In the Matter of Article 40.4 of the Constitution.

Deaglan Lavery (applicant/respondent) v The Member in Charge, Carrickmacross Garda Station (appellant).

Criminal Law - Arrest and inter- rogation of suspect - Lawfulness of detention - Right of Gardai to interrogate suspect - Suspect's right of access to solicitor - Right of suspect's solicitor to be present at interrogations and to receive running account of Garda investigations - Claim of privilege in relation to Garda notes of interrogation - Offences Against the State Act 1939, sections 21, 30 and 52 - Offences Against the State (Amendment) Act 1998, sections 2, 5 and 10.

Locus Standi - Questions which are purely hypothetical or academic - Matters of real concern.

The Supreme Court (the Chief Justice Mr Justice Hamilton, Mr Justice O'Flaherty, Mrs Justice Denham, Mr Justice Barrington, Mr Justice Keane); judgment delivered 23 February 1999.

The Offences Against the State (Amendment) Act 1998 does not require that the solicitor of a person, arrested on suspicion of being a member of an unlawful organisation, be given access to notes of interviews that gardai have conducted with his client and accordingly, a refusal by the gardai to provide such notes, does not render the detention unlawful. The Supreme Court so held in reversing the decision of the High Court in favour of the applicant/respondent.

Patrick Gageby SC and Colm O'Briain BL for the applicant/respondent; Diarmaid McGuiness SC and Feichin McDonagh BL for the appellant.

Mr Justice O'Flaherty, delivering judgment on behalf of the court, said that the respondent was arrested at his home by the Garda under section 30 of the Offences Against the State Act 1939, on suspicion of being a member of an unlawful organisation, and brought to Carrickmacross Garda Station, County Monaghan. His solicitor, Mr James MacGuill, who was contacted by the Garda sometime prior to 8.00 am, had a telephone conservation with the respondent, took his instructions and gave him general advices, in particular, advices as to the new obligations created by the Offences Against the State (Amendment) Act 1998.

Section 2 of the 1998 Act provides, inter alia, that where, in any proceedings against a person, for an offence under section 21 of the Offences Against the State Act 1939, which prohibits membership of an unlawful organisation, 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 in relation to the 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 instructions, 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. Section 5 is to similar effect except that it applies to a wider range of offences.

Mr MacGuill wrote to the superintendent at Carrickmacross by fax, requesting particulars of the allegations against the respondent and indicating that the respondent would be prepared to have his interviews audio-visually recorded. He 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 the respondent's detention.

The respondent's solicitor attended at Carrickmacross Garda Station at 3.15 pm that afternoon and met the superintendent in charge of the investigation. He desposed 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. The superintendent said that 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 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 then indicated that no such question had been put to the respondent. Mr MacGuill inquired as to whether there was any evidence in existence which might require an explanation as was envisaged in section 5 of the 1998 Act. The superintendent said that there was no such evidence "at that stage". Mr MacGuill requested from the superintendent 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 the respondent being transferred to another station which had those facilities; Mr MacGuill indicated that the respondent would be prepared to consent to such a transfer.

Mr MacGuill deposed that he then met the respondent who told him that he had been interviewed throughout that day by detective gardai, 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 a bomb in Omagh. He had consistently denied the allegations but asserted that this had not been recorded in any fashion.

The respondent's detention was extended for a further period of 24 hours, commencing at 7.00 am on 1 October. On 1 October Mr MacGuill again attended on the respondent at Carrickmacross Garda Station. He deposed that the respondent had said that notes were being taken of the interviews but that these notes did not record all the questions and answers that had been given in the course of interviews. Other matters being said during the interviews were not being recorded either. Mr MacGuill said that the respondent 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 the interview. The respondent was requested to and did sign those memos of interview.

At 9.30 pm on 1 October, at a sitting of Carrickmacross District Court, an application was made, pursuant to section 30 (4) and (4)(A) of the Offences Against the State Act 1939 as inserted by section 10 of the1998 Act, to extend the period of detention of the respondent for a further 24 hours. At this hearing 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.

Mr Justice O'Flaherty stated that privilege could not be claimed for these notes. Either the superintendent was entitled to hold the notes until the end of the investigation or he was not. The superintendent indicated during the hearing in the High Court that he was willing that the respondent 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.

Mr Justice O'Flaherty stated that section 30 permitted the arrest and detention of suspected persons in specified circumstances. Section 52 of the Act permitted a person who had been lawfully arrested, to be questioned in respect of the matters specified in that section and made it an offence to refuse to give the information sought or to give information which was false or misleading. It was beyond debate that a person thus detained had a constitutional right to access to a legal adviser: Re Emergency Powers Bill 1976 [1977] IR 159; The People v Shaw [1982] IR 1; The People (DPP) v Pringle and Others 2 Frewen 57. However, the right of access was one of reasonable access. As was stated by the Court of Criminal Appeal in the Pringle case, the Garda had a right to interrogate, in a fair and reasonable manner, a person in lawful custody; and that person had a right to reasonable access to his solicitor or lawyer. The court went on to state, in that case, that these two rights must to some extent be balanced and that there were no grounds for holding that either right can or should be exercised to the unreasonable exclusion of the other.

While there was no suggestion that Mr MacGuill was not given reasonable access, the complaint before the High Court, pursuant to Article 40.4 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 before Miss Justice McGuinness in the High Court, on the evening of 2 October 1998, she ordered the release of the respondent. The complaint that no notes had been taken of the earlier interviews was not put to the superintendent in the course of his evidence before the High Court.

Mr Justice O'Flaherty stated that the question for resolution was whether such deprivation as the solicitor for the respondent suffered in this case meant that the detention was rendered unlawful. Without doubt if there were a blanket denial of access to legal advice or if the respondent was subjected to ill treatment by way of assaults, for example, then that would render his detention unlawful. However the judge stated that the gardai must be allowed to exercise their powers of interrogation as they thought fit, provided they acted reasonably. The solicitor for the respondent was not entitled to regular updates and running accounts of the progress of the Garda investigations. He was 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. Whether there were adequate notes of any interview might, or might not, be of significance if there was a subsequent trial.

While it may have been somewhat incongruous that although the respondent could see the notes of his interviews, his solicitor could not, this did not render the detention unlawful. Of course if a charge had followed on the detention both the accused and his legal advisers would have been entitled to all relevant documentation: Paul Ward v Special Criminal Court [1998] 2 ILRM 493.

Mr Justice O'Flaherty held that the respondent's detention was in accordance with the law and that he should not have been released under Article 40 of the Constitution and accordingly he reversed the order of the High Court. He further held that it was clear, as occurred in Re Zwann [1981] ILRM 333, that the result of this appeal would not have any practical effect as far as the relevant investigation was concerned. As laid down in that case, while it was true that the court would not entertain questions which were purely hypothetical or academic and would not hear complaints made by persons who lacked a real interest or locus standi in the question raised, the matter raised on appeal was of real concern to the State and to those charged with the duty of applying the Offences Against the State Acts.

MacGuill & Co (Dundalk) for the applicant/respondent; Chief State Solicitor for the appellant.