Constitutional - Article 38.1 - Trial In Due Course Of Law

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Due Course of Law / Due Process - Preliminary Principles

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Due Course of Law and Due Process: applies to both Civil and Criminal Matters – but questions turn on criminal matters primarily.

Remember, once a matter is criminal it is only appropriate for a COURT to deal with it

What is Criminal? - Melling v O’Mathghamna (1962)

Principles apply equally to MINOR and NON-MINOR offences – so District Court IS bound - Shelly v Mahon [1990]

Also applies to PRE-TRIAL preliminary matters Glavin v Governor of Mountjoy Prison [1990], King v AG [1981], Corway v Independent Newspapers (Ireland) Ltd [1999]

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Melling v O’Mathghamna (1962)

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Offences against the Community at large

Sanction must be punitive, and not just Financial reparation

Mens Rea required (Guilty mind) (although not for all crimes – Strict Liability)

Detention of the individual possible prior to charge

Question of BAIL, including refusal of Bail

Imposition of Pecuniary – and punitive – Penalty: A FINE, not just Compensation

Liability for Imprisonment: either for Non-payment of the Fine, or simply on foot of commission of the Offence simpliciter.

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State (Murray) v McRann [1979]

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HELD: Punishments imposed by Governors of Prisons, pursuant to Rules for the Government of Prisons Act 1947 were not unconstitutional as not truly “Criminal”.

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AG v Casey [1930]

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FACTS: Income Tax Act 1918 – S30(1) : AG can sue for Revenue Defaults- was this Criminal?

HELD: No, it is a proceeding to recover a penalty under a Statute, and is Civil

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AG v Southern Industrial Trust [1960]

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HELD: a Forfeiture provision where a car is confiscated for evading Customs duty: not a criminal matter

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Glavin v Governor of Mountjoy Prison [1990]

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-HELD: Preliminary matters includes the PHRASEOLOGY of the OFFENCE itself

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King v AG [1981]

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FACTS: Section 4 of the Vagrancy Act 1924 “Loitering with intent” - Ingredients of the offence were too vague and arbitrary (Covered every conceivable place in public, without defining intent or loitering)

HELD: unconstitutional, ingredients of offence and method of proof too vague and arbitrary

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Corway v Independent Newspapers (Ireland) Ltd [1999]

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HELD: Supreme court would NOT put a definition on the crime of blasphemy, as this was the role of the legislature

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Strict Liability / Absolute Liability

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Strict liability is evident in some MINOR Offences, and Offences where the Oireachtas is seeking to regulate behaviour it considers crucial to the order of the State.

1.Pollution offences
2.Road Traffic offences (no insurance)

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CC v Ireland [2006]

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FACTS:

Section 1(1) of the Criminal Law (Amendment) Act 1935 provided for crime of absolute liability: Statutory Rape, girl under 15 Years. No defence, irrespective of belief about girl’s age

HELD: Hardiman: “I cannot regard a provision which criminalises and exposes to a maximum sentence of life imprisonment a person without mental guilt as respecting the liberty or the dignity of the individual or as meeting the obligation imposed on the State by Article 40.3.1 of the Constitution”

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Presumption of Innocence / Reverse Onus Presumptions

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O’Leary v AG (1993): presumption of innocence has constitutional standing

Reverse Onus Presumptions: the Oireachtas may allow a presumption that an offence has been committed, or a presumption that an element of the offence has been committed. There have been questions over constitutionality of such presumptions

For example, Section 9(1) Firearms and Offensive Weapons Act 1990 - possession of a knife / pointed object is presumed to be for an illegal purpose, unless the accused can prove it was for a legal purpose.

Thus, the normal presumption of innocence does NOT fully apply.

If the accused says nothing at all, and the prosecution prove that he had a knife on his person, in a public place, then the court will presume that the knife was for an illegal purpose.

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O’Leary v AG (1993)

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Presumption of innocence has constitutional standing

FACTS: Section 24 of OASA 1939: if found in possession of certain incriminating documents then this can be evidence, until the contrary is shown, that you are a member of an unlawful organisation. Section 3(2) of OASA (Amdt) 1972 allows Statement of a Garda that he believes the accused is a member of an unlawful organisation to be evidence of such membership.

Does this offend the Presumption of Innocence?

HELD: “While it may not be desirable or indeed possible to lay down any hard and fast rule for the construction of statutes involving the shifting of the burden of proof, it is clear that if the effect of the Statute is that the court must convict an accused should he fail to adduce exculpatory evidence, then its effect is to shift the legal burden of proof thus involving a breach of the accused’s constitutional rights..........whereas if its effect is that notwithstanding its terms the accused may be acquitted even though he calls no evidence because the Statute has not discharged the prosecution from establishing the accused’s guilt beyond a reasonable doubt, then no constitutional invalidity could arise”

Therefore, Section 3(2) of OASA is constitutional– it is simply “evidence” via the Garda Statement

Section 24 is equally constitutional – it allows the Court decide that the documents WERE, in fact, innocent

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Hardy v Ireland (1994)

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FACTS:

Section 4(1) of the Explosive Substances Act 1883 requires the accused to show that he had explosive substances in his possession for a lawful purpose

HELD:
Constitutional, state must STILL prove

(a)Possession and
(b)“Knowingly” having possession and
(c)Circumstances which give rise to the presumption (accused had to negate this to escape liability)

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Rock v Ireland (1997)

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FACTS: challenge to ss. 18 & 19 Criminal Justice Act 1984 on basis they infringed right to silence.

ss.18 & 19 allowed for various inferences to be drawn from failures to explain various matters on arrest / failure to explain presence at a location

HELD: constitutionality upheld.

•Inferences only had the status of evidence, ‘not to be taken as proof’.

•Court could refuse to allow an inference if its prejudicial effect ‘wholly outweighed’ its probative value.

•Did not interfere with obligation on prosecution to establish guilt beyond reasonable doubt

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Re Haughey (1971)

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HELD: person has right to cross examine evidence

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Donnelly v Ireland (1998)

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HELD: video-link evidence satisfies the key aspects of right:

(i) Ability of jury to assess the credibility and demeanour of witness

(ii) Allowing the accused an opportunity to rigorously cross-examine evidence

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State (Healy) v Donoghue (1976)

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HELD: person has right to cross examine evidence

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Article 26 & Employment Equality Bill 1996

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FACTS:

S.63 of the Bill provided that ‘prima facie’ evidence could be given by certificate of the Director of Equality that investigations were obstructed

HELD: provision was unconstitutional. Whilst was possible to permit evidence by way of certificate, re technical matters, Oireachtas cannot normally dispense with the requirement that the prosecution prove every ingredient of the offence by oral evidence.

