DPP v Solowiow: Trial judge must assess defendant’s lies in time, nature and circumstances of offence when directing jury

In this case, Director of Public Prosecutions v Solowiow, the Supreme Court held that the trial judge had given the jury adequate warning on the inferences they could draw from Solowiow’s original false accounts of events. That he did not direct the jury that Solowios’s lies were not evidence of guilt of murder rather than manslaughter did not cause an injustice.



In May 2012, Solowiow murdered his girlfriend Mary Ryan by fracturing her larynx and causing her blunt force trauma. When first interviewed by gardai, Solowiow stated that Ryan’s injuries were caused by three men who assaulted her on the street. Later he admitted to causing Ryan’s death while in a fit of rage. But he alleged that he did not mean to harm her.

The DPP prosecuted Solowiow for murder; he argued a partial defence of provocation, which, if accepted by a jury, reduces the offence of murder to manslaughter. In October 2013, the Central Criminal Court convicted Solowiow of murder. Solowiow appealed that decision to the Court of Appeal on a number of grounds, all arguing that the trial judge failed to direct the jury correctly.

In April 2016, the Court of Appeal (here) dismissed Solowiow’s appeal. That judgment quotes extensively from the trial judge’s direction to the jury. [22 – 29] dealt with the trial judge’s direction to the jury on how they should consider Solowiow initially lying to gardai. Solowiow sought leave of the Supreme Court for a further appeal on that one issue.

In granting leave to appeal, the Supreme Court summarised Solowiow’s argument on the trial judge’s direction to the jury relating to his early denial of causing Ryan’s injuries:

It is said that it requires to be made clear to the jury in the judge’s charge that such evidence is not evidence of guilt of murder as such but rather is evidence which may go to the credibility of the accused and, to the extent that it may lead to a legitimate questioning of that credibility, may be taken into account by the jury in conjunction with all of the evidence on provocation which may be given at the trial. It is said that the charge in this case does not do so, that there is no Irish authority on the question and that the question of whether a charge should so do raised an issue which meets the constitutional threshold.

However, the Court also allowed the DPP to argue that it was not open to Solowiow to appeal on the grounds raised, as he did not make a requisition to the trial judge to amend his jury direction on that issue.


Supreme Court

MacMenamin J wrote the judgment for the unanimous five judge panel. He outlined the law in relation to direction of a jury where a defendant had given a false account of their involvement, known as the “Lucas Warning”:

35. Standing back from the facts of this case, it is clear that the core principle in R v Lucas [1981] QB 720, is that, where an accused’s lies are capable of constituting corroboration, the jury must be instructed that there are many possible reasons why people lie, and that, before relying on the lie in question, it must be satisfied that the motivation behind the lie was a realisation of guilt, and a fear of the truth.


That test was later refined in England and Wales for cases where the defence of provocation is raised: R v Richens [1994] 98 Cr App Rep 43. MacMenamin J outlined the relevant facts:

41. Richens was a case where the circumstances showed that not only could the partial defence of provocation arise, but have a close connection with the offence. The judgment concerned a 17 year old accused, who, the defence claimed, was enraged that the victim claimed that the defendant’s girlfriend, who he had raped, had actually consented to have sex. Both the defendant and the girl disposed of the body. The defendant maintained a false account of what occurred for a considerable period. Critically, the accused denied any involvement at all in the crime. He was arrested 17 days after the crime and on the following day admitted his involvement.


In this case, the trial judge had given a Lucas Warning, but Solowiow argued that the trial judge should have gone further and specifically directed the jury that his lies could not provide proof of his guilt of murder as opposed to manslaughter.

MacMenamin J approached this appeal from the question of the overall adequacy of the trial judge’s direction. Dismissing the appeal, he stated:

  1. The charge, as a whole, was detailed and fair. It is not to be parsed and analysed with a view to finding some small detail or omission which contains a flaw of no significance. One might rhetorically ask what more should the judge have said on the basis of the evidence before the jury? It is, theoretically, possible to criticise the charge on the basis that the omission of what I might characterise as a Richens warning. But this charge did contain a detailed warning in a case where the issue was entirely obvious: was the defendant guilty of murder or manslaughter? The judge took care to ensure that the jury were aware of the fact that the defendant accounted for his lies on the basis that he was afraid, and then “thought about telling the gardaí about the three guys.” He accounted for the fact that he told his friends the lies, on the basis that he did not know whether or not the deceased was going to die. The judge gave the essence of the Lucas warning. He gave illustrations of the application of the warning. And, by the time of the trial, what was in the lies was not in dispute, and was by then a secondary issue. It was clear that the defendant had committed a homicide, and did not dispute that. It was no longer the central issue.
  2. The question must be, how material was the omission of this one hypothetical sentence, which counsel for the defendant now suggests? Was the charge fundamentally flawed? In my view, it was not. No injustice was done in this case. One must assess the relationship of the lies both in time, and in their nature, to the circumstances of the offence. The jury might have paid regard to the lies, but this was not the central consideration when in the trial itself the vista had changed. This case does not concern theoretical possibilities. It must be anchored in its own facts. I do not consider the omission to be fatal to the charge or the subsequent conclusion.


