AN CHÚIRT UACHTARACH
(F)
THE SUPREME COURT
Hamilton CJ,
O‘Flaherty J,
Barrington J,
Keane J,
Murphy J.,
(296/98)
IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION

BETWEEN:
DEAGLAN LAVERY
Applicant/Respondent
.v.

THE MEMBER IN CHARGE, CARRICKMACROSS GARDA STATION
Appellant

Judgment delivered on the 23rd day of February, 1999, by O’Flaherty J. [Hamilton CJ, Barrington, Keane and Murphy JJ concurring]

On the 15th August, 1998, a bomb planted in a car exploded in the town of Omagh, Co. Tyrone, killing upwards of 29 people and injuring as many as 400.

Consequent on this terrorist outrage, the Oireachtas enacted the Offences Against the State (Amendment) Act, 1998. These proceedings are concerned to a degree with the operation and scope of s. 2 and s. 5 of the Act, in particular.

Section 2 provides:-

“(1) Where in any proceedings against a person for an offence under section 21 of [the Offences Against the State Act,] 1939, evidence is given that the accused at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the

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offence, failed to answer any question material to the investigation of the offence, then the court in determining whether to send forward the accused for trial or whether there is a case to answer and the court (or subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to the offence, but a person shall not be convicted of the offence solely on an inference drawn from such a failure.

(2)	Subsection (1) shall not have effect unless the accused was told in ordinary language when being questioned what the effect of such a failure might be.

(3)	Nothing in this section shall, in any proceedings -

(a)	prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged, in so far as evidence thereof would be admissible apart from this section, or

(b)	be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could be properly drawn apart from this section.

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(4)	In this section -

(a)	references to any question material to the investigation include references to any question requesting the accused to give a frill account of his or her movements, actions, activities or associations during any specified period,

(b)	references to a failure to answer include references to the giving of an answer that is false or misleading and references to the silence or other reaction of the accused shall be construed accordingly.

(5)	This section shall not apply in relation to failure to answer a question if the failure occurred before the passing of this Act.”

Section 5 is to similar effect except that it applies to a wider range of offences, viz, all offences under the Offences Against the State Acts, scheduled offences under the legislation and “an offence arising out of the same set of facts as these two types of offence.”

On the morning of 30th September, 1998, at 7.00 am Deaglan Lavery, the respondent, was arrested at his home by members of the Garda Síochána under s. 30 of the Offences Against the State Act, 1939, on suspicion of being a

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member of an unlawful organisation. He was brought to Carrickmacross Garda Station, Co. Monaghan.

His solicitor, Mr. James MacGuill, was contacted by the gardaí sometime prior to 8.00 am. He had a telephone conversation with the respondent and took his instructions and he deposed that he gave him general advices: in particular advices as to the new obligations which arise under the provisions of the 1998 Act. He wrote to the Superintendent of the Garda Síochána at Carrickmacross by fax requesting particulars of the allegations against the respondent and indicating that he would be prepared to have his interviews audio-visually recorded. Mr. MacGuill requested that if this was not possible that complete notes of any interview held with his client be taken and be made available to the respondent and himself prior to the end of Mr. Lavery’s detention.

Mr. MacGuill attended at Carrickmacross Garda Station at 3.15 pm that afternoon. There he met Superintendent Noel White who was in charge of the investigation. Mr. MacGuill deposed that prior to advising the respondent he wished to know whether or not he had received his fax of that morning and if there was a reply to it. Superintendent White said he had received the fax but that there was no reply to it. Mr. MacGuill pointed out the difficulty that he would now have in advising the respondent without knowing whether or not it

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was stated that any question considered material to the investigation of the offence had been put to the respondent and that he had failed to answer or had answered in a false or misleading way. The Superintendent indicated that at that point in time no such question had been put to the respondent. Mr. MacGuill enquired as to whether there was any evidence in existence which might require an explanation as is envisaged in s. 5 of the 1998 Act. The Superintendent said that there was no such evidence “at that stage”. Mr. MacGuill requested from Superintendent White the copies of any interview notes which had been taken. He refused to make them available. Mr. MacGuill said that his client was most anxious that any interview being held with him would be fully and completely recorded and that his preference would be that it should be audio-visually recorded. The Superintendent said that this would involve Mr. Lavery being transferred to another station which had those facilities; Mr. MacGuill indicated that Mr. Lavery would be prepared to consent to such a transfer.

Mr. MacGuill deposed that he then met with his client who told him that he had been interviewed throughout that day by detective gardaí, but that no notes whatever had been taken of the interviews. The interviews consisted of allegations being put to him, principally that he had stolen a vehicle which was subsequently used to plant the bomb in Omagh. He had consistently denied the

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allegations but this had not been recorded in any fashion - so the respondent asserted.

The respondent’s detention was extended at 11.40 pm on the 30th September for a further period of 24 hours commencing at 7.00 am on 1st October by certificate of Superintendent White.

The following day, 1st October, Mr. MacGuill again attended on Mr. Lavery at Carrickmacross Garda Station. He deposed that the respondent had said that notes were being taken of interviews but that these notes did not record all the questions and answers that had been given in the course of the interviews. Other matters being said during the interviews were not being recorded either. Mr. MacGuill said that Mr. Lavery had questioned the relevant detectives as to why this should be so and he was informed that there was no obligation on them to record everything that was said or all questions put and answered in the memo of interview. The respondent was requested and did sign these memos of interview.