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JF v DPP [2005]

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FACTS: could complainant in child sex abuse case be required to undergo medical exam at behest of accused?

HELD: Yes. “All effective cross-examinations, not least of expert witnesses, are the result of intensive preparation. It is of the essence of the right to cross-examine that the cross-examiner....should have access to the materials......it would be gross negligence for a Solicitor.....not to endeavour to put in place assessment facilities for his own expert”

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State (O’Connell) v Fawsitt [1986]

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FACTS: charge of assault , incident Jan 1981. Trial 1982, adjourned on a number of occasions, fixed for October 1984. Applicant had gained employment in UK and had travelled from the UK on repeated occasions as trial was simply not ready. Adjourned to Jan 1985, then February as witnesses not available. In the interim, a Key witness died.

HELD: for the first time, that Art 38.1 guaranteed right to trial with reasonable expedition.

Art 38.1 ‘No person shall be tried on any criminal charge save in due course of law’

Right to trial with “reasonable expedition” (NO Statute of Limitations on Crime)

Prohibiting a trial on the basis of delay is a balancing Act – rights of accused versus rights of the Community

Four Factors would be relevant (per Fawsitt)
(i)The length of the delay
(ii)The reasons given by the prosecution to justify it
(iii)The responsibility of the accused for asserting his rights
(iv)The prejudice to the accused

Finlay, CJ:

“The determining feature, in my view, is the non-availability of one of the witnesses who would have been a material witness for the defence.......that fact alone, having regard to the extreme length of the delay, makes this a case in which, in all the circumstances, I am satisfied the delay can be considered both excessive and prejudicial and that, accordingly, the prosecutor was entitled to his order of Prohibition”

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Undue Delay

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Four Factors would be relevant (per Fawsitt)

(i)The length of the delay

(ii)The reasons given by the prosecution to justify it

(iii)The responsibility of the accused for asserting his rights

(iv)The prejudice to the accused

Prejudice is really the Key Factor- Real Risk of Unfair Trial

Delay CAN be canvassed as a failure in the duty of the prosecution: i.e. the Supreme Court can focus on blaming the State rather than examining the prejudice to the accused - Hogan v President of the Circuit Court [1994]

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Hogan v President of the Circuit Court [1994]

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FACTS: 1990 – Hogan interviewed about false accounting / embezzlement of Friendly Society. 1992 – State decided to charge him. One witness was now 95 years old, and suffering from memory loss
-HELD: Supreme court focussed on the culpability of the State
“I am satisfied that quite apart from any question of prejudice in the defence of the applicant, there is clear evidence that the state authorities in the bringing forward of this prosecution have disregarded what I am satisfied is their obligation to provide for and protect the right of an accused person to an expeditious trial as a positive Constitutional right”

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McFarlane v DPP [2008]

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FACTS: Prosecutorial delay and systemic delay are subject to the same principles – a failure to bring the litigation to a close. 1998 McFarlane arrested and charged with Don Tidey kidnapping. Prosecution/State delayed until 2006

HELD: High Court: no evidence of actual prejudice to the accused, just stress and anxiety – not enough for High Court

Appealed to the Supreme Court: Overview of Authorities by Kearns, J, citing PM v Malone [2002] and DPP v Byrne [1994]

4 Principles distilled:

(i)Inordinate, blameworthy or unexplained prosecutorial delay may breach an applicant’s constitutional entitlement to a trial with reasonable expedition

(ii)Prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to an expeditious trial by directing prohibition

(iii)Where the delay has been significant but less than that envisaged in (2), the “court will engage in a balancing exercise between the Community’s entitlement to see crimes prosecuted and the applicant’s right to an expeditious trial” However, prohibition will only be granted where one or more of the elements referred to in PM v Malone [2002] and PM v DPP [2006] are demonstrated

(iv)Actual prejudice caused by delay which is such as to preclude a fair trial will always entitle an applicant to prohibition” “In relation to prejudice there is a heavy onus on the applicant. Protecting the Community’s right to prosecute was an “essential element in a properly functioning criminal justice system” and so “vague allegations of prejudice” would not suffice to secure prohibition”

Dismissed McFarlane’s appeal as there was no actual prejudice

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Principles for prohibition owing to undue delay, per McFarlane

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4 Principles distilled:

(i)Inordinate, blameworthy or unexplained prosecutorial delay may breach an applicant’s constitutional entitlement to a trial with reasonable expedition

(ii)Prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to an expeditious trial by directing prohibition

(iii)Where the delay has been significant but less than that envisaged in (2), the “court will engage in a balancing exercise between the Community’s entitlement to see crimes prosecuted and the applicant’s right to an expeditious trial” However, prohibition will only be granted where one or more of the elements referred to in PM v Malone [2002] and PM v DPP [2006] are demonstrated

(iv)Actual prejudice caused by delay which is such as to preclude a fair trial will always entitle an applicant to prohibition” “In relation to prejudice there is a heavy onus on the applicant. Protecting the Community’s right to prosecute was an “essential element in a properly functioning criminal justice system” and so “vague allegations of prejudice” would not suffice to secure prohibition”

NOTE: elements from PM v Malone [2002] and PM v DPP [2006]: three interests protected by the right to a trial with reasonable expedition:-

(i)The right to prevent oppressive pre-trial incarceration (loss of liberty while trial pending)

(ii)The right to minimise anxiety and concern to the accused, and

(iii)The right to limit the possibility that the defence will be impaired.

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Devoy v DPP [2008]

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HELD:

(i)Applicant had not suffered any actual prejudice

(ii)Crime was one of the utmost gravity involving the use of a Shotgun

(iii)The applicant had not sought an early date for his trial

(iv)The Applicant had confessed to the Crime

So, having engaged in Balancing exercise, no Prohibition was granted

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Cosgrave v DPP & Ors (2012)

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FACTS:

Liam Cosgrave was charged, pleaded guilty and was sentenced in 2005 under the Electoral Act 1997 based on allegations made by Frank Dunlop re receipt of corrupt payments (in re electoral donations).

Further charges were brought against him in October 2010 under the Public Bodies Corrupt Practices Act 1889, (payments made in return for a vote in support of rezoning lands) and he claimed, inter alia, undue delay

HELD, High Court 2011: the delay ensued from the continuance of the Mahon Tribunal involving Frank Dunlop and the proceedings could not commence until Tribunal had concluded to avoid prejudice to the accused. Refused order of prohibition

HELD, Sup Ct April 2012, 3:2 majority, allowed trial to proceed. Affirmed refusal of prohibition of criminal trial on grounds that that prosecution were entitled to await the prosecution and conviction of their key witness before proceeding with trial of appellant.

