Court of Appeal allows appeal, quashing conviction where only evidence was unfair inculpatory statements obtained via improper inducements.

THE COURT OF APPEAL

Approved

No Redaction Needed

Neutral Citation: [2025] IECA 179

Record No: 8/2025

Burns J. O’Moore J. MacGrath J.

Between/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

V

B.K.

Appellant

JUDGMENT of the Court delivered by Mr. Justice O’Moore on the 14th day of July, 2025.

Introduction

1. It is a truism that criminal offences vary greatly in their gravity and in the moral disapproval that they attract from society. One of the most heinous crimes is the sexual abuse by a mother of her own children. B.K., the appellant, has been convicted of four such offences involving three of her children. She has also been convicted of one count of child neglect.

2. B.K. should never have been convicted of any of these offences. The only evidence against her were inculpatory statements which she made in truly extraordinary circumstances. The trial judge had grave reservations about the voluntary nature of these admissions, yet allowed them to stand as evidence against B.K. because of a mistaken belief that the admissibility of these statements had been conclusively determined by an earlier decision of this Court, and by a further judgment of the Supreme Court. To add to the unusual nature of this case, the statements which lead to the conviction of B.K. were made not to the Gardaí but to a psychologist (Dr. O) and a polygrapher (Mr. C) retained by Tusla in order to interview B.K. in the context of a safeguarding assessment. We will return to the contents of those interviews in more detail later in this judgment. It should be said at this stage that the manner in which Dr. O and Mr. C conducted certain parts of the final two days of interviews did not meet the standards one would expect, to put it mildly.

3. Before this Court is an appeal brought by B.K. against her conviction for four counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990 and one count of neglect of a child contrary to s. 246(1) and (2) of the Children Act 2001.

4. On the 17th of December 2024 the Court below sentenced the appellant to eight years imprisonment with the final two years suspended on the appellant’s own bond of €100.00. The commencement of the sentence was deferred until the 4th of March 2024 to accommodate the appellant’s application to this Court for bail, which was subsequently granted.

5. The appellant made certain inculpatory statements on the 14th of September 2015 during a risk and safeguarding assessment carried out by a clinical psychologist, Dr. O. These statements constitute the entirety of the evidence upon which the appellant was prosecuted; at all other times throughout the proceedings, the appellant has pleaded not guilty to all five counts. The appellant seeks to appeal the admissibility of this evidence and, in doing so, to appeal the overall conviction.

6. Significantly, the respondent has indicated that she will not be opposing this appeal. By letter dated the 21st of May 2025, the respondent stated that: “…there are a number of significant issues with the way in which the admissions from the appellant were obtained, such that there is insufficient reliable, admissible evidence to base a prosecution. For these reasons, the Director will not oppose the appeal against conviction. In the event of the Court seeing fit to quash the conviction, a retrial will not be sought.”

Procedural Background

7. The injured parties in the present case are the appellant’s three children. All three children suffer from microcephaly and are severely mentally and physically disabled.

8. The appellant’s husband and brother in law have also been charged with a number of serious sexual offences where the injured parties were the appellant’s three children. Both pleaded guilty in their respective hearings.

9. The appellant was interviewed by An Garda Síochána on a voluntary basis both at her home and in the Garda station following an arrest. No admissions were made by the appellant during the course of these interviews. The respondent made a decision at this time not to prosecute the appellant.

10. Separately, the appellant’s two eldest children reached adulthood and the HSE sought orders from the High Court in relation to their care. The appellant sought access and custody during the course of these proceedings. In order to consider this application, the President of the High Court adjourned those proceedings so that a report could be obtained from Dr. O (a clinical psychologist). Dr. O was tasked with carrying out a risk and safeguarding assessment.

11. As part of his assessment process, Dr. O requires persons to complete a polygraph test. The appellant’s polygraph testing was carried out by another individual, Mr. C.

