Supreme Court dismisses appeal; no causal link between pre-solicitor questioning and incriminating statements found.

[2002] IESC 23

THE SUPREME COURT

24/00

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

AND

ANTHONY BUCK

APPLICANT/APPELLANT

JUDGMENT delivered the 17th day of April, 2002 by Keane C.J.

Introduction

1. The appellant was convicted in the Central Criminal Court after a trial before Quirke J and a jury on the 20th February, 1998, of the

murder of David Nugent on the evening of the 8th and morning of the 9th July 1996 at Clonmel, Co. Tipperary and was sentenced to

imprisonment for life. He was also convicted of robbery on the same occasion and a sentence of 12 years imprisonment was imposed

in respect of that conviction. An application for leave to appeal having been refused, the appellant appealed to the Court of Criminal

Appeal. The appeal was dismissed, but the court certified that its decision involved a point of law of exceptional public importance

and that it was desirable in the public interest that an appeal should be taken to the Supreme Court pursuant to the provisions of

s.29 of the Courts of Justice Act 1924.

2. The point of law certified by the Court of Criminal Appeal is as follows:

“In circumstances where a member of An Garda Siochana arrests a person suspected of a serious crime (in the instant

case murder) at a time and in circumstances where it is likely that there will be difficulties in getting a solicitor for the

arrested person should such be requested, and

Where the arrested person is detained in a Garda Station, pursuant to the provisions of s.4 of the Criminal Justice Act,

1984 and does in fact request access to a solicitor and is questioned for a substantial period of time by relays of Gardai in

relation to the offence for which he was arrested before he has access to a solicitor;

Whether the conduct of the Gardai in so questioning the arrested person before he has access to a solicitor but after he

has sought access constitutes a conscious and deliberate violation of the arrested person’s constitutional right of access

to a solicitor (not being a violation which has extraordinary excusing circumstances) rendering inadmissible in evidence

any statement admissions or confessions which may thereafter be made by the arrested person;

Notwithstanding that the arrested person may after the said questioning have a visit from a solicitor (while still in s.4

detention) and make the statement, admissions or confessions after such visit from the solicitor.”

3. The appellant was arrested at his home in Clonmel at 2.54 p.m. on Sunday 14th July, 1996, and conveyed to Cahir Garda Station in

the custody of members of An Garda Siochana. On his arrival at the Garda Station at 3.10 p.m., he was detained under s.4 of the

Criminal Justice Act 1984 (hereafter “the 1984 Act”). Thereafter, he was questioned by a number of Gardaí who were investigating

the murder of David Nugent, whose body had been discovered in the grounds of St. Michael’s Hospital at 12.30 a.m. on the previous

Monday. The appellant had already been interviewed concerning the matter on the following day, Tuesday July 10th. On the evening

of Saturday, July 13th, the gardaí had come into possession of information which, in their view, implicated the appellant in the crime.

4. The appellant made an inculpatory statement to two of the Gardai who were questioning him between 9.40 p.m. and 11.05 p.m. on

the Sunday evening. On the following morning, at 8.00 a.m., the Gardaí recorded in writing answers by the appellant to questions put

to him which were also inculpatory. Between 9.05 a.m. and 9.35 a.m. on that morning he made a further inculpatory statement.

5. The admissibility of the inculpatory statements made by the appellant while in custody was challenged at the trial on a number of

grounds including that which is the subject of this appeal. That issue was tried by the learned trial judge in the absence of the jury

and he ruled that the statements were admissible. That finding was upheld by the Court of Criminal Appeal.

6. On the trial of the issue in the Central Criminal Court, the Gardaí who conducted the questioning, a solicitor who came to the

station and had a discussion with the appellant and the appellant himself gave evidence.

