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 Rattigan: Statutory changes to rules of evidence can apply in any trial after commencement of Act

In Director of Public Prosecutions v Rattigan, the Supreme Court unanimously held that s 16 of the Criminal Justice Act 2006 “does not breach the principle against retrospectivity since it brought about a change in the rules of evidence that could only apply to trials taking place after the Act came into force”. The Court split 3/2 on the issue of whether the trial judge’s concluding remarks to the jury reflected his personal opinion and risked influenced the jury. The majority held that he did and allowed Rattigan’s appeal.


S s 16 of the Criminal Justice Act 2006

S 16 (here) permits a trial judge to admit statements made outside of court into evidence in defined circumstances; such as, where a witness’s evidence in court contradicts or differs from their statement made prior to trial.



Declan Gavin was stabbed to death in 2001. Witness statements identified Rattigan as the murderer. The investigating gardai sent their file to the DPP in March 2002. In September 2003, the DPP ordered that Rattigan be arrested and charged with Gavin’s murder. The District Court ordered his detention. But after seven appearances where the DPP failed to serve the book of evidence, the District Court struck out proceedings.

In 2005, the DPP again ordered that Rattigan be arrested and charged with the same offence. Rattigan brought judicial review proceedings seeking to prohibit his trial on grounds of delay. The High Court refused that application in 2006. In 2008, the Supreme Court held that there was culpable and unjustified delay by the DPP. But found that Rattigan had not demonstrated any real risk of an unfair trial and refused his appeal.

In early 2009, the first trial collapsed. In December that year a jury convicted Rattigan of murdering Declan Gavin. Rattigan appealed to the Court of Criminal Appeal, challenging the legality of the trial judge permitting the DPP to avail of s 16 of the 2006 Act and the legality of the judge’s concluding remarks to the jury. The Court of Criminal Appeal dismissed Rattigan’s appeal on both grounds but certified a question of law of exceptional public importance to the Spreme Court:

Does s. 16 of the Criminal Justice Act 2006 apply to statements of evidence made prior to the coming into force of the said Act?


Supreme Court

Rattigan argued that s 16 could not act retrospectively to statements made before the coming into force of the 2006 Act. But even if it could, the DPP should not be allowed in this case to benefit from that office’s culpable delay in prosecution by availing of a statutory development in the law on the admissibility of evidence which came into force during that unjustified period of delay. The Court also allowed argument on the issue of the trial judge’s direction to the jury.

O’Malley J wrote the majority judgment. She agreed with the Court of Criminal Appeal’s analysis that the law on retrospectivity applies to changes to substantive law and not to the rules of evidence; and its rejection of Rattigan’s argument that there is no clear distinction between substantive and procedural law. Rattigan had argued that that distinction is a matter of degree. The more serious the right affected, the more reluctant a trial judge should be to draw that distinction. The Court of Criminal Appeal rejected that test as vague and unpredictable. O’Malley J did also. And she rejected Rattigan’s grounds of unfairness due to delay, as he had not identified any right affected by the utilisation of s 16. But she gave this guidance:

45. However I think it worth noting here that the question of delay might well, in some circumstances, give good grounds for a refusal on the part of the trial judge. For example, in a case involving civilian witnesses it is always likely that oral evidence will differ to some degree from the statements of proposed evidence contained in the Book of Evidence. Because of the process by which they are taken, written statements may have a structure, coherence and attention to sequential detail that may be absent when the witness attempts to give a narrative in oral evidence. Any significant lapse of time between the making of the statement and the trial is capable of exacerbating this situation and of impairing the accuracy of a witness’s memory in any event. This is a normal feature of human life. In my view trial judges should be careful not to permit the prosecution, in cases where it has been responsible for delay, to “improve” its evidence by invoking the section in circumstances not within the intent of the legislature.

Dunne J agreed with the majority on the use of s 16, but dissented on the issue of the trial judge’s direction to the jury. Charleston J agreed with Dunne.