12. The appellant was assessed and interviewed over the course of five days: 26th August, 27th August, 28th August, 11th September, and 14th September 2015. On the final day of that assessment, the appellant made inculpatory statements. As already noted, these statements constitute the entirety of the evidence upon which the appellant was prosecuted.

Original Trial

13. In July 2021, the appellant was tried before the Circuit Court. A voir dire was conducted regarding the admissibility of the inculpatory statements. For the purpose of the hearing, a transcript was prepared for all five days of interview with Dr. O. The transcript was disclosed to the defence but did not form part of the book of evidence. The inculpatory statements from the fifth day of interview were contained in extracts of the video recording of the interviews prepared by Dr. O.

14. When giving evidence in chief in the voir dire, extracts of the inculpatory statements were put before the Court. The surrounding questions and answers were not put before the Court.

15. During the course of the first trial, Dr. O was cross-examined on the manner in which the interview was conducted on the first three days, but not the fourth and fifth.

16. The trial judge ruled that the admissions made ought to be excluded on the basis that the admissions made were not voluntary and the safeguards that an accused person would have had in a formal Garda interview were not present. The trial judge then directed the jury to return a verdict of not guilty in relation to each count.

17. The respondent, pursuant to s. 23 of the Criminal Procedure Act, 2010, appealed with prejudice this ruling. The Court of Appeal allowed the appeal and ruled that the admissions ought not be excluded (DPP v. B.K. [2022] IECA 248).

18. The appellant then appealed to the Supreme Court (DPP v. B.K. [2023] IESC 23). The Supreme Court upheld the ruling of the Court of Appeal and directed a re-trial (DPP v. B.K. [2023] IESC 38). The present appeal concerns that re-trial.

Court of Appeal Decision

19. At para. 37 of this Court’s judgment, Birmingham P. summarised B.K.’s submissions and the Court’s position as follows:- “As in the Circuit Court, [B.K.] has sought to put her objections in the context of traditional considerations such as oppression, inducement, the absence of a caution, the absence of an independent supervisor, the departure from the normal procedure of a Garda interview and so on. While that approach is entirely understandable, for our part, we do not think it is appropriate in the context of this unusual case. It seems to us that the question is not whether the procedure that would have ordinarily been followed had this been a Garda interview in a Garda station was in fact followed, but whether what actually occurred was unfair.”

20. The Court turned its attention at para. 41 to the question of:- “whether the manner in which the interviews were conducted, and in particular, the extent to which what occurred diverged from the traditional approach… gave rise to such a level of concern that one should conclude that here was a departure from overall fairness.”

21. The Court ultimately found that:-

“[w]hile the unfamiliarity of what occurred gives rise to an initial sense of disquiet and unease, we feel that on further consideration, there was, in truth, nothing unfair about what happened… Accordingly, it follows that, in our view, the trial judge was wrong in concluding that the interviews that took place were ‘non-voluntary’ and departed from basic fairness, and wrong in concluding that the evidence should be excluded.”

22. The appellant applied for leave to appeal to the Supreme Court, which was granted.

Supreme Court Decision

23. At para. 59 of the Supreme Court decision, Charleton J. determined that:- “there was no basis for excluding any of what BK said in the context of the interview with Dr O. There is nothing to suggest that the polygraph test was used as an instrument of oppression, whereby unless particular answers were given or admissions were made, BK would be reported as an unsafe contact for her children. The instrument was used by Dr O for the purpose only of securing verification, as an aid to discovering where the truth might lie. Nor was there any aspect of this series of interviews which in any way could be said to be equivalent to the circumstance of arrest or of being put under authority in consequence of detention for the purpose of the investigation of a crime. This was completely different, a measured investigation into potential threat where there was no purpose of charging anyone with any offence or of exercising any form of coercion.”

24. The Supreme Court thereby upheld the decision of this Court in DPP v. B.K. [2022] IECA 248. This determination was made on the basis of the evidence provided and arguments made in the original trial.