Denham CJ:

“I am satisfied that it is not an abuse of process to prosecute the appellant on the current charges. In the special circumstances it was just and appropriate for the DPP to await the prosecution and conviction of Frank Dunlop before prosecuting the appellant on the current charges, upon which Frank Dunlop will be a key witness. In all the circumstances there is no real risk of an unfair trial. Thus, I would not prohibit the trial of the appellant on the current charges.”

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Delay and Summary Trials

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Stronger entitlement to expeditious trial for summary matters

DPP v Arthurs: delay of 2 years and 3 months was too much

Section 10(4) of the Petty Sessions Act 1851 – 6 month time period within which complaint must be made in re summary matters

Maher v Carroll: if complaint made within 6 month time period, no way right to trial with reasonable expedition could be violated

State (Cuddy) v Mangan: 2 ½ years after the 6 month period was too much

DPP (Finn) v Bouchier Hayes: 11 months was excusable

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Indictable Offences

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Longer periods of delay are acceptable, subject to proviso that prosecution are not uneccessarily slow
•PP v DPP: prosecution was lackadaisical and slovenly which caused delay of over two years

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PP v DPP [2000]

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Geoghegan J. commented that the prosecution in that case was lackadaisical and slovenly, which caused a delay of over two years above that which would have taken place had the investigation taken place properly.

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Undue Delay - Child Sex Abuse

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Delay can occur because of delay in when complaints themselves are made

Prejudice is very likely, given the length of time that has elapsed

Both presumptive prejudice and actual prejudice (memory loss, witness death, evidence destruction etc)

B v DPP [1997] (Too easy for complainant to excuse delay?)

(i)Was the relationship between the parties one of trust?

(ii)Did the accused exercise dominion/control over the complainant effectively preventing complainant from complaining

(iii)Did the State contribute to the delay?

(iv)Has the passage of time nullified the accused’s ability to raise alibi evidence?

(v)Had the accused admitted guilt?

Trial judge would ensure all relevant issues re delay were put to jury ‘with appropriate directions’.
NOTE: ‘Appropriate Directions’ have also salvaged cases tainted with adverse pre-trial publicity

Test in B found to be too lenient in POC v DPP (2000), as it assumed the guilt of the accused.


Conflict of Opinion regarding prejudice of missing evidence: JO’C v DPP (2000)

Swing back towards a prejudice based test - JL v DPP [2000]

DD v DPP [2004]: Dominance must inhibit complaint and flow from conduct.

Current Position Moves away from REASONS For Delay Focuses instead on OUTCOME of Delay: H v DPP (2006) -It is no longer necessary to inquire into the reason for delay in making a complaint

The "proper approach of the court in cases where such general prejudice is pleaded has been set out by this court (Denham J.) in the recent case of DC v DPP (2006)

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B v DPP [1997]

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(Too easy for complainant to excuse delay?)

FACTS: B had abused three daughters between 1963 & 1973. Daughters complained in 1992, due to dominance of father over them. Trial started Jan 1994.

HELD: Test is “Real risk of an unfair trial”

Simple to state, but difficult to apply – Denham, J laid down factors to be considered by court:

(i)Was the relationship between the parties one of trust?

(ii)Did the accused exercise dominion/control over the complainant effectively preventing complainant from complaining

(iii)Did the State contribute to the delay?

(iv)Has the passage of time nullified the accused’s ability to raise alibi evidence?

(v)Had the accused admitted guilt?

HELD: B had not established real risk of unfair trial due to the delay. Trial judge would ensure all relevant issues re delay were put to jury ‘with appropriate directions’.

NOTE: ‘Appropriate Directions’ have also salvaged cases tainted with adverse pre-trial publicity

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POC v DPP (2000)

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(B v DPP presumed offence occurred and accused guilty)

HELD: Court must inquire as to the reasons for the delay, was the failure to complain a result of the conduct itself?

Application of B v DPP test proved difficult: it was too lenient to the complainant, and it proceeded on the basis that the accused was guilty and that the only because of delay

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JO’C v DPP (2000)

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(Conflict of Opinion regarding prejudice of missing evidence)

HELD: Keane, CJ rejected that prejudice could result from death of accused’s wife who could have given evidence as to how often the complainant had visited accused

Hardiman, J disagreed, and was more willing to give weight to deceased wife’s possible evidence. Presumption was operating that offence had actually occurred.

If there is no forensic evidence regarding whether the offence occurred and who committed it, we only have memories and surrounding circumstances to rely upon:

Lapse of time (25 years) “Makes it difficult if not impossible to clarify the surrounding circumstances and to introduce any element at all of undoubted fact with which the statements of the parties can be correlated and tested”

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JL v DPP [2000]

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HELD: Court rigorously analysed the issue of Prejudice

3 key points in that case:

(i) Due to the passage of time, it was more likely that alibi evidence would be unavailable (even if an alibi might have existed)

(ii) There may be a risk that the victim had misperceived the sexual act and the lack of medical evidence could be prejudicial

(iii) It was alleged that incidents took place in a caravan yet doubt existed as to whether the accused still owned a caravan at the time the complainant moved into the area.

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DD v DPP [2004]

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(Dominance must inhibit complaint and flow from conduct)

HELD: It’s not enough to simply have a “good reason” for not complaining

“An inhibition of some sort”......which prevented complainant “From complaining – where such inhibition arises directly from the offence”

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POC v DPP (2000)

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(Specific Prejudice concluded)

FACTS: alleged that abuse took place in music room in school. Did the alleged abuser lock the music room door prior to the abuse?

HELD: It was now impossible to tell if locks were in place at the time, therefore trial prohibited

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H v DPP (2006)

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(i)The core inquiry is not so much the reason for the delay...but rather whether the accused will receive a fair trial.......it is the consequences of the delay rather than the delay itself which has concerned the Court”

(ii) It is no longer necessary to inquire into the reason for delay in making a complaint

(iii) The appropriate test to be applied is “whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial......The test is to be applied in light of the circumstances of the case”

(iv) The inquiry which should be made is whether the degree of prejudice is such as to give rise to a real or serious risk of an unfair trial. The factors of prejudice, if any, will depend upon the circumstances of the case”

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JK v DPP (2006)

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(Application of the H principles)

FACTS: 84 yr old man, complainants were niece, nephew and grand-niece. Reasons for the delay were no longer an issue to be canvassed. Look at whether fair trial can be achieved. What about alibi evidence (as per JO’C) that he was with another (now deceased) party when one of the offences allegedly occurred?

