The Supreme Court dismissed Christopher McDonald’s appeal, with Justice Gerard Hogan agreeing with the reasons given by Justice Charleton. Hogan said the appeal failed because the presence or absence of a solicitor during the swabbing could not have affected the outcome in this case.
McDonald’s DNA, obtained from a swab taken after his arrest, was a critical factor linking him to items used as a false disguise by the person who shot and murdered Keith Walker on 12 June 2015, Hogan said.
The swab was taken while McDonald was detained at Blanchardstown Garda Station, before he had met a solicitor in person. He had spoken briefly with his solicitor by telephone and signed a consent form before the solicitor arrived. Gardaí took the swab under their common law powers, Hogan wrote.
But the judgment said that, at the time of McDonald’s arrest in June 2015, section 2 of the Criminal Justice (Criminal Evidence) Act 1990, as amended, allowed Gardaí to take a swab from a detained suspect irrespective of consent. Hogan said they could and would have taken the sample lawfully even without McDonald’s consent. In those circumstances, whether McDonald had or was entitled to have a solicitor present during his detention was not material to the appeal.
Hogan expressly reserved his position on the wider question of whether, and to what extent, a detained suspect has a constitutional entitlement to legal assistance during pre-trial investigation. He noted that the issue had been debated in earlier Supreme Court decisions and that there was judicial division about the source and scope of any such right.
The judgment did not resolve that broader question. Hogan said it should be considered in a case where the issue directly arose and could materially affect the appeal’s outcome. His judgment, delivered on 30 June 2022, agreed with Charleton’s conclusion that McDonald’s appeal should be dismissed.