DPP -v- Cormac Fitzpatrick and Terry McConnell [2012] IECCA 74 (25 July 2012)

Judgment Title: DPP -v- Cormac Fitzpatrick and Terry McConnell

Neutral Citation: [2012] IECCA 74

Court of Criminal Appeal Record Number: CCA 35 & 32/10

Date of Delivery: 25/07/2012

Court: Court of Criminal Appeal

Composition of Court: O'Donnell J., de Valera J., Gilligan J.

Judgment by: O'Donnell J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
O'Donnell J.	Link	Refuse Leave to Appeal v Conviction

Outcome: Refuse Leave to Appeal v Conviction

COURT OF CRIMINAL APPEAL

CCA/35/10 &

32/10

O’Donnell J.
de Valera J.
Gilligan J.

Between

Cormac Fitzpatrick and

Terry McConnell

Appellants

And

The People at the Suit of the Director of Public Prosecutions

Respondent

Judgment of the Court delivered on the 25th day of July 2012 by Mr. Justice O’Donnell

1 At approximately 1.20 a.m. on the 9th September, 2008, An Garda Síochána raided a one bedroom apartment in Clondalkin, Dublin. They found two men (who are not the appellants in the present case) in the apartment proper. On the table, and in full view, was a large quantity of materials for the construction of bombs, which were accordingly “explosive materials” within the meaning of the Explosive Substances Act 1883, as amended. There were four screw threaded lengths of pipe, 620 grammes of propellant power, four capsule bulbs, seven nine volt batteries, seven travel alarm clocks, lengths of three core wire, a soldering iron and a pack of four inch nails. Also found in the apartment was a walkie-talkie tuned to a frequency. A similar walkie-talkie was recovered from a man in a car outside the apartment building.

2 The appellants were found in the bathroom wearing latex gloves. Also found in the bathroom was an alarm clock, with wiring coming from it, two batteries and a plate containing an explosive substance which had been partially scorched or burnt. There was a dispute, to which it will be necessary to return, as to whether either of the men had any of the objects on their person. A number of gardaí gave evidence to the effect that Cormac Fitzpatrick, the first appellant, was seen to drop the clock and battery onto the floor. The coat of Terry McConnell, the second appellant, was hanging over a chair in the living area of the apartment. Mr. Fitzpatrick’s cigarettes were recovered in the kitchen area. The appellants were charged with possession of an explosive substance in circumstances such as to give rise to a reasonable suspicion that they did not have it in their possession for a lawful objective, contrary to s.4 of the Explosive Substances Act 1883, as amended by s. 15(4) of the Offences Against the State (Amendment) Act 1998.

3 Both appellants gave evidence at the trial which was broadly similar in its terms. Mr. McConnell was working in Monaghan with Mr. Fitzpatrick. He was friendly however with a Gerard Mackin, then in Portlaoise Prison and awaiting trial at the Special Criminal Court. Mr. McConnell had visited Mr. Mackin in Portlaoise Prison on the 6th September, and for reasons that are not explained, Mr. Mackin was apparently confident of being released the following month (a confidence which transpired to be misplaced). Mr. McConnell offered to help Mr. Mackin get accommodation in the Dublin area when he was released. Mr. Mackin had befriended a man in custody, Declan Duffy, and Mr. Duffy’s brother-in-law, Declan Comerford, was also to assist Mr. McConnell in organising accommodation. Mr. McConnell had met Mr. Comerford in Burger King in Tallaght later that day and they had arranged to meet again on the 8th September.

4 Mr. McConnell’s evidence was that he was travelling in his own car to Dublin to meet Mr. Comerford to finalise arrangements and to provide evidence of his means. He asked Mr. Fitzpatrick to come along “for the spin”. However, Mr. McConnell got lost and pulled into the Kestrel Hotel car park in Walkinstown. He rang Mr. Comerford. Soon after that a car pulled into the car park and Mr. McConnell received a phone call, which he believed was from Mr. Comerford, directing his attention to the car, and when it left he followed it. Sometime later the car stopped and another man, Gareth Pigott , got out and got into Mr. McConnell’s car and directed him to the apartment. Once in the apartment, Mr Pigott produced a bag from which he removed the gloves and some of the equipment subsequently recovered by the gardaí. The appellants were told to put on the latex gloves. This they did although they were frustrated and scared. They went into the bathroom to have a word. Before they could do anything the gardaí arrived.

5 This then was the account that both appellants gave to the court to explain why they, two men from County Monaghan, had travelled to Dublin, made an apparent rendezvous in a car park, picked up a man they had not met before and were found with him in the early hours of the morning in a small apartment in Clondalkin wearing latex gloves and surrounded by bomb making paraphernalia.

6 After a trial in the Special Criminal Court lasting for 13 days over a period of some four weeks, the appellants were convicted. They have now each appealed their convictions, but although the appeals arise out of the same factual circumstances, the issues raised in the appeal are entirely separate.

The Appeal of Terry McConnell

7 This appeal raised a single issue: it was contended that a claim for privilege made in the case in relation to certain disclosure matters, coupled with the jurisprudence of the Irish courts on the resolution of disputes on issues of criminal matters, were such as to contravene the requirements of Article 6 of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”), and accordingly the trial ought to have been stayed.

8 It is necessary to set out the background facts to understand the point which is advanced in this case. The trial commenced on the 4th November, 2009. On the same day (and for the first time) the solicitor for Mr. McConnell raised an issue in relation to what might be broadly described as disclosure and privilege. A fax was sent to the chief prosecution solicitor in the following terms:-

“With reference to the above named client. Please advise us as a matter of urgency whether any of our client’s co-accused were at any time material to this case acting as agents on behalf of the State. Please also advise as to whether Declan Cummingford (sic) were at any time material to this case acting as agents on behalf of the State.