HELD: “This potential witness’ evidence concerns what took place at a family christening. Clearly many other family members must have been present at the occasion. The applicant’s family circle is large and close-knit, as set out in detail in the judgement of the learned trial judge. It seems unlikely that other witnesses as to the applicant’s behaviour on that occasion would not be available”

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DC v DPP [2006]

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“A jurisdiction to intervene does not apply where the applicant has minutely parsed and analysed the proposed evidence and sought to identify an area merely of difficulty or complexity. The test for this Court is whether there is a real risk that by reason of the particular circumstances that the applicant could not obtain a fair trial”

And directions to the jury could be utilised to mitigate any prejudice, and to minimise the risk of an unfair trial

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Delay in sexual offences cases - summary

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In summary, students need to be able to discuss the shift in the court's approach to undue delay and its effect the trial of an accused- starting with the B case, then the JOC & JL cases which showed up flaws with the B case, the shift in emphasis in the DD case from mere dominance to inhibition from complaining caused directly by the offence and finally, the consolidation of the case-law and return to the primary consideration of 'prejudice and a real and serious risk of an unfair trial' in the H case. The current position in light of the H case is that the court focuses on the consequences of the delay in terms of identifiable prejudice to
the accused and the resulting real or serious risk of an unfair trial.

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Autrefois Acquis & Prosecution Appeal

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DPP v O’Shea [1982] HELD: No Constitutional principle limiting the appellate jurisdiction of the Supreme Court from decisions of the High Court under Article 34.4.3

Registrar of Companies v Judge Anderson (2004) - 3 essential protections included in Double Jeopardy

(i)Protection from being retried for an acquittal

(ii)Protection from being retried after a Conviction

(iii)Protection from being punished multiple times for one offence

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DPP v O’Shea [1982]

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HELD: No Constitutional principle limiting the appellate jurisdiction of the Supreme Court from decisions of the High Court under Article 34.4.3

In practice, the Prosecution can appeal acquittals from the Central Criminal Court for, e.g., Murder

This would be contrary, however, to the principle of Double Jeopardy

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People v Quilligan (No. 2) [1989]

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FACTS: Trial Judge had not allowed certain statements to be admitted as evidence. These statements were crucial to proving the accused’s guilt. Therefore, having decided (wrongly) that the statements could not be admitted, the Judge ruled that the Jury must acquit.

Appeal by DPP had been allowed, and so Supreme Court were then considering whether or not a Re-Trial should be ordered.

HELD: Henchy & Griffin indicated re-trial should never be allowed:

“perhaps the most compelling and practical reason for refusing the order of retrial here applied for is that if the accused men were to be put on trial again in the Central Criminal Court, they could successfully raise autrefois acquit as a plea in bar........This rule (or principle), which is sometimes referred to as the rule against double jeopardy, is but an aspect of the canon of fundamental fairness of legal procedures, inherent in our Constitution”

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Registrar of Companies v Judge Anderson (2004)

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FACTS:

Accused had not filed annual returns. Filed late and paid fines, and so District Ct Judge struck out summonses for failing to file. Legislation provided for prosecution regardless of said payment of late filing fine. Did this constitute double jeopardy?

HELD: Sup Ct: No double jeopardy arose. Previous matter was simply paying fine, matter different to later prosecution.

3 essential protections included in Double Jeopardy

(i)Protection from being retried for an acquittal

(ii)Protection from being retried after a Conviction

(iii)Protection from being punished multiple times for one offence
-But NO APPLICATION as between CIVIL and Criminal Proceedings

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DPP v Matthews [2006]

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FACTS: Special Criminal Court convicted applicant of membership of the IRA. It was argued that evidence that “had not been persuasive” in a previous trial should therefore not be allowed into this trial

HELD: they were two different charges, and this meant that Autrefois Acquit could not be invoked.

If the charge in the second trial had been the same, then Autrefois Acquit COULD have been invoked.

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Cosgrave v DPP & Ors (2012)

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FACTS: Liam Cosgrave was charged, pleaded guilty and was sentenced in 2005 under the Electoral Act 1997 based on allegations made by Frank Dunlop re receipt of corrupt payments (had received electoral donations). Further charges were brought against him in October 2010 under the Public Bodies Corrupt Practices Act 1889, (payments made in return for a vote in support of rezoning lands) and he claimed, inter alia, that he had a legitimate expectation that he would not be further prosecuted when he had been previously prosecuted and pleaded guilty, based on same facts.

There were 2 statements made by Mr Dunlop re payments made in return for a vote in support of rezoning lands, these statements formed the basis of the later prosecution. Cosgrave argued that had he been furnished with these statements, he would have been on notice that he faced further prosecution and would not have pleaded guilty to the initial offence.

HELD, High Ct, 2011: to have a legitimate expectation there must be a representation which created same. Failure to disclose the statement could not amount to such representation that further charges would not be brought. Further, during an interview he stated ‘I never received a corrupt payment from Frank Dunlop’ and therefore must have known the Gardai were investigating corruption allegations

HELD, Sup Ct, April 2012: upheld finding of High Court

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Right of Access to Legal Advisors

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People v Healy (1990) HELD: all persons in custody have right of reasonable access to legal advice.

People v Finnegan [1997]: Denial of access to one’s legal advisor will render any subsequent detention unlawful, and any subsequent admissions will be inadmissible

People v Buck [2002]: the Supreme Court held that even a statement made before the Solicitor arrived might be admissible, if bona fide efforts had been made to obtain one. A causative link must be established between the denial of access and the Inculpatory Statement (Buck).

People v O’Brien [2005]: calling a solicitor when they knew or ought to have known that there would be a very considerable delay in his attendance. That decision was made in breach of the accused’s constitutional rights and, therefore, from the moment that decision was made his detention became unlawful.

Gormley v DPP [2010] - distinction between "colourable manoeuvres" in O'Brien and bona fide attempts.

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People v Healy (1990)

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FACTS: no access was allowed to Solicitor until after the Statement had been made

HELD: all persons in custody have right of reasonable access to legal advice

“in order to permit him to reach a truly free decision as to his attitude to interrogation or to the making of any statement, be it exculpatory or inculpatory”

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People v Buck [2002]

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FACTS: Solicitor did not arrive until 5 hours after accused arrived at Garda Station. Gardai did their best to obtain a solicitor. Inculpatory Statement by accused was only made after solicitor actually arrived

HELD: Supreme Court held that this access was allowable

Further, the Supreme Court held that even a statement made before the Solicitor arrived might be admissible, if bona fide efforts had been made to obtain one.

