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GAZETTE
APRIL 1983
offence has a constitutional right to have the services of
a solicitor and doctor before being questioned by an
investigating Garda. Such rights as are adumbrated in
the judgments cited are all related to the particular
circumstances of the person whose rights require
protection and vindication."
The judgment continued: "This Court accepts and is
prepared to follow this statement of the law as contained
in the
People v. Farrell
and an inevitable conclusion
from it is that if a persion has not got a constitutional
right to have the services of a solicitor before being
questioned by an investigating Garda neither has he got
a constitutional right to the presence of a solicitor while
any interrogation is being carried out."
The Court of Criminal Appeal was satisfied, as had been
established, that a person in lawful custody was, however,
entitled to reasonable access to his lawyer or solicitor.
The Court stated that it was also satisfied, as had been
decided in the case of
State (Harrington) v. The Com-
missioners of the Garda Síochána
1 ft
, that the right of access
of a person in custody to a solicitor extends to a case where
any person "bona fide" interested on his behalf seeks the
arrangement for such a meeting.
Here there was no blanket refusal to grant access to a
solicitor. The request came from the solicitor himself and
the decision of the Chief Superintendent was a decision
postponing access only. The Court of Criminal Appeal was
satisfied that access of the accused to his solicitor during
his detention had been reasonable. The Court concluded
that the detention, therefore, was not tainted with illegality
arising from a refusal of such access.
Length of Questioning
The Court considered an additional ground of appeal,
that the questioning of the applicant was oppressive by
reason of its length. The Court of Criminal Appeal
accepted the findings of the Special Criminal Court that
the questioning was at all times conducted in a fair and
reasonable manner.
Judges' Rules
The facts proved before the Special Criminal Court
were that a number of statements were made by the
accused to a Detective Sergeant. After several interviews,
the Detective Sergeant made a note of these statements in
his notebook. Later, after further interviews, the Detective
Sergeant made a note of these interviews and read over the
entire of the notes to be accused. The accused agreed they
were correct. However, the accused would not sign the
notes. It was argued by Counsel that Rule 9 of the Judges'
Rules was broken.
Rule 9 states:
"Any statement made in accordance with the above
Rules should/ whenever possible be taken down in
writing and signed by the person making it after it has
been read to him and he has been invited to make any
corrections he may wish."
The Court of Criminal Appeal stated that they were
unable to find any judicial decision dealing with the
interpretation of the Rule relating to the time at which the
Statement should be taken down and the time it should be
read over to the accused. The Court stated that the proper
interpretation would seem to be found in a consideration of
"the purpose of the Rule". The Court considered that;
"the permissible time-lag between the making of a
statement, the recording of it and the reading over of it
must of necessity vary from case to case and in
particular be governed by the circumstances of each
case."
Here, there was evidence that the applicant did not
challenge the accuracy of what had been recorded, the
Court of Criminal Appeal was satisfied that the evidence
supported the decision of the Special Criminal Court that
the rule had been complied with. This additional ground of
appeal failed.
Some of the statements made by the accused were
summarised by the Court of Criminal Appeal as follows:
"I know I am in much trouble over this shooting than
ever before in my life. I know it is a capital charge and I
am afraid for my head."
and
"I will be satisfied getting away with 10 years to 12 years
over this."
There were other such statements. The Court of
Criminal Appeal was satisfied — having considered the
statements and the context in which they were made —
that there was not any construction or interpretation of
these statements consistent with the innocence of the
applicant which could reasonably have been entertained
by the Court of Trial.
Fingerprints
It was argued on behalf of the applicant McCann that
the evidence of the finger marks found on portable objects
— two maps — was inadequate to base a conviction. The
Court of Criminal Appeal stated that if a finger print found
on a portable object was the only evidence incriminating an
accused, this evidence was not of sufficient certainty to
justify a conviction. The Court, however, stated in relation
to the interpretation of the statements made by the
applicant and in relation to the issue as to whether they
were truthful, then evidence relating to the fingerprints
was probative.
The Court of Criminal Appeal considered that the
verdict and conviction against the applicant could not be
interfered with.
His application for leave to appeal was refused.
Colm O'Shea
The applicant Colm O' Shea was found by four members
of the Garda Síochána on a roadway in a forest. There was
evidence that he admitted to one of the Gardai that he was
involved in the bank raid at Ballaghadereen that day. He
also said he had been shot. O'Shea was then taken to
Galway Regional Hospital for treatment. When he left the
hospital seven days later he was arrested under Section 30
of the Offences Against the State Act 1939, taken in
custody to Eglinton Street Garda Station, Galway and
later brought to Dublin to a hearing of the High Court. He
was then transferred to the Bridewell Garda Station.
While he was in the Bridewell he was taken ill and was
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