This request is made of the prosecution as it is relevant to our client’s defence and his account of his presence at Apartment 203, The Crescent, Park West, Dublin 22 immediately prior to and at the time of his arrest.”

9 Another request was sent by fax on the 6th November seeking details of a telephone number which had been contained in a notice of additional evidence served the day before the trial (the 3rd November, 2009). The prosecution replied to both letters by an undated letter stating in relation to the queries raised in the letter of the 4th November that “the State claims privilege on policy grounds”. The letter also provided information about the phone number requested.

10 On the 12th November, 2009, the solicitor for the appellant sent a further letter seeking limited disclosure:-

“We refer to the above and request disclosure of any information or statement, either written or verbal, received or taken from the landlord or tenant of the relevant flat concerning occupation of the premises by any of the defendants in this case. Please give this your urgent attention.”

11 By letter of the 17th November the D.P.P. replied:-

“Please note there is no such material in existence for disclosure as set out in your letter of the 12th inst.”

12 On the 18th November, 2009, by which stage the trial was well advanced, the solicitors for the appellant wrote a following letter in the following terms, which was again sent by fax:-

“It is apparent that the D.P.P. is in possession of material relevant to the above proceedings that has not been disclosed to the defence. Such material includes but is not confined to the following type matters:

(1) The occupation of flat 203.

(2) How gardaí became aware of the presence of the unlawful material of flat 203.

(3) The identity and source of information concerning the unlawful enterprise.

(4) The defendant’s involvement in the alleged offences.

(5) The defendant’s relationship vis a vis the other accused.

(6) The duration of the offending items in the flat.

You will be aware of the case made by our client during interview. In light of the case made by him we believe that full disclosure of all material in the possession of the gardaí and DPP is essential to ensure a fair trial and compliance with the provisions of Article 6 of the ECHR. We request the urgent disclosure of this material. We respectfully suggest to you that it is not for the prosecution to withhold this material on the alleged self asserted basis of public interest privilege. The withholding of such material can only legally occur where the Court has examined the material and expressly approved the claim made by the prosecution. We therefore put you on notice that we consider that the procedure deployed by the prosecution to date is procedurally irregular and unlawful. We therefore respectfully request that you proceed provide the said material to us.”

13 A number of matters arise in relation to this letter. First, it was entirely unsatisfactory that these matters should be agitated as the trial was proceeding. Matters of disclosure, and claims of privilege, can be difficult and complex matters, and are normally dealt with well in advance of the trial. Not only does this permit sufficient time and space to address the issues, and means that if disclosure is ordered the defence will have the material in sufficient time to analyse it and consider how it should be deployed, and what additional steps may be required. Not insignificantly in the present context it also might allow a differently constituted court to address the issue if that was though necessary or desirable. Second, since there had been no request for disclosure pre-trial, or subsequent challenge to the disclosure made, the question of withholding any material on any “self asserted basis of public interest and privilege” had not arisen. It followed that since no claim of privilege had yet been made in relation to any of the matters referred to in this letter there had been no challenge to any claim of privilege or adjudication on it. The statement that the withholding of material can only legally occur “where a Court has examined the material and expressly approved the claim made by the prosecution” is itself incorrect. The court does not have to adjudicate unless a claim to privilege is made and challenged and the adjudication on such a challenge does not necessarily involve the examination of the material by the court. Finally, the reference to the prosecution being aware of the case made by Mr. McConnell during interview appears to be a reference to an account given by him pursuant to a demand made pursuant to s.19 of the Criminal Justice Act 1984, as substituted by s. 29(1) of the Criminal Justice Act 2007, in which he had given an account not dissimilar to that ultimately given in evidence of having been in the flat innocently in order to make arrangements for the securing of accommodation for Mr. Mackin.

14 The chief prosecution solicitor replied via letter of the same day, noting that the request was an elaboration of that contained in the letter of the 12th November and stating:-

“The prosecution addressed these queries in correspondence dated the 17th day of November. I would direct your attention to the same correspondence.”

Accordingly, it appeared that the prosecution’s position on the belated request for disclosure contained in the letter of the 18th November, 2009, was that “there was no such material in existence for disclosure”. That position was never challenged because, it may be deduced, the legal argument the appellant subsequently sought to advance depended upon a claim for privilege being maintained, ideally after perusal of documents by the court.

15 This correspondence was being pursued in tandem with the proceedings. The correspondence did not clearly distinguish between two separate lines of inquiry: first a request for information as to whether any one of a number of named persons were informers, and second a demand for more general disclosure. During the trial counsel for the appellant sought to advance the question of the identity of informers. Somewhat surprisingly, the most senior garda officer, Detective Superintendent O’Sullivan, gave evidence and was not questioned on this issue. On day seven, however, the issue was ventilated when Detective Sergeant Daniel Prenty was being cross-examined:-

“Q. Was Declan Duffy acting as an informant in this case?

A. I beg your pardon?

Q. Was Declan Duffy acting as an informant in this case?

A. Declan Duffy is an informer, a garda informer?

Q. Yes.

A. I am not aware that Declan Duffy is a garda informer.

Q. You are not aware of that?

A. I am not aware.

Q. Where did the information come from that Declan Duffy was in overall charge of this operation?

A. I imagine it came from a privileged source?

Q. Are you going to divulge the source to us?

A. I don’t know the source, so I am not in a position, but …

Q. You don’t know the source?

A. No I didn’t know the source.

Q. Who was it that was dealing with the source?”

16 At this point junior counsel for the prosecution intervened and said that it seemed clear there was an issue of privilege being raised and appeared to invite the court to determine it. The judge pointed out that Detective Garda Prenty had said that he did not know whether the named person was an informant and did not know the source. However, it was clear that an issue could arise and the presiding judge addressed counsel for the appellant:-

“Judge: If you want to pursue it we will hear both sides.