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People v Finnegan [1997]

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HELD: Denial of access to one’s legal advisor will render any subsequent detention unlawful, and any subsequent admissions will be inadmissible
-But a causative link must be established between the denial of access and the Inculpatory Statement (Buck)

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People v O’Brien [2005]

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FACTS: accused detained at Pearse St Garda Station and requested Solicitor. Gardai recommended solicitor based in Tallaght – who attended 7 hours later. In the meantime, accused questioned twice and made statements.

HELD: “The Deliberate and conscious decision of the Gardai to contact Mr Gaffney (Tallaght-based solicitor) rather than a more convenient solicitor, when they knew or ought to have known that there would be a very considerable delay in his attendance. That decision was made in breach of the accused’s constitutional rights and, therefore, from the moment that decision was made his detention became unlawful.”

Therefore, any admissions AFTER the Solicitor arrives are potentially admissible.

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Gormley v DPP [2010] (Court of Criminal Appeal)

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FACTS: similar circumstances to those of DPP v O’Brien, both cases concerned interviews that were commenced in the absence of requested legal advisors, and both cases concerned admissions made during those interviews.

Gormley involved a request by the accused for legal representation, Gardai contacted solicitor immediately, and solicitor indicated would not be available for an hour. Did not arrive for almost 2 hours.

HELD: distinction made between behaviour of the Gardai in O’Brien and in Gormley. Finnegan, J restated the general position outlined in Healy, that the accused enjoys a right of “reasonable access” to a solicitor.

"A right to reasonable access to a solicitor by a detained person, I am satisfied, means in the event of the arrival of a solicitor at the Garda Station in which the person is detained an immediate right of that person to be told of the arrival and, if he requests it immediate access."

Finnegan, J drew attention to the conclusion of Finlay, CJ in Healy that there was no requirement for a commenced interview to be discontinued once the suspect had sought a solicitor, rather simply that the solicitor be given immediate access to the suspect once the latter arrived

Distinction made between ‘colourable manoeuvres’ employed in O’Brien to thwart suspects right to solicitor, and behaviour of Gardai in Gormley

‘The court does not regard it as the law, as has been argued, that the Gardai must wait an indeterminate time after the accused seeks a solicitor in order to allow for a solicitor to arrive at the Garda Station….’

The Court also highlighted that solicitor could always provide advice by telephone

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Lavery v MIC Carrickmacross (1999)

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FACTS: applicant arrested under OASA 1939 on suspicion of being member of unlawful organisation. Questioned by Gardai.

Solicitor requested interview notes to be made available prior to end of detention. Request refused

HELD: Solicitor not entitled to be present at interview, nor can applicant or solicitor dictate how interviews are conducted.

the Supreme Court held that the right of reasonable access does not entitle the accused to have his solicitor present during the interrogation process.

In the Supreme Court O'Flaherty J. said that:

"... the gardai must be allowed to exercise their powers of interrogation as they think right, provided they act reasonably. Counsel for the State submitted to the High Court Judge that in effect what Mr. MacGuill was seeking was that the garda should give him regular updates and running accounts of the progress of their investigations and that this was going too far. I agree. The solicitor is not entitled to be present at the interviews. Neither was it open to the applicant, or his solicitor, to prescribe the manner by which the interviews might be conducted, or where."

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DPP v Healy [1990]

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HELD: You also have a right to be advised of your right to a Solicitor

A right of reasonable access to a solicitor by a detained person, I am satisfied, means, in the event of the arrival of a solicitor at the garda station in which a person is detained, an immediate right of that person to be told of the arrival and, if he requests it immediate access. The only thing that could justify the postponement of informing the detained person of the arrival of the solicitor or of immediately complying with a request made by the detained person when so informed, for access to him, would be reasons which objectively viewed from the point of view of the interest or welfare of the detained person, would be viewed by a court as being valid.

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Tighe -v- Judge Haughton (2011)

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Facts: The applicant who was denied legal aid on account of the fact that he was not at risk of incarceration, complained that the respondent had failed to correctly apply the provisions of the Criminal Justice (Legal Aid) Act 1962 as amended, and that his rights to natural and constitutional justice had been infringed by the failure to accord him the entitlement to present his defence appropriately. The respondent contended that the dispute related to the payment of fees rather than a refusal of representation.

Held by Hanna J. that the first respondent acted within jurisdiction and adhered to the principles of natural and constitutional justice. The applicant had not been denied his right to be tried in due course of law in accordance with Article 38 of the Constitution and the relief sought was denied. The matter would be remitted to the District Court for sentencing.

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Carmody -v- Minister for Justice (2009)

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Held by the Supreme Court (Murray C.J., Denham, Hardiman, Geoghegan, Fennelly JJ.), in allowing the appeal and in declaring that the plaintiff had a constitutional right to apply, prior to being tried, for legal aid to include solicitor and counsel in criminal proceedings brought against him in the District Court and to have that application heard and determined on its merits and in making an order prohibiting the prosecution from proceeding until the plaintiff was afforded that right, 1, that the right to legal aid was a constitutional right which entitled everyone to legal representation in a criminal trial and, although not required by the Act of 1962, a defendant who could not afford such legal representation had to be informed of that constitutional right.
The State (Healy) v. Donoghue [1976] I.R. 325 followed.

2. That the principles of constitutional justice required that a person charged with a serious criminal offence, including an offence before the District Court, who could not afford legal representation, be provided with such representation by the State as was essential in the interests of justice, though the nature and extent of that representation could be affected by the gravity and complexity of a charge and any exceptional circumstances.
The State (Healy) v. Donoghue [1976] I.R. 325 followed.

3. That, having regard to the extremely wide scope and range of criminal offences within the jurisdiction of the District Court and the increased complexity of modern legislation and regulatory measures, cases would inevitably arise where it would be essential that an indigent defendant be afforded legal representation consisting of both solicitor and counsel.

4. That a defendant in criminal proceedings in the District Court had a constitutional right to apply for legal aid to include counsel and to have such application determined on its merits.

5. That the principle of equality of arms, which was only an aspect of the general right to a fair trial, did not require parity of representation, rather, it implied that neither party to a criminal trial should be procedurally disadvantaged as compared to the other party. However, in deciding whether there were particular aspects of the case as regards gravity, complexity or other exceptional circumstances which required the grant of legal aid for counsel, a court was entitled to take into account the fact that the State was represented by both solicitor and counsel.
The State (Healy) v. Donoghue [1976] I.R. 325 followed; Steel & Morris v. United Kingdom (2005) 41 E.H.R.R. 22 considered.