On the second issue of whether Solowiow had a right to appeal at all, given that he had not made a requisition to the trial judge to amend his jury direction, MacMenamin J held for the DPP, citing Kearns J in Cronin (No 2) [2006] 4 IR 329:

Without some such limitations, cases will continue to occur where a trawl of a judge’s charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge’s charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself. …


New Appeal: Must a trial judge give an accomplice warning, even where that’s not requested by counsel for the defence?

In this determination, Director of Public Prosecutions v Fitzgerald, the Supreme Court granted Fitzgerald leave to appeal on the question:

Whether a trial judge is required to give an accomplice warning, even where the trial judge is not requested to do so by counsel for the defence.



A jury convicted Fitzgerald of murder. At trial, Kelly gave evidence for the prosecution that Fitzgerald had been in her home prior to the killing; that he was in possession of a shotgun; that he left her home with the shotgun; that she heard shots fired at a neighbouring house; and that Fitzgerald returned to her home with the shotgun claiming to have killed the victim.

Fitzgerald was represented at trial by a solicitor, barrister and Senior counsel. The trial judge inquired whether Fitzgerald wanted the jury to be given an accomplice warning. Fitzgerald’s legal team did not request a warning.

After his conviction, Fitzgerald changed solicitor and appealed his conviction to the Court of Appeal. Among other grounds, he claimed that his conviction was unsound due to the trial judge not giving the jury an accomplice warning on Kelly’s evidence. The Court of Appeal accepted that Kelly was an accomplice but dismissed his appeal on grounds that the trial judge was not required to give a warning where the defendant had not requested one. Fitzgerald applied to the Supreme Court for leave to appeal.


Supreme Court

The State objected to Fitzgerald’s application, arguing that the law in this area is clear and no issue of general importance arose. Also, it argued that Fitzgerald chose to undermine Kelly’s evidence by other means, and if the trial judge had done so it would have been an interference with Fitzgerald’s right to conduct his defence in the manner of his own choosing.

But the Court determined that:

In the circumstances of this case, it is clear that the Court of Appeal viewed Ms. Kelly as an accomplice; notwithstanding that view, having regard to the way in which the defence was conducted, it concluded that no corroboration warning was necessary in respect of her evidence. The question therefore arises as to whether such a warning is required or not. The Court is satisfied that the Applicant herein has raised an issue of general public importance, namely:

“Whether a trial judge is required to give an accomplice warning, even where the trial judge is not requested to do so by counsel for the defence.”

DPP v Wilson: Re s 19 of the Criminal Justice Act 1984 (admission of adverse inference evidence)

Here, the Supreme Court held that s 19 of the Criminal Justice Act 1984 (admission of adverse inference evidence) “may not be utilised in a trial for an offence other than the offence in respect of which the inference caution was expressly invoked” [50].



S 19 of the 1984 Act (as amended by s 29 of the Criminal Justice Act 2007) (here) allows for an inference to be drawn from a suspect’s failure to account for their presence at a place when an offence was committed.

In 2009, two men entered a house in Blanchardstown, one armed with a meat cleaver and the other with a gun. Two shots were fired. Witnesses at the scene identified Wilson as the one in possession of the meat cleaver.

Gardai arrested Wilson on suspicion of having been involved in the unlawful discharge of a firearm. During questioning, gardai invoked the adverse inferences provision of s 19 of the 1984 Act.

The DPP charged Wilson under s 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act 2001. It is alleged that he entered the building as a trespasser and committed an assault causing harm.

At trial before the Dublin Circuit Criminal Court, the DPP proposed to rely on s 19 of the 1984 Act. Wilson objected on grounds that he was questioned in relation to the unlawful discharge of a firearm, not assault, and that s 19 cannot be invoked in relation to an offence for which he was not questioned. The trial judge ruled in favour of the DPP. On appeal, the Court of Appeal upheld the trial judges decision on grounds that the offences for which Wilson was questioned and charged were inextricably linked. Wilson sought leave to appeal that decision to the Supreme Court.