The trial judge gave the following conclusion to his summation:

“Essentially, the prosecution contend that Mr. Rattigan was the knife man. If they’re wrong about that, and the knife man was someone else, then there’s no doubt that Mr. Rattigan has been most unfortunate. He was unfortunate, in the first instance if he wasn’t the knife man, in leaving his finger marks in two places at the crime scene, and not just anywhere in the general vicinity of the crime scene, but on a door and window close to where a number of witnesses have put the knife man. It was unlucky that one of the marks was left in a red substance which had the appearance of blood, unlucky in that if the red substance was not blood at all or if it was blood, that it was blood from somebody else at the scene, that it should be located four inches away from a point where a swab was taken, which was established to match that – the DNA profile matched the blood of Mr. Gavin. He was unlucky that the knife man used a Nissan Micra motorcar similar to a Nissan Micra owned and driven by a friend of his, unlucky that the vehicle belonging to his friend was thought to have been seen outside the shopping centre and that the vehicle was burnt out a few hours later, unlucky that those involved in the incident happened to use the same term of abuse – “rats” – as a term of abuse that he used when interviewed by the gardaí, though you may take the view that it’s a term that probably isn’t confined to any one individual, and that there will be a particular section of the public for whom it is probably commonplace. Then, unlucky that he would compound his difficulties by telling lies and bringing even greater problems on himself, lies if you accept the fact that what he’s supposed to have said was in fact said, and that the prints on the window and the door are, in fact, his.

So, unlucky. However, there are people who are unlucky, and unusual coincidences do sometimes happen. Before you can convict in this case, you have to be satisfied beyond a reasonable doubt that the combination of these matters is not a coincidence. You have to be satisfied indeed that the suggestion of coincidence amounts to an affront or an insult to your intelligence.”

Dunne J and Charleton J agreed with O’Donnell J’s statement in the Court of Criminal Appeal:

At the end of this lengthy period there was however a large number of individual pieces of evidence which required to be gathered and synthesised. When that exercise was done certain observations might readily be made about the logical conclusions that were open if that evidence was accepted – and it was not seriously challenged. In this case the judge did not comment on the veracity of any witness, or express his own views on some contested issue of fact which lay readily and properly within the expertise of the jury. Instead he made certain observations on the logic of the existing evidence with which it must be said it is difficult to argue. The particular passage is, as the applicant submitted, both clearly and powerfully expressed, but clarity of expression and analysis is not necessarily a vice in a trial judge attempting to give assistance to the jury by way of an oral presentation which will be heard only once by the jury. Ultimately this is a matter for the judgment of this Court. Taken in the overall context of this case, the Court does not consider that the charge to the jury can be said to be unbalanced or that the trial judge commented in a fashion which was inappropriate for a trial judge. Accordingly, these grounds of appeal fail.

But the three judge majority of the Supreme Court found that the trial judge’s comments “went further than were desirable” and may have influenced members of the jury.

DPP v Wilson: DNA evidence on its own is sufficient, in principle, to prove guilt to the criminal standard

Here, The Supreme Court held that:

Gardaí did not breach Wilson’s constitutional right to privacy by collecting his discarded cigarette butts to extract a DNA sample.

“There is no reason in principle why a jury may not be satisfied to the criminal standard of the identity of the perpetrator of a crime where the only evidence of such identity derives from DNA profiling” [9].

The trial judge was not obliged to warn the jury of  a danger in convicting an accused based solely on DNA evidence.


In 2010, Wilson, the appellant, shot and killed Daniel Gaynor on a public road in Dublin. As he ran away from the scene, Wilson discarded a revolver, a cotton glove, a peak cap and a hoodie. On forensic analysis, firearm residue was found on the glove, the sleeve of the hoodie and on the cap. And a DNA sample was also recovered. Gardai suspected Wilson, based on confidential information, and arrested him for questioning. Wilson refused to provide a DNA sample voluntarily. The detectives in charge of the investigation swept any area of the yard, photographed it and allowed Wilson outside to smoke a number of cigarettes. Wilson discarded the cigarette butts on the yard.  The detectives then collected those cigarette butts for DNA analysis. Wilson’s DNA from the cigarette butts matched the sample from the clothing recovered from the scene of the murder.


A jury convicted Wilson of murder based solely on the DNA evidence. The Court of Criminal Appeal upheld that conviction but certified a question for appeal to the Supreme Court:

Is evidence of DNA samples taken from cigarette butts used and discarded by the detained person whilst in custody admissible evidence at his trial?