Counsel: I am not pursuing it at this stage but I am asking the court to make note of the objection at this stage…”

A short time later a further series of questions were asked:-

“Q. Yes now, where did that information come from, that he had met with Derek Comerford on the 6th September?

A. I will claim privilege on that judge.

Q. Well was Derek Comerford an informant in this case?

A. Judge the counsel has asked me in relation to informants. I have no knowledge of the identity of any garda informer. I don’t deal in that area, so in relation to say that Mr Dunphy or Mr Comerford was a garda informer…”

17 There was then some further debate between counsel and the court and the presiding judge indicated the view, which cannot have come as a surprise, that any question capable of identifying informants or anything relating to informants was a matter of privilege. Counsel for the appellant replied:-

“I don’t dispute that for the moment. The relevance of the question and the stance taken will be relevant at a later stage in this case.”

That somewhat cryptic remark became clearer on day 12. On the morning of that hearing, counsel on behalf of the appellant applied for a ruling “that the trial of my client is unfair”. He observed that the court was aware from Superintendent O’Sullivan’s evidence that he had signed a warrant authorising a search of the premises, “but what we don’t know are such matters as follows: how did the gardaí learn of this matter? What was the background of the guards learning this? When did they learn it? Who were the occupiers of the flat? How long were the items in the flat? Why did the gardaí wait until 1.20 a.m.?” The presiding judge observed, somewhat sceptically, that this sounded like a “cross-examination list of questions”. Counsel responded that they were not permissible because the prosecution pleaded they had privilege in respect of them and continued: “the court will recall that I asked Detective Sergeant Prenty whether Derek Comerford was an informant and he pleaded privilege in respect of that”. The presiding judge asked counsel did he challenge the privilege and counsel replied: “not at that stage but I asked the court to note the plea”. Counsel contended that the identity of an informant was relevant to this case because the court now knew the nature of the defence that was being made. The presiding judge stated: “The nature of the defence is he didn’t know what he was doing in his rubber gloves and all the bomb making [equipment]”. Counsel said that this was an over simplistic approach and argued that the appellant’s defence was that he “was set up”. The trial judge observed that he had not heard that case being made up until then (and it should be observed that this was now the twelfth day of the trial).

18 Subsequently, counsel developed the argument. It became clear that it was being argued that the question of disclosure in Ireland was dealt with in the D.P.P. v. Special Criminal Court [1999] 1 IR 60, which acknowledged that the informer privilege was necessary for the prevention and detection of crime, but was subject to the innocence at stake exception. Where a claim of privilege was challenged a court would resolve it, and if necessary consider the documents to determine if the claim was validly made. Counsel argued that this procedure was inconsistent with the decision of the European Court of Human Rights in Rowe and Davis v. U.K. (2000) 30 EHRR 1 and that the absence of a special counsel system to determine contested issues of privilege was a breach of the appellant’s right to a fair trial guaranteed by Article 6 of the Convention. In counsel’s submission, the procedure whereby the trial court could examine undisclosed material created a form of stalemate. It was, he contended, necessary that the material should be considered by a court, but wrong for the court of trial to do so. Accordingly, he asked the court to rule that the trial was unfair and submitted that “if that ruling is made then certain consequences may flow from that. But I don’t address the remedy as such at this stage”. Eventually, counsel invited the court to order a stay on the proceedings. The Special Criminal Court considered the submission and delivered a ruling the following day, rejecting it. Subsequently, the court proceeded to convict the appellant. On this appeal the sole issue argued on behalf of the appellant is that the court was wrong to reject the appellant’s arguments in relation to disclosure.

19 Notwithstanding the industry with which this argument was advanced to the court, it is this Court’s clear view that this point is unsustainable. The point involved a belated and ambitious attempt to press the facts of this case into a form which would permit a theoretical argument about the procedure to be adopted by a court, and in particular the Special Criminal Court where the judges were also the fact finders, when a claim of privilege was raised, and challenged. It is apparent, however, that there are a number of serious difficulties with the argument and the course which the appellant invites the Court to take.

20 It is well established that the identity of an informant is normally privileged from disclosure. The practical reasons for this privilege are obvious. Not only would there be a real risk that the flow of information to the gardaí would dry up if the identity of informants could be routinely disclosed in court proceedings, but, particularly in cases involving serious criminality, the threat to the life of informants is very real. Normally, either the identity of the informant, or the manner in which information has been gathered by investigating authorities, is of little possible relevance to any case, since such information is itself not adduced in evidence. On the other hand, even apparently innocuous pieces of information about informants, or the method by which investigating authorities obtain information about criminal activities, may be of considerable value to the intelligence gathering operations of organisations involved in criminality, particularly paramilitary crime. Accordingly, courts throughout the world approach the question of informer’s privilege with considerable, and appropriate, sensitivity.