In this determination (DPP v Wilson), the Supreme Court granted Wilson leave to appeal on “whether the section [s 19 of the Criminal Justice Act 1984] may be utilised in a trial for an offence other than the offence about which the accused was questioned when the section was invoked”.


Supreme Court

Chief Justice Denham wrote the main judgment for a unanimous five judge panel; McKechnie J wrote a concurring judgment.

The case raised only an issue of statutory interpretation.

Denham CJ set out An Garda Síochána’s obligations under s 19 and the operation of the adverse inference thereafter:

31. … First, the member concerned must reasonably believe that the presence of the accused at a relevant place and time may be attributable to participation in the commission of “the offence”. Second, the member concerned must inform the accused that he or she is of that belief being a belief that the presence of the accused may be attributable to participation in the commission of “the offence”. Third, the member concerned must, in accordance with s 19(3)(a), tell the accused in ordinary language what the effects of failure or refusal to account may be. However, that effect may be that an inference might be drawn in relation to guilt of “the offence charged”. It is clear, therefore, that the inferences caution must relate to “the offence” which obviously relates back to the offence in respect of which, in the words of the first phrase of s 19 itself, there are “proceedings against a person”.

32. There is no ambiguity in that aspect of the section. The inferences caution must relate to the same offence as is involved in the proceedings ultimately brought and thus the same offence as that with which the accused is charged.

33. Then, if the accused failed or refused to give an account explaining his presence, the Court, in determining whether the accused is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may draw such inferences as appear proper, and the failure or refusal may on the basis of such inferences, be treated as, or capable of amounting to, corroboration of any evidence in which the failure or refusal is material.


Allowing Wilson’s appeal, Denham CJ held:

50. Section 19 may not be utilised in a trial for an offence other then the offence in respect of which the inference caution was expressly invoked. Any other approach would require further legislation.

DPP v Wharrie: Not a mitigating factor that accused did not give false evidence at trial

Here, in answer to a case stated from the Court of Criminal Appeal, the Supreme Court held that:

it is not a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give false evidence at his trial.



In 2007 Perrie Wharrie and three accomplices were arrested in County Cork when their rib sunk as they attempted to bring 1.5 tonnes of cocaine ashore. One of the men pleaded guilty to offences under the Misuse of Drugs Acts. The three others were convicted before a judge and jury. At trial, Wharrie did not give evidence. His accomplices, however, gave evidence which the judge described at sentencing as an “insult to the intelligence of the jury”. The trial judge determined that it was a mitigating factor that Wharrie did not give false evidence, but sentenced him to 30 years imprisonment.

The Court of Criminal Appeal upheld the trial judge’s finding that it was a mitigating factor that Wharrie did not give false evidence. But it found that the trial judge did not give Wharrie credit for that. The Court of Criminal Appeal reduced Wharrie’s sentence to 22 years and allowed a further five years reduction in mitigation.

The DPP certified a question for appeal to the Supreme Court:

Is it a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give evidence at his trial?


Supreme Court

Charleton J wrote the judgment for a five judge panel. Overruling the statements on mitigation by the trial judge and the Court of Criminal Appeal, he stated:

30. … An accused person is entitled to contest a case. While he or she may be given credit appropriate to an early admission of guilt, a plea of guilty, or, to a lesser extent, an approach to the trial process which saves time and money, no trial judge is entitled to aggravate the appropriate sentence because the accused gave perjured evidence in his own defence or in defence of others. Perjury is a separate crime and it is not a factor of aggravation of an existing offence. Finally, as a matter of principle, since perjury is a criminal offence as well as a grave moral wrong, it defies logic to conclude that failing to tell deliberate lies under oath or affirmation somehow mitigates the seriousness of an offence.

DPP v O’Shea: Not necessary to establish mens rea in a prosecution for careless driving which results in a death

Here, DPP v O’Shea, the Supreme Court overturned the Court of Appeal finding that it is necessary to establish mens rea in a prosecution for careless driving which results in a death.



On the 9th of January 2013, O’Shea, who was seventy years of age at the time, was driving on a public road in County Kildare. He collided with a JCB which was performing roadworks, pinning Kevin O’Sullivan, who was on traffic control duty, to the JCB, causing his death. O’Shea was not speeding, nor was he intoxicated and his car was fully roadworthy. He claims that there was no pre-warning sign, the sun was low in the sky and he was blinded by strong sunlight.

