The High Court refused Derek Gallagher leave to seek judicial review over whether memoranda of his garda interviews should be admitted in evidence at his criminal trial. Mr Justice Richard Humphreys held that admission or exclusion of evidence was a matter for the trial judge.
The application concerned a charge under section 7 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. Gallagher argued that he had not been warned that exercising his right to silence could itself amount to an offence, and that it would therefore be unfair to admit the interview memoranda.
The application was initially made without notice to the Director of Public Prosecutions. The judge directed that it be heard on notice and heard submissions from both sides. The Director’s solicitor relied on a three-month time limit issue: the leave application was filed more than three months after Gallagher was returned for trial. The judge said he was reluctant to decide the case on that issue given the Director’s stated intention to substitute the charge when the indictment was served.
An affidavit from Detective Sergeant Cullen said the substituted charge would allege that Gallagher was concerned in converting, transferring, handling, acquiring, possessing or using property, contrary to section 7(1)(a)(ii). The Director intended to contend that the substitution was permitted under section 4M of the Criminal Procedure Act 1967, as amended. The judge noted that the proposed charge remained under section 7 but alleged the offence in a different way. Gallagher’s application had been framed around the original charge, and no request was made to amend it.
Gallagher’s solicitor argued that the trial could not realistically proceed as scheduled because of the proposed substitution. The judge said whether an adjournment was needed was for the trial judge, noting that no additional evidence was involved. He also recorded the affidavit’s statement that Gallagher had not remained completely silent and had given some explanations or comments.
The judge’s decision was that the application did not meet the arguability threshold. His stated basis was that the admissibility of the interview material belonged before the trial judge, rather than in judicial review. He mentioned the need to avoid undue interference with the criminal process as a possible additional reason, but said he did not need to rely on it. The ruling refused leave only; it did not determine whether the interview memoranda would be admitted or decide the criminal charge. The trial was listed for 27 October 2015.