21 From the outset, it has always been accepted that the principle is subject to the exception described as the innocence at stake exception. The application of this test in practice may be particularly difficult since there is no obligation on the accused to identify the nature of a defence which therefore makes the assessment of the relevance of any piece of information more difficult. Furthermore, in those cases in which a court concludes that the disclosure of information in relation to an informer is truly necessary because of the innocence at stake exception, the prosecution will often, if not invariably, decide to abandon the case rather than incur the risk to the individual informer, and the damage to the investigatory process that disclosure might entail. The prospect of the abandonment of the trial however makes pursuit of issues of disclosure an attractive and perhaps necessary tactic on the part of the defence. For these reasons courts have always emphasised that the matter must be approached with considerable sensitivity, delicacy and precision, and that, in the words of McLachlan J. in R v. Leipert [1997] 2 L.R.C. 260, disclosure cannot trump privilege. It is important, therefore, that this sometimes difficult issue is addressed only when it is necessary and essential on the facts of the case, and then in a focussed and, where necessary, nuanced fashion. Here, the opposite occurred. The issue of disclosure was not raised in advance of the trial, in circumstances which would have allowed the issues to be clarified, isolated and addressed in a context which did not necessarily involve the court of trial. The issue was raised after the commencement of the trial, and in a very broad and indiscriminate way. The prosecution was invited to advise as a matter of urgency whether any of the appellants, or whether Mr. Dunphy or Mr. Comerford, were at any time material to the case “acting as agents on behalf of the State”. When the matter was first raised during the trial proper, it was in an almost surreal way, and where a detective sergeant who professed himself understandably ignorant of the identity of any informant was nevertheless asked if named individuals were informants. It was upon these slender bases that the legal argument was constructed. Indeed, it is perhaps not unfair to observe that the normal process was reversed here: the legal argument, such as it was, already existed, and the difficulty facing the defence was to attempt to bring the facts of the case to a point where the argument could be plausibly advanced. Sometimes such a course can succeed but here it should hardly be surprising that the argument failed to surmount a number of basic hurdles.

22 The appellant’s case amounts to a contention that the procedure used by the Special Criminal Court in rejecting a claim of privilege is incompatible with the appellant’s rights under Article 6.3 of the Convention. However, as so formulated, the claim lacks the precision both as to the precise aspect of the procedure challenged and the manner in which the Convention claim is to be maintained. As pointed out by Murray C.J. in J. McD. v. P.L. [2010] 2 IR 199, the Convention is not part of Irish law by its own force. It becomes part of domestic law only in accordance with the terms of the European Convention on Human Rights Act 2003. Murray C.J. stated at pp. 252-253 that:-

“…[T]he role of the Convention as an interpretative tool in the interpretation of our law stems from a statute, not the Convention itself, and can only be used within the ambit of the Act of 2003.”

It is, therefore, also always a threshold question as to how this Act applies in any case. Here, for example, the appellant does not seek a declaration of incompatibility, which of course would not avail him in this appeal. It is to be assumed that the claim is made under s.2, but the appellant has not identified this statutory provision or rule of law which should be interpreted, so far as possible, in a manner compatible with the Convention under that section. Murray C.J. pointed out in McD that “in exercising its jurisdiction pursuant to s. 2 a court must identify the statutory provision or rule of law which it is interpreting or applying” As one commentator has observed (Cahill, “McD v L and the Incorporation of the European Convention on Human Rights”, (2010) Ir. Jur. 222), it is necessary to “put firmly behind us a facile understanding that the ECHR is incorporated at a sub-constitutional level and move instead towards a very deliberate parsing of the sections of the 2003 Act in order to account, in very rigorous terms, for what that incorporation entails”. This has not been done here. It is also surprising that since Article 38 of the Irish Constitution is similar to Article 6 of the Convention, and in some respects broader, the claim is not formulated in some respect under the applicable provisions of the Irish Constitution. Taking a generous approach to the appellant’s case, however, it seems that the case amounts to a contention that the practice referred to in the case of D.P.P. v. Special Criminal Court, which contemplates the possibility of the court itself inspecting the document in order to satisfy itself that a privilege has been properly claimed, is incompatible with Article 6 on the basis that the court may be exposed to material relevant to a matter it may have to decide, which, if the claim is upheld, the defence will not see.

23 If this indeed is the claim being advanced by the appellant, then it cannot plausibly be advanced in this case. The procedure under which the court assesses a challenge to a claim for a privilege was not reached in this case precisely because the claim was never challenged. Instead, the question whether or not any witness or co-accused was an agent of the State was raised somewhat broadly and fleetingly and the appellant then acquiesced in a claim of privilege that was predictably made. That process did not involve the examination of any document.

24 It cannot be argued that the appellant’s acquiescence was unavoidable because the challenge was bound to fail. As is clear from the case law on informer’s privilege, starting with Marks v. Beyfus (1890) L.R. 25 Q.B.D. 494, the court has always been prepared to allow a challenge to privilege on the grounds that innocence is at stake, i.e. that it is essential to disclose the identity of the informer because it is critical to the defence of the criminal trial. This normally does not involve any scrutiny of documents, nor does it involve exposing the court to any information. Once again, therefore, the possibilities were not explored in this case. It follows that the case the appellant seeks to make lacks an essential factual foundation: the court of trial did not inspect any document and has not been exposed to any information which was not available to the defence. Nor was it inevitable that such a course would have ensued if the appellant had challenged the privilege. Accordingly, the issue which was sought to be advanced on the application to stay the proceedings, and again on this appeal, simply does not arise.

25 That the appellant’s case here is so plainly devoid of factual basis should not suggest that if the appellant had pursued the matter in some different fashion, that a valid complaint could have been made. The attempt to seek to raise the issue in relation to the identity of possible informants was not in any way connected to the appellant’s own case that he had come to Dublin to make arrangements for the accommodation of Mr. Mackin. He did not suggest that he had been set up or otherwise entrapped – an allegation that would more naturally come to someone who admitted involvement in the offence, but sought to excuse it. Nor is it by any means clear that the decision in Rowe and Davis v. U.K. has any application to the type of situation which may arise in any Irish court when it considers a claim for privilege since it is not practice for an Irish court to entertain ex parte applications, either in respect of documents or other disclosure. Although a court may sometimes view materials after inter partes argument, that material rarely relates directly to an issue in the case and courts make it clear that they will not have regard to any such material in coming to any decision. The decision in Rowe and Davis v. U.K. itself is somewhat controversial and it remains to be seen how this line of authority will develop. If, however, a situation genuinely arises which presents an acute problem to a prospective trial court, it may then be necessary to consider if indeed there is any rule of law requiring a court to proceed in a particular way, and if so, whether it requires any adjustment in accordance with the jurisprudence of the Convention. This Court for its part does not anticipate such a situation, or how, if at all, it should be resolved. The application of Mr. McConnell is refused.

