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GAZETTE
JULY-AUGUST 1979
innocent or not, who is suspected, not to answer
questions or make any statement, definitely helps the
guilty to get off but does not always help to clear the
innocent of suspicion, can heighten die suspicion against
them, does not relieve them from being interrogated and,
while it may prevent them from being charged or
convicted in Court, it very often leaves them convicted
among their neighbours and in the eyes of many local
people. If a genuinely innocent person either on his own
or through his solicitor were to co-operate with us, we will
do everything in our power to help establish his innocence
as quickly as possible; save him from embarrassment by
neighbours; save him the anxiety of awaiting a Court trial
which may acquit him but does not clear him in local
opinion. Such a system would be a much greater
safeguard for the wrongly suspected innocent, would
relieve them of anxiety much quicker and would save us
considerable waste of time and effort which we could use
to concentrate on the real culprits.
The law on questioning those whom we know were
involved or whom we strongly suspect is rather complex.
The first of the Judges Rules authorises questioning —
'When a police officer is endeavouring to discover the
author of a crime, there is no objection to his putting
questions in respect thereof to any person whether
suspected or not, from whom he thinks that useful
information may be obtained'. But this questioning
cannot take place in a vacuum. It cannot be done at his
home because in most instances we won't be let in to the
house. It cannot be done at his place of work, if he has
any, and it cannot be don,e on the side of the street. He
cannot be brought to a Garda station unless he is
arrested. Contrary to the general belief we would prefer to
do this questioning at any place other than a Garda
Station because if it is done elsewhere we don't have to
caution the suspect until we have made up our minds to
charge him under Rule 2, but if he is taken to a Garda
Station he is deemed to be in custody and must be
cautioned before being asked any questions. In addition,
as soon as he is taken to a Garda Station he can ask to
have his solicitor notified. Practically all solicitors will
advise him not to answer any questions or make any
statement. The position is further complicated by the
ruling
Dunne
v.
Clinton
which states inter alia, 'It is the
duty of the police officer arresting him to take him with
reasonable expedition before a P.C., any question of time
necessary to investigate the offence, or to obtain evidence
upon which to found a charge is quite irrelevant'. This
decision which was somewhat dormant for a number of
years was re-activated by the decision in
The People
v.
Ronan Stenson
which stated, 'That the accused was not
brought before a P.C., Justice of the District Court or the
Special Court as soon as conveniently possible after his
a
rrest'. . . consequently the Court is of the opinion that at
the time he is alleged to have made the statement which
the prosecution seek to have admitted in evidence against
him, the accused was in unlawful custody'.
Whereas heretofore evidence could be given of articles
found as a result of a statement (even though such
statement was deemed inadmissible) but evidence
discovered consequent upon a person not being brought
speedily enough to a Court or as a result of a delay in
Permitting access to a solicitor or as a result of searching
the wrong house cannot be given as it is deemed
^constitutional.
In England, the New Judges Rules, as they are called,
permit the police to question a suspect, even in custody
without caution, until they have evidence for suspecting
that he committed an offence. After.being cautioned he
may be questioned until such time as he is charged.
These Rules are much less restrictive than ours,
especially when we take our Constitution and Case Law
into consideration yet they are regarded as too restrictive
by prominent people such as Sir John Foster Q.C., the
chairman of the International Commission of Jurists who
said, 'Innocent People must not be convicted, but these
rules go far beyond that . . . . they reflect the sporting
principles in English law under which the criminal must
not only be given a fair run, but an absurdly
advantageous system for the guilty, a system which
results in more guilty peisons remaining unpunished
should be changed'.
We would be delighted to be relieved of the
interrogation of suspects which is imbued with all sorts of
sinister connotations and results in allegations of torture,
misbehaviour and other excesses by the Gardai.
I want to make it absolutely clear that I condemn the
use of any form of threats, torture or violence by our
members and I have continually down the years warned
members not to use such tactics, not only because they
are legally and morally wrong, but also because every
investigator worthy of the name knows that they are
totally unproductive and ineffective.
No matter how correct our members' conduct is, the
fact that such interrogation must take place in private as
pointed out by the Supreme Court of the United States in
the Miranda case — 'The principle psychological factor
contributing to a successful interrogation is privacy, being
alone with the person under interrogation' — exposes our
members to allegations of brutality, threats and
oppression and leaves them vulnerable to staking their
credibility against the natural prejudices of others. If the
prosecution makes an allegation they must prove it but if
the defence makes allegations the prosecution must
disprove them. The investigation of such allegations is
subject to the same restrictive rules as any other criminal
investigation with the Garda suspect being aware of all
the tricks used by the hardened criminal to baulk an
investigation but if we do not succeed in getting sufficient
evidence we are open to the accusation that dog will not
eat dog.
Why continue a system to which all parties are so
vulnerable? It is time to give serious consideration to this
enormous and profound problem which needs to be
fundamentally and informatively re-examined, maybe on
the lines of the French Inquisitorial system. Perhaps the
s> stem could be altered so as to have a full disclosure of
all the facts where the prosecution and the defence would
not find themselves engaged in a full confrontation
searching for errors and proofs but rather in a genuine
effort to establish the truth. If they could combine, albeit
by their different ways, to extract the truth at every trial
this would ensure that the innocent are always acquitted
and the guilty convicted.
It is usually argued that because we have a very
sophisticated system of law here based on the adversary
system where the State must prove and satisfy the Jury
beyond reasonable doubt and the Defence is entitled to
make them do that, there is a grave danger that for the
purpose of dealing with an urgent pressing problem, if we
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