Supporting Documents:

THE SUPREME COURT

DETERMINATION

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

BARRY DOYLE

RESULT: The Court grants leave to Barry Doyle to appeal to this Court from the Court of Appeal on the issues identified in this determination.

REASONS GIVEN:

1. This determination relates to an application brought by Barry Doyle, the applicant, referred to as “the applicant”, in which he seeks leave to appeal to this Court from the decision of the Court of Appeal delivered on the 8th June, 2015.

2. The Director of Public Prosecutions is the respondent, and is referred to as “the DPP”.

3. This Court has jurisdiction to hear an appeal from the Court of Appeal in the circumstances described in Article 34.5.3° of the Constitution, which states:-

“3° The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that –

i the decision involves a matter of general public importance, or

ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.”

5. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either “a matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal” to this Court.

6. The statutory framework for the exercise of the right to apply to this Court for such leave is to be found in the Court of Appeal Act, 2014, and in particular the provisions of s. 44 of that Act which inserts a new s. 7 into the Courts (Supplemental Provisions) Act, 1961. The Rules of Court are set out in the amended Order 58.

7. The Constitution has retained the entitlement of one appeal as of right from the High Court to the Court of Appeal, subject to express exclusions or regulation by statute. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that Court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to this Court.

8. In this application the applicant seeks to appeal from parts of the decision of the Court of Appeal. While the applicant set out “facts not considered to be in dispute”, the DPP did not agree with that analysis.

9. The reasons given by the applicant as to why this Court should grant leave to appeal include the following:-

(i) The fair administration of justice requires that the Court ensures that any confessions obtained while an accused is in Garda custody are obtained voluntarily.

(ii) An accused has a right to reasonable access to a solicitor while in custody but the extent of that right has not been precisely defined.

(iii) The safety of the conviction in the present case depends on the lawfulness of the interviews conducted in the absence of a solicitor. Thus the query is raised as to whether denial of access during interview infringes the detained person’s constitutional rights at any subsequent trial.

(iv) Ground number 27 in the appeal to the Court of Appeal challenged the entry into the applicant’s home on the 24th February, 2009, on foot of a search warrant issued under s. 29 of the Offences Against the State Act, 1939. The decision in Damache v. DPP [2012] IESC 11, was delivered eight days after the trial of the applicant. The applicant submitted on appeal but not at trial that the warrant issued was unlawful, and that what followed should fail. It was contended on appeal, although not at trial, that admissions during this period of detention should be excluded. The Court of Appeal did not consider this ground as the applicant did not make the issue during the trial.

(i) The question of the voluntariness of the admissions made during interview 15 and subsequent interviews was primarily a question of fact and the learned trial judge applied the correct legal principles to his assessment of those facts.

(ii) The applicant had reasonable access to his solicitor and before the making of admissions in interview 15 he had approximately 25 minutes with his solicitor. Also the Court of Appeal held in paragraph 9 of its judgment:

“Then interview 15 began, but it was interrupted after a few minutes by a phone call from the solicitor who wanted to speak with his client, which then happened. Thereafter the interview recommenced. Mr. Doyle now answered the questions put to him regarding his role and confirmed that he was the person who shot Shane Geoghegan.”
(iii) Neither the applicant nor his solicitor made any request that the solicitor be permitted to be present in the interviews and in particular interview 15.

(iv) As regards the Damache point, the Court of Appeal held correctly on the evidence that the applicant did not raise the issue of lawfulness of his arrest and subsequent detention in the course of the trial. He did not demur when the lawfulness of the arrest was asserted (paragraphs 157 and 158 of the judgment), nor did the applicant challenge the lawfulness of the search warrant at the trial.

12. The Court of Appeal found no error in the judgment of the Central Criminal Court. The issues of fact were considered carefully by the Court of Appeal. This is not an appellate court to correct error, even if any were thought to exist.

13. However, the applicant has raised three points of general public importance i.e. matters of importance to the applicant and which would also be important to the public in general. The Court is satisfied that the decision of the Court of Appeal involved three matters of general public importance that should be certified for appeal to this Court

14. The issues are:-

(i) Whether or not the applicant 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.

(ii) Whether the applicant, 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.

(iii) Whether the matters set out in the applicant’s application under the heading “Relevant facts considered not to be in dispute”, or any of them, constituted threats or inducements made to the applicant 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.

And it is hereby so ordered accordingly.