25. The Supreme Court subsequently directed a re-trial, which is the subject of the present appeal.

Re-Trial

26. When the re-trial commenced, an application was made on behalf of the appellant to deal with the issue of the admissibility of the interviews with Dr. O by means of a voir dire. It was canvassed in the Court below that the ruling in the original trial (which was then considered in subsequent appeals) was based on the evidence in the original trial, where the crossexamination had been confined to the first three days of interviews and excluded crossexamination on the final two days. This application was refused.

27. All matters that could have been canvassed in such a voir dire were, in any case, canvassed in open court before the jury. It is therefore submitted by the appellant that the

decision on this application “is not material in the present case” (para. 32 of the appellant’s written submissions).

28. Additional evidence emerged during the cross-examination of Dr. O in the Court below. When cross-examined on the conduct of the interviews on the fourth and fifth days of interview, Dr. O accepted that statements made by Mr. C could have been interpreted as inducements made. Additionally, Dr. O accepted that there was a risk that the appellant may have made admissions to him on the basis that she believed this was what he wanted.

29. At the conclusion of the prosecution case, an application was made by the appellant to review the finding made by the trial judge with regard to the question of the admissibility of the inculpatory statements, in light of the evidence given over the course of the re-trial and, in particular, the concessions made by Dr. O during cross-examination. The appellant relied on the English case of R v. Watson [1980] 2 All ER 293. In that case the English Court of Appeal held that a trial judge who had previously ruled confession evidence admissible continued to have a discretion to exclude that evidence, if subsequent evidence emerged at trial which brought the admissibility of the evidence into question once more. The Court in that decision cited the 5th edition of Cross on Evidence, which states (at page 72) that:- “[t]he judge retains his control over the evidence ultimately to be submitted to the jury throughout the trial. Accordingly, if, having admitted a confession as voluntary on evidence given in the absence of the jury, the judge concludes, in the light of subsequent evidence, that the confession was not voluntary, he may either direct the jury to disregard it, or, where there is no other sufficient evidence against the accused, direct an acquittal, or, presumably, direct a new trial.”

30. The appellant’s written submissions additionally cite the decision of this Court in DPP v. Roche [2019] IECA 317 for the proposition that a Court may reverse a ruling on admissibility (although such a decision ought not to be taken lightly). It was noted that in DPP v. Roche, the

decision to revise an earlier decision to exclude the evidence was during the course of one continuous voir dire.

31. On the 23rd of July 2024, the trial judge delivered her ruling on the reopening of the issue of the admissibility of the inculpatory statements in which she determined that, in light of the evidence of Dr. O, it was appropriate to re-visit the issue. The trial judge outlined her approach to the matter by stating that she must:- “focus on what is alleged to be wrong with the interview and why that, of itself, renders the resulting confessions dangerous and I think the Court of Appeal and Supreme Court said that this was not done in the original trial, rather the statements were found inadmissible on the basis of lack of overall general fairness.”

32. The trial judge then discussed the conduct of Mr. C and identified the section of the interview that Dr. O accepted was capable of being seen as an inducement. The trial judge then indicated that “in light of all those issues, my serious -- I have serious concerns about the voluntariness of these admissions.”

33. The trial judge subsequently turned to the earlier rulings made by this Court and the Supreme Court, in particular whether she was bound by the Supreme Court ruling that the appellant’s statements were voluntary. She summarised the matter as follows:- “In summary, while I have serious concerns about the manner in which these interviews were conducted and their fairness, I am satisfied that all of these issues of inducements and oppression were argued comprehensively before the Court of Appeal and Supreme Court and I am bound by that decision.”

34. The trial judge ultimately therefore ruled that the admissions were admissible. The trial continued on that basis and the jury returned a verdict of guilty in due course.

Submissions on Appeal

Appellant’s Submissions

35. The appellant submits that “the trial Judge erred in finding that[,] notwithstanding her ‘serious concerns’ about the manner in which these interviews were conducted and their fairness, […] the issue had already been decided by the Appellate Courts.”