Application of Cormac Fitzpatrick
26 This application raised three quite distinct issues. One ground was that the verdict of the court was perverse in holding that the appellant had dropped an alarm clock to the floor when the gardaí entered the apartment. Under this heading the appellant carried out a careful analysis of the different and differing accounts of four gardaí who had entered the apartment. Each of the gardaí gave evidence that they saw the appellant drop an alarm clock. Three gardaí also gave evidence that they saw him drop a battery to the floor. One garda heard the noise of something falling into the bath. The appellant maintains that the court was wrong, firstly, to observe that it could not conceive of any reason why the gardaí would feel the need to embellish their evidence by giving a false description, and, furthermore, in holding that the appellant was “at least” seen to have dropped an alarm clock to the floor.

27 Notwithstanding the careful and detailed way in which this aspect of the appeal was advanced, it is not possible for this Court to accede to the application on this ground. There was clearly sufficient evidence for the court to come to the conclusion which it did. It had the advantage of seeing and hearing all of the garda witnesses, and seeing them cross-examined. The reference the court made to their being no reason to embellish their accounts appears to this court not directed so much to the question of whether there was any reason for the gardaí to collude, but rather, perhaps, that there was no reason why if they had done so, they would come up with accounts which differed in this respect. The court was fully entitled to conclude that all the evidence was that Mr. Fitzpatrick had dropped an alarm clock to the floor when the gardaí entered the apartment. Accordingly, this aspect of the application fails. In making no finding that the appellant also dropped a battery, the court was merely giving the appellant the benefit of the doubt.

A further ground advanced by this appellant was that the facts as established (including the evidence that Mr. Fitzpatrick was seen to drop an alarm clock to the ground in the bathroom when the gardaí entered the premises) were insufficient to establish possession in law. The appellant argued that there were essentially two elements to the law on possession: first, that the accused person must be shown to have some knowledge of the article; and second, he must be in a position to exercise some control over it. The appellant realistically accepted, however, that it was clear that a court may infer such knowledge and control from the circumstances in which the article was found. Here, Mr. Fitzpatrick was arrested in a one bedroom apartment, with bomb making materials which were not just in open view but apparently in the course of being assembled. This appellant was himself in the bathroom where there were other materials and was seen to drop an alarm clock. Furthermore, he was wearing latex gloves. All of this occurred at 1.20 a.m. in the morning. While the appellant submitted that his explanation for his presence in the apartment wearing latex gloves was one that could reasonably be true, this Court is satisfied that the Special Criminal Court was fully justified in rejecting that account as implausible, contrived and untrue. In the circumstances of the case, the court was fully entitled to infer sufficient knowledge and control to establish possession.

28 A further ground advanced by this appellant was that the facts as established (including on this hypothesis the evidence that Mr. Fitzpatrick was seen to drop an alarm clock to the ground in the bathroom, when the gardaí entered the premises) were insufficient to establish possession in law. The appellant argued that there were essentially two elements to the law on possession, first, that the accused person must be shown to have some knowledge of the article, and second he must be in a position to exercise some control over it. The appellant realistically accepted however, that it was clear that a court may infer such knowledge and control from the circumstances in which the article was found. Here Mr. Fitzpatrick was arrested in a one bedroom apartment, where bomb making materials were not just on open view but apparently in the course of being assembled. This appellant was himself in the bathroom where there were other materials and was seen to drop an alarm clock. Furthermore, he was wearing latex gloves. All of this occurred at 1.20am in the morning. While the Applicant submitted that his explanation for his presence in the apartment wearing latex gloves was one that could reasonably be true, this Court is satisfied that the Special Criminal Court was fully justified in rejecting that account as utterly implausible contrived and untrue, and designed to provide some narrative however implausible to explain events of which there was likely to be independent evidence. In the circumstances of the case, the Court was fully entitled to infer knowledge and control, sufficient to establish possession.

29 One further argument raised by this appellant is more difficult. During the detention of the appellant, the investigating guards, eventually, invoked both s. 18 and s. 19 of the Criminal Justice Act 1984, (as substituted by ss. 28(1) and 29(1) of the Criminal Justice Act 2007). Accordingly, the court considered that Mr. Fitzpatrick’s refusal to account for the items in his possession was something which corroborated the other evidence of possession.

30 Section 18, as substituted, now provides as follows:-

“18 (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—

(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or

(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,

was requested by the member to account for any object, substance or mark, or any mark on any such object, that was—

(i) on his or her person,

(ii) in or on his or her clothing or footwear,

(iii) otherwise in his or her possession, or

(iv) in any place in which he or she was during any specified period,

and which the member reasonably believes may be attributable to the participation of the accused in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.

(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for a matter to which subsection (1) applies.

(3) Subsection (1) shall not have effect unless—

(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for a matter to which that subsection applies might be, and

(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.

(4) Nothing in this section shall, in any proceedings—

(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged in so far as evidence thereof would be admissible apart from this section,

(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could properly be drawn apart from this section, or

(c) be taken to preclude the drawing of any inference from a failure or refusal to account for the presence of an object, substance or mark or for the condition of clothing or footwear which could properly be drawn apart from this section.

(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of the matter concerned was first given by the accused.

(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.

(7) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.

(8) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.

(9) In this section ‘arrestable offence’ has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006 ) of the Criminal Law Act 1997.”

31 There is no dispute about the facts in this case. Here, Mr. Fitzpatrick had ample access to a solicitor during his detention. However, once s.18 was invoked he was not given a specific opportunity of consulting with his solicitor. In those circumstances, the question arises whether s.18(3) disapplies the section in circumstances where it is alleged the appellant was not afforded a “reasonable opportunity to consult his solicitor before such failure or refusal occurred”.