6. That a question involving the constitutionality of a statute, or any section thereof, ought to be postponed until consideration had been given to other questions of law, the resolution of which could determine the issues between the parties and thereby obviate the need for a court to address the constitutional question.
The State (P. Woods) v. Attorney General [1969] I.R. 385 and Murphy v. Roche [1987] I.R. 106 followed.

7. That where a party claimed that an Act, or any of its provisions, was unconstitutional and contemporaneously applied for a declaration of incompatibility of that Act, or any of its provisions, with the State's obligations under the Convention, but the latter remedy could not be said to be a remedy capable of resolving the issues between the parties, the constitutionality of the Act ought to be decided first. However, the order for determination of issues in proceedings, where one issue was the constitutionality of an Act, was ultimately a matter for a court.

8. That s. 2 of the Act of 1962 was not repugnant to the Constitution solely because it failed to provide a statutory mechanism which would enable a defendant to apply for, and obtain in appropriate circumstances, legal aid which would include counsel as well as solicitor in criminal cases before the District Court. Such deficiency was caused by the failure of the Oireachtas to confer any jurisdiction on the District Court or any other body to consider such an application for legal aid but did not affect the constitutionality of that section.

9. That, since a court had to seek to vindicate constitutional rights, it was not confined to a specific form of remedy sought by a plaintiff who had been denied his constitutional rights but, rather, had jurisdiction under the Constitution, in particular Article 40.3 thereof, to grant such remedy as it considered necessary to vindicate the constitutional right concerned.
The State (Healy) v. Donoghue [1976] I.R. 325 and McDonnell v. Ireland [1998] 1 I.R. 134 followed.

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DPP -v- Gormley (2010)

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The applicant was arrested on a Sunday and brought to the garda station where he arrived at 2 p.m. where he was informed of his entitlement to legal advice. At 2.15 p.m. he nominated two solicitors with either of whom he wished to speak. The gardaí did not have a mobile or home number for either solicitor. A garda car was dispatched immediately to attempt to secure the attendance of one of the solicitors. At 3.05 p.m. the solicitor made contact with the gardaí by telephone and stated that he would be there either shortly after 4 p.m. or as soon as he possibly could thereafter. The solicitor did not ask to speak with the applicant. The first interview with the applicant commenced at 3.10 p.m. and ended at 4.46 p.m. The solicitor arrived at 4.48 p.m. and was immediately admitted to a private room where he conducted a consultation with the applicant. A second interview was carried out thereafter.
The applicant was subsequently convicted of attempted rape. The applicant applied for leave to appeal against conviction and sentence on the ground that the trial judge had erred in admitting statements made by the applicant in interview prior to the arrival of the solicitor to the garda station, arguing that there had been a breach of the applicant's constitutional right to access to legal advice.

Held by the Court of Criminal Appeal (Finnegan, Hanna and Charleton JJ.), in refusing leave to appeal against conviction, 1, that the right of a person in detention to independent legal advice was well established and extended to ensuring that a person in detention was aware of that right. The right to independent legal advice was constitutional in origin and meant that in the event of the arrival of a solicitor, the person had an immediate right to be told of the arrival of the solicitor and, if he requested it, immediate access to the solicitor.
The People (Director of Public Prosecutions) v. Healy [1990] 2 I.R. 73 applied.

2. That the circumstance of a solicitor being requested by a person in detention did not require an interview to be discontinued. However, once a solicitor arrived at the garda station, the person in detention must be given immediate access.
The People (Director of Public Prosecutions) v. Healy [1990] 2 I.R. 73 ; The People v. Shaw [1982] I.R. 1 and The People (D.P.P.) v. Conroy [1986] I.R. 460 applied.

3. That the gardaí were not obliged to wait an indeterminate time after the applicant sought a solicitor to allow for a solicitor to arrive at the garda station. What might be a reasonable time was capable of infinite variation. What was important was that the gardaí informed a person in detention of his right to legal advice and did what was reasonable in assisting him in securing such advice and they did not engage in colourable stratagems to defeat the enjoyment of his constitutional right.
The People v. Madden [1977] I.R. 336 followed. The People (Director of Public Prosecutions) v. O'Brien [2005] IESC 29, [2005] 2 I.R. 206 considered.

4. That where the right of access to legal advice in garda custody was thwarted through deliberate refusal or colourable manoeuvres to ensure that the right was undermined, there was a breach of the person in detention's constitutional right in failing to provide the person with a solicitor within a reasonable time. The detention became unlawful from the moment the decision to thwart the person in detention's right was made and the statements made by a person in detention pending the arrival of his solicitor were inadmissible whether there had been an undue delay in the arrival of the solicitor or not.
The People (Director of Public Prosecutions) v. O'Brien [2005] IESC 29,
[2005] 2 I.R. 206 applied.

Obiter dicta:

1. That once a reasonable suspicion arose that a person had committed an arrestable offence, the gardaí were entitled to arrest him and his detention in custody for a period of six hours could be authorised by the member in charge of a garda station under the provisions of the Criminal Justice Act 1984 where there was reasonable information indicating that detention was necessary for the purpose of investigating the offence. This six hour period could be extended but it was not to be assumed that any period of deprivation of liberty would be lightly extended.

2. That there was no basis in the Regulations of 1987 whereby a period of detention might be extended due to reasonable efforts being made by the gardaí to obtain legal advice for a person in detention.

3. That where a solicitor named by a person in detention could not be contacted within a reasonable time, or was unwilling to attend, then the person in detention should be given the opportunity to ask for another solicitor pursuant to Regulation 9(2) of the Regulations of 1987.

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DPP -v- McCrea (2010)

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Facts The prosecutor brought an appeal from the judgment of the High Court on a Case stated by way of appeal from the judgment of the District Court (District Judge Watkin) wherein the Judge dismissed the charge brought against the respondent. The respondent had been charged with failing to provide forthwith two specimens of his breath contrary to s. 13 of the Road Traffic Act 1994 as amended. That charge was dismissed in the District Court on the grounds that the respondent had been denied a right of reasonable access to a solicitor and that the refusal by the respondent to provide two breath specimens may have occurred as a consequence of the breach of that right. The facts established that the respondent was arrested and detained and was given his notice of rights and the form C72 was read out to him. Immediately subsequent to the making of the requirement to provide two breath specimens, the respondent requested to speak to his solicitor. That request was refused by the intoxilyser Garda on the mistaken belief that if the s. 13 procedure was aborted midway through she would be precluded from making any further requests under s. 13(1)(A).