The Factual Background

7. The factual background is as follows. The appellant was informed by the member in charge of the station at 3.15 p.m. that he was

to be detained for a period of six hours and he was, at that stage, given a written notice setting out his rights while in detention. The

appellant asked the member in charge to contact his parents and to inform them that he was in Cahir Garda Station and that was

done. At 3.24 p.m., Detective Garda Kelly and Detective Garda Summers brought the appellant to an interview room and began to

question him. During the course of that interview, the appellant, although admitting that he had engaged in drug dealing transactions

with David Nugent in the past, denied that he was involved in any way in the attack on him which led to his death. The appellant in

evidence said that, during the course of this interview, he said he would like a solicitor, but this was denied by the Gardaí.

8. That session of questioning continued until 4.50 p.m., at which stage Detective Sergeant O’Riordan entered the interview room and

took over the questioning. It is not in dispute that, shortly after this session began, the appellant told Sergeant O’Riordan that he

wanted to speak to a solicitor. Sergeant O’Riordan remained in the interview room questioning the appellant until 5.29 p.m., at which

stage he was replaced by Detective Sergeant Healy and Detective Garda Clancy. As he left the interview room, Sergeant O’Riordan

informed Sergeant Healy that the appellant wanted a solicitor and that he did not want to answer any questions until he had spoken

to a solicitor. The garda who was the member in charge at that point, Garda Donal O’Connell, gave evidence of having attempted to

contact a solicitor in Clonmel, Mr. O’Reilly, without success. He was then informed by the gardaí in Clonmel that they understood that

Mr. O’Reilly was acting for the family of David Nugent and could not act for any of the persons who were being investigated in

connection with his murder. The appellant, on being so informed, asked the Gardaí to contact Mr. Paul Morris, a solicitor, in Clonmel.

Garda O’Connell, having failed to make contact with Mr. Morris, then endeavoured to make contact with other solicitors, but without

success. Eventually, Mr. Ciaran Cleary, solicitor, was contacted at the golf club in Clonmel and was asked to attend at Cahir Garda

Station. The difficulty in contacting a solicitor was understandable, it being a Sunday afternoon in summer and, in addition, there

being a large sporting event on in the area. Mr. Cleary, the solicitor who was ultimately contacted and agreed to see the appellant,

arrived at the station at 8.33 p.m...

9. In the meantime, however, Detective Sergeant Healy and Detective Garda Clancy continued to question the appellant until 6.45

p.m... At that stage, he was photographed and blood samples taken from him. According to the appellant, at approximately 7.10 p.m.,

another person being detained in the station on suspicion of being involved in the murder was brought to the interview room, at which

point he told the appellant that he had made a full statement and that the appellant should do the same. The gardaí alleged to have

been present when this confrontation took place denied that it had happened. At 7.30 p.m., the appellant’s mother arrived at the

station and saw him.

10. Mr. Cleary, the solicitor, when he arrived had an interview with the appellant. His account of the interview was as follows:

“1108 Q. Now what in fact - Mr. Buck has released you from any obligation of confidentiality - what did transpire?

A. The first thing, I never met Mr. Buck before but I did know he was in grave danger, the case was a very serious charge

and the first question I asked him was, ‘Have you made a statement’ and he said ‘No’. I asked him had he any previous

convictions. He said he had. I said ‘you are familiar with garda stations’. I said, ‘you don’t have to make a statement’ and

he said ‘I know all about making statements’. And then I asked him about the murder. I said, ‘what is your involvement?’

He said, ‘I am not involved with this’ and I said, ‘you are pleading not guilty and not making a statement.’ And we

discussed bail but we didn’t discuss anything about his involvement in the case.’

1109Q. Well, at some stage was there a more mundane conversation?

A. He was very knowledgeable and very articulate and he was bright as a spark. Then I said, ‘how do you intend paying’?

Well he said, ‘what are you charging?’ I said, ‘I would hope to be charging £500.00 for this evening and lodgment of that

sum and I will find out what the barrister charges’. He said ‘are you not on legal aid?’ We had a discussion about the legal

aid. It became apparent at that stage, that I would not be retained by him. He was not aggressive and I was not

aggressive to him. I did make it quite clear and I said, ‘you know you don’t have to make a statement’ and he said ‘I know

all about that’. We discussed bail very briefly and he didn’t tell me anything about his mother. I was asking about the

guards, I said ‘are the guards giving you a tough time?’ And he said ‘f____ them’. But he had no problem with them, he

was under no pressure whatsoever......”

