Man seen in handcuffs wins appeal

The Court of Criminal Appeal has quashed the conviction of a man on a number of grounds, including that he was seen by potential jurors in handcuffs.

The court warned it views seriously the presentation in handcuffs of a defendant in areas of the courts where they may be seen by jurors or the photographing of defendants in handcuffs.

The court did not want a perception to go out that what it has said about defendants not been seen in handcuffs does not matter and does not warrant setting aside a conviction, Mr Justice Hardiman, presiding over the three-judge court, said. While there were difficulties in ensuring jurors would not see defendants in handcuffs, it was not impossible to avoid that happening.

He also drew attention to the continuing failure by gardaí to tape-record interviews with persons in custody, despite the introduction of legislation to that effect in 1997.

The court was granting an appeal by Darren McCowen (31), Knockmore Crescent, Tallaght, Dublin, against his conviction for larceny of £8,000 from the National Irish Bank branch at North Main Street, Naas, Co Kildare, on June 21st, 1999. It was alleged Mr McCowen jumped across the counter and stole the cash from a teller.

Mr McCowen, who has a history of substance abuse, was jailed for three years and has completed his sentence.

Presenting Mr McCowen's appeal, Mr Garnet Orange argued a combination of factors had rendered the trial unsatisfactory. These included that his client was handcuffed while in the hall of Naas Circuit Criminal Court, where he would be seen by potential jurors; the admission of evidence from a Garda witness that McCowen had repeatedly stated in interviews with gardaí that he was saying nothing on the advice of his solicitor; and the failure by gardaí to record all of his replies to questions.

Mr John Aylmer, for the DPP, accepted there were imperfections in the trial but argued these were minor and did not justify the setting aside of the conviction. In response to Mr Justice Hardiman, he accepted it would have been better for the gardaí to record all of McCowen's replies but said it was his experience, unfortunately, as a prosecution counsel that it was not the habit of gardaí to tape-record interviews with persons in custody.

Counsel also accepted it was "most undesirable" that persons awaiting trial should be seen in handcuffs by potential jurors.

Allowing the appeal, Mr Justice Hardiman, sitting with Mr Justice O'Donovan and Mr Justice Butler, said the court took the view the trial was unsatisfactory for a number of reasons. There was substance in three of the grounds of appeal, including that McCowen was handcuffed in the hall of Naas courthouse where he would be seen by jurors.

He said the court has previously said there is prejudice attaching to a defendant being seen in handcuffs and the matter must be taken seriously. If it was necessary for a defendant to be handcuffed, steps must be taken to avoid prejudice. It was also undesirable to feature photographs of handcuffed defendants.

The judge noted the court had condemned in a previous case the fact the defendant was seen in handcuffs but said the court had not overturned the conviction in that case because there was other strong evidence.

The second ground of substance concerned the Garda failure to note all of McCowen's denials in interviews, the judge said. This was serious.

The caution administered to persons in custody is that anything they say will be taken down in writing and may be given in evidence. This was not the first time where general and exculpatory answers to questions were not recorded or not recorded in detail. The court was aware of a tendency over a long time for gardaí not to note repetitive matters or general conversation in interviews. If gardaí considered that a question was important enough to ask and perhaps to repeat the same question several times, they must record all the answers.

The court also found substance in the ground relating to the trial being told by gardaí that McCowen, while denying involvement in the robbery at the NIB in Naas, had repeatedly said he would say nothing on the advice of his solicitor. That should not have occurred and was in breach of a Supreme Court decision, Mr Justice Hardiman said.

As Mr McCowen had served his sentence, the court would not direct a retrial, the judge added.