Held by Supreme Court; Hardiman J.: (Murray CJ, Fennelly, Macken, Finnegan JJ) in dismissing the appeal: That the right of a person in custody to consult with a solicitor was a right of a constitutional nature. In this case the respondent was informed by the gardai not only of his right to consult a solicitor when he arrived in the Garda Station, but of his right to do so at any time while he was in custody there, on the basis of a statutory regulation. This case could be determined having regard to its own particular facts and the failure to observe the regulatory procedure. Having considered the grounds of the learned District Judge's decision, it was open to her, on the specific facts she found in this case, to dismiss the charge.

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DPP -v- Ryan (2011)

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Facts The applicant was convicted of murder and sought leave to appeal against his conviction. The victim had been shot through a window at a house party. It was the prosecution's case that the victim was not the intended victim but that it was the victim's brother who was the intended target. It had been the prosecution's case that the applicant had driven the motorcycle which had been used to transport the alleged shooter and that the applicant was party to a common design to commit murder. During the trial key evidence was given by a principal prosecution witness who had known the applicant for a number of years and who was receiving protection under the Witness Protection Programme. Evidence was used by the prosecution case regarding phone calls made on the night in question. In addition the prosecution adduced evidence of admissions made by the applicant whilst in custody. Leave was sought to appeal the conviction on the basis that the trial judge ought not to have admitted certain statements made by the applicant. The verdict was unsafe because the trial judge refused to compel the prosecution to disclose details of arrangements and benefits accorded to the key prosecution witness. The trial judge failed to give the jury appropriate warnings concerning the protected witness's evidence and in particular as regards corroboration of such evidence. Finally it was argued that the trial was unsatisfactory and the verdict unsafe as the jury had not been informed that a verdict of manslaughter could be returned as an alternative to murder.

Held by the Court of Criminal Appeal in quashing the verdict and ordering a re-trial. The Court was not satisfied in the particular circumstances of this case that there was a denial of the right in question during the interview in question. There was no evidence that the applicant's consultation by telephone with his solicitor was curtailed by the Gardaí. It was open to the trial judge on the evidence to form the view that the brief contact that the applicant had with his solicitor was sufficient to cure the unconstitutionality of his detention for the remainder of that interview. There was no evidence of a causative link, whether general or specific, between admissions made while the conditions of the applicant's detention were unlawful and those made subsequently while they were lawful. In the case of the witness in a Witness Protection Programme a jury should be warned as to the desirability of corroboration because the witness might be motivated, in giving evidence, by the benefits to be received from that programme. Accordingly, the evidence of protected witnesses was a category of potentially unreliable evidence in its own right, separate and distinct from the evidence of accomplices. The trial judge misdirected himself in law in deciding not to give a protected witness warning concerning corroboration to the jury in addition to an accomplice warning. This fundamentally affected the manner in which the jury deliberated on the evidence and accordingly the verdict of the jury could not be considered as safe and the appeal would be allowed on this ground. In all the circumstances of the case the Court was satisfied, that there was neither a legal or evidential basis on which to invite the jury to bring in a verdict of manslaughter as an alternative to a verdict of guilty of murder. Juries should only be asked to decide issues for which there was a real basis in law having regard to the evidence before them.

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Joyce -v- Brady (2011)

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Facts: The appellant was charged with theft pursuant to s. 4 Criminal Justice (Theft and Fraud Offences) Act 2001. Judicial review proceedings had been commenced seeking an order of certiorari quashing a refusal of the respondent District Court judge to grant legal aid. The respondent Judge had considered the gravity of the alleged offences in respect of whether a conviction would lead to a sentence of imprisonment and had concluded that the offence was a minor one with no risk of custodial sentence.

Held by O' Donnell J. (Murray, McKechnie JJ. concurring) that the perceived risk of imprisonment was not the sole or decisive test for justifying a refusal of legal aid. This fell short of what the Constitution required. The conclusions reached as to the absence of previous convictions and the accused's lack of familiarity with a courtroom should have led to entirely the opposite conclusion of that reached. The facts of the case satisfied the statutory rest alone. The decision to refuse legal aid was wrong and unlawful and the appeal would be allowed.

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DPP -v- Craig White (2011)

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Facts The applicant sought leave to appeal against his conviction of murder. The murder took place on 15 November 2005 when the deceased who was travelling as a passenger in a car was shot by someone travelling in another car. Forensic evidence was of considerable importance and evidence was given at trial that the applicant's fingerprints were found on the handles of a brown paper bag within which the gun used in the murder was found. Gloves were found near the abandoned car that had been used in the murder and fibre evidence from those gloves suggested that they were similar to the pair recovered from the car. Expert evidence was given at the trial by a Detective Garda, who stated that he "had no doubt" the fingerprints found at the scene matched those of the applicant. Counsel on behalf of the applicant objected to such opinion being given in evidence and a voir dire was held in this respect. The applicant was arrested in 2005 in connection with the murder but was released without charge. He was later arrested whilst serving a prison sentence pursuant to an arrest warrant issued under s. 42(2) of the Criminal Justice Act 1999. The applicant's solicitor was contacted after the applicant arrived at the Garda Station and the solicitor indicated she would attend immediately. In the meantime the applicant was requested to provide forensic samples and he consented to those samples being taken. At the close of the prosecution case, counsel on behalf of the applicant applied to have the case withdrawn from the jury on the basis that there was no case to answer. This applicant for leave is based on the grounds that the learned trial judge erred in law: 1. in ruling that the fingerprints of the applicant were admissible having regard to the opinion given by the expert that he had 'no doubt' the fingerprints matched the applicants. 2. In ruling that the arrest of the applicant pursuant to s. 42(2) of the 1999 Act was lawful in circumstances where the warrant to arrest the applicant did not show jurisdiction on its face by reason of the fact that it did not specifically record that the judge was satisfied as to the matters required by subsections (a) and (c) of section 42(2). 3. In ruling that the taking of samples from the applicant pursuant to the Criminal Justice (Forensic Evidence) Act, 1992 was lawful in circumstances where same breached the applicant's right of reasonable access to his solicitor. 4. In failing to withdraw the case from the jury upon the application of the defence that there was no case to answer. 5. In failing adequately to charge the jury on the presumption of innocence and the prosecution's onus of proof with respect to that presumption and 6. in failing to adequately charge the jury that it could draw no inference from the fact that the applicant had not given evidence. 7. In charging the jury that if they were to convict the applicant they must be of the view that not to find the applicant guilty would be an affront to common sense. In respect of grounds 5 and 6 it was submitted that the learned trial judge was required to state in the charge both that the onus lay on the prosecution to prove every element of the case, and also that the prosecution was required to negative every supposition consistent with innocence. It was submitted that the particular wording of the charge could possibly have caused confusion in the minds of the jury. Furthermore, it was submitted that it should have been explicitly pointed out to the jury that they should draw no inference from the fact that the applicant did not give evidence.