Mr. Cleary then left and told the gardai that he would not be involved.

11. The appellant in evidence gave a different account of the interview. He said that Mr. Cleary told him that there were already

witnesses against him and that the best thing he could do was to make a statement. He also said that he did not regard Mr. Cleary as

his solicitor. The trial judge in his ruling on the issue said that he accepted the evidence of Mr. Cleary as to this interview.

12. At about 9.30 p.m., the appellant indicated to Sergeant O’Riordan that he would make a statement in relation to the matter.

Having been cautioned in the usual terms, he then began making a statement which Sergeant O’Riordan committed to writing and he

finished making it at 11 p.m. Sergeant O’Riordan then read the statement over to the appellant who signed it. It was witnessed by

Detective Garda Cunningham.

13. In his statement, the appellant said that he met David Nugent by previous arrangement between 11 p.m. and 11.15 p.m. on the

evening of 7th July. He was accompanied by two other persons whom he did not wish to name. He regularly met David Nugent at that

time for the purpose of supplying him with cannabis. He said the other two knew that David Nugent would have a lot of money on him.

He then described an assault perpetrated by the other two persons on David Nugent which culminated in a large rock being dropped

on his chest: the appellant said that he took part in the dropping of the rock.

14. It should also be pointed out that, during the trial of this issue, the appellant gave evidence of having been assaulted by members

of the gardaí and offered inducements to make a statement during the course of the questioning. Those allegations were denied by

the gardaí in their evidence. The trial judge was satisfied, having heard the evidence of the gardaí and the appellant, that the

statements made by the appellant should not be ruled as inadmissible on that ground. The trial judge’s ruling to that effect was

upheld by the Court of Criminal Appeal and was not challenged on this appeal.

Submissions of the parties.

15. On behalf of the appellant, Mr. John O’Kelly SC submitted that the gardaí should have had regard to the difficulties which they

were likely to encounter in providing the appellant with the services of a solicitor (having regard to the fact that it was a Sunday in

summer and that there was a major sporting event on in the locality) in deciding to arrest the appellant at that particular time and to

detain him under s.4 of the Criminal Justice Act 1984. The interrogation which followed and lasted for some hours was in breach of the

constitutional right of the appellant to have access to a solicitor during his detention and this, accordingly, rendered the detention

unlawful. He cited in support the decision of this court in People (DPP) -v- Paul Healy 1992 IR 73 and the decision of the Court of

Criminal Appeal in the People (DPP) -v- Bernard Finnegan (unreported; judgment delivered 15th July 1997). That violation of the

constitutional right of the appellant to the advice of solicitor tainted everything that thereafter happened in the course of his

detention and it was, accordingly, not a relevant consideration that the inculpatory statements were not made until after the visit

from the solicitor.

16. Mr. O’Kelly further submitted that, apart from the constitutional infirmity of the interrogation carried on at a time when the

applicant had no access to legal advice, it was also vitiated by non -compliance with the provisions of the Criminal Justice Act 1984

(Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987 (SI No. 119 of 1987) (hereafter “the 1987

Regulations”.) Regulation 12(6), which provides that, where an arrested person asks for a solicitor, he is not to be asked to make a

written statement in relation to an offence until a reasonable time for the attendance of the solicitor has elapsed, had not been

observed. He said that the claim by Detective Sergeant Healy that he was simply questioning the appellant at the relevant times and

was not looking for a statement as such was disingenuous and that, accordingly, the substance of the regulation had not been

observed.

17. Mr. O’Kelly further submitted that it was clear from his evidence that the appellant did not regard Mr. Cleary as his solicitor and

that it followed that, at the time the inculpatory statement was made, he had not been furnished with advice by a person whom he

had retained to act as his solicitor.