During case management, the Court granted leave on two additional questions:

When the sole evidence against an accused person is DNA evidence, is such sufficient to convict an accused or upon the prosecution case being closed, should a judge withdraw a case from the jury upon an application of the defence that there was no case to answer?

Should it be mandatory for a trial judge to warn a jury of the dangers of convicting an accused in circumstances where the sole evidence against the accused is DNA evidence alone?


Supreme Court

A three judge panel heard the case and issued a joint judgment.



The Court acknowledged that any accused in custody is in a vulnerable position and dependent on the Gardaí for the provision of facilities. “It is partly for that reason that the courts will give extra scrutiny to events occurring during detention, to ensure that the rights of a vulnerable person are not breached” [4.30] . But that does not cause the substantive content of a person’s rights in custody to rise above the rights of a person at liberty [4.31].

Finding that the Gardaí could collect the cigarette butts, the Court stated:

4.35 Where the detained person indicated an intention to resist the taking of the sample, and the Gardaí had an alternative source lawfully in their hands, it would not accord with principle to elevate the privacy rights of the person in custody – the whole purpose of which is investigatory – beyond those of either a person who complied with the statutory regime or a person at liberty. Since it is accepted that the latter would have no cause for complaint if his cigarette butts were picked up in a public place, or in an authorised search of his premises, it is impossible to hold that the rights of the detained person are breached by the same procedure in respect of things that he discards. Equally, it would clearly be contrary to public policy to hold that the Gardaí were in the circumstances constrained to use force, thereby risking injury to both the suspect and themselves, and that a failure to use force rendered the picking up of the discarded items unlawful.


Probity of the evidence

Dr O’Sullivan, the expert witness, stated that, without testing every human alive, it is not possible to rule out that any two humans could share the same DNA profile. But the likelihood of any two people having a DNA match is one in a thousand billion. That reduces to one in 27,400 in the case of siblings.


Prosecutor’s fallacy

The prosecutor’s fallacy is the confusion of two different concepts: the likelihood that two randomly chosen individuals could share a set of genetic characteristics and the likelihood that any other person shares the genetic characteristics as an accused person.

To demonstrate the issues this raises, the judgment gives an example involving a crime committed by a male with a genetic characteristic shared by one in every one thousand people. That would mean that there would only be approximately 400 males in the Dublin area who share that genetic characteristic. But a suspect with that characteristic would not be any more likely to be guilty than the other 399. And guilt beyond a reasonable doubt could not be sustained on evidence that an accused held that genetic characteristic.

In this case, though, the trial court was dealing with much larger figures than one in one thousand. And the Court compared DNA evidence to fingerprint evidence, on which a conviction can be solely based, but on which no statistical evidence as to reliability compared to DNA evidence is considered [5.48]. The Court also considered comparisons to witness testimony which can be fallible, or even false, and for which no consideration as to statistical reliability is given [5.52].

Advising that a jury should consider the manner of the collection and analysis of DNA evidence, the Court stated:

5.59 We would wish to emphasise, therefore, that there are a whole range of factors which need to be assessed before determining whether a so-called “cold hit” DNA case, where there is no other evidence of identity beyond the DNA profiling evidence, can properly provide sufficient evidence to prove identity to the criminal standard. However, where the other elements of the equation are robust, it does not seem to us that the fact that there may be a highly theoretical and tiny mathematical possibility of a false positive can, in and of itself, require that the case be withdrawn from the jury. To take that view would be to suggest that we should be happy to take remote risks with evidence which is not capable of detailed statistical analysis but not happy to take potentially even more remote risks with evidence which may, in fact, be a lot more probative but is capable of statistical analysis to demonstrate an extremely small and very remote possibility of a false positive.


Direction to Jury

While providing general guidelines on directions, the Court rejected Wilson’s claim that the trial judge should have warned the jury about convicting solely on the DNA evidence. The Court held:

For the reasons set out earlier, we do not consider that this ground is well made out for we do not consider, having regard to the general principles by reference to which it has been determined that warnings are required in other cases, that a warning is required in a case where the only evidence of identity is confined to DNA profiling [9.4].