Held by the CCA; Macken J. (Budd, O'Keeffe JJ) in refusing the application:

1. That the learned trial judge made no error in law in the manner in which he heard and dealt with the issue arising in relation to the strength or otherwise of the view expressed by the expert witness. The expression by the witness that he had 'no doubt' about the results of the fingerprint evidence was not in any way suspect and was not open to criticism and did not seek to usurp the role of the jury. The evidence as given did not lead to an unfair trial or an unsafe conviction.

2. That there was no constitutional protection invoked in this case and consequently it was unclear why the same scrutiny as attached to search warrants should automatically, or at all, apply equally to the issue of an arrest warrant permitting the arrest of a person who was a prisoner. Provided, as occurred here, there was adequate evidence that all of the matters provided for in s. 42(2) (a) and (c) of the 1999 Act were put before the learned District Court Judge, the arrest warrant was not invalid by the failure independently to recite the judge's satisfaction as to the existence of each (a) and (c) of s. 42(2) on the face of the warrant.

3. That there was no refusal to postpone the taking of samples in this case and the applicant consented to the samples being taken. Consequently, the learned trial judge was entitled, in the exercise of his discretion, to rule that the taking of the samples was lawful and that the applicant's right of reasonable access to his solicitor was not infringed.

4. That this was not a case in which there was no evidence upon which the jury could convict the applicant, or no evidence upon which the jury, properly charged, should convict such as to oblige the trial judge to withdraw the case from the jury.

5. That the applicant failed to make out that the learned trial judge's charge was in any way inadequate or required further clarification in respect of the presumption of innocence, the burden of proof and adverse inferences.

6. That the statement complained of by the applicant in respect of the judge's charge regarding circumstantial evidence was not likely to lead to confusion in the minds of the jury. The charge on this issue was one which, taken in context, allowed the jury to afford to the applicant an element of protection in the case of circumstantial evidence that might not otherwise be the case.

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Salduz -v- Turkey (2000) ECHR

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The applicant is a Turkish national who was born in 1984 and lives in İzmir (Turkey). He complained that he had been denied legal assistance while in police custody and that he had not had access to the written opinion of the Principal Public Prosecutor at the Court of Cassation. On 29 May 2001 the applicant was arrested on suspicion of having participated in an illegal demonstration in support of the imprisoned leader of the PKK (the Kurdistan Workers' Party, an illegal organisation). He was also accused of hanging an illegal banner from a bridge. On 30 May 2001 the police took a statement from the applicant, without a lawyer being present, in which he admitted having taken part in the demonstration and having written the words on the banner. The applicant subsequently denied the content of his police statement, alleging that it had been extracted from him under duress. The investigating judge remanded the applicant in custody, at which point he was allowed to see a lawyer. Before the Izmir State Security Court, the applicant again denied the content of his police statement, alleging that it had been extracted from him under duress.

On 5 December 2001 the State Security Court convicted the applicant for aiding and abetting the PKK and sentenced him to four years and six months' imprisonment. His sentence was later reduced to two and a half years' imprisonment as he had been under 18 at the time of the offence. In giving its decision the State Security Court relied on the statements the applicant had given to the police, to the public prosecutor and to the investigating judge. It also took into account the statements made by his co-accused to the public prosecutor and two other pieces of evidence. It concluded that the applicant's confession to the police had been authentic. On 27 March 2002 the Principal Public Prosecutor at the Court of Cassation submitted his written opinion to that court, calling for the judgment of the İzmir State Security Court to be upheld. Neither the applicant nor his representative were given access to that opinion. On 10 June 2002 the Court of Cassation dismissed an appeal by the applicant.

Mr Salduz complained that, in connection with criminal proceedings against him, he had been denied access to a lawyer while in police custody and had not obtained, at the final stage of the proceedings before the Court of Cassation, a copy of the written opinion of the Principal Public Prosecutor at that court. He relied on Article 6 §§ 1 and 3 (c).

Article 6
Access to a lawyer during police custody:
The Court found that in order for the right to a fair trial under Article 6 § 1 to remain sufficiently "practical and effective", access to a lawyer should be provided, as a rule, from the first police interview of a suspect, unless it could be demonstrated in the light of the particular circumstances of a given case that there had been compelling reasons to restrict this right. Even where compelling reasons might exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not have unduly prejudiced the rights of the accused under Article 6. The rights of the defence would in principle be irretrievably prejudiced when incriminating statements made during a police interview without access to a lawyer were used as a basis for a conviction.

No justification was given by the Turkish Government for denying the applicant access to a lawyer other than the fact that this was provided for on a systematic basis by the relevant legal provisions. As such, this already fell short of the requirements of Article 6 in this respect.

The Court moreover observed in particular that the State Security Court had used the applicant's statement to the police as the main evidence on which to convict him, despite his denial of its accuracy. For the Court, the applicant had undoubtedly been personally affected by the restrictions on his access to a lawyer, in that his statement to the police had ultimately been used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody.

The Court lastly noted that one of the specific elements of the instant case was the applicant's age. Having regard to a significant number of relevant international law materials concerning legal assistance to minors in police custody, the Court stressed the fundamental importance of providing access to a lawyer where the person in police custody was a minor.

In sum, the Court considered that, even though the applicant had had the opportunity to challenge the evidence against him at his trial and subsequently on appeal, the absence of a lawyer during his period in police custody had irretrievably affected his defence rights. There had therefore been a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1.

Non-communication of the written opinion of the Principal Public Prosecutor at the Court of Cassation:
The Court considered, for the reasons given by the Chamber in its judgment of 26 April 2007, that the applicant's right to adversarial proceedings has been breached. There had therefore been a violation of Article 6 § 1.

Article 41
Under Article 41 (just satisfaction) of the Convention, the Court considered that the most appropriate form of redress, provided the applicant so requested, would be a retrial in compliance with the requirements of Article 6 § 1. As to the remainder, it awarded the applicant 2,000 euros (EUR) in respect of non-pecuniary damage. EUR 1,000 was awarded for costs and expenses.