18. On behalf of the respondent, Mr. Patrick McCarthy SC submitted that the trial judge, on the voir dire, was entitled to conclude,

as he did, on the evidence which he had heard that the gardaí were in possession of information on Saturday July 13th, that justified

the arrest and detention of the appellant and that there was no obligation on them to defer the arrest and detention until the

following Monday. It followed that the trial judge was entitled to conclude that the arrest and detention were made in good faith by

the gardaí and not with a view to reducing the likelihood of the appellant having access to legal advice. He was also entitled to

conclude that the gardaí made bona fide attempts to contact a solicitor as soon as they were requested so to do by the appellant.

As to the questioning which admittedly took place between the request being made and the arrival of the solicitor, Mr. McCarthy

submitted that, since the inculpatory statement on which the prosecution relied was not made until after the solicitor’s visit, there

was no causative link between the breach of his constitutional rights, if such it was, and the making of the incriminating statement.

He further submitted that if, as held by the Court of Criminal Appeal in the People (DPP) -v- Bernard Finnegan, a violation of the right

of a person in detention to access to a solicitor rendered the detention unlawful, it was clear that in this case, unlike Finnegan, the

detention ceased to be unlawful once the appellant had received the advice of the solicitor.

19. As to the alleged non- compliance with the 1987 Regulations, Mr. McCarthy submitted that s.7 of the 1984 Act made it clear that

a failure on the part of a garda to observe any provision of the regulations would not of itself affect the lawfulness of the custody of

the detained person or the admissibility in evidence of any statement made by him. It was in any event clear, he submitted, that

what the regulations envisaged by a statement was a narrative by the person in detention which was reduced to writing by a garda

and signed by the person in detention. A statement in that sense had not been taken from the appellant until after he had seen a

solicitor and, in the result, there was no breach of Regulation 16.

20. Mr. McCarthy further submitted that the trial judge, on the voir dire, was entitled to accept the evidence of the solicitor as to

what had transpired during his interview with the appellant and that, accordingly, the incriminating statements made by the appellant

were admissible and could be considered by the jury.

The Applicable Law

21. The law as to the admissibility in evidence of confessions of guilt has for long been the subject of anxious consideration by courts

in this and other jurisdictions. Three propositions are firmly established in our law:

(1) A confession, whether made to a police officer or any other person, will not be admitted in evidence unless it is

proved beyond reasonable doubt to have been voluntarily made;

(2) Even where voluntarily made, a trial judge retains a residual discretion to exclude such a statement where it is made

to a police officer otherwise than in accordance with certain procedures, accepted in Ireland as being embodied in the

English Judges’ Rules ;

(3) Such a statement will also be excluded where it has been obtained as the result of a conscious and deliberate

violation of the accused’s constitutional rights.

22. There has been much judicial discussion as to the underlying policy reasons for the second and third of these principles. While

considerations of fairness to the accused person are naturally prominent, they are not the sole reason for the existence of the

principles: as Kingsmill Moore J observed in The People -v- O’Brien [1965] IR 142 at 160:

“I am disposed to lay emphasis not so much on alleged fairness to the accused as on the public interest that the law

should be observed even in the investigation of crime.”

23. As the recent Australian cases of R -v- Swaffield , Pavic -v- The Queen [1998] HCA 1 demonstrate, considerations of fairness to

the accused on the one hand and public policy on the other will frequently overlap. However, in the context of the present case, it is

not necessary to consider the application of the first and second of these principles, since it is conceded that the trial judge was

entitled to conclude on the voir dire that the inculpatory statement had been voluntarily made and that there had been no breach of

the judges’ rules necessitating consideration by him of his residual discretion to exclude the statement.

