Gardai bugging their own stations?
Convictions in question?
Murderers set free?
We asked Legal Coffee Drinker what’s it all about.
Broadsheet: “Legal Coffee Drinker, what’s it all about?”
Legal Coffee Drinker: “The bugging by the gardai of phone calls in police stations, more specifically phone calls between detainees and their solicitors.”
Broadsheet: “Why is this serious?”
LCD: “It raises issues as to the legality of any confession subsequently obtained from the detainee, because of the principle that a confession obtained during a period of unlawful detention is inadmissible as having been obtained in breach of the accused’s constitutional right to liberty.”
Broadsheet: “How does the bugging make the detention unlawful?”
LCD: “Well, according to the Supreme Court in the People (DPP) v Buck  2 IR 268 detention of an accused for questioning automatically becomes unlawful whenever that accused is denied his constitutional right to a solicitor, though if the right is restored later on in the detention, the detention becomes lawful again.
Statements made during the period of unlawful detention are automatically inadmissible; where the detention subsequently becomes lawful, the statements may still be inadmissible if they can be shown to have been obtained as a result of information elicited while he was unlawfully detained.
This was applied in O’Brien v DPP  IESC 29 in which statements made by a the detainee when he was being denied his right to legal advice were held to be inadmissible, whilst incriminating statements made later on, after legal advice had been given, were admitted on the basis that there was no causative link between them and the earlier unlawful detention.”
Broadsheet: “But is bugging an accused’s phone conversation with his solicitor the same as denying his constitutional right to legal advice?”
LCD: “Yes, because the right to legal advice means the right to private legal advice. In Director of Public Prosecutions v. Finnegan (unreported) 15th July 1997, an accused had had access to a solicitor, but subsequently in the course of being questioned he requested a telephone conversation with the solicitor. This conversation took place in the hearing of one or more members of the gardaí. It was held by Barrington J, delivering the judgment of the Court of Criminal Appeal, that evidence of the interview which subsequently took place was inadmissible. At page 42 of the judgment he said:
“Even though the right to make a telephone call to a solicitor may not be, per se, a constitutional right, once the telephone call is allowed, the detainee has a constitutional right to make that call in private.
In the present case there was a breach of Mr Finnegan’s constitutional rights when he was denied private access by telephone to his solicitor. From that point on he was in unlawful detention. No evidence was adduced to show that this unlawful detention came to an end at any particular time nor indeed was the point addressed at the trial.”
[The] Finnegan [decision] still remains the law and was referred to approvingly by the Supreme Court in the O’Brien case referenced above – [pause] well worth reading, by the way. From the moment the phone call to the solicitor is listened to, the accused becomes in unlawful detention, making any confession subsequently made by him inadmissible – unless it can be shown that the unlawfulness of the detention was cured in some way.”
Broadsheet: “How so?”
LCD: “Difficult to say. Perhaps the solicitor arriving at the station, and having a consultation with the accused which was genuinely in private? But even then, on the above authorities, a subsequent confession would still be invalid if it could be shown to have been obtained using information elicited as a result of the telephone conversation….”
Broadsheet: “Are there any circumstances in which a breach of constitutional rights could be justified?”
LCD: “Well, the breach of constitutional rights must be a deliberate and conscious breach, but this test is relatively easily satisfied and I feel it would be satisfied here. There is also provision that unconstitutionally obtained evidence may be admitted where there are extraordinary excusing circumstances justifying the unconstitutionality e.g. the need to save the life of a victim in peril, but I doubt that would apply in most cases of phone consultation bugging. And there’s a case, Ward v Minister for Justice  in which it was held that practical considerations precluded [drains coffee] a right to ad hoc private solicitor consultation in the vicinity of a courtroom – but that was a very different situation indeed.”
Broadsheet: “I’ll say. Summing up, what are likely to be the consequences of the discovery of any policy of widespread bugging of conversations between the accused and their solicitors?”
LCD: “Any confession made by an accused whose prior conversation with his solicitor has been bugged by the gardai risks unconstitutionality – in some cases, as mentioned above, it may be possible to validate it, but in many cases it may not. That means not only that the confession cannot be put in evidence going forward but also that existing convictions are liable to be overturned. And – whatever else – there is going to be a lot of time – and legal fees paid for by taxes – expended in arguing this point.”
Broadsheet: “Treble brandies down the Law Library so.
Broadsheet: “More like a double espresso, what?”
LCD: “Right bye.”
Broadsheet: “Thanks Legal Coffee Drinker. Sorry.”