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GAZETTE
SEPTEMBER
1983
Confessions in Criminal Cases
— A Review
by
Vincent Crowley, Solicitor
I
N our courts it occurs frequently that the Prosecution
rests its case on confessions obtained from accused
persons and this should not obscure the fact that, in
addition, confessions are regularly features of cases where
there is a plea of guilty entered on behalf of the accused.
Generally, a solicitor is instructed in cases only after the
accused has been charged and quite often his client will
already have made a statement admitting the offence and
the solicitor may have no alternative but to advise his
client to plead guilty. Where they do not do so they will
have to challenge the admissibility and veracity of the
confession and hence the importance of the legal
principles which apply to confessions generally.
The Legal Principles
The most important and acknowledged principle is that
confessions must be voluntary and should be obtained in
accordance with the Judges' Rules. The full version of the
Judges' Rules as set forth in Appendix 'D' of the "Report
of the Committee to recommend certain safeguards for
persons in custody and for members of the Garda
Siochana" (PRL. 7158, 13th April 1978) are set out as an
appendix of this Article. (The "O'Brien Committee"
Report.) Secondly, though voluntary, the confession
must not have been obtained by a deliberate and
conscious violation of constitutional rights save where
there are extraordinary excusing circumstances
warranting such violation. Where a voluntary confession
is obtained contrary to the Judges' Rules or as a result of
illegal action it may be admitted at the discretion of the
trial judge, which discretion will be exercised having
regard to public policy based on a balancing of public
interest.
The following is a summary of the Judges' Rules, which
are now accepted as part of our law:
1. A person may be questioned provided he has not
been charged.
2. As soon as a police officer has reasonable grounds
for suspecting that the person being interrogated
has committed an offence he should administer a
caution.
3. A further caution should be administered when the
person is charged.
4. A statement made by a person in custody should be
written down at the same time as it is being given,
and an opportunity should be afforded to the
person for correcting, amending or rejecting the
statement.
5. Where there are two persons charged with the same
offence and the police officer wishes to draw the
attention of one of those charged to a statement by
someone else charged with the same offence he
should hand him a copy of the other person's
statement without saying or doing anything to
invite a reply, and a caution should be administered
if the person so desires to make a reply.
Persons other than police officers should comply
with these Rules.
Leading Cases
Two major decisions among others which underline
these principles are:—
The People (A.G.) -v- O'Brien
[1965] IR 142
The People (D.P.P.) -v- Shaw
[1982] IR 1
Walsh J. (Supreme Court), in
O'Brien's case
first
analysed the second principle that evidence must not have
been obtained by a deliberate and conscious violation of a
person's constitutional rights unless there are "extra-
ordinary excusing circumstances". This was agreed to by
all members of the Court except that the majority
preferred not to give examples of such circumstances
whereas Walsh J. recited three examples, namely;
(a) the need to prevent an imminent destruction of
vital evidence;
or (b) the need to rescue a victim in peril;
or (c) the seizure of evidence obtained in the course of
and incidental to a lawful arrest even though the
premises on which the arrest is made have been
entered without a valid search warrant.
These examples did not purport to be exhaustive and
were simply illustrative.
Walsh J. went on to say ( [1965] IR at p. 170):—
"In my view evidence obtained in deliberate
conscious breach of the constitutional rights of an
accused person should, save in excusable circum-
stances outlined above, be absolutely inadmissible.
It follows therefore that evidence obtained without
a deliberate and conscious violation of the accused's
rights is not excusable by reason only of the
violation of his constitutional right."
The only matter of clear dissent between the members
of the Court in
O'Brien's case
was that four of the five-
man Court decided that evidence obtained illegally could
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