24. In the present case, however, the inculpatory statements were made at a time when the appellant was being detained in custody

under the provisions of the 1984 Act. Where a person is so detained, whether under that Act or some other statutory provision, he or

she is entitled to the benefit of specific constitutional protections, in addition to the common law safeguards to which I have already

referred. Giving the judgment of this court in In re Article 26 of the Constitution and The Emergency Powers Bill 1976 [1977] IR 159,

O’Higgins C.J., said:

“While it is not necessary to embark upon an exploration of all the incidents or characteristics which may not accompany

the arrest and custody of a person under [the impugned section], it is nevertheless desirable, in view of the submissions

made to the court, to state that the section is not to be read as an abnegation of the arrested person’s rights

(constitutional or otherwise) in respect of matters such as the right of communication, the right to have legal and

medical assistance, and the right of access to the courts. It is not necessary for the court to attempt to give an

exhaustive list of the matters which would render a detention under the section illegal or unconstitutional.” [Emphasis

added]

25. In The People (DPP) -v- Healy [1990] 2IR 73, it was held by a majority of this court that the right of a person in garda custody to

reasonable access to his solicitor was derived from, and protected by, the Constitution, and was not merely legal in origin. It was

further held that, where a breach of that constitutional right of access to a solicitor occurred as a result of the deliberate and

conscious acts of a member of An Garda Siochana, any admission subsequently obtained from a person detained in custody was

inadmissible in evidence.

26. The right of a person in garda custody to reasonable access to a solicitor is also now enshrined in the 1984 Act and the 1987

Regulations, the relevant provisions of which are referred to in more detail below.

27. In this case, it is submitted on behalf of the appellant that the questioning of him by the gardaí after he had requested that a

solicitor be obtained and before the solicitor arrived was a conscious and deliberate breach of the applicant’s constitutional right of

access to his solicitor which rendered his detention unlawful and any evidence obtained while he was in such unlawful detention

inadmissible.

28. In The People (DPP) -v- Conroy [1986] IR 460, Walsh J said

“Even if a solicitor is sent for in such circumstances [in response to a request to that effect by a person in custody] but

the members of the Garda Siochana decide to press ahead with the interrogation before the arrival of the solicitor, I

would regard it as a constitutionally forbidden procedure.”

29. That was said by the learned judge in the course of a dissenting judgment in that case and the matter was not dealt with in any

of the other three judgments delivered by the majority of the court. Accordingly, the question as to whether inculpatory statements

made by a person in custody who is subjected to questioning by a garda after he has requested the presence of a solicitor but before

the solicitor arrives are admissible cannot be regarded as having been authoritatively resolved.

30. In such a case, it cannot be said that the constitutional right of access to a solicitor has necessarily been denied. In this

context, the facts in The People (DPP) -v- Healy should be borne in mind. In that case, the defendant was arrested and detained by

members of the Garda Síochána pursuant to s.30 of the Offences Against the State Act 1939 on suspicion of being in unlawful

possession of firearms. After he had been interviewed for several hours by gardaí in relation to an attempted armed robbery of which

he was suspected, he began to make a statement. Shortly thereafter a solicitor who had been retained by a member of the

defendant’s family arrived at the garda station and sought an interview with him. He was informed that the defendant was being

interviewed and, despite his protests, was told that he would have to wait. He was eventually permitted to see the defendant, but at

that stage the taking of the statement had been completed. The trial judge ruled that the statement was inadmissible, because the

defendant had been, without any excuse, denied a right of instant access to his solicitor and he, the trial judge, could not be

satisfied that the incriminating admissions contained in the statement were made prior to the denial of that right of access.

31. Upholding the trial judge’s ruling, Finlay C.J. said that the failure by the garda to permit the solicitor to see the defendant as soon

as he arrived at the station constituted a deliberate and conscious violation of his constitutional right of access to a solicitor and was

also a complete failure to observe “reasonable standards of fairness” in the conduct of the interrogation. He added:

“I am satisfied that the conclusion reached by the learned trial judge that it was impossible, on the evidence before him,

for him to be satisfied beyond a reasonable doubt or, as he expressed it in his ruling, even as a matter of probability, that

the significant incriminating statements which were contained in the tendered written statement were made prior to the

arrival of the solicitor at 4.00 p.m. was a conclusion on fact which he was entitled to make and cannot be disturbed on

appeal to this court”.