The DPP charged O’Shea with careless driving causing the death of Kevin O’Sullivan under s 52 of the Road Traffic Act 1961, as substituted by s 4 of the Road Traffic Act (No 2) 2011 (here). At trial, the trial judge instructed the jury that careless driving is a strict liability offence. The jury found O’Shea guilty. The trial judge fined O’Shea €5,000, suspended him from driving for four years and ordered that he re-sit a driver competency test before his licence is returned.

O’Shea appealed his conviction to the Court of Appeal. The CoA (here) overturned O’Shea’s conviction on grounds that dangerous or careless driving are not strict liability offences.

The Supreme Court granted the DPP leave to appeal on the question: “what are the ingredients of the offence created by, and what must be proved in order to sustain a conviction under s 4 of the Road Traffic (No 2) Act 2011?”


Supreme Court

O’Malley J wrote the judgment for the five judge panel. Clarke J wrote a concurring opinion.

O’Malley J reviewed the statutory history and case law on driving offences and clarified the elements of the offences of dangerous driving and careless driving. Dangerous driving is “driving that a reasonably prudent driver would, in the circumstances, recognise as causing a direct, immediate and serious risk of harm to the public. There is therefore no requirement to prove that the accused adverted to that risk – the test is objective” [47]. Careless driving is a lesser offence even though it many cause the same result. It is driving with “a lack of care and attention that a reasonably prudent driver would give when driving in a public place, having regard to the circumstances as they actually exist [48]. A careless driver is less blameworthy than a dangerous driver for the same result [49].

Supreme Court will ask the CJEU to define “trial” within the Framework Decision on European Arrest Warrants

In this judgment, Minister for Justice & Equality v Lipinski, the Supreme Court held it necessary to make a reference to the Courts of Justice of the European Union on the scope of “trial” within Article 4a of the Framework Decision on European Arrest Warrants. Should trial be interpreted narrowly, limiting its application to a criminal prosecution? Or should trial be interpreted broadly, to also include later proceedings such as hearings to suspend sentences and hearings to revoke the suspension of sentences?



In 1998, a Polish court sentenced Lipinski to fifteen years imprisonment for offences comparable to the Irish offence of assault causing harm. That sentence was reduced on appeal to ten years. Lipinski was present at the trial and represented at the appeal.

In 2004, another court ordered the suspension of the remainder of Lipinski’s sentence on condition that he remain under the supervision of a probation officer.

In 2006, Lipinski moved to Ireland, breaching the terms of the suspension of his sentence. At a hearing later that year, a Polish court made an order quashing the suspension, making Lipinski liable to serve the rest of the sentence. The Polish authorities did not notify Lipinski of that hearing and he was not present.

In 2013 the State received a European Arrest warrant for Lipinski’s surrender to the Republic of Poland. That warrant was executed in 2014.

In the High Court, Lipinski argued that s 45 of the European Arrest Warrant Act 2003 (as amended) prohibited his surrender. S45 originally stated that a person should not be surrendered if they were not present at their trial, unless the issuing state guarantees a retrial. In 2012, s 45 was amended to state that a person should not be surrendered if they were not present at the “proceedings resulting in the sentence or detention order”. The High Court (here) ordered Lipinski’s surrender, but certified a question of law of exceptional public importance for determination by the Court of Appeal on whether s 45 as amended is engaged where the person was present at the trial for the offence but not present for the reactivation of the suspended sentence.

The Court of Appeal (here) held that the amendments were procedural rather than substantive, and if the legislature intended s 45 to extend to in absentia arrangements it would require clear wording. Lipinski sought leave of the Supreme Court to appeal that decision.


Supreme Court

Clarke J, writing for a five judge panel, held that s 45 must be interpreted in a manner consistent with the Framework Decision on European Arrest Warrants. Article 4a of the Framework Decision, the article which s 45 transposes into Irish law, provides for circumstances where an executing state will refuse surrender. That includes, where the subject of a warrant is sought to serve a sentence already imposed but was not present at the “trial”.

Clarke held that it is not acte clair whether trial in 4a must be interpreted narrowly to refer only to Lipinski’s original trial and sentencing (where Lipinski was present); or whether trial in 4a should be interpreted broadly to also include the proceedings where the suspension of the sentence was revoked (where Lipinski was not present).

The Supreme Court will make a reference to the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union on the correct interpretation of trial in Article 4a of the Framework Decision.

New Appeal: Must the DPP clarify inconsistencies in a witness’s statement before deciding to prosecute?