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.

New Appeal: Re s 4 of the Prevention of Corruption Act 1906 to 2001

In this determination, DPP v Forsey, the Supreme Court granted Forsey leave to appeal against his conviction for corruption while he was an elected member of Dungarvan UDC. The Court determined that it is necessary in the public interest to clarify two points of law:


1. Is the burden of proof against the presumption of corruption contained in s 4 of the Prevention of Corruption Act 1906 to 2001 a reasonable doubt or the balance of probabilities?

2. Should the jury consider the scope of the accused’s position or office (their pull) in considering if corruption took place?



S 4 of the Prevention of Corruption Act 1906 to 2001 (here) creates a presumption of corruption by a public office holder who receives a gift, consideration or advantage from someone with an interest in the discharge of the office holder’s function.



In 2006, Forsey lobbied members of Waterford County Council to have land close to Dungarvan, belonging to a property developer (Ryan), rezoned for development. When he was unsuccessful, he sought to have that land brought under the control of Dungarvan UDC. During the same period Ryan made three payments to Forsey totaling €80,000. The two men made a written loan agreement relating to that money.


In 2012, a jury in Waterford Circuit Court found Forsey guilty of corruption for receiving the €80,000 in return for his endeavours to have Ryan’s land rezoned. Forsey appealed his conviction to the Court of Appeal. His main grounds was that the trial judge misdirected the jury that the burden lay with him to show that Ryan’s payment was not corrupt and that the standard of proof was on the balance of probability. Secondly, Forsey questioned whether the presumption of corruption imposed conflicted with the Constitution or the European Convention on Human Rights. And thirdly, Forsey argued that the trial judge should have directed the jury to consider the scope of his office and the extent of the influence that it is alleged that Ryan sought to purchase (whether Forsey had the pull to secure rezoning was an essential element of the crime).


In 2016 the Court of Appeal (here) dismissed Forsey’s appeal on all grounds. He applied to the Supreme Court for one further appeal. The Court determined that Forsey had raised issues of general interest and it is in the public interest that those issues be resolved. The Court certified three questions:

1. Whether, in light of the facts, including that there was no requisition, the applicant is now entitled to revisit the points sought to be argued?

2. What is the scope of a person’s office or position in the consideration of the correct interpretation of the offence of corruption?

3. Are the presumptions contained in s 4 of the Act legal, as opposed to evidential burdens.

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”.

Donegal Investment v Danbywiske: Trial judge must explain reasons for disregarding expert evidence

Here, the Supreme Court (Clarke J writing) held that the High Court trial judge (McGovern J) erred by not expressly explaining his reasoning for adopting a different approach for the valuation of shares to that proposed by expert evidence by either parties to the dispute.



The background to these proceedings are explained in the Court of Appeal judgment (here). The parties are shareholders in a holding company, Elst, which owns Monaghan Mushrooms. Donegal issued High Court proceedings under s 205 of the Companies Act (shareholder oppression). The High Court ordered that Danbywiske purchase Donegal’s shares.

In the High Court (here), McGovern J heard expert evidence from both sides but chose a different method of valuation from either of the proposed methods. He ordered that Danbywiske pay Donegal €30.6 million for its 30% share in Elst.

The Court of Appeal overturned that valuation and ordered that the case be returned to the High Court for a determination of value. The CoA held that McGovern had not adequately explained his reasons for reaching his determination on value. Danbywiske applied to the Supreme Court for leave to appeal that decision.

The Supreme Court granted leave on three questions:

(a) Whether the principles set out in Hay v O’Grady as to the limits of an appellate court’s review of fact apply both generally and to expert testimony and, as such, constitute a complete code which cannot be departed from?

(b) Whether these principles were departed from in the rulings of the Court of Appeal on the findings of fact in the High Court relating to share valuation?

(c) Does the costs order of the Court of Appeal require to be reviewed?