32. It would seem to be implicit in that finding of the learned Chief Justice that, if the trial judge in that case had been satisfied that

the incriminating statement had been made prior to the arrival of the solicitor, it would have been admissible in evidence, since, at

that point, there would have been no deliberate and conscious violation of the applicant’s constitutional right of access to a solicitor

or so total a failure to observe reasonable standards of fairness as to require the exclusion of the statement.

33. It is also to be noted that there is no express statement in the judgment of the Chief Justice in that case or in the separate

judgments delivered by Griffin J. and McCarthy J. that the detention of the defendant must be regarded as having been unlawful as

from the time when the solicitor was refused access to him. The crucial issue, in the view of Finlay C.J., not dissented from by Griffin

J. and McCarthy J., was whether there was a causative link between the breach of the right of access to a solicitor by the garda and

the obtaining of an admission.

34. A slightly different approach is apparent in other authorities to which we were referred. In The People (DPP) -v- Madden [1977] IR

337, O’Higgins C.J., delivering the judgment of the Court of Criminal Appeal, said

“This court is satisfied that a person held in detention by the Garda Síochána, whether under the provisions of the

[Offences Against the State Act 1939] or otherwise, has got a right of reasonable access to his legal advisors and that a

refusal of a request to give such reasonable access would render his detention illegal.”

35. Those remarks were obiter, since there had been no such request in that case. However, the question also arose in The People

(DPP) -v- Finnegan, where the defendant, while in detention, was allowed to speak to his solicitor on the telephone but the member in

charge of the garda station remained in earshot while the defendant was speaking to his solicitor. Barrington J., delivering the

judgment of the Court of Criminal Appeal, having cited the passages to which I have referred from the judgments of O’Higgins C.J. in

Madden and Finlay C.J. in Healy, said of the latter:

“The implication of this is that any statement made after 4.00 p.m. [when the solicitor arrived and was denied access]

would have been inadmissible presumably because the prisoner was from that hour in unlawful detention because of the

denial of his constitutional right of access to his solicitor and any statement obtained from him was therefore

inadmissible.... In the present case there was a breach of Mr. Finnegan’s constitutional rights when he was denied private

access by telephone to his solicitor. From that point on he was in unlawful detention. No evidence was adduced to show

that this unlawful detention came to an end at any particular time nor indeed was the point addressed at the trial.”

36. Whether or not it was a necessary implication of the passage in question in Healy that the defendant was regarded as being in

unlawful detention from the time that he was denied access to his solicitor, it would seem in any event to be a logical corollary of the

statement of the law by this court in In Re Article 26 and the Emergency Powers Bill 1976, i.e., that the detention of a person

against his will pursuant to a statutory power is permissible only where his constitutional right of reasonable access to a solicitor is

observed. It would seem to follow inexorably that his/her detention becomes unlawful as soon as that right is denied.

37. Assuming that, in the present case, the trial judge was entitled to conclude that the arrest and detention of the appellant was

lawful and did not constitute a mala fide attempt to ensure that he was without legal advice while he was being interrogated and

that the gardaí made bona fide attempts to secure the presence of a solicitor when the appellant requested them to do so, it would

follow that there was in this case no deliberate and conscious breach of his constitutional right of reasonable access to a solicitor

and, on that assumption, his detention remained lawful. 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 garda 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.

38. I should also refer to the relevant statutory and regulatory provisions.

Section 5(1) of the 1984 Act provides that

“Where a person not below the age of 17 years is detained in a Garda Síochána station pursuant to s.4, the member of

the Garda Síochána in charge of the station shall inform him or cause him to be informed without delay that he is entitled

to consult a solicitor and to have notification of his detention and of the station where he is being detained sent to one

other person reasonably named by him and shall, on request, cause the solicitor and the named person to be notified

accordingly as soon as practicable.”

Article 9(2)(a) of the 1987 Regulations provides that

“Where an arrested person has asked for a solicitor....