In this determination, DPP v DH, the Supreme Court granted the DPP leave for a leapfrog appeal from the Central Criminal Court on three questions:


(i) Does either the prosecution or the defence have a right of appeal against an order of a trial judge staying a trial pending the taking of further steps by the prosecution?

(ii) In considering whether to stay a criminal trial after its commencement, is a trial judge bound to apply the same test as that appropriate to judicial review proceedings aimed at quashing a decision to prosecute?

(iii) Does the Director of Public Prosecutions have a duty to clarify serious inconsistencies in a witness’s statements before deciding to prosecute, where such inconsistencies may go to the reliability of that witness’s evidence, or is it sufficient that disclosure of such inconsistencies is made to the defence?



This case concerns allegations of numerous counts of rape and indecent assault of a young girl dating back to 1987 – 1989.

At trial, DH sought to have the prosecution stayed on grounds of culpable prosecutorial delay. In a voir dire trial, the trial judge did not accept DH’s arguments on delay. However, it emerged that the girl’s social worker (Ms C) had noted in 1995 that the girl was not certain that intercourse had taken place; although at the time of trial the complainant was certain that it had.

The trial judge ordered a stay on the prosecution of the rape charges, stating:

This is a piece of evidence that might indicate that [the complainant’s] evidence to the Court, while truthful and honest might not be reliable and the duty was on the prosecution to explore that evidence, bearing in mind that the risk of an unfair trial that everyone accepts can follow from long delay.

The DPP sought leave for a leapfrog appeal against that order directly to the Supreme Court. The constitutional threshold for a leapfrog appeal are (1), an appeal must be in the interests of justice and (2), there must be exceptional circumstances.

The DPP did not argue that she could not fulfill the terms of the stay. She argued that she met the constitutional threshold as she had no right of appeal to the Court of Appeal where the Central Criminal Court order is not an acquittal, conviction or sentence (1), and it would lead to an inequality between her and the accused if the Supreme Court did not grant leave (2).

The Court determined that the DPP met the constitutional threshold and granted leave.

On appeal “the Director intends to argue that the trial judge applied an incorrect test in exercising her jurisdiction to impose a stay; that she failed to have regard to the limited grounds upon which a decision to prosecute can be reviewed by the courts; that she erred in considering that there was a real risk of an unfair trial having regard to the fact that the documents in question had been disclosed; that she focussed disproportionately on the hearsay accounts of words used by the complainant in the earlier investigations; and that she erred in concluding that the alleged inconsistencies justified the staying of a prosecution”.

DPP v Heffernan: Burden of proof for defence of diminished responsibility is the balance of probability

Here, the Supreme Court held that “establish” in s 6(2) of the Criminal Law (Insanity) Act 2006 requires a murder accused to prove on the balance of probability that, at the time the offence was committed, they suffered from a mental disorder which justified a finding of not guilty of murder by reason of diminished responsibility.


Criminal Law (Insanity) Act 2006

6. – (1) Where a person is tried for murder and the jury or, as the case may be, the Special Criminal Court finds that the person –

(a) did the act alleged,

(b) was at the time suffering from a mental disorder, and

(c) the mental disorder was not such as to justify finding him or her not guilty by reason of insanity, but was such as to diminish substantially his or her responsibility for the act,

the jury or court, as the case may be, shall find the person not guilty of the offence but guilty of manslaughter on the ground of diminished responsibility.

(2) Subject to section 5(4), where a person is tried for the offence specified in subsection (1), it shall be for the defence to establish that the person is, by virtue of this section, not liable to be convicted of that offence.



The Central Criminal Court convicted Heffernan of the murder of Eoin Ryan at Ennis, County Clare in June 2011. At trial, Heffernan admitted to causing Ryan’s death but raised a defence of diminished responsibility under s 6(2) of the 2006 Act. The trial judge instructed the jury that the burden of proof for that defence is the balance of probabilities. Heffernan appealed his conviction to the Court of Appeal on grounds that the trial judge had misdirected the jury: he claimed that the defence of diminished responsibility is proven where the accused raises a reasonable doubt. The Court of Appeal held that the word “establish” in s 6(2) means that the accused bore the burden of proofit is not enough that the accused raise a reasonable doubt.

Heffernan applied to the Supreme Court for a further appeal on the correct interpretation of the burden of proof. Granting leave, the Court determined that he had raised an issue that may arise in other cases and that was of general public importance.


Supreme Court

Dismissing the appeal, O’Malley J wrote the judgment for the Court; Charleton J wrote a concurring judgment (here).