Dismissing the appeal the Supreme Court stated:

9.1 For the reasons set out in this judgment I am satisfied that it is open to a trial judge to adopt a methodology or approach which differs from each of the approaches advocated in the expert testimony tendered by the parties. However, where a trial judge is persuaded to adopt a different approach, it is necessary for the judge to structure the judgment in such a way that either expressly explains why the approach adopted is considered to be appropriate notwithstanding the expert evidence tendered or that, at a minimum, the reasoning of the trial judge in that regard can be inferred with some reasonable level of confidence.

9.2 There is even some doubt as to the precise approach actually adopted by the trial judge in this case. But even if the approach actually adopted can be inferred to a sufficient level of confidence, I am satisfied that the Court of Appeal was correct to hold that the reasons why the trial judge utilised the approach which he did are neither clear from the judgment nor can safely be inferred.

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.

DPP v Doyle: Supreme Court’s Information Note

The Supreme Court issued the following Information Note to accompany the Court’s five written judgments, which are available on the Courts Services website.

18th January 2017

The Supreme Court

DPP v. Barry Doyle

Information Note

1. Barry Doyle, the accused/appellant, referred to as “the appellant”, was granted leave to appeal to this Court from the decision of the Court of Appeal of the 8th June, 2015: [2015] IESCDET 45. The Director of Public Prosecutions, the prosecutor/respondent, is referred to as “the DPP”.

2. The issues upon which leave to appeal was granted were:

(i) Whether or not the appellant was, in the circumstances of this case, entitled to consult with a solicitor, and have a solicitor present, prior to and during the 15th interview with the Garda Síochána, during which admissions were alleged to have been made. This raises the question of whether the right to have a solicitor present during questioning is a matter of right of the detained person, or a matter of concession by the Garda Síochána.

This will be referred to as “the presence of a solicitor” issue.

(ii) Whether the appellant, in all the circumstances, including that he was convicted in the Central Criminal Court on the 15th February, 2012, and the decision of the Supreme Court in DPP v. Damache was delivered on the 23rd February, 2012, can rely on that decision on his appeal.

This will be referred to as “the Damache” issue.

(iii) Whether the matters set out in the appellant’s application under the heading “Relevant facts considered not to be in dispute”, or any of them, constituted threats or inducements made to the appellant and calculated to extract a confession from him. This is a matter not decided by the Court of trial or the Court of Appeal. Secondly, if they do constitute such threats or inducements, whether their effect had “dissipated” or “worn off” by the time of the admissions relied upon by the State, as held by the trial judge; and whether or not there was any evidence on which it could have been determined that the effect of the said threats or inducements (if any) had “dissipated” or “worn off” by the time of the alleged admissions.

This will be referred to as “the threats and inducement”   issues.

3. On the first issue, as to whether the appellant was entitled to have a solicitor present during the 15th Interview, 6 members of the Court would dismiss the appeal, although on different bases; a majority of the Court (Denham C.J., O’Donnell J., Laffoy J. and Charleton J.) hold that the constitutional right is to have access to legal advice, and that it was not required that the appellant, in the circumstances of the case, have a solicitor present during the 15th Interview.

4. MacMenamin J. concurring, holds in principle that the Constitution requires in future that a lawyer be present for the interrogation. But, applying DPP v J.C. [2015] IESC 31, he holds that the admissions would not be excluded. He does not consider that the right asserted is recognised in ECHR jurisprudence.

5. O’Malley J. reserved her position as to the existence of a constitutional right, on the basis that it does not properly arise as an issue on the facts of this case.

6. McKechnie J. dissenting, both as to reasons and result, holds that the presence of a lawyer is required under the Constitution and would allow this ground of appeal. However, in light of his conclusion on the third issue, he did not find it necessary to determine the consequences of a breach of such a right in this case.

7. On the second issue, the Damache issue, the Court held that the appellant, in all the circumstances, could not rely on the decision in DPP v Damache [2012] 2 I.R. 266, on his appeal.

8. On the third issue, the issue of threats or inducements, the majority of the Court dismiss this ground of appeal.

9. McKechnie J., dissenting, holds that each of the three limbs of the test in People (DPP) v. McCann [1998] 4 I.R. 397 has been satisfied and, accordingly, that the admissions made result from an inducement. As a result, the admissions so made were inadmissible and on such basis he would order a retrial.

10. For the reasons given, the Court dismisses the appeal.

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