93 / 346
GAZETTE
APRIL 1983
The People v. Pringle, McCann
and O'Shea
Recent developments in Criminal Law
Part 2
by
Eamonn G. Hall, B.A., LL.B., H.D.E., Solicitor
Patrick McCann
Patrick McCann had been arrested shortly after 9.00
a.m. on 9th July 1980 at Frenchpark, Co. Roscommon. He
had been informed that he was being arrested pursuant to
Section 30 of the Offences Against the State Act 1939.
Within 24 hours of his arrest an extension order was made.
On the 11th July 1980 he was brought to the Special
Criminal Court. He was charged with robbery of the Bank
of Ireland in Ballaghadereen and with capital murder of
Garda Byrne. He was remanded in custody to the Special
Criminal Court on the 25th July 1980. On the 25th July
1980, Counsel for the State applied to have the charges
withdrawn because of a typographic error and also applied
to have new charges preferred in their place. Counsel for
the accused urged that the accused was entitled to be
released. Liberty was given by the Special Criminal Court
to the prosecution to withdraw the charges and at the same
time prefer other charges. Counsel for the applicant
argued,
inter alia
, that when the charges were withdrawn
and fresh charges preferred on the same date that the
applicant was not lawfully before the Court but was 'in the
illegal custody or detention of the Court'.
The Court of Criminal Appeal stated that there was
nothing in the terms or the provisions of the 1939 Act
which could be interpreted as "confining the method of
lawfully bringing before the Special Criminal Court a
person to be tried by it to an arrest under Section 30 or
pursuant to a warrant of the Court . . .
The Court considered that what was involved was a
substitution of two charges for two charges previously
preferred. This was within the "inherent jurisdiction of
the Court". The Court stated the procedure adopted did
not "conceivably constitute any injustice, disadvantage or
prejudice to the applicant."
Three further grounds of appeal were argued on behalf
of McCann in the Court of Criminal Appeal. They were (a)
that the questioning of the applicant during his period of
detention in Frenchpark Garda Station was oppressive by
reason of its length; (b) that the applicant had been
intentionally deprived of his constitutional right to the
presence of his solicitor while he was being interrogated by
the Gardai and, (c) verbal statements were obtained in
breach of Rule 9 of the Judges' Rules - in that the inter-
viewing Garda Sergeant did not make a note of the
statements at the time they were made by the applicant and
they were not read over until after the conclusion of all the
interviews during which the statements were made.
The Court of Trial had been satisfied that the
questioning of the applicant had been conducted "in a fair
and reasonable manner and was not of such a nature as
would render any reply thereto as other than voluntary."
Right of person in custody to a Solicitor
The applicant had been permitted three interviews with
his legal advisers. All these interviews were in private.
The applicant did not make any further request to
consult with a solicitor. However, before returning to
Dublin, his solicitor sought a further interview with his
client. The Superintendent in charge had issued a directive
that no further interviews would be permitted without his
authority. The Superintendent had gone to attend the
funeral of the deceased Gardai. He could not be contacted.
The solicitor then wrote a short letter to the accused —
but one of the interviewing Gardai would not accept
delivery of the letter. The Special Criminal Court
considered that the applicant had been afforded reasonable
access to his solicitor in accordance with his constitutional
rights and that the direction of the Superintendent did not
amount to a deprivation of the accused's constitutional
rights.
The Special Criminal Court was also satisfied that all the
requirements of the Judges' Rules were complied with in
relation to the applicant. The Court of Criminal Appeal
was satisfied that the findings of fact by the Court of Trial
were the only findings of fact available on the evidence
adduced.
The Court of Criminal Appeal then considered whether
any of the inferences drawn by the Special Criminal Court
from the facts found were "perverse and inappropriate" in
the legal sense and, whether any principles of law applied
were erroneous.
The Court then considered the submission on behalf of
Counsel for the applicant that the applicant while in
detention and while being interrogated by the Garda
Síochána had a constitutional right to have his lawyer
present at any interview and that he should be informed of
that right and unless he waived it, he should be afforded
that right.
Dealing with this issue of the right to services of a
solicitor while in custody, the Court of Criminal Appeal in
its judgment quoted from the judgment of the same Court
in the
People v.
Farrelf
1
.
"All these judgments lay emphasis on the constitutional
duty of the Court undertaking the trial of a person
charged with a criminal offence to be vigilant to ensure
the trial is in all respects fair and just. The several
judgments give substantial guidance as to the standards
of fairness under the predominant concept of justice to
be observed in relation to the particular circumstances
of the person appearing before the Court. But none of
the judgments go so far as to declare that every person
under suspicion of, or faced with a charge of a criminal
85