On appeal, Heffernan argued that s 6 must be interpreted in light of the general rule that the prosecution must prove guilt and that the accused need not prove anything. Where an accused raised a reasonable doubt concerning an s 6 defence the prosecution was obliged to prove otherwise. The alternative interpretation would breach the presumption of innocence, as a jury may be obliged to convict even where they had a reasonable doubt about guilt.

The Court rejected that argument. Firstly, the prosecution must prove all the elements of a murder conviction; thereafter, s 6 “creates a new, mitigatory defence which reduces the consequences of a proven offence” [64]. It does not affect the presumption of innocence [65]. And there are good policy reasons to justify the higher standard of proof: the subjective nature of the defence, the fact that the accused cannot be compelled into a medical examination and because the prosecution would need to introduce expert medical opinion to prove the accused did not suffer from diminished responsibility [66].

New Appeal: Can an accused deny guilt and later exercise his right to silence?

speakIn this determination, DPP v KM [2017] IESCDET 5, the Supreme Court granted KM leave to appeal on the question:

Where a person has volunteered an exculpatory statement and thereafter responds to questions by referring to the statement and saying that he or she has nothing further to say, should such responses be seen as:

a) an exercise of the right to silence, or

b) relevant and probative evidence in the trial?



Gardai investigated an allegation of indecent assault made against KM. KM produced a prepared written statement at his interrogation, in which he claimed the allegation was “blatantly false”. He  responded to all questions put to him by stating he had nothing to say other than what was in the written statement.

At trial, KM objected to the prosecution introducing the transcript of the interview into evidence. KM argued that that would interfere with his right to silence. The Circuit Court trial judge allowed the prosecution to introduce the evidence. The court convicted KM of indecent assault.

KM appealed that decision to the Court of Appeal


Case Law

In People (Director of Public Prosecutions) v Finnerty [1999] 4 I.R. 364 the Supreme Court held that the right to silence would be significantly eroded if a jury was invited to draw adverse inferences from an accused’s refusal to answer questions during investigation. In that case, Finnerty made no statement and had refused to answer all questions put to him. The Court set out principles for future cases:

(1) Where nothing of probative value has emerged as a result of such a detention, but it is thought desirable that the court should be aware that the defendant was so detained, the court should be simply informed that he was so detained, but that nothing of probative value emerged.

(2) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant, during the course of his detention, to answer any questions, be permitted.

(3) In the case of a trial before a jury, the trial judge in his charge should, in general, make no reference to the fact that the defendant refused to answer questions during the course of his detention.


Court of Appeal

The Court of Appeal (here) dismissed KM’s appeal. The CoA distinguished this case from Finnerty, stating:

There is a great deal of difference between saying “No comment” or “I don’t wish to say anything”, on the one hand, and saying, having already in fact commented, that “I have nothing to add to what I have said already”, on the other hand [25].


Supreme Court

Granting leave to appeal, The Court determined that KM had raised a point of law of general public importance which met the constitutional threshold for a further appeal.

Dr Vicky Conway provides a case comment on DPP v Doyle

vicky_conway_001Dr Vicky Conway of the Department of Law and Government at Dublin City University has commented on DPP v Doyle [2017] IESC 1.

This post was originally published on humanrights.ie.



The Supreme Court yesterday ruled (6 agreeing, though for different reasons, and 1 dissenting) that the constitutional right to reasonable access to a lawyer does not extend to a right to have a solicitor present during Garda interviews. In May 2014 the DPP had instructed gardaí to permit solicitors to attend interviews where requested, stemming from the fact that Irish and European jurisprudence and regulation was moving in that direction. There had not, at that point, been a ruling that there was such a right under the Irish Constitution, and Ireland has not opted into the EU Directive on Right of Access to a Lawyer in Criminal Proceedings. However, it had been strongly indicated in obiter statements in the case of DPP v Gormley and White that this was possible. The decision in Doyle indicates that Irish constitutional law has not reached that point, not yet at least.

The dissenting judgment of Justice McKechnie has not been posted online at the time of writing, but an initial reading of the five majority judgments indicates that while they are not willing to determine that such a right exists in this case, they can envisage a situation where that becomes the position in Irish law in the future.

In November 2008 Shane Geoghegan was murdered in Limerick, having been mistaken for a member of a criminal gang. Mr Barry Doyle was convicted of this murder on the basis of a confession he made while in garda custody in February 2009. The circumstances of the confession, in particular a concern as to inducements, and the fact that he did not have a lawyer present during the interview in which he made the admission, formed the grounds of this appeal. I will focus here solely on the issue of whether there is a right of presence of a lawyer.