32 This case, Mr. Fitzpatrick was arrested at 1.30a.m.on the 9th September, 2008. He was interviewed for two sessions between 2.27p.m. to 4.46p.m. and again from 6.00p.m. to 7.24p.m. During the second interview he requested to see a solicitor at 7.05p.m. This request was complied with and he was visited by a solicitor in the station at 8.04p.m., who stayed with him until 9.50p.m. Following this consultation, he was again interviewed from 10.50p.m. to 11.39p.m. The following day he was again interviewed from 9.15a.m. to 10.47a.m. and this interview was interrupted by a telephone consultation with his solicitor at 10.03a.m. He was interviewed again from 12.07p.m. to 12.23p.m. and this interview was also interrupted by a telephone conversation with his solicitor at 12.19 p.m. which was followed by a visit from his solicitor to the station at 1.13 p.m. lasting until 2.00 p.m. During his next and sixth interview, s.18 of the Criminal Justice Act 1984 was invoked. By this stage the appellant had received two visits from his solicitor and had two telephone consultations with him. Indeed, his solicitor had just left at 2.00p.m. and the interview commenced almost half an hour later. The appellant requested to speak to his solicitor at 2.37p.m. and a message was left for the solicitor. Later in the interview he stated: “I would like to say I don’t want to comment until I have consulted with my solicitor” and he was advised that his solicitor had been informed and he was required and they were awaiting his call to the station. Very shortly afterwards, at 3.35p.m., the provisions of s.18 -of the Act of 1984, as substituted, were invoked. The appellant failed to account for the items found in the apartment.

33 No evidence was given by either the solicitor or the appellant in relation to their dealings. In particular, the solicitor did not give any evidence as to whether he had advised Mr. Fitzpatrick in relation to s.18 during any of his four consultations with him. It is no clear that the point raised has any substance in reality rather than theory. Furthermore on Day six of the trial it was recorded that the accused had been served with a notice of additional evidence to the effect that on the evening of the 9th November, Detective Superintendent O’Sullivan had spoken to the solicitor for the accused and informed him of the Gardaí’s intention to invoke ss. 18, 19 and 19A. In the event this evidence was not adduced. It is, however, common case that after the section was invoked, the appellant was not given the opportunity of consulting with his solicitor. The gardaí apparently took the view that he had already four different consultations with his solicitor and, accordingly, the literal words of the section had been complied with; he had not only been given a reasonable opportunity of consulting with his solicitor, he had consulted with him on four occasions during his detention. The case on behalf of the D.P.P. was summarised in written submissions filed on his behalf in the following terms:-

“It is submitted that all of the evidence in the case tends to show that the Applicant was afforded full and generous access to his solicitor, that considerable care was taken to explain s. 18 to him that he understood the meaning and import of that provision.”

Pointing out that the relationship between a solicitor and client was privileged, the submissions continued:-

“The obligation of the gardaí is to explain the provision to the suspected person and to allow access to legal advice. The nature and extent of that advice is a matter for the suspected person and their lawyers. Inadequacies in relation to the advice given or a failure on the part of the suspect to understand advice are not a matter for the gardaí although they may well feature in the course of trial.”

34 The essential question for this Court to resolve remains whether a reasonable opportunity to consult his solicitor must occur in relation to the inference to be drawn under s. 18 so that the opportunity is afforded either after the section is invoked, or perhaps where a solicitor is informed in advance that the section may or will be invoked. On the case advanced by the D.P.P., and accepted by the Special Criminal Court, it was sufficient merely that the accused person have reasonable access to a solicitor while in custody. The section, it was said, did not require a solicitor to do anything during that time. In any event, the content of any such consultation was privileged. Accordingly, all that the Act could and did require, it was argued, was that an opportunity be given for access to a solicitor in advance of the section being invoked. It was not necessary that the opportunity for consultation be related to the s. 18 request.

35 The provisions of s. 18 of the Act of 1984, as substituted, must be understood in their historical and constitutional context. The right to silence has been an established part of the common law system of criminal procedure. However, legislative restrictions of the right have become more common in the latter part of the 20th century. Section 52 of the Offences Against the State Act 1939 created an offence of failing to account for movements. The Criminal Justice Act 1984 included sections 18 and 19 which, for the first time, introduced a power to draw inferences from a failure to account for objects found, or the presence of an accused at a particular location. However, that the provision was somewhat narrow, applying only to an arrest without warrant, and apparently limited to questions by the individual arresting garda, and accordingly it appears the provisions were little used. During the 1990s, in parallel with developments in the United Kingdom, there were further legislative changes. The Criminal Justice (Drug Trafficking) Act 1996 and The Offences Against the State (Amendment) Act 1998 introduced “failure to mention” provisions. Ultimately, a provision of more general application was included in s. 28 and s. 29 of the Act of 2007, substituting new ss. 18 and 19 in the Criminal Justice Act 1984, and in the case of s. 28 introducing for the first time the provisions in subs. 3, that the provision would not have effect unless the accused was told in ordinary language of the consequence of failure to refuse to account for the matter and was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.

36 At the same time there were significant developments in the jurisprudence on this area both in domestic courts and in the European Court of Human Rights, which dealt with both the significance of the right to silence and the manner in which legislation restricting the right should be analysed. In Heaney v. Ireland [1996] 1 I.R. 580, the Supreme Court accepted that the right to silence was a constitutionally protected right, but agreed with the landmark judgment of Costello J. in the High Court, that it could be restricted by measures which satisfied a proportionality test. In Rock v. Ireland [1997] 3 I.R. 484 the court applied a similar analysis in rejecting a challenge to ss. 18 and 19 of the Criminal Justice Act 1984. In People (D.P.P.) v. Healy [1990] 2 I.R. 73 the Supreme Court accepted that there was a right of reasonable access to a solicitor on the part of a person in custody, and that that right was derived from the Constitution and was not merely statutory in origin. Furthermore, that right imported an entitlement to be informed of the right. The right of access to a lawyer was seen both in Ireland and in the European Court of Human Rights as a necessary safeguard in circumstances where extended powers of detention were being permitted, along with statutory restrictions on the right to silence. Accordingly, in People (D.P.P.) v Healy Finlay C.J. observed at p.81:-

“The availability of advice from a lawyer must, in my view, be seen as a contribution, at least, towards some measure of equality in the position of a detained person and his interrogator.”