At 9.30 pm on 1st October at a sitting of the Carrickmacross District Court (Judge Flan Brennan presiding) an application was made to extend the period of the detention of the respondent for a further period of 24 hours, pursuant to s. 30 (4) and (4)(A) of the Offences Against the State Act, 1939, as inserted by s. 10 of the 1998 Act.

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At the hearing in the District Court, Mr. MacGuill renewed his request to see the notes of the interviews. The Superintendent refused to hand them over and he claimed privilege in relation to them. The District Judge held with the State and made the order sought. To dispose of this point of a claim of privilege, privilege could not be claimed for these notes. Clearly either the Superintendent is entitled to withhold the notes until the end of the investigation or he is not. But this has nothing to do with privilege.

It should be said, too, that the Superintendent indicated during the hearing in the High Court that he was willing that the accused should see the notes and then would be free to consult once more with Mr. MacGuill, but the State took the stance that they should not be required to hand over the notes to the solicitor.

The point at issue in these proceedings is a net one. It is not in doubt that s. 30 permits the arrest and detention of suspected persons, where a member of the Garda Síochána suspects that a person has committed or is about to commit, or is or has been concerned in the commission of an offence under any section or sub-section of the Act of 1939 (including amending Acts) or an offence which, for the time being, is a scheduled offence for the purposes of Part V of the 1939 Act, or whom he suspects of carrying a document in relation to the commission or the intended commission of any such offence, or whom he

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suspects of being in possession of information in relation to the commission or intended commission of any such offence as aforesaid. Section 52 of the Act of 1939 permits a person who has been lawfully arrested under s. 30 to be questioned in respect of the matters specified in that section and makes it an offence to refuse to give the information sought, or to give information which is false or misleading. It is beyond debate that a person thus detained has a constitutional right to access to a legal advisor: see the Court’s judgments in  Re Emergency Powers Bill, 1976 [1977] IR 159; The People .v. Shaw [1982] IR 1 and The People (D.P.P.) .v. Pringle  2 Frewen 57. However, the right of access is one of reasonable access. As stated in the judgment of the Court of Criminal Appeal in the Pringle case, at p. 96:-

“This Court is satisfied that the Garda Síochána have a right to interrogate a person in lawful custody provided that such interrogation is carried out in a fair and reasonable manner. The Court is also satisfied, as has been clearly established, that a person in lawful custody is entitled to reasonable (EMPHASIS ADDED) access to his lawyer or solicitor. These two rights must, to some extent, be balanced and there are no grounds for holding that either right can or should be exercised to the unreasonable exclusion of the other.”

While there is no suggestion that Mr. MacGuill was not given reasonable access in the understood sense of that term, the complaint before the High

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Court, brought pursuant to Article 40, s. 4 of the Constitution, was that the new legislation required that the solicitor should be given access to the documents that he required and, once he was refused, the respondent’s detention became unlawful and he should be set free.

When the matter came for hearing before the High Court (McGuinness J.) on the evening of 2nd October, 1998, she held with the submissions advanced on behalf of  Mr. Lavery and ordered his release. It should be noted, in passing, that while a complaint had been made at the garda station that no notes had been taken of the earlier interviews, this suggestion was not put to Superintendent White in the course of his evidence before the learned High Court judge.

The State appeals to this Court. The question for resolution is this: Does such deprivation, as the solicitor for the detained man suffered in this case mean that the detention of the respondent was rendered unlawful? Without any doubt, if a person in custody is denied blanket access to legal advice, or if he is subjected to ill treatment by way of assaults, for example, then that would render his detention unlawful.

However, the gardaí must be allowed to exercise their powers of interrogation as they think right, provided they act reasonably. Counsel for the State submitted to the High Court judge that in effect what Mr. MacGuill was

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seeking was that the gardaí should give him regular updates and running accounts of the progress of their investigations and that this was going too far. I agree. The solicitor is not entitled to be present at the interviews. Neither was it open to the respondent, or his solicitor, to prescribe the manner by which the interviews might be conducted, or where. The point of whether there were adequate notes taken of any interview might, or might not, be of significance if there was a subsequent trial.

I think all the members of the Court were struck by the apparent inconsistency in the State’s attitude: that although the detained man could see the notes of the interviews, his solicitor could not. While this may have been a somewhat incongruous course of conduct, is does not render the detention unlawful. It should be noted, too, that of course if a charge had followed on the detention both the accused and his legal advisors would have been entitled to all relevant documentation. This matter was explored comprehensively in the recent decision of this court in  Ward . v. Special Criminal Court [1998] 2 ILRM 493.

I hold that the respondent’s detention was in accordance with law and that he should not have been released under Article 40 of the Constitution. I would, accordingly, reverse the order made by the learned High Court judge. It will be clear, as occurred in Re Zwann [1981] ILRM 333, that the result of this

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appeal will not have any practical effect as far as the relevant investigation was concerned. As laid down in Zwann, while it is true that this Court will not entertain questions which are purely hypothetical or academic and will not hear complaints made by persons who lack a real interest or locus standi in the question raised, the matter raised on appeal is of real concern to the State and to those charged with the duty of applying the Offences Against the State Acts.