Mr Doyle was detained for over 60 hours and spent over 20 hours being interviewed by gardaí. During this time he had some 40 minutes of consultation with his solicitor, no longer than 10 minutes in any instance. He was not denied access to his lawyer at any point and gardaí obliged and stopped interviews to facilitate consultations on request. He made a confession in the 15th interview, which formed the basis of this appeal.

Justice Charleton, with Justice Laffoy concurrning, offers perhaps the strongest resistance to the finding of such a right. Charleton J outlines the existing jurisprudence on this issue, which in Ireland has clearly indicated that a detainee has a right of reasonable access to a lawyer, which includes numerous consultations with solicitors but does not extend to their presence in interview. In doing so his focus is very much on the implications: a finding of a right would mean that any detention in breach of that right would be unlawful and so any evidence gathered during that detention would be excluded. In the instant case it would mean Barry Doyle’s conviction for the murder of Shane Geoghegan would be overturned, despite a voluntary confession.

Central to Charleton J’s resistance to find the existence of the right is a belief that there is a lack of jurisprudential support for such a move. Looking to jurisprudence from Europe and other jurisdictions Charleton concludes that “What is of importance is that there is no decision of the European Court of Human Rights stating that there must be a solicitor in the room during the time when a person is being questioned by police in relation to a crime.”

Many familiar with ECtHR law will be surprised by this conclusion. The decision in Salduz v Turkey (2008) is generally credited with having achieved exactly that. In that case the European Court of Human Rights found:

“that in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”

Justice Charleton does not feel that this requires the presence of a lawyer in the interview. The only precedent he can identify in support of the presence of lawyers in the US case of Miranda, where the provision of this right was justified as a requisite balance to address substantial concerns about police brutality, oppression and coercion:

 “In contrast to the situation described [in the case of Miranda] are the safeguards applicable from the moment of arrest in this jurisdiction that have been closely and carefully constructed over decades of experience. In contract too is the direct applicability of such rights… [the ruling in Miranda was] designed to lance a poisoned boil of secret compulsion which is utterly foreign to modern police methods.”

He then outlines the extensive safeguards provided to detainees in Ireland: they are informed about their rights when detained, there is a custody officer to ensure their rights are complied with and they have access to legal advice prior to questioning. Further, the video recording of interviews means that these are subject to judicial scrutiny.

Justice Charleton states “It cannot therefore be concluded that it is a necessary part of the right to a trial in due course of law under Article 38.1 of the Constitution that a lawyer should be present for the interviewing of a suspect in garda custody.” Justice Denham, in a shorter judgment, equally states that “the right is one of access to a lawyer, not of the presence of a lawyer during an interview.” She is satisfied that both constitutional and Convention rights have been met in the current case.

Justice MacMenamin, following a review of recent jurisprudence and noting the recently implemented EU Directive, finds that “I would now be prepared to recognise such a right under Article 38.1 in future cases”. His reasoning for not doing so in the current case is that he feels the appellant is seeking a ‘retrospective recognition and application of a then unrecognised constitutional right’ and that this ‘proposition stands logic on it’s head.’

As regards the decision of Salduz, Justice MacMenamin distinguishes the case on the facts as the detainee in that case was a 16 year old, who was beaten by police in custody. The fact that the current applicant was not vulnerable, was not mistreated in such ways, and had continued consultation access to his lawyer, distinguishes it from that case.

Justice O’Malley appears similarly open to the finding of such a right but not in the current case. She finds there is “some strength in the argument that” the Irish decision in Gormely and White, combined with the decision in Salduz and the jurisprudence of other countries “could logically lead to a reconsideration of the decision in Lavery and to a ruling that the right to a fair trial implies a constitutional right to the presence of a solicitor during questioning.” She predicts that this is likely to arise soon in relation the inference from silence provisions, an indication that she sees this as the space where the solicitor’s presence in the interview might be of particular importance in the vindication of rights.  Ultimately she takes the rather unusual step of stating: “I do not believe that the instant case is an appropriate one in which to reach a definitive view on the matter and would prefer to reserve my position on it… “

Justice O’Donnell also finds that the right does not extend to the presence of the solicitor in garda interviews but it is clear in his judgment that he can foresee it becoming a part of the right in the future. He places particular relevance on the current decision for cases prior to May 2014, when solicitors were permitted to attend interviews, though recognises that for post 2014 cases there may be ramifications for a finding that there is a constitutional right.

