Detective Inspector Irwin to whom the accused made no complaint. During interview 6, which took place approximately one hour after the completion of interview 5 the accused made no admissions.

(f) Mr Treacy QC criticised Detective Sergeant Lynas and Detective Constable Morton for commencing the seventh interview at 10.56 pm – some 16 hours after the accused's arrest at 7.05 am. However, it is important to bear in mind that, while the accused had been interviewed upon six previous occasions during those 16 hours, the total time occupied by all six previous interviews was only just over 3 hours. In cross-examination by Mr Treacy QC Detective Sergeant Lynas agreed that it was probably abnormal to commence an interview at 11.00 pm but he suggested that the relevant decision had probably been taken by Detective Inspector Irwin. Detective Inspector Irwin confirmed that this had been the case and that he had taken into account the fact that from 5.30 to 10.30 pm the accused had been interviewed for a total of approximately one hour with interview six lasting only some 20 minutes. Detective Inspector Irwin recalled that Detective Sergeant Lynas had indicated to him at some stage during interview 7 that the accused was making admissions and he then directed that the interview should proceed after conferring with the duty inspector who was monitoring the interviews. At the commencement of interview 7 the accused once more made it perfectly clear that he would not speak while the audio tape was recording and stated that he would tell the truth but he didn't want it on tape. This would appear to have been a rational decision reached by a positive exercise of the independent will of the accused.

(g) In his skeleton argument Mr Treacy QC referred to the "spartan conditions" at Gough Barracks and the fact that the accused was held "incommunicado" during his detention, drawing the attention of the court to the report of the Bennett Committee 1979, the report of the Independent Commissioner for Holding Centres 1994, the report of the Committee for the Prevention of Torture 1993 and the recommendations of the Patten Commission 1999. In cross-examination by Mr Treacy QC, Detective Sergeant Lynas agreed that, apart from a solicitor, terrorist suspects generally had no contact with the outside world at Gough Barracks, although he pointed out that upon request, a yard was available for smoke breaks and exercise. However, during the course of his detention neither the accused nor his solicitor appears to have made any complaint about being held incommunicado or the spartan conditions of Gough Barracks nor did the accused apparently attribute the making of his admissions to any such factors during the course of his interview with Mrs Tunstall.

Mr Treacy was also critical of the failure to re-administer the caution when moving from recording the interview on audio tape to recording the interview in handwritten notes. However, I am quite satisfied that the appropriate caution was administered at the commencement of each interview, that the accused would have been aware of his right to remain silent and that he was under no misapprehension as to the status of the handwritten notes which he preferred upon the rational basis that they could later be denied.

In developing his submission in relation to this aspect of the case, Mr Treacy QC advanced a number of basic propositions:

(i) The accused was arrested under the provisions of Section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 a piece of legislation which applied with equal force in Northern Ireland and in England and Wales.

(ii) However, in England and Wales, the provisions of the Police and Criminal Evidence Act 1986, together with the Codes issued thereunder, provided that all persons who were arrested, whether they were arrested in respect of terrorist or non-terrorist offences, were entitled to have their solicitor present during the course of interviews.

(iii) In Northern Ireland the Police and Criminal Evidence (Northern Ireland) Order 1989 and the PACE Codes issued thereunder afforded non-terrorist criminal suspects arrested in Northern Ireland a right to have a solicitor present during the course of interviews. On the other hand, the provisions of the 1989 Order did not alter the regime for persons arrested in Northern Ireland under the Prevention of Terrorism (Temporary Provisions) Act 1989. A suspect detained in Northern Ireland upon suspicion of such an offence was merely entitled to consult privately with a solicitor – see Section 47 of the Northern Ireland (Emergency Provisions) Act 1996 and paragraph 6, Annex B of the Code of Practice issued under Section 61 of the Northern Ireland (Emergency Provisions) Act 1991.

(iv) In September 2000, some ten months after the arrest of this accused, the Chief Constable of the RUC, in advance of anticipated legislative change, announced that, as a matter of practice, henceforward solicitors would be allowed to be present during interviews with terrorist suspects at the holding centres. This right was formally incorporated into legislation by the provisions of the Terrorism Act 2000 and the Code issued thereunder.

"The conclusion is inescapable that it is the clearly expressed will of Parliament that persons arrested under Section 14(1) of the 1989 Act should not have the right to have a solicitor present during interview. In these circumstances I would reject the invitation to develop such a right as beyond the power of the House of Lords."

"The court agrees that the recording of interviews provides a safeguard against police misconduct, as does the attendance of the suspect's lawyer. However, it is not persuaded that these are indispensable precondition of fairness within the meaning of Article 6(1) of the Convention. The essential issue in each application brought before this court remains whether in the circumstances of the individual case the applicant received a fair trial. The court considers that the adversarial procedure conducted before the trial court at which evidence was heard from the applicant, psychological experts, the various police officers involved in the interrogations and the police doctors who examined him during his detention, was capable of bringing to light any oppressive conduct by the police. In the circumstances, the lack of additional safeguards has not been shown to render the applicant's trial unfair."