36. In particular, the appellant submits that the evidence in the present case is meaningfully different from the evidence in the original trial and subsequent appeals, as the former included cross-examination of Dr. O relating to the fourth and fifth days of interview and the latter did not. The significance of this distinction is that the novel cross-examination provided new reason to doubt the voluntariness of B.K.’s inculpatory statements, and thus the appellant submits that:- “[t]he trial Judge failed to give proper weight to the evidence given in this trial and instead, determined that if the Court of Appeal and the Supreme Court considered these issues in the first trial, that she was bound to follow their decision that the evidence was erroneously excluded, notwithstanding the fact, that significant ‘additional’ evidence was given in these proceedings.”

Respondent’s Submissions

37. The respondent has indicated that she will not be opposing this appeal. She indicated her position by letter dated the 21st of May 2025, stating as follows:- “I refer to the above-mentioned conviction appeal. As you are aware, at the most recent trial, the presiding judge expressed deep reservations as to the voluntariness of admissions made by the Appellant having regard to additional evidence which came to light relating to the nature of the questioning under which those admissions were made, but indicated that she felt bound by the previous Court of Appeal and Supreme Court judgments to admit the material. The position taken by the trial judge has been considered at the highest levels of the Office of the Director of Public Prosecutions and is viewed as being problematic. Furthermore, as made clear in our Guidelines for Prosecutors, there is a continuing duty to ensure that a decision to prosecute remains appropriate in the public interest. It has been concluded that there are a number of significant issues with the way in which the admissions from the appellant were obtained, such that there is insufficient reliable, admissible evidence to base a prosecution. For these reasons, the Director will not oppose the appeal against conviction. In the event of the Court seeing fit to quash the conviction, a retrial will not be sought.”

Court’s Analysis & Decision

38. As the DPP is not disputing the appeal, counsel for B.K. have confined themselves to making submissions by reference to examples of the unsatisfactory nature of the interviews which took place on the 4th and 5th days of the assessment process. A full analysis of what happened on those two days has, quite understandably, not been presented to the Court.

39. It must be remembered that the whole process by which B.K. was assessed was for the purpose of advising the High Court as to whether or not she should have custody of her children. An adverse report would clearly be very damaging to her. The inculpatory statements were not made until the 5th day of interviews. Prior to them being made, the following sequence of interactions occurred on that day;

(a) Mr. C addressed B.K. in these terms (by reference to a purported reading of the polygraph):- “Look that’s a reaction there. That’s your reaction, that’s you. You couldn’t remember it. You would not react like that. You actually remembered it. So now you’re telling me. Now you’re telling a lie and taking me for a fool. Please don’t do that because I will say the whole test is wrong and when you pass the test, I’ll say its (sic) wrong as well… So you can remember, [B.K.]… I do [not] want to get [Dr. O] a report which says, you told lies without an explanation because that will look bad in court and say you told lies, including critical sexual contact, not watching them masturbating remotely, physical sexual contact with each other in your masturbatory thoughts you had.”

(b) Mr. C later said:- “Can I just have a quick word about something. Just chill. I’m going to come back and ask you one more question, and it’s regarding where you failed another question. I don’t want you to come back and have a long conversation: okay? This is where you failed again. I really want an explanation for this. I don’t want any waffle. I want the truth and then we can go home.”

(c) Some time afterwards, B.K. was told:- “I’m going to need to hurry up because something you said the last time, [B.K.]. I think you find it very hard to make that step between older children and younger children, and you do that because you told fibs about the polygraph, and I don’t want to put you back on there and you fail again. Please don’t play games.”

(d) Exceptionally, even by the standard of these extraordinary statements, Mr. C proposed a deal to B.K.:- “I’m going to do a deal with you now. You’ve now realised that the polygraph instrument is really accurate; yeah? So now we can avoid doing another test with one question, with one question only. There’s no point in doing it because you get caught every time, okay? I would ask you to close your eyes again, listen to [Dr. O]’s last question and please, no point, there’s no point in doing the test because you know the answer already. Read the question… Have you had any sexual contact with either of your three children?”

