Gardai

Dolly Mapp was a formidable woman. When the cops of Cleveland Ohio arrived at her door, in the early 1960’s or thereabouts, seeking a person in her house, she declined to allow them entry. They called in reinforcements (what a woman!). They searched her house and found pornographic material. She was convicted, lost on appeal and won in the US Supreme court [Mapp v Ohio 367 US 643; S.Ct. 1684]. The cops had searched without a warrant. Dolly had been convicted under the law of Ohio. The US constitution [14^th Amendment] protected a citizen from unreasonable search and seizure and in 1914 the US Supreme court had ruled evidence obtained in breach of the constitution could not be relied on in a Federal prosecution. Mapp v Ohio decided that that position also applied to State prosecutions. (Most criminal prosecutions were under State law, so most defendants had been left without the protection of the constitution until Mapp).

In or about 1986, on a tip-off, police in California flew an aeroplane over the backyard of Mr. Ciraolo. They perceived a crop of marijuana in his yard, got a search warrant and found 73 plants. The California court of appeals applied Katz v United States 389 U.S. 347 and ruled the flight an unauthorised search and a breach of Mr. Ciraolo’s expectation of privacy. The US Supreme court found against Ciraolo on the grounds that he had lost his right of expectation of privacy because he had exposed the back yard to the occupants of the numerous aeroplanes flying over his house. The court disregarded the fact that those occupants were passengers in domestic flights (at great heights, presumably) whose chances of inspecting and recognising marijuana in the backyard were nil.

One wonders what the US court will say when the cops buy and deploy drone aircraft and thermal imaging technology.

Then there are those special places like Birr, County Offaly where, recently, the 41^st Irish Hot-Air Balloon competition took place.  Will the Garda Síochána buy a balloon or opt for a drone?

The Gardaí have had a history of their own difficulties with search warrants and the like. See HERE for the latest episode on that front and for a very good analysis of the case law relating to that history.

My post on audio recordings in Garda custody is about establishing the grounds for the making of adverse inferences at trial, not about the procedure for interrogation in Garda custody.

Under Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007), it is open to a court to make an adverse inference (of guilt; what else?) arising from …the failure of an accused to mention… [“…any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be…]

Consider what this implies; it implies that, after the interrogation is over, the Gardai encounter the articulated defence of the accused and feel (presumably) that it is not credible, given the failure of the accused to refer to that defence during the interrogation. They can only ask the court to effectively, take the same view, if the conditions set out in Section 19A of the Criminal Justice Act 1984 (as inserted) are met. One of those conditions is that the interrogation is recorded electronically, or, with the permission in writing of the accused, recorded other than electronically.

Hence, to lay the ground for asking the court to make the adverse inference the Gardai must get the consent in writing of the suspect/accused to non-electronic recording where that form of recording is not available, or is not being used.

I have adverted HERE to the provisions of Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007).

Section 19A is one of the Sections in Part 4 of the Criminal Justice Act 2007. Part 4 has had a predecessor (so to speak) in the United Kingdom in Section 34 of the Criminal Justice and Public Order Act 1994.

That section has caused a lot of difficulty in the UK courts.

The UK Court of Appeal in R. v Bresa [2005], stated:

As we made clear in our discussion of the authorities at the commencement of this judgment, Section 34 is a very difficult area. In our view however the criticisms that can be made of this direction are soundly based. The question that remains is whether, having regard to the misdirection, we could conclude that the conviction was safe. There was a very powerful case against the appellant and without an explanation from the solicitor as to the basis on which the appellant was being advised not to comment, there is a powerful case for saying that the jury could be sure that the appellant did not mention self-defence in his interview because he had not at that stage thought of that as his defence. But we cannot be sure what part the direction on Section 34 played in the jury’s decision making. It was a significant aspect of the summing up and for that reason it seems to us that we could not conclude that this conviction was safe.”

What the Court of Appeal were considering was the direction the judge had given to the jury in the “Bresa” case.

They summarised the terms of the direction that the judge was required to give to the jury:

The latest JSB guideline direction, which appears at Archbold 2004 Ed at para 15-427, has taken account of the above authorities and that supports the view that among the key features of a direction under Section 34 are the following. First there needs to be the striking of a fair balance between telling the jury of a defendant’s rights [to remain silent or not to disclose advice], and telling the jury that the defendant has a choice not to rely on those rights. Second there needs to be an accurate identification of the facts which it is alleged a defendant might reasonably have mentioned. Third there needs to be a warning that there must be a case to answer and the jury cannot convict on inference alone. Fourth there must be a direction to the effect that the key question is whether the jury can be sure that the accused remains silent not because of any advice but because he had no satisfactory explanation to give.”

In the UK, the accused is entitled to have his solicitor present with him during his interview with the police. This is not the case in Ireland.