He distinguishes Salduz as relating to a civil law system with early supervision of investigation by a magistrate so it cannot be said that it has been conclusively determined that the accused should have solicitor present in common law systems. This is a rather unusual way to distinguish European case law, particular given that the earlier judicial involvement in civil systems arguably means that they have greater safeguards than we do. Solicitor presence should therefore be a great imperative in Ireland.

He acknowledges that a clear finding of a constitutional right, a so called “bright-line rule” would bring ‘neatness, clarity and simplicity’ but then proceeds to outline many reasons why this cannot be done here. Having distinguished Salduz as he has, he feels, like Charleton J, that Miranda is the only precedent for such the appellant’s position. On this point he holds that in Ireland

“a lawyer’s presence is no longer necessary as an independent witness of events during questioning. It is doubtful that it can be said that the function of a lawyer is to provide moral support or indeed that anything in lawyers’ training qualifies them for such a role. Indeed the function of a lawyer is to provide legal advice…”

This is, in itself, arguable. It is less than a decade since the most damning report of the Morris Tribunal report on the treatment of suspects in custody. While much has certainly changed, it would seem a backward step to suggest that we should not be vigilant regarding the conduct of interviews. Further, as John Jackson has analysed in a recent article in the Modern Law Review (paywalled), the role of the defence lawyer is much broader than providing legal advice: the defence lawyer should protect the detainees rights, including the privilege against self-incrimination, prevent miscarriages of justice, fulfil the aims of Article 6 of the ECHR, perform a representational (rather than advisory) role in complex cases, give the suspect time to instruct their legal advisor in the preparation of a defence. In Dayana v Turkey the ECtHR stated:

“the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.”

There is a need in Ireland for a broader conceptualisation of the role of the lawyer and this may be key to future development of the law in this area.

Justice O’Donnell continues, stating that if the Court found that there was such a right, the implication would be that the statement in this case, which was voluntarily given, should be excluded. He notes that if the Court thought this was the only way to achieve fair garda questioning it would do so but that was not the case in this instances.  He concurs with his colleague Justice O’Malley that cases involving inferences from silence present certain complexities and that he “recognise[s] the reality that it may in due course be simply easier and neater to provide for presence by a lawyer as the best guarantee that such provisions are operated properly and fairly.”


As regards the existence of a right to have a solicitor present in the garda interview, while Justice Charleton, Laffoy J concurring, is clear it does not form part of the right of access to a lawyer, there is great scope in the other judgments for a different interpretation in the future. We know from reference by others to his judgment that Justice MacKechnie believes the right currently exist. Justice MacMenamin believes it should exist in the future. Justices O’Donnell and O’Malley both explicitly reference inference from silence cases as ones where it might be explored further. A close reading of these judgments makes it clear that this is not a closed issue in the Irish Supreme Court.

Further, the current scheme whereby solicitors are permitted to attend interviews is relied upon substantively in the judgments. It is noted in each judgment. Justice Denham describes it as an ‘important factor’ in her judgment and a presumption that it is now the established practice seemed to underlie some of O’Donnell and O’Malley JJ’s comments. A valid question in light of the headline decision of the judgment is whether the DPP would now rescind the permission she had granted for solicitors to attend interviews, however, the judicial commentary on the scheme is supportive and seems to assume its continuation. It would, I contend, be difficult for the DPP to make that decision, particularly in light of the fact that she has permitted it for the past two and a half years when equally there was no established right. That has not changed.

I should also highlight the way in which the decision in Salduz has been discussed in the judgments. This decision has been distinguished in the current case by both Justices MacMenamin (on vulnerability grounds) and Justice O’Donnell (due to the nature of the legal system). Justice Charleton uses it only support of a statement that no general right has been found by the court, which is a somewhat unusual interpretation of the above. I contend that these are problematic grounds for not applying the test outlined in that case, which has been repeatedly applied as the appropriate standard in subsequent ECtHR cases.

Finally, it should not go with comment that, on the face of what is outlined in the judgments, questions should be asked about the standard of legal advice provided in this case. Forty minutes of advice over 60 hours of detention for a murder charge seems, without further detail, inadequate. Since that particular detention the context has changed and solicitors now attend interviews as well as consultations. The SUPRALAT project, of which I am a member, is undertaking the first training of solicitors in Ireland in relation attending garda interviews and has been accredited by the Law Society Professional Training unit. Such training is essential to ensure effective defence in the garda station.

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