(e) Mr. C then followed up his proposed “deal” with this statement:- “Have you had any sexual contact with either of your three children… And [B.K.], this will be my last question. We can all go home then. This will be my last question. We can all go home then”.

(f) B.K. then admitted sexual abuse of her children. In his evidence at the second trial, Dr. O essentially accepted that the proposal put by Mr. C was an inducement.

Dr. O does not appear to have done anything to prevent such inducements being made, or to correct them. It is of course the case that B.K. was able to leave the interview at any time. However, given the purpose of the whole exercise, her freedom to walk out without suffering adverse consequences was more apparent than real.

(g) When then questioning B.K. about the abuse of a named child, Mr. C informed B.K. that “This could be over in five minutes. This could be over in five minutes. Goodbye”. Again, in his evidence at the second trial Dr. O accepted that these statements “could be seen” as an inducement.

(h) Finally, B.K. admitted to having sexual contact with the named child after this address by Mr. C:- “Okay, so I’m going to ask you one question on the polygraph and then we can forget all about other questions and it’s simply this and if you tell me the truth, I’m happy for you to pass the test now. If you haven’t done anything sexual with [A], then that’s fine. If you have, it’s no worse than if you had sexual contact with two others so it doesn’t make a big difference one way or the other. I want you to get to the edge of this so if you had any sexual contact with [A]…”

40. These excerpts speak for themselves. A mother was questioned over a five-day period about her relations with her children. On the fifth day, she was told by the polygrapher that he was prepared to state untruthfully that the testing was flawed in order to suggest that she should have failed the polygraph even if she passed it. She was put under huge pressure to give the answers which at least one of her interlocutors made it clear that he wanted to hear. A deal was proposed to B.K. by which the whole unpleasant process would come to an end if she just gave the desired answers.

41. These passages must also be seen in the context of Dr. O’s own behaviour. Counsel for B.K. relies on a video clip of the interview put to Dr. O in his evidence at the second trial. In that clip, B.K. asks “Do you know what you suspect me of?” to which Dr. O replies, “Yeah I do believe that you have done something sexual to the [children]”. B.K. responds – “Dear God”. Dr. O then says, “But if you have, there’s still a way you can pass this polygraph”.

42. Very tellingly, at trial Dr. O accepted that it was possible that B.K. was saying things to him “that she believed you wanted to hear”. Equally significantly, even after her admissions B.K. asked Dr. O “Well, when can I see my kids?”.

43. In considering the application to review the admissibility of the inculpatory statements, the trial judge referred to the behaviour of Mr. C. She found it “very surprising” that Mr. C took part in the questioning of B.K. We share that surprise. The trial judge also found that Mr. C’s questioning was oppressive, and that the proposal of a “deal” was capable of being seen as an inducement. She continued:- “Following her arrest -- re-arrest by An Garda Síochána BK says at page 315 of the book of evidence, but it’s in her statement: ‘I was lying. [Dr. O] was explaining to me the conditions to finishing the assessment was to pass the polygraph test. I was under pressure. [Dr. O] was to finish the assessment. All the time [Dr. O] was explaining the report. At that stage it was not good for me if he was going to put that to the court.’ And she states she wanted to finish -- ‘To finish the assessment was my only chance of getting the boys back’. So, in light of all those issues, my serious -- I have serious concerns about the voluntariness of these admissions.”

44. Having considered the judgments of Birmingham P (in this Court) and of Charleton J (in the Supreme Court), the trial judge repeated her “serious concerns about the manner in which these interviews were conducted and their fairness” but found that she was bound by the decisions of the appeal courts.