37 At European level, the importance of the right to silence has also been emphasised. Indeed, in Heaney v. Ireland the European Court of Human Rights held that s. 52 of the Offences Against the State Act 1939 was incompatible with Articles 6.1 and 6.2 of the Convention. In Murray v. United Kingdom [1996] ECHR 3 the court held that a denial of access to a lawyer during the initial stages of an interrogation was itself a breach of Article 6. Referring to the fact that under the Criminal Evidence (Northern Ireland) Order 1988 adverse inferences could be drawn at the accused’s trial if he elected to remain silent, the court stated at para. 66:-

“It observes in this context that under the Order, at the beginning of police interrogation, an accused is confronted with a fundamental dilemma relating to his defence. If he chooses to remain silent, adverse inferences may be drawn against him in accordance with the provisions of the Order. On the other hand, if the accused opts to break his silence during his interrogation, he runs the risk of prejudicing his defence without necessarily removing the possibility of inferences been drawn against him. Under such conditions the concept of fairness enshrined in Article 6 (art. 6) requires that the accused has the benefit of the assistance of a lawyer already at the initial stages of police interrogation. To deny access to a lawyer for the first 48 hours of police questioning, in a situation where the rights of the defence may not be irretrievably prejudiced is – whatever the justification for such denial – incompatible with the rights of the accused under Article 6 (art. 6).”

38 Against that background, the issue in this case becomes a little clearer. The D.P.P. accepts that the subsection cannot be construed literally and that there is some limitation in time on the concept of reasonable opportunity to consult a solicitor. Thus the theoretical entitlement of any citizen to consult a solicitor at any time cannot be sufficient. It is necessary that that right be accorded within the regime under which the request under s.18 is made. This argument might be characterised as an argument that the opportunity for legal advice must be temporally but not casually connected to the requirement. However, it is argued that the Act could easily have provided that the accused must be afforded a reasonable opportunity to consult his solicitor after having been required to account for the object, mark or presence etc., but did not do so. It was suggested that this was for good reason. The statute could not require a solicitor to attend or to consult, still less to advise. Furthermore, the court could not inquire into the content of any such consultation. Accordingly, it was said that the Act imported a requirement in deliberately general terms; that the appellant had a reasonable opportunity to consult a solicitor, but such opportunity need not be linked to the request to account under sections 18 or 19.

39 On behalf of the appellant, it was pointed out that since 1990 it had been established that there was a constitutional right to reasonable access to a solicitor. Accordingly, to interpret the subsection in the manner contended for by the D.P.P. would render it no more than surplusage since it would do no more than restate what was already the general law. If the accused was not afforded reasonable access to a solicitor while detained, then not only would the answers to the s.18 request be inadmissible, but his detention would be unlawful, and anything said during that period would be inadmissible during evidence.

40 It seems clear that subs. (3)(b) is intended to act as an important safeguard in the operation of s. 18. However, it is not easy to interpret the section as a coherent whole. The syntax itself is a little awry, particularly where it speaks of the failure or refusal to “give an account, being an account which in the circumstances clearly called for an explanation from him or her when so questioned charged or informed…” Furthermore, the practical operation of subs. (3) raises difficult questions. Unlike its statutory predecessors, there is no requirement that the questioning of the accused person take place in custody. In theory, it is possible to make a demand for an account of objects, marks or presence when an individual is questioned by a member of the gardaí in public. It is difficult to see how subs. (3)(b) could operate in such circumstances. Accordingly, it may be that the section is the product of an eclectic process of amendment, rather than a product of one overall coherent approach.

41 Looked at functionally, however, the section seems to envisage the opportunity of consultation at or around the same time as the request for an account. If the reasonable opportunity to consult a solicitor cannot be interpreted literally to mean an opportunity on any occasion (and it is conceded, correctly, that it cannot) it is difficult to see how it could be intended that the opportunity should be given before a s.18 or s.19 request is invoked, and without knowledge that they are likely to be invoked. The whole structure of subs. (3) seems to imply that the opportunity for consultation under subs. 3(b) should be given at or around the same time as the explanation in ordinary language required under subs. (3)(a), since both provisions are contained in the same subsection and linked by the conjunction “and”. Since subs. (3)(a) can only occur just before, or just after, the making of a request for an account under s. 18, then it should follow that subs. (3)(b) must occur within the same timescale, and be similarly linked to the making of the request for an account. Again, this makes some sense. It is for the member of the gardaí to inform the accused in ordinary language as to the general effect of a failure or refusal, and it is for the solicitor to advise the accused as to the potential impact in the particular circumstances of his own case. Accordingly, an approach to the language of the section in the context of the section as a whole suggests that the opportunity must be given to consult in relation to a s.18 request. That normally means that an opportunity be given after the section is invoked, but it might also be satisfied by an opportunity to consult when the gardaí have informed the accused and his solicitor that the section may be invoked. (Indeed it appears that at one stage in the trial it was proposed to adduce evidence to the effect that the solicitor for the applicant had been informed that it was proposed to invoke s. 18. However that evidence was not adduced and the case has been argued on the basis already set out.) Finally, the formulation of the provision which refers to a reasonable opportunity to consult, as opposed to the phrase then commonly used which refers to the right of reasonable access, suggests the section requires more than a general opportunity of speaking to a solicitor. It implies that the solicitor can be consulted for advice, which suggests that the matter in respect of which advice is to be given is the s.18 request. That advice cannot be given unless the client and solicitor know and are informed that the section has been, or is likely to be invoked. On this approach, it would not be sufficient to prove that the reasonable opportunity to consult a solicitor arose before the request was made and when neither the appellant nor his solicitor necessarily knew that the section was likely to be invoked. If the reasonable opportunity to consult provided for under subs. (3)(b) must be linked in time to the invocation of s.18 and the making of a request thereunder, then there is no reason why it should not be linked in purpose aswell.