(1) The member in charge shall notify or cause to be notified the solicitor... as soon as practicable, and

(2) If the solicitor cannot be contacted within a reasonable time or if the solicitor is unable or unwilling to attend at the

station, the person shall be given an opportunity to ask for another solicitor.and, if the person asks for another solicitor

the member in charge shall notify or cause to be notified that other solicitor accordingly, as soon as practicable.”

Regulation 12(6) provides that

“Where an arrested person asks for a solicitor, he shall not be asked to make a written statement in relation to an offence

until a reasonable time for the attendance of the solicitor has elapsed.”

Section 7(3) of the 1984 Act provides that

“A failure on the part of any member of the Garda Síochána to observe any provision of [the 1987 Regulations] shall not

of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of

the detained person or the admissibility in evidence of any statement made by him.”

Conclusions.

39. The trial judge, in this case, was satisfied that the gardaí in this case had reached the conclusion on the evening of Saturday

13th that there were grounds for charging the appellant with the murder of David Nugent and he was further satisfied that they were

not obliged, in those circumstances, to defer the arrest of the appellant until the following Monday. He indicated that, if on the

evidence it appeared that a conscious and deliberate attempt had been made to deprive the appellant of the services of his solicitor

or to arrange matters so that he would have no contact with his solicitor, the situation would have been otherwise. I am satisfied

that the trial judge was entitled to reach that conclusion on the evidence before him on the voir dire.

40. The trial judge was also satisfied that the gardai made reasonable attempts to get in touch with the solicitor nominated by the

appellant, Mr. Peter Reilly, and, when he was not available to act, sought to obtain the services of other solicitors for the appellant. I

am satisfied that, in these circumstances, the trial judge was entitled to conclude that there had been no breach of the appellant’s

constitutional right of access to a solicitor and that the Court of Criminal Appeal were correct in holding that this finding could not be

disturbed on appeal.

41. I am also satisfied that the trial judge was entitled to accept, as he did, the evidence of Mr. Cleary, the solicitor, as to what

transpired between him and the appellant on the evening of July 14th in the garda station and that the Court of Criminal Appeal were

also correct in holding that his finding could not be disturbed on appeal.

42. Since the trial judge was, on the evidence, entitled to conclude that there had been no conscious and deliberate violation of the

appellant's right of access to a solicitor, it follows that he was at no time in unlawful custody and that, accordingly, the inculpatory

statements made by him were properly not treated as inadmissible on the ground that he was in unlawful custody when they were

made. Even if the continuation of the questioning by the gardaí between the time that he asked for a solicitor and the arrival of Mr.

Cleary at 8.33 p.m. could be regarded as a conscious and deliberate violation of his constitutional rights, there was no causative link

between the breach in question and the making of the incriminating statements. The appellant had not made any incriminating

statements prior to the arrival of Mr. Cleary and, on the trial judge’s findings, had been advised by Mr. Cleary as to his right not to

make any statement. The trial judge also accepted Mr. Cleary’s evidence that, at that point, the appellant was relaxed and not

showing any signs of stress. It follows inevitably that there was, on the evidence, no causative link between any breach of the

applicant’s constitutional rights arising from the questioning before the solicitor arrived and the making of the incriminating

statements.

43. As to the submission on behalf of the appellant that there had been a breach of Article 12(6) of the 1986 Regulations, it is, of

course, the case that, had the appellant, in response to the questioning by the gardai before the arrival of the solicitor made a

written inculpatory statement, an issue would have arisen as to the admissibility of the statement. Whether it was admissible in terms

of the Regulations would depend on whether “a reasonable time” within the meaning of the regulation had elapsed and whether, even

if a reasonable time had not elapsed, it should nonetheless be admitted, having regard to the provisions of s.7(3) of the 1984 Act.

Again, it would seem to me that this would be a matter for the discretion of the trial judge to be exercised having regard to the

circumstances which arose in the particular case. Since, however, in the present case no written inculpatory statement was made

until after the arrival of the solicitor, there was no breach of the regulations.

44. I would dismiss the appeal and affirm the order of the Court of Criminal Appeal. I would answer the certified question in the

negative.