45. We believe that the trial judge was wrong to find that the issues agitated before her had been decided by this Court or by the Supreme Court. It is undisputed, on this appeal, that the inducements, oppression, and unfairness brought to bear on B.K. during the course of the 4th and 5th days of interviews did not feature in the earlier appeals. Indeed, the judgment of Birmingham P does not refer at all to the detail of the specific interventions of Mr. C which were central to the hearing at the second trial. This merely emphasises the fact that the earlier appeals did not consider, let alone decide, these matters. The section of the judgment of this Court setting out its analysis and conclusions (from paragraph 37 onwards) does not focus on the questioning of B.K. on the 4th and 5th days of interview, and instead considers the “overall fairness” of the earlier questioning. Nothing in that decision, therefore, settles either the fairness of the questioning of B.K. on the 4th and 5th days or the question of whether her admissions were voluntary in light of that interrogation. The fact that the transcripts of all five days of interview were provided to this Court in considering the earlier appeal is irrelevant. This would be of significance only if this Court had made findings by reference to what happened on the 4th and 5th days of interview. It did not do so, and thus the issues raised in the second trial remained undecided.

46. Naturally, the decision of the Supreme Court (Charleton J) is equally focused. The entire judgment must be viewed in the context of the submissions made on behalf of B.K. in that appeal, which did not involve the arguments made in the second trial. One example demonstrates this difference. At paragraph 38 of his judgment, Charleton J states that the use of a polygraph in this case “was not designed to elicit particular answers.” However, on the evidence put forward in the second trial it is clear that the person administering the polygraph not only wanted questions to be answered in a specific way but was also prepared to threaten to lie in order to be able to state that B.K. should have failed the test.

47. In the decisive section of the Supreme Court’s judgment, from paragraph 54 onwards, there is much reference to fairness of procedures being undermined by deception and trickery. This is undoubtedly the case. However, nothing in the judgment takes away from the basic proposition that inculpatory statements must be voluntary in order to be admitted in evidence. This is so even where deception or trickery are absent. In his judgment, Birmingham P said (at paragraph 39) that it was “appropriate to approach a consideration of the issues through the prism of overall fairness.” Similarly, Charleton J (at paragraph 54) held that “Basic fairness is what is required for a confession to be admissible. No such standard may, however, be applied as if to give to judges an entitlement to be free of principle.” Applying principles of basic or overall fairness, therefore, is required in considering the admissibility of inculpatory statements in circumstances such as these. The judgments of Birmingham P and Charleton J make clear that this approach is deeply embedded in Irish law; there is nothing new about it.

48. At paragraph 58, Charleton J finds that “judges are not at large. Instead, there must be a focus on what is alleged to be wrong with an interview and why that of itself renders the resulting confession dangerous.”

49. As we have noted, neither this Court nor the Supreme Court were asked to consider the details of the interviews with B.K. which featured so centrally in the second trial and in this appeal. Inevitably, neither appellate court had available to it the revealing evidence of Dr. O given in the second trial, where he effectively accepted that certain interventions of Mr. C constituted inducements and (equally importantly) that B.K. was on occasion telling Dr. O not the true facts but rather what she thought her interrogators wanted to hear.

50. Taking all of the relevant evidence into account, it is clear that the interviews were unfair in a very fundamental way. The imbalance of power between B.K. (a mother frightened of losing access to her children) and Dr. O and Mr. C (whose report would be critical in deciding the question of access) was extreme. The fact that Dr. O expressed his belief that B.K. had sexually abused her children made it clear to her what answers he expected to hear. Even more starkly, the behaviour of Mr. C can also have left B.K. in no doubt that she should confess. The relevant questions create the obvious danger that B.K. would make inculpatory statements which were untrue. The trial judge was therefore correct to find that B.K. had been subject to oppressive questioning, the making of improper inducements, and a procedure which was unfair. The trial judge stopped short of finding the inculpatory statements were involuntary, but did so only because she wrongly believed that she was prevented from doing so by the earlier judgments of this Court and the Supreme Court. In our view, the trial judge should have proceeded to follow through on her own analysis and exclude the inculpatory statements. As these admissions constituted the only evidence against B.K., it follows that she should have been acquitted of all charges against her.

51. We will therefore allow the appeal.