In Ireland, under Seb-section 3 (b) of Section 19A, the Section only applies if the accused was given a reasonable opportunity to consult his solicitor.

Consider what a solicitor might say to an accused; the solicitor is very likely not acquainted with the accused [hence the title to this post}. The solicitor will need time to take full instructions and analyse the facts; in these circumstances the best advice is to advise him to say nothing.

If that is the advice given to the accused, what possible adverse inferences can be drawn if the accused fails to mention a fact he later relies on for his defence?

It should be remembered that the Gardaí will have cautioned the suspect that;

you are not obliged to say anything, but anything you do say will be taken down and may be used in evidence against you”.

It should be further remembered that the advice a solicitor gives to his/her client is privileged; the client is not obliged to divulge what advice he got from his solicitor.

So, the accused is in a position where i) he is not obliged to say anything; ii) his solicitor’s advice is secret (privileged); and iii) he is menaced with an adverse inference if he remains silent.

The question in the title to this post is very likely a common question to be put to suspects by Gardai.

The reason is found, firstly, in the terms of Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007) and secondly, in the fact that, here in Ireland, not many Garda stations are equipped for electronic monitoring of questioning of suspects.

Under Section 19A an adverse inference may be drawn from the failure of an accused to mention a fact, later relied upon by him in his defence, while he is being questioned etc., by the Gardai.

Section 19A contains the following sub-section:

(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.”

Section 19A only applies if the person is charged with “an arrestable offence”.

“an arrestable offence” was defined in the Criminal Law Act 1997 as:

“arrestable offence” means an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence;”

To put that in context, Section 4 (6) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 provides:

(6) A person guilty of theft is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.”

Few people charged with theft are sentenced to ten years in prison, but they might be, and that is sufficient to make theft “an arrestable offence”.

Consequently, while being questioned about the theft of groceries in a supermarket, say, the Garda Síochána, in preparation for any subsequent trial, knowing that the questioning will not be recorded electronically, are very likely to say,

…sign here, to say you don’t mind us not recording you”.

In July 2008 the Supreme Court delivered judgment in two separate cases addressing the same point: the need for the Gardai/prosecution to preserve all evidence pertaining to an alleged offence.

That this should emerge twice in the one month, in the Supreme Court is a measure of two things; the frequency with which the Gardai prematurely dispose of evidence and the sclerosis of the criminal prosecution system that it should so stubbornly cling to the determination to prosecute in cases where the accused claims to be disadvantaged in making his/her defence.

In the first case the accused was denied an Order of Prohibition restraining his prosecution HERE whereas in the second the accused was successful HERE. Here the prosecution eventually decided that the case against the accused turned on the fact that the tyres on his vehicle were defective. (He was accused of dangerous driving causing death). Having ascertained that this was the case against him he sought to have the tyres examined by a motor engineer of his choice. He was refused on the ground that the Gardai did not have the tyres any more. It transpired that they had been returned to the owner of the truck being driven by the accused and the owner had destroyed the tyres.

The latest edition of the Garda Guide has been published. The Guide is a compendium of the Criminal law of Ireland.

It is an invaluable book. Alas, it is no longer a book; it consists of two heavy volumes of loose leaf pages, capable of being updated. It is also available on CD.

I was unable to answer the following question by referring to the Guide; what offence, if any, would be committed by the Dog Poop Girl if she were to visit Dublin’s Luas or Dart?

Is this a fair test of the Guide? I don’t think so.

I should be satisfied to discover that if she were to sing a profane, indecent or obscene song or ballad to the annoyance of the passengers, she would commit an offence under Section 14 (12) of the Dublin Police Act 1842 (5 and 6 Vic. C. 24).

According to the Guide, she could be arrested, without warrant, by any Garda, conditional on her committing the offence in view of the Garda.

It would be a feckless offender indeed who would persist in singing despite seeing the Garda (a Garda is in the view of an offender, if the offender is in the view of the Garda?).

The Guide is the kind of production that can be judged only with considerable use and time. It will get the benefit of both; all previous editions have been best-sellers and the time lag between editions has been always too long.

Perhaps I was too quick to give credit to the Garda Siochana for its attitude to US (illegal) rendition flights at Shannon.

On 24th November 2007, the new Garda Commissioner urged the public to aid the Gardai in fighting crime.

Five days later, activists at Shannon notified the Gardai of the arrival there of what is allegedly one of the CIA’s busiest rendition Gulfstream private aircraft.

The response of the Garda Siochana was to order the activists to leave the airport and then to arrest them. The activists were waiting at the airport to point out the suspect aircraft. The Gardai refused to search the aircraft.

A junior Government Minister “explained�? the Garda response by stating:

a) The aircarft was only landing briefly;

b) It was owned by a private Las Vegas company

That, in the real world, would suggest inculpatory evidence of a CIA rendition flight, not, as he seems to suggest, exculpatory evidence.