42 When the section is placed in the context of the constitutional and Convention jurisprudence, then that conclusion becomes, if anything, clearer. The provision of s.18(3)(b) is intended to act as a safeguard in respect of a provision which operates as a significant interference with the suspect’s right to silence. Furthermore, the terms of the caution which is still administered to suspects in Ireland provides as follows:-

“You are not obliged to say anything unless you wish to do so but anything you do say will be taken down in writing and may be given in evidence.”

The terms of this caution have not been adjusted in the light of the statutory provisions referred to above. Since, however, the provisions of s. 18 and s. 19 mark a significant departure from this information given to the accused when cautioned, it is entirely appropriate that advice should be available to the accused in relation to the position which obtains once s. 18 has been invoked. Taking the approach set out in Heaney v Ireland, and Rock, it seems clear that if there is any ambiguity in the interpretation of the section, then an interpretation should be preferred which seeks to ensure that advice is given in respect of the provision as it applies to the suspect in the position in which he or she finds himself or herself, rather than by simply providing for access in general at some stage, connected in time, but not in purpose, to the making of the statutory request. In the circumstances, therefore, this Court is unable to accept the interpretation of the section advanced by the D.P.P. It is accepted, in this case, that after the section was invoked at 3.35p.m. that no opportunity was given to this appellant to consult with his solicitor. Indeed, he had specifically said that he did not want to answer anything until he had consulted with that solicitor. Accordingly, the Court must conclude that the procedure here fell short of what was required on a true interpretation of section 18.

43 This conclusion is regrettable, since the statute is an important part of the armoury of the State when dealing with serious crime. It is also noteworthy that in this case the trial court was also obliged to rule as inadmissible certain statements made by the appellant pursuant to a request made under s. 19 because it was clear that the statutory preconditions for that request had also not been complied with. It is worth recalling the observations of Murray C.J. in D.P.P. v Bryan Ryan [2011] IECCA 6, (Unreported, Court of Criminal Appeal, 11th March, 2011):-

“This is by no means an unusual ruling in criminal trials generally including those concerning the most serious of offences such as murder…The frequency therefore with which garda interviewing practices have resulted in otherwise important evidence being rendered inadmissible for such breaches is surprising and to be regretted. The situation would suggest that there was some lack of coherent practice or training of garda officers as to the manner in which arrested persons should be treated so as to ensure that the full and substantive effect is given [to] the right of access to a solicitor, having regard to established principles of the law applicable to such a right including principles stemming from the case-law of the European Court of Human Rights.”

44 There is a case for the streamlining of the Act so that it operates in a coherent and comprehensible way. Furthermore, as a matter of practice, the question of the appropriate caution should be reviewed, and it ought to be possible to give simple guidance to interviewing gardaí so as to ensure that where it is considered appropriate to invoke the procedures under sections such as this, that such invocation is effective. However these conclusions are not the end of this appeal.

45 Section 3 of the Criminal Procedure Act 1993 provides:-

“3(1) On the hearing of an appeal against conviction of an offence the Court may-

(a) affirm the conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be decided in favour of the appellant, if it considers that no miscarriage of justice has actually occurred).”

46 The proviso has been part of Irish law since the creation of the Court of Criminal Appeal. It does not, however, invite a court of appeal to make its own value judgment as to the guilt or innocence of the appellant. If there has been a fundamental error in the conduct of the trial and there has been a lost chance of acquittal, then the court cannot apply the proviso simply because it is of the opinion that under the proper trial the appellant would have been convicted. If a departure from the essential requirement of the law has occurred that goes to the root of the proceedings, then the appeal must be allowed. However, it cannot be said here that the proceeding was fundamentally flawed. The significance of any inference to be drawn under s.18 may depend upon the particular facts of individual cases. Most often, as the section itself recognises, its main effect will be to provide corroboration where that is required either by a rule of law, or by the general practice of the courts in respect of particular offences. Here, however, there was no question of the evidence against the accused requiring corroboration either as a matter of law or practice. It was direct and compelling evidence of involvement in the preparation of bombs. It bears repetition that this appellant at 1:20a.m.. in the morning, in an apartment in Dublin, in which bomb making material was on open view, and where he was in the bathroom with his co-accused and more bomb making equipment, and where he and his co-accused were wearing latex gloves and where he was seen to drop an alarm clock from his hand when the gardaí came into the apartment. The court quite properly rejected the patently threadbare and contrived account offered by the appellant. The provisions of s.18 had no part to play in that assessment. Due to the fact that the trial took place in the Special Criminal Court, we have the benefit of the detailed reasoning of that court rather than the simple verdict of a jury. Accordingly, while this Court is satisfied that this point might have been decided in favour of the appellant, it is also satisfied that in all the particular circumstances of this case no miscarriage of justice has actually occurred and will accordingly refuse the appellant’s application for leave to appeal against his conviction.

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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Cormac Fitzpatrick and Terry McConnell [2012] IECCA 74 (25 July 2012) URL: http://www.bailii.org/ie/cases/IECCA/2012/C74.html Cite as: [2012] IECCA 74

Irish Court of Criminal Appeal